Full Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NO.600 OF 2007
RAMDEV FOOD PRODUCTS PRIVATE LIMITED …
APPELLANT
JUDGMENT
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 Page 2 Criminal Appeal No.600 of 2007 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 Page 3 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. Page 4 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 1997 (2) GLR 1572 Page 5 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
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 Page 6 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 (1979) 1 GLR 17 Page 7 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
Page 8 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 Page 9 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. Page 10 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 Page 10 of Page 11 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:
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 Page 13 of Page 14 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 nonregistration 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:
94. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, the arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence, etc. for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the officer concerned to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized, etc.
107. 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 Page 16 of Page 17 “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. Page 17 of Page 18 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 Page 18 of Page 19 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:
Page 19 of Page 20
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 Page 20 of Page 21 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 Page 21 of Page 22 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:
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 Page 23 of Page 24 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 Page 24 of Page 25 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]
Page 25 of Page 26
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 Page 26 of Page 27 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 (1929) 31 BOMLR 84 Page 27 of Page 28 Ors. vs. State of Gujarat and Anr.[9] and Harsh Khurana vs. Union of India10 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):
27. On the other hand in Emperor vs. Bikha Moti11 and Asha Das and others vs. The State12, 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 AIR (1938) Sind 113 AIR (1953) Assam 1 Page 29 of Page 30 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), Page 30 of Page 31 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 Page 31 of Page 32 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:
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:
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 Gujarat23, 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
(1964) 1 SCR 639
Page 36 of Page 37 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 Delhi24, 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. (1955) 1 SCR 1150 Page 37 of Page 38
39. The appeal is dismissed. ……..…………………………….J. [ T.S. THAKUR ].….………………………………..J. [ ADARSH KUMAR GOEL ] ……..…………………………….J. [ R. BANUMATHI ] NEW DELHI MARCH 16, 2015 Page 38 of