The Power of The Magistrate Under Section 156 (3) of Cr.P.C

Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be kept in mind that, whether there is an implied power in the Magistrate under Section 156(3), Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not.
That too, an aggrieved person has right to claim that the offence he alleges be investigated properly. However, The Hon’ble Supreme Court held in CBI& another vs. Rajesh Gandhi and another 1997 Cr.L. J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency.

The Classification of Magistrates

Before discussing the powers of Magistrate under section 156 (3) of Cr.P.C, it is necessary to understand the categories of Magistrates in our country. The classification of Magistrates is given in the Code of Criminal Procedure,1973 [pdf]. It stipulates that in each sessions district, there shall be
· Executive Magistrates
· Judicial Magistrate of Second Class
· Judicial Magistrate of First Class; and
· The Chief Judicial Magistrate

In as much as section 156 (3) of Cr.P.C says that” Any Magistrate empowered under section 190 may order such an investigation as above mentioned”., we must understand section 190 of Cr.P.C.Let us see the relevant case law in order to know the power of Magistrate under section 156 (3) of Criminal Procedure Code,1973. 
– It has been held by The Hon’ble Apex Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L. J 63 (vide para 8) that” no one can insist that an offence be investigated by a particular agency”. This view was agreed in SakiriVasu vs State of U.P. And Others.
– In SakiriVasu vs State of U.P. And Others, it was further held that if a person has a grievance that the police station is not registering his FIR under Section 154, Cr.P.C., then he can approach the Superintendent of Police under Section 154(3), Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision to monitor the investigation to ensure a proper investigation.
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– Thus, in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed:
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 investigating 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.µ.
– The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT [1] (vide para 17).
It was also observed in Sakiri Vasu vs State of U.P. And Others that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

– Section 156 (3) states:

Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. 
The words `as above mentioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
– Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly and can monitor the same.
– The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report.
–  It was held that ”Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation”.- It was further held that ” It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution”.
– It was further held that” The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from the legislation. As Crawford observes in his Statutory Construction (3rd ed. page 267): -
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission µ. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein”.
Mr Harshit Kiran is Law student of Maharishi University of Information Technology, Noida Campus. He can be reached at harshitkiran27@gmail.com