SC Explains: Sec 156(3) & 202 CrPC and Power of Magistrate at Pre-Post Cognisance Stages, Read Judgment

29 May 2023

By : Jayanti Pahwa

The Supreme Court bench comprising of Hon'ble Mr. Justice M.R. Shah and Hon’ble Mr. Justice Sanjiv Khanna provided a detailed explanation of the nuances surrounding Section 156(3) and Section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) shedding light on the powers of the Magistrate during the pre-and post-cognizance stages.

The Apex Court stressed the role of the Magistrate in determining whether to issue directions under Section 156(3) or follow the procedure under Section 202. The Accused have the right to appear before the revisionary court when the Complainant challenges the rejection of an application under Section 156(3). The documents submitted by the accused before the High Court and Supreme Court should be forwarded to the Magistrate for examination. Additionally, the complainant has the right to question the genuineness and contents of those documents.

Brief Facts:

Respondent No. 1 lodged a complaint under Section 156(3) of the CrPC in the Court of the Chief Judicial Magistrate (hereinafter referred to as “CJM”). The complaint accused the Appellants of raping her at the residence of the original Accused No. 3, Kailash Vijayvargiya. It was alleged that complainant requested the police to investigate the matter and treat the complaint as a First Information Report.

In her complaint before the CJM, the Complainant claimed to be a member of the State Committee of the Bharatiya Janata Party in West Bengal. She stated that she had filed a written complaint against Amalendu Chattopadhyay at the Police Station, which led to the filing of a charge sheet against him. The complainant alleged that she was pressurised by the Appellants, who were national-level leaders of the party, to withdraw the case against Amalendu Chattopadhyay. The Appellants invited her to Kailash Vijayvargiya's apartment to discuss the matter but allegedly raped her against her will. She further claimed that she was threatened with dire consequences and subjected to physical assault and mental torture. She filed additional complaints against the Accused at different police stations.

Brief Background:

The Complainant's attempts to file a complaint with the local police station were unsuccessful, and she informed higher authorities about the alleged rape. Eventually, she reported the incident to the Officer in Charge of the Police Station and filed a complaint with the Deputy Commissioner of Police. Despite her complaints to various authorities, no FIR was registered, and no investigation was conducted. As a result, she applied under Section 156(3) CrPC in the CJM's court, seeking an order to register an FIR and investigate the matter.

The CJM dismissed the application, but the complainant filed a revision application before the High Court, challenging the CJM's order. The High Court allowed the revision application, and set aside the CJM's order. The High Court held that the police authority does not have the jurisdiction to verify the allegations during a preliminary inquiry and that the CJM erred in considering the truth and veracity of the allegations. The High Court remanded the matter to the CJM to reconsider the application filed by the complainant. The appellants, who are the alleged accused, are dissatisfied with the High Court's judgement and have filed appeals, seeking to overturn the order passed by the CJM and the High Court.

Contentions of the Appellants:

It was argued that the application was dismissed after verifying the truth and veracity of the allegations, considering the significant delay in filing the complaint and the absence of any previous allegations of rape. Further, the Station House Officer had conducted a preliminary inquiry and refused to register an FIR after receiving the complaint. The Appellants also highlighted the emails and messages sent by the Complainant to one of the Appellants, which they argued were inconsistent with her claim of rape. It was pointed out that the Complainant had filed multiple complaints against the Accused and others, but none of them mentioned the alleged rape incident.

Contentions of the Respondents:

It was argued that the Magistrate, during the application stage under Section 156(3) of the CrPC., does not have the authority to question the credibility of the complainant or the acceptability of the allegations. If the Magistrate is approached by the Complainant when the police officer has not registered the FIR, there should not be a contradiction between the duty of the police officer under Section 154(1) and the jurisdiction of the Magistrate under Section 156(3) at the pre-cognizance stage.

It was contended that if Magistrates were given the power to dismiss a complaint when they choose not to make a reference under Section 156(3), it would be akin to prematurely quashing the complaint without sufficient evidence to determine the credibility of the complainant. This would essentially grant the Magistrate the inherent powers conferred on the High Court under Section 482 of the CrPC. At Section 156(3) stage, the Magistrate lacks the necessary evidence to decide the credibility of the complainant or the acceptability of the allegations.

It was further stated that the CJM could have exercised discretion to direct the concerned police officer to register an FIR if the complaint revealed a cognizable offence. If the police officer does not register an FIR, and the Magistrate is satisfied, the complaint must be referred to the police station under Section 156(3) for FIR registration. Alternatively, if the Magistrate chooses not to refer the complaint under Section 156(3), they should proceed to the stage of Sections 200/202 of the Cr.P.C. and make an appropriate decision under Section 203 or 204 of the Cr.P.C. The complainant's petition, dated 27.10.2020, qualifies as a "complaint" under Section 2(d) of the Cr.P.C., giving the Magistrate the discretion to decide the appropriate action under Section 156(3) or Sections 200/202 of the Cr.P.C. based on the case's facts.

Observations of the Court:

Referring to the judgement in Gopal Das Sindhi and Others v. State of Assam and Another [AIR 1961 SC 986], the Supreme Court expounded that when a private complaint is filed, the Magistrate has the discretion to either take cognizance under Section 190 or direct a police investigation under Section 156(3) of CrPC. If the Magistrate opts not to proceed under Section 156(3), the Magistrate cannot simply dismiss the complaint but should consider alternative procedures such as examining the complainant on oath and conducting further investigation under Section 202. The High Court's decision to remand the matter to the judicial magistrate for further examination was deemed appropriate.

The decision of the Court:

The Supreme Court based on the aforementioned findings, dismissed the criminal appeals.

Case Title: Kailash Vijayvargiya v Rajlakshmi Chaudhuri and Ors.

Case No.: Criminal Appeal No. 1581 of 2021

Citation: 2023 Latest Caselaw 449 SC

Coram: Hon'ble Mr. Justice M.R. Shah and Hon’ble Mr. Justice Sanjiv Khanna

Advocates for Petitioners: Mr. Nachiketa Joshi AOR, Mr. Arvind Gupta AOR, Mr. Anil Kumar Sahu Adv., Mr. Mohit Bidhuri Adv., Mr. Mahesh Jethmalani Sr.Adv., Mr. Kabir Shankar Bose Adv., Mr. Amit Mishra, Adv. Mr. Surjendu Sankar Das, AOR Ms. Annie Mittal, Adv.

Advocates for Respondents: M/s. PLR Chambers And Co., AOR Mr. Rauf Rahim, AOR Mr. R. Basant, Sr. Adv. Ms. Astha Sharma, AOR Mr. Srisatya Mohanty, Adv. Ms. Anju Thomas, Adv. Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Mr. Shreyas Awasthi, Adv. Mr. Himanshu Chakravarty, Adv. Ms. Ripul Swati Kumari, Adv. Mr. Bhanu Mishra, Adv. Mr. Devvrat Singh, Adv. Ms. Muskan Surana, Adv.

Read Judgement @LatestLaws.com

Picture Source :

Jayanti Pahwa