The Power of The Magistrate Under Section 156 (3) of Cr.P.

C
The information under section 154 of Cr.P.C is generally known as F.I.R. It is pertinent to see
that the word '' first'' is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as
FIRST INFORMATION REPORT. Nevertheless a person,who is a grievance that police officer
is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of
Police (SP), with written application, under sub-section 3 of section 154 of Cr.P.C. In case of SP
also does not still register FIR, or despite FIR is registered, no proper investigation is done, in
such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of
Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate
under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it is discussed with
relevant case law as to the powers of Magistrate under section of 156 (3) of Cr.P.C.
Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in
section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an
implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal
offence and /or to direct the officer in charge of the concerned police station to hold a proper
investigation and take all such necessary steps that may be necessary for ensuring a proper
investigation including monitoring the same or not.
That too, an aggrieved person has right to claim that the offence he alleges be investigated
properly. However, The Hon'ble Supreme Court held in CBI & another vs. Rajesh Gandhi and
another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a
particular agency.
The Classification Of Magistrates:
Before discussing the powers of Magistrate under section 156 (3) of Cr.P.C, it is necessary to
understand the categories of Magistrates in our country. The classification of Magistrates is given
in the Code of Criminal Procedure,1973. It stipulates that in each sessions district, there shall be
Executive Magistrates
Judicial Magistrate of Second Class
Judicial Magistrate of First Class; and
The Chief Judicial Magistrate
Inasmuch as section 156 (3) of Cr.P.C says that '' Any Magistrate empowered under section 190
may order such an investigation as above mentioned''., we must understand section 190 of
Cr.P.C.
Let us see the relevant case law in order to know the power of Magistrate under section 156 (3)
of Criminal Procedure Code,1973.
- It has been held by The Hon'ble Apex Court in CBI & another vs. Rajesh Gandhi and another
1997 Cr.L.J 63 (vide para 8) that ''no one can insist that an offence be investigated by a particular

agency''. This view was agreed in Sakiri Vasu vs State Of U.P. And Others.
- In Sakiri Vasu vs State Of U.P. And Others, it was further held that if a person has a grievance
that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach
the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if
that does not yield any satisfactory result in the sense that either the FIR is still not registered, or
that even after registering it no proper investigation is held, it is open to the aggrieved person to
file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such
an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the
FIR to be registered and also can direct a proper investigation to be made, in a case where,
according to the aggrieved person, no proper investigation was made. The Magistrate can also
under the same provision monitor the investigation to ensure a proper investigation.
- Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:
The clear position therefore is 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.
For the purpose of enabling the police to start investigation it is open to the Magistrate to direct
the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR
involves only the process of entering the substance of the information relating to the commission
of the cognizable offence in a book kept by the officer in charge of the police station as indicated
in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing
investigating under Section 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 complaint because that police officer could take further steps contemplated in
Chapter XII of the Code only thereafter..
- The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT[1] (vide para
17).
It was also observed in Sakiri Vasu vs State Of U.P. And Others that even if an FIR has been
registered and even if the police has made the investigation, or is actually making the
investigation, which the aggrieved person feels is not proper, such a person can approach the
Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper
investigation and take other suitable steps and pass such order orders as he thinks necessary for
ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3)
Cr.P.C.
- Section 156 (3) states:
Any Magistrate empowered under Section 190 may order such an investigation as above
mentioned.
The words `as above mentioned obviously refer to Section 156 (1), which contemplates
investigation by the officer in charge of the Police Station.

- Section 156(3) provides for a check by the Magistrate on the police performing its duties under
Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of
investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police
to do the investigation properly, and can monitor the same.
- The power in the Magistrate to order further investigation under Section 156(3) is an
independent power, and does not affect the power of the investigating officer to further
investigate the case even after submission of his report vide Section 173(8). Hence the
Magistrate can order re-opening of the investigation even after the police submits the final
report, vide State of Bihar vs. A.C. Saldanna.
- - It was further held that ''Section 156(3) Cr.P.C. is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it includes the power to
order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied
that a proper investigation has not been done, or is not being done by the police. Section 156(3)
Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental
powers as are necessary for ensuring a proper investigation''.- It was further held that '' It is wellsettled that when a power is given to an authority to do something it includes such incidental or
implied powers which would ensure the proper doing of that thing. In other words, when any
power is expressly granted by the statute, there is impliedly included in the grant, even without
special mention, every power and every control the denial of which would render the grant itself
ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all
such acts or employ such means as are essentially necessary to its execution''.
- It was further held that '' The reason for the rule (doctrine of implied power) is quite apparent.
Many matters of minor details are omitted from legislation. As Crawford observes in his
Statutory Construction (3rd edn. page 267):If these details could not be inserted by implication, the drafting of legislation would be an
indeterminable process and the legislative intent would likely be defeated by a most insignificant
omission . In ascertaining a necessary implication, the Court simply determines the legislative
will and makes it effective. What is necessarily implied is as much part of the statute as if it were
specifically written therein''.
- In Savitri vs. Govind Singh Rawat[3] the Hon'ble Supreme Court held that the power conferred
on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to
grant interim maintenance during the pendency of the proceeding, otherwise she may starve
during this period.
- The Hon'ble Supreme Court has affirmed the doctrine of implied powers are Union of India vs.
Paras Laminates AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and
Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer & Vice
Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996 (11) SCC 23, J.K.
Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC 3527, State of Karnataka vs.
Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p. 432); Savitri vs. Govind

Singh Rawat, and ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, etc. On
observing the above rulings, in Sakiri Vasu vs State Of U.P. And Others, the Hon'ble Supreme
Court held that although Section 156(3) is very briefly worded, there is an implied power in the
Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to
direct the officer in charge of the concerned police station to hold a proper investigation and take
all such necessary steps that may be necessary for ensuring a proper investigation including
monitoring the same. Even though these powers have not been expressly mentioned in Section
156(3) Cr.P.C. And it was held that they are implied in the above provision.
-In Sakiri Vasu vs State Of U.P. And Others, it was further held that when someone has a
grievance that his FIR has not been registered at the police station and/or a proper investigation
is not being done by the police, he rushes to the High Court to file a writ petition or a petition
under Section 482 Cr.P.C. And further held that the High Court should not encourage this
practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his
alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned
police officers, and if that is of no avail, by approaching the concerned Magistrate under Section
156(3).
- it was further that ''If a person has a grievance that his FIR has not been registered by the police
station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C.
or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent
of Police or the officer referred to in Section 36 his grievance still persists, then he can approach
a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ
petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a
criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482
petitions be entertained when there are so many alternative remedies?''
- And also held that '' the Magistrate has very wide powers to direct registration of an FIR and to
ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that
the investigation is done properly (though he cannot investigate himself). The High Court should
discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply
because a person has a grievance that his FIR has not been registered by the police, or after being
registered, proper investigation has not been done by the police. For this grievance, the remedy
lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail,
under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under
Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. It is
true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled
that if there is an alternative remedy the High Court should not ordinarily interfere.''
- In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has
been observed by The Hon'ble Apex Court that a Magistrate cannot interfere with the
investigation by the police. However, in our opinion, the ratio of this decision would only apply
when a proper investigation is being done by the police. If the Magistrate on an application under
Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being
done by the officer-in-charge of the concerned police station, he can certainly direct the officer in
charge of the police station to make a proper investigation and can further monitor the same

(though he should not himself investigate).

- It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a
proper investigation has not been made by the officer-in-charge of the concerned police station,
such aggrieved person can approach the Superintendent of Police or other police officer superior
in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes,
do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para
11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent
to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence
registered at a police station vide State of Bihar vs. A.C. Saldanna .
- In CBI vs. State of Rajasthan and another 2001 (3) SCC 333, the Hon'ble Supreme Court held
that '' the Magistrate cannot order investigation by the CBI''.
- In Sakiri Vasu vs State Of U.P. And Others , it was held that there was an investigation by the
G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that
it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the
prayer for a CBI inquiry.
- In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram
Arya and another 2002 (5) SCC 521 (vide para 6) , the Hon'ble Apex Court observed that
although the High Court has power to order a CBI inquiry, that power should only be exercised if
the High Court after considering the material on record comes to a conclusion that such material
discloses prima facie a case calling for investigation by the CBI or by any other similar agency.
A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some
allegation.
- -Nareshbhai Manibhai Patel vs State Of Gujarat And Ors[4] ,In this ruling, it was held that
under Section 156(3) of Cr.P.C., a Magistrate cannot direct C.B.I. to conduct an enquiry. A Court
white exercising revisional powers put itself into the position of the Court passing the impugned
order and then examines the question and revises the order if need be. Therefore, while
exercising revisional powers this Court would not be competent to order an investigation through
C.B.I. or C.I.D., as is prayed for by the revisioner.
K. Vijaya Laxmi vs K. Laxminarayana And Ors[5]. The Hon'ble High Court of Andhra pradesh
held as '' It is, however, unfortunate to note that the learned Magistrate proceeded under Section
156(3), Cr.P.C. in this case and then on filing of the charge-sheet by the police, took cognizance
of the offence on the basis of such police report, ignoring the provisions under Section 198,
Cr.P.C. Section 198 of Cr.P.C. contemplates that if the offence is under Section 494, I.P.C., then
the Magistrate is prohibited from taking cognizance of such offence, except on a complaint made
by some person aggrieved by the offence. In this case, the person aggrieved by the offence
committed by accused 1 and 2 is the wife of the accused No. 1 i.e., the de facto complainant. The
offence could have been taken cognizance on the complaint filed by the de facto complainant or
on the complaint filed by some one on her behalf as contemplated under Section 198(1)(c) of
Cr.P.C. In the light of this provision, the learned Magistrate ought not to have taken cognizance
of the offence on the basis of the charge-sheet filed by the police. This may have grave

consequences. I had half a mind to set the clock back and to quash the cognizance taken by the
learned Magistrate and direct him to proceed from the stage of the complaint under Section 200,
Cr.P.C. and other relevant provisions under Cr.P.C. But I am not inclined to do so considering the
fact that the complaint was lodged as far back as in the year 1989. At this stage rolling back the
proceedings would amount to causing great hardship to the accused, who would be required to
go through the ordeal of almost a fresh trial after almost eleven years''.
-The Hon'ble High Court of Madhya Pradesh observed that the judgment of the Apex Court in
the case of Suresh Chand Jain v. State of Madhya Pradesh and Anr., I (2001) CCR 54 (SC) : 2001
(1) Crimes 171 (SC), in which it is held that in a private complaint the Magistrate has power to
direct police for investigation under Section 156(3), Cr.P.C. before taking cognizance of the
offence. The Magistrate can also order police to register the First Information Report and
conduct investigation and in such case the Magistrate is not bound to examine the complainant.
-In Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu, wherein it is held as follows :"As noted supra, on receipt of a complaint under S. 200, Cr.P.C., the Magistrate shall record the
sworn statements of the complainant and the witnesses, if any, present and (i) may take
cognizance of the offence under S. 190(1)(a) and issue process, or (ii) postpone the issue of
process under S. 202 and (a) inquire into the case himself or (b) direct investigation by police.
Thus, the discretion under S. 202, Cr.P.C., lies with the Magistrate either to inquire into the case
himself or direct investigation by the police. It is also open to the Magistrate to issue or postpone
issue of process. While exercising his discretion, the Magistrate scrutinises the complaint, the
sworn statement of the complainant and also of those recorded from the witnesses, if any, and
then arrives at a decision as to whether to take cognizance of the offence under S. 190(1)(a) or to
postpone issue of process under S. 202, Cr.P.C. or to refer the case to the police under S. 156(3),
Cr.P.C. for investigation. It is only in case of deciding that the material is not sufficient to take
cognizance of the offence he may refer the matter to the police under S. 156(3) for purposes of
investigation. Therefore, when once the Magistrate after scrutinising the complaint, the sworn
statements and other material comes to the conclusion that he can take cognizance of the offence,
there is no need to have a resort to S. 156(3)."
-The Hon'ble Supreme Court held in D. Lakshaminarayana v. V. Narayana, after comparing the
relevant provisions of the 1898 Code and the 1973 Code, it was held as follows (at page 1365; of
Cri LJ) :"It is well settled that 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. This is clear from the
use of the words 'may take cognizance' which in the context in which they occur cannot be
equated with 'must take cognizance'. The word 'may' gives a discretion to the Magistrate 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 S. 156(3) will
be conclusive to justice and save the valuable time to 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, himself.
This raises the incidental question : What is meant by 'taking cognizance of an offence' by the

Magistrate within the contemplation of Section 190 ? This expression has not been defined in the
Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the
caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said
to be instituted in a Court only when the Court takes cognizance of the offence alleged therein.
The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section
190(1). Whether the magistrate has or has not taken cognizance of the offence will depend on the
circumstances of the particular case including the mode in which the case is sought to be
instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly
speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of
proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973 he
is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If,
instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken
action of some other kind, such as issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under section 156(3), he cannot be said to have taken
cognizance of any offence.
The position under the Code of 1898 with regard to the power of a Magistrate having jurisdiction
to send a complaint disclosing a cognizance offence - whether or not triable exclusively by the
Court of Session - to the Police for investigation under section 156(3), remains unchanged under
the Code of 1973. The distinction between a police investigation ordered under section 156(3)
and the one directed under section 202, has also been maintained under the new Code; but a rider
has been clamped by the 1st Proviso to Section 202(1) that if it appears to the Magistrate that an
offence triable exclusively by the Court of Session has been committed, he shall not make any
direction for investigation.
Section 156(3) occurs in Chapter XII, under the caption : 'Information to the Police and their
powers to investigation'; while Section 202 is in Chapter XV which bears the heading 'Of
complaints to Magistrate'. The power to order police investigation under S. 156(3) is different
from the power to direct investigation conferred by Section 202(1). The two operate in distinct
spheres at different stages. The first is exercisable at the precognizance stage, the second at the
post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a
complaint regarding the commission of a cognizable offence, the power under Section 156(3)
can be invoked by the Magistrate before he takes cognizance of the offence under S. 190(1)(a).
But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV,
he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It
may be noted further that an order made under sub-section (3) of Section 156, is in the nature of
a peremptory reminder or intimation to the police to exercise their plenary powers of
investigation under Section 156(1). Such an investigation embraces the entire continuous process
which begins with the collection of evidence under Section 156 and ends with a report or
chargesheet under section 173. On the other hand, Section 202 comes in at a stage when some
evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is
deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a
situation, the Magistrate is empowered under section 202 to direct, within the limits
circumscribed by that section, an investigation 'for the purpose of deciding whether or not there
is sufficient ground for proceeding.' Thus the object of an investigation under section 202 is not
to initiate a fresh case on police report but to assist the Magistrate in completing proceedings

already instituted upon a complaint before him."

Other Relevant case law as to Section 156(3) in The Code Of Criminal Procedure, 1973
1. Smt. Masuman W/O Sri Faiz Mohd. vs State Of Uttar Pradesh And Ors. on 25 September,
2006 (Allahabad High Court)
2. Pawan Sharma And Anr. vs Smt. Kamalabai And Anr.[8] on 10 April, 2007 (Madhya Pradesh
High Court)
3. Harshadbhai C. Patel vs Indravadan P. Shah And Anr[9]. on 25 November, 1985 (Gujarat High
Court)
4. Rajaram Venkatesh and Ors. vs The State of Andhra Pradesh[10] and Ors... on 21 September,
1992 (Andhra High Court)
5. Chandan Son Of Aanganu vs State Of Uttar Pradesh And Manoj ... on 17 October, 2006
(Allahabad High Court)
6. Mr. Jitendra Chandrakant Mehta vs Shamrock Impex Pvt. Ltd.[11] ... on 3 May, 2006
(Mumbai High Court)
7. Annie Jyothis vs State Of Kerala on 23 May, 2008 (Kerala High Court)
8.Kamlesh Pathak And Ors. vs State Of Madhya Pradesh And Anr[12].
9. T.Gopalakrishna Pillai, Sree ... vs The District Superintendent Of ... on 11 June, 2008
10.Annamma Alex, Aged 45 Years vs The Ci Of Police, Piravom on 16 July, 2008
11.A.J. Joseph vs State Of Kerala on 23 May, 2008
12. State Of Kerala ... vs Mariyu, W/O.Muhammed Fazil ... on 4 September, 2008
13. K.Venugopalan Nair vs State of Kerala And Ors on 19 August, 200
I hope that this article is useful to the judicial officers, lawyers, law students and others who seek
information as to this matter.
-x# 2007 (10) SC 585
# AIR 1980 SC 326 (para 19)
# AIR 1986 SC 984
# (2003) 1 GLR 456
# 2000 (2) ALD Cri 184
# 1991 Cri LJ 1419
# It was observed in '' Rajaram Venkatesh And Ors. vs The State Of Andhra Pradesh And Ors''
(1993 (1) ALT Cri 106, 1993 78 CompCas 28 AP)
# 2007 CriLJ 3539
# (1986) 1 GLR 643
# 1993 (1) ALT Cri 106
# 2006 CriLJ 3131
# II (2005) DMC 348

Complaint Case : Sections 200 to 204 of Cr PC

What is criminal complaint?

Section 2 (d) of the Code of Criminal Procedure (in short Cr PC) defines the term complaint as
any allegation made orally or in writing to a Magistrate, with a view to his taking action under
this Code, that some person, whether known or unknown, has committed an offence, but does not
include a police report.
Explanation: - A report made by a police officer in a case which discloses, after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the complainant.
Every day experience of the Courts shows that many complaints are ill founded, and it is
necessary therefore that they should at the very start be carefully considered and those which are
not on their face convincing should be subjected to further scrutiny so that only in substantial
cases should the Court summon the accused person. An order summoning a person to appear in a
court of law to answer a criminal charge entails serious consequences. Therefore, Sections 200 to
203, Cr PC have been enacted for weeding out false, frivolous and vexatious complaints aimed at
harassing the accused person. However, these sections are exclusively applicable in cases where
the cognizance is taken on a complaint under Section 190 (1)(a), Cr PC. Such special procedure
is not needed in cases where cognizance has been taken on a police report under Section 190 (1)
(b) of Cr PC.
On receipt of a complaint a Magistrate has several courses open to him. He may take cognizance
of the offence and proceed to record the statements of the complainant and the witnesses present
under Section 200, Cr PC. Thereafter if in his opinion there is no sufficient ground for
proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there is
sufficient ground for proceeding he may issue process under Section 204, Cr PC. However, if he
thinks fit, he may postpone the issue of process and either inquire into the case himself or direct
an investigation to be made by a police officer or such other person as he thinks fit for the
purpose of deciding whether or not there is sufficient ground for proceeding(Section 202, Cr
PC). He may then issue process if in his opinion there is sufficient ground for proceeding or
dismiss the complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instant, on receipt of a complaint, the Magistrate may, instead of
taking cognizance of the offence, order an investigation under Section 156(3), Cr PC. The police
will then investigate and submit a report under Section 173(1), Cr PC. On receiving the police
report the Magistrate may take cognizance of the offence under Section 190 (1) (b) and
straightaway issue process. This he may do irrespective of the view expressed by the police in
their report whether an offence has been made out or not. The police report under Section 173
will contain the facts discovered or unearth by the police and the conclusion drawn by the police
therefrom. The Magistrate is not bound by the conclusion drawn by the police and he may decide
to issue process even if the police recommend that there is no sufficient ground for proceeding
further. The Magistrate after receiving the police report, may, without issuing process or
dropping the proceeding decide to take cognizance of the offence on the basis of the complaint
originally submitted to him and proceed to record the statements upon oath of the complainant
and the witnesses present under Section 200, Cr PC and thereafter decide whether to dismiss the

complaint or issue process. The mere fact that he has earlier ordered an investigation under
Section 156(3), Cr PC and received a report under Section 173, Cr PC will not have the effect of
total effacement of the complaint and therefore the Magistrate will not be barred from
proceeding under Sections 200, 203 and 204 of the Cr PC.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3)
and receives a police report under Section 173(1), may, thereafter, do one of three things:
(i) He may decide that there is no sufficient ground for proceeding further and drop action;
(ii) He may take cognizance of the offence under Section 190 (1) (b) on the basis of the police
report and issue process; this he may do without being bound in any manner by the conclusion
arrived at by the police in their report;
(iii) He may take cognizance of the offence under Section 190 (1) (a) on the basis of the original
complaint and proceed to examine upon oath the complainant and his witnesses under Section
200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202, Cr PC
if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
Case Law
Francis Savio vs. Kerala 1998 Cr LJ 4735
In drafting a criminal complaint, there is no specific provision either in the Criminal Procedure
Code or in the rules framed there under as to how a criminal complaint has to be drafted. What
we should see in the criminal complaint is whether the entire substance of the complaint prima
facie, makes out an offence said to have been committed, or whether there is a ground to
presume on the entire reading of the substance of the complaint that the offence is likely to have
been committed.
M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535
The Bombay High Court has observed that the verification of the complainant as required under
Section 200 of the Cr PC is not a mere formality and the Magistrate has to ascertain thereby
whether the complaint is genuine or frivolous. It is further held that for omission by the Court to
record verification, the complainant cannot be penalized for it and on that ground the complaint
cannot be quashed. Omission by Court to record verification and/or examining the complainant
on oath, at the most can be said to be an irregularity and the same can be cured subsequently.
Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10 SCC 517
The Apex Court has observed: - where complaint has been dismissed by the Magistrate under
Section 203 of the Cr PC, upon challenge to the legality of the said order being laid by the
complainant in a revision petition before the High Court or the Session Judge, the person who

are arraigned as accused in the complaint have a right to be heard in such revision petition. If the
Revisional Court overturns the order of the Magistrate dismissing the complaint and the
complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the
person who are alleged in the complaint to have committed crime, have, however, no right to
participate in the proceedings nor they are entitled to any hearing of any sort what so ever by the
Magistrate until the consideration of the matter by the Magistrate for issuance of process.
Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)
An order of dismissal under Section 203 of Cr PC is no bar to the entertainment of a second
complaint on the same facts but it will be entertained only in exceptional circumstances.
Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702
The Supreme Court has observed that the second complaint on the same facts could be
entertained only in exceptional circumstances, namely, where the previous order was passed on
an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly
absurd, unjust or where new facts which could not, with reasonable diligence, have been brought
on record in the previous proceedings, have been adduced.
Abdul Hamid Khan vs. State 1989 Cr LJ 468
The Gujarat High Court has held that merely because the Magistrate has not examined all the
witnesses named in complaint as prosecution witness at the time of holding enquiry under
Section 202 of Cr PC in a case exclusively triable by Session Court, the order of issuing process
against accused cannot be said to be void or illegal.
If process is issued on a complaint under Section 204 of Cr PC even if wrongly and no offence is
made out the Court which passed the order, cannot entertain any application for recalling its own
order. Neither provisions of Section 203 nor 245(2) of Cr PC provides. Appropriate remedy
would be revision or quashing under Section 482 Cr PC.
Whether the Special Judge/Magistrate is justified in referring a private complaint made under
Section 200, Cr PC for investigation in exercise of powers conferred under Section 156(3) Cr PC
without the production of a valid sanction order under Section 19 of the Prevention of Corruption
Act, 1988.
The Supreme Court of India in Anil Kumar vs. M K Aiyappa on 1 Oct 2013 has observed
that:- A Special Judge referring the case for investigation under Section 156(3) Cr PC is at precognizance stage and if the law requires sanction, and the Court proceeds against a public servant

without sanction, the public servant has a right to raise the issue of jurisdiction as the entire
action may be rendered void ab-initio.