Need for Sanction before passing an order for investigation u/s 156(3) of the Criminal Procedure Code, 1973

Need for Sanction before passing an order for investigation u/s 156(3) of the Criminal Procedure Code, 1973


  1. Chapter XII of the Code of the Criminal Procedure Code, 1973 (for short, the Code) deals with information to the police and their powers to investigate. The Chapter deals, so to say, with A to Z of first information given to the police (in cognizable or non-cognizable cases), and police investigation leading to final report under Section 173 of the Code. Section 156 specifically deals with police officer’s power to investigate cognizable cases. A Station House Officer can investigate any cognizable case arising within the local jurisdiction of his police station (sub section (1)). His jurisdiction is co-terminus with the jurisdiction of the local Criminal Court as indicated in Chapter XIII of the Code. Under sub Section (3) of Section 156, any Magistrate empowered under Section 190 may order such an investigation as mentioned in sub section (1) of Section 156. Section 190, in turn empowers any Magistrate of the First class and any Magistrate of the Second Class specially empowered in this behalf under sub section (2) of Section 190 to take cognizance of any offence. Thus the Magistrate referred to in Section 190, can direct police investigation under Section 156(3) of the Code. This power under Section 156 (3) is a special power conferred on the Magistrates while their ordinary power is indicated in the provisions in Chapter XV of the Code (Section 200 to Section 203). Commencement of proceedings before Magistrate is covered by Chapter XVI of the Code, commencing with Section 204. Incidentally the first step is to issue process to the accused; but that is only in case where the Magistrate taking cognizance of an offence is of the opinion that there is
    sufficient ground for proceeding
    . In the absence of any such sufficient ground, the private complaint filed under Chapter XV is required to be dismissed under Section 203 of the Code.
  2. It is important to bear in mind the difference between “information” or “first information” given to police followed by FIR under Section 154 in Chapter XII of the Code finally leading to the report of the police officer on completion of investigation into the case registered under the FIR on the one hand and a “complaint’ or a “private complaint” as defined in Section 2(d) of the Code and dealt with in Chapter XV of the Code (heading is “Complaints to Magistrate”) on the other hand. Both the final report in the case of “information” to the police and the conclusion of the Magistrate in the case of a complaint to Court are required to be dealt with under Chapter XVI of the Code dealing with “commencement of proceedings before Magistrate.” Procedure for trial is indicated in the subsequent chapters of the Code.
  3. In this connection provisions of Chapter XV assume some importance. This Chapter relates to private complaints (see definition of “complaint ” in Section 2(d) of the Code) filed directly in Court as distinct from “information” furnished to police under Section 154 of the Code leading to registration of an FIR. The requirement of Section 200 is that a Magistrate who is deciding to take cognizance on a complaint is to examine upon oath the complainant and the witnesses present, if any, and to reduce to writing the substance of such examination. The statements so recorded are required to be signed by the complainant and the witnesses respectively as also by the Magistrate. Section 200 has two provisos which have not much relevance for the purpose of the present discussion. Section 202 deals with postponement of issue of process to the accused which is the requirement of Section 204 in Chapter XVI of the Code. The purport of Section 202, in so far as it is relevant for the present purpose, is that the Magistrate may postpone the issue of process and either (a) enquire into the case himself, or (b) direct an investigation to be made by a police officer or such other person as the Magistrate thinks fit. Such enquiry or investigation is to be directed for the purpose of deciding whether or not there is sufficient ground for proceeding. The rest of Section 202 is not relevant for the present purpose. If on consideration of all the materials referred to in Section 200 and 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, briefly recording his reasons for doing so. If, on the contrary, from such materials, the Magistrate taking cognizance is of the opinion that there is sufficient ground for proceeding, he shall issue a summons /warrant whichever is appropriate in the given case. The remaining Sections in Chapter XVI refer to the further requirements /proceedings. Proceedings for Trial etc. are prescribed in the later chapters.
  4. Section 202 (1) of the Code makes it clear that even after recording the statement of the complainant and witnesses present, the Magistrate is empowered to conduct an enquiry himself or to direct police or other investigation. Section 202 does not provide for such a police investigation at any stage before taking cognizance. Sections 200 to 203 are applicable only if the Magistrate takes cognizance. Power of a Magistrate to order Police investigation without or before taking cognizance of the cognizable offence in a given case can be traced only to Section 156 (3) of the Code and such power is not in any way referable to Chapter XV of the Code.
  5. The heading of Chapter XII is “Information to the Police and their powers to investigate”. Such information to the Police relating to cognizable cases is dealt with in Section 154. Information has to be recorded, read over to the informer and signed by him. The substance of the information shall be entered in the FIR Book and the General Diary of the Police Station. The Station House Officer’s power to investigate the case is traceable to Section 156 (1) of the Code. The heading of Section 156 is “Police Officers Power to investigate cognizable case”. Subsection (1) grants the Station House Officer power to investigate the case (if within his territorial jurisdiction ), without in order of the Magistrate concerned. This plenary power is clearly distinguishable from the power he may derive by virtue of a specific direction which may be issued by a competent Magistrate under Section 202 in Chapter XV of the Code. Such a direction can be issued by a Magistrate only on a private complaint filed in Court and only after examination of the complainant and witnesses present under Section 200 of the Code.
  6. Sub section (3) of Section 156 of the Code reads thus:-



“Any Magistrate empowered under Section 190 may order such an investigation as above mentioned”


“Investigation as above mentioned” is the one contemplated in Section 156(1), namely, investigation of a cognizable case. This power of a Magistrate is totally different in its nature from the power contemplated in Section 203 of the Code. The power under Section 156(3) is specific power conferred on jurisdictional Magistrate to order Police investigation independent of Chapter XV and without following the procedure prescribed by Section 200 of the Code. Power under Section 202 is to be exercised only if the Magistrate feels the need for such investigation for the purpose of deciding whether or not there is sufficient ground for proceeding, that is, for issuing process under Section 204 (Chapter XVI) of the Code.

7. There is a purpose underlying the distinct power under Section 156(3) of the Code vesting in a Magistrate to order investigation by the SHO of a Police Station without following the procedure under Section 200 of the Code. The purpose is to provide for a situation where the Magistrate concludes that he should not take cognizance of an offence alleged in a compliant filed in his Court and that following the requirements of Section 200 etc would be a tortuous process which might result in wasting the valuable time of the Court or the enquiry may require exercise by the Police of their power to locate, trace out and question witnesses, conduct searches of offices, residences and hotels and evidence to be collected may be voluminous and the process is likely to be time consuming. In such cases, the Magistrate, instead of taking cognizance of an offence under Section 190(1)(i) in Chapter XIV of the Code, (which shall be a prelude to following Section 200 and 202 of Code), may, without taking such cognizance, directly invoke Section 156(3) of the Code and order investigation by the police. The above is not exhaustive of situations calling for invocation of the power under Section 156 (3) of the Code.

8. Section 19(1) of the Prevention of the Corruption Act,1988 mandates that no court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 of the Act alleged to have been committed by a public servant, except with the previous sanction of Central Government, State Government or appropriate authority mentioned in Section 19(1)(a, b and c) respectively. In order words, no Court can take cognizance of any one of the above offences without the prior sanction of the appropriate government or authority. Assuming that accused is a public servant and the offence alleged falls within the scope of the Sections of the PC Act referred to in Section 19(1) of the PC Act, cognizance under Section 190(1) (a) of the Code can be taken only if sanction had been obtained earlier. Without taking cognizance or if it is impossible to take cognizance for want of sanction, no Court can act under Section 190(1)(a) or Section 200 and 202 of the Code.

9. It, therefore, become necessary to understand the true meaning of the expression “Taking Cognizance”, which act alone requires sanction. Dictionary meaning of “Cognizance” is “knowledge or notice, judicial or private”. The above meaning must be considered in the light of the answer to the question “take cognizance for what purpose?” In the context of Court proceedings, the answer could only “be take notice for the purpose of doing an act which logically and lawfully follows the mental state of taking cognizance.” When a complaint is filed before a criminal Court, the question of taking cognizance of the offence disclosed in the complaint arises only and solely for the purpose of treating it as a regular criminal case and for following the procedure indicated in Chapter XVI. (Sections 200 to 204 and so on). Taking cognizance of an offence must be followed by judicial action under the above provisions. Section 156 of the Code, occurring in chapter XII, is the statutory provision relating to power of police officers to investigate cognizable offences. Sub section (1) of Section 156 declares the power of any station house officer to investigate such an offence. This is statutory power vested in such officers with reference to information received at the police station of the commission of cognizable 0ffence within the limits of the station. Sub section (3) of Section 156 states that “any Magistrate empowered under Section 190 may order such an investigation as above mentioned”. This special power is granted to such Magistrates, obviously to deal with complaints filed in Court in which the Magistrates do not proceed to take cognizance of the offence involved and feel the need to straight away order police investigation.

10. An order to be passed under Section 156(3) of the Code is not an order which could be passed after the Court takes cognizance of an offence as required under Section 200 of the Code. That is an order which could be lawfully passed before or instead of invoking Section 200 of the Code. As such previous sanction of the appropriate authority is not required for passing an order for police investigation under Section 156(3) of the Code. Passing of an order for police investigation under Section 202 of the Code is conditional on observing the requirements of Section 200, which is conditional on the Court taking cognizance of the offence, which is conditional on the previous grant of sanction by the appropriate authority. It explains the vesting of the different types of power in the Court.

11. The question of the need for sanction before an order for police investigation under Section 156 (3) of the Code could be passed was decided in the early days of our Republic in the decision of a three- Judge bench of the Supreme Court in R. R. Chari Vs. State of UP (AIR 1951 SC 207). The Supreme Court quoted with approval the following dictum laid down by Justice Das Gupta of Calcutta High Court in Superintendent and Remembrancer of Legal affairs, WB Vs. Abani Kumar Banerjee (AIR 1950 Cal 437)-



It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter, -proceeding under Section 200, and thereafter sending it for enquiry and or report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.” (Emphasis applied)


12. It has to be noticed that the above dictum by Justice Das Gupta of the Calcutta High Court was adopted by the three Judge bench decision of the Supreme Court. No bench superior to a three bench judge bench of Supreme Court has differed from the above dictum. In Gopal Das Sindhi Vs. State of Assam (AIR 1961 SC 986), another three Judge bench of Supreme Court has reiterated the dictum of the earlier bench. So also did Lakshminarayana Reddy & Ors vs V.Narayana Reddy & Ors (AIR 1976 SC 1672), Jamuna Singh vs Bhadai Sah (AIR1964 SC 1541),and Tula Ram Vs. Kishore Singh (1977 (4) SCC 459).

13. There is a two judge bench decision of Supreme Court Anil Kumar & Ors Vs. Aiyyappa & Ors. (2013 (10 SCC 705) which took the view that “ cognizance” means taking “notice” for any purpose and a Court is precluded from taking notice of a complaint or exercising jurisdiction in respect of offences requiring sanction for ‘taking cognizance’ and hence no order under Section 156 (3) of the Code can be passed without prior sanction as taking “notice” is inevitable in such a case. Anil Kumar & Ors did not refer to the earlier larger bench decisions or the coequal bench decisions and this crucial circumstance renders such a decision per incuriam.

Justice U.L.Bhat is the former Chief Justice of Gauhati High Court and High Court of Madhya Pradesh.