Pandurao Hedau Vs. State of Gujarat  INSC 198 (19 March 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF
2010 (@SPECIAL LEAVE PETITION(CRL) No.8600 of 2008) Rameshbhai Pandurao Hedau
... Appellant State of Gujarat ... Respondent
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.
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.
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.
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
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.
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.
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.
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.
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.
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].
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
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.
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 :
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.
Magistrate empowered under section 190 may order such an investigation as
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
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.
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).
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.
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.
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.
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.
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.
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
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.
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)