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CODE OF CRIMINAL PROCEDURE, 1973: ss. 156(3) and 202 – Power of Magistrate to order investigation – HELD: Powers u/s 156(3) can be invoked by Magistrate at pre-cognizance stage whereas powers u/s 202 are to be invoked after cognizance is taken but before issuance of process – Once the Magistrate takes cognizance he is thereafter precluded from ordering investigation u/s 156(3) – In the instant case, on the complaint filed, the Magistrate having taken cognizance, rightly postponed the issuance of process and kept the complaint for court inquiry u/s 202 – There is no reason to interfere with the order of the Magistrate as upheld by the High Court. The brother of the appellant was found dead. The post mortem report indicated that the death was as a result of natural causes. The investigating officer, on the basis of the statements of the appellant, his relatives and others as also the post-mortem report, closed the investigation. Thereafter the appellant filed a complaint before the Metropolitan Magistrate alleging that offences u/ss 302, 144 read with s.120-B IPC had been committed, and prayed for an order for inquiry u/s 156(3) CrPC. The Magistrate by his order dated 17.4.2007 postponed the issuance of process and kept the complaint for court inquiry in accordance with s.202 CrPC. The writ petition filed by the appellant having been dismissed by the High Court, he has filed the appeal. The question for consideration before the Court was: whether the Magistrate committed any error in refusing the appellant’s prayer for an investigation by the police u/s 156(3) of the Code of Criminal Procedure, 1973 and resorting to s.202 of the Code. Dismissing the appeal, the Court HELD: 1.1. The power to direct an investigation to the police authorities is available to the Magistrate both u/s 156(3) Cr.P.C. and u/s 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. The Courts are ad idem on the question that the powers u/s156(3) can be invoked by a Magistrate at a pre-cognizance stage, whereas powers u/s 202 are to be invoked after cognizance is taken on a complaint but before issuance of process. Once the Magistrate takes cognizance of the offence, he is thereafter precluded from ordering an investigation u/s156 (3) of the Code. [Para 13, 14 and 18] [529-G-H; 530-A; 530-E; 531-E-F] Suresh Chand Jain vs. State of M.P. 2001 (1) SCR257= (2001) 2 SCC 628; Dharmeshbhai Vasudevbhai & Ors. vs. State of Gujarat & Ors. (2009) 6 SCC 576; Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors. 1976 Suppl. SCR 524= (1976) 3 SCC 252; Dilawar Singh vs. State of Delhi (2007) 12 SCC 641; and Mohd. Yousuf vs. Afaq Jahan (Smt.) and Anr. (2006) 1 SCC 627, referred to. 1.2. In the instant case, the Magistrate has treated the protest petition filed by the appellant as a complaint u/s 200 of the Code and has thereafter proceeded u/s 202 Cr.P.C. and kept the matter with himself for an inquiry. There is nothing irregular in the manner in which the Magistrate has proceeded and if at the stage of Sub-section (2) of s. 202 the Magistrate deems it fit, he may either dismiss the complaint u/s 203 or proceed in terms of s.193 and commit the case to the Court of Session. There is no reason to interfere with the order of the Magistrate and the views expressed by the High Court in the impugned order on the invocation of jurisdiction by the Magistrate u/s 202 Cr.P.C. [Para 18-19] [531-F-H; 532-A; 532-B] Case Law Reference: 2001 (1) SCR257 referred to para 6 (2009) 6 SCC 576 referred to para 7 1976 Suppl. SCR 524 referred to para 9 (2007) 12 SCC 641 referred to para 14 (2006) 1 SCC 627 referred to para 16 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 548 of 2010. From the Judgment & Order dated 2.7.2008 of the High of Gujarat in Special Criminal Application No. 1458 of 2007. Chaitanya Joshi, Nachiketa Joshi, Sudhakar Joshi, Ranjith K.C. for the Appellant. Meenakshi Lekhi, Hemanitka Wahi, Somnath Padan, Jesal for the Respondent.

REPORTABLE

The Gujarat High Court, established in the yea...

The Gujarat High Court, established in the year 1960, under the Bombay Re-Organization Act. The High Court is housed in a magnificent structure located at Sola Road, Ahmedabad. (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2010
(@SPECIAL LEAVE PETITION(CRL) No.8600 of 2008)
Rameshbhai Pandurao Hedau … Appellant

Vs.
State of Gujarat … Respondent
J U D G M E N T

ALTAMAS KABIR, J.
1. Leave granted.
2. The Appellant is the elder brother of the

deceased, Kamleshbhai, whose dead body was found

near Govindbhai Ghat on Sarkhej Narol Highway on

17th October, 2006. At the time of his death,

Kamleshbhai was serving with M/s Airstate
2

International Courier and his usual working time

was from 1.00 p.m. to 7.00 p.m. On 17th October,

2006, on receipt of information, the Appellant went

to the above-mentioned spot and found the dead body

of his brother. On 17th October, 2006 itself, post-

mortem was conducted by the Medical Officer of the

Civil Hospital, Ahmedabad. After the post-mortem

examination was conducted, the opinion of the

doctor as to the cause of death was kept pending

till the reports from the FSL and HTP were made

available. On 21st December, 2006, upon receipt of

the said reports, the Medical Officer was of the

opinion that the cause of death of the deceased was

on account of cardio-respiratory arrest due to

lungs pathology. In other words, Kamleshbhai’s

death was not found to be unnatural but as a result

of natural causes. The Investigating Officer had

also occasion to record the statements of the

Appellant, his relatives and others. On the basis

of the said statements and the report of the post-
3

mortem examination, the investigation was closed by

the Investigating Officer attached to Vatva Police

Station.
3. Dissatisfied with the closure of the

investigation, the Appellant filed a complaint

before the Metropolitan Magistrate No.20 at

Ahmedabad on 17th April, 2007, which was numbered as

Enquiry Case No.17 of 2007. In the complaint, the

Appellant alleged that offences had been committed

under Sections 302, 114 read with Section 120-B

Indian Penal Code and prayed for an order to be

passed for an inquiry under Section 156(3) Cr.P.C.

for taking action against the accused. Instead of

directing an investigation to be conducted by

higher police officials under Section 156(3)

Cr.P.C., the learned Metropolitan Magistrate by

his order dated 17th April, 2007, postponed the

issuance of process and kept the complaint for
4

Court inquiry, in accordance with Section 202

Cr.P.C.
4. The Appellant herein filed a Criminal Writ

Petition, being Special Criminal Application

No.1458 of 2007 before the Gujarat High Court,

which was dismissed in limine on 2nd July, 2008, by

a learned Single Judge upon holding that no case

had been made out for directing investigation under

Section 156(3) Cr.P.C. It is the said order of the

High Court which has been questioned in the present

appeal.
5. Appearing in support of the appeal, Mr.

Nachiketa Joshi, Advocate, submitted that the

learned Metropolitan Magistrate, Ahmedabad, had

committed an error in rejecting the Appellant’s

prayer for an investigation under Section 156(3) of

the Code and taking recourse to Section 202 of the

Code instead. It was submitted that having regard

to the serious nature of the offence complained of,
5

an inquiry by the Court under Section 202 Cr.P.C.

would not be apposite in preference to an

investigation by the higher police officials under

Section 156(3) of the Code. Mr. Joshi submitted

that the order of the learned Metropolitan

Magistrate, as well as that of the High Court,

failed to recognize the gravity of the offence and

the attempt made to cover up the incident which has

caused a miscarriage of justice. Mr. Joshi further

submitted that the Courts were ill-equipped to deal

with an investigation which would be required to be

undertaken in the instant case and, accordingly,

the orders passed by the learned Magistrate, as

well as the High Court, were liable to be set aside

with a direction to higher officials of the police

in the District to conduct a proper investigation

under Section 156(3) of the Code.
6. In support of his aforesaid submissions, Mr.

Joshi referred to the decision of this Court in
6

Suresh Chand Jain vs. State of M.P. [(2001) 2 SCC

628], wherein while considering the power of the

Magistrate under Section 156(3) Cr.P.C., it was

held that such power is vested in the Magistrate

before taking cognizance of the offence. In such a

case, before taking cognizance of an offence the

Magistrate always has the jurisdiction to direct an

investigation under Section 156(3) of the Code on a

fresh complaint.
7. Mr. Joshi also referred to the decision of this

Court in Dharmeshbhai Vasudevbhai & Ors. vs. State

of Gujarat & Ors. [(2009) 6 SCC 576], wherein,

while considering the power of the Magistrate to

recall an order for investigation passed by him

under Section 156(3) Cr.P.C., this Court appears to

have taken the same view as was expressed in Suresh

Chand Jain’s case (supra) to the effect that before

taking cognizance the Magistrate can invoke his

powers under Section 156(3) Cr.P.C. but once he
7

takes cognizance, he has to proceed in accordance

with the procedure embodied in Chapter XV thereof,

including the power to conduct an inquiry or

investigation under Section 202 of the Code.
8. Mr. Joshi’s submissions were vehemently opposed

on behalf of the State of Gujarat by Ms. Meenakshi

Lekhi, Advocate, who contended that once a final

report had been filed by the investigating

authorities under Section 173(2) Cr.P.C., there was

no further scope for an investigation under Section

156(3) Cr.P.C. on the basis of a fresh complaint

and the only remedy available to the complainant

would be by way of a complaint under Section 200

Cr.P.C. Ms. Lekhi submitted that the scheme of the

Code of Criminal Procedure was such that once an

investigation on a complaint had been concluded and

a final report had been submitted by the

investigating agency to the Magistrate under

Section 173(2) of the Code, any fresh complaint by
8

way of a protest petition could only be entertained

under Section 200 and if the Magistrate so thought

fit, an inquiry or investigation could be conducted

under Section 202 of the Code. Ms. Lekhi submitted

that the provisions of Section 202 Cr.P.C. had been

correctly invoked by the Magistrate and the prayer

for investigation under Section 156(3) of the Code

made by the Appellant had been rightly rejected.
9. In support of her submissions, Ms. Lekhi

firstly referred to the decision of this Court in

Devarapalli Lakshminarayana Reddy & Ors. vs.

V. Narayana Reddy & Ors. [(1976) 3 SCC 252].

Reference was made to paragraph 17 of the said

judgment wherein the distinction between an

investigation under Section 156(3) of the Code and

one under Section 202 (1) of the Code has been

highlighted. It was explained that while Section

156(3) occurs in Chapter XII of the Code, which

deals with the powers of the police to investigate
9

into an offence, Section 202 thereof deals with

complaints made to Magistrates where the power to

direct an inquiry operates in a different sphere.

While the power to direct a police investigation

under Section 156(3) is exercisable at the pre-

cognizance stage, the power to direct an

investigation or an inquiry under Section 202(1) is

exercisable at the post-cognizance stage when the

Magistrate is in seisin of the case. Ms. Lekhi

contended that since the police had already

conducted an investigation and had filed the final

report under Section 173(2) of the Code and the

same having been accepted by the learned

Magistrate, the only course open to the appellant

was to file a fresh complaint under Section 200 of

the Code. Since the appellant had filed a fresh

complaint by way of a protest petition, the learned

Magistrate had rightly invoked the provisions of

Section 202 to order an inquiry without directing a

fresh investigation as prayed for by the appellant.
10
10. We have carefully considered the submissions

made on behalf of the respective parties and we

find no reason to interfere with the order of the

High Court impugned in the appeal. From the scheme

of Chapters XII and XV of the Code of Criminal

Procedure, it is quite clear that the two

contemplate two different situations. Chapter XII

deals with the power of the police authorities to

investigate in respect of cognizable offence on

receipt of information thereof. Section 156, which

forms part of Chapter XII, deals with the power of

an Officer in-charge of a police station to

investigate cognizable cases and provides as

follows :
“156. Police Officer’s power to
investigate cognizable cases.- (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.
11
(2) No proceeding of a police officer in
any such case shall at any stage be called
in 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
above-mentioned.”
11. It will thus be seen that the power of the

police authorities to investigate a cognizable

offence is not dependent on an order of the

Magistrate. At the same time, such power may be

exercised by the officer concerned on an order

being passed by any Magistrate empowered under

Section 190 of the Code for making such an

investigation. Chapter XII deals with the conduct

of investigation of both cognizable and non-

cognizable offences and the steps to be taken in

that regard culminating in the filing of the report

of the investigation on completion thereof under

Section 173(2) of the Code. At this stage it may
12

also be indicated that under Sub-section (8) of

Section 173 the police is empowered to conduct

further investigation in respect of an offence even

after a report under Sub-section (2) is forwarded

to the Magistrate.
12. However, all these steps are to be taken by the

learned Magistrate prior to taking cognizance of

the offence. On the other hand, Chapter XV deals

with complaints filed before the Magistrate for

taking cognizance of an offence. It has been

sought to be urged by Ms. Lekhi, learned counsel

appearing for the State of Gujarat, that once an

investigation is undertaken by the police and a

final report is filed, no further order could be

made on a protest petition, which is in the nature

of a fresh complaint for a further investigation

under Section 156(3) of the Code.
13. The settled legal position has been enunciated

by this Court in several decisions to which we
13

shall refer presently. The Courts are ad idem on

the question that the powers under Section 156(3)

can be invoked by a learned Magistrate at a pre-

cognizance stage, whereas powers under Section 202

of the Code are to be invoked after cognizance is

taken on a complaint but before issuance of

process. Such a view has been expressed in Suresh

Chand Jain’s case (supra) as well as in

Dharmeshbhai Vasudevbhai’s case (supra) and the

case of Devarapalli Lakshminarayana Reddy’s case

(supra).
14. The three aforesaid cases have been cited on

behalf of the parties. We may also refer to the

decision of this Court in Dilawar Singh vs. State

of Delhi [(2007) 12 SCC 641], where the difference

in the investigative procedure in Chapters XII and

XV of the Code has been recognized and in that case

this Court also appears to have taken the view that

any Judicial Magistrate, before taking cognizance
14

of an offence, can order investigation under

Section 156(3) of the Code and in doing so, he is

not required to examine the complainant since he

was not taking cognizance of any offence therein

for the purpose of enabling the police to start

investigation. Reference has been made to the

decision of this Court in Suresh Chand Jain’s case

(supra). In other words, as indicated in the

decisions referred to hereinabove, once a

Magistrate takes cognizance of the offence, he is,

thereafter, precluded from ordering an

investigation under Section 156(3) of the Code.
15. It is now well-settled that in ordering an

investigation under Section 156(3) of the Code, the

Magistrate is not empowered to take cognizance of

the offence and such cognizance is taken only on

the basis of the complaint of the facts received by

him which includes a police report of such facts or

information received from any person, other than a
15

police officer, under Section 190 of the Code.

Section 200 which falls in Chapter XV, indicates

the manner in which the cognizance has to be taken

and that the Magistrate may also inquire into the

case himself or direct an investigation to be made

by a police officer before issuing process.
16. Reference was also made to the decision of this

Court in Mohd. Yousuf vs. Afaq Jahan (Smt.) and

Anr. [(2006) 1 SCC 627], where it has been held

that when a Magistrate orders investigation under

Chapter XII of the Code, he does so before he takes

cognizance of the offence. Once he takes cognizance

of the offence, he has to follow the procedure

envisaged in Chapter XV of the Code. The inquiry

contemplated under Section 202(1) or investigation

by a police officer or by any other person is only

to help the Magistrate to decide whether or not

there is sufficient ground for him to proceed

further on account of the fact that cognizance had
16

already been taken by him of the offence disclosed

in the complaint but issuance of process had been

postponed.
17. The law is well-settled that an investigation

ordered by the Magistrate under Chapter XII is at

the pre-cognizance stage and the inquiry and/or

investigation ordered under Section 202 is at the

post-cognizance stage. What we have to consider is

whether the Magistrate committed any error in

refusing the appellant’s prayer for an

investigation by the police under Section 156(3) of

the Code and resorting to Section 202 of the Code

instead, since both the two courses were available

to him.
18. The power to direct an investigation to the

police authorities is available to the Magistrate

both under Section 156(3) Cr.P.C. and under Section

202 Cr.P.C. The only difference is the stage at

which the said powers may be invoked. As indicated
17

hereinbefore, the power under Section 156(3)

Cr.P.C. to direct an investigation by the police

authorities is at the pre-cognizance stage while

the power to direct a similar investigation under

Section 202 is at the post-cognizance stage. The

learned Magistrate has chosen to adopt the latter

course and has treated the protest petition filed

by the Appellant as a complaint under Section 200

of the Code and has thereafter proceeded under

Section 202 Cr.P.C. and kept the matter with

himself for an inquiry in the facts of the case.

There is nothing irregular in the manner in which

the learned Magistrate has proceeded and if at the

stage of Sub-section (2) of Section 202 the learned

Magistrate deems it fit, he may either dismiss the

complaint under Section 203 or proceed in terms of

Section 193 and commit the case to the Court of

Sessions.
18

19. We, therefore, see no reason to interfere with

the order of the learned Magistrate and the views

expressed by the High Court in the impugned order

on the invocation of jurisdiction by the learned

Magistrate under Section 202 Cr.P.C. The appeal

is, accordingly, dismissed.
…………………………………………J.
(ALTAMAS KABIR)

…………………………………………J.
(CYRIAC JOSEPH)
New Delhi
Dated: 19.03.2010

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