Section 156(3) of the Cr.P.C. empowers a Magistrate to direct a Police Officer to investigate into a matter disclosing a cognizable offence.
Whenever any person gives an information of the commission of a cognizable offence to an Officer in Charge of a Police Station, under Section 154 of the Criminal Procedure Code, 1973, an FIR (First Information Report) is registered. However, in case the officer in charge of the police station refuses to lodge the FIR, such Complainant / Informant can write to the Superintendent of Police (or Deputy Commission of Police in a Commissionerate system) under Section 154(3) of the Cr.P.C.
However, even thereafter if the Superintendent of Police fails to direct for registering an FIR, the Complainant / Informant is empowered to approach a Magistrate under Section 156(3) of the Cr.P.C. to invoke the power of the Magistrate to Direct Investigation in a matter.
Section 156 of the Cr.P.C. is as follows:
“156. Police officer’s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”
Hence, it is apparent that a Magistrate can order investigation in a case where he is empowered to take cognizance of offence under Section 190 of the Cr.P.C.
Usually, in a proceeding under Section 156(3), the Magistrate calls upon the State House Office (SHO) or his subordinate and asks for the Status report of the Complaint that was lodged by the Complainant and if the same discloses a cognizable offence, then a direction is given to the SHO to lodge and FIR and proceed ahead with the matter. Hence, on a bare perusal of Section 156(3), it is apparent that a Magistrate is empowered to direct an Office in Charge of a Police Station to conduct investigation in a matter.
To understand whether a Magistrate can order a Police Officer, higher in rank than an Officer in Charge (SHO) such as the ACP, DCP, Jt. CP, CP in a Commissionerate system or a DSP, ASP, SP, DIG, IG, DGP in the DGP system, under Section 156(3) to conduct investigation, we will have to discuss the terms Officer in Charge and Police Station.
An “officer in charge of a police station” has been defined under Section 2(o) of the Cr.P.C. as:
“(o) “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;”
Further, a “police station” has been defined under Section 2(s) as follows:
“(s) “police station” means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;”
Therefore, on a combined reading of the above two provisions, the government designates a place as a Police Station which needs to have a police officer in charge of such police station. In case this Police officer is not available due to some exigency, then an officer who is next in rank and is above the rank of constable, would be an officer in charge. Therefore, as per Section 2(o), an officer in charge only includes the officer who is in charge of such police station or his junior / subordinate. It does not include an officer who is in rank superior to such officer in charge.
However, Section 36 of the Cr.P.C. is relevant to discuss, wherein it is provided that a superior officer in rank to an officer in charge of a police station may exercise the same powers. Section 36 is as follows:
“36. Powers of superior officers of police.—Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.”
Therefore, on a bare perusal of Section 36, it would seem as if a Magistrate can order any Police officer who is superior to an officer in charge of a Police Station. However, the Kerala High Court in the case titled State Of Kerala vs Kolakkadan Moosa Haji And Ors., 1994 CriLJ 1288, has after discussing the abovementioned provisions, held that a Magistrate is not empowered to direct an officer superior in rank than the officer in charge of a police station under Section 156(3). The relevant portion of the Judgment is as follows:
“13. Government in exercise of their executive powers can authorise any superior police officer to investigate a case, and such directions can be issued by the higher officer to his subordinate officer in the police department. When any police officer referred to in Section 36 of the Code conducts the investigation, that cannot be called in question as without authority. In appropriate cases the High Court can issue directions under Article 226 of the Constitution for causing investigation to be made by such officers because such officers have the power to investigate. But such power of the Government or the higher officer in the department is quite different from the scope contained in Section 156(3) of the Code. There is no provision in the Code or in any other statute which confers power on a magistrate to direct any officer other than an officer in charge of a police station to conduct investigation.
14. Therefore, my conclusion is that the learned magistrate has gone wrong in directing the Inspector General of Police to conduct the investigation. Hence I quash the impugned order. I direct the learned magistrate to take up the complaint again and adopt such steps as he deems necessary according to law in the light of the observations made above.”
This order of the Kerala High Court was impugned before the Supreme Court titled Kolakkadan Moosa Haji v. State of Kerala & Ors., (2001) 3 SCC 340. The Hon’ble Supreme Court while affirming the decision of the Kerala High Court observed as follows:
“…In our view, the High Court has rightly held that the Magistrate was not competent to give such direction to cause inquiry by the Inspector General of Police (Crimes) while exercising powers under Section 156(3) of the Code of Criminal Procedure because sub-section (3) of Section 156 indicates that the Magistrate may order such investigation as mentioned in sub-section (1) of Section 156 of the Code of Criminal Procedure. Sub-section (1) of Section 156 of the Code of Criminal Procedure contemplates that any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub-section (1) of Section 156, in our view, only indicates that a police officer in charge of the police station within the local limits of the jurisdiction of the Magistrate, may cause investigation without any direction from the Magistrate and the Magistrate under sub-section (3) of Section 156 may direct such police officer to cause inquiry. Such power of the Magistrate under sub-section (3) does not authorise the Magistrate to give direction to any other superior officer to cause inquiry even though under Section 36 of the Code of Criminal Procedure, a superior police officer, can make investigation in respect of the complaint where an officer in charge of the police station may make inquiry. Therefore, no interference is called for in this appeal and the same is disposed of.” (emphasis supplied)
Hence, the judgment of the Kerala High Court has attained finality, with the Supreme Court having affirmed the order of the Kerala High Court, vide the abovementioned order.
Therefore, it is well settled law that a Magistrate can only direct an officer in charge of a police station, to conduct investigation under Section 156(3) of the Cr.P.C. In case the Complainant wants a direction to get an investigation from an officer who is in rank superior to the officer in charge of the police station or the SHO, then in that scenario, such person can approach the High Court or the Supreme Court. The High Court has ample power under Article 226 and the Supreme Court has ample power under Article 142 of the Constitution to direct for an investigation to be done by an officer superior to the officer in charge of a police station.
