Case Note & Summary
The petitioner, Subhash Kanade, was the original complainant who filed a complaint before the Metropolitan Magistrate, 27th Court at Mulund, alleging the commission of cognizable offences by certain persons named as accused. The petitioner sought an order under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC) directing the police to investigate. The Magistrate, after reading the complaint and perusing the documents, passed an order stating that it appeared necessary to have a proper investigation under Section 202 CrPC because the complaint was filed on 13th September 2011 but not immediately, raising an apprehension of misuse of the provision. Consequently, the Magistrate rejected the prayer under Section 156(3) CrPC and adjourned the matter for verification. Aggrieved, the petitioner approached the Sessions Court by filing a revision application, arguing that the Magistrate should have ordered investigation under Section 156(3) CrPC instead of proceeding under Section 200 CrPC. The Sessions Judge dismissed the revision. The petitioner then filed the present writ petition before the Bombay High Court. The High Court examined the legal issue of whether a Magistrate is bound to order investigation under Section 156(3) CrPC upon receiving a complaint. The Court held that the Magistrate has discretion: upon receiving a complaint, the Magistrate may either direct investigation under Section 156(3) CrPC (pre-cognizance stage) or proceed under Chapter XV of the Code (Sections 200 to 204) which includes taking cognizance and examining the complainant. The Court noted that the Magistrate's order clearly indicated that he was proceeding under Section 200 CrPC and had referred the matter for investigation under Section 202 CrPC, which is permissible. The Court found no illegality in the Magistrate's order and dismissed the petition, upholding the Sessions Court's decision.
Headnote
A) Criminal Procedure - Magistrate's Discretion - Section 156(3) CrPC - Power to Order Investigation - Upon receiving a complaint alleging cognizable offences, a Magistrate is not bound to order investigation under Section 156(3) CrPC; the Magistrate has the discretion to either direct investigation under Section 156(3) or proceed under Chapter XV (Sections 200 to 204) of the Code. The Magistrate may also refer the complaint for investigation under Section 202 CrPC before taking cognizance. The order of the Magistrate refusing to invoke Section 156(3) and instead proceeding under Section 200 CrPC is not illegal. (Paras 5-7)
Issue of Consideration
Whether a Magistrate is bound to order investigation under Section 156(3) of the Code of Criminal Procedure, 1973 upon receiving a complaint alleging cognizable offences, or whether the Magistrate has discretion to proceed under Chapter XV (Sections 200 to 204) of the Code.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the Magistrate and the Sessions Court. The Court held that the Magistrate was not bound to order investigation under Section 156(3) CrPC and had discretion to proceed under Chapter XV of the Code.
Law Points
- Magistrate's discretion under Section 156(3) CrPC
- distinction between pre-cognizance and post-cognizance stages
- power to refer complaint for investigation under Section 202 CrPC
