S 202 CrPC – Either Inquiry Or Investigation Or Both?

We got an interesting query regarding Section 202 CrPC today. Section 202 CrPC deals with the Postponement of issue of process. It reads as follows:

(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,  [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.

In case, the Magistrate directed an investigation by a police officer and a report was later submitted by him, can he order an inquiry into the case himself thereafter? 

This question was answered in the affirmative by the Patna High Court in at least two decisions.  In Parasuram Jha And Ors. vs The State Of Bihar 1986 CriLJ 1266, it was held that even after directing the officer-in-charge of the local police station to make an inquiry and report the hands of the learned Magistrate would not be tied if he proposed to hold a further inquiry into the matter himself. But if he holds a further inquiry by himself for determining whether to issue process or not it will be within his competence and his powers under the Code of Criminal Procedure, it was held. Again in Sanichar Rai And Anr. vs State Of Bihar  1990 (1) BLJR 687 it was held thus: Only because a report has been called for by a court from the officer in-charge of a Police Station, the same does not mean that the court concerned would be bound by the report submitted to him and is precluded from examining any other witnesses in enquiry under Section 202 of the Code of Criminal Procedure.  

The person who made the query had already got the above two decisions. She requested us to get a few more High Court judgments regarding this issue.

In Biju Purushothaman vs The State Of Kerala 2008 (3) KLT 8, it was contended  that once the Magistrate himself conducts an inquiry under Sec. 202 (1) Cr.P.C., he cannot thereafter direct an investigation and vice versa, i.e. if he directs an investigation under Sec. 202 (1) Cr.P.C., he cannot thereafter enquire into the matter himself. The court noticed a Calcutta High Court judgment in 1981 Crl.L.J. 1002 – Sankar Chandra v. Roopraj had observed that the usage of “either … or”  in Sec. 202 (1) Cr.P.C. indicates that the intention of the legislature was to empower the Magistrate to employ only one or the other of the two alternatives and the Magistrate cannot employ both the alternatives one after the other. The court also noticed that a contrary view was taken by Madhya Pradesh High Court in Dr. Kanhaiyalal Modi v. Dwarka Prasad Modi – 1991 Crl.L.J. 3004 and the Allahabad High Court in Pulloo v. State – 1987 All. L.J. 1449. The court held that the language of Sec. 202 (1) Cr.P.C. is couched in such a form that there is nothing to indicate that once the Magistrate has conducted an enquiry into the case himself, he cannot thereafter follow the next alternative i.e. direct an investigation or vice versa.

In an unreported decision (Puran Chand vs Premwati ) of Punjab-Haryana High Court, the following observations were made : ‘In case, the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police officer concerned to investigate into the offence under Chapter XII of the Code and to submit a report. But where the Magistrate deems it insufficient for proceeding against the accused, on submission of the report by the police he may agree with the conclusion arrived at by the police, accept the report and drop the proceeding but before doing so, he shall give an opportunity of hearing to the complainant or he may take cognizance under Section 190(1)(b) of the Code and issue process straightway to the accused without being bound by the conclusion of the Investigating Agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed. He may order further investigation if he is satisfied that the investigation was made in a perfunctory manner or may enquire into himself or get it enquired by such other person as he thinks fit for the purpose of deciding where there is or no sufficient ground for proceeding. On further enquiry/ receipt of the enquiry report, the Magistrate is required to apply his mind to the complete record and thereafter if on consideration of the same he is of an independent opinion on the basis of the material available on the enquiry report that there is sufficient ground for proceeding, may summon the accused. In case he finds it otherwise, he shall give an opportunity of hearing to the complainant, who may be permitted to lead further evidence and if on consideration of such evidence, the Magistrate comes to a conclusion that there is sufficient ground to proceed may order summoning of the accused against whom such material is available.”

Contrary view

The Calcutta High Court view is seen followed by the Rajasthan High Court in Bhushan Prakash @ Prasad vs State RLW 2006 (4) Raj 3415 which observed as follows: The situations of holding an inquiry and directing an investigation are mutually exclusively of each other. In case, the Magistrate has chosen the option of holding inquiry himself, he cannot direct further investigation by the police. For it would lead to redundancy of procedure to first inquire into the complaint, to record the statement of the complainant and witnesses, if any, and then to send the complaint for further investigation by the police.

Following the Calcutta High Court view and also the judgments in Gunturu Kotaiah vs. Radhakrishnamurty, 1965(2) Cr.L.J. 824(2) (A.P.High Court) and Nagwwa vs. Veerannna Shivalingappa Kaujalagi and others, 1975 Cr.L.J. (Karnataka High Court), the Delhi High Court in Prem Hazara vs. Satinder Singh Grewal, 1985(2) RCR (Criminal) 256 (Delhi High Court ), observed: I am in respectful agreement with this view having regard to the plain language of sub-section (1) of Section 202 which expressly uses the disjunctive words “either …. or”, thus making it abundantly clear that the Magistrate has the option to adopt any of the courses for satisfying himself whether there is sufficient ground for proceeding but he cannot take recourse to all these alternatives one after the other. In other words, he cannot employ two or more alternatives for arriving at a decision whether to proceed further or not on the complaint.

Another single bench of Delhi High Court in Amod Laul vs State 29 (1986) DLT 464 disagreed with this view and opined that after receiving the report, to achieve the object the magistrate in a fit case may have to enquire into the case further. This issue was thus referred to Division Bench.

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