Kailash Vijayvargiya vs Rajlakshmi Chaudhuri and Others

s. 156(3) – Police officer’s power to investigate cognizable case – Application u/s. 156(3) by the victim-complainant alleging rape by the appellants; and sought direction to police to investigate the matter treating the complaint as an FIR – Prior to filing of the said application, the victim filed several complaints before the police authorities, who conducted an enquiry and found that there was delay of two years in filing the complaint and refused to register the same – Dismissal of the application u/s. 156(3) by the Magistrate – Revision application thereagainst, allowed by the High Court, setting aside the order of the Magistrate holding that the Magistrate at that stage could not verify the veracity of allegations – Issuance of direction to the Magistrate to re-consider the application u/s. 156(3) – On remand, the Magistrate passed an order u/s. 156(3) directing registration of the FIR – On appeal, held: It is impermissible and contrary to law to adjudicate on merits the allegations and determine the facts as baseless, without further scrutiny and examination – Thus, the High Court was correct in remitting the matter to the Magistrate for further examination – Magistrate, while passing a subsequent order u/s. 156(3) directing registration of the FIR, misread the order and directions given by the High Court – Magistrate was required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions u/s. 156(3) or whether he should take cognizance and follow the procedure u/s. 202 – He could also direct a preliminary inquiry by the Police – In view thereof, the order passed by the High Court remanding the matter back to the Magistrate is upheld – The subsequent order passed by the Magistrate on remand, directing registration of FIR is remitted back to the Magistrate to apply his judicial mind and exercise the discretion u/s. 156(3) or to take cognizance u/s. 202 of the Code. ss. 156 (3) and 202 – Power of the Magistrate to direct investigation at pre-cognizance u/s. 156(3) and post-cognizance stages u/ss. 200-210 – Distinction between – Held: Power u/s.156(3) is to be exercised before the Magistrate takes cognizance u/s. 190 – Once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers u/s. 202 – Magistrate exercises a very limited power u/s.156(3) whereas, u/s. 202, the Magistrate can analyse the veracity of the complaint made and appreciate whether there are grounds to proceed further. Disposing of the appeals, the Court

HELD: 1.1 The invocation of power under Section 156(3) CrPC is wider as held in Priyanka Srivastava’s case , yet there are limits within which the Magistrate must act. When the Magistrate is satisfied that the allegations made disclose commission of a cognizable offence, he must stay his hands, direct registration of an FIR and leave it to the investigative agency to unearth the facts and ascertain the truth of the allegations. The Magistrate in terms of the ratio in Lalita Kumari’s case can for good reasons direct preliminary enquiry. [Para 22][164-F-H]

1.2. The operandi for registration of information in a cognizable offence and eventual investigation is not limited to Police, and sub-section (3) to Section 156, subject to legal stipulations, gives the ameliorating power to a Magistrate empowered under Section 190 to order an investigation in a cognizable offence. Two different powers vested with two distinct authorities, namely the Police and the Magistrate, who discharge distinct functions and roles under the Code as indicated above are not entirely imbricating. The power of Magistrate to direct investigation falls under two limbs of the Code: one is precognizance stage under Section 156(3), and another on cognizance under Chapter XIV (‘Conditions Requisite for Initiation of Proceedings’; Sections 190-199) read with Chapter XV (‘Complaints to Magistrates’; Sections 200-210). These two powers are different and there also lies a procedural distinction between the two. [Para 23, 24][165-B-D]

1.3. The direction for registration of an FIR should not be issued in a routine manner. The Magistrate is required to apply his mind and exercise his discretion in a judicious manner. If the Magistrate finds that the allegations made before him disclose commission of a cognizable offence, he can forward the complaint to the Police for investigation under Section 156 and thereby save valuable time of the Magistrate from being wasted in inquiry as it is primarily the duty of the Police to investigate. However, the Magistrate also has the power to take cognizance and take recourse to procedure under Section 202 of the Code and postpone the issue of process where the Magistrate is yet to determine existence of sufficient ground to proceed. In a third category of cases, the Court may not take cognizance or direct registration of an FIR, but direct preliminary inquiry in terms of the dictum in Lalita Kumari’s case. [Para 27][167-D-F]

1.4 In the instant case, the preliminary inquiries conclude that in the communications made to the police between 2018 to 2020, there is no allegation that rape took place on 29 th November 2018. As per the report the complainant had failed to give any logical and satisfactory account for the delay in lodging the complaint. The accused assert that the complaint is an abuse of the process of law and has been filed to put pressure on the accused in view of the rape case filed by her against the third person. At the same time, it is noticeable that the complainant/informant has made several allegations of rape, sexual harassment, etc. against persons with whom she had been acquainted and working. The complainant/informant has pleaded threat and harassment at the hands of the persons named as perpetrators, who are people of influence and power as the ground and reason for delay. She pleads that period of limitation prescribed in section

468 of the Code does not apply to an offence punishable with imprisonment exceeding three years. While examining the question of delay in making the complaint, the courts must remain alive to the fact that it is difficult for a woman to come forward and make a statement alleging rape or sexual assault. [Paras 33 and 34][171-B-F]

1.5 Every criminal case, it is stated, is a voyage of discovery in which truth is the quest. Right from the inception of the judicial system, it has been accepted that discovery, vindication and establishment of truth are the primary purposes underlying the existence of the courts of justice. However, the supremacy of truth is easier to assert than to define. Often this task becomes difficult when contradictory factual positions are asserted duly supported and affirmed on oath. In adversarial systems, the process of ascertaining truth requires compliance of procedures and rules of evidence, and limit the role of the adjudicator, in acting as an investigator to verify veracity of the allegations and counter-allegations till evidence and material is laid and examined as per codified procedural law. Yet it is believed that clash of adversaries is best calculated to getting out the facts. In a welldesigned system, judicial findings of formal legal truth should coincide with the substantive truth. This can happen when the facts as asserted by the contestants are skilfully explored in accordance with the procedure prescribed by law. Abuse of law must be checked, if possible, at the very threshold, albeit when it is possible and also as per the procedure prescribed by law. [Para 35][171-F-H; 172-A-B]

1.6. When a complaint is presented before a Magistrate, he has two options. One is to pass an order contemplated by Section 156(3). The second one is to direct examination of the complainant on oath and the witness present, and proceed further in the manner provided by Section 202. An order under Section 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise its plenary power of investigation under Section 156(1). However, once the Magistrate has taken cognizance under Section 190 of the Code, he cannot ask for an investigation by the Police. After cognizance has been taken, if the Magistrate wants any investigation, it will be under Section 202, whose purpose is to ascertain whether there is prima facie case against the person accused of the offence and to prevent issue of process in a false or vexatious complaint intended to harass the person named. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further. [Para 36][173-B-D]

1.7 The question of the merits of the allegations, and what procedure the Magistrate should follow is not gone into as this is an aspect which the Magistrate must first consider and decide judiciously and as per the law. What is impermissible and contrary to law is an adjudication on merits of the allegations and determination of the facts as baseless, without further scrutiny and examination. Therefore, the High Court was correct in remitting the matter to the judicial magistrate for further examination. [Para 37][173-E-F]

1.8 The Magistrate, on remand, has passed an order under Section 156(3) directing registration of the FIR. He has misread the order and directions given by the High Court. The Magistrate is required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions under Section 156(3) or whether he should take cognizance and follow the procedure under Section 202. He can also direct a preliminary inquiry by the Police in terms of the law laid down by this Court in Lalita Kumari’s case. [Para 38][173-G]

1.9 The accused do not have any right to appear before the Magistrate before summons are issued. However, the law gives them a right to appear before the revisionary court in proceedings, when the complainant challenges the order rejecting an application under section 156(3) of the Code. The appellants, therefore, had appeared before the High Court and contested the proceedings. They have filed several papers and documents before the High Court and this Court. To be fair to them, the copies of the papers and documents filed before the High Court and this Court would also be forwarded and kept on record of the Magistrate who would, thereupon, examine and consider the matter. However, the complainant/informant would be entitled to question the genuineness and the contents of the said documents. [Para 39][174-A-C]

1.10. In view thereof, while affirming the impugned judgment and order passed by the High Court remanding the matter back to the Magistrate, the subsequent order passed by the Magistrate on remand, pursuant to the impugned judgment and order passed by the High Court is set aside and the matter is remitted back to the Magistrate to examine and apply his judicial mind and then exercise discretion whether or not to issue directions under section 156(3) or whether he can take cognizance and follow the procedure under section 202. He can also direct the preliminary enquiry by the police in terms of the law laid down by this Court in the case of Lalita Kumari. [Para 40][174-D-E] Lalita Kumari v. Government of Uttar Pradesh and Others (2014) 2 SCC 1 : [2013] 14 SCR 713 – followed. Priyanka Srivastava v. State of Uttar Pradesh (2015) 6 SCC 287 : [2015] 4 SCR 108 – relied on.

Mukul Roy v. The State of West Bengal 2018 SCC Online Cal. 4861; Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 : [2007] 9 SCR 1113; Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869; Ramdev Food Products Private Limited v. State of Gujarat (2015) 6 SCC 439 : [2015] 5 SCR 283; Suresh Kankra v. State of U.P. & Another (Criminal Appeal No. 52/2022, decided on 07.01.2022); Srinivas Gundluri and Others v. SEPCO Electric Power

Construction Corporation (2010) 8 SCC 206; Anju Chaudhary v. State of U.P. (2013) 6 SCC 384 : [2012]

13 SCR 901; Assistant Collector of Customs, Bombay v. L.R. Melwani AIR 1970 SC 962 : [1969] SCR 438; Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5 SCC 435; Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 : [1967] SCR 668; State of Haryana and Others v. Bhajan Lal and Others, (1992) 1 Supp SCC 335 : [1990] 3 Suppl. SCR 259; Mohd. Yusuf v. Afaq Jahan (Smt) and Another (2006) 1 SCC 627 : [2006] 1 SCR 1; HDFC Securities Ltd. v. State of Maharashtra (2017)

1 SCC 640 : [2016] 8 SCR 968; Chandra Deo Singh v. Prokash Chandra Bose Alias Chabi Bose and Another AIR 1963 SC 1430 : [1964] SCR 639; Jasraj Inder Singh v. Hemraj Multanchand (1977) 2 SCC 155 : [1977] 2 SCR 973; Gopal Das Sindhi and Others v. State of Assam and Another AIR 1961 SC 986; Suresh Chand Jain v. State of M.P. and Another (2001) 2 SCC

628 : [2001] 1 SCR 257; Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Others (2011) 3 SCC 496 : [2011] 2 SCR 413 – referred to.