RAMESHBHAI PANDURAO HEDAUversusSTATE OF GUJARAT

                       [2010] 3 S.C.R. 522


A              RAMESHBHAI PANDURAO HEDAU
                                 V.
                       STATE OF GUJARAT
                (Criminal Appeal No. 548 of 2010)
                         MARCH 19, 2010
B
        [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

c      ss. 156(3) and 202 - Power of Magistrate to order
  investigation - HELD: Powers u/s 156(3) can be invoked by
  Magistrate at pre-cognizance stage whereas powers u/s 202
  are to be invoked after cognizance is taken but before
  issuance of process - Once the Magistrate takes cognizance
0 he is thereafter precluded from ordering investigation uls
   156(3) - In the instant case, on the complaint fifed, the
  Magistrate having taken cognizance, rightly postponed the
  issuance of process and kept the complaint for court inquiry
  uls 202 - There is no reason to interfere with-the order of the
E Magistrate as upheld by the· High Court.
       The brother of the appellant was found dead. The
  post mortem report indicated that the death was as a
  result of natural causes. The investigating officer, on the
  basis of the statements of the appellant, his relatives and
F others as also the post-mortem report, closed th.e
  investigation. Thereafter the appellant filed a complaint
  before the Metropolitan Magistrate alleging that offences
  u/ss 302, 144 read with s.120-B IPC had been committed,
  and prayed for an order for inquiry uls 156(3) CrPC. The
G Magistrate by his order dated 17.4.2007 postponed the
  issuance of process and kept the complaint for court
  inquiry in accordance with s.202 CrPC. The writ petition
  filed by the appellant having been dismissed by the High
  Court; he has filed the appeal.
H                             522 i
  RAMESHBHAI PANDURAO HEDAU v. STATE OF                 · 523
                GUJARAT
    The question for consideration before the Court             A
was: whether the Magistrate committed any error in
refusing the appellant's prayer for an investigation by the
police u/s 156(3) of the Code of Criminal Procedure, 1973
and resorting to s.202 of the Code.
                                                                B
     Dismissing the appeal, the Court

     HELD: 1;1. The power to direct an investigation to the
police authorities is available to the Magistrate both u/s
156(3) Cr.P.C. and u/s 202 Cr.P.C. The only difference is
the stage at which the said powers may be invoked. The          C
Courts are ad idem on the question that the powers         u/
s156(3) can be invoked by a Magistrate at a pre-
cognizance stage, whereas powers u/s 202 are to be
invoked after cognizance is taken on a complaint but
before issuance of process. Once the Magistrate takes           D
cognizance of the offence, he is thereafter precluded from
ordering an investigation u/s156 (3) of the Code. [Para
13, 14 and 18) (529-G-H; 530-A; 530-E; 531-E-F]

     Suresh Chand Jain vs. State of M.P, 2001 (1) SCR 257 =     E
(2001) 2 SCC 628; Dharmeshbhai Vasudevbhai & Ors. vs.
State of Gujarat & Ors. (2009) 6 SCC 576; Devarapa/li
Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy &
Ors. 1976 Suppl. SCR 524 = (1976) 3 SCC 252; Di/awar
Singh vs. State of Delhi (2007) 12 SCC 641; and Mohd.
Yousuf vs. Afaq Jahan (Smt.) and Anr. (2006) 1 SCC 627,         F
referred to.                              ·

     1.2. In the instant case, the Magistrate has treated the
protest petition filed by the appellant as a complaint u/s
200 of the Code and has thereafter proceeded u/s 202            G.
Cr.P.C. and kept the matter with himself for an inquiry.
There is nothing irregular in the manner in which the
Magistrate has proceeded and if at the stage of Sub-
section (2) of s. 202 the Magistrate deems it fit, he may
                                                                H
      524      SUPREME COURT REPORTS                  (20101 3 s,c.R


A eitl;ler dismiss the complaint u/s 203 or proceed in terms
    of s.193 and commit the case to the Court of Session.
    There. is no reason to interfere with the order of the
    Magistrate and the views expressed by the High Court in
   .the impugned order on the invocation of jurisdiction by
-i .the Magistrate u/s 202 Cr.P.C. [Para 18-19] [531-F-H; 632-
    A· i;32~B]

                            Case Law Reference:
            2001 (1) SCR 257        referred to            para 6
 c          (2009) 6 sec 576        referred to            para 7
            1976 Suppl. SCR 524 referred to                para 9
            (2007) 12 sec 641       referred to            para 14
·b          (2006) 1 sec 627        referred to            para 16
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 548 of 2010.

       From the Judgment & Order dated 2.7.2008 of the High
 E of Gujarat in Special Criminal Application No. 1458 of 2007.

           Chaitanya Joshi, Nachiketa Joshi, Sudhakar Joshi, Ranjith
      K.C. for the Appellant.

 F         Meenakshi Lekhi, Hemanitka Wahi, Somnath Padan,
     · Jesal for the Respondent.

            The Order of the Court was delivered by

            ALTAMAS KABIR, J. 1. Leave granted.
G
          2. The Appellant is the elder brothef 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
     International Courier and his usual working time was from 1.00
H
   RAMESHBHAI PANDURAO HEDAU v. STATE OF                     525
         GUJARAT [ALTAMAS KABIR, J.]
 p.m. to 7.00 p.m. On 17th October, 2006, on receipt of A
 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 B
 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,          c
 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-mortem examination, the investigation was closed . D
 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 1.7th April, 2007, which was numbered
   as Enquiry Case No.17 ~f 2007. In the complaint, the              E
  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    F
. 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
  Court inquiry, in accordance with Section 202 Cr.P.C.
                                                                     G
   . 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)       H




                           t
    526      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A   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, Ahmadabad, had committed an error in rejecting
8
  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, an inquiry by the Court
  under Section 202 Cr.P.C. would not be apposite in preference
C 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 welt 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
D 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 liabl_e to be set aside with a
E 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 Suresh Chand Jain vs.
F State of M.P. [(2001) 2 sec 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
G 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
H of the Magistrate to recall an order for investigation passed by
  RAMESHBHAI PANDURAO HEDAU v. STATE OF                      527
        GUJARAT [ALTAMAS KABIR, J.]
him under Section 156(3) Cr.P.C., this Court appears to have         A
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 takes cognizance, he has to proceed in
accordance with the procedure embodied in Chapter XV                 B
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      C
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         D ·
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 way of a protest petition could only be entertained     E
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       F
by the Appellant had been rightly rejected.        ·

     9. In support of her submissions, Ms. Lekhi firstly referred
to the decision of this Court in Devarapal/i Lakshminarayana
Reddy & Ors. vs. V. Narayana Reddy & Ors. [(1976) 3 SCC              G
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
                                                                     H
    528     . SUPREME COURT REPGRTS                 [2010] 3 S.C.R.


A with the powers of the police to investigate 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
B 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 contend~d that
    since the police had already conducted an investigation and
    had filed the final report under Section 173(2) of the Code and
c   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 ari inquiry without directing a fresh investigation as
0
    prayed for by the appellant.

         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
·E 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 th.ereof. Section 156, which forms part
 F ofChapter 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,
G
          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.
H
   RAMESHBHAI PANDURAO HEDAU v. STATE OF                      529
         GUJARAT [ALTAMAS KABIR, J.]
     (2) No proceeding of a police officer in any such case shall    A
     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              8
     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 C
 passed by any Magistrate empowered under Section 190 of
 the Code for making such an investigation. Chapter XII deals
 with the cor1duct 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 D
 completion thereof under Section 173(2) of the Code. At this.
·stage it may 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.                  E

      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
                                                                     F
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.                                                                G

    13. The settled legal position has been enunciated by this
Court in several decisions to which we shall refer presently. The
Court's are ad idem on the question that the powers under
Section 156(3) can be invoked by a learned Magistrate at a H
    530      SUPREME COURT REPORTS                [2010] 3 S.C.R.


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
B 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
C the difference in the investigative procedure in Chapters XII and
  XV of the Code has been recpgnized and in that case this Court
  also appears to have taken the view that any Judicial
  Magistrate, before taking cognizance 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
D 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
E 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
F 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
  police officer, under Section 190 of the Code. Section 200
G 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
              a
  made by police officer before issuing process.

      16. Reference was also made to the decision of this Court
H in Mohd. Yousuf vs. Afaq Jahan (Smt.) and Anr. [(2006) 1
   RAMESHBHAI PANDURAO HEDAU v. STATE OF                        531
         GUJARAT [ALTAMAS KABIR, J.]
SCC 627], where it has been held that when a Magistrate                 A
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          B
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
already been taken by him of the offence disclosed in the
complaint but issuance of process had been postponed.                   c
      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 D
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            E
 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 hereinbefore, the power under Section
156(3) Cr. P .C. to direct an investigation by the police               F
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           G
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          H
    532       SUPREME COURT REPORTS                   (2010] 3 S.C.R.


A   either dismiss the complaint under Section 203 or proceed in
    terms of Section 193 and commit the case to the Court of
    Sessions.

           19. We, therefore, see no reason to interfere with the order
B 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.
                                 \
    R.P.                                          Appeal dismissed.