Registration of FIR and the 'necessity' test for Section 156(3) CrPC / 175(3) BNSS

A judgment delivered on 16.01.2025 by a Division Bench of the Supreme Court in Om Prakash Ambadkar [2025 IINSC 139] has garnered attention as it appears to be the first judgment to cursorily look at the set of provisions under the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] dealing with powers of courts to direct registration of First Information Reports [FIR].

For the uninitiated, the FIR is the genesis of police investigations in India. It is a formal document created at the start of a case, which is supported to reflect the 'first information' of the commission of a crime that is received by police. Not all crime, mind you, but 'cognizable' crime — that category of crimes which the law empowers the police to start investigating without need of any prior judicial permission. For a list of such crimes, please turn to the Schedules in the Criminal Procedure Code 1973 [Cr.P.C.] or BNSS.

In the silly belief that legal procedures are automatons which just automatically spring into life when the need arises, we think that commission of a crime will automatically result in registration of the FIR. Much like every other legal procedure, registration of an FIR is also a site of exercising power. What amplifies this dynamic is the seismic significance the FIR can have on the life of a person arraigned as an accused in the document. 

For starters, police now has the power to arrest this person. Since many cognizable crimes are also non-bailable, arrest may be accompanied by prolonged detention. Then there are the collateral consequences, such as difficulties in applying for, let alone getting, government jobs or identification. In other words, having an FIR registered against a person can dramatically alter their life for the worse, which places the police officer in a highly sought-after position as the official who wields the power to cause such a transformative change for the worse.    

This is just one perspective. There is the other, equally important perspective, of how the registration of an FIR alters the life of the police officials as well. There is a mountain of work which follows. There are far too few police officials and far too many cases. Adding one more mountain to your existing range is not an enviable choice. Many disputes genuinely do not require the full weight of the state to be brought for the purpose of finding a resolution, which is what a lot of investigations can reduce themselves to anyway. All in all, registration of an FIR is far from an automatic process. 

The problem, however, is that the law on paper refuses to recognise this lived reality. A key contributor to this problem has been the Janus-faced judgment of a Constitution Bench of the Supreme Court in Lalita Kumari (2013) (discussed on the Blog on multiple occasions). This precise issue — whether an FIR must be registered whenever police receive information of a cognizable crime, or do police officials have some discretion in the matter — was heard by the Court, and it gave a lengthy and horribly equivocal judgment. So much so that today, lawyers who argue for mandatory registration of FIRs as well as against mandatory registration of FIRs both turn to Lalita Kumari in support of their positions!  

This schism causes downstream effects. Law recognises that failure to register FIRs can cause prejudice to a victim, and so we had Section 156(3) CrPC, and now Section 175(3) BNSS, which confer powers upon magistrates to direct registration of FIR if the police has failed to act. If the law on paper says that every case where information received suggests a cognizable crime is committed must lead to registration of FIR, it means that the law on paper also says that where the magistrate finds that the police have failed to act upon receiving such information, the magistrate must direct registration of FIR. 

The judgment in Om Prakash hints at such an outcome being quite unpalatable as a judicial approach, and possibly illegal in the wake of the slight modifications to this area of law brought about by the BNSS. In asking magistrates to not pass mechanical orders and apply their mind to the matter, the Supreme Court did not say anything new in Om Prakash. Where it added a little bit of spark is its express invocation of an idea which I would label as the 'necessity' test for ordering police investigations. While it is not a new idea as such [for example, see here], it has been expressed with remarkable clarity this time. Take a look at Paragraph 25:

In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr.P.C. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police ['Emphasis Supplied'].

The phrase 'apply judicial mind' is thus transformed into at least one specific concept for magistrates: look at whether a police investigation is really necessary. The thought process of the Court driven by the facts of this case where it felt that an entirely frivolous case had been lodged and the magistrate simply did not apply their mind to the matter and directed police investigation.

But have bad facts made for bad law here? There are at least three serious problems in the Supreme Court advocating for this 'necessity' test. 

• First, the Court seems to have added requirements to the text of both Section 156(3) CrPC and 175(3) BNSS which are otherwise not there. Both laws may require reasoned orders, but to insist upon an inquiry into the necessity of an investigation by police into a case is nowhere required by either statute. 
• Second, in suggesting that FIRs need not be directed by magistrates where it is felt that there is no need for police investigation, the natural consequence is that this is now a ground which the police can itself take to refuse registration of an FIR and tell persons to prosecute their cases on their own. Such a course of action goes against at least the traditional reading of Lalita Kumari which was delivered by a Constitution Bench. It had held that there is no discretion for registering FIRs where a cognizable offence is made out, and identified a limited set of scenarios where police could conduct preliminary inquiries before lodging FIRs, but did not suggest that one test in deciding to proceed or not was that of necessity. Even with the BNSS, which has given statutory backing to this preliminary inquiry concept for a sliver of cases in Section 173(3) — punishable with more than three years but less than seven years — no necessity test has been clearly earmarked. 
• Third, and connected to the second, are the practical problems which arise because of the necessity test which are amplified when it comes to prosecuting private complaints under the BNSS. There is a far more cumbersome legal procedure for prosecuting private complaints, than prosecuting police cases. The Supreme Court conveniently glides over these differences and makes it seem that the two sets of procedures are comparable, which they are evidently not. To force upon a victim one process on the basis of how the police or magistrates consider the complexity of the facts or other factors is, still, arbitrary and allowing for unreasonable classifications to be drawn given no two cases are ever alike.

I must stress upon the second point a bit more before closing this post. The Constitution Bench judgment in Lalita Kumari shows us just how difficult it is to decide the issue of curtailing discretion in registration of FIRs in the style of absolutes. The text of law may require one thing, but the socio-political realities of the country make it evident that registering every information as an FIR will be downright absurd and cast an insurmountable burden upon an already overworked, understaffed, and underpaid system. At the same time, a signal had to be sent to the system that discretion in registering FIRs was the exception given how frequently it was being abused at all levels. The legislature has simply aped the ungainly bargain struck by the Court in Lalita Kumari without trying to improve the legal position in any meaningful way through the BNSS, passing the buck as it were back to Courts to continue struggling with this problem. The batting in favour of a 'necessity' test is reflective of exactly this phenomenon. It will probably be modified by Courts over time, crafted into a more chiseled approach which leaves less room for abuse, and till then all of the litigants will remain guinea pigs. 

Guest Post: Analysing 156(3) Cr.P.C. in Context of Vinubhai Haribhai Malviya

(This is a guest post by Jaiyesh Bhoosreddy)

Introduction

Section 156(3) of the Code of Criminal Procedure, 1973 [Cr.P.C.] confers powers upon a magistrate empowered under Section 190 of Cr.P.C. to order a police officer in charge of a police station to investigate any cognizable offence. The scope of Section 156(3) was always considered as pre-cognizance, which is evident from the numerous judicial precedents stating that the power of the magistrate to order investigation under Section 156(3) is always pre-cognizance. The rationale, for considering Section 156(3) as pre-cognizance only, was that the expression ‘taking cognizance’ was judicially interpreted by the courts to mean the ‘judicial application of mind’ by the magistrate with the purpose of proceeding under Section 200 and the succeeding sections of Chapter XV of Cr.P.C., and any other action in his judicial discretion such as ordering investigation under Section 156(3) of Cr.P.C. would be pre-cognizance only [To understand the different stages of a criminal case such as cognizance etc., see here]. 

However, a Three Justices' Bench of the Supreme Court in Vinubhai Haribhai Malviya & Ors. v. State of Gujarat [Criminal Appeal Nos. 478-479 of 2017, decided on 16.10.2019 (“Vinubhai”)], held that a magistrate can order further investigation under Section 156(3) of the Cr.P.C. in the post-cognizance stage. The judgment has, albeit not surprisingly, caused wide-spread confusion among criminal law practitioners with respect to the scope of Section 156(3), and it has also been criticised by some practitioners on grounds that it is contrary to statutory provisions and established judicial precedent.

The present discussion regarding the scope of Section 156(3) is to be viewed in the context of the said judgment. At the very outset, the preliminary issue that bears into mind is regarding the question of propriety of the said judgment, in view of a number of opposing judgments from various courts including the Apex Court itself, which have already laid down the point of law very clearly on the subject matter. The author intends to highlight the problematic issue of noncompliance of a celebrated judicial principle, which should be kept under consideration while pronouncing a judgment. The author will argue that the said judgment is contrary to the very structure of our judicial system which follows the common law tradition, where the previous judicial decisions of the Supreme Court of India under Article 141 and also of High Courts, as Courts of Records, constitutes the “law of the land” in the form of precedents which has binding effect over all lower courts, and also on the coordinate benches of the Apex Court and the High Courts.

Erroneous Interpretation of Section 156(3): Section 156(1) overrides Section 2(h) with respect to interpretation of the scope of application of Section 156(3) of Cr.P.C.

Vinubhai has created adverse ripples in criminal jurisprudence, which is the result of the Bench erroneously observing that the magistrate’s power to order investigation under Section 156(3) is post-cognizance, and in doing so, the Bench has overruled an earlier judgment of the Apex Court in Devarapally Lakshminarayana Reddy v. V. Narayana Reddy [1976 AIR 1672 (“Devrapally”)] and a plethora of other judgments, which had cemented the proposition that the power under Section 156(3) of Cr.P.C. can be invoked only at a pre-cognizance stage.

The plain reading of the provision also clearly reads that it is pre-cognizance and not post-cognizance. The first and primary rule of construction of statues clearly states that if the plain reading of the statute is unambiguous, then the courts should go by the plain reading and not read beyond the text of the statute. The interpretation provided in Malviya is contrary to the legislative intent, which is evident from the language employed in Section 156(3). Section 156(3) employs the language, “such an investigation as mentioned above” to draw reference to the scope of application of the term ‘investigation’, which is provided in Section 156(1) of Cr.P.C.

The Court was erroneous in holding the rationale of Devarapally as incorrect simply because the Bench in Devarapally did not ‘notice’ Section 2(h) of Cr.P.C., as the proviso attached to the title of Section 2 states that the ‘definitions’ provided in Section 2 are subject to exceptions which is evident from the phrase, “In this Code, unless the context otherwise requires”. The author stresses upon the usage of the phrase, “unless the context otherwise requires” in support of the scope of application of investigation to be done only in the manner prescribed under Section 156(1) of Cr.P.C., where the ‘context’ mandates that the power of magistrate with respect to ordering of investigation under Section 156(3) to be limited only to the pre-cognizance stage. This was consciously provided by the legislature for situations where the police would fail to take cognizance of a cognizable offence under its jurisdiction, and so the victim or any other person could approach the magistrate for legal remedy to ensure dispensation of justice. Therefore, Section 2(h) of Cr.P.C. is irrelevant for the purpose of determining the scope of application of Section 156(3) because it triggers an investigation as provided under Section 156(1).

Noncompliance of the Principle of Stare Decisis in reference to the expression ‘taking cognizance of an offence’

The Bench in Vinubhai could have avoided the erroneous interpretation with respect to the scope of Section 156(3) of Cr.P.C., if it would have exhaustively considered the judicial precedents, including Devrapally, deliberating upon the expression ‘taking cognizance’, then it would have realised that the earlier decisions on the subject matter are cemented as courts have always expressly construed the power of the magistrate to order investigation under Section 156(3) to be pre-cognizance only. This is because a magistrate ‘takes cognizance’ of an offence when he applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of Cr.P.C., and only then can he be said to have taken cognizance of the offence within the meaning of Section 190(1)(a). However, if the magistrate takes any other action in his judicial discretion, instead of proceeding under Chapter XV of Cr.P.C., then he cannot be said to have taken cognizance.

Additionally, the above stated judicial explanation of the expression ‘taking cognizance’ was reiterated by the Apex Court, in R.R Chari v. State of Uttar Pradesh [1951 AIR 207 (“R.R Chari”) (Three Justices' Bench)], while considering the phrase ‘taking cognizance’, approved the decision of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee [AIR 1950 Cal. 437], wherein the Court observed that taking an action of the nature of ordering an investigation under Section 156(3) will be pre-cognizance only. The same view was reiterated by the Apex Court in Nirmaljit Singh Hoon v. State of West Bengal and Anr. [AIR 1972 SC 2639] and Jamuna Singh and Ors. v. Bhadai Sah [AIR 1964 SC 1541].

Thus, R.R. Chari is another judgment pronounced by a three-judge bench, apart from Devarapally, where the Court has affirmed that Section 156(3) is pre-cognizance only. In view of this, the Bench in Vinubhai should have refrained from overruling Devrapally as it is a recognised principle that the views by one Bench is binding upon another coordinate Bench. In Union of India v. Godfrey Phillips India Ltd. [AIR 1986 SC 806] and Union of India v. Raghubir Singh [AIR 1989 SC 1933], the Courts have held that when one Bench thinks differently from another Bench of equal strength, then it should refer the matter to a larger Bench for decision rather than deciding upon the correctness of the view of the earlier coordinate Bench. Therefore, even if the Bench in Vinubhai was possessed by a very strong inclination that the interpretation in Devrapally was flawed, it should have referred the matter to a larger bench for resolution, however the Bench proceeded, on the basis of a flawed reasoning, to overrule established judicial precedents which has caused confusion in the field of criminal law.

Practical Benefits of the Judgment: Positive Impact for Bona Fide Applicants

In Vinubhai, the question of law that the Court had to decide upon was, “whether a magistrate has the power to order further investigation after a charge sheet is filed by the police”. The Court held that the magistrate had power under Section 173(8) of Cr.P.C. to direct further investigation up to the stage of framing of charges, and simultaneously overruled those decisions of the Apex Court, which interpreted the powers under Section 173(8) in a restrictive manner and thereby providing support to a latest decision of the Court, which construed the power under Section 173(8) to allow the magistrate to order further investigation after a police report was filed and cognizance was taken upon the said police report.

This was a positive step taken by the Bench in the development of law through judicial interpretation, as it resolved conflicting views given by the Court in the past to promote certainty of law, and furthered the interest of justice as a result of liberal interpretation. The judgment enables bona fide applicants to request for further investigation, and this would also lead to a reduction in multiple First Information Reports (FIRs) being filed. However, it should also be noted that the judgment also enables the accused persons and other parties in a criminal proceeding, with the ability to delay and derail the proceedings by filing applications requesting for further investigation to occur, and these orders under Section 173(8) will be subject to appeals which will invariably result in delays of the criminal proceedings causing irreparable loss either to the accused or to the victim.

Conclusion

The author submits that Vinubhai has eroded the principle of ‘Stare Decisis’, which is the foundation upon which the common law tradition exists. The Bench in Vinubhai overruled the plethora of judgments which followed Devarapally. Now, one could argue that the Bench was not improper in overruling the plethora of judgments as the bench strength was higher in Vinubhai, however that logic stands correct only if the Malviya judgment overruled Devarapally judgment which is not the case as the former is a per incuriam judgment with respect to the question of scope of Section 156(3) of Cr.P.C., and Devarapally also enjoys support from R.R. Chari which is another three-judge bench judgment, which held that Section 156(3) is pre-cognizance only.

The lower courts can still adhere to the decision in Devarapally despite Vinubhai being a more recent judgment on the ground that the latter is per incuriam as it did not analyse the scope of Section 156(3) in the context of judicial precedents pertaining to the expression ‘taking cognizance’, which is of crucial importance when determining whether the scope of Section 156(3) is pre-cognizance or post-cognizance. This question was resolved by the various High Courts themselves in Amar Singh Yadav v. Shanti Devi [AIR 1987 Pat. 191] and Ganga Saran v. Civil Judge, Hapur [AIR 1991 All. 114], wherein the Courts have held that in the case of conflicting views rendered by different coordinate benches of the Supreme Court of India, then the decision which states the law more elaborately and accurately should be followed, by the High Courts, rather than the view that has been expressed at a later date. It would be prudent to conclude the present discussion on the point that the cardinal principle of the law of precedents is that the superior courts, especially the Apex Court and the High Courts, should settle questions of law in a consistent manner so that the law of precedents attains some degree of certainty, and observance of law is ensured.

The Supreme Court Order in P. Chidambaram v. ED: Some Thoughts

A Two Justices' Bench of the Supreme Court has decided the appeal filed by P. Chidambaram against an order of the Delhi High Court dismissing his plea for Anticipatory Bail in an ongoing investigation being conducted into what is being labelled as the "INX Media Scam" [Crl. Appeal 1340 of 2019, decided on 05.09.2019. ("Chidambaram")]. The main difference between the two sets of proceedings was that while the High Court order considered bail pleas in two parallel investigations being conducted by the Central Bureau of Investigation [CBI] and the Directorate of Enforcement [ED], the Supreme Court hearings were only concerning the ED case. This is because, as many will already know, the CBI arrested Mr. Chidambaram the same night that his bail plea was dismissed by the High Court.

The Gravity and Uniqueness of Economic Crime

I had discussed the High Court order here, and had flagged three issues which I thought were not only central to the hearings but also to the practice of deciding bail applications more generally within the sphere of economic offences. The High Court order had stressed upon the gravity of economic offences and had taken it so seriously that it considered it appropriate to recommend that anticipatory bail be taken away as a possible remedy in any such case. I did not think it was possible but the Supreme Court somehow managed to amp this rhetoric up several notches. 

While the Supreme Court does not expressly recommend removal of anticipatory bail as a relief, it went 9/10ths of the way [See Paragraphs 67 to 82], and almost reached that projected finish line in the specific context of money laundering cases. At the end of Paragraph 34, the Court went so far as to note that "In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards."

The Supreme Court develops the logic adopted by the High Court, and links the rhetoric of economic offences being very grave with the idea that they are also very complex to investigate, and thus, uniquely in need of custodial interrogation [See Paragraphs 76 to 81]. Therefore, the Supreme Court concludes, that "Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation." [Paragraph 81] 

Pause here to see just how lazy this reasoning is. What are "economic offences"? Theft and cheating are economic offences — but are you telling me that they are so complex to investigate that you require custodial interrogation to get to the bottom of them? Of course not, which is why I implored the Court to try and come down from the high altar of principle and delve into the specifics and help give some clarity so that the lowly magistracy can go about applying the law with greater certitude. But this wasn't to be.

The laziness is also on display in terms of the Court unquestioningly accepting this position of cases involving economic offences being so complex as to almost justify custodial interrogation and denial of bail. Granted, some cases can be very complex — for instance, laundering through hawala channels where there were no real paper trails created. But surely this principled stance cannot apply to all cases, and this is why we needed the Court to get messy with detail. Moreover, why should the Court trump up custodial interrogation? What about how this can reduce incentives for independent investigations? This is hardly a novel thought — James Fitzjames Stephen retained the ban on confessions in the Indian Evidence Act because, as a civil servant told him, it made sure that the officers don't sit in the shade all day while rubbing chilli in the eyes of some poor sod trying to get him to confess to a crime, rather than go out and investigate a case.    

A Carte Blanche to the Police? 

Moving on, we find that the Supreme Court marries this discussion about the position of economic offences with a more general level of argument when it engages with the issue of what to do in situations where an accused denies she is being "evasive". Here, to remind readers, the accused asked the Court to call for transcripts of his questioning as he challenged the assertion that he had not been cooperating with the probe.

The Court refused these requests by turning to the principle that courts and police operate in separate spheres. This forestalls any court from qualitatively assessing the investigation, and so where an agency asserts that an accused is "not cooperating" or "being evasive", a court is supposed to accept these assertions without question. Doing otherwise would sully the principle of separation between the police and the judiciary. 

Alas, the Court forgot about its own prior judgment in Sakiri Vasu, where a different bench had actively authorised magistrates to entertain applications from persons aggrieved by the manner in which police ran an investigation. Or did it? In the section of the judgment which justifies why sealed covers are alright, the Supreme Court notes that looking at confidential material (without showing it to the accused) has always been accepted as long as it is done by a court "to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation" [Paragraph 53]. 

So then, how can the Court go ahead and refuse to test the police officer's assertion that an accused was "not cooperating" or "being evasive" in questioning? If a court is going to be deprived of the ability to question police on their stand in such situations, then aren't we effectively condemning a person to custody and surrendering her liberty to the mercy of the executive? The doublespeak on display is astounding, and deeply concerning. 

Conclusion: A Recipe for Disaster

Talk to anyone in the profession and they will tell you that the money laundering law has given wide powers upon executive officers that are capable of being abused. After all, money laundering is not a crime like theft or cheating, but a crime which depends entirely upon creating a narrative about what someone did with the fruits of that previous theft or cheating. The scope for imagination is wide, and in our system of slow-moving justice, the result of this imaginative exercise often results in an unfair onslaught upon the civil liberties of an individual for a significant time of her life.

Rather than take a scalpel and forensically examine allegations in some detail during bail hearings in order to make sure that an innocent person is not ensnared by police agencies on frivolous grounds, and to ensure that custodial interrogations do not become a principle of first resort for investigators, with its decision in Chidambaram, the Supreme Court has taken a leap towards a world where all of this becomes more than possible. It was once said that a draconian law is not only made on text, but also in how it is applied. With this verdict, perhaps the same might soon be said of the money laundering statute. Of course, if it wasn't already the case.  

Bidding Adieu to Dashrath Rupsingh Rathod?

If you haven't had a chance to read the news, the Lok Sabha passed the Negotiable Instruments (Amendment) Bill, 2015 yesterday, which is available here. Notably, it inserts Section 142-A to the statute, and inserts a new sub-clause to the existing Section 142 [sub-clause (2)]. The latter stipulates:

"(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated"

So now, the only place where we can file complaints under Section 138 is the court where the cheque is presented for payment. The operation of this jurisdictional rule is affected/implemented by the new section 142-A, which reads:

"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

(2) Notwithstanding anything contained in sub-section (2) of section 142 of sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were presented for payment within the territorial jurisdiction of that court.

(3) If, on the date of commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same person against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section 142(2) before which the first case was filed as if that sub-section had been in force at all material times."

The Statement of Objects & Reasons [SoR] appended to the Bill makes it pretty clear that the amendments are directed towards nullifying the effect of the three judge bench decision in Dashrath Rupsingh Rathod v. State of Maharashtra [(2014) 9 SCC 129]. It restricted the jurisdiction for filing of complaints under Section 138 to only those courts within whose jurisdiction the cheque was drawn, and did so with retrospective effect. I've discussed Dashrath and its problematic retrospective application in some detail before. The SoR reveals that the amendment is spurred by representations received by the Government from various stakeholders (read banks) that the decision affords undue protection to defaulters. More important reasons seem to have been the failure of the decision to consider (i) the uniqueness of "at-par" payable cheques, (ii) the electronic clearance of cheques which is devoid of territorial-links, and (iii) the potential for multiple litigation between same parties at different locations.

These concerns raised with the decision were quite pertinent and the amendment is welcome, in most parts at least because I have my reservations about the ease with which the amendment allows for transferring matters (not because of the supposed harm to the common man which follows). What I fail to understand though is the fetish both Judiciary and Legislature seem to have with making changes retrospective. Through the new Section 142-A these jurisdictional tweaks are made retrospective in their operation. On a plain reading it suggests that all cases pending before any other court shall be transferred to the court of proper jurisdiction as now defined by Section 142(2). 

The possibility of the retrospective operation being unconstitutional was being discussed with friends yesterday, where my initial gusto legally supporting a challenge was dampened by the clearly correct position of Legislature being supreme. The only limits to retrospective operation are found in Article 20(1) of the Constitution, prohibiting the retrospective imposition of liability. This is indisputable. A challenge can certainly be mounted to the vagueness in Section 142-A regarding the stage at which a complaint must be for a transfer to happen. Surely the Legislature does not envisage every pending case to be scrutinized. Or does it? Cue: several more months of confusion about the jurisdiction of courts to entertain complaints under Section 138.

Thanks to Chetna Kumar for pointing out important errors in the previous version of this post

Three Judges of the Supreme Court on Sections 156(3) and 202 Cr.P.C.

A three judge bench decision of the Supreme Court in Ramdev Food Products Pvt Ltd v. State of Gujarat [Criminal Appeal 600 of 2007] was published on 16.03.2015. Seldom do we get decisions on the Cr.P.C. from a bench of more than two judges, making it important to consider this one. Having read the case, I think the judges wrongly construed the idea behind Sections 156(3) and 202 Cr.P.C. thus potentially causing a great deal of confusion owing to their superior bench strength. 

The Facts

The Appellants had filed a criminal complaint under Sections 409, 420, 467, 468 and 471 IPC and with an Application under Section 156(3) Cr.P.C. praying for directions to the police to conduct an investigation. The Magistrate disagreed, (presumably) took cognizance and ordered an investigation under Section 202 Cr.P.C. directing a report from the Police within 30 days. The Appellants moved the High Court against this order which rejected their challenge, resulting in this appeal.

The Issue and its Treatment

There are several issues of importance considered by the Court including the scope and ambit of Sections 156(3) and 202 Cr.P.C.; powers of the police while conducting an investigation under Section 202 Cr.P.C. Here, I am only concerned with the first of these, which is discussed Paragraph 13 onward. At Paragraph 22, the Court concludes:

"Thus, we answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. 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. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."

Does the Court get it wrong?

Reconsider the quoted extract above: the Court holds that where the Magistrate finds a case made out to proceed forthwith due to credibility of information available it is appropriate to straightaway direct investigation, a Section 156(3) direction is issued. As against this, Section 202 seems to involve cases where such a clear case is not made out for the court, thus requiring postponement of issuing process.

The Court seems to have turned the logic behind these sections on its head, unfortunately. When the Magistrate directs an investigation under Section 156(3), he does so before considering whether there is a case made out to proceed forthwith. This is obvious, because such a consideration is the basic definition of taking cognizance, and it is nobody's case that Section 156(3) directions can be given post-cognizance. Directions under Section 156(3) to for investigation by the Police depend upon the kind of evidence the Applicant discloses might be relevant in the present case, and that such evidence could only be gathered through the powers of the police [Union of India v. Prakash Hinduja, (2003) 6 SCC 195; Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409]. 

As against this, Section 202 investigations occur after the Magistrate has taken cognizance, and examination of the Complainant and any witnesses led is complete. This investigation has a very limited scope, and helps to finally determine whether there is a case made out to proceed forthwith, and thus issue process under Section 204. Where the investigation reveals no case is made out, the Magistrate exercises powers under Section 203 to dismiss the Complaint [Nagawwa v. Veeranna Shivalingappa, (1976) 3 SCC 376].

Conclusion

The test in Ramdev Foods goes contrary to the text of the Code and requires a Magistrate take de-facto cognizance before deciding upon a Section 156(3) Application. Given this is a three judge bench decision, it may result in restricting possibility of relief under Section 156(3) and impact how litigants strategise and approach court. More will become clear as the case proceeds to trickle down through the rungs.