MOHD. YOUSUF versus SMT. AFAQ JAHAN AND ANR.

Citation: [2006] 1 S.C.R. 1 · Decided: 02-01-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

'X,. 
MOHD. YOUSUF 
A 
v. 
SMT. AFAQ JAHAN AND ANR. 
JANUARY 2, 2006 
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
B 
-, 
Code of Criminal Procedure, 1973: 
Section 156 (3)--Complaint before Magistrate-Before taking cognizance 
of the offence, direction by Magistrate to police to register FIR and investigate c 
the case-Propriety of-Held: It is not i//ega/ for a Judicial Magistrate to 
order investigation of a case before taking cognizance of the same-Jn order 
to enable the police to investigate, it is open to Magistrate to direct the police 
to register FIR while directing investigation. 
Sections 156 (3) and 202-Power of Magistrate to direct-Under both D 
the provisions-Difference between-Discussed. 
Words & Phrases: 'Complaint '-Meaning of in the context of Code of 
Criminal Procedure, 1973. 
Appellant filed an application before Chief Judicial Magistrate E 
(CJM). CJM directed the Police to register FIR and investigate the case. 
In compliance of the order, Police registered FIR and investigated the 
matter. After investigation charge sheet was filed by the Police. Respondent 
No. I filed an application under Section 482 Cr.P.C. for quashing the FIR, 
the charge sheet and the order of the CJM directing investigation. High F 
Court quashed the charge sheet on the ground that the CJM had no power 
to order registration of the case. 
In appeal to this Court, appellant contended that order of High Court 
was contrary to law and on misreading of the provisions under Section 
156(3) Cr.P.C. 
G 
_l 
Respondent No. l contended that the order of High Court was in 
keeping with the scope and ambit of Section 156(3); and that the 
application of appellant made to CJM was not a complaint in strict sense 
of the term. 
H 
2 
SUPREME COURT REPORTS 
[2006] I S.C.R. 
A 
Allowing the appeal, the Court 
HELD: I. I. Any Judicial Magistrate, before taking cognizance of the 
offence, can order investigation under Section 156(3) of the Code. If he 
does so, he is not to examine the complainant on oath because he was not 
taking cognizance of any offence therein. For the purpose of enabling the 
B police to start investigation it is open to the Magistrate to direct the police 
to register an FIR. There is nothing illegal in doing so. Even if a Magistrate 
does not say in so many words while directing investigation under Section 
156(3) Cr.P.C. that an FIR should be registered, it is the duty of the officer 
in charge of the police station to register the FIR regardi!1g the cognizable 
offence disclosed by the complaint because that police officer could take 
C further steps contemplated in Chapter XII of Cr.P.C. only thereafter. 
16-E, GI 
Suresh Chand Jain v. State of MP. and Anr., (2001 f 2 SCC 628; Gopal 
Das Sindhi and Ors. v. State of Assam and Anr., AIR (1961) SC 986 and 
D Narayandas Bhagwandas Madhayadas v. The State of West Bengal, AIR 
(1959) SC 1118, referred to. 
1.2. Chapter XII of Cr. P.C. contains provisions relating to 
"information to the police and their powers to investigate", whereas 
Chapter XV, which contains Section 202, deals with provisions relating 
E to the steps which a Magistrate has to adopt while and after taking 
cognizance of any offence on a complaint. Provisions of the above two 
chapters deal with two different facets altogether, though there could be 
a common factor i.e. complaint filed by a person. Section 156, falling within 
Chapter XII deals with powers of the police officers to investigate 
cognizable offences. True, Section 202, which falls under Chapter XV, also 
F refers to the power of a Magistrate to "direct an investigation by a police 
officer". But the investigation envisaged in Section 202 is different from 
the investigation contemplated in Section 156 Cr.P.C. (5-D-FI 
1.3. The investigation contemplated in Chapter XII can be 
commenced by the police even without the order of a Magistrate. But that 
G does not mean that when a Magistrate orders an investigation under 
Section 156 (3) it would be a different kind of investigation. Such 
investigation must also end up only with the report contemplated in Section 
172 Cr.P.C. But when a Magistrate orders investigation under Chapter 
XII, he does so before he takes cognizance of the offence. But a Magistrate 
H need not order any such investigation if he proposes to take cognizance 
( 
i 
MOHD. YOUSUF v. AFAQ JAHAN [PASA Y AT, J.] 
3 
of the offence. Once he takes cognizance of the offence he has to follow A 
the procedure envisaged in Chapt
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