Magistrate Cannot Direct Investigation U/s 156(3) CrPC After Taking Cognizance And Ordering Enquiry, Reiterates Madras HC [Read Order]

Magistrate Cannot Direct Investigation U/s 156(3) CrPC After Taking Cognizance And Ordering Enquiry, Reiterates Madras HC [Read Order]

The Court below has completely lost sight of rudimentary principles of law, said the Madras High Court recently while quashing a Magistrate's order directing investigation under Section 156 (3) Cr.P.C. after having taken cognizance of the complaint and after ordering for an enquiry under Section 202 of Cr.P.C. (N.Amsaveni vs. R.Loganathan)

Justice N. Anand Venkatesh observed that such a procedure is patently illegal, and it goes against the settled principles of law and said:

Power to direct investigation by police under Section 156 (3) of Cr.P.C., is done at the pre-cognizance stage and the enquiry or investigation ordered under Section 202 of Cr.P.C., is done at the post-cognizance stage. Once a Magistrate takes cognizance of the offence, he cannot thereafter order for an investigation under Section 156(3) of Cr.P.C

The court referred to the Supreme Court judgments in Rameshbhai Pandurao Hedau .vs. State of Gujarat, Mona Panwar .Vs. High Court of Judicature of Allahabad, and Ram Dev Food Products Private Limited .Vs. State of Gujarat.

The Court also observed that the petition filed in the instant case was not accompanied by sworn affidavit of the complainant and thus violated the direction issued in Priyanka Srivastava & Another .Vs. State of U.P. which had directed that the petitions filed under Section 156(3) of Cr.P.C must be necessarily accompanied by sworn affidavit of the complainant.

The law in this regard was settled by the Supreme Court in Devarapalll Lakshminarayana vs V.Narayana Reddy, in the year 1976 itself. In the said case, it was categorically observed:

That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under s. 156 and ends with a report or charge-sheet under s. 173. On the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

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