REPORTABLE
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
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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-
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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.
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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.
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(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.
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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
