Criminal Trial and Investigation

Investigation by Police

Under Section 156(3) of the Criminal Procedure Code (CrPC), a Judicial Magistrate, who is competent to take cognizance under Section 190, is empowered to order that an investigation be conducted as per the provisions of Section 156. This section presumes that the case in which the Magistrate exercises the power to direct an investigation must be one where the officer in charge of the concerned police station has the authority to commence an investigation under the provisions of Sections 156 and 157 of the CrPC.

  The power under Section 156(3) cannot be exercised in cases where the police officer is not permitted to commence an investigation under the same provisions. Unless the Magistrate is satisfied, based on the facts presented, that one or more cognizable offenses, which can be investigated by the Station House Officer (SHO) under Sections 156 and 157, appear to have been committed, the Magistrate cannot exercise powers under Section 156(3).

  If the power to direct an investigation is exercised in contravention of Section 156(3), the order would be without jurisdiction and would not confer any authority on the SHO to commence an investigation.

Judicial Findings

The Court of Detectives (C.O.D.) is not a police station, and the Magistrate lacks jurisdiction to refer matters under Section 156(3) directing the C.O.D. to investigate a private complaint. It is submitted that only a regular police station within the jurisdiction of the Magistrate can be directed to investigate an offense. The C.O.D. can only take up investigations referred to it by the Government.

  If a police officer fails to investigate for any reason, the Magistrate must refer the matter to the superior officer under whose administrative control the concerned police station falls. As per Notification/Standing Order No. 6.30 dated 21.4.1994, the establishment of the Criminal Investigation Department (C.I.D.), now known as C.O.D., mandates that investigations be taken up only under the direction of the Director General of Police upon considering an application.
 

Powers and Limitations under Section 156

• Under Section 156, the police have no power to conduct search and seizure without appropriate jurisdiction.
• If the Investigating Officer (I.O.) exceeds his jurisdiction by seizing property, such actions are liable to be quashed.
   

Even if the observations and findings of the Magistrate are quashed, the ultimate order to hand over custody of the property to the accused cannot be interfered with for two reasons:

• The complainant has filed a civil suit for damages, which is still pending.
• The accused has sought a consent order from the Court, where the notice of motion is to be heard and decided, ultimately determining who—between the complainant and the accused—is entitled to custody of the property.

The Magistrate's order is limited to the seized property and does not decide the rights of the parties to the said property.

  Relevant Case Law

• Mahant Baba Madhav Das v. State of Rajasthan
  
   

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073