Vasudevbhai and Ors. Vs. State of Gujarat and Ors.  INSC 890 (5 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 914 OF 2009
(Arising out of SLP (Crl.) No.3813 of 2005) Dharmeshbhai Vasudevbhai & Ors.
... Appellants Versus State of Gujarat & Ors. ... Respondents WITH
CRIMINAL APPEAL NOS. 915, 916, 917 and 918 OF 2009 (Arising out of SLP (Crl.)
Nos.3839, 3565, 3754 and 3771 of 2005)
S.B. Sinha, J.
appeals arising out of a common judgment were taken up for hearing together.
Appellants herein are
depositors in City Cooperative Bank Ltd. (the Bank), a bank incorporated and
registered under the Gujarat Co-operative Societies Act, 1962.
of the borrowers had mortgaged their properties with the bank.
of offences under Sections 406, 420, 423, 465, 477, 468, 471, 120(B), 124 and
34 of the Indian penal Code and investigation against the accused persons -
respondents herein, the bank filed a complaint petition before the Second Court
of Judicial Magistrate First Class, Surat praying for a direction upon the
Rander Police Station to register a complaint.
By an order dated
11.6.2004, the learned Magistrate upon consideration of the said allegations
directed as under :
is hereby ordered to be registered as the Inquiry Case and is ordered to be
sent to Rander Police Station under Section 156(3) for the Police
Investigation. On being investigating the offence the Investigating Officer has
to submit the report of Investigation on or before 12.7.2004 before this
the complainant filed an application before the learned Magistrate on or about
6.7.2004 informing the learned Court that a 3 compromise had been entered into
by and between the accused and the bank pursuant whereto and in furtherance
whereof, an order was passed, directing:
compromise has been taken place between the complainant and the accused which
is being proclaimed by Ex.4, the complainant don't want to proceed further with
the complaint, the order is being passed to withdraw the inquiry. It is to be
informed to the concerned Police Station."
the legality and validity thereof, the appellants filed Writ Petitions before
the High Court.
The main judgment was
passed in the case of Writ Petition No.3771 of 2005. Before the High Court, a
contention was raised that once a complaint is sent for registration of the
first information report and investigation on the allegations contained
therein, the learned Magistrate had no jurisdiction to recall the order.
Reliance in this behalf, inter alia, was placed on the decision of this Court
in Subramanium Sethuraman v. State of Maharashtra & Anr. [2004 (7) SCALE
The High Court,
however, upon taking note of the fact that at the relevant point of time, an
administrator had been functioning under the direct control and supervision of
the District Registrar, Co-operative Societies, in absence of any allegation
that he had exercised his power mala fide, declined to interfere with the said
order dated 6.7.2004, stating :
4 "It appears that
the petitioners were not in the picture, either at the time when the complaint
was filed and/or at the time when the learned Magistrate passed the order for
investigation under Section 156(3) of Cr.P.C. or at the time when the
settlement purshis was filed and the learned Magistrate passed the offer of
recalling the inquiry in the month of July 2004. As such in normal
circumstances, the petitioners who are depositors of the bank can be said as
third party to the programmes of the complaint and subsequent there to in case
of S.M.S. Jayaraj (Supra), the case before the Apex Court was pertaining to the
grant of licence for liquor and, therefore, while considering the question of
locus standi it was observed that the appellant before the Apex Court was the person,
who was having the business in the area can have locus. In any case, it was not
matter for considering the question of locus standi in criminal prosecution
and, therefore, the said decision is of no help to the petitioners."
U.U. Lalit, learned senior counsel appearing on behalf of the appellant, would
submit that the High Court committed a serious error in passing the impugned
order insofar as it failed to take into consideration that the learned
Magistrate could not have recalled his earlier order passed in terms of
sub-section (3) of Section 156 of the Code of Criminal Procedure.
Suri, learned counsel appearing on behalf of the respondent, on the other hand,
supported the impugned judgment.
is well settled that any person may set the criminal law in motion subject of
course to the statutory interdicts. When an offence is committed, 5 a first
information report can be lodged under Section 154 of the Code of Criminal
Procedure (for short, `the Code'). A complaint petition may also be filed in
terms of Section 200 thereof. However, in the event for some reasons or the
other, the first information report is not recorded in terms of sub-section (1)
of Section 156 of the Code, the magistrate is empowered under sub-section (3) of
Section 156 thereof to order an investigation into the allegations contained in
the complaint petition. Thus, power to direct investigation may arise in two
different situations - (1) when a first information report is refused to be
lodged; or (2) when the statutory power of investigation for some reason or the
other is not conducted.
When an order is
passed under sub-section (3) of Section 156 of the Code, an investigation must
be carried out. Only when the investigating officer arrives at a finding that the
alleged offence has not been committed by the accused, he may submit a final
form; On the other hand, upon investigation if it is found that a prima facie
case has been made out, a charge-sheet must be filed.
in the exercise of the statutory power of investigation by the Police by the
Magistrate far less direction for withdrawal of any investigation which is
sought to be carried out is not envisaged under the Code of Criminal Procedure.
The Magistrate's power in this regard is 6 limited. Even otherwise, he does
not have any inherent power. Ordinarily, he has no power to recall his order.
This aspect of the
matter has been considered by this Court in S.N. Sharma v. Bipen Kumar Tiwari
& Ors. [(1970) 1 SCC 653], wherein the law has been stated as under :
"6. Without the
use of the expression "if he thinks fit", the second alternative
could have been held to be independent of the first; but the use of this
expression, in our opinion, makes it plain that the power conferred by the
second clause of this section is only an alternative to the power given by the
first clause and can, therefore, be exercised only in those cases in which the
first clause is applicable.
7. It may also be
further noticed that, even in sub- section (3) of Section 156, the only power
given to the Magistrate, who can take cognizance of an offence under Section
190, is to order an investigation; there is no mention of any power to stop an
investigation by the police. The scheme of these sections, thus, clearly is
that the power of the police to investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only in cases where the police decide
not to investigate the case that the Magistrate can intervene and either direct
an investigation, or, in the alternative, himself proceed or depute a
Magistrate subordinate to him to proceed to enquire into the case. The power of
the police to investigate has been made independent of any control by the
7 Interpreting the
aforementioned provisions vis-a-vis the lack of inherent power in the
Magistrate in terms of Section 561-A of the Old Criminal procedure Code
(equivalent to Section 482 of the new Code of Criminal procedure), it was held
interpretation, to some extent, supports the view that the scheme of the
Criminal Procedure Code is that the power of the police to investigate a
cognizable offence is not to be interfered with by the judiciary. Their
Lordships of the Privy Council were, of course, concerned only with the powers
of the High Court under Section 561-A CrPC, while we have to interpret Section
159 of the Code which defines the powers of a Magistrate which he can exercise
on receiving a report from the police of the cognizable offence under Section
157 of the Code. In our opinion, Section 159 was really intended to give a
limited power to the Magistrate to ensure that the police investigate all
cognizable offences and do not refuse to do so by abusing the right granted for
certain limited cases of not proceeding with the investigation of the
Yet again in
Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors.
[(1976) 3 SCC 252], this Court, upon comparison of the provision of the old
Code and the new Code, held as under :
156(3) occurs in Chapter XII, under the caption : "Information to the
Police and their powers to investigate"; while Section 202 is in Chapter
XV which bears the heading: "Of complaints to Magistrates". The power
to order police investigation under Section 156(3) is different from the power
to direct investigation 8 conferred by Section 202(1). The two operate in
distinct spheres at different stages. The first is exercisable at the
pre-cognizance stage, the second at the post-cognizance stage when the
Magistrate is in seisin of the case. That is to say in the case of a complaint
regarding the commission of a cognizable offence, the power under Section
156(3) can be invoked by the Magistrate before he takes cognizance of the
offence under Section 190(l)(a). But if he once takes such cognizance and
embarks upon the procedure embodied in Chapter XV, he is not competent to
switch back to the pre-cognizance stage and avail of Section 156(3). It may be
noted further that an order made under sub-section (3) of Section 156, is in
the nature of a peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under Section 156(1). Such an
investigation embraces the entire continuous process which begins with the
collection of evidence under Section 156 and ends with a report or charge-sheet
under Section 173. On the other hand, Section 202 comes in at a stage when some
evidence has been collected by the Magistrate in proceedings under Chapter XV,
but the same is deemed insufficient to take a decision as to the next step in
the prescribed procedure. In such a situation, the Magistrate is empowered
under Section 202 to direct, within the limits circumscribed by that section an
investigation "for the purpose of deciding whether or not there is
sufficient ground for proceeding". Thus the object of an investigation
under Section 202 is not to initiate a fresh case on police report but to
assist the Magistrate in completing proceedings already instituted upon a
complaint before him."
learned Magistrate directed carrying out of an investigation by the
investigating officer and submit a report to it. If an investigation was to be
9 carried out in terms of Section 156(3) of the Code, the same could not have
been equated with an enquiry as the two expressions have differently been
defined in Section 3(h) and 3(i) of the Code. In any event, the learned
Magistrate did not have any jurisdiction to recall the said order. The High
Court, therefore, in our opinion was not correct in refusing to consider the
contention raised on behalf of the appellants that the Magistrate had no
jurisdiction in that behalf. The High Court, apart from exercising its
supervisory jurisdiction under Articles 227 and 235 of the Constitution of
India, has a duty to exercise continuous superintendence over the Judicial
Magistrates in terms of Section 483 of the Code of Criminal Procedure. It reads
as under :
483--Duty of High Court to exercise continuous superintendence over Courts of
Judicial Magistrates--Every High Court shall so exercise its superintendence
over the Courts of Judicial Magistrates subordinate to it as to ensure that
there is an expeditious and proper disposal of cases by such Magistrates."
an order passed by a Magistrate which was wholly without jurisdiction was
brought to the notice of the High Court, it could have interfered therewith
even suo motu.
In Adalat Prasad v.
Rooplal Jindal & Ors. [(2004) 7 SCC 338], although this aspect of the
matter has not been considered but having regard 10 to the power exercised by
the Magistrate under Chapter XVI and XVII of the Code, it was held :
"14. But after
taking cognizance of the complaint and examining the complainant and the
witnesses if he is satisfied that there is sufficient ground to proceed with
the complaint he can issue process by way of summons under Section 204 of the
Therefore, what is
necessary or a condition precedent for issuing process under Section 204 is the
satisfaction of the Magistrate either by examination of the complainant and the
witnesses or by the inquiry contemplated under Section 202 that there is
sufficient ground for proceeding with the complaint hence issue the process
under Section 204 of the Code. In none of these stages the Code has provided
for hearing the summoned accused, for obvious reasons because this is only a
preliminary stage and the stage of hearing of the accused would only arise at a
subsequent stage provided for in the latter provision in the Code. It is true
as held by this Court in Mathew case1 that before issuance of summons the
Magistrate should be satisfied that there is sufficient ground for proceeding
with the complaint but that satisfaction is to be arrived at by the inquiry conducted
by him as contemplated under Sections 200 and 202, and the only stage of
dismissal of the complaint arises under Section 203 of the Code at which stage
the accused has no role to play, therefore, the question of the accused on
receipt of summons approaching the court and making an application for
dismissal of the complaint under Section 203 of the Code on a reconsideration
of the material available on record is impermissible because by then Section
203 is already over and the Magistrate has proceeded further to Section 204
11 Adalat Prasad has
been followed by this Court in Everest Advertising (P) Ltd. v. State,
Government of NCT of Delhi & Ors. [(2007) 5 SCC 54] and Dinesh Dalmia v.
CBI [(2007) 8 SCC 770].
To the same effect is
the decision of this Court in S. Suresh v. Annappa Reddy (Dead) by LRs. [(2004)
13 SCC 424].
the reasons aforementioned, the impugned judgments cannot be sustained which
are set aside accordingly. Other impugned judgments have been passed by the
High Court relying on the judgment and order passed in SCRLA No.701 of 2005. It
is, however, made clear that we have not entered into the merit of the matter.
We furthermore make it clear that in the event the accused persons intend to
question the legality of the order passed by the learned Magistrate dated
11.6.2004, they will be at liberty to take recourse to the remedies available
to them in law.
appeals are allowed accordingly.