Saturday, November 15, 2014

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

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

Published : June 01, 2012 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 30886 | Rating
YSRAO JUDGE & Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M

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

The information under section 154 of Cr.P.C is generally known as F.I.R. It is pertinent to see that the word '' first'' is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who is a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under sub-section 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it is discussed with relevant case law as to the powers of Magistrate under section of 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 crept 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. 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

Inasmuch 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 Sakiri Vasu vs State Of U.P. And Others.

- In Sakiri Vasu 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 monitor the investigation to ensure a proper investigation.

- 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.

- 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, vide State of Bihar vs. A.C. Saldanna.

- - It was further 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 legislation. As Crawford observes in his Statutory Construction (3rd edn. 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''.

- In Savitri vs. Govind Singh Rawat[3] the Hon'ble Supreme Court held that the power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

- The Hon'ble Supreme Court has affirmed the doctrine of implied powers are Union of India vs. Paras Laminates AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996 (11) SCC 23, J.K. Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC 3527, State of Karnataka vs. Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p. 432); Savitri vs. Govind Singh Rawat, and ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, etc. On observing the above rulings, in Sakiri Vasu vs State Of U.P. And Others, the Hon'ble Supreme Court held that although Section 156(3) is very briefly worded, 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. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C. And it was held that they are implied in the above provision.

-In Sakiri Vasu vs State Of U.P. And Others, it was further held that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. And further held that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

- it was further that ''If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?''

- And also held that '' the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.''

Thursday, November 6, 2014

OOPPSsss JUSTICE! 
NA-BABA-NA, - ITS FOR HIGH AND MIGHTY ONLY!!?

https://t.co/6txz6mwv6N

Sunday, December 30, 2012


30 Decenber 2012

Dear Ms. Namita Bhandare,
No-reply@change.org

Namaskaram & I won't wish any other greetings
while the nation is mourning. 

RE: YOUR PETITION 'STOP RAPE NOW!'
(see: http://www.change.org/en-IN/petitions/president-cji-stop-rape-now)

While I appreciate your efforts to sensitize the people at the helm towards the need to restoring the dignity and honour of the Women in India, and I have signed it just honoring your request. 

But I consider that this effort is futile, as there is no material in your petition. This is just another outburst in wake of the recent incident. hundreds of such petitions are taking round and everybody is trying to just pay his "Ahuti" (to be counted that you were also there in the mass-movement) No, you are not there, you are just the gathering that makes ”a movement” just the “crowd”) in the mass movement started by the youth of the Delhi and the country. 

As you wrote in your petition, "The National Crime Records Bureau records 572 rapes reported from Delhi for the year 2011. This year 635 rapes had already been reported as of December 15, 2012, Rape is not a problem that afflicts Delhi alone. In recent months, we have seen a rising crime graph against women being reported from virtually every corner of the country including Haryana, Kerala and Bangalore."  This clearly shows that even Change.org was not sensitized till the common people came to the roads. Why the Change.org not jumped to its feet at the report of first rape?

I do not claim that I am not a person who is in slumber and also insensitive to wards happening in our society. But I am making small efforts in my own earnest way to educate the individual members of the society of their rights and to help them in their individual fight against the system. I do not want to hog to limelight by arousing public sentiments. 

The Verma Commission you are going to visit tomorrow, what material you have to submit? Only the emotions!!. I feel you will waste the time of Verma Commission as well as yours.  The Verma Commission is a fact finding commission and has a mandate to suggest the government some strong measures to deal with such situations and to suggest amendments to the law and procedures. 

I do not know what your credentials are? And what you want to do afterwards. 

The best you can do is to meet the MPs and MLAs and stir their conscious. Do you know 260 MPs, from all political parties, in parliament are implicated in cases involving crime against women including rape charges? Go to them and ask them to resign. Go to their leadership and ask them to remove them from the party. 

Ask the Political Parties to give more representation to Women in governance, in polity and in the forums that are there in domination of men’s chauvinism. 

Ask the Government to give the teeth to the Women Commissions so that they may supervise and direct the investigation and prosecution agencies in the right directing and effectively participate in speedy as well as just justice to the victims. 

While I offer my apology for writing to you like this, and I do not even know if you will ever get to see this communication (as you do not have any return email address or a mailing address), I hope that I am able to convey you what I meant, in case you get this. Thanks. 

     
Thanking you

Very cordially yours,


Surendera M. Bhanot
Coordinator
+919-888-810-811/Mobile

Saturday, December 8, 2012

PROTECTION TO WHISTLE BLOWERS AND RTI ACTIVISTS

POLICY FOR PROTECTION OF WHISTLE BLOWERS AND RTI ACTIVISTS


Dear RTI Activists,

Punjab Government as well as Haryana Government have releases policies for the protection of the Whistle Blowers and RTI Activists in their respective states, the wake of Punjab and Haryana High Court Directives in CWP 832 of 2012. 

The Punjab Government Policy can be viewed at : http://www.scribd.com/doc/111901329/Whistle-Blowers-Policy-of-Punjab-CWP-No-832-of-2012

The Haryana Government Policy can be seen at : http://www.scribd.com/doc/111901720/Whistle-Blower-Policy-of-Haryana-Government

Please follow the procedure, as laid down in the policies, in case of any threat preception. 

You can also contact RTIFED for further assistance or email me

Friday, December 7, 2012


Miracle at PSIC Website


TOMORROW ORDERS TODAY – MIRACLE AT PUNJAB STATE INFORMATION COMMISSION WEBSITE


Now you can get your passed and uploaded on the website of the Punjab State Information Commission website even a day before they are passed.

This has happened. The order dated 08 December 2012 passed by an Hon’ble Information Commissioner of Punjab State Information Commission has been uploaded on today on 07 December 2012 at http://www.infocommpunjab.com/Orders2012.aspx . The Screen-shot of this page taken at 08:58 p.m. on 07 December 2012 is attached with the message, wherein it clearly shows a top most entry that the orderis dated 08 December 2012. What’s more, even the date of the orders passed in 16 (sixteen) cases is also 08 December 2012. The 16 (sixteen) cases in which these orders have been passed are :

  1. CC No. 2586 of 2012
  2. AC No. 1225 of 2012
  3. CC No. 2592 of 2012
  4. CC No. 2588 of 2012
  5. CC No. 2587 of 2012
  6. AC No. 1223 of 2012
  7. AC No. 1224 of 2012
  8. CC No. 2833 of 2012
  9. CC No. 2843 of 2012
  10. CC No. 2850 of 2012
  11. CC No. 2809 of 2012
  12. CC No. 2874 of 2012
  13. CC No. 2858 of 2012
  14. CC No. 2840 of 2012
  15. AC No. 1319 of 2012
  16. CC No. 2851 of 2012

The MSWord file , downloaded on 08:48 pm on 07 December 2012, comprising of 15 (fifteen) pages containing the orders in above mentioned 16 (sixteen) cases is also attached for your perusal, bears the date of 08 December 2012 on all the 16 (sixteen) orders. The PDF version this Word File is also attached.

Interestingly, the 08 December 2012 is a Saturday and is a weekly off at the commission.

Strange things are happening at the Punjab State Information Commission. God save the Appellants and Complainants.




please visit this link TO VIEW THE ATTACHMENTS: 

http://www.rtiindia.org/forum/107476-tomorrow-orders-today-miracle-punjab-state-information-commission-website.html#post261659



Friday, November 16, 2012

The condition of fitness of the firemen in active Fire-Service is appalling.

The other day I received an email from Brigadier DS Grewal, the contents of which are reproduced below.

"Dear Mr Bhanot,
Greetings of the day.

You may recall, about two months back, I had forwarded you my correspondence with regards to my RTI Application on Fire Fighting Arrangements by the Fire Department, under the aegis of Municipal Corporation of Chandigarh. In their response to one of my queries on the fitness of the fire brigade Personnel, they had stated that everyone is fit as a fiddle though they have never organised any periodic medical or any training for these personnel.

I have received a letter from some Baljinder Singh at Chandigarh pointing out things to the contrary. As I am at Dubai presently, my wife scanned the letter and forwarded to me. I am forwarding the same to you for what ever it is worth. Not only I but all the citizens of the TRI-CITY will be eternally grateful to you if appropriate action is taken by you.
Fond Regards,
Brigadier DS Grewal
971 529101033"


The attachment to the email can be seen by clicking here:http://www.scribd.com/doc/113510753/Chandigarh-Fire-Department-SCAN-DOC