The case of the appellant-complainant in complaint filed
by it before the Magistrate is that it is running business of
food products and had permitted M/s. New Ramdev Masala Factory,
wherein accused No.1 Mr. Jasvantbhai Somabhai Patel was one of
the partners, to use the trademark "Ramdev" for seven years
under agreement dated 4th June, 1990. However, M/s. New Ramdev
Masala Factory was closed on 30th May, 1994. Accused No.1
executed forged partnership documents with the help of other
accused and thereby committed the alleged offences.
The appellant sought direction for investigation under
Section 156(3) of the Code. However, the Magistrate instead of
directing investigation as prayed, thought it fit to conduct
further inquiry under Section 202 and sought report of the
Police Sub Inspector within thirty days. Grievance of the
appellant before the High Court was that in view of the
allegation that documents had been forged with a view to usurp
the trademark, which documents were in possession of the accused
and were required to be seized, investigation ought to have been
ordered under Section 156(3) instead of conducting further
inquiry under Section 202. Thus, there was non application of
mind by the Magistrate. It is also submitted in the
alternative, that even in the course of investigation for giving
report under Section 202, police is entitled to arrest the
accused as arrest is part of 'investigation' but the police
failed to effect the arrest.
The High Court declined to interfere with the Order dated
16th August, 2005, of the Judicial Magistrate, First Class,
Sanand on a complaint filed by the appellant against fourteen
accused for alleged commission of offences under Sections 409,
420, 406, 467, 468, 471 read with Section 120-B and 114 of the
Indian Penal Code directing the Police Sub-Inspector, Sanand, to
give a report to the Court within thirty days under Section
202(1) of the Code of Criminal Procedure, 1973 (for short "the
Code") instead of directing investigation under Section 156(3)
of the Code, as sought by the appellant.
"The courts have also pointed out in these cases
that what the Magistrate has to see is whether
there is evidence in support of the allegations
of the complainant and not whether the evidence
is sufficient to warrant a conviction. The
learned Judges in some of these cases have been
at pains to observe that an enquiry under Section
202 is not to be likened to a trial which can
only take place after process is issued, and that
there can be only one trial. No doubt, as stated
in sub-section (1) of Section 202 itself, the
object of the enquiry is to ascertain the truth
or falsehood of the complaint, but the Magistrate
making the enquiry has to do this only with
reference to the intrinsic quality of the
statements made before him at the enquiry which
would naturally mean the complaint itself, the
statement on oath made by the complainant and the
statements made before him by persons examined at
the instance of the complainant."
"Section 202 says that the Magistrate may, if he
thinks fit, for reasons to be recorded in
writing, postpone the issue of process for
compelling the attendance of the person
complained against and direct an inquiry for the
purpose of ascertaining the truth or falsehood of
the complaint; in other words, the scope of an
inquiry under the section is limited to finding
out the truth or falsehood of the complaint in
order to determine the question of the issue of
process. The inquiry is for the purpose of
ascertaining the truth or falsehood of the
complaint; that is, for ascertaining whether
there is evidence in support of the complaint so
as to justify the issue of process and
commencement of proceedings against the person
concerned. The section does not say that a
regular trial for adjudging the guilt or
otherwise of the person complained against should
take place at that stage; for the person
complained against can be legally called upon to
answer the accusation made against him only when
a process has issued and he is put on trial."
It was observed
that power under Section 156(3) can be invoked by the Magistrate
before taking cognizance and was in the nature of pre-emptory
reminder or intimation to the police to exercise its plenary
power of investigation beginning Section 156 and ending with
report or chargesheet under Section 173. On the other hand,
Section 202 applies at post cognizance stage and the direction
for investigation was for the purpose of deciding whether there
was sufficient ground to proceed.
These aspects have already been discussed above and are
indeed undisputed.
this Court explained the scope of investigation by
the police and held that investigation included power to arrest.
There is no dispute with this legal position.
In the light of above discussion, we are unable to find
any error in the view taken by the Magistrate and the High Court
that direction under Section 156(3) was not warranted in the
present case and the police may not be justified in exercising
power of arrest in the course of submitting report under Section
202.
The questions framed for consideration stand answered
accordingly.
The appeal is dismissed.- 2015 S.C. MSKLAWREPORTS
