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Showing contexts for: section 156 crpc in Lalaram vs State Of U.P. And 13 Others on 18 December, 2020Matching Fragments
"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."
28. In "Anil Kumar versus M.K. Aiyappa and another (2013) 10 SCC 705 the Hon'ble Supreme Court also examined if the Magistrate, while exercising powers under Section 156 (3) Cr.P.C. could act in a mechanical or casual manner and go on with the complaint after getting the reports and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind and the application of mind by the Magistrate should be reflected in the order. The Mere statement that he had 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) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar vs. M.K. Aiyappa[5], it was observed :
"11. The scope of Section 156(3) CrPC 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 jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, 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) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
39. Power of the Magistrate to order investigation by police under Section 156(3) Cr.P.C. is at pre-cognizance stage whereas the power to order police investigation under Section 202(1) Cr.P.C. is at a post-cognizance stage. The police report of the investigation in pursuance of direction under Section 156(3) Cr.P.C. is for the purpose of taking cognizance whereas the report of the police investigation in pursuance of the direction under Section 202(1) Cr.P.C. is for the purposes of satisfying the Magistrate, if a case for proceeding further against the accused persons is made out or not After the Magistrate takes cognizance on the application under Section 156(3) Cr.P.C. without ordering for police investigation, he cannot return back to the stage of Section 156(3) Cr.P.C. as that is a pre-cognizance stage. But, if the Magistrate did not order for police investigation under Section 156(3) Cr.P.C. and took cognizance of the case, that would not be bar to the exercise of the power of the Magistrate for directing the police investigation under Section 202(1) Cr.P.C. which is with a different object of proceeding further in the matter. So, in a case where the Magistrate has declined for police investigation under Section 156(3) Cr.P.C. and had taken cognizance treating the application as a complaint case, that would not come in the way of the Magistrate in passing the order for police investigation under Section 202(1) Cr.P.C. Any observation in the order of the Magistrate while taking cognizance of application under Section 156(3) Cr.P.C. as a complaint case, that there is no need of police investigation and directing the complainant to get the statement recorded under Section 200 Cr.P.C. shall only mean that no police investigation was needed for the purpose of taking cognizance.
(40.14). Once cognizance is taken on the application under Section 156(3) Cr.P.C. by the Magistrate and he embarks upon the procedure embodied in Chapter XV, he would not be competent to revert to the pre-cognizance stage under Section 156(3) Cr.P.C.
(40.15). If the Magistrate did not order for police investigation under Section 156(3) Cr.P.C. and took cognizance of the case, that would not be bar to the exercise of the power of the Magistrate for directing the police investigation under Section 202(1) Cr.P.C.