A three judge bench decision of the Supreme Court in Ramdev Food Products Pvt Ltd v. State of Gujarat [Criminal Appeal 600 of 2007] was published on 16.03.2015. Seldom do we get decisions on the Cr.P.C. from a bench of more than two judges, making it important to consider this one. Having read the case, I think the judges wrongly construed the idea behind Sections 156(3) and 202 Cr.P.C. thus potentially causing a great deal of confusion owing to their superior bench strength.
The Appellants had filed a criminal complaint under Sections 409, 420, 467, 468 and 471 IPC and with an Application under Section 156(3) Cr.P.C. praying for directions to the police to conduct an investigation. The Magistrate disagreed, (presumably) took cognizance and ordered an investigation under Section 202 Cr.P.C. directing a report from the Police within 30 days. The Appellants moved the High Court against this order which rejected their challenge, resulting in this appeal.
The Issue and its Treatment
There are several issues of importance considered by the Court including the scope and ambit of Sections 156(3) and 202 Cr.P.C.; powers of the police while conducting an investigation under Section 202 Cr.P.C. Here, I am only concerned with the first of these, which is discussed Paragraph 13 onward. At Paragraph 22, the Court concludes:
"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."
Does the Court get it wrong?
Reconsider the quoted extract above: the Court holds that where the Magistrate finds a case made out to proceed forthwith due to credibility of information available it is appropriate to straightaway direct investigation, a Section 156(3) direction is issued. As against this, Section 202 seems to involve cases where such a clear case is not made out for the court, thus requiring postponement of issuing process.
The Court seems to have turned the logic behind these sections on its head, unfortunately. When the Magistrate directs an investigation under Section 156(3), he does so before considering whether there is a case made out to proceed forthwith. This is obvious, because such a consideration is the basic definition of taking cognizance, and it is nobody's case that Section 156(3) directions can be given post-cognizance. Directions under Section 156(3) to for investigation by the Police depend upon the kind of evidence the Applicant discloses might be relevant in the present case, and that such evidence could only be gathered through the powers of the police [Union of India v. Prakash Hinduja, (2003) 6 SCC 195; Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409].
As against this, Section 202 investigations occur after the Magistrate has taken cognizance, and examination of the Complainant and any witnesses led is complete. This investigation has a very limited scope, and helps to finally determine whether there is a case made out to proceed forthwith, and thus issue process under Section 204. Where the investigation reveals no case is made out, the Magistrate exercises powers under Section 203 to dismiss the Complaint [Nagawwa v. Veeranna Shivalingappa, (1976) 3 SCC 376].
The test in Ramdev Foods goes contrary to the text of the Code and requires a Magistrate take de-facto cognizance before deciding upon a Section 156(3) Application. Given this is a three judge bench decision, it may result in restricting possibility of relief under Section 156(3) and impact how litigants strategise and approach court. More will become clear as the case proceeds to trickle down through the rungs.