Madhu Bala v.

Suresh Kumar
(1997) 8 SCC 476

M K MUKHERJEE, J.:

⮚ On 18-2-1988, the appellant filed a complaint against the 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 Sections 498- A and 406 of the Indian Penal Code (IPC for short) by
them.

⮚ On that complaint the learned Magistrate passed an order under Section 156(3) of the Code of
Criminal Procedure ("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 investigation submitted charge-sheet (police report) against the three
respondents under Sections 498-A and 406 IPC.

⮚ The learned Magistrate took cognizance of the said charge-sheet and thereafter framed charge against
the three respondents under Section 406 IPC only as, according to the learned Magistrate, the offence
under Section 498-A IPC was allegedly committed in the district of Karnal.

Against the framing of the charge the respondents moved the Sessions Judge in revision, but without
success.

⮚ Thereafter on 29-1-1994 the appellant filed another complaint against the respondents under Section
498-A IPC before the Chief Judicial Magistrate, Karnal 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 Karnal Police Station and on
completion of investigation charge-sheet was submitted against the three respondents under Section
498-A IPC. On that charge-sheet the learned Magistrate took cognizance of the above offence and later
on framed charge against them in accordance 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 and Haryana High Court for quashing of their proceedings on the ground that the
orders passed by the Chief Judicial Magistrates of Kurukshetra and Karnal directing 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.

Decision of High Court on the Petitions under Section 482 of the Code:

⮚ The contention so raised found favour with the High Court, and by the impugned judgement it quashed
the orders of the Chief Judicial Magistrates of Kurukshetra and Karnal dated 18-2-1988 and 29-1-1994
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 case.” In drawing the above
conclusion, it relied upon the judgements of this Court in Gopal Das Sindhi v. State of Assam [AIR 1961
SC 986] and Tula Ram 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.
Decision of Supreme Court in Appeal on the impugned Judgment of High Court:

⮚ In our considered view, the impugned judgment is wholly unsustainable 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 and
Tula Ram have no relevance whatsoever to the interpretation or purport of Section 156(3) of the Code.
The earlier judgments of the Punjab and 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 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 a warrant.

⮚ Under 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. [popularly known as ‘Chargesheet’]

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 in charge of a police station shall reduce into writing
every 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.

On completion of investigation undertaken under Section 156(1)

the officer in charge of the police station is required under Section 173(2) to forward to a Magistrate
empowered to take cognizance of the offence on a police report (Section 190 of the Code), 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 subsection (1) of Section 190 appearing in that Chapter any Magistrate of the First Class and any
Magistrate of the Second Class specially empowered may take cognizance of any offence:

(a) upon receiving 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
(suo motto cognizance) that such offence has been committed.

Chapter XV prescribes the procedure the Magistrate has to initially follow if it takes cognizance of an
offence on a complaint under Section 190(1) (a).
Options Available to a Magistrate when a Written Complaint disclosing a cognizable offence is made
before Him/Her:

FIRST OPTION: 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
provisions of Chapter XV.

SECOND OPTION: 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
subsection (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 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 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 (FIR). As under Section 156(1),
the police can only investigate a cognizable “case”, it has to formally register a case on that report.

Important Point: The mode and manner of registration of such cases are laid down in the Rules framed by
the different State Governments under the Indian Police Act, 1861. The other requirements of the said
Rules need not be detailed as they have no relevance to the point at issue.

From the foregoing discussion it is evident that whenever a Magistrate 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 the same.

⮚ The provisions of the Code, therefore, do 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 police would be “to register a case at the police station treating the complaint as the first
information report and investigate 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
I. In the case of Gopal Das' the facts were that on receipt of a complaint of commission of 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 charge-sheet. After investigation police submitted a charge-sheet
and on receipt thereof the Additional District Magistrate forwarded it to Shri R. Goswami, Magistrate
for disposal.
❖ 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 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
reasoning for the above contention were that since the Additional District Magistrate had transferred
the case to Mr. Thomas for disposal under 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
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 Das has, therefore, no manner of application 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.

II. In Tula Ram case, the only question that was raised before this Court was whether or not a Magistrate
after receiving a complaint and after directing investigation under Section 155(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 the police report 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).

III. The cases of the Punjab and Haryana High Court referred to by the learned Judge in the impugned
judgement need not be discussed in detail for they only lay down the proposition that under Section
156(3) a Magistrate can only direct investigation 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 FIR. If 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 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.

Appeal Allowed: On the conclusions as above we set aside the impugned judgement and orders of the
High Court and direct the Magistrates concerned to proceed with the cases in accordance with law. The
appeals are accordingly allowed.