Supreme Court of India
DHARMESHBHAI VASUDEVBHAI & ORS.versusSTATE OF GUJARAT & ORS.
- Citation
- 2009 INSC 681
- Decided
- 5 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
A Judicial Magistrate has no power to recall an order issued under Section 156(3) CrPC; such orders are beyond its jurisdiction and may be set aside.
Summary
The City Co-operative Bank filed a complaint alleging several offences and the Judicial Magistrate ordered an investigation under Section 156(3) CrPC. The complainant later applied to withdraw the inquiry on the ground of a compromise, and the Magistrate recalled his earlier order. Depositors in the bank challenged the recall, arguing that a Magistrate has no power to rescind an order directing police investigation. The Supreme Court held that an order under Section 156(3) mandates the police to investigate and the Magistrate possesses no inherent authority to recall it; such interference is beyond the scope of the Code. Accordingly, the High Court was wrong in refusing to consider the jurisdictional objection, and the orders of both the High Court and the Magistrate were set aside. The appeals were allowed.
Issues considered
- Whether a Judicial Magistrate has jurisdiction to recall an order passed under Section 156(3) of the Code of Criminal Procedure directing police investigation.
- Whether the High Court erred in refusing to consider the contention that the Magistrate lacked such jurisdiction.
- Scope of the High Court's supervisory jurisdiction under Articles 227 and 235 of the Constitution and Section 483 of the CrPC over Judicial Magistrates.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(1), s. 156(3), s. 157, s. 173, s. 190, s. 200, s. 202, s. 203, s. 204, s. 483
- Constitution of Indias. Article 227, s. Article 235
Subjects
Section 156(3) CrPCmagistrate jurisdictionrecall of investigation orderhigh court supervisory jurisdictionArticle 227Article 235Section 483 CrPCpolice investigationcriminal procedurecooperative bank
Judgment
[2009] 7 S.C.R. 475
DHARMESHBHAI VASUDEVBHAI & ORS. A
V.
STATE OF GUJARAT & ORS.
Criminal Appeal No. 914 of 2009
MAY 5, 2009
B
(S.B. SINHA AND CYRIAC JOSEPH, JJ)
1 CODE OF CRIMINAL PROCEDURE, 1973:
s. 156(3) - Magistrate recalling his order for investigation
passed uls 156(3) - Held: Ordinarily, Magistrate has no power c
to recall his order - When an order is passed under s. 156(3),
..> investigation must be carried out - Interference by Magistrate
~;
with exercise of statutory power of investigation by police is
not envisaged under the Code.
Constitution of India, 1950: D
"/
Articles 227 and 235 - Superintendence by High Court
over Judicial Magistrates - Held: High Court was not correct
in refusing to consider the contention that Magistrate had no
iurisdiction to recall the order for investigation passed by him
E
uls 156(3) CrPC - Apart from exercising supervisory
iurisdiction under Articles 227 and 235, High Court has a duty
to exercise continuous superintendence over Judicial
~
Magistrates in terms of s. 483 CrPC - Orders of High Court
and Judicial Magistrate set aside - Code of Criminal
Procedure, 1973 - s.483 - Administration of justice. F
The City Co-operative Bank filed a complaint petition
in the court of the Judicial Magis~rate alleging commission
of offences punishable u/ss 406, 420, 423, 465, 477, 468,
471, 120-8, 124 r/w 34 IPC by the respondents - accused. G
The Magistrate by order dated 11.6.2004 directed u/s 156(3)
.. CrPC the complaint to be registered and sent to the Police
Station concerned for investigation. However, subse-
quently, on complainant's application informing the court
475 H
.'
476 SUPREME COURT REPORTS [2009] 7 S.C.R.
A that a compromise had been arrived at between the
parties; ·the Magistrate ordered to withdraw the inquiry.
The appellants, who were depositors in the Bank, filed
writ petitions challenging the orders of the Judicial '
Magistrate. The High Court having dismissed the writ
8 petitions, the depositors filed the appeals.
Allowing the appeals, the Court
HELD: 1.1 When an order is passed under sub-s. (3)
of s.156 of the Code of Criminal Procedure, 1973, the
" - !"
c investigation must be carried out. Only when the investi- ,'
gating officer arrives at a finding that the alleged offence
has not been committed by the accused, he may submit ...
a final report. On the other hand, upon investigation if it is
found thata prima facie case has been made out, a charge-
sheet must be filed. [para 8] [481-B-C]
D
'r t-
1.2 Interference with the exercise of statutory power
of investigation by police, far less direction for withdrawal
of any investigation which is sought to be carried out, is
not envisaged under the Code. Magistrate's power in this
E regard is limited. Even otherwise, he does not have any
inherent power. Ordinarily, he has no power to recall his
order. [para 9] [481-C-D]
S.N.Sharma v. Bipen Kumar Tiwari & Ors. (1970) 1 SCC "
653 and Devarapal/i Lakshminarayana Reddy & Ors. vs.
F V.Narayana Reddy & Ors. (1976) 3 SCC 252 - relied on.
1.3 In the instant case, the Magistrate directed
carrying out the investigation by investigating officer and
submit a l'eport. If the investigation was to be carried out
G
in terms of s. 156(3) of the Code, the same could not have
been equated with an enquiry as the two expressions
have differently been defined in ss. 2(g) and 2(h) of the +
Code. In any event, the Magistrate did not have any
jurisdiction to recall the said order. The High Court,
therefore, was not correct in refusing to consider the
H
.
•'
.. -.....-~
DHARMESHBHAI VASUDEVBHAI & ORS. V. 477
STATE OF GUJARAT & ORS.
contention that the Magistrate had no jurisdiction in-that A
behalf. The High Court, apart from exercising its super- .
visory 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
s.483 of the Code. When an order passed by a Magistrate B
which was wholly without jurisdiction was brought to the
notice of the High Court, it could have interfered therewith
even suo motu. [para 10] [483·G-H; 484-A~C]
Ada/at Prasad v. Roop/al Jindal & Ors. (2004) 7 SCC
338; Everest Advertising (P) Ltd. v. StateGovernment of NCT C
of Delhi & Ors. (2007) 5 SCC 54; Dinesh Da/mia v. CBI (2007)
' 8 SCC 770 and S. Suresh Annappa Reddy (Dead) by LRs.
(2004) 13 sec 424 - referred to.
1.4 The orders of the High Court and the Judicial D
Magistrate cannot be sustained and are set aside. It is,
however, made clear that this Court has not entered into
merits of the matter. It is furthermore made clear that in
the event the accused persons intend to question the
legality of the order dated 11.6.2004 passed by the
Magistrate 1-they will be at liberty to take recourse to the E
remedies available to them in law. [para 12] [485-F-G]
Case Law Reference
I,,
(1970) 1 sec 653 relied on para 9
F
(1976) 3 sec 252 relied on para 9
(2004) 1 sec 338 referred to para 11
2001) 5 sec 54 referred to para 11
(2007) 8 sec 110 referred to para 11 G
(2004) 13 sec 424 referred to para 11
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 914 of 2009
H
478 SUPREME COURT REPORTS [2009] 7 S.C.R.
A From the Judgement and Order dated 08.07.2005 of the
Hon'ble High Court of Gujarat atAhmedabad in Special Criminal
Application No. 674 of 2005.
WITH
B Criminal Appeal Nos. 915 of 2009
Criminal Appeal Nos. 916 of 2009
Criminal Appeal Nos. 917 of 2009
Criminal Appeal Nos. 918 of 2009
c
U. U. Lalit Mushtaq Ahmad, Taruna Singh, with him forthe
Appellant.
Hemantik Wahi, K. Enatolesema, Somanath, R.S. Suri, ,,.
for the Respondent.
D
The Judgement of the Court was delivered by
'r
S.B. SINHA, J.
1. Leave granted.
E 2. These 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.
F
3. Some of the borrowers had mortgaged their properties
with the bank. Alleging commission 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
G 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
H consideration of the said allegations directed as under :
DHARMESHBHAI VASUDEVBHAI & ORS. V. 479
STATE OF GUJARAT & ORS. [S.B. SINHA, J.
"The complaint is hereby ordered to be registered as the A
Inquiry Case and is ordered to be sent to Rander:Police
Station under Section 156(3) for the Police Investigation.
On being investigating the offeflce the Investigating Officer
has to submit the report of Investigation ·c;n or before
12.7.2004 before this Court." ·· B
4. However, the complainant filed an application before
1
the learned Magistrate on or about 6.7.2004 informing the
learned Court that a compromise had been entered into by and
between the accused and the· bank pursuant whereto and in
furtherance whereof, an order was passed, directing: C
"As the 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
0
the inquiry. It is to be informed to the concerned Police
Station."
5. Questioning 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 E
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 F
. decision of this Court in Subramanium Sethuraman v. State of
Maharashtra & Anr. [2004 (7) SCALE 733].
The High Court, however, upon taking note of the fact that
at the relevant point of time, an administrator had been G
; 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 :
"It appears that the petitioners were not in the picture, H
480 SUPREME COURT REPORTS [2009] 7 S.C.R.
A - either at the time when the complaint was filed and/or at
the time when the learned Magistrate passed the order
for in"'.estigation 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
B 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
c licence for liquor and, therefore, while considering the
question of locus standi it was observed that the appellant
before the Apex Co.urt 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
D
is of no help to the petitioners."
6. Mr. 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
E 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.
7. Mr.R.S. Suri, learned counsel appearing on behalf of
the respondent, on the other hand, supported the impugned
F judgment.
8. It 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, a first information report can be lodged
G 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
H empowered under sub-section (3) of Section 156 thereof to
DHARMESHBHAI VASUDEVBHAI & ORS. V. 481
STATE OF GUJARAT & ORS. [S.B. SINHA, J.
order an investigation into the allegations contained in the A
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 condueted.
When an order.is -passed under sub-section (3) of Section B
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 C
must be filed.
9. Interference 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. D
· 'f The Magistrate's power in this regard is 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 E
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, F
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~ G
(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 H
482 SUPREME COURT REPORTS [2009] 7 S.C.R.
A _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
B 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 Magistrate."
Interpreting the aforementioned provisions vis-a-vis the
1.ack of inherent power in the Magistrate in terms of Section 561-
C A of the Old Criminal procedure Code (equivalent to Section
482 of the new Code of Criminal procedure), it was held :
"10. This 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
D. is not to be interfered with by the judiciary. Their Lordships
of the Privy C<iuncil 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
E 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
F
with the investigation of the offence."
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
G Code, hel~ as unde_r :
"7. Section 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
H order police investigation under Section 156(3) is different
DHARMESHBHAI VASUDEVBHAI & ORS. V. 483
STATE OF GUJARAT & ORS. {S.B. SINHA, J.
from the power to direct investigation conferred by Section A
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 wh_en the
Magistrate is in seisin of the case. That is to say in the
case of a complaint regarding the commission of a 8
cognizable offence, the power under Section 156(3} can
be invoked by the Magistrate before he takes cognizance
of the offence under Section 190(1)(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 C
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 D
-J process which begins with the collection o,f evidence under
Section 156 and endswith 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 E
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 F
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."
G
10. The learned Magistrate directed carrying out of an
.- investigation by the investigating officer and submit a report to
it. If an investigation was to be 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
H
484 SUPREME COURT REPORTS [2009] 7 S.C.R.
A 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
B 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 : '"
c "Section 483-Duty of High Co'urt 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."
D
11. When 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 Ada/at Prasad v. Roop/al Jindal & Ors. [(2004) 7 SCC
E 338), although this aspect of the matter has not been considered
but having regard 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
F
satisfied that there is sufficient ground to proceed with the
complaint he can issue process by way of summons under
Section 204 of the Code. Therefore, what is necessary or
a condition precedent for issuing process under Section
204 is the satisfaction of the Magistrate either by
G 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
H summoned accused, for obvious reasons because this is
DHARMESHBHAI VASUDEVBHAI & ORS. V 485
STATE OF GUJARAT & ORS. [S.B. SINHA, J.
only a preliminary stage and the stage of hearing of the A
accused woolel-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 8
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 a.nd making C
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 stage."
Ada/at 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
sec 770].
E
To the same effect is the decision of this Court in S. Suresh
v. Annappa Reddy(Dead) by LRs. [(20Q4) 13 SCC 424).
12. For the reasons aforementioned, the impugned
judgments cannot be sustained which are set aside accordingly.
Other impugned judgments have been passed by the High Court F
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 l;>y the learned Magistrate dated 11.6.2004, they G
will be at liberty to take recourse to the remedies available to
them in law.
13. The appeals are allowed accordingly.
R.P. Appeals allowed.
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