REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 914 OF 2009 (Arising out of SLP (Crl.) No.3813 of 2005)

Dharmeshbhai Vasudevbhai & Ors. … Appellants

Versus

State of Gujarat & Ors. … Respondents

WITH

CRIMINAL APPEAL NOS. 915, 916, 917 and 918 OF 2009 (Arising out of SLP (Crl.) Nos.3839, 3565, 3754 and 3771 of 2005)

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. These appeals arising out of a common judgment were taken up for  

hearing together.  

Appellants herein are depositors in City Cooperative Bank Ltd. (the  

Bank), a bank incorporated and registered under the Gujarat Co-operative  

Societies Act, 1962.

3. Some of the borrowers had mortgaged their properties with the bank.  

Alleging commission of offences under Sections 406, 420, 423, 465, 477,  

468, 471, 120(B), 124 and 34 of the Indian penal Code and investigation  

against the accused persons - respondents herein, the bank filed a complaint  

petition before the Second Court of Judicial  Magistrate First  Class,  Surat  

praying  for  a  direction  upon  the  Rander  Police  Station  to  register  a  

complaint.

By  an  order  dated  11.6.2004,  the  learned  Magistrate  upon  

consideration of the said allegations directed as under :

“The complaint is hereby ordered to be registered  as the Inquiry Case and is  ordered to be sent to  Rander Police Station under Section 156(3) for the  Police  Investigation.   On being  investigating  the  offence the Investigating Officer has to submit the  report  of  Investigation  on  or  before  12.7.2004  before this Court.”

4. However,  the  complainant  filed  an  application  before  the  learned  

Magistrate  on  or  about  6.7.2004  informing  the  learned  Court  that  a  

2

compromise had been entered into by and between the accused and the bank  

pursuant whereto and in furtherance whereof, an order was passed, directing:

“As the compromise has been taken place between  the  complainant  and the  accused which  is  being  proclaimed by Ex.4, the complainant don’t want to  proceed  further  with  the  complaint,  the  order  is  being passed to withdraw the inquiry.  It is to be  informed to the concerned Police Station.”

5. Questioning the legality and validity thereof, the appellants filed Writ  

Petitions before the High Court.   

The main judgment was passed in the case of Writ Petition No.3771  

of  2005.   Before  the  High  Court,  a  contention  was  raised  that  once  a  

complaint  is  sent  for  registration  of  the  first  information  report  and  

investigation on the allegations contained therein, the learned Magistrate had  

no jurisdiction to recall the order.  Reliance in this behalf, inter alia, was  

placed on the decision of this Court in Subramanium Sethuraman v. State of  

Maharashtra & Anr. [2004 (7) SCALE 733].   

The High Court,  however,  upon taking note of  the fact  that  at  the  

relevant  point  of  time,  an  administrator  had  been  functioning  under  the  

direct  control  and  supervision  of  the  District  Registrar,  Co-operative  

Societies, in absence of any allegation that he had exercised his power mala  

fide, declined to interfere with the said order dated 6.7.2004, stating :

3

“It  appears  that  the  petitioners  were  not  in  the  picture, either at the time when the complaint was  filed  and/or  at  the  time  when  the  learned  Magistrate passed the order for investigation under  Section 156(3) of Cr.P.C. or at the time when the  settlement  purshis  was  filed  and  the  learned  Magistrate passed the offer of recalling the inquiry  in  the  month  of  July  2004.   As  such  in  normal  circumstances,  the petitioners who are depositors  of  the  bank  can  be  said  as  third  party  to  the  programmes of the complaint and subsequent there  to  in  case  of  S.M.S.  Jayaraj  (Supra),  the  case  before the Apex Court was pertaining to the grant  of  licence  for  liquor  and,  therefore,  while  considering  the  question  of  locus  standi  it  was  observed that the appellant before the Apex Court  was the person, who was having the business in the  area can have locus.  In any case, it was not matter  for  considering  the  question  of  locus  standi  in  criminal  prosecution  and,  therefore,  the  said  decision is of no help to the petitioners.”

6. Mr.  U.U.  Lalit,  learned  senior  counsel  appearing  on  behalf  of  the  

appellant, would submit that the High Court committed a serious error in  

passing the impugned order insofar as it failed to take into consideration that  

the learned Magistrate could not have recalled his earlier order passed in  

terms of sub-section (3) of Section 156 of the Code of Criminal Procedure.   

7. Mr.R.S. Suri, learned counsel appearing on behalf of the respondent,  

on the other hand, supported the impugned judgment.  

8. It is well settled that any person may set the criminal law in motion  

subject of course to the statutory interdicts.  When an offence is committed,  

4

a first information report can be lodged under Section 154 of the Code of  

Criminal Procedure (for short, ‘the Code’).  A complaint petition may also  

be filed in terms of Section 200 thereof.  However, in the event for some  

reasons or the other, the first information report is not recorded in terms of  

sub-section (1) of Section 156 of the Code, the magistrate  is  empowered  

under sub-section (3) of Section 156 thereof to order an investigation into  

the allegations contained in the complaint petition.  Thus, power to direct  

investigation  may  arise  in  two  different  situations  –  (1)  when  a  first  

information report is refused to be lodged; or (2) when the statutory power  

of investigation for some reason or the other is not conducted.   

When an order is passed under sub-section (3) of Section 156 of the  

Code, an investigation must  be carried out.   Only when the investigating  

officer arrives at a finding that the alleged offence has not been committed  

by  the  accused,  he  may submit  a  final  form;   On the  other  hand,  upon  

investigation if  it  is  found that  a  prima facie case has been made out,  a  

charge-sheet must be filed.

9. Interference in the exercise of the statutory power of investigation by  

the  Police  by  the  Magistrate  far  less  direction  for  withdrawal  of  any  

investigation which is sought to be carried out is not envisaged under the  

Code  of  Criminal  Procedure.   The  Magistrate’s  power  in  this  regard  is  

5

limited.  Even otherwise, he does not have any inherent power.  Ordinarily,  

he has no power to recall his order.

This aspect of the matter has been considered by this Court in  S.N.  

Sharma v.  Bipen Kumar Tiwari & Ors. [(1970) 1 SCC 653], wherein  the  

law has been stated as under :

“6. Without the use of the expression “if he thinks  fit”, the second alternative could have been held to  be  independent  of  the  first;  but  the  use  of  this  expression, in our opinion, makes it plain that the  power  conferred  by  the  second  clause  of  this  section is only an alternative to the power given by  the  first  clause  and  can,  therefore,  be  exercised  only  in  those  cases  in  which  the  first  clause  is  applicable.

7. It may also be further noticed that, even in sub- section (3) of Section 156, the only power given to  the  Magistrate,  who  can  take  cognizance  of  an  offence  under  Section  190,  is  to  order  an  investigation; there is no mention of any power to  stop an investigation by the police. The scheme of  these sections, thus, clearly is that the power of the  police  to  investigate  any  cognizable  offence  is  uncontrolled by the  Magistrate,  and it  is  only in  cases where the police decide not to investigate the  case that the Magistrate can intervene and either  direct  an  investigation,  or,  in  the  alternative,  himself proceed or depute a Magistrate subordinate  to  him to  proceed  to  enquire  into  the  case.  The  power of the police to investigate has been made  independent of any control by the Magistrate.”

6

Interpreting  the  aforementioned  provisions  vis-a-vis  the  lack  of  

inherent  power  in  the  Magistrate  in  terms  of  Section  561-A of  the  Old  

Criminal procedure Code (equivalent  to Section 482 of the new Code of  

Criminal procedure), it was held :

“10. This interpretation,  to some extent,  supports  the view that the scheme of the Criminal Procedure  Code is that the power of the police to investigate a  cognizable offence is not to be interfered with by  the judiciary. Their Lordships of the Privy Council  were, of course, concerned only with the powers of  the High Court under Section 561-A CrPC, while  we  have  to  interpret  Section  159  of  the  Code  which defines the powers of a Magistrate which he  can exercise on receiving a report from the police  of the cognizable offence under Section 157 of the  Code.  In  our  opinion,  Section  159  was  really  intended to give a limited power to the Magistrate  to ensure that the police investigate all cognizable  offences and do not refuse to do so by abusing the  right  granted  for  certain  limited  cases  of  not  proceeding with the investigation of the offence.”

Yet  again  in  Devarapalli  Lakshminarayana  Reddy  &  Ors. v.  V.  

Narayana Reddy & Ors. [(1976) 3 SCC 252], this Court, upon comparison  

of the provision of the old Code and the new Code, held as under :

“7.  Section 156(3)  occurs  in  Chapter  XII,  under  the caption : “Information to the Police and their  powers  to  investigate”;  while  Section  202  is  in  Chapter  XV  which  bears  the  heading:  “Of  complaints  to  Magistrates”.  The  power  to  order  police  investigation  under  Section  156(3)  is  different  from  the  power  to  direct  investigation  

7

conferred by Section 202(1).  The two operate in  distinct  spheres  at  different  stages.  The  first  is  exercisable at the pre-cognizance stage, the second  at the post-cognizance stage when the Magistrate  is in seisin of the case. That is to say in the case of  a  complaint  regarding  the  commission  of  a  cognizable  offence,  the  power  under  Section  156(3) can be invoked by the Magistrate before he  takes  cognizance  of  the  offence  under  Section  190(l)(a).  But  if  he  once  takes  such  cognizance  and  embarks  upon  the  procedure  embodied  in  Chapter XV, he is not competent to switch back to  the  pre-cognizance  stage  and  avail  of  Section  156(3). It may be noted further that an order made  under  sub-section  (3)  of  Section  156,  is  in  the  nature of a peremptory reminder or intimation to  the  police  to  exercise  their  plenary  powers  of  investigation  under  Section  156(1).  Such  an  investigation  embraces  the  entire  continuous  process  which  begins  with  the  collection  of  evidence under Section 156 and ends with a report  or  charge-sheet  under  Section 173.  On the other  hand, Section 202 comes in at a stage when some  evidence has been collected by the Magistrate in  proceedings  under  Chapter  XV,  but  the  same  is  deemed  insufficient  to  take  a  decision  as  to  the  next  step  in  the  prescribed  procedure.  In  such  a  situation,  the  Magistrate  is  empowered  under  Section  202  to  direct,  within  the  limits  circumscribed by that section an investigation “for  the  purpose  of  deciding  whether  or  not  there  is  sufficient ground for proceeding”. Thus the object  of  an  investigation  under  Section  202  is  not  to  initiate a fresh case on police report but to assist  the Magistrate in completing proceedings already  instituted upon a complaint before him.”

10. The learned Magistrate directed carrying out of an investigation by the  

investigating officer and submit a report to it.  If an investigation was to be  

8

carried out in terms of Section 156(3) of the Code, the same could not have  

been equated with an enquiry as the two expressions have differently been  

defined in Section 3(h)  and 3(i)  of  the Code.   In  any event,  the  learned  

Magistrate did not have any jurisdiction to recall the said order.  The High  

Court, therefore, in our opinion was not correct in refusing to consider the  

contention  raised  on  behalf  of  the  appellants  that  the  Magistrate  had  no  

jurisdiction  in  that  behalf.   The  High  Court,  apart  from  exercising  its  

supervisory jurisdiction under Articles 227 and 235 of the Constitution of  

India, has a duty to exercise continuous superintendence over the Judicial  

Magistrates in terms of Section 483 of the Code of Criminal Procedure.  It  

reads as under :

“Section 483—Duty of  High Court to exercise  continuous  superintendence  over Courts  of  Judicial Magistrates—Every High Court shall so  exercise  its  superintendence  over  the  Courts  of  Judicial Magistrates subordinate to it as to ensure  that there is an expeditious and proper disposal of  cases by such Magistrates.”

11. When an  order  passed by  a  Magistrate  which  was wholly  without  

jurisdiction  was  brought  to  the  notice  of  the  High  Court,  it  could  have  

interfered therewith even suo motu.

In  Adalat  Prasad v.  Rooplal  Jindal  &  Ors. [(2004)  7  SCC  338],  

although this aspect of the matter has not been considered but having regard  

9

to the power exercised by the Magistrate under Chapter XVI and XVII of the  

Code, it was held :

“14. But after taking cognizance of the complaint  and examining the complainant and the witnesses  if he is satisfied that there is sufficient ground to  proceed with the complaint he can issue process by  way of summons under Section 204 of the Code.  Therefore,  what  is  necessary  or  a  condition  precedent for issuing process under Section 204 is  the  satisfaction  of  the  Magistrate  either  by  examination of the complainant and the witnesses  or by the inquiry contemplated under Section 202  that there is sufficient ground for proceeding with  the  complaint  hence  issue  the  process  under  Section 204 of the Code. In none of these stages  the Code has provided for hearing the summoned  accused, for obvious reasons because this is only a  preliminary stage and the stage of hearing of the  accused  would  only  arise  at  a  subsequent  stage  provided for in the latter provision in the Code. It  is true as held by this Court in Mathew case1 that  before issuance of summons the Magistrate should  be  satisfied  that  there  is  sufficient  ground  for  proceeding with the complaint but that satisfaction  is to be arrived at by the inquiry conducted by him  as contemplated under Sections 200 and 202, and  the only stage of dismissal of the complaint arises  under Section 203 of the Code at which stage the  accused has no role to play, therefore, the question  of the accused on receipt of summons approaching  the court and making an application for dismissal  of the complaint under Section 203 of the Code on  a  reconsideration  of  the  material  available  on  record  is  impermissible  because  by  then  Section  203  is  already  over  and  the  Magistrate  has  proceeded further to Section 204 stage.”

10

Adalat Prasad has been followed by this Court in Everest Advertising  

(P) Ltd. v.  State, Government of NCT of Delhi & Ors. [(2007) 5 SCC 54]  

and Dinesh Dalmia v. CBI [(2007) 8 SCC 770].

To  the  same  effect  is  the  decision  of  this  Court  in  S.  Suresh v.  

Annappa Reddy (Dead) by LRs. [(2004) 13 SCC 424].   

12. For the reasons aforementioned, the impugned judgments cannot be  

sustained which are set aside accordingly.  Other impugned judgments have  

been passed by the High Court relying on the judgment and order passed in  

SCRLA  No.701  of  2005.   It  is,  however,  made  clear  that  we  have  not  

entered into the merit of the matter.  We furthermore make it clear that in the  

event the accused persons intend to question the legality of the order passed  

by the learned Magistrate dated 11.6.2004, they will  be at liberty to take  

recourse to the remedies available to them in law.

13. The appeals are allowed accordingly.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.   [Cyriac Joseph]

New Delhi; May 5, 2009

11