Magistrate Cannot Revert To Pre-Cognizance Stage And Invoke S.156(3) Cr.P.C. Once Inquiry Is Taken Up U/ S 202: Bombay High Court
The Bombay High Court has held that once a Magistrate takes cognizance of a complaint and proceeds under Chapter XV of the Cr.P.C., the Magistrate cannot revert to the pre-cognizance stage and invoke Section 156(3) to direct police investigation. The Court observed that the Magistrate's order directing investigation under Section 156(3) after calling for a report under Section 202 was contrary to the scheme of the Cr.P.C.
Justice Ranjitsinha Raja Bhonsale was hearing an application filed under Section 482 of the CrPC (now Section 528 of the BNSS) seeking quashing of the order passed by the Judicial Magistrate First Class, and the FIR registered pursuant to that order under Sections 420, 406, 465, 467 and 34 of the IPC.
The complaint concerned allegations that the accused had fabricated and manipulated a power of attorney relating to land and, on its basis, transferred the complainant's land. The Magistrate directed the complainant to lead evidence under Section 200 Cr.P.C., and then called for a report under Section 202 Cr.P.C. After the police submitted a report stating that no offence was made out, the Magistrate directed the police to investigate under Section 156(3).
The Applicant contended that when an order was passed directing the original Complainant to lead evidence under section 200 of Cr.P.C., it was not appropriate for the Magistrate to then pass an order directing investigation under section 156(3) of Cr.P.C.
Taking note of the various relevant provisions, the Court observed that the order directing the investigation to be conducted under section 156(3) of Cr.P.C was not in line with the object and scheme of the Cr.P.C.
“… there is clear procedural illegality in passing the order dated 1st October 2016 directing investigation under section 156(3) of Cr.P.C. An FIR cannot be registered or sustained on the basis of an untenable or illegal order,' the Court remarked.
Distinguishing between Section 202 and Section 156(3), the Court noted that the former is to ascertain whether there is sufficient evidence to proceed further, whereas a direction under the latter is issued when the Magistrate is of the opinion that there is credible material available, there is no reason to postpone the issuance of process, and an investigation can be ordered immediately.
The Court observed that if the Magistrate is of the opinion that there is a need to find out if there exists sufficient ground to proceed, it would not be permissible to revert back to the pre-cognizance stage and order an investigation under section 156(3) of Cr.PC.
“… it would not be permissible for a Magistrate to revert back to the pre-cognizance stage and order an investigation under section 156(3) of Cr.PC, when cognizance is taken under section 202 of Cr.PC,” the Court remarked.
The Court accordingly quashed and set aside the order dated October 1, 2016 and FIR.
Case Title: Tansukhlal Pannalal Jain v. State of Maharashtra [Criminal Application No. 1293 of 2017]