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 Facts
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].
Conclusion
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.
Comment by Gautam Bhatia, posted by me due to some technical snag:
ReplyDeleteIt is also important to note that Ramdev Food Products substantially muddies the waters on the issue of the relationship betweens Sections 154 and 156(3) of the CrPC.
In Lalita Kumari vs Gov't of UP (http://indiankanoon.org/doc/10239019/), a Constitution Bench of the SC clearly held that under S. 154, if the information presented to the Police makes out a cognisable offence, then the Police must mandatorily register an FIR. Here is the relevant extract(s) from Lalita Kumari:
“… 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 concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence… the provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR… in other words, reasonableness or credibility of the said information is not a condition precedent for the registration of a case.”
The last line is particularly important, because when it comes to S. 156(3), Ramdev Food Products directly contradicts it. This leads to an anomalous situation where the Police cannot look at the credibility or the veracity of information before registering an FIR under S. 154, but if I go to a Magistrate under S. 156(3) asking for directions to the Police to register an FIR under S. 154 - in other words, if I am aggrieved by the fact that the Police are not following Lalita Kumari's dictum, and I attempt to obtain my remedy under the CrPC - then *at that stage*, the veracity/credibility of the information will be examined anyway - only, by a Magistrate. So while technically, Lalita Kumari and Ramdev Food Products deal with different sections, conceptually, the results seem to be at odds.
Also interesting to note that four days after Ramdev Food Products, in Priyanka Srivastava vs State of UP, Crl. Appeal No. 781 of 2012, the position in Lalita Kumari was reiterated. Justice Dipak Misra held:
"[where] A preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.” But then he also referred to the five categories stipulated in para 120.6 of Lalita Kumari (also the foundation of the reasoning in Ramdev Food Products), and holds:
"We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.”
Now, there are two ways you can read this sentence. One is that the police are required to hold a prelim enquiry *regardless* of whether a cognizable offence is made out or not. The other is that the police are required to hold a prelim enquiry *in order to find out* whether a cognizable offence is made out or not. The sentence, which is slightly infelicitous, is open to both interpretations, but with radically different results! Lalita Kumari is five judges, Ramdev Food Products is three, and Priyanka Srivastava is two. So what the present position of law is, I suppose, is anybody's guess
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I suspect that the courts concern in limiting 156(3) is the bona fides of complaints/protest petitions that come before magistrates.
The "credibility of information available" may not refer to the merits of the case (that would affect the taking of cognizance) at all, but rather, the conduct of the complainant, the fact of whether the requirements of 154(3) were complied with, and on what grounds the police has refused to investigate/filed a closure.
Information available cannot be equated to the information in the complaint that is placed before the magistrate, and is at least wider, if not entirely different.
Read from this perspective, even Priyanka Srivastava seems coherent, since a 156(3) now demands an affidavit to be submitted by the complainant, so that the complainant is now exposed to the threat of perjury.
Considering that the magistrate is at the point where the legitimacy of the discretion exercised by by the police hierarchy, upon a complaint/protest petition that may be motivated, application of mind seems warranted.
Your sweeping conclusion that the most inaccurate interpretation of Justice Misra's judgment is exactly what he meant, and that someone occupying such an esteemed position in the Judiciary is completely unaware of the scheme of the cRpc is shaky.
Peanfe.
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Peanfe.
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As for turning cognizance on its head, Paras Nath Singh and Anil Kumar/M.K. Aiyappa do a much better job than Ramdev Food.
Peanfe.
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Peanfe.