Under the CrPC, 1973, police officers have been entrusted with ample powers of investigation. However, there are some offenses, known as non-cognizable offenses, which are not investigable by the police without the orders of a Magistrate. Apart from that, instances are noticed when a police officer may not investigate a cognizable offense for various reasons. The remedy in this case is an order of a Magistrate to the investigating agency like the police to investigate issued under Section 156(3) of the Code of Criminal Procedure (CrPC). However, there is another similar provision under Section 202(1) of the Code by which a Magistrate can direct the police officer or any other person to investigate into an offence. So what is the basic difference between these two provisions?

SEC-156(3)

Section 156 of the CrPC reads as follows:

Police officer’s power to investigate cognizable case:

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called into question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as mentioned above.

So, under subsection (3), a Magistrate may order an investigation into an offense by the police officer when no complaint has been made to him but he has information of a cognizable offense. So this power under Section 156(3) is exercisable by the Magistrate in a pre-cognizance stage. There have to be prior applications under Sec. 154(1) and 154(3) while filing a petition under Section 156(3). This means before filing a petition for a direction under Section 156(3), the informant/complainant’s complaint must have been rejected by the Officer in charge of a PS and the Superintendent of Police under Section 154(3). In such a case, the complainant, as a last resort, may approach the Magistrate under Section 156(3) praying for a direction to the investigating agency to initiate an investigation. Once an order for investigation under this section is made, the police have to follow the provisions of Section 173 and furnish a report to the Magistrate accordingly for taking cognizance under Section 190(1)(b).

Thus it is clear that the power of a Magistrate to order an investigation under Section 156(3) can be exercised at the pre-cognizance stage.

It was held in Madhubala v. Suresh Kumar [1997 CrLJ 3757 (SC)] that once a complaint disclosing a cognizable offense is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) or order an investigation by the police officer under Section 156(3). Whenever a Magistrate directs an investigation on a complaint, the police have to register a cognizable case treating the same as an FIR.

Sec-202

The power under Section 202, on the other hand, is exercisable only after the Magistrate has taken cognizance of the complaint under Section 190(1)(a). The power is of a different nature under this section. The investigation under Section 202 is of a limited nature for helping the Magistrate to decide whether he should proceed further. It is to find out ‘whether or not there is sufficient ground for proceeding’. So when an investigation under this section is ordered, the procedures under Section 157 or 173 are not intended to be followed.

In summary, while both Section 156(3) and Section 202 of CrPC involve the role of the Magistrate in the criminal justice process, they serve different purposes and apply in different contexts. Section 156(3) enables the initiation of a police investigation into cognizable offenses based on a complaint to the Magistrate, while Section 202 deals with the procedure for inquiry by the Magistrate before issuing process in cases where further investigation or inquiry is deemed necessary.”