A

B

MADHU BALA

v.

SURESH KUMAR AND ORS.

JULY 23, 1997

(M.K. MUKHERJEE ANDS. SAGHIR AHMAD, JJ.)

Criminal Procedure Code, 1973-Section 156(3)-Magistrate ordeling

registration of case and investigation upon Appellant's complaint under sec­

tions 498A and 406, !PC-High Coillt quashing the order under section 482,

C Cr.P. C. holding Magistrate can only direct investigation under section

156(3)-Whether the Magistrate can only direct investigation, but not direct

the registration

of case under section 156(3) HELD :

Police bound to register

a case upon Magistrate fonvarding complaint to it for investigation treating

the same as FIR-Regardless

of whether Magistrate has directed registration

D of case or not as

Police can only investigate after it has registered the case.

The appellant filed a complaint against the respondents before the

Magistrate under section 498A and 406, IPC. The Magistrate passed an

order under section

156(3)

Cr.P.C. directing the police to register a case

and investigate. On completion of the investigation, the Magistrate took

E cognizance and charge was framed against the respondents. Thereafter,

the appellant filed another complaint

at another place against the respon­

dents under section

498A

IPC as the concerned Magistrate had refused to

frame the charge under section

498A in the earlier case and framed the

charge only under section

406 IPC as the offence under 498A was com-

F mitted elsewhere. On the second complaint also the other Magistratl!

passed a similar order for registration of a case and investigation and

proceeded to frame the charge.

G

While the two cases were being tried, the respondents moved the

High Court for quashing the proceedings on the ground that the orders

passed

by the two Magistrates directing the registration of cases

unde1~

section 156(3) Cr.P.C. were wrong and illegal. The High Court quashed th1!

orders of the two Magistrates. Hence this appeal.

HELD : 1.1. When a written complaint disclosing a cognizable of··

H fence is made before a Magistrate, he may take cognizance upon the samt!

32

MAD HU BALA v. SURESH KUMAR 33

under section 190(1) (a) of the Criminal Procedure Code and proceed with A

the same in accordance with the provisions of Chapter XV. The other

->

option available to the Magistrate in such a case is to send the complaint

to the appropriate Police Station under section 156(3) for investigation.

Once such a direction is given under sub-section (3) of section 156 the

• police is required to investigate into that complaint under sub-section (1)

B

thereof and on completion of investigation to submit a 'Police Report' in

accordance with section 173(2)

on which a Magistrate may take cognizance

nnder section

190(l)(b) -but not under section 190(1)(a). Since a com·

-~ plaint filed before a Magistrate cannot be a 'Police Report' in view of the

definition of 'complaint' and since the investigation of a 'cognizable case'

c

by the police nnder section 156(1) has to culminate in 'police report' the

'complaint'

• as soon as an order under section 156(3) is passed thereon •

transforms itself into a report given in writing within the meaning of

section

154 of code, which is known as First Information

Rep~rt (F.l.R).

As under section 156(1), the police can only investigat~ a cognizable 'case',

it has to formally register a case

on that report. [37-A-E] D

-I 1.2. Whenever a Magistrate direct~ an investigation on a 'complaint'

the police has

to register a cognizable case on that complaint treating the

same as FIR

and comply with the requirements of the

Punjab Police Rules,

1934. It, therefore, passes comprehension as to how the direction of a

E

Magistrate asking the police to 'register a case' makes an order of inves-

ligation under section 156(3) legally unsustainable. Indeed,

even if a

Magistrate does not pass a direction to register a case, still in

view of

provisions of section 156(1) of the Criminal

Procedure Code which em-

powers the police to investigate into a cognizable 'case' and the Rules

F

framed under the Indian

Police Act, 1861 it (the police) is duty bound to

· formally register a case and then investigate into the same. The provisions

of the Code, therefore, does not in any

way stand in the way of a Magistrate

to direct the police to register a case

at the police station and then

investigate into the same. When an order for investigation under section

G

156(3) of the code is to be made the proper direction to the police would

~ be to register a case at the police station treating the complaint as the First

Information Report and investigate into the same.

[38-A-D]

Gopal Das

Sindhi & Ors. v. State of Assam, AIR (1961) SC 986 and

Tula Ram and Ors. v. Kishore Singh, AIR 1977 SC 2401, distinguished. H

34 SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

Nos.

658-659 of 1997.

From the Judgment and

Order dated 18.7.96 of the Punjab &

Haryana High Court in Crl.M.Nos. 15402-M and 15613-M of 1995

B Dr. Aparna Bhardwaj, Rajesh Tyagi for Praveen Jain for the appel-

lant.

Nidhesh Gupta for

Ms. Minakshi Viz, for the Respondents.

The Judgment of the Court

was delivered by

c

M.K.

MUKHERJEE, J.

Special leave granted. Heard the learned counsel for the parties.

On February 18, 1988, the appellant filed a complaint against the

D three respondents, who are her husband, father-in-law and mother-in-law

respectively, before the Chief Judicial Magistrate, Kurukshetra alleging

commission of offences under Section 498A and 406 of the Indian penal

Code (1.P.C. for short] by them. On that complaint, the learned Magistrate

passed an order under Section 156(3) of the Code of Criminal Procedure

E

F

('Code' for short) directing the police to register a case and investigate into

the same. Pursuant to the said direction, Thaneswar Police Station

registered a case being FIR No. 61 of 1988 and on completion of investiga­

tion submitted charge sheet (police report) against the three respondents

under Sections

498A and

406 I.P.C. The learned Magistrate took cog­

nizance upon the said charge-sheet and thereafter framed charge against

the three respondents under Section 406 l.P.C. only as, according to the

learned Magistrate, the offence under Section 498A l.P .C. was allegedly

committed in the district of Karna!. Against the framing of the charge the

respondents moved the Sessions Judge

in revision, but without success.

Thereafter

on January 29, 1994 the appellant filed another complaint

G against the respondents under

Section 498A IPC before the Chief Judicial

Magistrate, Kamal and on this complaint the learned Magistrate passed a

similar order under Section 156(3) of the Code for registration of a case

and investigation. In compliance with the order, FIR

No. 111 of 1994 was

registered by the Karna!

Police Station and on completion of investigation

charge-sheet

was submitted against the three respondents under

Section

H 498A I.P.C. On that charge sheet the learned Magistrate took cognizance

--

MAD HU BALA v. SURESH KUMAR [M.K. MUKHERJEE, J.] 35

of the above offence and later on framed charge against them in accord-A ·

ance with Section 240 of the Code.

While the above two cases were being tried, the respondents filed

petitions under Section 482 of the Code before the Punjab & Haryana High

Court for quashing of their proceedings on the ground that the orders

passed

by the Chief Judicial Magistrates of Kurukshetra and Karna! direct- B

ing registration of cases in purported exercise of their power under

Section

156(3) of the Code were patently wrong and consequently all actions taken

pursuant thereto were illegal. The contention

so raised found favour with

the High Court; and

by the impugned judgment it quashed the orders of

the Chief Judicial Magistrates of Kurukshetra and Karna! dated February

C

18, 1988 and January 29, 1994 respectively, pursuant to which cases were

registered

by the police on the complaints of the appellant, and the entire

proceedings of the

two cases arising therefrom. According to the High

Court, under

Section 156(3) of the Code a magistrate can only direct

investigation

by the police but he has no power to direct 'registration of a D

case'. In drawing the above conclusion, it relied upon the judgments of this

Court in

Gopal Das Sindhi & Ors. v. State of Assam, AIR (1961)

SC 986

and Tula Ram & Ors. v. Kishore Singh, AIR (1977) SC 2401, and some

judgments of the Punjab and Haryana High Court which, according to it,

followed the above

two decisions of this Court.

E

In our considered view, the impugned judgment is wholly unsus­

tainable

as it has not only failed to consider the basic provisions of the

Code but also failed to notice that the judgments

in Gopal Das (supra) and

Tula Ram (supra) have no relevance whatsoever to the interpretation or

purport of

Section 156(3) of the Code. The earlier judgments of the Punjab F

& Haryana High Court, which have been followed in the instant case also

suffer from the above

two infirmities.

Coming first to the relevant provisions of the Code,

Section 2( d)

defines 'complaint' to mean

any allegation made orally

or in writing to a G

Magistrate, with a view to his taking action under the Code, that some

person, whether known or unknown has committed an offence, but does

not include a police report. Under Section 2(c) 'cognizable offence' means

·an offence for which, and 'cognizable case' means a case in which a police

officer may in accordance with the First Schedule (of the Code) or under

·any other law for the time being in force, arrest without warrant. Under H

36 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A Section 2(r) 'police report' means a report forwarded by a police officer

to a Magistrate under sub-Section (2) of Section 173 of the Code. Chapter ·

XII of the Code comprising Sections 154 to 176 relates to information to

the police and their powers to investigate. Section 154 provides, inter alia,

that the officer incharge of a police station shall reduce into writing every

B

c

D

E

information relating to the commission of a cognizable offence given to him

orally and every such information

if given in writing shall be signed by the

person giving it and the substance thereof shall be entered in a book to be

kept

by such officer in such form as the

State Government may prescribe

in this behalf. Section 156 of the Code with which we are primarily

concerned in these appeals reads

as under :

"(1) Any officer in charge of a police station may, without the order

of a Magistrate, investigate any cognizable case which a Court

having jurisdiction over the local area within the limits of such

station would have power to inquire into or try under the provisions

of Chapter XIII.

(2) No proceeding of a police officer in

any such case shall

at any stage be called in question on the ground that the case

was one which such officer was not empowered under this

section to investigate.

(3) Any Magistrate empowered under

Section 190 may order

such an investigation

as above

mentioned".

On completion of investigation undertaken under Section 156(1) the

officer

in charge of the

Police Station is required under Section 173(2) to

p forward to a Magistrate empowered to take cognizance of the offence on

a police report, a report

in the form prescribed by the

State Government

containing all the particulars mentioned therein. Chapter XIV of the Code

lays down the conditions requisite for initiation of proceedings by the

Magistrate.

Under sub-section (1) of Section 190 appearing in that Chapter

any Magistrate of the first class and any Magistrate of the second class

G specially empowered may take cognizance of any offence (a) upon receiv­

ing a 'complaint' of facts which constitutes such offence; (b) upon a 'police

. report' of such facts; or (c) upon information received from any person

other than a police officer, or upon his own knowledge that such offence

has been committed. Chapter XV prescribes the procedure the Magistrate

H has to initially follow if it takes cognizance of an offence on a complaint

..

..

-

MADHU BAI.A v. SURESH KUMAR [M.K. MUKHERJEE, J.]

· under Section 190(1)(a).

37

A

From a combined reading of the above provisions it is abundantly

clear that when a written complaint disclosing a cognizable offence

is made

before a Magistrate, he

may take cognizance upon the same under

Section

190(1)(a) of the Code and proceed with the same in accordance with the B

provisions of Chapter XV. The other option available to the Magistrate in

such a case

is to send the complaint to the appropriate Police

Station under

Section 156(3) for investigation. Once such a direction is given under sub­

section (3) of Section 156 the police is required to investigate into that

complaint under sub-section (1) thereof and on completion of investigation

to submit a 'police report' in accordance with Section 173(2) on which a C

Magistrate may take cognizance under Section 190(1)(b) -but not under

190(1)(a). Since a complaint filed before a Magistrate cannot be a 'police

report' in

view of the definition of 'complaint' referred to earlier and since

the investigation of a 'cognizable case'

by the police under

Section 156(1)

has to culminate

in a 'police report' the 'complaint' -as soon as an

order D

under Section 156(3) is passed thereon -transforms itself to a report given

in writing within the meaning of Section 154 of the Code, which is known

as the First Information Report (F.1.R.). As under Section 156(1), the

police can only investigate a cognizable 'case', it has to formally register a

case on that report.

The mode and manner of registration of such cases are laid down in

E

the Rules framed by the different

State Governments under the Indian

Police Act,

1861. As in the instant case we are concerned with Punjab

Police Rules,

1934 (which are applicable to Punjab, Haryana, Hirnachal

Pradesh and Delhi) framed under the said Act

we may now refer to the F

relevant provisions of those Rules. Chapter XXIV of the said Rules lays

down the procedure an officer-in-charge of a Police

Station has to follow

on receipt of information of commission of crime. Under Rule 24.1 appear-

ing

in the Chapter every information covered by

Section 154 of the Code

must be entered in the First Information Report Register and substance

G

thereof in daily diary. Rule 24.5 says that the First Information Report

Register shall be a printed book

in Form 24.5(1) consisting of

200 pages

and shall be completely filled before a new one

is commenced. If further

requires

that the cases shall bear an annual serial number in each police

station for each calendar year. The other requirements of the said Rules

need not be detailed as they have no relevance to the point at issue. H

A

B

38 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

From the foregoing discussion it is evident that whenever a

Magistrates directs an investigation on a 'complaint' the police has to

register a cognizable case on that complaint treating the same

as the FIR

and comply with the requirements of the above Rules. It, therefore, passes

our comprehension

as to how the direction of a Magistrate asking the

police to 'register a case' makes an order of investigation under Section

156(3) legally unsustainable. Indeed, even

if a Magistrate does not pass a

direction to register a case, still

in view of the provisions of Section 156(1)

of the Code which empowers the

Police to investigate into a cognizable

'case' and the Rules framed under the Indian Police Act, 1861 it (the

police)

is duty bound to formally register a case and then investigate into

C the same. The provisions of the Code, therefore, does not in any way stand

in the way of a Magistrate to direct the police to register a case at the

police station and then investigate into the same. In our opinion when an

order for investigation under

Section 156(3) of the Code is to be made the

proper direction to the Polite would be 'to register a case at the police

D station treating the complaint as the First information Report and inves­

tigate into the same.

Adverting

now to the two cases of this Court on which reliance has

been placed

by the High Court we find that in the case of Gopal Das

(supra) the facts were that on receipt of a complaint of commission of

E offences under

Sections 147, 323, 342 and 448 of the Indian Penal Code,

the Additional District Magistrate made the following endorsement : "To

Shri C. Thomas, Magistrate 1st Class, for disposal." ON receiving the

complaint Mr. Thomas directed the Officer In-charge of the Gauhati

Police Station to register a case, investigate and if warranted submit a

p charge sheet. After investigation police submitted a charge sheet under

Section

448 of the Indian

Penal Code and on receipt thereof the Additional

District Magistrate forwarded

it to

Shri R. Goswami, Magistrate for dis­

posal. Shri Goswami framed a charge under Section 448 of the Indian

Penal Code against the accused therein and aggrieved thereby the accused

first approached the revisional Court and, having failed there, the High

G Court under Article 227 of the Constitution of India.

Since the petition

before the High Court

was also dismissed they moved this Court. The

contention that

was raised before this Court was that Mr. Thomas acted

without jurisdiction

in directing the police to register a case to investigate

it and thereafter to submit a charge sheet, if warranted. The steps of

H reasoning for the above contention was that since the Additional District

..

·"

J,:ADHU BALA v. SURESH KUMAR [M.K MUKHERJEE, J.] 39

Magistrate had transferred the case to Mr. Thomas for disposal under A , ·

Section 192 of the Code it must be said that the former had already taken

cognizance thereupon under Section 190(1)(a) of the Code. Therefore, he

(Mr. Thomas) could not pass any order under Section 156(3) of the Code

as it related to a pre-cognizance stage; and he could deal with the same

only

in accordance with Chapter XVI. In negativing this contention this

Court

held that the order of the Additional District Magistrate transferring B

the case to Mr. Thomas on the face of it did not show that the former had

taken cognizance of

any offence in the complaint. According to this Court

the order

was by way of an administrative

action, presumably because Mr.

Thomas

was the Magistrate before whom ordinarily complaints were to be filed. The case of Gopal Dass (supra) has, therefore, no manner of applica-C

tion in the facts of the instant case. It is interesting to note that the order

that

was passed under

Section 156(3) therein also contained a direction to

the Police to register a case.

In

Tula Ram's case (supra) the

only question that was raised before D

this Court was whether or not a Magistrate after receiving a complaint and

after directing investigation under Section 156(3) of the code and on

receipt of the 'Police report' from the police can issue notice to the

complainant, record

his statement and the statements of other witnesses

and then issue process under

Section 204 of the Code. From the question

itself it is apparent that the said case related to a stage after police report E

under Section 173(2) of the Code was submitted pursuant to an order

under Section 156(3) of the Code and not to the nature of the order that

can be passed thereunder [Section 156(3)]. The cases of the Punjab &

Haryana High Court referred to by the learned Judge in the impugned

judgment need not be discussed

in details for they

only lay down the F

preposition that under Section 156(3) a Magistrate can only direct inves­

tigation but cannot direct registration of a case for no such power

is given

to

him under that section. We repeat and reiterate that such a power

inheres in

Section 156(3), for investigation directed thereunder can only be

in the complaint filed before the Magistrate on which a case has to be

formally registered in the Police Station treating the same as the F.I.R. If G

the reasoning of the Punjab and Haryana High Court is taken to its logical

conclusion

it

would mean that if a Magistrate issues a direction to submit

a report under Section 173(2) of the Code after completion of investigation

while passing an order under Section 156(3) it would be equally bad for

the said Section only 'directs investigation' and nothing more. Needless to H

40 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A say, such a conclusion would be fallacious, for while with the registration

of a case by the police on the complaint, the investigation directed under

Section

156(3) commences, with the submission of the 'police report' under

Section

173(2) it culminates.

On the conclusions as above we set aside the impugned judgment

B and orders of the High Court and direct the concerned Magistrates to

proceed with the cases in accordance of

law. The appeals are accordingly

allowed.

S.S. Appeals allowed.

•

•

....