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 Provisions in Question
The two provisions i.e. Sections 156 and 202 in Chapters XII and XV respectively are as follows:
“156. Police officer’s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
202. Postponement of issue of process. –
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, –
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.”
Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on “receiving a complaint”, or “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 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”.
Clause (3) provides that if investigation is by a person other than a police officer, he shall have all the powers of an officer in-charge of a police station except the power to arrest.
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)).
The Limitations on Directions Given by Magistrate under Section 156
Thus, Supreme 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.
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, it was observed:
“11. The scope of Section 156(3) CrPC came up for consideration before Supreme Court in several cases. Supreme Court in Maksud Saiyed case [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order.
The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.”
Section 202
On the other hand, power under Section 202 is of different nature. Report sought under the said provision has limited purpose of deciding “whether or not there is sufficient ground for proceeding”. If this be the object, the procedure under Section 157 or Section 173 is not intended to be followed. Section 157 requires sending of report by the police that the police officer suspected commission of offence from information received by the police and thereafter the police is required to proceed to the spot, investigate the facts and take measures for discovery and arrest.
Thereafter, the police has to record statements and report on which the Magistrate may proceed under Section 190. This procedure is applicable when the police receives information of a cognizable offence, registers a case and forms the requisite opinion and not every case registered by the police.
The Supreme Court in the case of Ramdev Food Products Private v. State of Gujrat (2015), held that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed“.
Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.”
Power of police to arrest in the course of investigation under Section 202
The Supreme Court in the case of Ramdev Food Products Case (Supra), further considered that question whether 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.
The Court answered that 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.
The maxim ‘expressio unius est exclusion alterious’ (express mention of one thing excludes others) does not apply for interpretation of Section 202 (3) for the reasons that follow. In our view, the correct interpretation of the provision is that merely negating the power of arrest to a person other than police officer does not mean that police could exercise such power. The emphasis in the provision is to empower such person to exercise other powers of incharge of a police station than the power of arrest. As regards the power of police to arrest, there are express provisions dealing with the same and power of police to arrest is not derived from or controlled by Section 202 (3). The said power is available under Section 41 or under a warrant. The power remains available subject to conditions for exercise thereof.
For example, it can be exercised if cognizable offence is committed in the presence of a police officer (Section 41(1)(a). Under Section 202, since the Magistrate is in seisin of the matter and has yet to decide “whether or not there is sufficient ground for proceeding”, there is no occasion for formation of opinion by the police about credibility of available information necessary to exercise power of arrest as the only authority of the police is to give report to Magistrate to enable him to decide whether there is sufficient ground to proceed. Power of arrest is not to be exercised mechanically.
The Court further said that, nature of cases dealt with under Section 202 are cases where material available is not clear to proceed further. The Magistrate is in seisin of the matter having taken the cognizance. He has to decide whether there is ground to proceed further. If at such premature stage power of arrest is exercised by police, it will be contradiction in terms. As regards denial of opportunity to record confession under Section 27 of the Evidence Act, it has to be kept in mind that admissibility of such confession cannot guide exercise of power of arrest. Source of power of arrest is governed by other provisions and not by Section 27. It is only if arrest is otherwise permissible that provision of Section 27 may be invoked. If exercise of power of arrest is not otherwise warranted, admissibility of confession under Section 27 cannot facilitate such exercise.
The Court held in that case 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.
Whether the Magistrate can proceed under Section 156(3) instead of Section 202
The question was also considered by Supreme court in the abovementioned case of Ramdev Food Product Case (Supra). After considering the case, The Supreme Court answered in negative.
The Court said that, the Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction. Supreme Court has cautioned against such abuse.
The court in the case held 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.
Reference
Ramdev Food Products Pvt v. State of Gujrat (2015)