The Supreme Court of India clarified the powers of the courts under the criminal justice system as contemplated under Sections 156(3) and 202 of the Code of Criminal Procedure, 1973 (“CrPC”).
Sections 156(3) and 202 fall under Chapters XII and XV CrPC respectively. The former relates to ‘Police officer’s power to investigate cognizable case’, while the latter describes ‘Postponement of issue of process’.
A Large Bench of the Court said 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”, the Court said, adding in such cases power of arrest in the course of investigation under Section 202 is not available with police.
“Under Section 202, since the Magistrate is in seisin of the matter and has yet to decide “whether or not there is sufficient ground for proceeding”, there is no occasion for formation of opinion by the police about credibility of available information necessary to exercise power of arrest as the only authority of the police is to give report to Magistrate to enable him to decide whether there is sufficient ground to proceed. Power of arrest is not to be exercised mechanically”, the Court added.