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Scope and Object of Sec 154,156 and Sec 200 To 210 of CRPC
Scope and Object of Sec 154,156 and Sec 200 To 210 of CRPC
SUMMARY OF WORKSHOP PAPER
th
(To Be Held On 20 November 2016.)
CRIMINAL SIDE
Topic: Scope and Object of Section 154, 156(3) and Section 200 to 210 of
Criminal Procedure Code, 1973.
INTRODUCTION:
In India, the administration of criminal justice system is controlled
under the provisions of the Criminal Procedure Code,1973 (hereinafter
referred to as “the Code”). Like in many other parts of the world, under the
Indian criminal jurisprudence, the system accepts two procedures for
redressing the grievance of a victim against the offender including that by the
State itself. The Code is concerned with “how the law is enforced”. Criminal
law involves “what law is enforced”. The two accepted methods for enforcing
administration of criminal justice system are a direct access and invocation of
the Courts system, while the other is adopting the channel through
(Police/Investigating agency) the State agency.
SCOPE AND OBJECT OF SECTION 154, 155 & 156(3) of the Code
:
2] The information given to Police Officer and reduced to writing as
required by Section 154 of the Code is known as “First Information”. First
Information Report did not mention in the Code, but these words are
understood to mean information recorded under this Section. It is an
important document may be put in evidence to support or contradict the
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evidence of the person, who gave the information. The investigation under
this chapter proceed on the first information. In certain circumstances F.I.R.
may be relevant under section 11 of the Indian Evidence Act, 1872.
5] In this respect, the Five Judges Bench of Hon'ble Supreme Court, in
case of Lalita
Kumari V/s. State U.P. AIR
2014 SC 187 , held that, the
condition that is sine qua non for recording an FIR under Section 154 of the
Code is that there must be information and that information must disclose a
cognizable offence. If any information disclosing a cognizable offence is led
before an officer in charge of the police station satisfying the requirement of
Section 154(1), the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register a case on
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the basis of such information.
6] As per Section 155 (1) of the Code, the police officer receiving
information of a noncongnizable offence must enter the substance of it in a
book kept in such form as the State Government may prescribe and then refer
the informant to the Magistrate. No police officer can investigate the non
cognizable case without the order of a Magistrate having power to try such
case or commit the case for trial as per Section 155(2) of Code of Criminal
Procedure.
7] The Hon'ble Bombay High Court in case of Shri Mukesh Laxman Das
Talreja vs The Inspector Of Police, MANU/MH/0145/2006 while discussing
section 155(2) observed that, section makes it clear that the permission is a
mandatory provision and if there is noncompliance of the said provision, the
investigation which is carried out by the police officer would be rendered
illegal and void.
Object of Sec. 156(3) of the Code
8] The object of Sec. 156(3) of the Code is that the aggrieved person
shall not be remedy less in case of refusal of police machinery to take the
information as to commission of cognizable offence. As per Sec. 156(3) of the
Code, the Magistrate upon receipt of information by way of complaint, is
empowered to direct the investigation by the hands of police machinery and
after order of Magistrate, the police officer of concern police station, to whom
the investigation is directed, is duty bound to register the F.I.R. and start
investigation about the alleged offences. The scope of Sec.156(3) of the Code
is limited to cognizable offences and in case of noncognizable offences, the
Magistrate has no power to direct the investigation.
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10] In Sureshchand Jain Vs State of M.P. ,AIR 2001 SC 571 Hon’ble
Supreme Court said that “Any Judicial Magistrate, before taking cognizance of
the offence, can order investigation u/s 156(3). If he does so, he is not to
examine the complainant on oath because he was not taking cognizance of
any offence therein. For the purpose of enabling the police to start
investigation it is open to the Magistrate to direct the police to register an
F.I.R.. There is nothing illegal in doing so. Even if a Magistrate does not say
in so many words while directing investigate u/s 156 (3) of the Code that an
FIR should be registered, it is the duty of the officer in charge of the police
station to register the FIR regarding the cognizable offence disclosed by the
complainant so that the police officer could take further steps contemplated in
Chapter XII of the Code only thereafter.
11] In another case of C.B.I. Vs – State of Rajanstha ,AIR 2001 SC 668
Hon’ble Supreme Court held that “A magistrate has no power under Sec.
156(3) to direct that the C.B.I. should conduct investigation of any offence.
The primary responsibility of conducting investigation into the offence in any
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cognizable case vest in the incharge police officer” Similar view was also
taken in Narasimhaiah Vs State of Karnatka [ 2002 CRLJ 4795]. Therefore,
the magistrate is empowered under Sec. 156(3) to direct the station officer to
investigate a cognizable offence.
12] After passing of order of investigation under section 156(3) of the
Code, it is necessary for the Magistrate to forward a true copy or certified copy
of the complaint along with the communication of the order passed by him
under section 156(3) of the Corder of Criminal Procedure to the concerned
police station and shall keep original record with the court which could be
used for various purposes in future. Certain guidelines are issued by the
Hon'ble Bombay High Court in this regard in the case of Ajit Ramrao Thete
and ores. V/s. State of Maharashtra and ors. Criminal Application
No.1091/2013.
cognizable offence, the Magistrate is not bound to refer the matter to Police
under section 156 (3) of the Code.
Maharashtra ,2010(1) MhLJ 421 Full Bench of Hon'ble Bombay High Court
observed that, Normally a person should invoke the provisions of Section
154 of the Code before he takes recourse to the power of the Magistrate
under Section156(3) but in cases where the police fail to act instantly and
the facts of the case show that there is possibility of the evidence
of
commission of the offence being destroyed and/or tampered with or an
Applicant could approach the Magistrate directly under Section 156(3) of the
Code by way of an exception. Further, observed that, “No particular format of
the application or petition to Magistrate under Section 156(3) of the Code has
been prescribed and therefore, a complaint/ petition under Section 156(3)
cannot be rejected on the ground of its format alone, in so far as it satisfies
ingredients of an offence and avers inaction of the police or makes out a case
justifying direct intervention of the Court.”
2) SCOPE OBJECT AND EVIDENTARY VALUE OF FIR :
17] The scope and application of the FIR is that, the information given
to a police officer and reduced to writing as required by section 154 of the
Code is known as the “First Information Report”. First Information Report is
not mentioned in the Code but these words are understood to mean
information recorded under section 154 of the Code (Ramakant Singhvs
State of Bihar..2006 Cr.L.J. 4752) FIR is an important document and may be
put in evidence to support or contradict the evidence of the person who gave
the information. The investigation under the provisions of the Code proceeds
on the First Information. In certain circumstances, FIR may be relevant under
section 11 of the Evidence Act. ( Prafulla BoravsState of Asssam)
1988,Cr.L.J. 428)
2) SCOPE OBJECT AND EVIDENTARY VALUE OF FIR :
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18] The scope and application of the FIR is that, the information given
to a police officer and reduced to writing as required by section 154 of the
Code is known as the “First Information Report”. First Information Report is
not mentioned in the Code but these words are understood to mean
information recorded under section 154 of the Code (Ramakant Singhvs
State of Bihar..2006 Cr.L.J. 4752) FIR is an important document and may be
put in evidence to support or contradict the evidence of the person who gave
the information. The investigation under the provisions of the Code proceeds
on the First Information. In certain circumstances, FIR may be relevant under
section 11 of the Evidence Act. ( Prafulla BoravsState of Asssam)
1988,Cr.L.J. 428)
19] Evidentary value of the FIR is that, the FIR is not substantive
evidence. It can be used only to contradict the maker thereof or for
corroborating his evidence and also to show that the implication of the
accused was not an afterthought. ( Ravi KumarvsState of Punjab, 2005 (1)
Crimes 372). FIR is an information of cognizable offence and if there is any
statement made therein, it can only be used for the purpose of contradicting
and discrediting a witness under section 145 of the Evidence Act. ( Nanhku
SinghvsState of Bihar, AIR 1973 SC 491) . The FIR is the piece of evidence
resgestae. In certain cases the First Information Report can be used under
section 32(1) of the Evidence Act as to the cause of informant's death or as
part of the informer's conduct ( Damodhar PrasadvsState of Maharashtra,
AIR 1972 SC 622) . FIR cannot be used to contradict other witnesses.
(Dharma RamvsState of Maharashtra, AIR 1973 SC 476).
3) STATE AMENDED PROVISIONS OF SECTION 156(3) OF the Code
20] Recently Hon'ble Supreme Court in Anil Kumar v. M.K. Ayyappa,
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MANU/SC/1002/2013 : 2014 CRL.LJ. 1 observed that even for reference of
the case to the police for investigation under Section 156(3) of the Code for
any of the offences punishable under the Prevention of Corruption Act,
sanction as contemplated under Section 19(1) of PC Act is necessary.
22] Now in view of Maharashtra amendment in Section 156 and 190 of
the Code no magistrate can order an investigation or take cognizance under
this section against a person who is or was a public servant as defined under
any other law for time being in force, in respect of the act done by such public
servant while acting or purporting to act in the discharge of his official duties,
except with the previous sanction under section 197 of the Code of Criminal
Procedure or under any law for time being in force
23] The legislature asserted that the amendment aims at protecting the
public officials against false, frivolous and politically motivated cases. The
assertion here needs to be scrutinized properly as sufficient protection was
already granted to protect the dignity and image of public officials. The
amendment is analysed in the light of different case laws related to the
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subject.
4) DISTINCTION BETWEEN 156 (3) and 202 of the Code:
25] The prime difference between investigation u/s. 156[3] and enquiry
by the Magistrate or investigation by police in terms of Sec.202 of Cr.PC is
that, for the investigation u/s.156[3] registration of FIR in police station is
must, however in enquiry or investigation u/s.202 no registration of FIR is
needed.
26] An order made u/s. 156[3] of CR.PC is in the nature of peremptory
reminder or information to police to their exercised planairy powers of in
vestigation and the Section 156[1] of the Code such an investigation
embrace the entire continues process which begins with the collection of the
evidence u/s. 156[3] of the Code and ends with the report u/s. 173 or Sec.
169 of the Code
27] On the other hand section 202 of the Code comes in a at stage when
some evidence has been collected by the Magistrate in a proceeding under
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chapter XV of the Code, but same is deemed insufficient to take decision as
to the next step in the prescribed procedure. In such situation
the Magistrate should empowered u/s. 202 of the Code to direct within the
limits circumscribe by the sections and investigation for the purpose of decid
ing whether or not there is sufficient ground for proceeding. Thus, the object
of the investigation u/s. 202 of the Code is not initiate fresh case on police re
port, but to assist the magistrate in completing proceeding already in
stituted upon the complaint before him. Similar are the observation of Hon'ble
Supreme Court in Suresh chandra V/s. State of MP 2001, SCC [Cri] 377.
5) TAKING COGNIZANCE OF OFFENCE U/S 190 and 197 of the Code:
28] In Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437, Hon'ble Justice Das
Gupta observed that "What is taking cognizance has not been defined in the
Criminal Procedure Code and I have no desire to attempt to define it. 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 Procedure Code,
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 and thereafter sending it for inquiry and report under section 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 or issuing a search warrant for the
purpose of the investigation, he cannot be said to have taken cognizance of
the offence."
29] A three judges Bench of Hon'ble Supreme Court in the case of
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R.R.Chari.Vs State of U.P., AIR 1951 SC 260 by referring the observation in
the case of Superintendent and Remembrancer of Legal Affairs, West
Bengal case supra observed that, the observations "taking cognizance does
not involve any formal action or indeed action of any kind but occurs as soon
as a magistrate as such applies his mind to the suspected commission of an
offence".
Essential Ingredients of Sec.197 OF the Code
30] In order to apply provisions section 197 of the Code, it is necessary
to fulfill two essential conditions, namely (1) that the offence must be
committed by public servant and (2) that public servant employed in
connection with the affairs of Union or State is not removable from the office
save by or with the sanction of the Central Government or the State
Government, as the case may be. If the above conditions are fulfilled then
further inquiry would be necessary whether the alleged act has been
committed by the public servant while acting or purporting to act in discharge
of his official duties.
31] Recently, the Apex Court in S.R. Sukumar Vs Sunaand Raghuram,
2015 Cr.L.J. 3829 observed that "Cognizance of offence" means taking notice
of the accusations and applying the judicial mind to the contents of the
complaint and the material filed therewith. It is neither practicable nor
desirable to define as to what is meant by taking cognizance. Whether the
Magistrate has taken cognizance of the offence or not will depend upon facts
and circumstances of the particular case.
32] Under section 200, the Code, when the complainant is examined, the
Magistrate cannot be said to have ipso facto taken the cognizance, when the
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Magistrate was merely gathering the material on the basis of which he will
decide whether prima facie case will made out for taking cognizance or not. “
Cognizance of offence “ means taking notice of the accusation and applying
the judicial mind to the contents of the complaint and the material filed
therewith. It is neither practicable nor desirable to decide as to what is meant
by taking cognizance. Whether the Magistrate has taken the cognizance of the
offence or not will depend upon the facts and circumstances of the particular
case.
33] The Apex Court in the Judgment in Paramjit Kaur(Mrs) ..Vrs..State
of Punjab and others (1996) 7 SCC 20 “ Protection of sanction is an
assurance to an honest and sincere officer to perform his duty honestly and to
the best of his ability to further public duty, however, authority cannot be
camouflaged to commit crime .” It is held in,“Mohd. Hadi Raja Vs. State
of Bihar and Anr., AIR 1998 SC 1945 that protection by way of sanction
under Section 197 is not applicable to officers of Government companies of
the public undertaking even when such public undertakings are State within
meaning of Article 12 of the constitution of the India.
6) OBJECT OF SECTION 202 OF the Code:
34] The object of the provisions of section 202 the Code is to enable the
Magistrate to form an opinion as to whether process should be issued or not.
The object of section 202 of the Code came up for consideration before the
Hon'ble Supreme Court initially in Chandra Deo Singh v. Prakash Chandra
Bose [1964] 1 SCR 639
. In this case Hon'ble Supreme Court was dealing with
the Old Criminal Procedure Code i.e. Chap. 16 (now Chapter 15 of the
New Code). There is no substantial change excepting renumbering of the sec
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tions in this Chapter, which contains Sections 200 to 203. And wherein it has
been held that the object of Section 202 of the Code is to enable the Magis
trate to scrutinise carefully the allegations made in the complaint with a view
to prevent the person named therein as accused from being called upon to
face an obviously frivolous complaint. But there is also another object behind
that provision and it is to find out what material is there to support the allega
tions made in the complaint. It is the boundant duty of the Magistrate while
making an enquiry to elicit all facts not merely with a view to protect the in
terests of an absent accused person, but also with a view to bring to book a
person or persons against whom grave allegations are made.
35] Whether the complaint is frivolous or not is necessarily to be deter
mined on the basis of material placed before the Magistrate by the com
plainant. Whatever defence the accused may have can only be enquired into at
the trial. An enquiry under Section 202 the Code can in no sense be charac
terised as a trial. Permitting an accused person to intervene during the enquiry
would frustrate its very object and that is why the legislature has made no spe
cific provision permitting an accused person to take part in the enquiry un
der Section 202 of the Code
36] Whether the complaint is frivolous or not is necessarily to be deter
mined on the basis of material placed before the Magistrate by the com
plainant. Whatever defence the accused may have can only be enquired into at
the trial. An enquiry under Section 202 the Code can in no sense be charac
terised as a trial. Permitting an accused person to intervene during the enquiry
would frustrate its very object and that is why the legislature has made no spe
cific provision permitting an accused person to take part in the enquiry un
der Section 202 of the Code
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37] The object of an investigation under S. 202 is not to initiate a fresh
case on police report but to assits the Magistrate in contemplating proceeding
already instituted upon a complaint before him as held by Hon'ble Apex Court
has held in the case of D. Laxminarayana Vs Narayana Reddy, (1976) 3
SCC 252. Hon'ble Bombay High Court has held in the case of P.K.
Ramkrushanan Vs Nilkant Kamble, 1996 Cr.L.J. 2119 (Bombay) that, the
Magistrate proceeded to issue process without waiting for the report of investi
gation by police as directed by him under S. 202 (1) of the Act is illegality.
Hon'ble High Court quashed that order and directed the Magistrate to wait for
police report and act upon it thereafter.
7) COMPLAINT TO MAGISTRATE (Section 202 to 204 of the Code)
38] Chapter XV of the Code deals with complaints to Magistrates. The
complaint is defined under S. 2 (d) of the Code which means any allegation
made orally or in a writing to a Magistrate for taking action against the person
committed offence. Hon'ble Apex Court in the case of Mohd. Yousuf Vs
Afaq Jahan, AIR 2006 SC 705 has held that there is no particular format of a
complaint. A petition addressed to a Magistrate, containing an allegation of
offence committed and prayer made to be dealt the culprit suitably is a
complaint. S. 2 (d) of the Code also nowhere directs that such complaint is to
be made personally to the Magistrate therefore complaint sent by post is valid
and it can be dealt with by the Magistrate. Hon'ble Division Bench of
Karnataka High Court has held in the case of Zac Poonen Vs Hidden
Treasure Company, 2002 Cr.L.J. 481 that joint complaint filed by two
persons is not maintainable. However one of the complainants can get himself
deleted and the other complainant can proceed with the complaint to get over
the technical defect.
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a) Judicial enquiry
39] The judicial enquiry under section 202 is to be held by the Magistrate
himself[Ashok v Manish 1976 Cr.LJ 876 (Cal.)]. So the Magistrate can make
enquiry himself or by another person or direct police investigation(Tula v
Kishore AIR 1978 Supreme Court 2401). But he cannot direct an Executive
Magistrate to hold the enquiry.[Ananta Charan Mallick v Sayed Goush Ali
1995 Cr.LJ 209 (Ori) ]
b) Amendment Act, 2005
40] False complaints are filed against persons residing at far off places
simply to harass them. In order to see that innocent persons are not harassed
by unscrupulous persons, this clause seeks to amend subsection (1) of section
202 to make it obligatory upon the Magistrate that before summoning the ac
cused residing beyond his jurisdiction he shall enquire into the case himself or
direct investigation to be made by a policeofficer or by such other person as he
thinks fit, for finding out whether or not there was sufficient ground for pro
ceeding against the accused.
c) Nature of inquiry
41] Inquiry under section 202 is a limited one and the standard of Magis
trate's scrutiny of the evidence is not the same as that applied while framing
charges(Rosy v State of Kernala AIR 2000 SC 637
)
d) Offence exclusively triable by a Court of Sessions,
42] When the case is exclusively triable by a Court of Sessions, the pro
viso to section 202(2), the Code enjoins upon the Magistrate to examine the
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complainant and all his witnesses who shall be examined during trial to de
cide whether process should be issued or not [Zubedda Khatoon Vs. Assist
ant Collector of Customs 1991 Cr.LJ 1392 (Karn)(DB)].
e) Dismissal of complaint
43] If on a bare perusal of the complaint or the evidence recorded or of
the report of enquiry or investigation the Magistrate is satisfied that essential
ingredients of the offence alleged are missing or the dispute is only civil in
nature or there are such patent absurdities in evidence produced that it would
be wastage of time to proceed further, the complaint can be dismissed[
Debendra Nath v State of W.B. AIR 1972 SC 1607] .
f) Issue of process
44] While issuing process under section 204, of the Code, the Magistrate
must, in brief, set out the allegations made in the petition of complaint, and
materials brought on record and must state that in his opinion process should
be issued. It is only when the magistrate is satisfied that sufficient grounds
exist to proceed further that he should process. Judicial process should not be
an instrument of oppression or needless harassment(Punjab National Bank v
Surendra Prasad Sinha, AIR 1992 SC 1815).
45] Issuance of process under section 204 is a preliminary step in the
stage of trial contemplated in Chapter XX of the code. Such an order made at
a preliminary stage being an interlocutory order, same cannot be reviewed or
reconsidered by the Magistrate, there being no provision under Code of review
of an order by the same court. Hence, it is impermissible for the Magistrate to
reconsider his decision to issue process in the absence of any specific provision
to recall such order(Poonam Chand Jain v Fazru AIR 2005 SC 38
) .
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g) Consideration at the time of issue of process
46] At the stage of issue of process, it is not for the consideration of the
Magistrate as to whether the offence has been made out and what defences
are open to him after issue of process. It is for the Magistrate to proceed with
the trial and deal in accordance wih the law(Anil Saran v State of Bihar
(1995) 6 SCC 142 )
h) Magistrate to explicitly state reasons
48] A plain reading of Section 209 shows that commitment is of 'the
case' and not of 'the accused. The Committing Court need not take any evid
ence before committing the case, it has only to see whether the case is exclus
ively triable by the Court of Sessions. Although the case is committed and not
'the accused' the Hon'ble Allahabad High Court in Haji Shafi v. State of U.P.
reported in 2001 Cri.L.J. 330 held that presence of accused is must for com
mittal. It was observed that the opening words of Section 209 the Code, are
that "when the accused appears and brought before the Magistrate," in that
case the Magistrate can commit the case, if the offence is triable by the court
of Sessions. Therefore, presence of accused is must for committal. Apart from
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this, the compliance of Section 207 and 208 the Code are to be made before
committal. The compliance could not be made in the absence of the accused.
Thus, the accused can not be committed to the court of Sessions, if they are
not present in the court of Committing Magistrate."
49] If offence is triable exclusively by the Court of Sessions, the Magis
trate has no power to discharge the accused, but he shall have to commit the
case in accordance with the provision of Section 209. Once the accused is
charge sheeted to face trial for an offence exclusively triable by the Court of
Sessions, the Magistrate shall have no other option but to commit the case to
the Court of Sessions for trial. Even if it appears that distinct offences have
been committed in the course of the same transaction. Some triable by the
Magistrate and some exclusively triable by the Court of Sessions, the case in
volving all the offences shall have to be committed to the Court of Sessions for
trial.
50] In a case on a police report or otherwise where some offence tri
able by Magistrate alleged to have been committed by one set of accused and
some other offences exclusively triable by the Court of Sessions alleged to
have been committed by another set of the accused, in the same occurrence or
in the course of some transaction, the Magistrate cannot split the case but
shall have to commit the case as a whole to the Court of Sessions for trial.
Once a Magistrate commits a case, on the basis of charge sheet submitted by
police, to the Court of Sessions, it does not prevent the Magistrate to commit
the case on complainant with regard to the same occurrence or offence and
also no detail inquiry is necessary in such complaint case before passing the
committal order, but the Sessions Judge shall consolidate the two committal
orders and true them as one case.
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51] The section 209 and 323 of the Code of Criminal Procedure mainly
deals with the provision of the committal of the case. The word “Commit”
means to put into the charge. The committal of the case is the procedure by
the authority of the Sessions Court put into the chrge to conduct trial of the
cases exclusively triable by it. As per Section 193 of the Code of Criminal Pro
cedure Code the Sessions Court except otherwise expressly provide by the law
no cognizance of the any offence shall take as the court of original jurisdiction
unless case has been committed to it by the Magistrate.
9) PROCEDURE TO BE FOLLOWED WHEN THERE IS A COMPLAINT CASE
AND POLICE REPORT IN RESPECT OF SAME OFFENCE. (Sec 210)
52] There was no similar provision in the old Code of Criminal Proced
ure, 1898. The new Section 210 has been inserted in the Code of Criminal
Procedure, 1973, so as to ensure that private complaints do not interfere with
the course of justice. To attract the provision it is necessary that when the
complaint case is filed, police investigation is pending and in progress and the
same is not completed. However, where Magistrate has already taken cogniz
ance on Police Report and thereafter complaint is filed, S.210 the Code is not
attracted. Nitin Jairam Gadkari Vs State of Maharashtra 2005(1) Criminal
Court Cases 76 (Bombay)
53] The object of section 210 is not to harass a person twice and also not
to authorize a person to vindicate his honour when the case is being
investigated by the police. Subsection (2) is a cure and subsection (1) is a
preventive measure.
=========================================
Summary prepared and submitted by
[D.W.Modak] [S.S.Oza]
D J 1& Addl. Sessions Judge, Civil Judge (Senior Division)
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