Section 202 CrPC Enquiry

Taken from: What is COGNIZANCE and Application of Mind by a Magistrate

Jojy George Koduvath

Abstract

               •➧ The CrPC empowers the Magistrate to order/direct investigation (by police) under the following provisions-
                             • 1. S. 155(2) – non-cognizable cases,
                             • 2. S. 156(3) – cognizable cases, 
                            •3. S. 202(1) – for deciding whether there are sufficient grounds for proceeding. [Note: S. 173(8) allows (only) the police to make further investigation.]

               •➧ The CrPC does not give powers to the Magistrate to “monitor” the investigation. (If it was really intended, or the scheme of the CrPC was, to convey such a ‘wide power’ to the Magistrate, it would have been stated in the Code itself.)

               •➧ Once a Final Report is filed by the police, ‘further investigation’ can be ordered by the Magistrate, only u/S. 202 CrPC. It cannot be made under Sec. 156(3) or Sec. 173(8). Because, Sec. 156(3) deals with the power of Magistrate to direct (only once) investigation of cognizable offences by police; and, Sec. 173(8)  authorises (only) the police to make further investigation.

               •➧ Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to do with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156).
It is for the following –
•*(i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed against the accused.
•*(ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202.
•*(iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3).
•*(iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.
[Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]

               •➧ S. 202 says – ‘Complaint of an offence’, includes one that is made over to the Magistrate under S. 192. It takes-in Police Report. Therefore, it is further clear – “complaint of an offence” is used [in S. 202] in a wider sense; and not confined to “Complaint”..

               •➧ Power of Magistrate under S. 156(3) is limited, for he cannot travel into the arena of merit of the case (it is to be done in trial).  Similarly, the scope of S. 202 is also limited for it is only for helping the Magistrate to decide whether or not there is sufficient ground to proceed – that is, if there is a ‘prima facie’ ground, then the Magistrate can (or has to) proceed under Sec. 204.
               
               •➧ From the aforesaid propositions it is definite that the Magistrate cannot ‘Return’ a Final Report, to police, for ‘reinvestigation’ or ‘further investigation’, invoking Sec. 156(3).

               •➧ The Code does not allow or require the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

               •➧ But, Contra View in Sakiri Vasu v. State of U.P., 2008-2 SCC 409. It is held that the Magistrate has very wide powers to ensure a proper investigation and for this purpose he can monitor the investigation. This decision is followed in subsequent decisions – Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC  5233, Union Public Service Commission v. S. Papaiah,  1997-7 SCC 614, etc., to observe that Magistrate could, under Section 173(8) CrPC, direct ‘further investigation’.

Section 202 CrPC Enquiry

The Sec. 202 enquiry can be by –

  • the Magistrate himself – who takes cognisance of an offence
    • (upon a complaint or
    • police report or
    • upon his own knowledge)
  • or any Magistrate subordinate to him,
  • or by a police officer,
  • or by such other person as he thinks fit.

Purpose of Sec. 202 enquiry

  • The purpose is – “deciding whether or not there is sufficient ground for proceeding.”

In Mohd. Yousuf v. Afaq Jahan, 2006-1 SCC (Cri.) 460 laid down the relevant principles under Sec. 202 as under:

  • “9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “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.”
  • 10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:

  • “.. . when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under s. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U. P. and again in Gopal Das v. State of, Assam. In the case before us the Magistrate after receipt of Bhadai Sah’s complaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by s. 200 the Magistrate could have issued process at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under s. 202 of the Code of Criminal Procedure.

Scope of 202 Enquiry -“Ascertaining the truth or falsehood of the complaint”

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed further as under:

  • “That section (s. 202) empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.”

In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, also it was observed that the purpose of Section 202 of CrPC was to ascertain the truth or falsehood of the complaint for ascertaining whether there was a sufficient evidence available in support of issuance of the summoning order.

Not Proper to Order to “Institute a Case” under Sec. 202 (Only Investigation)

In Anand Kumar Pandey v. State of U. P. , 2020-1 All.CR 899, it is found as under:

  • If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure.
  • We find that in the case before us the Magistrate after completing the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words :–
    • “Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56.”
  • If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case” the order would clearly be under s. 202(1) the Code of Criminal Procedure. We do not think that the fact that he used the words “for instituting a case” makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under s. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “for instituting a case” in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.”

Police Investigation u/Sec. 156(3) & 202(1) – Two Operate in Distinct Spheres;

Section 202 is Not to initiate a Fresh Case on Police Report – Only to see “Sufficient Ground to proceed”

In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, it is pointed out as under:

  • “17. 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 conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance 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(1)(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.” This judgment was then followed in Tula Ram v. Kishore Singh (1977) 4 SCC 459 at paragraphs 11 and 15.” (Quoted in Anand Kumar Pandey v. State Of U. P. , 2020-1 All.CR 899)

Final Report under Sec. 173 and Cognizance by the Magistrate

  • On getting the 156(3) Order, the police will register an FIR and investigate the matter.
  • Finally, the police submits a report under Section 173(2).
  • On receiving the police report the Magistrate –
    • (a) takes cognizance of the offence under Section 190(1)(c) and issue process to the accused – even if the police report is to the effect that no case is made out. [Note: Magistrate takes cognizance, not because he is bound by the Sec. 173 Police Report; but, because – on ‘application of judicial mind‘ on the Report, the Magistrate finds it proper “to proceed” under 204.]
    • (b) proceeds to act under Section 200, by taking cognizance of the offence on the basis of the complaint originally submitted to him, and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.
    • (c) takes further evidence or conduct further investigation, under Sec. 202 (he cannot go back to 156(3) – pre cognisance stage) to decide whether or not there is sufficient ground to proceed.
    • (d) drops the proceedings if it is satisfied (on applying his judicial mind – without regard to the opinion on the police officer as to grounds to ‘proceed’ against the accused) that there is no sufficient material to take cognizance of the offence.

In India Carat Pvt. Ltd. vs. State of Karnataka, 1989 (2) SCC 132, it is observed as under:

  • “13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him…..  …… … …Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.”

Magistrate has to independently apply his mind on a final report

A Magistrate can, independently apply his mind to a police report. He is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance. (It is, however, open to the Magistrate to do so: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27). It is held in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768as under:

  • “6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows: (SCC p. 542, para 4)
  • “There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27)

Enquiry under Section 202 is extremely limited

The Supreme Court in Fiona Shrikhande v. State of Maharashtra,  2013-14 SCC 44, observed as under:

  • “At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to “Prima Facie satisfy” whether there are “sufficient grounds to proceed” against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limitedin the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint.”

In Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, the Supreme Court observed as under:

  • “Section 156, falling within Chapter XII, deals with powers of the Police Officers to investigate cognizable offences. Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a Police Officer”. But the investigation envisaged in section 202 is different from the investigation contemplated in section 156 of the Code. The significant point to be noticed is that when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. A Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of section 202(1) Cri.P.C. would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a Police Officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.”

Magistrate can take cognizance even if police report is – no case made out

In Jitender Mehta v. Shivani Mehta, (M.K. Hanjura, J.), AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is held as under:

  • “23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused.”

Magistrate cannot use any material other than Police investigation records; Magistrate to follow the Procedure under Sec. 200 and 202

In Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is also held as under:

  • “However, the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3) Cr.P.C. which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint.
  • This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.”

Standard of Proof of Evidence at Sec. 202-Stage

  • The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a Prima Facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. [Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 Cri LJ 4333; 1998 (4) Crimes 543 (Mad)]

Accused has no right of hearing until Issueance of Process

In Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012-10 SCC 517, it is observed as under:

  • “46. The legal position is fairly well-settled that in the proceedings Under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs 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. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process Under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.”
  • See contra view below.

Contra View – Once a Final Report (favourable to Accused), Accused be heard before rejecting it

Though accused has no right of hearing until Issue of Process, as shown above, in Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is held as under:

  • “25. The learned counsel for the petitioner has energetically argued that the impugned order dated 25th November 2006 was passed without giving opportunity of hearing to the petitioner. His submission is that once there is a Final Report, then, before the Magistrate rejects the same, he must hear the accused. In this connection it may be mentioned that the Supreme Court in Bhagwant v. Commissioner, AIR. 1985 SC 1285, has held that prior to accepting the Final Report, a notice must be given to the first informant or a person aggrieved and such a person must be heard. The ratio of the said decision will be applicable to a contrary case as well, like the present one. In the present case, the petitioner is an accused in a case in which a Final Report has been submitted. His grievance, and rightly so, is that before rejecting the Final Report he should have been heard. It is true that there is no statutory provision that before rejecting the Final Report the Magistrate must hear the accused but there is also no statutory requirement that before accepting the Final Report the complainant should be heard. If it is held that before accepting the Final Report the complainant must be heard, then it cannot be understood by what logic the accused should be denied a right of hearing before the Final Report is rejected. The same principle should apply to the complainant and the accused alike.”
  • 26. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution.
  • In Maneka Gandhi v. Union of India, AIR 1978 SC 597 (which is a Seven Judge Constitution Bench decision) the Supreme Court has emphasised that even where there is no specific statutory requirement the principles of natural justice may apply. It has been also held that the procedure for depriving a man of his life and liberty must be fair, reasonable and just. Similarly, in Bachan Singh v. State of Punjab, AIR 1982 SC 1825 it was held by the Supreme Court that “every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21”. Having said so, once a Final Report is submitted, then before its rejection the accused should be heard, for, it may be that he may be able to persuade the Magistrate that the Final Report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a Final Report, both the parties should be heard as that procedure would be fair to the accused and the complainant and hence in accordance with the trend of the decisions of the Supreme Court (from Maneka Gandhi’s case onwards) in which the scope of Articles 14 and 21 of the Constitution has been greatly expanded and it has been laid down that the procedure should be just, fair and reasonable. Once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the Final Report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final report. The Supreme Court in M/s India Carat Pvt. Ltd. case (supra) has held that this can be done. But fairness demands that this should be done only after hearing the accused, otherwise the accused may be put to unnecessary harassment.

Magistrate takes a judicial decision on the Final Report

Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, continued as under:

  • “27. It may not be out of place to mention here that the Constitution of the India is the supreme law of the land and the provisions in the criminal statutes must be read and interpreted not in isolation but in the light of the constitutional provisions as interpreted by the Supreme Court. If upon an investigation, it appears to the officer-in-charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him and the Final Report can be filed before the Magistrate. It is true that the Final Report is not binding on the Magistrate and if the Magistrate differs from the opinion of the I.O., he can take the cognizance or order for the further investigation, but that action of the Magistrate is a judicial action and at that stage while taking decision on the Final Report the Magistrate has to act judicially as a Court. The Magistrate is required to weigh the prima facie evidence and take a judicial decision.”

Complaint can be dismissed under Section 203 Cr.P.C.

The complaint filed by a private party can be dismissed by the Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding.

Further investigation by Police and Magistrate – under 156(3)

Under Section 202 the Magistrate has power to order ‘further investigation’.

Under 173(8) of the CrPC, a police officer can carry on ‘further investigation’.

Police should seek formal permission from the Court as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, for further investigation.

No conflict with the power of the police to investigate further in light of Section 173(8) of the CrPC, and the Magistrate’s power to order further investigation under Section 202 of the CrPC and therefore the Magistrate can order reopening of the investigation, under Section 173(8).

Magistrate has three options – on receipt of a final (refer) report under Section 173:  

  • to accept the report and close the case,
  • disagree with the report and proceed with the case (under Section 202 CrPC),
  • order further investigation (under Section 202).

Order Further investigation – possible, under S. 173(8)

In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held as under:

  • “The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 CrPC.”. (quoted in: Central Bureau Of India v. Hemendhra Reddy  (Surya Kant, J.B. Pardiwala, jj.)

It appears that this power to order ‘further investigation’ is under Sec. 202, and not under Sections 173(8) or 156, for the following reasons.

  • The CrPC does not give a power to the Magistrate to “monitor” the investigation. (If it was really intended, or the scheme was, to convey a ‘wide power’ including monitoring, it would have been stated in the Code itself.)
  • The power of Magistrate to order ‘further investigation’ is only in Sec. 202 CrPC.
    • Note: Sec. 156(3) deals with the power of Magistrate to direct investigation of cognizable offences by police.
    • Sec. 173(8) does not authorise the Magistrate to make an order for further investigation. (It authorises the the police officer alone.)
  • The power for ‘Ordering Proper Investigation’ (by police) may be a matter for the High Court under Article 226 of the Constitution. The ‘grievance’ on investigation cannot be slipped-down to a magistrate, as laid down in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016- 6 SCC 277) as an ‘alternate remedy’.
  • The Magistrate derives powers to deal with (or take cognizance of) the facts which constitute an offence, under Clauses (a) to (c) of Sec. 190(1) of the CrPC. It is on the following –
    • (a) upon receiving a complaint of facts which constitute such offence;
    • (b) upon a police report of such facts;
    • (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
  • Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to proceed with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156).
    It is for the following –
    (i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed.
    (ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202.
    (iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3).
    (iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.
    [ Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]
  • Under Sec. 202, the Magistrate is required to act upon “receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192“; and he can exercise following powers –
    • “enquire into the case himself or
    • ordering further investigation, through police or any other person”
  • Note: Sec. 192 is in Chapter XIV, Conditions Requisite for Initiation of Proceedings; and Sec. 202 is in Chapter XV, Complaints to Magistrates. But, Sec. 202 deals with a matter “made over to him under Sec. 192“. It can include a Police Report.
    • Therefore, it is clear that the “Receipt of a complaint of an offence of which he is authorised to take cognizance” [in Sec. 202] is used in wider sense. It includes Police Report (See: Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252).
    • Sec. 192 says: “Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate …” (It is not ‘Complaint’ alone.)
  • In other words, ‘complaint of an offence’, “made over to him under section 192“, stated in Sec. 202, being refers to a Police Report (made over) also, it is clear – “complaint of an offence” [in Sec. 202] is used in a wider sense (and it is noteworthy – the term used is not mere “complaint”).
  • Therefore, Magistrate can ‘enquire into the case himself’ or ‘order further investigation’, under Sec. 202, upon a police report (on which cognizance is taken). It can be on both Refer Report or Charge under Sec. 173.
  • Once a Final Report is filed, the Magistrate has to apply his mind, under Sec. 204 – to decide to proceed with it or not. If the Magistrate finds it proper to take further evidence or conduct further investigation, only provision for the same is Sec. 202; he cannot go back to 156(3) – pre cognisance stage as held in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
  • There is no specific provision that allows the Magistrate to give specific directions as to investigation (to police) in ‘further investigation‘ also.
  • In short, the Code does not allow or direct the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Unknown's avatar

Published by sajikoduvath

Leave a Comment