He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. If her complaint with the police was not responded or no proper action was taken then sh can approach the court with this application, let the court pass an order on this after that you can plan next action. The distinction between a police investigation ordered under section 156 3 and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Section 202 1 that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. As far as the Police is concerned, he can use S. The sub-stratum of the argument is that the requirement of prior sanction for prosecution against the public servant would arise only when cognizance is taken, while no such sanction was required at the stage of setting into motion an investigation under Section 156 3 of the Cr.
Thus, the discretion under S. Annie Jyothis vs State Of Kerala on 23 May, 2008 Kerala High Court 8. The ways in which such cognizance can be taken are set out in clauses a , b and c of Section 190 1. . 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. 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 should not ordinarily interfere.
But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. Section 5 of the Act authorises a Magistrate for the purpose of any investigation, or proceeding under the Code of Criminal Procedure to order any person to be produced or to attend at any time for his measurements or photograph to be taken, by a police officer, Similarly under section 129-A of the Bombay Prohibition Act, 1949, the Prohibition Officer is authorised to have a person suspected to be intoxicated, medically examined and have his blood tested for determining the percentage of alcohol therein. There is nothing illegal in doing so. The classification of Magistrates is given in the Code of Criminal Procedure,1973. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under section 173. It is pertinent to see that the word '' first'' is not used in Cr.
The should discourage the practice of filing a writ petition or petition under Section 482 Cr. I had half a mind to set the clock back and to quash the cognizance taken by the learned Magistrate and direct him to proceed from the stage of the complaint under Section 200, Cr. This affidavit can make the applicant more responsible. But this section has no application to the police officer and it will be noticed that S. I am astonished that Mr. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week.
Barring the statutory provisions that have been made which compel a person to produce information or evidence which may involve or incriminate himself, we have to construe that under S. The ways in which such cognizance can be taken are set out in clauses a , b and c of Section 190 1. For non-cognizable cases the police officer may arrest only after being duly authorized by a warrant. It is only in case of deciding that the material is not sufficient to take cognizance of the offence he may refer the matter to the police under S. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156 3 can be invoked by the Magistrate before he takes cognizance of the offence under S. From the above analysis it can be safely concluded that Anil Kumar Supra which was decided without considering a catena of Judgments which conclusively held that Section 156 3 is a pre-cognizance exercise which requires no sanction, is per incurium. This expression has not been defined in the Code.
When the competent authorities can grant or refuse sanction only after perusing the records of investigation, where is the question of producing the sanction at the time of ordering an investigation. Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. Act, a different import has to be read qua the power to be exercised under Section 156 3 of the Cr. Therefore, when once the Magistrate after scrutinising the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to S. This matter was considered in detail by this Court in the case of Chandan Vs. 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. This expression has not been defined in the Code.
The distinction between a police investigation ordered under section 156 3 and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Section 202 1 that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. 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. Advocate Prashnat Bhushan sought to question the view taken in Anil Kumar and in L. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. Further, if the accused does not have a right to install the investigation, but for the limited grounds available to him under the law, it surpasses all suppositions to comprehend that he possesses a right to resist registration of F. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. Rajesh Gandhi and another 1997 Cr.
The complaint was forwarded to the Superintendent of Police, Guntur, for investigation and report. I just have another query on the similar case as this case is of cheating and fraud. A Court white exercising revisional powers put itself into the position of the Court passing the impugned order and then examines the question and revises the order if need be. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. Related Articles The information provided on LawRato. It is also contended that the Magistrate did not take the complaint on file, but he referred the same to Police for investigation and report under S. The Hon'ble High Court of Andhra pradesh held as '' It is, however, unfortunate to note that the learned Magistrate proceeded under Section 156 3 , Cr.