Procedure to be Adopted by Magistrate For Ordering Investigation in Criminal Cases

Procedure to be Adopted by Magistrate For Ordering Investigation in Criminal Cases

Code of Criminal Procedure, 1973 has been repealed by BNSS, 2023. S.190 of Code, 1973 dealt with how Magistrate can take cognizance. S.190 of Code, 1973 can be compared with S.210 of BNSS, 2023. S.156 (3) of Code, 1973 deals with power of Magistrate to order investigation. One may compare S.156 (3) of Code, 1973 with S.175 (3) and S.175 (4) of BNSS, 2023. 

In an important Judgment pronounced in the year 2013, principles around S.190 of Code, 1973 were explained. That case involved allegations related to S.420 of IPC.

Chapter XIV of the Code, 1973 speaks about conditions requisite for initiation of proceedings. Section 190 of Code, 1973 deals with cognizance of offences by Magistrates. In terms of subsection (1) subject to the provisions of the said Chapter, any Magistrate of first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under Section 190 may order such an investigation in terms of sub-section (1) of that section.

It is clear that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.

When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

In the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the precognizance stage and avail of Section 156(3).

In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code.

It is also settled position that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code.

For more details, one can refer Madhao v. State of Maharashtra [2013] GCtR 6484 (SC).