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R/SCR.A/5144/2014

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5144 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Whether Reporters of Local Papers may be allowed

to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of

the judgment ?

Whether this case involves a substantial question of

law as to the interpretation of the Constitution of
India or any order made thereunder ?
Circulate to all judicial officers of the State

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UMASHANKAR RAMGOPAL SHARMA & 2....Applicant(s)

Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ROHIT S VERMA, ADVOCATE for the Applicant(s) No. 1 - 3
MR UMESH A TRIVEDI, ADVOCATE for the Applicant(s) No. 1 - 3
MR VJ GHANGHOL, ADVOCATE for the Respondent(s) No. 2
MR. BHADRISH S RAJU, ADVOCATE for the Respondent(s) No. 2
MS. PUNANI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 23 /09 /2015

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CAV JUDGMENT

1.

By this application under Article 227 of the Constitution of

India, the applicants-original accused persons call in question

the legality and validity of the order dated 25th November,
2014 passed by the

Additional Sessions Judge, Court No.3,

Ahmedabad in the Criminal Revision Application No.298 of

2014 by which the learned Judge partly allowed the application
setting aside the order passed by the learned Additional Chief
Metropolitan Magistrate, Court No.15, Ahmedabad in the
Criminal Case No.304 of 2014 dated 5.7.2014 and at the same
time directing the Maninagar Police Station to undertake
investigation of the complaint filed by the respondent No.2
herein (original complainant) under section 156(3) of the Code
of Criminal Procedure and file an appropriate report before the
trial court within a period of 90 days.
2.

The facts of the case may be summarized as under:

2.1

The respondent No.2 herein lodged a private complaint

in the court of the learned Additional Chief Metropolitan

Magistrate, Court No.15, Ahmedabad against the applicants
herein for the offence punishable under sections 406, 420,
409, 465, 468, 469, 471, 365, 307, 342, 120(B) and 294(b) of
the Indian Penal Code. The complainant prayed that the
complaint be sent for police investigation through the P.I. of
the Maninagar Police Station under section 156(3) of the Code
of Criminal Procedure, 1973. However, it appears that the
learned Metropolitan Magistrate thought fit to take cognizance
upon

the

complaint

after

recording

verification

of

the

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complainant on oath. It appears that the learned Magistrate,

thereafter, ordered police inquiry under section 202 of the
Code. On receipt of the report of the police as regards the
inquiry, the learned Magistrate thought fit to issue process
under section 204 of the Code for the offence enumerated
above.
2.2

The applicants herein, being dissatisfied with the order

passed by the learned Metropolitan Magistrate dated 5.7.2014,

preferred the Criminal Revision Application No.298 of 2014
challenging the legality and validity of the order passed by the
learned Magistrate.
2.3

It was argued before the Revisional Court that the entire

procedure which was adopted by the learned Magistrate was

contrary to the provisions of the Code of Criminal Procedure
inasmuch as the learned Metropolitan Magistrate could not
have issued process for the offence under section 307 of the
Indian Penal Code which is a sessions triable offence in the
absence of proper inquiry under section 202 of the Code. The
principal argument of the applicants before the Revisional
Court was that the learned Magistrate could not have ordered
investigation under section 202 of the Code through police
since the offence complained of is triable exclusively by the
court of sessions. It was also argued that the proviso to subsection (2) to section 202 of the Code provides that if it
appears to the Magistrate that the offence complained of is
triable exclusively by the court of sessions, then he shall call
upon the complainant to produce all his witnesses and
examine them on oath.

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2.4

CAV JUDGMENT

The Revisional Court accepted both the contentions and

in my view very rightly as the position of law is very well

settled. However, while quashing the order passed by the
learned Metropolitan Magistrate, the learned Sessions Judge
exceeded its jurisdiction by ordering police investigation under
section 156(3) of the Code read with section 397 of the Code.
2.5

The operative part of the impugned order reads thus;

23. Consequence upon the above discussion, the
following order is passed in the interest of justice.
ORDER
1. Criminal Revision Application filed by the applicants
Mr. Umashankar R. Sharma, Mr. Nareshkumar R. Sharma
and Mr.Devendrakumar R. Sharma, is hereby partly
allowed.
2.
Under Section 397 of the Criminal Procedure Code,
the order passed by the Learned Additional Chief
Metropolitan Magistrate, Court No.15, Ahmedabad, in
Criminal Case No.304/2014 dated 05.07.2014 is hereby
set aside.
3.
Under Section 397 read with Section 156(3) of the
Criminal Procedure Code, it is hereby ordered that the
complaint filed by the complainant Nagesh N. Sharma be
sent for the police investigation to Maninagar Police
Station. Maninagar Police Station is hereby ordered to
carry out the investigation and to submit appropriate
report, charge-sheet, C summary as the case may be
before the learned lower Court within 90 days after
receiving the complaint from the learned lower court.
4.
Copy of this order be sent to the learned lower
Court as well as to the Maninagar police station for
information and necessary action.
5.
Records & Proceedings be sent back to the learned
lower Court.

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3.

CAV JUDGMENT

Mr. Umesh Trivedi, the learned counsel appearing for the

applicants vehemently submitted that the impugned order is

erroneous. He submitted that the learned Sessions Judge has
no powers to direct police investigation under section 156 (3)
of the Code read with section 397 of the Code. He submitted
that after quashing the order passed by the learned Additional
Chief Metropolitan Magistrate, the learned Sessions Judge
should have remitted the matter to the trial court with
appropriate directions to proceed further with the complaint in
accordance with law. Mr. Trivedi submitted that the impugned
order, being without jurisdiction, is a nullity and therefore the
same be quashed.
4.

On the other hand, this application has been vehemently

opposed by Mr. Bhadrish Raju, the learned counsel appearing

for the respondent No.2-original complainant. He submitted
that no error, not to speak of any error of law could be said to
have been committed by the learned Additional Sessions Judge
in passing the impugned order. He submitted that having
regard to the peculiar facts of the case and the nature of the
allegations leveled by the complainant in his complaint, the
learned Sessions Judge rightly ordered police investigation
under section 156(3) of the Code as it is only the police who
could have undertaken effective investigation and the court
could not have gone into the issues raised in the complaint
without proper investigation. He, therefore, submitted that this
application, being devoid of any merit, the same be rejected.
5.

Ms. Punani, the learned APP appearing for the State

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adopted the submissions of Mr. Raju and submitted that no

error, not to speak of any error of law could be said to have
been committed by the learned Sessions Judge.
6.

Having heard the learned counsel appearing for the

parties and having gone through the materials on record, the

only question that falls for my consideration is whether the
learned Sessions Judge committed any error in passing the
impugned order.
7.

Section 202 of the Code reads thus

202. Postponement of issue of process
(1) Any Magistrate, on receipt of a complaint of an
offence of which he is authorised to take cognizance or
which has been made over to him under section 192,
may, if he thinks fit, a [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
Session; or
(b) where the complaint has not been made by a Court,
unless the complainant and the witnesses present (if
any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate
may, if he thinks fit, take evidence of witnesses on
oath:Provided that if it appears to the Magistrate that the
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offence complained of is triable exclusively by the Court

of Session, he shall call upon the complainant to produce
all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made 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.
8.

A bare perusal of the section itself indicates that

in a

complaint which prima facie discloses an offence exclusively

triable by the court of sessions, then in such circumstances,
the Magistrate has no power to direct police investigation
under section 202 of the Code. In a case where it appears to
the Magistrate that the offence complaint of is triable
exclusively by the court of sessions, then he shall have to call
upon the complainant to produce all his witnesses and
examine

them

on

oath.

After

the

examination

of

the

complainant and his witnesses, the learned Magistrate may,

thereafter, take an appropriate decision whether to issue
process or not.
9.

In the present case, the learned Sessions Judge, as

observed earlier, rightly came

to the conclusion that the

procedure adopted by the learned Metropolitan Magistrate was

not in accordance with law and rightly quashed the order
passed

by the learned Metropolitan Magistrate.

However,

after quashing the order passed by the learned Metropolitan

Magistrate, the learned Sessions Judge should have stopped at
that stage. At best, the learned Sessions Judge should have
remitted the matter to the learned Magistrate with appropriate
directions to proceed further in accordance with law.

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10.

CAV JUDGMENT

The question that falls for my consideration is whether

there is any provision in the Code of Criminal Procedure or in

any other statute giving specific powers to the court of
sessions to order investigation under section 156(3) of the
Code.
11.

Section 156(3) reads thus;

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."
Section 190 empowers the Magistrates of the first class
etc. to take cognizance of the offence. Court of Session is
not a Magistrate empowered under S. 190. Court of
Session comes to the picture, generally, after committing
of the cases unless specifically provided. Therefore,
investigation can ordinarily be ordered by the Magistrate
only under S. 156(3) of Cr. P.C.

12.

Admittedly, the inherent powers under S. 482 of Cr. P.C.

is not available to the Court of Session. The inherent powers of

the High Court is only saved by S. 482. Even the High Court
can use such inherent powers specifically protected in S. 482
only sparingly with circumspection in rare cases as held by the
Apex Court in Kurukshetra University v. State of Haryana, AIR

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1977 SC 2229 : (1977 Cri LJ 1900) and in Municipal Corporation

of Delhi v. Ram Kishan Rohtagi 1983 Cri LJ 159 : (AIR 1983 SC
67).
13.

Section 6 of the Code of Criminal Procedure, 1973

specifies the classes of criminal courts in India as follows;

Besides the High Courts and the Courts constituted
under any law, other than this Code, there shall be, in
every State, the following classes of Criminal Courts,
namely:(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any
metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
14.

A Court of Sessions is under section 6 clearly

a Court

quite differentiated from the Court of a Magistrate. Section 193

also inter alia makes this quite plain. A Sessions Court is not a
Magistrate empowered under section 190. No other section or
provision of the Code gives a Sessions Court power to order
such an enquiry.
15.

Next question to be considered is whether, In the

absence of power under S. 482, a Court of Session has got any

inherent power to order such investigation? It was argued by
the learned Public Prosecutor that all Courts can exercise such
inherent powers to do justice as are preserved expressly or are
not taken away by a Statute as observed by the Supreme
Court in Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1 :

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(1964 (1) Cri LJ 1) (See para 17). But, the Supreme Court in
Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 :
(1978 Cri LJ 187) held that inherent powers of the High Court is
only protected and in the absence of a power under Section
151 of the Code of Civil Procedure to Civil Courts, subordinate
criminal Courts have no inherent powers. Despite the decision
of the Supreme Court in the above case, divergent views are
expressed by certain High Courts regarding the powers of the
sub-ordinate criminal Courts in exercising inherent powers
without an enabling section like Section 482 (previous Section
561-A). But, it is settled law that such inherent powers cannot
be exercised by any criminal Court if there is an express or
implied bar in the Code of Criminal Procedure itself or in any
other Statute. The Supreme Court considered the matter with
regard to the power of review in criminal matters. Section 362
of the Code mandates that no Court, when it has signed its
judgment or final order disposing of a criminal case, shall alter
or review the same except to correct a clerical or arithmetical
error. The Supreme Court in Hari Singh Mann v. Harbhajan
Singh Bajwa, 2000 AIR SCW 3848 : (2001 Cri LJ 128) held that
even the High Court cannot invoke S. 561-A (present S. 482)
for exercise of inherent powers to correct a mistake which is
specifically prohibited by the Code.
16.

Thus, the impugned order passed by the learned

Additional Sessions Judge insofar as it directed the Maninagar

Police Station to undertake investigation of the complaint filed
by the complainant under section 156(3) read with section 397
of the Code is absolutely without jurisdiction and deserves to
be quashed.

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17.

CAV JUDGMENT

In the result, this application is allowed. The order passed

by the learned Additional Sessions Judge dated 25th November,

2014 in Criminal Revision Application No.298 of 2014 to a
limited extent as noted above is hereby ordered to be quashed
and set aside.
18.

The learned Additional Metropolitan Magistrate, Court

No.15, Ahmedabad shall proceed further in accordance with

law with the complaint keeping in mind the provisions of
section 202 of the Code.
19.

It is clarified that if the complainant is of the view that his

complaint should be investigated under section 156(3) of the

Code, then it shall be open for him to avail of appropriate legal
remedy before the appropriate forum in accordance with law.
The submission of Mr. Raju that this option may be left to the
better discretion of the learned Metropolitan Magistrate is not
tenable in law because the learned Additional Metropolitan
Magistrate

had

already

taken

cognizance.

From

post-

cognizance stage, the matter cannot go back to the precognizance stage.

20.

With the above, this application is disposed of.

(J.B.PARDIWALA, J.)

Vahid

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