TMI Blog2015 (3) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case. 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 - HELD THAT:- 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 - 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 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. Whether in the present case the Magistrate ought to have proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 30th 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the inquiry entrusted to him by the Magistrate. Reliance is placed on Sub-Section 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 forgi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 156(3) instead of proceeding 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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 to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Code of Criminal Procedure, 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 the police that the police officer suspected commission of offence from information rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could exercise such 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 v. State of Maharashtra, (2003) 2 SCC 649, it was observed: 14...In the first place, arrest of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Nurmahomed Rajmahomed, (1929) 31 BOM LR 84, Mahendrasinh Shanabhai Chauhan and Ors. v. State of Gujarat and Anr., (2009) 2 GLR 1647 and Harsh Khurana v. Union of India, 121 (2005) DLT 301 (DB) 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 compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation to the Magistrate in a report which the Magistrate proceeds to consider under Section 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 Section 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 Section 202, Code of Criminal Procedure 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 Section 200, Code of Criminal Procedure 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 author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution 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 abuse of the process of any court or otherwise to secure the ends of justice. 32. In Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal 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. Same view has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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