Powers of Magistrate At Pre-Cognizance & Post-Cognizance Stages

In a very significant development, we saw how the Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice Sanjiv Khanna in recent judgment titled Kailash Vijayvargiya vs Rajlakshmi Chaudhuri and others in [Criminal Appeal No. 1581 of 2021] pronounced as recently as on May 4, 2023 explained the distinction between the power of a Magistrate to direct registration of an FIR and investigation at a pre-cognizance stage under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) and the proceedings under Chapter XV (Complaints to Magistrate) after the taking of cognizance. The Court observed that the power under the 156(3) of CrPC is to be exercised on receiving a complaint or a Police report or information from any person other than the Police Officer or upon his own knowledge “before he takes cognizance under Section 190”. In addition, the Court also explained that once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202 of CrPC.

The laudable, landmark judgment is authored by Hon’ble Mr Justice MR Shah for a Bench of the Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice Sanjiv Khanna.

• A three Judge Bench decision of this Court in Ramdev Food Products Private Limited had examined the distinction between powers of the Magistrate to direct registration of an FIR under Section 156(3) and power of the Magistrate to proceed under Section 202 of the Code.
  • It was observed that the power under the former Section is to be exercised, on receiving a complaint or a Police report or information from any person other than the Police officer or upon his own knowledge, before he takes cognizance under Section 190.
  • Once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202, which provides for postponement of the issue of process and inquire into the case himself or direct investigation to be made by a Police officer or by such other person as he thinks fit for the purpose of deciding whether or not there are sufficient grounds for proceedings.
  • The proviso to Section 202 states that no direction for investigation shall be made where a complaint has not been made by a Court, unless the complainant and the witnesses present (if any) are examined on oath under Section 200.
  • When it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. However, in such cases, the Magistrate cannot issue direction for investigation of an offence. Thus, the Magistrate has the power, when a written complaint is made, to issue direction under Section 156(3), but this power is to be exercised before the Magistrate takes cognizance of the offence under Section 190. However, in both cases, whether under Section 156(3) or under Section 202 of the Code, the person accused as the perpetrator, when the proceedings are pending before the Magistrate, remains unrepresented.
  • Under Section 203, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons.
  • If the Magistrate after taking cognizance of the offence, is of the opinion that there are sufficient grounds for proceeding he will issue the process to the accused for appearance as per the procedure and mode specified under Section 204 of the Code.
  • Process to the accused under Section 204 falls under Chapter XVI of the Code and is issued post the cognizance and inquiry/investigation/evidence recorded in a private complaint in terms of Section 202 of the Code.”
• In Gopal Das Sindhi and Others v. State of Assam and Another, AIR 1961 SC 986 to the effect that even when a private complaint is filed, the Magistrate is not bound to take cognizance under Section 190 as the word used therein is ‘may’, which should not be construed as ‘must’ for obvious reasons. The Magistrate may well exercise discretion in sending such complaint under Section 156(3) to the police for investigation. However, when a Magistrate chooses not to proceed under Section 156(3), he cannot simply dismiss the complaint if he finds that resorting to Section 156(3) is not advisable.
• Reference in this regard can also be made to Suresh Chand Jain v. State of M.P. and another, (2001) 2 SCC 628 which distinguishes between the power of the police to investigate under Section 156, the direction of the Magistrate for investigation under Section 156(3) and post-summoning inquiry and investigation after cognizance under Section 190 and Section 202 of the Code. When a Magistrate orders investigation under Section 156(3), he does so before cognizance of the offence. If he takes cognizance, he needs to follow the procedure envisaged in Chapter XV (see Afaq Jahan (supra).
• The decision in Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Others, (2011) 3 SCC 496 is rather succinct. This Court held that when a complaint is presented before a Magistrate, he has two options. One is to pass an order contemplated by Section 156(3). The second one is to direct examination of the complainant on oath and the witness present, and proceed further in the manner provided by Section 202. An order under Section 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section 156(1). However, once the Magistrate has taken cognizance under Section 190 of the Code, he cannot ask for an investigation by the Police. After cognizance has been taken, if the Magistrate wants any investigation, it will be under Section 202, whose purpose is to ascertain whether there is prima facie case against the person accused of the offence and to prevent issue of process in a false or vexatious complaint intended to harass the person named. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.”

 “We do not intend to go into the question of the merits of the allegations, and what procedure the Magistrate should follow as this is an aspect which the Magistrate must first consider and decide judiciously and as per the law. What is impermissible and contrary to law is an adjudication on merits of the allegations and determination of the facts as baseless, without further scrutiny and examination. Therefore, the High Court was correct in remitting the matter to the judicial magistrate for further examination.”

 “We were informed that the Magistrate, on remand, has passed an order under Section 156(3) directing registration of the FIR. He has misread the order and directions given by the High Court. In terms of the judgments of this Court, the Magistrate is required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions under Section 156(3) or whether he should take cognizance and follow the procedure under Section 202. He can also direct a preliminary inquiry by the Police in terms of the law laid down by this Court in Lalita Kumari (supra).”

In sum, we thus see that the Apex Court has so very well explained the differences between the powers of Magistrates at pre-cognizance stages under Section 156(3) of CrPC and post-cognizance stages under Section 202 of CrPC. There is thus no scope for ambiguity of any kind. No denying it!