# 5 S.C.R. 283 RAMDEV FOOD PRODUCTS PRIVATE LIMITED v. STATE OF GUJARAT

- **Citation:** [2015] 5 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 2015-03-16
- **Case number:** Criminal Appeal No. 600 of 2007
- **Bench:** T. S. Thakur, Adarsh Kumar Goel, B R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-283-ramdev-food-products-private-limited-v-state-of-gujarat-30754
- **Pages:** 37

## Headnote

C
Code of Criminal Procedure, 1973:
ss.156(3) and 202(1) - Investigation under- Scope
of - Complaint before Magistrate alleging forgery and D
seeking investigation u!s. 156(3) - The Magistrate instead
directed the police to give report u/s. 202(1) - High Court
declined to interfere with the order- Held: The parameters
for exercise of power under both the provisions are different
- Direction under 156(3) can be issued where an account of E
credibility of information is available, or weighing the interest
of justice it is considered appropriate to straightaway direct
investigation - The nature of cases dealt with u/s. 202 are
those where material available are not clear to proceed further
- The present case was primarily of civil nature - On the F
allegation of forgery, Magistrate did not find clear material to
proceed against the accused - Therefore, the Magistrate
rightly passed direction u/s. 202 as in the facts of the case,
direction u/s. 156(3) was not warranted.
s. 202 (3) - Power of police to arrest - During
'investigation under - Held: Section 202 (3) does not give
power to the police to arrest- Merely negating the power of
arrest to person other than police, does not mean that police
283
G
H
284
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A could exercise such power.
B
Maxims - 'Expressio unius est exclusion alterious'
(express mention of one thing excludes others)-Applicability
of.
Dismissing the appeal, the Court
HELD: 1.1 The direction uls. 156(3) Cr.P.C is to be
issued, only after application of mind by the Magistrate.
C 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. Cases where
Magistrate takes cognizance and postpones issuance
D of process are cases where the Magistrate has yet to
determine "existence of sufficient ground to proceed".
Category of cases i.e. Matrimonial disputes/family
disputes, Commercial offences, Medical negligence
cases, Corruption cases, Cases where there is abnormal
E delay/laches in initiating criminal prosecution, for
example, over 3 months' delay in reporting the matter
without satisfactorily explaining the reasons for delay,
may fall under Section 202 Cr.P.C. Subject to these brc.:.ld
guidelines available from the scheme of Cr.P.C, exercise
F of discretion by the Magistrate is guided by interest of
justice from case to case. [Para 22] [306-B-D]
1.2. Section 156(3) and Section 202(1) are in two
different chapters of Cr.P.C. though common expression
G '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
H
RAMDEV FOOD PRODUCTS. PRIVATE LTD. v. STJ.\TE ·285
OF GUJARAT
Investigate" and that of Chapter XV is "Complaints to A
Magistrate". Chapter XV deals exclusively with
complaints to Magistrates. [Para 14) [296-D]
1.3 While prompt registration of FIR is mandatory,
checks arid balances on power of police are equally B
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. C
Commercial offences have been put in the category of
cases where FIR may not be warranted without enquiry.
[Para 19) [304-D-E]
1.4 Power uls. 202 Cr.P.C. is of different nature. D
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 uls. 157 or Section 173 is not intended to be
followed. [Para 21) [305-E-F]
E
Lalita Kumari vs. Govt. of U.P. (2014) 2 SCC 1; Anil
Kumar vs. M.K. Aiyappa (2013) 10 SCC 705: 2013 (9)
SCR 869; Devrapal/i Lakshminaryanan Reddy

## Text

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(2015] 5 S.C.R. 283
RAMDEV FOOD PRODUCTS PRIVATE LIMITED
A
v.
STATE OF GUJARAT
Criminal Appeal No. 600 of 2007
MARCH 16, 2015
[T. S. THAKUR, ADARSH KUMAR GOEL AND
B
R. BANUMATHI, JJ.]
C
Code of Criminal Procedure, 1973:
ss.156(3) and 202(1) - Investigation under- Scope
of - Complaint before Magistrate alleging forgery and D
seeking investigation u!s. 156(3) - The Magistrate instead
directed the police to give report u/s. 202(1) - High Court
declined to interfere with the order- Held: The parameters
for exercise of power under both the provisions are different
- Direction under 156(3) can be issued where an account of E
credibility of information is available, or weighing the interest
of justice it is considered appropriate to straightaway direct
investigation - The nature of cases dealt with u/s. 202 are
those where material available are not clear to proceed further
- The present case was primarily of civil nature - On the F
allegation of forgery, Magistrate did not find clear material to
proceed against the accused - Therefore, the Magistrate
rightly passed direction u/s. 202 as in the facts of the case,
direction u/s. 156(3) was not warranted.
s. 202 (3) - Power of police to arrest - During
'investigation under - Held: Section 202 (3) does not give
power to the police to arrest- Merely negating the power of
arrest to person other than police, does not mean that police
283
G
H
284
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A could exercise such power.
B
Maxims - 'Expressio unius est exclusion alterious'
(express mention of one thing excludes others)-Applicability
of.
Dismissing the appeal, the Court
HELD: 1.1 The direction uls. 156(3) Cr.P.C is to be
issued, only after application of mind by the Magistrate.
C 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. Cases where
Magistrate takes cognizance and postpones issuance
D of process are cases where the Magistrate has yet to
determine "existence of sufficient ground to proceed".
Category of cases i.e. Matrimonial disputes/family
disputes, Commercial offences, Medical negligence
cases, Corruption cases, Cases where there is abnormal
E delay/laches in initiating criminal prosecution, for
example, over 3 months' delay in reporting the matter
without satisfactorily explaining the reasons for delay,
may fall under Section 202 Cr.P.C. Subject to these brc.:.ld
guidelines available from the scheme of Cr.P.C, exercise
F of discretion by the Magistrate is guided by interest of
justice from case to case. [Para 22] [306-B-D]
1.2. Section 156(3) and Section 202(1) are in two
different chapters of Cr.P.C. though common expression
G '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
H
RAMDEV FOOD PRODUCTS. PRIVATE LTD. v. STJ.\TE ·285
OF GUJARAT
Investigate" and that of Chapter XV is "Complaints to A
Magistrate". Chapter XV deals exclusively with
complaints to Magistrates. [Para 14) [296-D]
1.3 While prompt registration of FIR is mandatory,
checks arid balances on power of police are equally B
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. C
Commercial offences have been put in the category of
cases where FIR may not be warranted without enquiry.
[Para 19) [304-D-E]
1.4 Power uls. 202 Cr.P.C. is of different nature. D
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 uls. 157 or Section 173 is not intended to be
followed. [Para 21) [305-E-F]
E
Lalita Kumari vs. Govt. of U.P. (2014) 2 SCC 1; Anil
Kumar vs. M.K. Aiyappa (2013) 10 SCC 705: 2013 (9)
SCR 869; Devrapal/i Lakshminaryanan Reddy & Ors.
Vs. Narayana Reddy & Ors. (1976) 3 SCC 252: 1976
(0) Suppl. SCR 524; National Bank of Oman vs.
Barakara Abdul Aziz & Anr., (2013) 2 SCC 488: 2012
(11) SCR 500; Madhao&Anr. Vs. State of Maharashtra
& Anr., (2013) 5 sec 615: 2013 (5) SCR 484;
Rameshbhai Pandurao Hedau vs. State of Gujarat,
· (2010) 4 SCC 185: 2010 (3) SCR 522 - relied on.
Smt. Nagawwa vs. Veeranna Shiva/ingappa Konjalgi
& ors. (1976) 3 sec 736: 1976 (O) Suppl. SCR 123;
F
G
H
286
A
B
SUPREME COURT REPORTS
(2015) 5 S.C.R.
MohinderSingh vs. Gu/want Singh, (1992) 2 SCC 213:
1991 (3) Suppl. SCR 478; Manharibhai Muljibhai
Kakadia & Anr. Vs. Shaileshhai Mohanbhai Patel &
Ors., (2012) 10 SCC 517: 2012 (8) SCR 1015;
.Raghuraj Singh Rousha vs. Shivam Sunadaram
Promoters Pvt. Ltd. (2009) 2 SCC 363 2008 (17)
SCR 833; Chandra Deo Singh vs. Prokas Chandra
Bose, (1964) 3 SCC 252 - referred to.
2.1 In the course of investigation under Section
C 202 with a view to give its report to the Magistrate to
enable him to decide whether a case to proceed further
existed, power of arrest is not available with the police.
[Para 23] [306-F]
D
2.2 The maxim 'expressio unius est exclusion
altE~rious' (express mention of one thing excludes others)
has been called a valuable servant but a dangerous
master. The maxim does not apply for interpretation of
Section 202(3). The correct interpretation of the
E 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
F 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
Section202(3). The said power is available under Section
G 41 or under a warrant. The power remains available
subject to conditions for exercise thereof. 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
H
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 287
OF GUJARAT
formation of opinion by the police about credibility of A
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. [Para 24] [306-G; 309-B-F]
B
2.3 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 C
ground to proceed further. If at such premature stage
power of arrest is exercised by police, it will be
contradiction in terms. The police of its own cannot
exercise its power of arrest in the course of making its D
report in pursuance of direction under Section 202. [Para
25] [310-G-H; 311-A-B]
Emperor vs. Bikha Moti, AIR (1938) Sind 113; Asha
Das and others vs. The State, AIR (1953) Assam 1 -
overruled.
Mary Angel and others vs. State of T.N., (1999) 5 SCC
209: 1999 (3) SCR 594; M.C. Abraham vs. State of
Maharashtra, (2003) 2 SCC 649: 2002 (5) Suppl.
SCR 677 - relied on.
Sankalchand Valjibhai Patel,
Emperor vs.
Nurmahomed Rajmahomed (1929) 31 BOMLR 84;
Mahendrasinh Shanabhai Chauhan and Ors. Vs. State
of Gujarat and Anr. (2009) 2 GLR 1647; Harsh Khurana
vs. Union of India 121 (2005) DLT 301 (DB) - upheld.
H.N. Rishbud and lnder Singh vs. The State of Delhi,
(1955) 1 SCR 1150 - referred to.
E
F
G
H
288
SUPREME COURT REPORTS
[2015) 5 S.C.R.
A
3. In the present case the Magistrate ought not to
have proceeded u/s. 156(3) instead of Section 202. 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
B 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
C 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
o judicially acknowledged tendency in the commercial
world to give colour of a criminal case to a purely
commercial transaction. The Magistrate and the High
Court rightly held that in the present case report u/s. 202
was the right course instead of direction u/s. 156(3). [Para
E 30, 33] (314-D-F; 3106-E]
Indian Oil Corpn. Vs. NEPC India Ltd. (2006) 6 SCC
736: 2006 (3) Suppl. SCR 704; Pepsi Food Ltd. Vs.
Special Judicial Magistrate, (1998) 5 SCC 749: 1997
F
(5) Suppl. SCR 12- relied on.
Case Law Reference
(2014) 2 sec 1
relied on
Para 17
G
2013 (9) SCR 869
relied on
Para 19
1999 (3) SCR 594
relied on
Para 24
2002 (5) Suppl. SCR 677
relied on
Para 24
(1929) 31BOMLR84
upheld
Para 29
H
(2009) 2 GLR 1647
upheld
Para 29
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 289
OF GUJARAT
121 (2005) DLT 301 (DB)
upheld
Para 29
A
AIR (1938) Sind 113
overruled
Para 29
AIR (1953) Assam 1
overruled
Para 29
2006 (3) Suppl. SCR 704
relied on
Para 31
1997 (5) Suppl. SCR 12
relied on
Para 32
B
1976 (0) Suppl. SCR 524
relied on
Para 34
2012 (11) SCR 500
relied on
Para 34
2013 (5) SCR 484
relied on
Para 34 c
2010 (3) SCR 522
relied on
Para 34
1976 (0) Suppl. SCR 123
referred to
Para 34
1991 (3) Suppl. SCR 478
referred to
Para 34
2012 (8) SCR 1015
referred to
Para 34 D
2008 (17) SCR 833
referred to
Para 34
(1964) 3 sec 252
referred to
Para 34
(1955) 1SCR1150
referred to
Para 36
E
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 600 of 2007
From the Judgment and Order dated 17 .02.2006 of the
High Court of Gujarat at Ahmadabad in Special Criminal
F
Application No. 1821/2005
S. V. Raju, Huzefa Ahmadi, Siddharth Luthra,
Meenakshi Arora, Pradhuman Gohil, Taruna Singh, Vikash
Singh, Jaikriti S. Jadeja, Prabuddha Sharma, Rohan Sharma, G
Hemantika Wahi, Jesal, Preeti Bhardwaj, GissAntony, Shamik
Sajjanwala, Vivek Jain, Mahesh Agarwal, Rishi Agrawala, E.,
C. Agrawala, Shashank Manish, Manav Mehta, Mahima
Sareen, Devika Mohan, DivyaA. for the appearing parties.
H
290
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
The Judgment of the Court was delivered by
-
-~
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
B 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,
c San and 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 SubInspector, Sanand, to give a report to the Court within thirty
D 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
E 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.
F However, M/s. New Ramdev Masala Factory was closed on
3Q1h May, 1994. Accused No.1 executed forged partnership
documents with the help of other accused and thereby
committed the alleged offences.
G
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
H Sub Inspector within thirty days. Grievance of the appellant
RAMDEV FOOD PRODUCTS PRIVATE LTD.. v. STATE 291
OF GUJARAT [ADARSH KUMAR GOEL, J.]
before the High Court was that in view of the allegation that A
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 B
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 riot 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
c
of four months from the date of the Order which itself disentitled D
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.
E
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 F
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 G
in ordering police investigation in mechanical manner as laid
down by the Gujarat High Court in Arvindbhai Ravjibhai Patel
vs. Dhirubhai Shambhubhai Kakadiya1 .
1 1997 (2) GLR 1572
H
292
A
B
c
D
SUPREME COURT REPORTS
[2015] 5 S.C.R.
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
E
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
F
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
G
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
H viiew of the allegation of forgery of documents and stamp
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 293
OF GUJARAT [ADARSH KUMAR GOEL, J.]
papers by the accused to create back dated partnership deeds A
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 B
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 C
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 D
direction under Section 156(3) for investigation was all the
more necessary in view of interpretation given by the Gujarat
High Court in San kale hand Valiibhai Patel vs. J.P. Chavda
and Ors.i that under Section 202, the Police Officer had no
power of arrest. In such a situation calling for report under E
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 F
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 G
between the parties is of civil nature. His contention is that the
appellant is attempting to abuse the process of law to armtwist the accused by having him arrested by the police. In the
circumstances, no interference was called for by this Court.
H
2 (1979) 1 GLR 17
294
SUPREME COURT REPORT?
[2015] 5 S.C.R.
A 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 Ada/at Prasad vs. Ru pal Jindal & Others1.
Having regard to the legal issue involved, we have heard
B learned counse.1 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
C 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
D Sankalchand Valiibhai 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,
E 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.
F
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
G 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.
H
The Magistrate has discretion either to direct
'(2004) 1 sec 338
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 295
OF GUJARAT [ADARSH KUMAR GOEL, J.]
registration of a case under Section 156(3) or to conduct A
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 B
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 C
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 0
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 E
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
F
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 G
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 H
296
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A 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.
B
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
C 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
D 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
E Proceedings". The two provisions i.e. Sections 156 and 202
in Chapters XII and XV respectively are as follows :
F
"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
G
to inquire into or try under the provisions of Chapter
XIII.
H
(2) No proceeding of a police officer in any such case
shall at any stage be called in question on the ground
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. that the case was one which such officer was not
A
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 shaff
be made, -
(a) where it appears to the Magistrate that the ·offence
complained of is triable exclusively by the Court at
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
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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
B
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."
c
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.
D
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)
E 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
F 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
G 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
H kept by the officer incharge of a police station (Section 154)
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and such,entry is called "FIR". lffrom the information, the officer A
incharge of the police station has reason to suspect
comryl'ission 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 B
discovery and arrest of the offender (Section 157(1).
17. In Lalita Kumarivs. Govt. ofU.P.1, this Court dealt
with the questions :
"30.1. (i) Whetherthe 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
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being made; and
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30.2. (ii) Whe~her 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."
E
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
F
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
G
option excep1 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
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duty-bound to register the case on the basis of
information disclosing a cognizable .offence. Thus, the
plain words of Section 154(1) of the Code have to be
given their literal meaning.
B
"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
c
Fl R 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.
o
"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)~
E
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"
F
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
G
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
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regular and efficient check on police powers. One way
of keeping check on authorities with such powers is by
documenting every action of theirs. Accordingly, under
the Code, actions of the police, etc. are provided to be
written and documented. For example, in case of arrest
under Section 41 ( 1 )(b) of the Code, the arrest memo
along with the grounds has to be in writing mandatorily;
under Section 55 of the Code, if an officer is deputed to
make an arrest, then the superior officer has to write
down and record the offence, etc. for which the person
is to be arrested; under Section 91 of the Code, a written
order has to be passed by the officer concerned to seek
documents; under Section 160 of the Code, a written
notice has to be issued to the witness so that he can be
called for recording of his/her statement, seizure memo/
panchnama has to be drawn for every article seized,
etc.
107. While registration of FIR is mandatory, arrest of
the accused immediately on registration of FIR is not
at all mandatory. In fact, registration of FIR and arrest
of an accused person are two entirely different concepts
under the law, and there are several safeguards
available against arrest. Moreover, it is also pertinent
to mention that an accused person also has a right to
apply for "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
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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 tides 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 clo~e
a matter both before and after investigation. A police
officer can foreclose an FIR before an investigation
under Section 157 of the Code, if itappears 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
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 303
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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 Fl Rs 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
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registration of Fl Rs on receipt of all cognizable offences,
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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
G
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
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circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
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(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delayllaches 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
D 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
E 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
F by the Magistrate for investigation under Section 156(3) cannot
be given mechanically. In Anil Kumar vs. M.K Aivappa~. it
was observed :
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"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
s (2013) 1 o sec 105
RAMDEV FOOD PRODUCTS PRIVATE LTD. v. STATE 305
OF GUJARAT [ADARSH KUMAR GOEL, J.]
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 sanctio~ order.
The application of mind by the Magistrate shduld 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 teamed 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).
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21. On the other hand, power under Section 202 is of E
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 F
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 G
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
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A 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
B 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
C appropriate to straightaway direct investigation, such a
direc:tion 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
D Lalita Kumari (supra) may fall under Section 202.