S 156(3) & 202 CrPC: SC Explains Differences Between Powers Of Magistrate At Pre-Cognizance &..
🔹 Basic Understanding of Sections 156(3) and 202 CrPC
🔸 Section 156(3) CrPC – Pre-Cognizance Stage
Text Summary: Allows a Magistrate before taking cognizance of an offence to direct the police to investigate the matter under Section 156(1).
Nature: It is executive in nature — the Magistrate acts in aid of the police machinery.
Trigger: Generally invoked when a complaint discloses a cognizable offence, and the police have not registered an FIR.
🔸 Section 202 CrPC – Post-Cognizance Stage
Text Summary: After taking cognizance of an offence, the Magistrate may:
Postpone issuing process (summons/warrant), and
Direct investigation or inquiry to determine whether there is sufficient ground to proceed.
Nature: Judicial in nature — the Magistrate has already taken cognizance and is now verifying whether process should be issued.
Purpose: Prevent frivolous prosecution and false complaints.
🔹 Key Differences: Section 156(3) vs. Section 202 CrPC
| Feature | Section 156(3) CrPC | Section 202 CrPC |
|---|---|---|
| Stage | Pre-cognizance | Post-cognizance |
| Magistrate’s Role | Directs police to register FIR & investigate | Orders inquiry to decide whether to proceed |
| Purpose | To set the criminal law in motion | To prevent abuse of process |
| Type of Order | Administrative/Executive | Judicial |
| Scope of Police Powers | Full powers under Chapter XII (FIR, arrest, etc.) | Limited to inquiry — no power to arrest |
| When Invoked | If police fail to act on a cognizable offence | After Magistrate receives complaint |
| Ends With | Police report under Section 173 CrPC | Report to help Magistrate decide on process |
🔹 Important Supreme Court Case Laws
1. Priyanka Srivastava v. State of U.P. (2015) 6 SCC 287
Held: A Magistrate should not pass mechanical orders under Section 156(3).
The complaint must be supported with an affidavit.
The Magistrate should apply judicial mind even at the pre-cognizance stage.
Emphasis: Abuse of Section 156(3) must be prevented.
2. Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627
Held: The distinction between Sections 156(3) and 202 lies in the stage of proceedings.
Section 156(3) applies before taking cognizance, Section 202 applies after.
Once the Magistrate takes cognizance, he cannot revert to Section 156(3).
3. T.T. Antony v. State of Kerala (2001) 6 SCC 181
Held: Once FIR is registered under Section 156(3), the police have full powers to investigate.
However, no second FIR can be registered for the same incident.
4. Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252
Landmark case explaining the difference:
Section 156(3): Invoked when Magistrate has not taken cognizance.
Section 202: Invoked when Magistrate has already taken cognizance but is not satisfied to issue process.
Cognizance means applying mind to the offence, not merely to the complaint.
🔹 Practical Illustration
Suppose a person files a complaint that a cognizable offence occurred, and the police refuse to act.
He can move the Magistrate under Section 156(3) to direct police to register FIR and investigate.
If the Magistrate instead takes cognizance of the complaint and wants to ensure it's not frivolous:
He may order a limited inquiry under Section 202, which does not empower police to arrest.
🔹 Summary
Section 156(3): Magistrate acts before taking cognizance, directing police to register FIR and investigate.
Section 202: Magistrate acts after taking cognizance but before issuing process, ordering a limited inquiry to decide whether to proceed.
Supreme Court has clarified that the two are not interchangeable, and each has its own legal consequences.
Courts must apply their mind and use discretion judiciously to prevent misuse.
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