RAMDEV FOOD PRODUCTS PRIVATE LIMITED Vs. STATE OF GUJARAT
Section 420 - Cheating and dishonestly inducing delivery of property
Section 406 - Punishment for criminal breach of trust
Section 467 - Forgery of valuable security, will, etc
Section 471 - Using as genuine a forged document
Section 114 - Abettor present when offence is committed
Section 409 - Criminal breach of trust by public servant, or by banker, merchant or agent
Supreme Court of India ()
Appeal (Crl.), 600 of 2007, Judgment Date: Mar 16, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.600 OF 2007
RAMDEV FOOD PRODUCTS PRIVATE LIMITED ...APPELLANT
VERSUS
STATE OF GUJARAT
...RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL J.
1. This appeal by special leave has been preferred against
the Judgment and Order dated 17th 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 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 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 Kakadiya[1] .
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 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 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 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 & Others[3]. 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 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 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. The process of criminal law cannot be used when a
dispute is primarily of civil nature. 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 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 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 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 direction for investigation
shall be made, -
(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:
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 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
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 [pic]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 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 [pic]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
"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. 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 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. It requires application of
mind in the manner provided. Existence of power and its
exercise are different. 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. Aiyappa[5], it was
observed :
"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 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 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 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 [pic]"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
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
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
Maharashtra[7], it was observed :
"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 [pic]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
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 Rajmahomed[8], Mahendrasinh Shanabhai Chauhan and
Ors. vs. State of Gujarat and Anr.[9] and Harsh Khurana vs.
Union of India[10] 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 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 Moti[11] and Asha
Das and others vs. The State[12], 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 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), Nurmahomed
Rajmahomed (supra), Mahendrasinh Shanabhai Chauhan (supra) and
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 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,
[pic]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 abuse of the process of any court or
otherwise to secure the ends of justice."
32. In Pepsi Foods Ltd. vs. Special Judicial Magistrate[14],
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.
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 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."
Same view has been taken in Mohinder Singh vs. Gulwant
Singh[16], Manharibhai Muljibhai Kakadia & Anr. vs. Shaileshbhai
Mohanbhai Patel & Ors.[17], Raghuraj Singh Rousha vs. Shivam
Sunadaram Promoters Pvt. Ltd.[18], Chandra Deo Singh vs. Prokas
Chandra Bose[19].
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 Gujarat[23], 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 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
Delhi[24], 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.
39. The appeal is dismissed.
..........................................J.
[ T.S. THAKUR ]
...........................................J.
[ ADARSH KUMAR
GOEL ]
..........................................J.
[ R. BANUMATHI ]
NEW DELHI
MARCH 16, 2015
-----------------------
[1] 1997 (2) GLR 1572
[2] (1979) 1 GLR 17
[3] (2004) 7 SCC 338
[4] (2014) 2 SCC 1
[5] (2013) 10 SCC 705
[6] (1999) 5 SCC 209
[7] (2003) 2 SCC 649
[8] (1929) 31 BOMLR 84
[9] (2009) 2 GLR 1647
[10] 121 (2005) DLT 301 (DB)
[11] AIR (1938) Sind 113
[12] AIR (1953) Assam 1
[13] (2006) 6 SCC 736
[14] (1998) 5 SCC 749
[15] (1976) 3 SCC 736
[16] (1992) 2 SCC 213
[17] (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
[24] (1955) 1 SCR 1150
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