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In a judgment passed on Thursday, the Madras High Court has reiterated that once a Magistrate has taken cognisance of a criminal offence under Section 200 of the Code of Criminal Procedure (CrPC) s/he cannot fall back on Section 156 (3), CrPC to direct the police to register an FIR.
As clarified in the order passed by Justice N Anand Venkatesh in the case of N Amsaveni v R Loganathan and anr,
“Power to direct investigation by police under Section 156 (3) of Cr.P.C., is done at the pre-cognizance stage and the enquiry or investigation ordered under Section 202 of Cr.P.C., is done at the post-cognizance stage [i.e. after taking cognisance under Section 200, CrPC].
Once a Magistrate takes cognizance of the offence, he cannot thereafter order for an investigation under Section 156(3) of Cr.P.C. The law on this issue has been settled by the Hon’ble Supreme Court in Rameshbhai Pandurao Hedau .vs. State of Gujarat reported in (2010) 2 MLJ Crl 489.”
On the other hand, in the case before the Court, a Judicial Magistrate had ordered an enquiry under Section 202, CrPC, sought a report from the police and then directed the police to file an FIR under Section 156 (3). This order was subsequently challenged before the High Court.
The Court, in turn, allowed the plea, on finding the procedure followed by the Magistrate patently illegal and against the settled principles of law. The order notes that the Magistrate Court” had completely misdirected itself in ordering for an investigation under Section 156 (3) CrPC, after having taken cognizance of the complaint and after ordering for an enquiry under Section 202 of CrPC.“
In this regard, Justice Venkatesh also cited the Supreme Court’s 2011 judgment in Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Others.
“In this judgment, the Hon’ble Supreme Court has categorically held that on receipt of a complaint, the Magistrate has the option of directing investigation under Section 156(3) of Cr.P.C., or adopt the course as provided under Section 200 of Cr.P.C. This judgment was further reiterated by a larger Bench in Ram Dev Food Products Private Limited .Vs. State of Gujarat reported in (2015) 2 MLJ Crl 112.“
Furthermore, the judge also noted that no sworn affidavit of the complainant was taken by the Magistrate Court, contrary to the procedure mandated when the course of criminal procedure under Section 156 (3), CrPC is taken.
“… the Court below has failed to take note of the judgment of the Hon’ble Supreme Court in Priyanka Srivastava & Another .Vs. State of U.P. reported in [2015 6 SCC 287] wherein, the Hon’ble Supreme Court has made it very clear that in petitions filed under Section 156(3) of Cr.P.C, it must be necessarily accompanied by sworn affidavit of the complainant. This requirement has also not been satisfied in this case. Looking at the order from any angle, this Court is of the considered view that the same requires to be set aside.“
In view of these observations, the Court set aside the lower court order to register the FIR. However, the complainant was granted liberty to file a fresh criminal complaint. The Court clarified,
“This order will not stand in a way of the first respondent from preferring a fresh complaint since the order of the Court below was set aside only on the ground of serious procedural lapses.“