Police on its own cannot exercise the power of arrest u/s 202 CrPC: Supreme Court





1. This appeal by special leave has been preferred against the Judgment
and Order dated 17th February, 2006 of the High Court of Gujarat at
Ahmedabad in Special Criminal Application No.1821 of 2005.
2. The High Court declined to interfere with the Order dated 16th
August, 2005, of the Judicial Magistrate, First Class, Sanand on a
complaint filed by the appellant against fourteen accused for alleged
commission of offences under Sections 409, 420, 406, 467, 468, 471 read
with Section 120-B and 114 of the Indian Penal Code directing the Police
Sub-Inspector, Sanand, to give a report to the Court within thirty days
under Section 202(1) of the Code of Criminal Procedure, 1973 (for short
“the Code”) instead of directing investigation under Section 156(3) of the
Code, as sought by the appellant.
3. The case of the appellant-complainant in complaint filed by it before
the Magistrate is that it is running business of food products and had
permitted M/s. New Ramdev Masala Factory, wherein accused No.1 Mr.
Jasvantbhai Somabhai Patel was one of the partners, to use the trademark
“Ramdev” for seven years under agreement dated 4th June, 1990. However,
M/s. New Ramdev Masala Factory was closed on 30th May, 1994. Accused No.1
executed forged partnership documents with the help of other accused and
thereby committed the alleged offences.
4. The appellant sought direction for investigation under Section 156(3)
of the Code. However, the Magistrate instead of directing investigation as
prayed, thought it fit to conduct further inquiry under Section 202 and
sought report of the Police Sub Inspector within thirty days. Grievance of
the appellant before the High Court was that in view of the allegation that
documents had been forged with a view to usurp the trademark, which
documents were in possession of the accused and were required to be seized,
investigation ought to have been ordered under Section 156(3) instead of
conducting further inquiry under Section 202. Thus, there was non
application of mind by the Magistrate. It is also submitted in the
alternative, that even in the course of investigation for giving report
under Section 202, police is entitled to arrest the accused as arrest is
part of ‘investigation’ but the police failed to effect the arrest.
5. The High Court did not accept the stand of the appellant. It was
observed that the appellant had approached the High Court against the Order
of the Magistrate after delay of four months from the date of the Order
which itself disentitled it to a direction under Section 156(3). It was
further observed that the Magistrate had given reasons for declining to
direct investigation under Section 156(3) and the said Order did not call
for any interference. The reasons given by the Magistrate, inter alia, are
that the Police had refused to register a case. There was civil litigation
which had gone up to the Supreme Court and thus the case was of civil
nature. The fact whether the documents in question were forged or not
could be ascertained in civil proceedings by getting the opinion of the
hand writing expert. Scope of inquiry under Section 202 was limited to
find out whether a case was made out for issue of process. Suppression
of material fact of pendency of civil dispute by the complainant also
justified the order of the Magistrate to proceed under Section 202 instead
of Section 156(3). It was further observed that a Magistrate is not
justified in ordering police investigation in mechanical manner as laid
down by the Gujarat High Court in Arvindbhai Ravjibhai Patel vs. Dhirubhai
Shambhubhai Kakadiya[1] .
6. We have heard learned counsel for the parties. When the matter came
up for hearing on 11th April, 2007, this Court framed the question as
“The question involved in the instant Special Leave Petition is as to
the extent of power that may be exercised by a police officer while making
an inquiry under Section 202(1) of the Code of Criminal Procedure
particularly, whether he has power to arrest in course of the inquiry
entrusted to him by the Magistrate. Reliance is placed on Sub-Section 3 of
Section 202 to contend that the power to arrest without warrant cannot be
exercised by a person not being a police officer. Impliedly it is
contended that so far as the police officer is concerned that constraint is
not there.”

However, in the light of submissions made during the hearing,
we frame following questions for consideration:
“(i) Whether discretion of the Magistrate to call for a report under
Section 202 instead of directing investigation 156(3) is controlled by any
defined parameters?

(ii) Whether in the course of investigation in pursuance of a direction
under Section 202, the Police Officer is entitled to arrest an accused?

(iii) Whether in the present case, the Magistrate erred in seeking
report under Section 202 instead of directing investigation under Section
7. Contention on behalf of the appellant is that the Magistrate and the
High Court erred in declining to order investigation under Section 156(3)
which was necessary in view of the allegation of forgery of documents and
stamp papers by the accused to create back dated partnership deeds by
forging signatures of a dead person. Such documents being in custody of
the accused could not be otherwise produced except on arrest in the course
of investigation and in accordance with Section 27 of the Evidence Act.
Option of proceeding under Section 202, as against Section 156(3), has to
be exercised only when evidence has already been collected and what
remained to be decided was whether there was sufficient ground to proceed.
Mere fact that the appellant first approached the Police and the police did
not register First Information Report could not be taken against it nor the
dispute being of civil nature was a bar to criminal proceedings, if a case
was made out.
8. Learned counsel for the appellant also submitted that direction under
Section 156(3) for investigation was all the more necessary in view of
interpretation given by the Gujarat High Court in Sankalchand Valjibhai
Patel vs. J.P. Chavda and Ors.[2] that under Section 202, the Police
Officer had no power of arrest. In such a situation calling for report
under Section 202 will not serve the purpose of finding out the truth. It
was also submitted that the said view was erroneous and contrary view in
other judgments was sound and needs to be approved by this Court.
Referring to Section 202 (3), it was pointed out that a person other than
police officer could not exercise power of arrest but police officer was
not so debarred. Moreover, arrest was integral part of investigation.
9. Jasvantbhai Somabhai Patel, the alleged accused has filed an
application for impleadment stating that dispute between the parties is of
civil nature. His contention is that the appellant is attempting to abuse
the process of law to arm-twist the accused by having him arrested by the
police. In the circumstances, no interference was called for by this
Court. This application has been opposed by the appellant on the ground
that during the stage of inquiry under Section 202 of the Code, the accused
has no right to be heard as laid down by this Court in Adalat Prasad vs.
Rupal Jindal & Others[3]. Having regard to the legal issue involved, we
have heard learned counsel for the accused on the questions involved.

10. As already observed, the contention of the appellant is that when
there is allegation of forgery and discovery of documents is necessary, a
Magistrate must order investigation under Section 156(3) instead of
proceeding under Section 202. Alternatively, direction to the Police to
investigate and give a report under Section 202 implies arrest and
discovery which under Section 157 of the Code are integral parts of
investigation. Contrary view of Gujarat High Court in Sankalchand
Valjibhai Patel (supra) and other High Courts was erroneous while the view
taken by other High Courts to which reference will be made in later part of
this Judgment is correct. Section 202 (3) expressly provides that if a
person, other than police officer is required to conduct investigation
under Section 202 (1), he is not authorized to arrest without warrant which
implied that there is no such restriction on power of arrest available with
a police officer.
11. On the other hand, contention on behalf of the alleged accused is
that both the powers of the Magistrate – (i) directing investigation under
Section 156(3); and (ii) direction under Section 202 to seek a report from
police after investigation to enable the Magistrate to decide whether to
proceed further and issue process are qualitatively different and are in
different chapters of the Code. Thus, as per scheme of the Code, power of
police in pursuance of directions under the said two provisions is not the
The Magistrate has discretion either to direct registration of
a case under Section 156(3) or to conduct inquiry himself as the situation
may warrant. This discretion is to be exercised by the Magistrate in his
wisdom and having regard to the nature of material available. Direction
under Section 156(3) to register a criminal case and to investigate is to
be exercised where the Magistrate is satisfied that prima facie a
cognizable offence has been committed. On the contrary, where he thinks it
necessary to conduct further inquiry before deciding whether he should
proceed further in the matter, matter has to be dealt with under Section
202. Mere allegation of forgery is not enough to require the Magistrate to
pass the order under Section 156(3).
12. It is further submitted that in the present case, the civil
proceedings are pending between the parties where the question of
genuineness or otherwise of the partnership deed is an issue. The process
of criminal law cannot be used when a dispute is primarily of civil nature.
Simultaneously initiation of criminal proceedings may be permitted where
an offence is shown to have been committed. Thus, the Magistrate was
entitled to satisfy himself as to whether any cognizable offence had been
committed before proceeding further. The Magistrate was not satisfied from
the material available that any cognizable offence had been committed and
he rightly decided to conduct further enquiry under Section 202. Having
regard to the limited nature of inquiry under Section 202 which option had
been rightly chosen by the Magistrate, direction to the police to
investigate and give a report was limited by the very purpose for which the
limited inquiry was to be held, as against procedure for investigation in
cases not covered under Section 202 of the Code. The purpose was to enable
the Magistrate to decide whether there was ground to proceed further. The
Magistrate having taken cognizance of the offence and the police having not
registered a criminal case nor the Magistrate having directed registration
of criminal case, procedure and power of the Police in the matter are
different and in such a situation police did not have the power to arrest,
without permission of the Magistrate as was the view of the Gujarat and
other High Courts.
13. We may first deal with the question as to whether the Magistrate
ought to have proceeded under Section 156(3) or was justified in proceeding
under Section 202(1) and what are the parameters for exercise of power
under the two provisions.
14. The two provisions are in two different chapters of the Code, though
common expression ‘investigation’ is used in both the provisions. Normal
rule is to understand the same expression in two provisions of an enactment
in same sense unless the context otherwise requires. Heading of Chapter
XII is “Information to the Police and their Powers to Investigate” and that
of Chapter XV is “Complaints to Magistrate”. Heading of Chapter XIV is
“Conditions Requisite for Initiation of Proceedings”. The two provisions
i.e. Sections 156 and 202 in Chapters XII and XV respectively are as
follows :
“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.”

15. Cognizance is taken by a Magistrate under Section 190 (in Chapter
XIV) either on “receiving a complaint”, on “a police report” or
“information received” from any person other than a police officer or upon
his own knowledge.
Chapter XV deals exclusively with complaints to Magistrates. Reference to
Sections, 202, in the said Chapter, shows that it provides for
“postponement of issue of process” which is mandatory if accused resides
beyond the Magistrate’s jurisdiction (with which situation this case does
not concern) and discretionary in other cases in which event an enquiry can
be conducted by the Magistrate or investigation can be directed to be made
by a police officer or such other person as may be thought fit “for the
purpose of deciding whether or not there is sufficient ground for
proceeding”. We are skipping the proviso as it does not concern the
question under discussion. Clause (3) provides that if investigation is by
a person other than a police officer, he shall have all the powers of an
officer incharge of a police station except the power to arrest.
16. Chapter XII, dealing with the information to the police and their
powers to investigate, provides for entering information relating to a
‘cognizable offence’ in a book to be kept by the officer incharge of a
police station (Section 154) and such entry is called “FIR”. If from the
information, the officer incharge of the police station has reason to
suspect commission of an offence which he is empowered to investigate
subject to compliance of other requirements, he shall proceed, to the spot,
to investigate the facts and circumstances and, if necessary, to take
measure, for the discovery and arrest of the offender (Section 157(1).
17. In Lalita Kumari vs. Govt. of U.P.[4], this Court dealt with
the questions :

“30.1. (i) Whether the immediate non-registration of FIR leads to scope for
manipulation by the police which affects the right of the
victim/complainant to have a complaint immediately investigated upon
allegations being made; and

30.2. (ii) Whether in cases where the complaint/information does not
clearly disclose the commission of a cognizable offence but the FIR is
compulsorily registered then does it infringe the rights of an accused.”

18. These questions were answered as follows :
“49. Consequently, the condition that is sine qua non for recording an FIR
under Section 154 of the Code is that there must be information and that
information must disclose a cognizable offence. If any information
disclosing a cognizable offence is led before an officer in charge of the
police station satisfying the requirement of Section 154(1), the said
police officer has no other option except to enter the substance thereof in
the prescribed form, that is to say, to register a case on the basis of
such information. The provision of Section 154 of the Code is mandatory and
the officer concerned is duty-bound to register the case on the basis of
information disclosing a cognizable [pic]offence. Thus, the plain words of
Section 154(1) of the Code have to be given their literal meaning.

72. It is thus unequivocally clear that registration of FIR is mandatory
and also that it is to be recorded in the FIR book by giving a unique
annual number to each FIR to enable strict tracking of each and every
registered FIR by the superior police officers as well as by the competent
court to which copies of each FIR are required to be sent.

73. The legislature has consciously used the expression “information” in
Section 154(1) of the Code as against the expression used in Sections
41(1)(a)* and (g) where the expression used for arresting a person without
warrant is “reasonable complaint” or “credible information”. The expression
under Section 154(1) of the Code is not qualified by the prefix
“reasonable” or “credible”. The non-qualification of the word “information”
in Section 154(1) unlike in Sections 41(1)(a)* and (g) of the Code is for
the reason that the police officer should not refuse to record any
information relating to the commission of a cognizable offence on the
ground that he is not satisfied with the reasonableness or credibility of
the information. In other words, reasonableness or credibility of the said
information is not a condition precedent for the registration of a case.

94. Principles of democracy and liberty demand a regular and efficient
check on police powers. One way of keeping check on authorities with such
powers is by documenting every action of theirs. Accordingly, under the
Code, actions of the police, etc. are provided to be written and
documented. For example, in case of arrest under Section 41(1)(b) of the
Code, the arrest memo along with the grounds has to be in writing
mandatorily; under [pic]Section 55 of the Code, if an officer is deputed to
make an arrest, then the superior officer has to write down and record the
offence, etc. for which the person is to be arrested; under Section 91 of
the Code, a written order has to be passed by the officer concerned to seek
documents; under Section 160 of the Code, a written notice has to be issued
to the witness so that he can be called for recording of his/her statement,
seizure memo/panchnama has to be drawn for every article seized, etc.

107. While registration of FIR is mandatory, arrest of the accused
immediately on registration of FIR is not at all mandatory. In fact,
registration of FIR and arrest of an accused person are two entirely
different concepts under the law, and there are several safeguards
available against arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory bail” under the
provisions of Section 438 of the Code if the conditions mentioned therein
are satisfied. Thus, in appropriate cases, he can avoid the arrest under
that provision by obtaining an order from the court.

108. It is also relevant to note that in Joginder Kumar v. State of
U.P.(1994) 4 SCC 260], this Court has held that arrest cannot be made by
the police in a routine manner. Some important observations are reproduced
as under: (SCC pp. 267-68, para 20)

“20. … No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent for a
police officer in the interest of protection of the constitutional rights
of a citizen and perhaps in his own interest that no arrest should be made
without a reasonable satisfaction reached after some investigation as to
the genuineness and bona fides of a complaint and a reasonable belief both
as to the person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The recommendations of
the Police Commission merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. A person is not liable
to arrest merely on the suspicion of complicity in an offence. There must
be some reasonable justification in the opinion of the officer effecting
the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to
person to attend the Station House and not to leave the Station without
permission would do.”

111. Besides, the Code gives power to the police to close a matter both
before and after investigation. A police officer can foreclose an FIR
before an investigation under Section 157 of the Code, if it appears to him
that there is no sufficient ground to investigate the same. The section
itself states that a police officer can start investigation when he has
“reason to suspect the commission of an offence”. Therefore, the
requirements of launching an investigation under Section 157 of the Code
are higher than the requirement under Section 154 of the Code. The police
officer can also, in a given case, investigate the matter and then file a
final report under Section 173 of the Code seeking closure of the matter.
Therefore, the police is not liable to launch an investigation in every FIR
which is mandatorily registered on receiving information relating to
commission of a cognizable offence.

114. It is true that a delicate balance has to be maintained between the
interest of the society and protecting the liberty of an individual. As
already discussed above, there are already sufficient safeguards provided
in the Code which duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was drafted
keeping in mind the interest of the victim and the society. Therefore, we
are of the cogent view that mandatory registration of FIRs under Section
154 of the Code will not be in contravention of Article 21 of the
Constitution as purported by various counsel.

115. Although, we, in unequivocal terms, hold that Section 154 of the Code
postulates the mandatory registration of FIRs on receipt of all cognizable
offences, yet, there may be instances where preliminary inquiry may be
required owing to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of allegations relating
to medical negligence on the part of doctors. It will be unfair and
inequitable to prosecute a medical professional only on the basis of the
allegations in the complaint.

120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.”

19. Thus, this Court has laid down that while prompt registration
of FIR is mandatory, checks and balances on power of police are equally
important. Power of arrest or of investigation is not mechanical. It
requires application of mind in the manner provided. Existence of power
and its exercise are different. Delicate balance had to be maintained
between the interest of society and liberty of an individual. Commercial
offences have been put in the category of cases where FIR may not be
warranted without enquiry.
20. It has been held, for the same reasons, that direction by the
Magistrate for investigation under Section 156(3) cannot be given
mechanically. In Anil Kumar vs. M.K. Aiyappa[5], it was observed :

“11. The scope of Section 156(3) CrPC came up for consideration before this
Court in several cases. This 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.”

The above observations apply to category of cases mentioned in
Para 120.6 in Lalita Kumari (supra).
21. On the other hand, power under Section 202 is of different nature.
Report sought under the said provision has limited purpose of deciding
“whether or not there is sufficient ground for proceeding”. If this be the
object, the procedure under Section 157 or Section 173 is not intended to
be followed. Section 157 requires sending of report by 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
22. Thus, we answer the first question by holding that the
direction under Section 156(3) is to be issued, only after application of
mind by the Magistrate. When the Magistrate does not take cognizance and
does not find it necessary to postpone instance of process and finds a case
made out to proceed forthwith, direction under the said provision is
issued. In other words, where on account of credibility of information
available, or weighing the interest of justice it is considered appropriate
to straightaway direct investigation, such a direction is issued. Cases
where Magistrate takes cognizance and postpones issuance of process are
cases where the Magistrate has yet to determine “existence of sufficient
ground to proceed”. Category of cases falling under Para 120.6 in Lalita
Kumari (supra) may fall under Section 202. Subject to these broad
guidelines available from the scheme of the Code, exercise of discretion by
the Magistrate is guided by interest of justice from case to case.
23. We now proceed to deal with the second question of power of police to
arrest in the course of investigation under Section 202 with a view to give
its report to the Magistrate to enable him to decide whether a case to
proceed further existed. Careful examination of scheme of the Code reveals
that in such situation power of arrest is not available with the police.
Contention based on language of Section 202(3) cannot be accepted.
24. The maxim ‘expressio unius est exclusion alterious’ (express mention
of one thing excludes others) has been called a valuable servant but a
dangerous master. In Mary Angel and others vs. State of T.N.[6], this
Court observed as follows on the scope of the maxim:
“19. Further, for the rule of interpretation on the basis of the maxim
“expressio unius est exclusio alterius”, it has been considered in the
decision rendered by the Queen’s Bench in the case of Dean v. Wiesengrund
[(1955) 2 QB 120 : (1955) 2 All ER 432]. The Court considered the said
maxim and held that after all it is no more than an aid to construction and
has little, if any, weight where it is possible to account for the
“inclusio unius” on grounds other than intention to effect the
[pic]”exclusio alterius”. Thereafter, the Court referred to the following
passage from the case of Colquhoun v. Brooks [(1887) 19 QBD 400 : 57 LT
448] QBD at 406 wherein the Court called for its approval-

“… ‘The maxim “expressio unius est exclusio alterius” has been pressed
upon us. I agree with what is said in the court below by Wills, J. about
this maxim. It is often a valuable servant, but a dangerous master to
follow in the construction of statutes or documents. The exclusio is often
the result of inadvertence or accident, and the maxim ought not to be
applied, when its application, having regard to the subject-matter to which
it is to be applied, leads to inconsistency or injustice.’ In my opinion,
the application of the maxim here would lead to inconsistency and
injustice, and would make Section 14(1) of the Act of 1920 uncertain and
capricious in its operation.”

20. The aforesaid maxim was referred to by this Court in the case of CCE v.
National Tobacco Co. of India Ltd. [(1972) 2 SCC 560]. The Court in that
case considered the question whether there was or was not an implied power
to hold an enquiry in the circumstances of the case in view of the
provisions of Section 4 of the Central Excise Act read with Rule 10-A of
the Central Excise Rules and referred to the aforesaid passage “the maxim
is often a valuable servant, but a dangerous master …” and held that the
rule is subservient to the basic principle that courts must endeavour to
ascertain the legislative intent and purpose, and then adopt a rule of
construction which effectuates rather than one that may defeat these.
Moreover, the rule of prohibition by necessary implication could be applied
only where a specified procedure is laid down for the performance of a
duty. In the case of Parbhani Transport Coop. Society Ltd. v. Regional
Transport Authority [AIR 1960 SC 801 : (1960) 3 SCR 177] this Court
observed that the maxim “expressio unius est exclusio alterius” is a maxim
for ascertaining the intention of the legislature and where the statutory
language is plain and the meaning clear, there is no scope for applying.
Further, in Harish Chandra Bajpai v. Triloki Singh [AIR 1957 SC 444 : 1957
SCR 370, 389] SCR at p. 389 the Court referred to the following passage
from Maxwell on Interpretation of Statutes, 10th Edn., pp. 316-317:

“Provisions sometimes found in statutes, enacting imperfectly or for
particular cases only that which was already and more widely the law, have
occasionally furnished ground for the contention that an intention to alter
the general law was to be inferred from the partial or limited enactment,
resting on the maxim expressio unius, exclusio alterius. But that maxim is
inapplicable in such cases. The only inference which a court can draw from
such superfluous provisions (which generally find a place in Acts to meet
unfounded objections and idle doubts), is that the legislature was either
ignorant or unmindful of the real state of the law, or that it acted under
the influence of excessive caution.”

We are of the view that the maxim does not apply for
interpretation of Section 202 (3) for the reasons that follow. In our
view, the correct interpretation of the provision is that merely negating
the power of arrest to a person other than police officer does not mean
that police could exercise such power. The emphasis in the provision is to
empower such person to exercise other powers of incharge of a police
station than the power of arrest. As regards the power of police to arrest,
there are express provisions dealing with the same and power of police to
arrest is not derived from or controlled by Section 202 (3). The said
power is available under Section 41 or under a warrant. The power remains
available subject to conditions for exercise thereof. For example it can
be exercised if cognizable offence is committed in the presence of a police
officer (Section 41(1)(a). Under Section 202, since the Magistrate is in
seisin of the matter and has yet to decide “whether or not there is
sufficient ground for proceeding”, there is no occasion for formation of
opinion by the police about credibility of available information necessary
to exercise power of arrest as the only authority of the police is to give
report to Magistrate to enable him to decide whether there is sufficient
ground to proceed. Power of arrest is not to be exercised mechanically.
In M.C. Abraham vs. State of Maharashtra[7], it was observed :
“14. ……In the first place, arrest of an accused is a part of the
investigation and is within the discretion of the investigating officer.
Section 41 of the Code of Criminal Procedure provides for arrest by a
police officer without an order from a Magistrate and without a warrant.
The section gives discretion to the police officer who may, without an
order from a Magistrate and even without a warrant, arrest any person in
the situations enumerated in that section. It is open to him, in the course
of investigation, to arrest any person who has been concerned with any
cognizable offence or against whom reasonable complaint has been made or
credible information has been received, or a reasonable suspicion exists of
his having been so concerned. Obviously, he is not expected to act in a
mechanical manner and in all cases to arrest the [pic]accused as soon as
the report is lodged. In appropriate cases, after some investigation, the
investigating officer may make up his mind as to whether it is necessary to
arrest the accused person. At that stage the court has no role to play.
Since the power is discretionary, a police officer is not always bound to
arrest an accused even if the allegation against him is of having committed
a cognizable offence. Since an arrest is in the nature of an encroachment
on the liberty of the subject and does affect the reputation and status of
the citizen, the power has to be cautiously exercised. It depends inter
alia upon the nature of the offence alleged and the type of persons who are
accused of having committed the cognizable offence. Obviously, the power
has to be exercised with caution and circumspection.”

25. Nature of cases dealt with under Section 202 are cases where material
available is not clear to proceed further. The Magistrate is in seisin of
the matter having taken the cognizance. He has to decide whether there is
ground to proceed further. If at such premature stage power of arrest is
exercised by police, it will be contradiction in terms. As regards denial
of opportunity to record confession under Section 27 of the Evidence Act,
it has to be kept in mind that admissibility of such confession cannot
guide exercise of power of arrest. Source of power of arrest is governed
by other provisions and not by Section 27. It is only if arrest is
otherwise permissible that provision of Section 27 may be invoked. If
exercise of power of arrest is not otherwise warranted, admissibility of
confession under Section 27 cannot facilitate such exercise. We, thus,
hold that the police of its own cannot exercise its power of arrest in the
course of making its report in pursuance of direction under Section 202.
26. We may now proceed to deal with the conflict in decisions which has
been pointed out to us. Bombay, Gujarat and Delhi High Courts in
Sankalchand Valjibhai Patel (supra), Emperor vs. Nurmahomed Rajmahomed[8],
Mahendrasinh Shanabhai Chauhan and Ors. vs. State of Gujarat and Anr.[9]
and Harsh Khurana vs. Union of India[10] have held that in the course of
investigation directed under Section 202 (1) the police cannot exercise the
power of arrest. Reasoning is by and large similar. Cases covered by
Section 202 are such where Magistrate is yet to decide whether the material
was sufficient to proceed. Till formation of such opinion, arrest will be
incongruous. We may only refer to the observations of M.P. Thakker, J. (as
he then was) in Sankalchand Valjibhai Patel (supra) :
“2. The question that has surfaced in the back drop of the aforesaid facts
and circumstances is: when upon receipt of a complaint of an offence a
Magistrate instead of issuing process postpones the issue of process
against the accused and direct? a police officer to make an investigation
for the purpose of deciding whether or not there is sufficient ground for
proceeding, can the police officer in charge of the investigation on his
own, place the accused under arrest? Section 202 (1) in so far as material
reads as under:

202. (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, 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.”

27. On the other hand in Emperor vs. Bikha Moti[11] and Asha Das and
others vs. The State[12], Sind and Assam High Courts respectively have
taken a contrary view by holding that when direction for investigation
issued under Section 202 (1) is issued, the police is to investigate
precisely in the same manner and arrest the accused in precisely the same
manner as they would have done if they had recorded First Information
28. We may only refer to the observations of Devis, CJ in Bikha Moti
(supra) as follows:
“Now S. 202(1) refers not only to an enquiry but also to an investigation :
and Section 202(2) confers upon a person other than a Magistrate or a
police officer all powers conferred upon a police officer in charge of a
police station except the power of arrest without warrant. Surely this
implies that a police officer to whom a complaint has been referred for
investigation has the power to arrest without warrant under S.54, Criminal
P.C. and all other powers which may be exercised by a police officer in the
course of an investigation. To us, the scheme of the section appears to be
that when a complaint is sent to the police for investigation and report,
they are to investigate in precisely the same manner and to arrest in
precisely the same way as they would have done if their powers had been
first invoked by a first report under S. 154, their being only this
difference, that in the one case the police embody the result of their
investigation to the Magistrate in a report which the Magistrate proceeds
to consider under S.203, while in the other case the police embody the
result of their investigation in what is called a challan or charge-sheet,
but which is really a police report under S.190(b), the term challan or
charge sheet not occurring in the section, the accused person, in any case,
if arrested by the police, being produced before the Magistrate in the
ordinary way. To hold otherwise would be to leave the proceedings started
by the Magistrate under S.202, Criminal P.C. unfinished, and in the air;
for, he would not have, as the law contemplates, a report of the
investigation but he would have a refusal by the police to report as in
this case, and other and independent proceedings in the same matter
initiated by them. But the law contemplates that proceedings, begun by the
acceptance by a Magistrate of a complaint under S.200, Criminal P.C. and
sent to the police for investigation under Section 202, should be
terminated by the Magistrate as set out in Section 203 and the following
sections. The proceedings are not terminated when the Magistrate’s
authority is defied, his jurisdiction in effect denied and the order to
investigate and report disobeyed. The law does not contemplate this, and
we cannot see that this aspect of the case has been considered in any of
the judgments which have been cited to us in support of the case of this
Court in
27 SLR 67.”

29. For the reasons already discussed above, we approve the view taken in
Sankalchand Valjibhai Patel (supra), Nurmahomed Rajmahomed (supra),
Mahendrasinh Shanabhai Chauhan (supra) and Harsh Khurana (supra) and
overrule the rule taken in Bikha Moti (supra) and Asha Das (supra).
30. We now come to the last question whether in the present case the
Magistrate ought to have proceeded under Section 156(3) instead of Section
202. Our answer is in the negative. The Magistrate has given reasons,
which have been upheld by the High Court. The case has been held to be
primarily of civil nature. The accused is alleged to have forged
partnership. Whether such forgery actually took place, whether it caused
any loss to the complainant and whether there is the requisite mens rea are
the questions which are yet to be determined. The Magistrate has not found
clear material to proceed against the accused. Even a case for summoning
has not yet been found. While a transaction giving rise to cause of action
for a civil action may also involve a crime in which case resort to
criminal proceedings may be justified, there is judicially acknowledged
tendency in the commercial world to give colour of a criminal case to a
purely commercial transaction. This Court has cautioned against such
31. In Indian Oil Corpn. vs. NEPC India Ltd.[13], it was
observed :

“13. While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately protect the interests
of lenders/creditors. Such a tendency is seen in several family disputes
also, [pic]leading to irretrievable breakdown of marriages/families. There
is also an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement. Any
effort to settle civil disputes and claims, which do not involve any
criminal offence, by applying pressure through criminal prosecution should
be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2
SCC 636] this Court observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are not a
short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles on the basis of
which the High Court is to exercise its jurisdiction under Section 482 of
the Code. Jurisdiction under this section has to be exercised to prevent
abuse of the process of any court or otherwise to secure the ends of

32. In Pepsi Foods Ltd. vs. Special Judicial Magistrate[14], it was
observed :

“28. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not
that the complainant has to bring only two witnesses to support his
allegations in the complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and would that be
sufficient for the complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence brought on record and
may even himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or otherwise
and then examine if any offence is prima facie committed by all or any of
the accused.”
33. In view of above, we find that the Magistrate and the High Court
rightly held that in the present case report under Section 202 was the
right course instead of direction under Section 156(3). The question is
answered accordingly.
34. We may now also refer to other decisions cited at the bar and their
relevance to the questions arising in the case.

In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors.[15], referring
to earlier Judgments on the scope of Section 202, it was observed :

“3. In Chandra Deo Singh v. Prokash Chandra Bose [AIR (1963) SC 1430 this
Court had after fully considering the matter observed as follows:

“The courts have also pointed out in these cases that what the Magistrate
has to see is whether there is evidence in support of the allegations of
the complainant and not whether the evidence is sufficient to warrant a
conviction. The learned Judges in some of these cases have been at pains to
observe that an enquiry under Section 202 is not to be likened to a trial
which can only take place after process is issued, and that there can be
only one trial. No doubt, as stated in sub-section (1) of Section 202
itself, the object of the enquiry is to ascertain the truth or falsehood of
the complaint, but the Magistrate making the enquiry has to do this only
with reference to the intrinsic quality of the statements made before him
at the enquiry which would naturally mean the complaint itself, the
statement on oath made by the complainant and the statements made before
him by persons examined at the instance of the complainant.”

Indicating the scope, ambit of Section 202 of the Code of Criminal
Procedure this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker
[AIR (1960) SC 1113] observed as follows:
“Section 202 says that the Magistrate may, if he thinks fit, for reasons to
be recorded in writing, postpone the issue of process for compelling the
attendance of the person complained against and direct an inquiry for the
purpose of ascertaining the truth or falsehood of the complaint; in other
words, the scope of an inquiry under the section is limited to finding out
the truth or falsehood of the complaint in order to determine the question
of the issue of process. The inquiry is for the purpose of ascertaining the
truth or falsehood of the complaint; that is, for ascertaining whether
there is evidence in support of the complaint so as to justify the issue of
process and commencement of proceedings against the person concerned. The
section does not say that a regular trial for adjudging the guilt or
otherwise of the person complained against should take place at that stage;
for the person complained against can be legally called upon to answer the
accusation made against him only when a process has issued and he is put on
Same view has been taken in Mohinder Singh vs. Gulwant Singh[16],
Manharibhai Muljibhai Kakadia & Anr. vs. Shaileshbhai Mohanbhai Patel &
Ors.[17], Raghuraj Singh Rousha vs. Shivam Sunadaram Promoters Pvt.
Ltd.[18], Chandra Deo Singh vs. Prokas Chandra Bose[19].

In Devrapalli Lakshminaryanan Reddy & Ors. vs. V. Narayana Reddy &
Ors.[20], National Bank of Oman vs. Barakara Abdul Aziz & Anr.[21], Madhao
& Anr. vs. State of Maharashtra & Anr.[22], Rameshbhai Pandurao Hedau vs.
State of Gujarat[23], the scheme of Section 156(3) and 202 has been
discussed. It was observed that power under Section 156(3) can be invoked
by the Magistrate before taking cognizance and was in the nature of pre-
emptory reminder or intimation to the police to exercise its plenary power
of investigation beginning Section 156 and ending with report or
chargesheet under Section 173. On the other hand, Section 202 applies at
post cognizance stage and the direction for investigation was for the
purpose of deciding whether there was sufficient ground to proceed.

35. These aspects have already been discussed above and are indeed

36. In H.N. Rishbud and Inder Singh vs. The State of Delhi[24], this
Court explained the scope of investigation by the police and held that
investigation included power to arrest. There is no dispute with this
legal position.

37. In the light of above discussion, we are unable to find any error in
the view taken by the Magistrate and the High Court that direction under
Section 156(3) was not warranted in the present case and the police may not
be justified in exercising power of arrest in the course of submitting
report under Section 202.

38. The questions framed for consideration stand answered accordingly.

39. The appeal is dismissed.


MARCH 16, 2015
[1] 1997 (2) GLR 1572
[2] (1979) 1 GLR 17
[3] (2004) 7 SCC 338
[4] (2014) 2 SCC 1
[5] (2013) 10 SCC 705
[6] (1999) 5 SCC 209
[7] (2003) 2 SCC 649
[8] (1929) 31 BOMLR 84
[9] (2009) 2 GLR 1647
[10] 121 (2005) DLT 301 (DB)
[11] AIR (1938) Sind 113
[12] AIR (1953) Assam 1
[13] (2006) 6 SCC 736
[14] (1998) 5 SCC 749
[15] (1976) 3 SCC 736
[16] (1992) 2 SCC 213
[17] (2012) 10 SCC 517
[18] (2009) 2 SCC 363
[19] (1964) 1 SCR 639
[20] (1976) 3 SCC 252
[21] (2013) 2 SCC 488
[22] (2013) 5 SCC 615
[23] (2010) 4 SCC 185
[24] (1955) 1 SCR 1150

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