This is a guest post by the very bright Harshit Sharma (https://www.linkedin.com/in/harshit-sharma-hs30/) on a very interesting topic of criminal procedure.

Introduction

In continuation of my habit of writing I am once again back with an interesting topic. As it is known to the most of people that CrPC (Code of Criminal Procedure) gives Magistrate wide range of powers. One such power is power to order Investigation at different stages of a criminal proceeding. Starting with power to direct registration of FIR and initiation of Investigation under Section 156(3) CrPC^[i], it further provides power to direct investigation on specific points in a compliant case under Section 202 CrPC^[ii] and lastly the power to order further investigation under Section 173(8) of CrPC^[iii]. These three provisions are regularly on a routine basis are used in Magistrate Courts. But the section I am going to discuss today is one such power that is hardly used in criminal courts. Let’s start with our discussion.

Occurrence Report 

When the police officer receives a report of the commission of a cognizable offence or has reason to suspect its commission, he is required under Section 157 of the CrPC^[iv] to make forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. This is basically known as Occurrence Report. Section 159 CrPC^[v] provides that such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code.

Section 157 CrPC requires an occurrence report to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of the offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 CrPC.^[vi]

Power to direct Investigation or Preliminary Inquiry under Section 159 CrPC

Section 157 CrPC is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. The report to be sent to the Magistrate under sub-section (1) of section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report his reasons for not fully complying with the requirements of subsection (1) and, in addition, in cases where he decided not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to be investigated. These provisions are followed by section 159 CrPC. 

Concentrating on the section 159 CrPC which is relevant to our present purpose, a Magistrate empowered to take cognizance on a police report, may direct an investigation on receiving the report of the police officer under Section 157 or such Magistrate may depute any subordinate Magistrate to hold a preliminary inquiry into the case. Section 159 relates to a point of time when the offence is under investigation and the Magistrate is given the power to aid such investigation in manner indicated in the section.^[vii]

In the case of S. N. Sarma vs Bipin Kumar Tiwari^[viii], the Hon’ble Supreme Court reasserted the principles and further laid down that the power of the police to investigate in cognizable offence was uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate could intervene and either direct an investigation or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed and inquire into the case. Eventually their Lordships referred to the use of the expression ‘as he thinks fit’ in Section 159 CrPC in interpreting the power of the Magistrate to direct an investigation in cases where the police decided not to investigate the case under the provisions of Section 157(1) CrPC.

So it can be said that under Section 159, the Magistrate can exercise his power to order investigation or to order preliminary inquiry only in those cases where the report from the officer in charge of a police station, is covered by the proviso to sub-section (1) of section 157, viz., cases in which the officer in charge of the police station does not proceed to investigate the case. 

Whether Section 159 of CrPC empowers a magistrate to stop police investigation 

The facts of case S.N. Sharma vs Bipen Kumar Tiwari And Ors.^[ix], were like this, a first information report was lodged in respect of a crime and the appellant, who was the Additional District Magistrate (Judicial) was named therein as   principal accused. The offences mentioned were cognizable and the Police after registering the case, started investigation. The appellant applied to the Judicial Magistrate for invocation  of the provisions of Section 159 CrPC and for conducting  preliminary enquiry by the Court itself and for issuance of necessary directions to the  Police  to stop investigation  alleging that a false report had been  lodged at  the instance  of  the  local  police. The Magistrate directed the police to stop investigation and decided to hold the enquiry himself. The matter reached Hon’ble High Court and it quashed the Magistrate’s order. Finally when it went to the Hon’ble Apex Court.

It was urged by counsel for the appellant that the narrower interpretation of Section 159 accepted by the High Court will leave persons at the mercy of the police who can harass any one by having a false report lodged and starting investigation on the basis of such a report without any control by the judiciary. He has particularly emphasised the case of the appellant who was himself a Judicial Officer working as Additional District Magistrate and who moved the Magistrate on the ground that the police had engineered the case against him.

The Hon’ble Supreme Court further stated that Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of a police-station to investigate any cognizable case without the order of a Magistrate. Sub- section (2) of Section 156 lays down that 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, while sub-section (3) gives power to any Magistrate empowered under section 190 of the Code to order such an investigation in any case as mentioned in sub-section (1).  It was also stated by Hon’ble Court that it feel constrained to hold that the language used in Section 159 does not permit the wider interpretation put forward by counsel for the appellant. Section 159 CrPC first mentions the power of the Magistrate to direct an investigation on receiving the report under Section 157, and then states the alternative that, if he thinks fit, he may at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. 

On the face of it, the first alternative of directing an investigation cannot arise in a case where the report itself shows that investigation by the police is going on in accordance with Section 156. It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry. That power is preceded by the condition that he may do so, “if he thinks fit”.

If the expression “if he thinks fit” had not been used, it might have been argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding himself or deputing any Magistrate subordinate to him to proceed to hold a preliminary enquiry as the circumstances of the case may require. Without the use of the expression “if he thinks fit”, the second alternative could have been held to be independent of the first; but the use of this expression, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.

It may also be further noticed that, even in sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.

Section 156(3) CrPC gives the power to the Magistrate to direct the police to investigate a cognizable offence. Once the learned Magistrate gives such a direction under that sub-section the police starts investigation. The Magistrate having directed such investigation cannot tinker with or hamper with the investigation started by the police by a subsequent order of re-call of his order under Section 156(3) CrPC. If he does so, he exceeds his jurisdiction and acts in a manner which is not in accordance with the procedure established by law.

Whether Magistrate is empowered to Monitor Investigation

Though there is no such procedural law that enables the Judicial Magistrate to monitor the investigation in an explicit manner, the Hon’ble Apex Court in Sakiri Vasu vs State Of U.P. and Others^[x], adumbrated that the Magistrate can monitor the investigation. It should be exceptional in nature, not a routine and casual. It was held that:

Conclusion 

The above discussion supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. So Section 159 CrPC was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence. The Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the Hon’ble High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in section 159 of the Code. It means section 159 CrPC comes into play only when the police officer decides not to investigate the case and writes in his occurrence report submitted to magistrate that he is not going to investigate the case. 

Before ending this article I want to point out some basic differences between Section 156(3) and Section 159 of CrPC:

• 156(3) comes into play when police refuses to register the complaint/FIR, while 159 comes into play where police registers the complaint/FIR and sends occurrence report to magistrate stating that they are not going to investigate the case. (Section 159 CrPC is practically dead as Police after registration of FIR conducts investigation and submits either Challan/Charge Sheet or Final Report. It is rarely seen that after registration of FIR police had sent report to magistrate that they are not going to investigate the case)
• Under Section 159 Magistrate has discretion to either order the investigation or to conduct preliminary inquiry either by himself or through his junior, while under Section 156(3) the only option available to magistrate if he prima facie finds ingredients of cognizable offence is to order Investigation in pursuance of that police registers the FIR and starts the investigation. 
• The inquiry under Section 159 CrPC will not be wide as provided under Chapter dealing with inquiries. It is limited to inquiring about the presence of cognizable offence. After inquiry he can either accept the findings of the police or if he finds prima facie cognizable offence than he has two options, either to direct investigation by the police or to treat the case as a complaint case and move accordingly.

Authored by Harshit Sharma, Civil Judge cum Judicial Magistrate/Doctoral Candidate PhD at NLUJ.

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^[i] https://indiankanoon.org/doc/1291024/

^[ii] https://indiankanoon.org/doc/1149595/

^[iii] https://indiankanoon.org/doc/1412034/

^[iv] https://indiankanoon.org/doc/279174/

^[v] https://indiankanoon.org/doc/244234/

^[vi] Pala Singh & Anr vs State Of Punjab, 1972 AIR 2679, 1973 SCR (1) 964

^[vii] Sarju And Anr. vs The State Of West Bengal, 1961 CriLJ 71 (Calcutta High Court)

^[viii] 1970 SCR (3) 946

^[ix] SC, Criminal Appeal No.256 of 1969

^[x] [(2008) 2 SCC 409]