REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.       OF 2010  (@SPECIAL LEAVE PETITION(CRL) No.8600 of 2008)

Rameshbhai Pandurao Hedau             … Appellant  Vs.

State of Gujarat … Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The  Appellant  is  the  elder  brother  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 p.m. to 7.00 p.m.  On 17th October,  

2006, on receipt of 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 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,  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-

2

mortem examination, the investigation was closed 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 17th April, 2007, which was numbered as  

Enquiry Case No.17 of 2007.   In the complaint, the  

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  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  

3

Court  inquiry,  in  accordance  with  Section  202  

Cr.P.C.

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) 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,  Ahmedabad,  had  

committed  an  error  in  rejecting  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,  

4

an inquiry by the Court under Section 202 Cr.P.C.  

would  not  be  apposite  in  preference  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  well  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 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 liable to be set aside  

with a 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  

5

Suresh Chand Jain vs. State of M.P. [(2001) 2 SCC  

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 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 of the Magistrate to  

recall  an  order  for  investigation  passed  by  him  

under Section 156(3) Cr.P.C., this Court appears to  

have 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  

6

takes cognizance, he has to proceed in accordance  

with the procedure embodied in Chapter XV 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  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 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  

7

way of a protest petition could only be entertained  

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 by the Appellant had been rightly rejected.  

9. In  support  of  her  submissions,  Ms.  Lekhi  

firstly referred to the decision of this Court in  

Devarapalli  Lakshminarayana  Reddy  &  Ors. vs.  

V.  Narayana  Reddy  &  Ors. [(1976)  3  SCC  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 with the powers of the police to investigate  

8

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  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  

contended  that  since  the  police  had  already  

conducted an investigation and had filed the final  

report under Section 173(2) of the Code and 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 an inquiry without directing a  

fresh investigation as prayed for by the appellant.

9

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 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 thereof.  Section 156, which  

forms part of Chapter 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,  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.

10

(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.”

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  passed  by  any  Magistrate  empowered  under  

Section  190  of  the  Code  for  making  such  an  

investigation.  Chapter XII deals with the conduct  

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 completion thereof under  

Section 173(2) of the Code.  At this stage it may  

11

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.

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  

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.

13. The settled legal position has been enunciated  

by  this  Court  in  several  decisions  to  which  we  

12

shall refer presently.  The Courts are ad idem on  

the question that the powers under Section 156(3)  

can be invoked by a learned Magistrate at 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  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 the difference  

in the investigative procedure in Chapters XII and  

XV of the Code has been recognized and in that case  

this Court also appears to have taken the view that  

any Judicial Magistrate, before taking cognizance  

13

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 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 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 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  

14

police  officer,  under  Section  190  of  the  Code.  

Section 200 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 made  

by a police officer before issuing process.

16. Reference was also made to the decision of this  

Court in  Mohd. Yousuf vs.  Afaq Jahan (Smt.) and  

Anr. [(2006) 1 SCC 627], where it has been held  

that when a Magistrate 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 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  

15

already been taken by him of the offence disclosed  

in the complaint but issuance of process had been  

postponed.   

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  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 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  

16

hereinbefore,  the  power   under  Section  156(3)  

Cr.P.C. to direct an investigation by the police  

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  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 either dismiss the  

complaint under Section 203 or proceed in terms of  

Section 193 and commit the case to the Court of  

Sessions.   

17

19. We, therefore, see no reason to interfere with  

the order 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.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 19.03.2010

18