Improper investigation u/s 156(3) by police and judge dismissing the application

[Vipin Tyagi]

Dear Sir,
I had filed a criminal complaint under section 156(3) against a construction company under section 403 and section 405 for not returning my patented moulds after satisfactory completion of job. These mould are my asset and were entrusted to the company as a collateral in lieu of performance security. They were to remain in custody of the company and were to be released after completion of work. However, after satisfactory completion of work, the company grabbed the moulds and refused to give back. i wrote several letters but they did not reply.

Police just took a written reply from the company that moulds were returned to me with no evidence of return and just declared it to be a civil matter. The judge dismissed my application saying no investigation is needed and called for pre-summoning evidence under section 200. However, I feel that investigation under 156(3) is required as it has not been done properly and my case is being made weak deliberately. What should I do?

[Dr. Ashok Dhamija]

You can challenge the order of the Magistrate rejecting your application under Section 156(3) of the Criminal Procedure Code (Cr.P.C.), by filing a revision petition in the Sessions Court.

As I mentioned in one of my previous answers, such a revision petition would be permissible as per Bombay High Court decision in the case of Avinash v. State of Maharashtra, 2015 SCC OnLine Bom 5197. Though there are a few contrary judgments too, recently, there was a judgment of Delhi high court too, in the case of Nishu Wadhwa v. Siddharth Wadhwa, 2017 SCC OnLine Del 6444, as per which a revision petition in the Sessions Court against order of Magistrate under Section 156(3) CrPC is maintainable.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Vipin Tyagi]

Dear Sir,

Thanks for your valuable feedback. In case revision petition is accepted and impugned order is set aside, Can we request the Magistrate to direct the police to conduct objective and fair investigation by giving him detailed guidelines in form of detailed questionnaire so that prima facie cognizable offences committed by the accused by eliciting replies by him on oath along with evidence can be established and the prejudiced and indifferent attitude of police can be countered? If it is possible, then how that can be done in legal manner?

[Dr. Ashok Dhamija]

If revision succeeds, that implies that police would be conducting investigation after registering FIR. Generally, the FIR would be on the basis of your complaint / application, and if you have mentioned all relevant issues in your application, then the police is expected on its own to fully investigate the case. Even otherwise, it is the duty of police to conduct thorough investigation once the FIR is registered.

Keep in mind that usually the courts are not expected to tell police about specific points of investigation, as investigation is the statutory power / domain of the police. If the police is doing defective investigation, the court can direct further investigation, but here again generally specific points are not directed. If the police files closure report after investigation, then the court can still take cognizance of the case if it is not satisfied with the closure report, and moreover, in such situation, you can file your protest petition in court.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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