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Swami Sadashiva Brahmendra Sar (Nil)     09 May 2009

Recall of order under s 156 (3) Cr.PC

whether an order of magistrate for investigation under s 156 (3) Cr.PC can be recalled?



Learning

 13 Replies

K.C.Suresh (Advocate)     09 May 2009

There is no provision.But the HC can quash the order and direct the court to reconsider it.

N.K.Assumi (Advocate)     09 May 2009

Agreed with Suresh. aggrieved party may move the High Court under 482 of the CrPc.

Kiran Kumar (Lawyer)     09 May 2009

No in view of Adalat Parshad's case, Magistrate can not recall its own order, move to high court for quashing or file necessary petition as prescribed in the High Court of ur state.

Shashwat Shukla (Advocate)     09 May 2009

 yes there is no provision in Cr. P. C. you have a right to file Sec. 482 of Cr. P. C. in High court.

INGLE G.[ADVOCATE]9421657505 (lawyer)     09 May 2009

DHARMESHBHAI VASUDEVBHAI   &AMP,OTHERS

V/S

STATE OF GUJRAT &,OTHERS

IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.
IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.


1.     Leave granted.

INGLE G.[ADVOCATE]9421657505 (lawyer)     09 May 2009

Dharmeshbhai Vasudevbhai &Amp; Ors vs State Of Gujarat &Amp; Ors on 5 May, 2009

Supreme Court of India
    
                    IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

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


Dharmeshbhai Vasudevbhai & Ors.                         ... Appellants

                                   Versus

State of Gujarat & Ors.                                 ... Respondents

                                   WITH

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




                             JUDGMENT



S.B. Sinha, J.


1.     Leave granted.


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

hearing together.
                                     2

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

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

Societies Act, 1962.


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

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

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

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

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

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

complaint.


      By an order dated 11.6.2004, the learned Magistrate upon

consideration of the said allegations directed as under :


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


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

Magistrate on or about 6.7.2004 informing the learned Court that a
                                      3

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

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


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


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

Petitions before the High Court.


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

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

complaint is sent for registration of the first information report and

investigation on the allegations contained therein, the learned Magistrate had

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

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

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


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

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

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

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

fide, declined to interfere with the said order dated 6.7.2004, stating :
                                    4

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


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

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

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

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

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


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

on the other hand, supported the impugned judgment.


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

subject of course to the statutory interdicts. When an offence is committed,
                                    5

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

Criminal Procedure (for short, `the Code'). A complaint petition may also

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

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

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

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

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

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

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

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


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

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

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

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

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

charge-sheet must be filed.


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

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

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

Code of Criminal Procedure.      The Magistrate's power in this regard is
                                       6

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

he has no power to recall his order.


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

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

law has been stated as under :


             "6. Without the use of the expression "if he thinks
             fit", the second alternative could have been held to
             be independent of the first; but the use of this
             expression, in our opinion, makes it plain that the
             power conferred by the second clause of this
             section is only an alternative to the power given by
             the first clause and can, therefore, be exercised
             only in those cases in which the first clause is
             applicable.
             7. It may also be further noticed that, even in sub-
             section (3) of Section 156, the only power given to
             the Magistrate, who can take cognizance of an
             offence under Section 190, is to order an
             investigation; there is no mention of any power to
             stop an investigation by the police. The scheme of
             these sections, thus, clearly is that the power of the
             police to investigate any cognizable offence is
             uncontrolled by the Magistrate, and it is only in
             cases where the police decide not to investigate the
             case that the Magistrate can intervene and either
             direct an investigation, or, in the alternative,
             himself proceed or depute a Magistrate subordinate
             to him to proceed to enquire into the case. The
             power of the police to investigate has been made
             independent of any control by the Magistrate."
                                     7

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

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

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

Criminal procedure), it was held :


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


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

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

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


            "7. Section 156(3) occurs in Chapter XII, under
            the caption : "Information to the Police and their
            powers to investigate"; while Section 202 is in
            Chapter XV which bears the heading: "Of
            complaints to Magistrates". The power to order
            police investigation under Section 156(3) is
            different from the power to direct investigation
                                     8

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


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

investigating officer and submit a report to it. If an investigation was to be
                                      9

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

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

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

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

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

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

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

supervisory jurisdiction under Articles 227 and 235 of the Constitution of

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

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

reads as under :


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


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

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

interfered therewith even suo motu.


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

although this aspect of the matter has not been considered but having regard
                                    10

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

Code, it was held :


             "14. But after taking cognizance of the complaint
             and examining the complainant and the witnesses
             if he is satisfied that there is sufficient ground to
             proceed with the complaint he can issue process by
             way of summons under Section 204 of the Code.
             Therefore, what is necessary or a condition
             precedent for issuing process under Section 204 is
             the satisfaction of the Magistrate either by
             examination of the complainant and the witnesses
             or by the inquiry contemplated under Section 202
             that there is sufficient ground for proceeding with
             the complaint hence issue the process under
             Section 204 of the Code. In none of these stages
             the Code has provided for hearing the summoned
             accused, for obvious reasons because this is only a
             preliminary stage and the stage of hearing of the
             accused would only arise at a subsequent stage
             provided for in the latter provision in the Code. It
             is true as held by this Court in Mathew case1 that
             before issuance of summons the Magistrate should
             be satisfied that there is sufficient ground for
             proceeding with the complaint but that satisfaction
             is to be arrived at by the inquiry conducted by him
             as contemplated under Sections 200 and 202, and
             the only stage of dismissal of the complaint arises
             under Section 203 of the Code at which stage the
             accused has no role to play, therefore, the question
             of the accused on receipt of summons approaching
             the court and making an application for dismissal
             of the complaint under Section 203 of the Code on
             a reconsideration of the material available on
             record is impermissible because by then Section
             203 is already over and the Magistrate has
             proceeded further to Section 204 stage."
                                    11

      Adalat Prasad has been followed by this Court in Everest Advertising

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

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


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

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


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

sustained which are set aside accordingly. Other impugned judgments have

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

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

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

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

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

recourse to the remedies available to them in law.


13.   The appeals are allowed accordingly.



                                              .....................................J.
                                             [S.B. Sinha]



                                             .....................................J.
                                              [Cyriac Joseph]
New Delhi;
May 5, 2009 

Dharmeshbhai Vasudevbhai &Amp; Ors vs State Of Gujarat &Amp; Ors on 5 May, 2009

Supreme Court of India

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 914 OF 2009 (Arising out of SLP (Crl.) No.3813 of 2005) Dharmeshbhai Vasudevbhai & Ors. ... Appellants Versus State of Gujarat & Ors. ... Respondents WITH CRIMINAL APPEAL NOS. 915, 916, 917 and 918 OF 2009 (Arising out of SLP (Crl.) Nos.3839, 3565, 3754 and 3771 of 2005) JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. These appeals arising out of a common judgment were taken up for hearing together. 2 Appellants herein are depositors in City Cooperative Bank Ltd. (the Bank), a bank incorporated and registered under the Gujarat Co-operative Societies Act, 1962. 3. Some of the borrowers had mortgaged their properties with the bank. Alleging commission of offences under Sections 406, 420, 423, 465, 477, 468, 471, 120(B), 124 and 34 of the Indian penal Code and investigation against the accused persons - respondents herein, the bank filed a complaint petition before the Second Court of Judicial Magistrate First Class, Surat praying for a direction upon the Rander Police Station to register a complaint. By an order dated 11.6.2004, the learned Magistrate upon consideration of the said allegations directed as under : "The complaint is hereby ordered to be registered as the Inquiry Case and is ordered to be sent to Rander Police Station under Section 156(3) for the Police Investigation. On being investigating the offence the Investigating Officer has to submit the report of Investigation on or before 12.7.2004 before this Court." 4. However, the complainant filed an application before the learned Magistrate on or about 6.7.2004 informing the learned Court that a 3 compromise had been entered into by and between the accused and the bank pursuant whereto and in furtherance whereof, an order was passed, directing: "As the compromise has been taken place between the complainant and the accused which is being proclaimed by Ex.4, the complainant don't want to proceed further with the complaint, the order is being passed to withdraw the inquiry. It is to be informed to the concerned Police Station." 5. Questioning the legality and validity thereof, the appellants filed Writ Petitions before the High Court. The main judgment was passed in the case of Writ Petition No.3771 of 2005. Before the High Court, a contention was raised that once a complaint is sent for registration of the first information report and investigation on the allegations contained therein, the learned Magistrate had no jurisdiction to recall the order. Reliance in this behalf, inter alia, was placed on the decision of this Court in Subramanium Sethuraman v. State of Maharashtra & Anr. [2004 (7) SCALE 733]. The High Court, however, upon taking note of the fact that at the relevant point of time, an administrator had been functioning under the direct control and supervision of the District Registrar, Co-operative Societies, in absence of any allegation that he had exercised his power mala fide, declined to interfere with the said order dated 6.7.2004, stating : 4 "It appears that the petitioners were not in the picture, either at the time when the complaint was filed and/or at the time when the learned Magistrate passed the order for investigation under Section 156(3) of Cr.P.C. or at the time when the settlement purshis was filed and the learned Magistrate passed the offer of recalling the inquiry in the month of July 2004. As such in normal circumstances, the petitioners who are depositors of the bank can be said as third party to the programmes of the complaint and subsequent there to in case of S.M.S. Jayaraj (Supra), the case before the Apex Court was pertaining to the grant of licence for liquor and, therefore, while considering the question of locus standi it was observed that the appellant before the Apex Court was the person, who was having the business in the area can have locus. In any case, it was not matter for considering the question of locus standi in criminal prosecution and, therefore, the said decision is of no help to the petitioners." 6. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the appellant, would submit that the High Court committed a serious error in passing the impugned order insofar as it failed to take into consideration that the learned Magistrate could not have recalled his earlier order passed in terms of sub-section (3) of Section 156 of the Code of Criminal Procedure. 7. Mr.R.S. Suri, learned counsel appearing on behalf of the respondent, on the other hand, supported the impugned judgment. 8. It is well settled that any person may set the criminal law in motion subject of course to the statutory interdicts. When an offence is committed, 5 a first information report can be lodged under Section 154 of the Code of Criminal Procedure (for short, `the Code'). A complaint petition may also be filed in terms of Section 200 thereof. However, in the event for some reasons or the other, the first information report is not recorded in terms of sub-section (1) of Section 156 of the Code, the magistrate is empowered under sub-section (3) of Section 156 thereof to order an investigation into the allegations contained in the complaint petition. Thus, power to direct investigation may arise in two different situations - (1) when a first information report is refused to be lodged; or (2) when the statutory power of investigation for some reason or the other is not conducted. When an order is passed under sub-section (3) of Section 156 of the Code, an investigation must be carried out. Only when the investigating officer arrives at a finding that the alleged offence has not been committed by the accused, he may submit a final form; On the other hand, upon investigation if it is found that a prima facie case has been made out, a charge-sheet must be filed. 9. Interference in the exercise of the statutory power of investigation by the Police by the Magistrate far less direction for withdrawal of any investigation which is sought to be carried out is not envisaged under the Code of Criminal Procedure. The Magistrate's power in this regard is 6 limited. Even otherwise, he does not have any inherent power. Ordinarily, he has no power to recall his order. This aspect of the matter has been considered by this Court in S.N. Sharma v. Bipen Kumar Tiwari & Ors. [(1970) 1 SCC 653], wherein the law has been stated as under : "6. Without the use of the expression "if he thinks fit", the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable. 7. It may also be further noticed that, even in sub- section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate." 7 Interpreting the aforementioned provisions vis-a-vis the lack of inherent power in the Magistrate in terms of Section 561-A of the Old Criminal procedure Code (equivalent to Section 482 of the new Code of Criminal procedure), it was held : "10. This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under Section 561-A CrPC, while we have to interpret Section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under Section 157 of the Code. In our opinion, Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence." Yet again in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. [(1976) 3 SCC 252], this Court, upon comparison of the provision of the old Code and the new Code, held as under : "7. Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation under Section 156(3) is different from the power to direct investigation 8 conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(l)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him." 10. The learned Magistrate directed carrying out of an investigation by the investigating officer and submit a report to it. If an investigation was to be 9 carried out in terms of Section 156(3) of the Code, the same could not have been equated with an enquiry as the two expressions have differently been defined in Section 3(h) and 3(i) of the Code. In any event, the learned Magistrate did not have any jurisdiction to recall the said order. The High Court, therefore, in our opinion was not correct in refusing to consider the contention raised on behalf of the appellants that the Magistrate had no jurisdiction in that behalf. The High Court, apart from exercising its supervisory jurisdiction under Articles 227 and 235 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the Code of Criminal Procedure. It reads as under : "Section 483--Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates--Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates." 11. When an order passed by a Magistrate which was wholly without jurisdiction was brought to the notice of the High Court, it could have interfered therewith even suo motu. In Adalat Prasad v. Rooplal Jindal & Ors. [(2004) 7 SCC 338], although this aspect of the matter has not been considered but having regard 10 to the power exercised by the Magistrate under Chapter XVI and XVII of the Code, it was held : "14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case1 that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage." 11 Adalat Prasad has been followed by this Court in Everest Advertising (P) Ltd. v. State, Government of NCT of Delhi & Ors. [(2007) 5 SCC 54] and Dinesh Dalmia v. CBI [(2007) 8 SCC 770]. To the same effect is the decision of this Court in S. Suresh v. Annappa Reddy (Dead) by LRs. [(2004) 13 SCC 424]. 12. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. Other impugned judgments have been passed by the High Court relying on the judgment and order passed in SCRLA No.701 of 2005. It is, however, made clear that we have not entered into the merit of the matter. We furthermore make it clear that in the event the accused persons intend to question the legality of the order passed by the learned Magistrate dated 11.6.2004, they will be at liberty to take recourse to the remedies available to them in law. 13. The appeals are allowed accordingly. .....................................J. [S.B. Sinha] .....................................J. [Cyriac Joseph] New Delhi; May 5, 2

  

MANISH (Advocate)     09 May 2009

Dear friend,

You may file a revision petition before the High Court.

Still if nothing happens then file a writ petition u/Art 226 , 227 of the Constitution before the High COurt.

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     31 October 2009

MANISH IS SUGGESTED CORRECTLY

Shashwat Shukla (Advocate)     05 November 2009

 yes Mr. Manish is also right.

Adinath@Avinash Patil (advocate)     21 November 2009

 you can file revision/writ petition in high court.

SANJEEV KUMAR (STUDENT)     22 November 2009

Res Tripathi Ji

Order u/s 156(3) can not be recalled but the defendent has two option:

1. revision u/s 397 to session court

2. go to high court u/s 482

But i prefer to go to session court since it costs less and dates are available and can be agrued conviniently.

Going to HC u/s 482 is a cumbersome.

sanjeev

SANJEEV KUMAR (STUDENT)     22 November 2009

Most of the people advice going to HC u/s 482. But i have never come through suggestion of Sec. 397 on this site.

sanjeev

PRAVEEN CHOUDHARY (SERVICE)     04 January 2010

order of magistrate can be challenged thorugh filing revision u/sec 397 and writ petition under article 226/227. article 227 has supervisory jurisdiction.

where u have remedy than u cannot access sec 482 of cr.p.c.


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