# Kailash Nath Dwivedi v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 635
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-06
- **Case number:** Application U/S 482. No. 6727 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-nath-dwivedi-v-state-of-u-p-ors-47283
- **Pages:** 17

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482, 156(3)-the
case of the applicant rests on the
allegation of manipulation of documents
and forgery which can be proved only
after
investigation
by
the
policemagistrate treated the application as a
complaint and fixed the date for recording
the
statement
of
the
complainantrevisional court held that while exercising
the discretionary power Magistrate can
either issue directions to register case u/s
154 or treat it as a complaint-order passed
by the revisional court cannot be said to
suffer from any illegality or procedural
irregularity.(Para 1 to 31)

B. Where the complainant is in possession
of the complete details of all the accused
as well as the witnesses who have to be
examined and neither recovery is needed
nor any such material evidence is required
to be collected which can be done only by
the
police,
no
investigation
would
normally be required and the procedure of
complaint case should be adopted.(Para
26)

The application is dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,919 of 56,683. This is a partial read: ask again with offset=39919 for what follows._

8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
635
question of framing of charge. The order
does not in any manner indicate that any
plea for discharge was raised on behalf of
the applicants. It was after hearing the
counsel for the accused-applicants that
charge was framed in their presence and
the same was read and explained to the
accused
applicants
whereupon
they
claimed to be tried. The judgment sought
to be relied upon on behalf of the
applicants
would
not
be
any
help
inasmuch as the applicants did not seek
discharge despite having opportunity for
the same.

30. Sections 227 and 228 of the Code
are supplemental and inter-related and are,
therefore, to be read together.

31. The records of the case do not in
any manner indicate that the court below
has not followed the due procedure while
proceeding to frame the charge.

32.

Learned
counsel
for
the
applicants has not been able to point out
any material error or irregularity so as to
warrant interference.

33. Having regard to the aforestated
facts and circumstances, this Court is not
inclined
to
exercise
its
inherent
jurisdiction under Section 482 Cr.P.C.

34.

The
application
stands
accordingly dismissed.
----------
(2021)08ILR A635
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.
Application U/S 482. No. 6727 of 2021

Kailash Nath Dwivedi ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Jitendra Prasad Mishra

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482, 156(3)-the
case of the applicant rests on the
allegation of manipulation of documents
and forgery which can be proved only
after
investigation
by
the
policemagistrate treated the application as a
complaint and fixed the date for recording
the
statement
of
the
complainantrevisional court held that while exercising
the discretionary power Magistrate can
either issue directions to register case u/s
154 or treat it as a complaint-order passed
by the revisional court cannot be said to
suffer from any illegality or procedural
irregularity.(Para 1 to 31)

B. Where the complainant is in possession
of the complete details of all the accused
as well as the witnesses who have to be
examined and neither recovery is needed
nor any such material evidence is required
to be collected which can be done only by
the
police,
no
investigation
would
normally be required and the procedure of
complaint case should be adopted.(Para
26)

The application is dismissed. (E-5)

List of Cases cited:

1. Gopal Das Sindhi & ors. Vs St. of Assam &
anr. ( 1961) AIR SC 986

2. Suresh Chand Jain Vs St. of M.P. &
anr.(2001) 2 SCC 628

3. Mohd. Yousuf Vs Afaq Jahan(Smt.) & anr.
(2006) 1 SCC 627
636 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Fakhruddin Ahmad Vs St. of Uttaranchal &
anr. (2008) 17 SCC 157

5. Ram Babu Gupta & ors. Vs St. of U.P. &
ors.(2001) 43 ACC 50 FB

6. Sukhwasi Vs St. of U.P.(2007) 9 ADJ 1 DB

7. Anil Kumar Vs M.K. Aiyappa & anr.(2013) 10
SCC 705

8. Jagannath Verma & ors Vs St. of U.P. &
anr.(2014) 8 ADJ 439 FB

9. Samaj Parivartan Samudaya & ors. Vs St. of
Karnataka & ors. (2012) 7 SCC 407

10. Madhao & anr. Vs St. of Mah. & anr. (2013)
5 SCC 615

11. Ram Dev Food Products Pvt. Ltd. Vs St. of
Guj.(2015) 6 SCC 439

12. Lalita Kumari Vs Government of U.P & ors.
(2014) 2 SCC 1

13. Gulab Chand Upadhyaya Vs St. of U.P & Ors
(2002) CrLJ 2907 Alld

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Jitendra Prasad Mishra,
learned counsel for the applicant and Sri
Pankaj Saxena, learned A.G.A.-I and Ms.
Akanksha Gaur, learned State Law Officer
for the State-opposite party.

2. The present application under
Section 482 of the Code of Criminal
Procedure, 19731 has been filed seeking to
quash the order dated 16.01.2021 passed by
Sessions
Judge,
Banda
in
Criminal
Revision No.55 of 2020 (Kailash Nath
Dwivedi v State of U.P. and others) as well
as order dated 25.09.2020 passed by Chief
Judicial Magistrate, Banda, in Misc. Case
No.406 of 2020 (Kailash Nath Dwivedi v
Rudra Narayan Dwivedi and others) under
Section 156(3) of the Code, Police Station
Tindwari, District Banda.

3. The facts of the case, as disclosed
from the pleadings, are that an application
dated 04.08.2020, filed by the applicant
under
Section
156(3)
of
the
Code
(registered as Misc. Case No.406 of 2020)
before the Court of the Chief Judicial
Magistrate, Banda, has been treated as a
complaint and in terms of an order dated
25.09.2020, it has been directed to be
registered as a complaint case fixing a date
for recording of the statement of the
complainant under Section 200 of the
Code.

4. A revision against the aforesaid
order was preferred by the applicant being
Criminal Revision No.55 of 2020 (Kailash
Nath Dwivedi v State of U.P. and others)
primarily seeking to contend that the
application filed under Section 156(3) of
the Code discloses a cognizable offence
and, accordingly, the court was required to
direct the police to investigate and submit a
report under Section 173(2) of the Code.

5. The revisional court, upon
considering the facts and circumstances of
the case and the legal position in this
regard, has held that it is open for the
Magistrate while exercising discretionary
power under Section 156(3) of the Code to
issue directions to register the case under
Section 154 of the Code and conduct
investigation or to take cognizance of the
matter by treating it as a complaint and
proceed for inquiry as per procedure under
Sections 200 and 202 of the Code.

6. Taking notice of the fact that the
civil and criminal litigation is pending
between the parties and that the applicant
had full knowledge of the facts of the
8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
637
incident regarding which, he could lead
evidence, the revisional court has held that
there is no error in the view taken by the
learned Magistrate that no case was made
out for investigation by the police and in
view thereof, has rejected the revision.

7. The principal ground sought to be
raised by learned counsel for the applicant
to assail the orders passed by the courts
below is that the case of the applicant rests
on the allegation of manipulation of
documents and forgery which can be
proved only after investigation by the
police and submission of a report. Learned
counsel for the applicant has sought to
draw attention of the Court to certain
documentary
evidence
appended
as
annexures alongwith the affidavit
to
support his contention with regard to
manipulation of documents.

8. Per contra, learned counsel
appearing for the State-opposite party have
submitted
that
upon
receiving
the
complaint, the Magistrate while exercising
its discretionary power, may direct the
police to register a criminal case under
Section 154 of the Code and conduct
investigation or where the facts of the case
are
such,
the
Magistrate
may
take
cognizance of the matter by treating it as a
complaint and proceed for the inquiry
under Sections 200 and 202 of the Code. It
is contended that there is nothing in the
Code of Criminal Procedure which curtails
or puts any embargo on the power of the
Magistrate to make an inquiry in dealing
with the application under Section 156(3)
of the Code in order to satisfy itself about
the veracity of the allegations with regard
to commission of a cognizable offence. It is
also pointed out that looking into the facts
of the case and in particular, the civil and
criminal litigation pending between the
parties and also that the applicant is in
possession of the documents, which form
the basis of the allegations with regard to
forgery and manipulation; the view taken
by the Magistrate that the applicant can
lead evidence to prove his allegations,
which has been affirmed by the revisional
court, do not call for any interference.

9. The principal issue involved in the
present case is with regard to the scope and
parameters for exercise of the discretionary
powers of the Magistrate in dealing with a
complaint containing allegations regarding
commission of a cognizable offence.

10. The provisions relating to
information to police and their power to
investigate are contained under Chapter XII
of the Code and in terms of the scheme
contained therein it is provided that upon
an information relating to commission of a
cognizable offence being given orally or in
writing, it is required to be registered as a
case and investigation is to be proceeded
with. In a situation where the officer in
charge of the police station refuses to
record the information, the informant may
approach the Superintendent of Police
giving substance of the information in
writing or by post and in the event F.I.R. is
not being lodged or the investigation is not
being proceeded with, it is open to the
aggrieved person to file an application
under Section 156(3) of the Code before
the Magistrate having jurisdiction, who can
then direct the police to register the F.I.R.
and conduct investigation.

11. The Magistrate upon receiving a
complaint or an application under Section
156(3) of the Code, with regard to facts
disclosing commission of an offence, "may
take cognizance", which in the context of
Section 190 of the Code, cannot be read as
638 INDIAN LAW REPORTS ALLAHABAD SERIES
"must take cognizance". The use of the
expression "may" under Section 190 of the
Code gives a discretion to the Magistrate to
either take cognizance or to forward the
complaint
to
the
police
and
order
investigation under Section 156(3) of the
Code.

12. The question as to whether it is
mandatory for the Magistrate to order
registration of a criminal case and direct the
officer in charge of the concerned police
station to hold a proper investigation, is no
longer res integra and it has been
consistently held that where a Magistrate
receives an application under Section
156(3) of the Code, he is not bound to take
immediate cognizance even if the alleged
facts disclose commission of an offence.

13. In the case of Gopal Das Sindhi
and others v State of Assam and
another2, while considering the provisions
of Section 190 of the Code it was held that
once a complaint is filed a Magistrate is not
bound to take cognizance as the word
"may" cannot be construed so as to be
"must" and it would be within the
discretion of the Magistrate to send the
complaint to the police for investigation
under Section 156(3) of the Code or to
exercise his discretion and take cognizance
and thereafter proceed. It was stated thus:-

"7.
...We
cannot
read
the
provisions of S. 190 to mean that once a
complaint is filed, a Magistrate is bound to
take cognizance if the facts stated in the
complaint disclose the commission of any
offence. We are unable to construe the
word 'may' in section 190 to mean 'must'.
The reason is obvious. A complaint
disclosing cognizable offences may well
justify
a
Magistrate
in
sending
the
complaint, under S. 156 (3) to the police
for investigation. There is no reason why
the time of the Magistrate should be wasted
when primarily the duty to investigate in
cases involving cognizable offences is with
the police. On the other hand, there may be
occasions
when
the
Magistrate
may
exercise his discretion and take cognizance
of a cognizable offence. If he does so then
he would have to proceed in the manner
provided by Chapter XVI of the Code..."

14. While considering the powers of
the Magistrate under Sections 156(3) and
200 of the Code in Suresh Chand Jain v
State of M.P. and another3 it was held
that the Magistrate, after taking cognizance
of the offence, could order investigation
under Section 156(3) of the Code or take
cognizance of the offence and follow the
procedure under Chapter XV of the Code.
The relevant observations made in the
judgment are as follows:-

"7. In our opinion, the aforesaid
direction given by the learned Single Judge
of the Punjab and Haryana High Court in
Suresh Kumar v. State of Haryana (1996) 3
Rec Cri R 137 is contrary to law and cannot
be approved. Chapter XII of the Code
contains provisions relating to "information
to the police and their powers to
investigate", whereas Chapter XV, which
contains Section 202, deals with provisions
relating to the steps which a Magistrate has
to adopt while and after taking cognizance
of any offence on a complaint. Provisions
of the above two chapters deal with two
different facets altogether, though there
could be, a common factor i.e. complaint
filed by a person. Section 156, falling
within Chapter XII, deals with powers of
the police officers to investigate cognizable
offences. True, Section 202 which falls
under Chapter XV, also refers to the power
of a Magistrate to "direct an investigation
8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
639
by a police officer". But the investigation
envisaged in Section 202 is different from
the investigation contemplated in Section
156 of the Code. Section 156 of the Code
reads thus:

"156. Police officer's power to
investigate cognizable cases.--(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."

8. The investigation referred to
therein is the same investigation, the
various steps to be adopted for it have been
elaborated in Chapter XII of the Code.
Such investigation would start with making
the entry in a book to be kept by the officer
in charge of a police station, of the
substance of the information relating to the
commission of a cognizable offence. The
investigation started thereafter can end up
only with the report filed by the police as
indicated in Section 173 of the Code. The
investigation contemplated in that Chapter
can be commenced by the police even
without the order of a Magistrate. But that
does not mean that when a magistrate
orders an investigation under Section
156(3) it would be a different kind of
investigation. Such investigation must also
end up only with the report contemplated in
Section 173 of the Code. But the significant
point to be noticed is, when a Magistrate
orders investigation under Chapter XII he
does so before he takes cognizance of the
offence.

9. But a Magistrate need not
order any such investigation if he proposes
to take cognizance of the offence. Once he
takes cognizance of the offence he has to
follow the procedure envisaged in Chapter
XV of the Code. A reading of Section
202(1) of the Code would convince that the
investigation referred to therein is of a
limited nature. The Magistrate can direct
such an investigation to be made either by a
police officer or by any other person. Such
investigation is only for helping the
Magistrate to decide whether or not there is
sufficient ground for him to proceed
further. This can be discerned from the
culminating words in Section 202(1) i.e.

"or direct an investigation to be
made by a police officer or by such other
persons as he thinks fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding."

This is because he has already
taken cognizance of the offence disclosed
in the complaint, and the domain of the
case would thereafter vest with him.

10. The position is thus clear.
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
640 INDIAN LAW REPORTS ALLAHABAD SERIES
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
investigation 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."

15. A similar view was taken in
Mohd. Yousuf v Afaq Jahan (Smt.) and
another4 wherein it was held that upon
receiving
a
complaint
disclosing
a
cognizable offence, the Magistrate can
order investigation under Section 156(3) of
the Code or if he proposes to take
cognizance of the offence, he need not
order such investigation and may follow
the procedure under Chapter XV of of the
Code. The observations made in the
judgment in this regard are as follows:-

"6. Section 156 falling within
Chapter XII, deals with powers of police
officers to investigate cognizable offences.
Investigation envisaged in Section 202
contained in Chapter XV is different from
the
investigation
contemplated
under
Section 156 of the Code.

7. Chapter XII of the Code
contains provisions relating to "information
to the police and their powers to
investigate", whereas Chapter XV, which
contains Section 202, deals with provisions
relating to the steps which a Magistrate has
to adopt while and after taking cognizance
of any offence on a complaint. Provisions
of the above two chapters deal with two
different facets altogether, though there
could be a common factor i.e. complaint
filed by a person. Section 156, falling
within Chapter XII deals with powers of
the police officers to investigate cognizable
offences. True, Section 202, which falls
under Chapter XV, also refers to the power
of a Magistrate to "direct an investigation
by a police officer". But the investigation
envisaged in Section 202 is different from
the investigation contemplated in Section
156 of the Code.

8. The various steps to be adopted
for investigation under Section 156 of the
Code have been elaborated in Chapter XII
of the Code. Such investigation would start
with making the entry in a book to be kept
by the officer in charge of a police station,
of the substance of the information relating
to the commission of a cognizable offence.
The investigation started thereafter can end
up only with the report filed by the police
as indicated in Section 173 of the Code.
The investigation contemplated in that
chapter can be commenced by the police
even without the order of a Magistrate. But
that does not mean that when a Magistrate
orders an investigation under Section
156(3) it would be a different kind of
investigation. Such investigation must also
end up only with the report contemplated in
Section 173 of the Code. But the significant
point to be noticed is, when a Magistrate
orders investigation under Chapter XII he
does so before he takes cognizance of the
offence.

9. But a Magistrate need not
order any such investigation if he proposes
to take cognizance of the offence. Once he
8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
641
takes cognizance of the offence he has to
follow the procedure envisaged in Chapter
XV of the Code. A reading of Section
202(1) of the Code makes the position clear
that the investigation referred to therein is
of a limited nature. The Magistrate can
direct such an investigation to be made
either by a police officer or by any other
person. Such investigation is only for
helping the Magistrate to decide whether or
not there is sufficient ground for him to
proceed further. This can be discerned from
the culminating words in Section 202(1)
i.e.

"or direct an investigation to be
made by a police officer or by such other
person as he thinks fit, for the purpose of
deciding whether or not there is sufficient
ground for proceeding".

10. This is because he has already
taken cognizance of the offence disclosed
in the complaint, and the domain of the
case would thereafter vest with him.

11. 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
investigation 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
complainant because that police officer
could take further steps contemplated in
Chapter XII of the Code only thereafter."

16. In Fakhruddin Ahmad v State
of Uttaranchal and another5, it was
reiterated that on receipt of complaint, the
Magistrate has more than one course open
to him to determine the procedure and the
manner to be adopted for taking cognizance
of the offence. One of the courses open to
the Magistrate would be that instead of
exercising
his
discretion
and
taking
cognizance of the offence and following
the procedure under Section 200 or Section
202 of the Code, he could order an
investigation to be made by the police
under Section 156(3). The observations
made in the judgment in this regard are as
follows:-

"9. Before examining the rival
contentions, we may briefly refer to some
of the relevant provisions in the Code.
Chapter XIV of the Code, containing
Sections 190 to 199 deals with the statutory
conditions
requisite
for
initiation
of
criminal proceedings and as to the powers
of cognizance of a Magistrate. Sub-section
(1) of Section 190 of the Code empowers a
Magistrate to take cognizance of an offence
in the manner laid therein. It provides that a
Magistrate may take cognizance of an
offence either (a) upon receiving a
complaint of facts which constitute such
offence; or (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.
642 INDIAN LAW REPORTS ALLAHABAD SERIES

10.
Chapter
XV
containing
Sections 200 to 203 deals with "Complaints
to
Magistrates"
and
lays
down
the
procedure which is required to be followed
by the Magistrate taking cognizance of an
offence on complaint. Similarly, Chapter
XVI
deals
with
"Commencement
of
Proceedings before Magistrates". Since
admittedly, in the present case, the
Magistrate has taken cognizance of the
complaint in terms of Section 190 of the
Code, we shall confine our discussion only
to the said provision. We may, however,
note that on receipt of a complaint, the
Magistrate has more than one course open
to him to determine the procedure and the
manner to be adopted for taking cognizance
of the offence.

11. One of the courses open to the
Magistrate is that instead of exercising his
discretion and taking cognizance of a
cognizable offence and following the
procedure laid down under Section 200 or
Section 202 of the Code, he may order an
investigation to be made by the police
under Section 156(3) of the Code, which
the learned Magistrate did in the instant
case. When such an order is made, the
police is obliged to investigate the case and
submit a report under Section 173(2) of the
Code. On receiving the police report, if the
Magistrate is satisfied that on the facts
discovered or unearthed by the police there
is sufficient material for him to take
cognizance of the offence, he may take
cognizance of the offence under Section
190(1)(b) of the Code and issue process
straightaway to the accused. However,
Section 190(1)(b) of the Code does not lay
down that a Magistrate can take cognizance
of an offence only if the investigating
officer
gives
an
opinion
that
the
investigation makes out a case against the
accused. Undoubtedly, the Magistrate can
ignore the conclusion(s) arrived at by the
investigating officer.

12. Thus, it is trite that the
Magistrate is not bound by the opinion of
the
investigating
officer
and
he
is
competent to exercise his discretion in this
behalf, irrespective of the view expressed
by the police in their report and decide
whether an offence has been made out or
not. This is because the purpose of the
police report under Section 173(2) of the
Code, which will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom is primarily to enable the
Magistrate to satisfy himself whether on
the basis of the report and the material
referred therein, a case for cognizance is
made out or not."

17. The question as whether a
Magistrate while exercising power under
Section 156(3) of the Code is required to
apply his mind to the allegations in the
complaint before proceeding to take
cognizance or directing the police to
register and investigate the same, was
considered by a Full Bench of this Court
in Ram Babu Gupta and others v State of
U.P. and others6, and the reference was
answered by holding that on receiving a
complaint, the Magistrate has to apply his
mind to the allegations in the complaint
upon which he may not at once proceed
to take cognizance and may order it to go
to the police station for being registered
and investigated, or if the Magistrate
takes cognizance, he would have to
follow the procedure provided in Chapter
XV of the Code. It was further held that
in both the cases the Magistrate's order
must indicate application of mind. The
relevant extract from the judgment is as
follows:-
8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
643

"17. In view of the aforesaid
discussion on the legal provisions and
decisions of the Supreme Court as on date,
it is hereby held that on receiving a
complaint, the Magistrate has to apply his
mind to the allegations in the complaint
upon which he may not at once proceed to
take cognizance and may order it to go to
the police station for being registered and
investigated. The Magistrate's order must
indicate application of mind. If the
Magistrate takes cognizance, he proceeds
to follow the procedure provided in
Chapter XV of Cr.P.C. The first question
stands answered thus."

18. The question whether the
Magistrate is bound to pass an order on
each and every application under Section
156(3) of the Code containing allegations
of commission of a cognizable offence for
registration
of
the
F.I.R.
and
its
investigation by the police, even if those
allegations, prima facie, do not appear to be
genuine and do not appeal to reason, or he
can exercise discretion in the matter and
can pass an order for treating the same as
"complaint" or to reject it in suitable cases,
was referred for consideration before a
Division Bench in Sukhwasi v State of
U.P7, and the Division Bench answered the
reference by holding that there is no legal
mandate under which the Magistrate is
bound to allow an application under
Section 156(3) of the Code and he has a
discretion to treat an application under
Section 156(3) of the Code as a complaint.
The observations made by the Division
Bench are as follows:-

"23. The reference is, therefore,
answered in the manner that it is not
incumbent upon a Magistrate to allow an
application under Section 156(3) Cr.P.C.
and there is no such legal mandate. He may
or may not allow the application in his
discretion. The second leg of the reference
is also answered in the manner that the
Magistrate has a discretion to treat an
application under Section 156(3) Cr.P.C. as
a complaint."

19. The requirement of application of
mind by the Magistrate while exercising
powers under Section 156(3) of the Code to
order investigation on a private complaint
was emphasized in Anil Kumar v M.K.
Aiyappa and another8, it was stated thus:-

"11. The scope of Section 156(3)
Cr.P.C. came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed case (2008) 5 SCC 668
examined
the
requirement
of
the
application of mind by the Magistrate
before exercising jurisdiction under Section
156(3) and held that where a jurisdiction is
exercised on a complaint filed in terms of
Section 156(3) or Section 200 Cr.P.C., the
Magistrate is required to apply his mind, in
such a case, the Special Judge/Magistrate
cannot refer the matter under Section
156(3) against a public servant without a
valid sanction order. The application of
mind by the Magistrate should be reflected
in the order. The mere statement that he has
gone through the complaint, documents and
heard the complainant, as such, as reflected
in the order, will not be sufficient. After
going through the complaint, documents
and hearing the complainant, what weighed
with the Magistrate to order investigation
under Section 156(3) Cr.P.C., should be
reflected in the order, though a detailed
expression of his views is neither required
nor warranted..."

20. The power conferred upon the
Magistrate to order investigation under
Section 156(3) of the Code again came up
644 INDIAN LAW REPORTS ALLAHABAD SERIES
for consideration before a Full Bench of
this Court in Jagannath Verma and
others v State of U.P. and another9, and
taking note of the provisions contained
under Section 190 of the Code which uses
the expression "the Magistrate may take
cognizance" and not "the Magistrate must
take cognizance", it was held that under
Section 190 a Magistrate is not bound, once
a complaint is filed, to take cognizance
even though the complaint may disclose a
cognizable offence and he may well be
justified in sending the complaint under
Section
156(3)
to
the
police
for
investigation. It was stated thus:-

"14. Section 190 empowers a
Magistrate to take cognizance of any
offence: (i) upon receiving a complaint of
facts which constitute such offence; (ii)
upon a police report of such facts; and (iii)
upon information received from any person
other than a police officer, or upon his own
knowledge, that such an offence has been
committed.
Under
Section
190,
a
Magistrate is not bound, once a complaint
is filed, to take cognizance if the facts
stated in the complaint disclose the
commission of any offences. Section 190
uses the expression that 'the Magistrate
may take cognizance' and not that 'the
Magistrate must take cognizance'. Though,
a complaint may disclose a cognizable
offence, a Magistrate may well be justified
in sending the complaint under Section 156
(3) to the police for investigation. In Gopal
Das Sindhi v. State of Assam, AIR 1961
SC 986, the Supreme Court held that there
is no reason why the time of the Magistrate
should be wasted when primarily the duty
to investigate in cases involving cognizable
offences is with the police. The Magistrate
before taking cognizance may well refer
the complaint under Section 156(3) to the
police for investigation. Cognizance, it is
well-settled under CrPC, is where the
Magistrate on receiving a complaint applies
his mind for the purposes of proceeding
under Section 200 and the succeeding
Sections in Chapter XV of the Code. If,
instead of proceeding under Chapter XV,
the Magistrate orders an investigation by
the police under Section 156(3), he is not
said to have taken cognizance of an
offence. In Mohd Yousuf v. Afaq Jahan,
(2006) 1 SCC 627, this position was
elaborated in the following observations of
the Supreme Court:

''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
investigation 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.''

15. When a written complaint
disclosing a cognizable offence is made
before
a
Magistrate,
he
may
take
8 All. Kailash Nath Dwivedi Vs. State of U.P. & Ors.
645
cognizance under Section 190(1)(a) and
proceed in accordance with the provisions
of Chapter XV. The other option available
to the Magistrate is to transmit the
complaint to the police station concerned
under
Section
156(3),
before
taking
cognizance, for investigation. Once a
direction is issued by the Magistrate under
Section 156(3), the police is required to
investigate under sub-section (1) of that
Section and to submit a report under
Section 173(2) on the complaint after
investigation, upon which the Magistrate
may
take
cognizance
under
Section
190(1)(b). (Madhu Bala v. Suresh Kumar,
(1997) 8 SCC 476)."

21. The judicial discretion vested
upon the Magistrate to take cognizance
directly under Section 200 of the Code, or
to direct registration of a case and order the
police
authorities
to
conduct
an
investigation in terms of Section 156(3) of
the Code, was reiterated in
Samaj
Parivartan Samudaya and others v State
of Karnataka and others10, and it was
held as follows:-

"26. Section 154 of the CrPC
places an obligation upon the authorities to
register the FIR of the information
received, relating to commission of a
cognizable
offence,
whether
such
information is received orally or in writing
by the officer in- charge of a police station.
A police officer is authorised to investigate
such cases without order of a Magistrate,
though, in terms of Section 156(3) Cr.P.C.
the Magistrate empowered under Section
190 may direct the registration of a case
and order the police authorities to conduct
investigation, in accordance with the
provisions of the CrPC. Such an order of
the Magistrate under Section 156(3) CrPC
is in the nature of a pre-emptory reminder
or intimation to police, to exercise their
plenary power of investigation under that
Section. This would result in a police report
under
Section
173,
whereafter
the
Magistrate may or may not take cognizance
of the offence and proceed under Chapter
XVI CrPC. The Magistrate has judicial
discretion, upon receipt of a complaint to
take cognizance directly under Section 200
CrPC, or to adopt the above procedure.
(Ref. Gopal Das Sindhi & Ors. v. State of
Assam, AIR 1961 SC 986]; Mohd. Yusuf
v. Smt. Afaq Jahan, (2006) 1 SCC 627 and
Mona Panwar v. High Court of Judicature
of Allahabad, (2011) 3 SCC 496.

x x x

32. A person who complains of
commission of a cognizable offence has
been provided with two options under
Indian Criminal jurisprudence. Firstly, he
can lodge the police report which would be
proceeded
upon
as
aforenoticed
and
secondly, he could file a complaint under
Section
200
CrPC,
whereupon
the
Magistrate shall follow the procedure
provided under Sections 200 to 203 or 204
to 210 under Chapter XV and XVI CrPC.
In the former case, it is upon the police
report that the entire investigation is
conducted by the investigating agency and
the onus to establish commission of the
alleged offence beyond reasonable doubt is
entirely on the prosecution. In a complaint
case, the complainant is burdened with the
onus of establishing the offence and he has
to lead evidence before the Court to
establish the guilt of the accused. The rule
of
establishing
the
charges
beyond
reasonable doubt is applicable to a
complaint case as well.

33. The important feature that we
must notice for the purpose of the present
646 INDIAN LAW REPORTS ALLAHABAD SERIES
case is that even on a complaint case, in
terms of Section 202, the Magistrate can
refer the complaint to investigation by the
police and call for the report first, deferring
the hearing of the complaint till then."

22. The powers of the Magistrate,
upon receiving complaint with regard to a
cognizable offence again came up for
consideration in the case of Madhao and
another v State of Maharashtra and
another11, and amongst the courses open,
it was held that the Magistrate concerned
can on the one hand invoke power under
Section
156(3) of
the
Code, direct
investigation in such matter and on the
other hand he may take cognizance and
embark upon the procedure embodied in
Chapter XV. The relevant extracts from the
judgment are as follows:-

"15. Chapter XIV of the Code
speaks about conditions requisite for
initiation of proceedings. Section 190 deals
with
cognizance
of
offences
by
Magistrates. In terms of sub-section (1)
subject to the provisions of the said
Chapter, any Magistrate of first class, and
any Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence:

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

16. Sub-section (3) of Section
156 of the Code enables any Magistrate
empowered under Section 190 to order
such an investigation in terms of subsection (1) of that section.

17. In CREF Finance Ltd. vs.
Shree Shanthi Homes (P) Ltd., (2005) 7
SCC 467, while considering the power of a
Magistrate
taking
cognizance
of
the
offence, this Court held: (SCC p.471, para
10)

"10. ...Cognizance is taken at the
initial stage when the Magistrate peruses
the complaint with a view to ascertain
whether the commission of any offence is
disclosed. The issuance of process is at a
later stage when after considering the
material placed before it, the court decides
to proceed against the offenders against
whom a prima facie case is made out. It is
possible that a complaint may be filed
against several persons, but the Magistrate
may choose to issue process only against
some of the accused. It may also be that
after taking cognizance and examining the
complainant on oath, the court may come
to the conclusion that no case is made out
for issuance of process and it may reject the
complaint. It may also be that having
considered the complaint, the court may
consider
it
appropriate
to
send
the
complaint to the police for investigation
under Section 156(3) of the Code of
Criminal Procedure."

It is clear that any judicial
magistrate before taking cognizance of the
offence can order investigation under
Section 156(3) of the Code.