Key Essentials of the Complaint to the Magistrate Under Aegis of Section 156(3) of the CrPC

Published on: 28 October 2022 at 10:03 IST

Abhijit Mishra

INTRODUCTION

The Criminal Procedure Code sets out the procedure to be followed for the proper administration of substantive criminal law. It gives the executive the necessary authority to enforce the law.

However, a lot of times the police authorities refrain from filing a complaint or FIR, as once the FIR is registered, the police authorities have to investigate the matter. The Magistrate plays a significant part here, the Code gives the power to a magistrate under Section 156(3) to order an investigation by a police officer.

1. COMPLIANCE OF SECTION 154(1) CRPC
   1. It is essential to first provide the Police with the Written Information / Complaint of the alleged offences which must include the following ingredients:
      1. Description of the commission of the alleged cognizable offence has been committed.
      2. Date & Time of the incident.
      3. Details of the alleged accused who has committed the alleged cognizable offence.
      4. Your source of knowledge and list of potential witnesses
      5. Provide complete detailed description of any electronic evidence such as CCTV camera, Voice Recording, Mobile conversation.
      6. Provide cogent reasons of the delay in making police complaint if there is delay of more than 24 Hours from the time of incident to making of Police complaint.
      7. Prayer with potential the IPC Section which are getting attracted by the virtue of said description of the
   2. It is strongly suggested to refer first schedule of the Code of Criminal Procedure, 1973 to find out which offence are cognizable, and which are non-cognizable as per commission of the alleged cognizable offence to ensure of the section is having cognizable offence.
2. WHEN POLICE REFUSES TO TAKE COMPLAINT
   1. In cases where Police refuses to take Complaint are then kindly send your Complaint through Speed Post or Registered Post of India Post which is legally accepted by the Hon’ble Courts.
   2. You may also send your complaint through Email to the Police.
      1. The email ID is available of almost all Police Departments on official websites.
   3. Kindly do not argue with the Police that it is their duty to register First Information Report.
3. COMPLAINT UNDER SECTION 154(3) CRPC
   1. Ideally after the standard 3 Days wait, send the representations under Section 154(3) CrPC to the Senior Police Officials such as
      1. Commissioner of Police
      2. Assistant Commissioner of Police
      3. Deputy Commissioner of Police
      4. Senior Superintendent of Police
      5. Superintendent of Police
      6. Deputy Superintendent of Police
   2. Do not visit their office, and kindly send your Complaint through Speed Post or Registered Post of India Post which is legally accepted by the Hon’ble Courts.
4. MEMO OF PARTIES TO THE COMPLAINT TO THE MAGISTRATE
   1. It is essential to make following as the parties where Police Commissionerate system are in place.
      1. Station House Officer – Respondent No. 1
      2. Asst. Commissioner of Police – Respondent No. 2
      3. Deputy Commissioner of Police – Respondent No. 3
   2. Mutatis Mundatis, where the Superintendent Police System is applicable then following parties.
      1. Station House Officer – Respondent No. 1
      2. Superintend of Police – Respondent No. 2
      3. Senior Superintend of Police – Respondent No. 3
5. COMPLAINT TO THE MAGISTRATE UNDER SECTION 156(3) CRPC
   1. It should have the same facts and events as mentioned in the Complaint to the Station House Officer, and Higher Police Officials.
   2. Declaration Clause: Kindly ensure to put the declaration clause that “No other similar complaint has been filed before any other Court, including High Court of the State and the Hon’ble Supreme Court of India”.
6. JURISDICTION OF THE MAGISTRATE
   1. Ensure to specifically mention about the jurisdiction clause and state the appliable Sections between 177 to 179 of the CrPC to demonstrate as to how the Court of Magistrate is having appropriate jurisdiction to entertain the complaint.
7. PRAYER CLAUSE
   1. Kindly ensure to mention the specific section of the Indian Penal Code 1860 in which you wish the First Information Report must be registered.
   2. Please ensure that the sections must correspond to the facts of the complaint and duly satisfy the sine non qua of the penal provisions.
8. ACTION TAKEN REPORT
   1. On the first day, the Magistrate upon satisfaction may call for Action Taken Report from the Police. Kindly note that Action Taken Report is not essential for the Magistrate to exercise his jurisdiction.
   2. However, Show Cause Notices for “Action Taken Report” to the Station House Officer helps to demonstrate Police inaction towards the case and builds a stronger case.
9. APPLICATION OF SECTION 156(2) CRPC
   1. Kindly invoke Section 156(2) CrPC when the Police provides with a response that they don’t have the jurisdiction to do investigation of the cases.
   2. It is essential to note that Section 156(2) CrPC allows for the Police to investigate a crime without restrictions of any jurisdiction. Hence, the Police can never take defense of the jurisdiction.
10. COMPLIANCE OF THE RATIO OF PRIYANKA SRIVASTAVA
    1. It is essential that to have strict compliance of the Hon’ble Supreme Court of India’s judgment in the matter Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287, which mandates an Affidavit for Complaint under aegis of Section 156(3) CrPC.
    2. Thus, kindly make an affidavit specifically stating that the “Affidavit in Compliance of the Supreme Court of India’s judgment in the matter Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287”
11. COMPLIANCE OF THE RATIO OF LALIT KUMARI
    1. It is essential for the Police Officers to comply with the judgment of the Hon’ble Supreme Court of India in the matter – Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 which mandates registration of FIR is mandatory under Section 154 CrPC if the information discloses commission of a cognizable offence, and no preliminary inquiry is permissible in such a situation.
    2. Hon’ble Supreme Court of India has held that the Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
12. CASES REQUIRING PRELIMINARY ENQUIRY
    1. It is mandated by the Hon’ble Supreme Court of India in the judgment – Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 where Police must conduct preliminary enquiry to ascertain the facts and circumstances of case which include
       1. Matrimonial disputes/family disputes
       2. Commercial offences
       3. Medical negligence cases
       4. Corruption cases
       5. Complaints where there is abnormal delay without satisfactorily explaining the reasons for delay.
    2. It is essential to note that the preliminary inquiry should be made time-bound and in any case, it should not exceed 7 days by the Police.
    3. It is essential to understand that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
13. ANNEXURES OF THE COMPLAINT
    1. Please provide all the evidence of the alleged cognizable offence to the Court of Magistrate along with the Complaint
    2. Kindly ensure to put the letters to the Police under Section 154(1) CrPC and Section 154(3) CrPC along with the India Post tracking Report of the delivery of the complaints.
    3. Include electronic evidence as well as an annexure in the form of Pen Drive / CD etc.
14. CERTIFICATE OF COMPLIANCE OF SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872
    1. It is essential to provide a certificate of compliance of the Section 65B of the Indian Evidence Act, 1872.
15. CAVEAT
    1. Kindly note that the advice covers the broad guidelines for the complaints under aegis of Section 156(3) of the Code of Criminal Procedure, 1973. Hence for specific cases kindly consult Seniors Advocates who are beacon of the justice system. It is further submitted that these guidelines do not even remotely questions the wisdom of any other legal professional and respectfully bow down before their respective knowledge.

Reference:

1. Practical Aspects of Section 156(3) of the CrPC
2. Essential Requirements for Taking Cognizance of Offence u/s 156 of the CrPC