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Section 156(3) R/W 397 Of Criminal Procedure Code: A Pillar To Post Provision(?)

Sakshi Komal Dubey
9 March 2023 5:48 AM GMT
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The Code of Criminal Procedure (“Code”) provides a supplementary way to report a cognizable offence. Under Section 156(3), the Magistrate has the competence to order an investigation of an offence of which he may have taken cognizance under Section 190. Ergo, any application of Section 156(3) can only be at the pre-cognizance stage. Section 156(3) empowers a Magistrate to order police investigation when he himself refrains from issuing process under Section 204. Once the procedure under Chapter XV of the Code has been endorsed, the Magistrate cannot revert to Chapter XII.

In an application under Section 156(3), a Magistrate will not delve into whether the allegations are true or not.[1] The only essential strictly to be met is, the information given to the Magistrate discloses commission of a cognizable offence. Though directed, an applicant under Section 156(3) need not mandatorily exhaust his remedies of approaching the police under Section 154(1), then, in case of failure, write to the concerned Superintendent of Police under Section 154(3). Such departure is made only if the facts of the case disclose an exceptional circumstance.

Upon receiving the application under Section 156(3), a Magistrate applies his mind to the allegations made, and either proceeds to take cognizance under Section 190(1)(a) or orders investigation, thereafter which the customary procedure from Section 154(1) begins. Further, the Magistrate even has the power to convert the application into a complaint case and proceed under Chapter XV.[2]

The Magistrate does not take cognizance of offence while passing an order under Section 156(3), however, it has to reflect application of the judicial mind.[3] A Magistrate cannot routinely pass an order directing police to investigate.[4] The probability that the police did not lodge an FIR, if the applicant approached to lodge an FIR, due to any practicable reason cannot be discarded outrightly. An order passed under Section 156(3) is to compel the police to exercise its chief duty of investigation. The use of “may” in Section 156(3) indicates that the Code acknowledges the discretion of the Magistrate.

Section 397: What Is ‘Interlocutory’?

The section keeps an ‘interlocutory order’ outside its purview with the objective that the trial is not delayed. To understand the upshot of Section 397 on an order passed under Section 156(3), it is essential to understand of the meaning of an “interlocutory order”. The Supreme Court in Amar Nath & Ors. v. State of Haryana & Ors.[5] defined the term “interlocutory” as “an order other than final decision”. For an interlocutory order to be appealable it must decide on the rights and liabilities of the parties. It seemed to the court that the term “interlocutory order” under Section 397(2) was used in a restrictive impression. “It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or liabilities of the parties.”

The High Court of Allahabad defined an “interlocutory order” as, “an interlocutory order is in the nature of a procedural order which is a step taken towards final adjudication of the case”.[6] The High Court of Madras in State v. Tmt. Indirakumari[7] characterised it as, if an order passed in any petition results in culmination of proceedings, then it cannot be termed as “interlocutory”. An interlocutory order though not definitive qua the main dispute but is conclusive qua the subordinate issue.

Consequence(S): The Looming Uncertainty

The order passed under Section 156(3) though passed by a judicial body, is administrative in nature.[8] Adversaries argue that since there are alternative remedies available, rejection of an application does not obstruct the applicant indefinitely. Though, it makes an applicant run pillar to post to move the State machinery to investigate the case. This aspect fails to consider is that in a complaint case, the burden of producing evidence is on the complainant.

The High Court of Bombay in Avinash v. The State of Maharashtra & Anr.[9], held that an order passed under Section 156(3) decides the proceedings under Section 156(3) “finally” would be revisable by the Sessions Court or the High Court.

On the other hand, the High Court of Chhattisgarh in Amarnath Agarwal v. Jai Singh Agarwal & Ors.[10], held that since a revision against registration of an FIR under Section 154(1) is not maintainable, therefore, an order passed by the Magistrate directing the police to investigate under Section 156(3) would also be not revisable. If a revision against such an order is held maintainable and allowed, the Court of Sessions would be vested with the power of quashing an FIR. Thus, what cannot be done directly, cannot be done indirectly.

The High Court of Delhi by relying on its previous precedents, in Nishu Wadhwa v. Siddharth Wadhwa & Anr.[11] held that once an application under Section 156(3) is decided, the Magistrate court becomes functus-officio; owing to the fact that it cannot interfere in the investigation. Hence, such an order is revisable as it adjudicates upon a valuable right. It was held that an accused has a locus standi before the revisional court as his rights qua summoning, and arrest as an accused is affected.

Recently, the High Court of Allahabad in Atul Pandey @Param Pragyan v. State of U.P.[12], by placing reliance on full bench judgment of Jagannath Verma & Ors. v. State of U.P.[13], held that since an order of dismissal of an application under Section 156(3) decides the matter of the moment and closes an avenue of investigation by the police, hence, revision of such an order is not against the statue as it is not an interlocutory order.

On the contrary, from Nathan v. Vaithinathan & Ors.[14] to GTL Infrastructure Ltd. v. The Inspector of Police[15], the High Court of Madras has continued to hold that an order passed under Section 156(3) is an executive order, hence, no revision lies against it. To state that an order of further investigation is an “executive order”, the court placed its reliance on Kamlapati Trivedi v. State of West Bengal.[16]

The anomaly places two accused of the same offence on a different footing, where the ‘prospective’ accused does not have a right of hearing before the Magistrate, he does when a revision is allowed but that would be only where revision against an order passed under Section 156(3) is permitted.

An order rejecting an application under Section 156(3) does not operate as res judicata, hence, the applicant can file a complaint under Section 200 of the Code.[17] Furthermore, the aggrieved can invoke the jurisdiction of the High Court under Section 482. Where the complaint does not disclose commission of a cognizable offence, or the order is sans jurisdiction, the accused has the right to turn to Section 482 or Article 226 of the Constitution.[18]

The Apex Court has not yet had an encounter with the issue. However, in Union of India v. W. N. Chadha[19], the Supreme Court observed that “the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) or in proceeding instituted otherwise than on a police report till the process is issued under Section 204”. The court further states that the provisions under Chapter XII confer no right of prior notice and hearing to the accused or they “are silent”. In CBI v. Rajesh Gandhi[20], the Supreme Court held that the decision to investigate does not attract principles of natural justice.

So, are holdings High Court of Bombay, Allahabad, and Delhi against the decisions of the Supreme Court? This lingering uncertainty has given rise to distinct cleavage of opinion.

Views are personal.

[1] Sunita v. State of U.P., 2007 SCC OnLine All 1533.

[2] Chandrika Singh v. State of U.P. & Ors., 2007 SCC OnLine All 1022.

[3] Ram Babu Gupta & Anr. v. State of U.P. & Ors., 2001 SCC OnLine All 264.

[4] Arvindbhai Ravjibhai Patel v. State of Gujarat & Ors., 1997 SCC OnLine Guj 304.

[5] Amar Nath & Ors. v. State of Haryana & Ors., 1978 SCR (1) 222.

[6] Atul Pandey @Param Pragyan v. State of U.P., Appl. u/s. 482 No. 18108 of 2020.

[7] State v. Tmt. Indrakumari & Ors., 2003 SCC OnLine Mad 449.

[8] Mohd. Salim v. State, 2010 SCC OnLine Del 1053.

[9] Avinash v. The State of Maharashtra & Anr., 2015 SCC OnLine Bom 5197.

[10] Amarnath Agarwal v. Jai Singh Agarwal & Ors., 2015 SCC OnLine Chh 14.

[11] Nishu Wadhwa v. Siddharth Wadhwa & Anr., 2017 SCC OnLine Del 6444.

[12] Supra 6.

[13] Jagannath Verma & Ors. v. State of U.P. & Anr., 2014 SCC OnLine All 11859.

[14] Nathan v. Vaithinathan & Ors., 1974 SCC OnLine Mad 288: 1975 Cri LJ 994.

[15] GTL Infrastructure Limited v. The Inspector of Police, Vadipatti Police Station, MANU/TN/6716/2022.

[16] Kamlapati Trivedi v. State of West Bengal, (1980) 2 SCC 91.

[17] Smt. Hema Pathak v. State of U.P. & Anr., 2006 SCC OnLine All 1535.

[18] Guruduth Prabhu & Ors. v. M.S. Krishna Bhat & Ors., 1999 SCC OnLine Kar 606.

[19] Union of India & Anr. v. W.N. Chadha, 1993 Supp (4) SCC 260: AIR 1993 SC 1082.

[20] Central Bureau of Investigation & Anr. v. Rajesh Gandhi, (1996) 11 SCC 253: AIR 1997 SC 93.

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