It cannot be overemphasized that in a very significant development, we saw how the Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice Sanjiv Khanna in a remarkable, rational, refreshing and recent judgment titled Kailash Vijayvargiya vs Rajlakshmi Chaudhuri and others in Criminal Appeal No. 1581 of 2021 With Criminal Appeal Nos. 1582 and 1583 of 2021 that was pronounced as recently as on May 4, 2023 in exercise of its criminal appellate jurisdiction has explained the distinction between the power of a Magistrate to direct registration of an FIR and investigation at a pre-cognizance stage under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) and the proceedings under Chapter XV (Complaints to Magistrate) after the taking of cognizance.

The Court observed that the power under the 156(3) of CrPC is to be exercised on receiving a complaint or a Police report or information from any person other than the Police Officer or upon his own knowledge before he takes cognizance under Section 190. In addition, the Court also explained that once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202 of CrPC.

At the very outset, this learned, laudable, landmark and latest judgment authored by Hon’ble Mr Justice MR Shah for a Bench of the Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice Sanjiv Khanna sets the ball in motion by first and foremost putting forth in para 1 that:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.10.2021 passed by the High Court of Calcutta in Criminal Revision Application No. 92/2021, by which the High Court has allowed the said revision application preferred by respondent no.1 herein - original complainant (victim) and has quashed and set aside order dated 12.11.2020 passed by the learned Chief Judicial Magistrate, Alipore (for short, ‘learned CJM’) rejecting the petition filed by respondent no.1 herein - original complainant under Section 156(3) of the Code of Criminal Procedure,1973 (Code/Cr.PC) original respondent nos. 2 to 4 (alleged accused) have preferred the present appeals.

To put things in perspective, the Bench envisages in para 2 that:
The facts leading the present appeals in a nutshell are as under:

That respondent no.1 herein - original complainant lodged a complaint under Section 156(3) Cr.P.C. in the Court of learned CJM, making allegations against the appellants herein alleging that she was raped by all the three appellants on 29.11.2018 at about 5:00 p.m. at the residence of original accused no.3 - Kailash Vijayvargiya, when she was invited to discuss another Crime No. 1 of 2018 registered against their colleagues filed by her. That it was prayed to direct the Officer in Charge of Bhowanipore Police Station to start investigation into the matter after treating the complaint as an FIR.

2.1 It was the case on behalf of the complainant in the complaint before the learned CJM that she was a member of the State Committee of the Bharatiya Janata Party in the State of West Bengal. As a person involved in active politics, she has acquaintance with the leaders of the State at national level. On the allegation of rape, she filed a written complaint before the Officer in Charge, Behala (Woman) Police Station against one Amalendu Chattopadhyay.

The said complaint was registered as Case No. 01/2018 dated 31/08/2018 under Sections 417/376/406/313/120B IPC. The investigation of the said case resulted in filing of the charge sheet against the above-named Amalendu Chattopadhyay. It was further alleged that since the filing of the charge sheet, she was pressurised by the appellants, namely, Pradeep Joshi, Jishnu Basu and Kailash Vijayvargiya, national level leaders of the said party to withdraw the case against Amalendu Chattopadhyay.

On the pretext of having a discussion over the said matter, the appellants asked her to come at the residential apartment of accused - Kailash Vijayvargiya. It was further alleged in the complaint that she tried to inform the matter to the Officer in Charge of the Bhowanipore Police Station but the police suggested her to meet them in response to such call. That she went to the residential apartment of the accused - Kailash Vijayvargiya on 29.11.2018 at about 5:00 p.m. The other accused were present in the said apartment from before. It was further alleged that the appellants committed rape upon her against her will one by one. Therefore, it was alleged that she became the victim of libido of the leaders of the said political party occupying position at national level.

It was further alleged in the complaint that after the incident she was threatened with dire consequences. She was threatened by the appellants that in the event she takes any legal steps against them, her son would also be killed. It was further alleged that subsequently also she was subjected to physical assault and mental torture and she lodged complaints against the accused before different police stations, such as, Sarsuna P.S. Case No. 131/2019 under Sections 341/506(ii)/34 IPC and Bolpur P.S. Case No. 89/2020 under Sections 341/323/325/506/34 IPC.

It was further alleged and so stated in the complaint that over the incident dated 29.11.2018, she tried to make the complaint with the local police station but police refused to accept such complaint from her. She also informed the matter to the higher authorities of the police but they also failed to take any action against the accused by registering an FIR. It appears that the respondent informed the Officer in Charge of Behala Police Station on 14.08.2020 about the alleged rape by the accused persons allegedly on 9.8.2018.

2.2 She filed a complaint before the DCP (South Division), 34, Park Street, Kolkata on 5.10.2020. According to her, she filed a written complaint before the concerned police station, i.e., P.S. Bhowanipore on 27.10.2020. She filed another complaint to the Deputy Commissioner of Police on 04.11.2020. According to the complainant, despite the aforesaid complaints to the various authorities making specific allegations against the accused persons having committed a rape upon her on 29.11.2018, FIR has not been lodged and no investigation has been carried out and therefore she filed an application in the Court of the learned CJM, Alipore under Section 156(3) Cr.P.C. on 12.11.2020 and requested to direct the concerned police officer to register an FIR and investigate into the matter.

2.3 That the learned CJM, by a detailed order dated 12.11.2020 and after giving cogent reasons, dismissed the said application under Section 156(3) Cr.P.C.

2.4 Feeling aggrieved and dissatisfied with the order passed by the learned CJM, dismissing the application under Section 156(3) Cr.P.C. filed by the complainant, the complainant preferred Revision Application before the High Court being Criminal Revision Application No. 92/2021. By the impugned judgment and order, the High Court has allowed the said revision application and has quashed and set aside order dated 12.11.2020 passed by the learned CJM, dismissing the application under Section 156(3) Cr.P.C., mainly relying upon the decision of this Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others, reported in (2014) 2 SCC 1 and holding that as held by this Court in the case of Lalita Kumari (supra), the police authority in case of preliminary inquiry prior to the registration of a case concerning cognizable offence, has no jurisdiction to verify the veracity of the allegations and therefore a Magistrate cannot verify the truth and veracity of the allegations contained in the application under Section 156(3) Cr.P.C. and therefore the learned CJM acted contrary to the law laid down by this Court in the case of Lalita Kumari (supra), while entering into the truth and veracity of the allegations. It has been further held that the learned CJM ought not to have dismissed the application under Section 156(3) Cr.P.C. on the ground that there was a delay of two years in lodging the complaint, which aspect can be considered only at the time of trial.

2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, quashing and setting aside the order passed by the learned CJM dated 12.11.2020 dismissing the application under Section 156(3) Cr.P.C. and remanding the matter to the learned CJM to reconsider the application filed by the complainant under Section 156(3) Cr.P.C. in light of the observations made in the impugned judgment and order and pass a reasoned order, the original respondents - alleged accused have preferred the present appeals.

Most remarkably, the Bench points out in para 25 that:
A three Judge Bench decision of this Court in Ramdev Food Products Private Limited (supra) had examined the distinction between powers of the Magistrate to direct registration of an FIR under Section 156(3) and power of the Magistrate to proceed under Section 202 of the Code. It was observed that the power under the former Section is to be exercised, on receiving a complaint or a Police report or information from any person other than the Police officer or upon his own knowledge, before he takes cognizance under Section 190.

Once the Magistrate takes cognizance, the Magistrate has discretion to take recourse to his powers under Section 202, which provides for postponement of the issue of process and inquire into the case himself or direct investigation to be made by a Police officer or by such other person as he thinks fit for the purpose of deciding whether or not there are sufficient grounds for proceedings.

The proviso to Section 202 states that no direction for investigation shall be made where a complaint has not been made by a Court, unless the complainant and the witnesses present (if any) are examined on oath under Section 200. When it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. However, in such cases, the Magistrate cannot issue direction for investigation of an offence. Thus, the Magistrate has the power, when a written complaint is made, to issue direction under Section 156(3), but this power is to be exercised before the Magistrate takes cognizance of the offence under Section 190.

However, in both cases, whether under Section 156(3) or under Section 202 of the Code, the person accused as the perpetrator, when the proceedings are pending before the Magistrate, remains unrepresented. Under Section 203, the Magistrate, after considering the statement of the complainant and witnesses (if any) on oath and the result of an inquiry (if any) under Section 202, can dismiss the complaint if he is of the opinion that there is no sufficient ground for proceeding and in every such case briefly record his reasons.

If the Magistrate after taking cognizance of the offence, is of the opinion that there are sufficient grounds for proceeding he will issue the process to the accused for appearance as per the procedure and mode specified under Section 204 of the Code. Process to the accused under Section 204 falls under Chapter XVI of the Code and is issued post the cognizance and inquiry/investigation/evidence recorded in a private complaint in terms of Section 202 of the Code.

Most significantly, the Bench points out in para 36 that:
The State of West Bengal has drawn our attention to the judgment of this Court in Gopal Das Sindhi and Others v. State of Assam and Another, AIR 1961 SC 986 to the effect that even when a private complaint is filed, the Magistrate is not bound to take cognizance under Section 190 as the word used therein is ‘may’, which should not be construed as ‘must’ for obvious reasons. The Magistrate may well exercise discretion in sending such complaint under Section 156(3) to the police for investigation. However, when a Magistrate chooses not to proceed under Section 156(3), he cannot simply dismiss the complaint if he finds that resorting to Section 156(3) is not advisable. Reference in this regard can also be made to Suresh Chand Jain v. State of M.P. and another, (2001) 2 SCC 628 which distinguishes between the power of the police to investigate under Section 156, the direction of the Magistrate for investigation under Section 156(3) and post-summoning inquiry and investigation after cognizance under Section 190 and Section 202 of the Code.

When a Magistrate orders investigation under Section 156(3), he does so before cognizance of the offence. If he takes cognizance, he needs to follow the procedure envisaged in Chapter XV (see Afaq Jahan (supra).

The decision in Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and Others, (2011) 3 SCC 496 is rather succinct. This Court held that 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.

Be it noted, the Bench then observes in para 37 that:
We do not intend to go into the question of the merits of the allegations, and what procedure the Magistrate should follow 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.

It is worth noting that the Bench then notes in para 38 that:
We were informed that 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. In terms of the judgments of this 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 (supra).

Most rationally, the Bench then hastens to add in para 39 that:
We would refrain and not comment on the allegations made as this may affect the case put up by either side. 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.

As a corollary, the Bench then holds in para 40 specifying that:
In view of the above and for the reasons stated above, while affirming the impugned judgment and order passed by the High Court remanding the matter back to the learned Magistrate, we set aside the subsequent order passed by the Magistrate on remand, pursuant to the impugned judgment and order passed by the High Court and remit the matter back to the learned 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 (supra). Copies of the papers and documents filed before the High Court and this Court could also be forwarded and brought on record of the Magistrate, who would thereupon examine and consider the matter. As observed hereinabove, the complainant/informant would be entitled to question the genuineness of the contents of the said documents.

Finally, the Bench concludes by holding in para 41 that:
The present appeals stand disposed of in terms of the above.

In sum, we thus see that the Apex Court has so very well explained the differences between the powers of Magistrates at pre-cognizance stages under Section 156(3) of CrPC and post-cognizance stages under Section 202 of CrPC. There is thus no scope for ambiguity of any kind. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh