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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.600 OF 2007
RAMDEV FOOD PRODUCTS PRIVATE LIMITED Vs STATE OF GUJARAT
Dated;MARCH 16, 2015
This appeal by special leave has been preferred
against the Judgment and Order dated 17 th February, 2006 of
the High Court of Gujarat at Ahmedabad in Special Criminal
Application No.1821 of 2005.
2.
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.
3.
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 30 th May, 1994.
Accused No.1
executed forged partnership documents with the help of
other accused and thereby committed the alleged offences.
4.
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.
5.
The High Court did not accept the stand of the
appellant.
It
was
observed
that
the
appellant
had
approached the High Court against the Order of the
Magistrate after delay of four months from the date of the
Order which itself disentitled it to a direction under Section
156(3).
It was further observed that the Magistrate had
given reasons for declining to direct investigation under
Section 156(3) and the said Order did not call for any
interference.
The reasons given by the Magistrate, inter
alia, are that the Police had refused to register a case.
There was civil litigation which had gone up to the Supreme
Court and thus the case was of civil nature.
The fact
whether the documents in question were forged or not could
be ascertained in civil proceedings by getting the opinion of
the hand writing expert. Scope of inquiry under Section 202
was limited to find out whether a case was made out for
issue of process.
Suppression of material fact of pendency
of civil dispute by the complainant also justified the order of
the Magistrate to proceed under Section 202 instead of
Section 156(3). It was further observed that a Magistrate is
not justified in ordering police investigation in mechanical
manner as laid down by the Gujarat High Court in
Arvindbhai
Ravjibhai
Patel
vs.
Dhirubhai
Shambhubhai Kakadiya1 .
6.
We have heard learned counsel for the parties. When
the matter came up for hearing on 11th April, 2007, this
Court framed the question as follows:
“The question involved in the instant Special
Leave Petition is as to the extent of power
that may be exercised by a police officer while
making an inquiry under Section 202(1) of the
Code of Criminal Procedure particularly,
whether he has power to arrest in course of
the inquiry entrusted to him by the
Magistrate. Reliance is placed on Sub-Section
1
1997 (2) GLR 1572
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Criminal Appeal No.600 of 2007
3 of Section 202 to contend that the power to
arrest without warrant cannot be exercised by
a person not being a police officer. Impliedly
it is contended that so far as the police officer
is concerned that constraint is not there.”
However, in the light of submissions made during the
hearing, we frame following questions for consideration:
“(i) Whether discretion of the Magistrate to
call for a report under Section 202 instead of
directing investigation 156(3) is controlled by
any defined parameters?
(ii) Whether in the course of investigation in
pursuance of a direction under Section 202,
the Police Officer is entitled to arrest an
accused?
(iii)
Whether in the present case, the
Magistrate erred in seeking report under
Section 202 instead of directing investigation
under Section 156(3)?”
7.
Contention on behalf of the appellant is that the
Magistrate and the High Court erred in declining to order
investigation under Section 156(3) which was necessary in
view of the allegation of forgery of documents and stamp
papers by the accused to create back dated partnership
deeds by forging signatures of a dead person.
Such
documents being in custody of the accused could not be
otherwise produced except on arrest in the course of
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Criminal Appeal No.600 of 2007
investigation and in accordance with Section 27 of the
Evidence Act. Option of proceeding under Section 202, as
against Section 156(3), has to be exercised only when
evidence has already been collected and what remained to
be decided was whether there was sufficient ground to
proceed. Mere fact that the appellant first approached the
Police and the police did not register First Information Report
could not be taken against it nor the dispute being of civil
nature was a bar to criminal proceedings, if a case was
made out.
8.
Learned counsel for the appellant also submitted that
direction under Section 156(3) for investigation was all the
more necessary in view of interpretation given by the
Gujarat High Court in Sankalchand Valjibhai Patel vs.
J.P. Chavda and Ors.2 that under Section 202, the Police
Officer had no power of arrest. In such a situation calling for
report under Section 202 will not serve the purpose of
finding out the truth.
It was also submitted that the said
view was erroneous and contrary view in other judgments
was sound and needs to be approved by this Court.
Referring to Section 202 (3), it was pointed out that a person
2
(1979) 1 GLR 17
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Criminal Appeal No.600 of 2007
other than police officer could not exercise power of arrest
but police officer was not so debarred. Moreover, arrest was
integral part of investigation.
9.
Jasvantbhai Somabhai Patel, the alleged accused has
filed an application for impleadment stating that dispute
between the parties is of civil nature. His contention is that
the appellant is attempting to abuse the process of law to
arm-twist the accused by having him arrested by the police.
In the circumstances, no interference was called for by this
Court. This application has been opposed by the appellant
on the ground that during the stage of inquiry under Section
202 of the Code, the accused has no right to be heard as
laid down by this Court in Adalat Prasad vs. Rupal Jindal
& Others3.
Having regard to the legal issue involved, we
have heard learned counsel for the accused on the
questions involved.
10.
As already observed, the contention of the appellant is
that when there is allegation of forgery and discovery of
documents
is
necessary,
a
Magistrate
must
order
investigation under Section 156(3) instead of proceeding
3
(2004) 7 SCC 338
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Criminal Appeal No.600 of 2007
under Section 202. Alternatively, direction to the Police to
investigate and give a report under Section 202 implies
arrest and discovery which under Section 157 of the Code
are integral parts of investigation. Contrary view of Gujarat
High Court in Sankalchand Valjibhai Patel (supra) and
other High Courts was erroneous while the view taken by
other High Courts to which reference will be made in later
part of this Judgment is correct. Section 202 (3) expressly
provides that if a person, other than police officer is required
to conduct investigation under Section 202 (1), he is not
authorized to arrest without warrant which implied that
there is no such restriction on power of arrest available with
a police officer.
11.
On the other hand, contention on behalf of the alleged
accused is that both the powers of the Magistrate - (i)
directing
investigation
under
Section
156(3);
and
(ii)
direction under Section 202 to seek a report from police
after investigation to enable the Magistrate to decide
whether
to
proceed
further
and
issue
process
are
qualitatively different and are in different chapters of the
Code. Thus, as per scheme of the Code, power of police in
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Criminal Appeal No.600 of 2007
pursuance of directions under the said two provisions is not
the same.
The
Magistrate
has
discretion
either
to
direct
registration of a case under Section 156(3) or to conduct
inquiry himself as the situation may warrant. This discretion
is to be exercised by the Magistrate in his wisdom and
having regard to the nature of material available. Direction
under Section 156(3) to register a criminal case and to
investigate is to be exercised where the Magistrate is
satisfied that prima facie a cognizable offence has been
committed. On the contrary, where he thinks it necessary to
conduct further inquiry before deciding whether he should
proceed further in the matter, matter has to be dealt with
under Section 202. Mere allegation of forgery is not enough
to require the Magistrate to pass the order under Section
156(3).
12.
It is further submitted that in the present case, the civil
proceedings are pending between the parties where the
question of genuineness or otherwise of the partnership
deed is an issue.
used
when
a
The process of criminal law cannot be
dispute
is
primarily
of
civil
nature.
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Criminal Appeal No.600 of 2007
Simultaneously initiation of criminal proceedings may be
permitted where an offence is shown to have been
committed.
Thus, the Magistrate was entitled to satisfy
himself as to whether any cognizable offence had been
committed before proceeding further.
The Magistrate was
not satisfied from the material available that any cognizable
offence had been committed and he rightly decided to
conduct further enquiry under Section 202. Having regard
to the limited nature of inquiry under Section 202 which
option had been rightly chosen by the Magistrate, direction
to the police to investigate and give a report was limited by
the very purpose for which the limited inquiry was to be
held, as against procedure for investigation in cases not
covered under Section 202 of the Code. The purpose was to
enable the Magistrate to decide whether there was ground
to proceed further. The Magistrate having taken cognizance
of the offence and the police having not registered a
criminal case nor the Magistrate having directed registration
of criminal case, procedure and power of the Police in the
matter are different and in such a situation police did not
have the power to arrest, without permission of the
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Criminal Appeal No.600 of 2007
Magistrate as was the view of the Gujarat and other High
Courts.
13.
We may first deal with the question as to whether the
Magistrate ought to have proceeded under Section 156(3) or
was justified in proceeding under Section 202(1) and what
are the parameters for exercise of power under the two
provisions.
14.
The two provisions are in two different chapters of the
Code, though common expression ‘investigation’ is used in
both the provisions. Normal rule is to understand the same
expression in two provisions of an enactment in same sense
unless the context otherwise requires. Heading of Chapter
XII is “Information to the Police and their Powers to
Investigate” and that of Chapter XV is “Complaints to
Magistrate”.
Heading
of
Chapter
XIV
is
“Conditions
Requisite for Initiation of Proceedings”. The two provisions
i.e. Sections 156 and 202 in Chapters XII and XV respectively
are as follows :
“156.
Police
officer's
power
investigate cognizable case.
to
(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
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Criminal Appeal No.600 of 2007
the limits of such station would have power to
inquire into or try under the provisions of
Chapter XIII.
(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.
202. Postponement of issue of process.-
(1) Any Magistrate , on receipt of a complaint
of an offence of which he is authorized to take
cognizance or which has been made over to
him under section 192, may, if he thinks fit,
[and shall in a case where the accused is
residing at a place beyond the area in which
he exercises his jurisdiction] postpone the
issue of process against the accused, and
either inquire into the case himself or direct
an investigation to be made by a police officer
or by such other person as he thinks fit, for
the purpose of deciding whether or not there
is sufficient ground for proceeding:
Provided that
no
such
investigation shall be made, -
direction
for
(a) where it appears to the Magistrate
that the offence complained of is triable
exclusively by the Court of Sessions; or
(b) where the complaint has not been
made by a Court, unless the complainant
and the witnesses present (if any) have
been examined on oath under section
200.
(2) In an inquiry under sub-section (1), the
Magistrate may, if he thinks fit, take evidence
of witnesses on oath:
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Criminal Appeal No.600 of 2007
Provided that if it appears to the Magistrate
that the offence complained of is triable
exclusively by the Court of Session, he shall
call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is
made by a person not being a police officer,
he shall have for that investigation all the
powers conferred by this Code on an officer in
charge of a police station except the power to
arrest without warrant.”
15.
Cognizance is taken by a Magistrate under Section
190 (in Chapter XIV) either on “receiving a complaint”, on
“a police report” or “information received” from any person
other than a police officer or upon his own knowledge.
Chapter XV deals exclusively with complaints to
Magistrates.
Reference to Sections, 202, in the said
Chapter, shows that it provides for “postponement of issue
of process” which is mandatory if accused resides beyond
the Magistrate’s jurisdiction (with which situation this case
does not concern) and discretionary in other cases in which
event an enquiry can be conducted by the Magistrate or
investigation can be directed to be made by a police officer
or such other person as may be thought fit “for the
purpose of deciding whether or not there is sufficient
ground for proceeding”. We are skipping the proviso as
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Criminal Appeal No.600 of 2007
it does not concern the question under discussion. Clause
(3) provides that if investigation is by a person other than a
police officer, he shall have all the powers of an officer
incharge of a police station except the power to arrest.
16.
Chapter XII, dealing with the information to the police
and their powers to investigate, provides for entering
information relating to a ‘cognizable offence’ in a book to be
kept by the officer incharge of a police station (Section 154)
and such entry is called “FIR”. If from the information, the
officer incharge of the police station has reason to suspect
commission of an offence which he is empowered to
investigate subject to compliance of other requirements, he
shall proceed, to the spot, to investigate the facts and
circumstances and, if necessary, to take measure, for the
discovery and arrest of the offender (Section 157(1).
17.
In Lalita Kumari vs. Govt. of U.P.4, this Court dealt
with the questions :
“30.1. (i) Whether the immediate non-
registration of FIR leads to scope for
manipulation by the police which affects the
right of the victim/complainant to have a
complaint immediately investigated upon
allegations being made; and
4
(2014) 2 SCC 1
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Criminal Appeal No.600 of 2007
30.2. (ii) Whether in cases where the
complaint/information
does
not
clearly
disclose the commission of a cognizable
offence but the FIR is compulsorily registered
then does it infringe the rights of an accused.”
18.
These questions were answered as follows :
“49. Consequently, the condition that is sine
qua non for recording an FIR under Section
154 of the Code is that there must be
information and that information must
disclose a cognizable offence. If any
information disclosing a cognizable offence is
led before an officer in charge of the police
station satisfying the requirement of Section
154(1), the said police officer has no other
option except to enter the substance thereof
in the prescribed form, that is to say, to
register a case on the basis of such
information. The provision of Section 154 of
the Code is mandatory and the officer
concerned is duty-bound to register the case
on the basis of information disclosing a
cognizable offence. Thus, the plain words of
Section 154(1) of the Code have to be given
their literal meaning.
“Shall”
72. It is thus unequivocally clear that
registration of FIR is mandatory and also that
it is to be recorded in the FIR book by giving a
unique annual number to each FIR to enable
strict tracking of each and every registered
FIR by the superior police officers as well as
by the competent court to which copies of
each FIR are required to be sent.
“Information”
73. The legislature has consciously used the
expression “information” in Section 154(1) of
the Code as against the expression used in
Sections 41(1)(a)* and (g) where the
expression used for arresting a person without
warrant is “reasonable complaint” or “credible
Page 15 of
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Criminal Appeal No.600 of 2007
information”. The expression under Section
154(1) of the Code is not qualified by the
prefix “reasonable” or “credible”. The non-
qualification of the word “information” in
Section 154(1) unlike in Sections 41(1)(a)*
and (g) of the Code is for the reason that the
police officer should not refuse to record any
information relating to the commission of a
cognizable offence on the ground that he is
not satisfied with the reasonableness or
credibility of the information. In other words,
reasonableness or credibility of the said
information is not a condition precedent for
the registration of a case.
94. Principles of democracy and liberty
demand a regular and efficient check on
police powers. One way of keeping check on
authorities
with
such
powers
is
by
documenting
every
action
of
theirs.
Accordingly, under the Code, actions of the
police, etc. are provided to be written and
documented. For example, in case of arrest
under Section 41(1)(b) of the Code, the arrest
memo along with the grounds has to be in
writing mandatorily; under Section 55 of the
Code, if an officer is deputed to make an
arrest, then the superior officer has to write
down and record the offence, etc. for which
the person is to be arrested; under Section 91
of the Code, a written order has to be passed
by the officer concerned to seek documents;
under Section 160 of the Code, a written
notice has to be issued to the witness so that
he can be called for recording of his/her
statement, seizure memo/panchnama has to
be drawn for every article seized, etc.
107. While registration of FIR is mandatory,
arrest of the accused immediately on
registration of FIR is not at all mandatory. In
fact, registration of FIR and arrest of an
accused person are two entirely different
concepts under the law, and there are several
safeguards available against arrest. Moreover,
it is also pertinent to mention that an accused
person also has a right to apply for
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Criminal Appeal No.600 of 2007
“anticipatory bail” under the provisions of
Section 438 of the Code if the conditions
mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest
under that provision by obtaining an order
from the court.
108. It is also relevant to note that in Joginder
Kumar v. State of U.P.(1994) 4 SCC 260], this
Court has held that arrest cannot be made by
the police in a routine manner. Some
important observations are reproduced as
under: (SCC pp. 267-68, para 20)
“20. ... No arrest can be made in a routine
manner on a mere allegation of commission of
an offence made against a person. It would be
prudent for a police officer in the interest of
protection of the constitutional rights of a
citizen and perhaps in his own interest that no
arrest should be made without a reasonable
satisfaction reached after some investigation
as to the genuineness and bona fides of a
complaint and a reasonable belief both as to
the person’s complicity and even so as to the
need to effect arrest. Denying a person of his
liberty
is
a
serious
matter.
The
recommendations of the Police Commission
merely reflect the constitutional concomitants
of the fundamental right to personal liberty
and freedom. A person is not liable to arrest
merely on the suspicion of complicity in an
offence. There must be some reasonable
justification in the opinion of the officer
effecting the arrest that such arrest is
necessary and justified. Except in heinous
offences, an arrest must be avoided if a police
officer issues notice to person to attend the
Station House and not to leave the Station
without permission would do.”
111. Besides, the Code gives power to the
police to close a matter both before and after
investigation. A police officer can foreclose an
FIR before an investigation under Section 157
of the Code, if it appears to him that there is
no sufficient ground to investigate the same.
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Criminal Appeal No.600 of 2007
The section itself states that a police officer
can start investigation when he has “reason to
suspect the commission of an offence”.
Therefore, the requirements of launching an
investigation under Section 157 of the Code
are higher than the requirement under
Section 154 of the Code. The police officer can
also, in a given case, investigate the matter
and then file a final report under Section 173
of the Code seeking closure of the matter.
Therefore, the police is not liable to launch an
investigation in every FIR which is mandatorily
registered on receiving information relating to
commission of a cognizable offence.
114. It is true that a delicate balance has to
be maintained between the interest of the
society and protecting the liberty of an
individual. As already discussed above, there
are already sufficient safeguards provided in
the Code which duly protect the liberty of an
individual in case of registration of false FIR.
At the same time, Section 154 was drafted
keeping in mind the interest of the victim and
the society. Therefore, we are of the cogent
view that mandatory registration of FIRs under
Section 154 of the Code will not be in
contravention of Article 21 of the Constitution
as purported by various counsel.
115. Although, we, in unequivocal terms, hold
that Section 154 of the Code postulates the
mandatory registration of FIRs on receipt of all
cognizable offences, yet, there may be
instances where preliminary inquiry may be
required owing to the change in genesis and
novelty of crimes with the passage of time.
One such instance is in the case of allegations
relating to medical negligence on the part of
doctors. It will be unfair and inequitable to
prosecute a medical professional only on the
basis of the allegations in the complaint.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of
each case. The category of cases in which
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Criminal Appeal No.600 of 2007
preliminary inquiry may be made are as
under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e)
Cases
where
there
is
abnormal
delay/laches in initiating criminal prosecution,
for example, over 3 months’ delay in reporting
the matter without satisfactorily explaining
the reasons for delay.”
19.
Thus, this Court has laid down that while prompt
registration of FIR is mandatory, checks and balances on
power of police are equally important. Power of arrest or of
investigation is not mechanical.
mind in the manner provided.
exercise
are
different.
It requires application of
Existence of power and its
Delicate
balance
had
to
be
maintained between the interest of society and liberty of an
individual.
Commercial offences have been put in the
category of cases where FIR may not be warranted without
enquiry.
20.
It has been held, for the same reasons, that direction
by the Magistrate for investigation under Section 156(3)
cannot be given mechanically.
In Anil Kumar vs. M.K.
Aiyappa5, it was observed :
5
(2013) 10 SCC 705
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Criminal Appeal No.600 of 2007
“11. The scope of Section 156(3) CrPC came
up for consideration before this Court in
several cases. This Court in Maksud Saiyed
case [(2008) 5 SCC 668] examined the
requirement of the application of mind by the
Magistrate before exercising jurisdiction under
Section 156(3) and held that where
jurisdiction is exercised on a complaint filed in
terms of Section 156(3) or Section 200 CrPC,
the Magistrate is required to apply his mind, in
such a case, the Special Judge/Magistrate
cannot refer the matter under Section 156(3)
against a public servant without a valid
sanction order. The application of mind by the
Magistrate should be reflected in the order.
The mere statement that he has gone through
the complaint, documents and heard the
complainant, as such, as reflected in the
order, will not be sufficient. After going
through the complaint, documents and
hearing the complainant, what weighed with
the Magistrate to order investigation under
Section 156(3) CrPC, should be reflected in
the order, though a detailed expression of his
views is neither required nor warranted. We
have already extracted the order passed by
the learned Special Judge which, in our view,
has
stated
no
reasons
for
ordering
investigation.”
The above observations apply to category of cases
mentioned in Para 120.6 in Lalita Kumari (supra).
21.
On the other hand, power under Section 202 is of
different nature. Report sought under the said provision has
limited purpose of deciding “whether or not there is
sufficient ground for proceeding”. If this be the object, the
procedure under Section 157 or Section 173 is not intended
to be followed. Section 157 requires sending of report by
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Criminal Appeal No.600 of 2007
the police that the police officer suspected commission of
offence from information received by the police and
thereafter the police is required to proceed to the spot,
investigate the facts and take measures for discovery and
arrest. Thereafter, the police has to record statements and
report on which the Magistrate may proceed under Section
190. This procedure is applicable when the police receives
information of a cognizable offence, registers a case and
forms the requisite opinion and not every case registered by
the police.
22.
Thus, we answer the first question by holding that the
direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate
does not take cognizance and does not find it necessary to
postpone instance of process and finds a case made out to
proceed forthwith, direction under the said provision is
issued.
In other words, where on account of credibility of
information available, or weighing the interest of justice it is
considered appropriate to straightaway direct investigation,
such a direction is issued.
Cases where Magistrate takes
cognizance and postpones issuance of process are cases
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Criminal Appeal No.600 of 2007
where the Magistrate has yet to determine “existence of
sufficient ground to proceed”.
Category of cases falling
under Para 120.6 in Lalita Kumari (supra) may fall under
Section 202.
Subject to these broad guidelines available
from the scheme of the Code, exercise of discretion by the
Magistrate is guided by interest of justice from case to case.
23.
We now proceed to deal with the second question of
power of police to arrest in the course of investigation under
Section 202 with a view to give its report to the Magistrate
to enable him to decide whether a case to proceed further
existed. Careful examination of scheme of the Code reveals
that in such situation power of arrest is not available with
the police. Contention based on language of Section 202(3)
cannot be accepted.
24.
The maxim ‘expressio unius est exclusion alterious’
(express mention of one thing excludes others) has been
called a valuable servant but a dangerous master. In Mary
Angel and others vs. State of T.N.6, this Court observed
as follows on the scope of the maxim:
“19. Further, for the rule of interpretation on
the basis of the maxim “expressio unius est
exclusio alterius”, it has been considered in
6
(1999) 5 SCC 209
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Criminal Appeal No.600 of 2007
the decision rendered by the Queen’s Bench
in the case of Dean v. Wiesengrund [(1955) 2
QB 120 : (1955) 2 All ER 432]. The Court
considered the said maxim and held that after
all it is no more than an aid to construction
and has little, if any, weight where it is
possible to account for the “inclusio unius” on
grounds other than intention to effect the
“exclusio alterius”. Thereafter, the Court
referred to the following passage from the
case of Colquhoun v. Brooks [(1887) 19 QBD
400 : 57 LT 448] QBD at 406 wherein the
Court called for its approval—
“... ‘The maxim “expressio unius est
exclusio alterius” has been pressed upon us. I
agree with what is said in the court below by
Wills, J. about this maxim. It is often a
valuable servant, but a dangerous master to
follow in the construction of statutes or
documents. The exclusio is often the result of
inadvertence or accident, and the maxim
ought not to be applied, when its application,
having regard to the subject-matter to which
it is to be applied, leads to inconsistency or
injustice.’ In my opinion, the application of the
maxim here would lead to inconsistency and
injustice, and would make Section 14(1) of the
Act of 1920 uncertain and capricious in its
operation.”
20. The aforesaid maxim was referred to by
this Court in the case of CCE v. National
Tobacco Co. of India Ltd. [(1972) 2 SCC 560].
The Court in that case considered the
question whether there was or was not an
implied power to hold an enquiry in the
circumstances of the case in view of the
provisions of Section 4 of the Central Excise
Act read with Rule 10-A of the Central Excise
Rules and referred to the aforesaid passage
“the maxim is often a valuable servant, but a
dangerous master ...” and held that the rule is
subservient to the basic principle that courts
must endeavour to ascertain the legislative
intent and purpose, and then adopt a rule of
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Criminal Appeal No.600 of 2007
construction which effectuates rather than
one that may defeat these. Moreover, the rule
of prohibition by necessary implication could
be applied only where a specified procedure is
laid down for the performance of a duty. In the
case of Parbhani Transport Coop. Society Ltd.
v. Regional Transport Authority [AIR 1960 SC
801 : (1960) 3 SCR 177] this Court observed
that the maxim “expressio unius est exclusio
alterius” is a maxim for ascertaining the
intention of the legislature and where the
statutory language is plain and the meaning
clear, there is no scope for applying. Further,
in Harish Chandra Bajpai v. Triloki Singh [AIR
1957 SC 444 : 1957 SCR 370, 389] SCR at p.
389 the Court referred to the following
passage from Maxwell on Interpretation of
Statutes, 10th Edn., pp. 316-317:
“Provisions sometimes found in statutes,
enacting imperfectly or for particular cases
only that which was already and more widely
the law, have occasionally furnished ground
for the contention that an intention to alter
the general law was to be inferred from the
partial or limited enactment, resting on the
maxim expressio unius, exclusio alterius. But
that maxim is inapplicable in such cases. The
only inference which a court can draw from
such superfluous provisions (which generally
find a place in Acts to meet unfounded
objections and idle doubts), is that the
legislature was either ignorant or unmindful of
the real state of the law, or that it acted under
the influence of excessive caution.”
We are of the view that the maxim does not apply for
interpretation of Section 202 (3) for the reasons that follow.
In our view, the correct interpretation of the provision is that
merely negating the power of arrest to a person other than
police officer does not mean that police could exercise such
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Criminal Appeal No.600 of 2007
power. The emphasis in the provision is to empower such
person to exercise other powers of incharge of a police
station than the power of arrest. As regards the power of
police to arrest, there are express provisions dealing with
the same and power of police to arrest is not derived from or
controlled by Section 202 (3). The said power is available
under Section 41 or under a warrant.
The power remains
available subject to conditions for exercise thereof.
For
example it can be exercised if cognizable offence is
committed in the presence of a police officer (Section 41(1)
(a). Under Section 202, since the Magistrate is in seisin of
the matter and has yet to decide “whether or not there is
sufficient ground for proceeding”, there is no occasion for
formation of opinion by the police about credibility of
available information necessary to exercise power of arrest
as the only authority of the police is to give report to
Magistrate to enable him to decide whether there is
sufficient ground to proceed. Power of arrest is not to be
exercised mechanically.
In M.C. Abraham vs. State of
Maharashtra7, it was observed :
7
(2003) 2 SCC 649
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Criminal Appeal No.600 of 2007
“14. ......In the first place, arrest of an
accused is a part of the investigation and is
within the discretion of the investigating
officer. Section 41 of the Code of Criminal
Procedure provides for arrest by a police
officer without an order from a Magistrate and
without a warrant. The section gives discretion
to the police officer who may, without an
order from a Magistrate and even without a
warrant, arrest any person in the situations
enumerated in that section. It is open to him,
in the course of investigation, to arrest any
person who has been concerned with any
cognizable
offence
or
against
whom
reasonable complaint has been made or
credible information has been received, or a
reasonable suspicion exists of his having been
so concerned. Obviously, he is not expected to
act in a mechanical manner and in all cases to
arrest the accused as soon as the report is
lodged. In appropriate cases, after some
investigation, the investigating officer may
make up his mind as to whether it is
necessary to arrest the accused person. At
that stage the court has no role to play. Since
the power is discretionary, a police officer is
not always bound to arrest an accused even if
the allegation against him is of having
committed a cognizable offence. Since an
arrest is in the nature of an encroachment on
the liberty of the subject and does affect the
reputation and status of the citizen, the power
has to be cautiously exercised. It depends
inter alia upon the nature of the offence
alleged and the type of persons who are
accused of having committed the cognizable
offence. Obviously, the power has to be
exercised with caution and circumspection.”
25.
Nature of cases dealt with under Section 202 are cases
where material available is not clear to proceed further. The
Magistrate is in seisin of the matter having taken the
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Criminal Appeal No.600 of 2007
cognizance.
He has to decide whether there is ground to
proceed further. If at such premature stage power of arrest
is exercised by police, it will be contradiction in terms. As
regards denial of opportunity to record confession under
Section 27 of the Evidence Act, it has to be kept in mind that
admissibility of such confession cannot guide exercise of
power of arrest. Source of power of arrest is governed by
other provisions and not by Section 27. It is only if arrest is
otherwise permissible that provision of Section 27 may be
invoked.
If exercise of power of arrest is not otherwise
warranted, admissibility of confession under Section 27
cannot facilitate such exercise.
We, thus, hold that the
police of its own cannot exercise its power of arrest in the
course of making its report in pursuance of direction under
Section 202.
26.
We may now proceed to deal with the conflict in
decisions which has been pointed out to us.
Bombay,
Gujarat and Delhi High Courts in Sankalchand Valjibhai
Patel
(supra),
Emperor
vs.
Nurmahomed
Rajmahomed8, Mahendrasinh Shanabhai Chauhan and
8
(1929) 31 BOMLR 84
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Criminal Appeal No.600 of 2007
Ors. vs. State of Gujarat and Anr.9 and Harsh Khurana
vs. Union of India10 have held that in the course of
investigation directed under Section 202 (1) the police
cannot exercise the power of arrest. Reasoning is by and
large similar. Cases covered by Section 202 are such where
Magistrate is yet to decide whether the material was
sufficient to proceed. Till formation of such opinion, arrest
will be incongruous. We may only refer to the observations
of M.P. Thakker, J. (as he then was) in Sankalchand
Valjibhai Patel (supra) :
“2. The question that has surfaced in the back
drop of the aforesaid facts and circumstances
is: when upon receipt of a complaint of an
offence a Magistrate instead of issuing
process postpones the issue of process
against the accused and direct? a police
officer to make an investigation for the
purpose of deciding whether or not there is
sufficient ground for proceeding, can the
police officer in charge of the investigation on
his own, place the accused under arrest?
Section 202 (1) in so far as material reads as
under:
202. (1) Any Magistrate, on receipt
of a complaint of an offence of which
he is authorised to take cognizance
or which has been made over to him
under Section 192, may, if he thinks
fit, postpone the issue of process
against the accused, and either
inquire into the case himself or
9
(2009) 2 GLR 1647
121 (2005) DLT 301 (DB)
10
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Criminal Appeal No.600 of 2007
direct an investigation to be made
by a police officer or by such other
person as he thinks fit, for the
purpose of deciding whether or not
there is sufficient ground for
proceeding.”
27.
On the other hand in Emperor vs. Bikha Moti11 and
Asha Das and others vs. The State12, Sind and Assam
High Courts respectively have taken a contrary view by
holding that when direction for investigation issued under
Section 202 (1) is issued, the police is to investigate
precisely in the same manner and arrest the accused in
precisely the same manner as they would have done if they
had recorded First Information Report.
28.
We may only refer to the observations of Devis, CJ in
Bikha Moti (supra) as follows:
“Now S. 202(1) refers not only to an enquiry
but also to an investigation : and Section
202(2) confers upon a person other than a
Magistrate or a police officer all powers
conferred upon a police officer in charge of a
police station except the power of arrest
without warrant. Surely this implies that a
police officer to whom a complaint has been
referred for investigation has the power to
arrest without warrant under S.54, Criminal
P.C. and all other powers which may be
exercised by a police officer in the course of
an investigation. To us, the scheme of the
section appears to be that when a complaint
11
12
AIR (1938) Sind 113
AIR (1953) Assam 1
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Criminal Appeal No.600 of 2007
is sent to the police for investigation and
report, they are to investigate in precisely the
same manner and to arrest in precisely the
same way as they would have done if their
powers had been first invoked by a first report
under S. 154, their being only this difference,
that in the one case the police embody the
result of their investigation to the Magistrate
in a report which the Magistrate proceeds to
consider under S.203, while in the other case
the police embody the result of their
investigation in what is called a challan or
charge-sheet, but which is really a police
report under S.190(b), the term challan or
charge sheet not occurring in the section, the
accused person, in any case, if arrested by the
police, being produced before the Magistrate
in the ordinary way. To hold otherwise would
be to leave the proceedings started by the
Magistrate under S.202,
Criminal P.C.
unfinished, and in the air; for, he would not
have, as the law contemplates, a report of the
investigation but he would have a refusal by
the police to report as in this case, and other
and independent proceedings in the same
matter initiated by them.
But the law
contemplates that proceedings, begun by the
acceptance by a Magistrate of a complaint
under S.200, Criminal P.C. and sent to the
police for investigation under Section 202,
should be terminated by the Magistrate as set
out in Section 203 and the following sections.
The proceedings are not terminated when the
Magistrate’s authority is defied, his jurisdiction
in effect denied and the order to investigate
and report disobeyed.
The law does not
contemplate this, and we cannot see that this
aspect of the case has been considered in any
of the judgments which have been cited to us
in support of the case of this Court in
27 SLR 67.”
29.
For the reasons already discussed above, we approve
the view taken in Sankalchand Valjibhai Patel (supra),
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Criminal Appeal No.600 of 2007
Nurmahomed
Shanabhai
Rajmahomed
Chauhan
(supra),
(supra)
and
Mahendrasinh
Harsh
Khurana
(supra) and overrule the rule taken in Bikha Moti (supra)
and Asha Das (supra).
30.
We now come to the last question whether in the
present case the Magistrate ought to have proceeded under
Section 156(3) instead of Section 202. Our answer is in the
negative.
The Magistrate has given reasons, which have
been upheld by the High Court. The case has been held to
be primarily of civil nature. The accused is alleged to have
forged partnership.
Whether such forgery actually took
place, whether it caused any loss to the complainant and
whether there is the requisite mens rea are the questions
which are yet to be determined.
The Magistrate has not
found clear material to proceed against the accused. Even a
case for summoning has not yet been found.
While a
transaction giving rise to cause of action for a civil action
may also involve a crime in which case resort to criminal
proceedings
may
be
justified,
there
is
judicially
acknowledged tendency in the commercial world to give
Page 31 of
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Criminal Appeal No.600 of 2007
colour of a criminal case to a purely commercial transaction.
This Court has cautioned against such abuse.
31.
In Indian Oil Corpn. vs. NEPC India Ltd.13, it was
observed :
“13. While on this issue, it is necessary to take
notice of a growing tendency in business circles
to convert purely civil disputes into criminal
cases. This is obviously on account of a
prevalent impression that civil law remedies are
time consuming and do not adequately protect
the interests of lenders/creditors. Such a
tendency is seen in several family disputes also,
leading
to
irretrievable
breakdown
of
marriages/families. There is also an impression
that if a person could somehow be entangled in
a criminal prosecution, there is a likelihood of
imminent settlement. Any effort to settle civil
disputes and claims, which do not involve any
criminal offence, by applying pressure through
criminal prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State of U.P.
[(2000) 2 SCC 636] this Court observed: (SCC p.
643, para 8)
“It is to be seen if a matter, which is
essentially of a civil nature, has been
given a cloak of criminal offence.
Criminal proceedings are not a short cut
of other remedies available in law.
Before issuing process a criminal court
has to exercise a great deal of caution.
For the accused it is a serious matter.
This Court has laid certain principles on
the basis of which the High Court is to
exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this
section has to be exercised to prevent
13
(2006) 6 SCC 736
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Criminal Appeal No.600 of 2007
abuse of the process of any court or
otherwise to secure the ends of justice.”
32.
In
Pepsi
Foods
Ltd.
vs.
Special
Judicial
Magistrate14, it was observed :
“28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot
be set into motion as a matter of course. It is
not that the complainant has to bring only
two witnesses to support his allegations in
the complaint to have the criminal law set
into motion. The order of the Magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and the law applicable thereto. He has to
examine the nature of allegations made in
the complaint and the evidence both oral and
documentary in support thereof and would
that be sufficient for the complainant to
succeed in bringing charge home to the
accused. It is not that the Magistrate is a
silent spectator at the time of recording of
preliminary evidence before summoning of
the accused. The Magistrate has to carefully
scrutinise the evidence brought on record
and may even himself put questions to the
complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examine if
any offence is prima facie committed by all or
any of the accused.”
33.
In view of above, we find that the Magistrate and the
High Court rightly held that in the present case report under
Section 202 was the right course instead of direction under
Section 156(3). The question is answered accordingly.
14
(1998) 5 SCC 749
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Criminal Appeal No.600 of 2007
34.
We may now also refer to other decisions cited at the
bar and their relevance to the questions arising in the case.
In Smt. Nagawwa vs. Veeranna Shivalingappa
Konjalgi & Ors.15, referring to earlier Judgments on the
scope of Section 202, it was observed :
“3. In Chandra Deo Singh v. Prokash Chandra
Bose [AIR (1963) SC 1430 this Court had after
fully considering the matter observed as
follows:
“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
15
(1976) 3 SCC 736
Page 34 of
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Criminal Appeal No.600 of 2007
by
the
complainant
and
the
statements made before him by
persons examined at the instance of
the complainant.”
Indicating the scope, ambit of Section 202 of
the Code of Criminal Procedure this Court in
Vadilal
Panchal
v.
Dattatraya
Dulaji
Ghadigaonker [AIR (1960) SC 1113] observed
as follows:
“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.”
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Criminal Appeal No.600 of 2007
Same view has been taken in Mohinder Singh vs.
Gulwant Singh16, Manharibhai Muljibhai Kakadia &
Anr.
vs.
Raghuraj
Shaileshbhai
Singh
Mohanbhai
Rousha
vs.
Patel
Shivam
&
Ors.17,
Sunadaram
Promoters Pvt. Ltd.18, Chandra Deo Singh vs. Prokas
Chandra Bose19.
In Devrapalli Lakshminaryanan Reddy & Ors. vs.
V. Narayana Reddy & Ors. 20, National Bank of Oman
vs. Barakara Abdul Aziz & Anr.21, Madhao & Anr. vs.
State of Maharashtra & Anr. 22, Rameshbhai Pandurao
Hedau vs. State of Gujarat23, the scheme of Section
156(3) and 202 has been discussed. 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
16
(1992) 2 SCC 213
(2012) 10 SCC 517
18
(2009) 2 SCC 363
19
(1964) 1 SCR 639
20
(1976) 3 SCC 252
21
(2013) 2 SCC 488
22
(2013) 5 SCC 615
23
(2010) 4 SCC 185
17
Criminal Appeal No.600 of 2007
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.
35.
These aspects have already been discussed above and
are indeed undisputed.
36.
In H.N. Rishbud and Inder Singh vs. The State of
Delhi24, 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.
37.
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.
38.
The
questions
framed
for
consideration
stand
answered accordingly.
24
(1955) 1 SCR 1150
Criminal Appeal No.600 of 2007
39.
The appeal is dismissed.
..........................................J.
[ T.S. THAKUR ]
...........................................J.
[ ADARSH KUMAR GOEL ]
..........................................J.
[ R. BANUMATHI ]
NEW DELHI
MARCH 16, 2015
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