CODE OF CRIMINAL PROCEDURE

INTERNAL ASSESSMENT – 2

Report on the Guest Lectures conducted by

Adv. Rhishikesh Ganu and Adv. Sampath Bulusu

 
NAME: KIM HEAVEN SHAH
PRN NO.: 18010126210
DIVISION: C
SEMESTER: 4

GUEST LECTURE 1
‘Powers and duties of police in criminal investigation’ & ‘Pre-trial process:
Section 154 to 173 Cr.P.C’

Resource Person: Advocate Rhishikesh Ganu

Details of the Speaker: Advocate Rhishikesh Ganu is an alumni of Symbiosis Law School,
Pune. He passed out in the early 2000s, and has practiced successfully in the arena of the
Motor Vehicles Act as well as cases of medical negligence, etc. He has been practicing
successfully in the Pune Court for several years now.

INTRODUCTION
Adv. Ganu discussed the following provisions, concepts and cases in detail:
 Section 154, 156, 157, 158, 159, 160, 161, 164
 Tehsildar Singh Case
 Arrest
 Charge sheet filing time
 Rights of the accused
One of the sections discussed during the lecture was Section 156 of the Code of Criminal
Procedure, 1973. It elaborates upon the Police Officers’ power to investigate cognizable
cases. It states that 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 and it also
provides that any Magistrate empowered under Section 190 of the Code of Civil Procedure,
1973 may order such an investigation.1

ANALYSIS
Earlier stance regarding the duty of a Magistrate was that on presentation of the complaint of
any offence, to immediately proceed in the manner laid down in Chapter XV, i.e. Section 200
which was intended to regulate the procedure of a Magistrate on the presentation of a
complaint. If Section 156 (3) had been intended to provide an alternative procedure to that
laid down in section 200, it would have found a place in Chapter XV and not in Chapter XII,
which dealt with the procedure and powers of the police in cases in which information of an

1
Code of Criminal Procedure, 1973, Section 156.

2
offence was given to a police officer. 2 However, this view has eroded by efflux of time.
When a petition of complaint is filed before a Magistrate, he has two alternative courses open
to him and can follow either of them at his option. He may examine the complainant on oath
and proceed under Chapter XV or he may simply direct an investigation by the police under
section 156(3) and proceed under Chapter XII.3
It is to be noted that there is no provision in the Cr.P.C. or in any other statute which confers
power on a Magistrate to direct any officer other than an officer-in-charge of a police station
to conduct investigation.4 However in a case where the complaint alleged kidnapping of two
persons by police and subsequently their murder by them, the Allahabad High Court held that
the Chief Judicial Magistrate should not have directed investigation by the officer-in-charge
of the same police station to investigate but directed higher police officers to conduct
enquiry.5 Magistrate cannot direct the C.I.D. to investigate under this provision.6
It is well established that the power under section 156(3) is to be exercised judicially. If the
Magistrate thinks that there is no reason to order any investigation, he is bound to give
reasons for his conclusion.7 Merely because investigation has been ordered by the Magistrate
under section 156(3), it cannot be said that the accused would have no right to raise objection
with regard to limitation or otherwise at appropriate stage. 8 It is not necessary to hear the
proposed accused before passing an order under this provision. 9 According to Allahabad High
Court the only thing a Magistrate has to see is whether a cognizable offence is made out and
if he finds that it is, he has to order investigation.10
A Magistrate cannot without examining the complainant forward a complaint to the police for
an enquiry and for taking cognizance of offence made out. Such an order or procedure cannot
be justified. Either the Magistrate himself must examine the complainant and then ask the
police to enquire and report, or the complaint must be sent to the police for them to enquire
and take cognizance if they think proper. When a complaint is filed before a Magistrate, he
can examine the complainant on oath and then issue process. On the other hand, he can under
section 202, postpone issue of process and refer the complaint to a Magistrate or the police
for further enquiry and then take action on receipt of the report. The other course open to the
2
Emperor v. Shah-dino Dhaniparto, AIR 1940 Sind 114.
3
Lakshminarayana Reddy v. Narayan Reddy, 1976 Cr LJ 1361 (SC).
4
State v. Kolakkacan Moosa Haji, 1994 Cr LJ 1288 (Ker) ; Indumati v. Narendra, 1995 Cr LJ 918 (Guj).
5
Netra Pal Singh v. Chief Judicial Magistrate, 1996 ACrR 771.
6
State of Karnataka v. Thammiah, 1999 Cr LJ 53 (Kant).
7
Seroj Alam v. State of U.P., 1992 Cr LJ 2244 (All).
8
T.K. Kodandaram v. State of U.P., 1993 Cr LJ 1926 (AP).
9
Brijesh v. State of U.P., 1997 ACrR 167.
10
Smt. Jamna v. State of U.P., 1996 All Dand Nirnaya 472.

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Magistrate is to send the complaint to the police asking them to take action under section
156(3). He cannot make a hybrid composite order both under section 156(3) and under
section 202. Such an order is illegal, if he starts proceedings after receipt of a report from the
police, he takes cognizance without examining the complainant, and the proceedings
thereafter are illegal. Magistrate can order investigation without examining complainant or
his witnesses.11 Magistrate should not refuse to order investigation on the ground that the
person whose affidavit has been filed is not an eyewitness, if the complaint discloses a
cognizable offence.12 Where the Chief Judicial Magistrate directed the superintendent of
police to get the matter enquired by a senior officer and if the allegations in the complaint
were true, to get the matter investigated according to law, the order was not lawful.13

CONCLUSION
The lecture has provided a detailed insight into the provisions discussed. Each provision was
discussed at length and explained with clarity. It is clearer than ever that there is a stark
contrast between the powers vested by the Code of Criminal Procedure, 1973 in section
156(3) as opposed to the power in Section 202 of the Code. Whilst 156 (3) must operate pre-
cognisance, 202 operates post-cognisance. The scope for investigation is also much wider in
case of Section 156 (3).

GUEST LECTURE 2
‘Magisterial powers to take cognizance and allied procedures’ & ‘Bail’
11
Kedarmal Agarwal v. State of A.P., 1997 Cr LJ 4670 (AP).
12
Dr. Rajendra Prasad v. Addl. C.J.M., II (1997) CCR 161 (All).
13
Udaybhan Shuki v. State of U.P., 1999 Cr LJ 274 (All).

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Resource Person: Advocate Sampath Bulusu
Details of the Speaker: Advocate Sampath Bulusu is the General Manager Legal at Shell
Hazira LNG. He is a resident of Mumbai, Maharashtra. His areas of mastery include
Litigation, Arbitration, Contracts, Property Law, Constitutional Law, Engineering Contracts,
Labour Law, Criminal Law, Civil Law, Banking Laws. He also specialises in Government
relations, Regularity affairs relating to the energy sector. He teaches subjects such as the
Code of Criminal Code, 1973, drafting and pleading, Arbitration and Law of Evidence.

INTRODUCTION
Adv. Bulusu discussed the following provisions, concepts and cases in detail:
 Chargesheet and its contents
 Closure report under Section 169
 Section 202, 156, 438
 Power to arrest
 Tampering of evidence and witness
Section 202 is a provision to check frivolous complaints and, if not carefully followed, may
lead to great injustice particularly in cases where large number of accused are charged with
various offences. Therefore, the object of inquiry is to find out whether there are sufficient
grounds or not for further proceeding and 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 naturally means the complaint itself, statement on oath made by the complainant and
the statement made before him by persons examined at the instance of the complainant.14

ANALYSIS
Under the law, four courses are open to the Magistrate on receipt of a complaint. He may
either order an enquiry under section 202 or dismiss the complaint under section 203 or issue
process under section 204 or postpone the commencement of the proceeding under section
309.15 Section 202 gives three options to the Magistrate. One is that he may take cognizance
of the offence straightaway, the second is that he may postpone the issue of process and
himself inquire into the case and third is that he may direct the police officer or any other
person whom he thinks fit for investigation. The Magistrate is also empowered to resort to

14
Chandradeo Singh v. Prakash Chandra Bose, AIR 1963 SC 1430.
15
AIR 1929 Cal 281.

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any one or two of the alternatives given in the section, if the Magistrate entrusts the
investigation to another, it does not mean that the Magistrate cannot inquire the matter
himself thereafter. If he finds the investigation unsatisfactory, he may inquire the matter
himself. In a case where investigator fails in doing his duty, the Magistrate must collect
additional material for either proceeding or declining to take cognizance.16 In Manhardas
Babaji v. Khandu Datta,17 Calcutta High Court also expresses the view that the section directs
an inquiry or investigation only and it would be wrong to interpret it as limiting to one such
inquiry or investigation and it is reasonably clear from the section itself that the Legislature
never intended to restrict the Magistrate's power or right to one inquiry only.
But in Shanker Chandra Ghosh v. Roopraj S. Bhansully18, it was said :
"If the Magistrate postpones the issue of summons, then two courses are open to him. He can
either make an enquiry in the case himself or direct that an investigation be made by the
police or any other person as he thinks fit. If he makes inquiry himself, he cannot direct
investigation and when he directs investigation he cannot inquire into the matter himself and
order for the second inquiry, when the investigation has been made on his direction, will be
illegal."
When a complaint is filed, the Magistrate should first examine the complainant and then for
his satisfaction he may direct for police investigation. If without examining the complainant
he directs for police investigation then there is no application of mind. There is difference in
an investigation under section 156(3) and investigation directed under section 202, the one is
before taking cognizance of the offence and the other is after taking cognizance. The
investigation under section 156(3) results in submission of the final form under section 173,
forming subject-matter of consideration by Magistrate under section 190(1)(b), whereas
submission of a 'report' after investigation of the case under section 202, which is necessarily
after taking of cognizance of the case furnishes material either to summon the accused by
passing an order under section 204 or refusing to issue process by an order of dismissal of the
complaint under section 203. The report of the police officer that no case is made out and
acceptance of the same by the Magistrate cannot interfere with the powers conferred upon the
Magistrate under sections 200 to 202 to take any view in the matter.19
It is desirable that Magistrates taking cognizance of offences on complaint should keep in
mind the difference between an order under section 202 and one under section 156(3) and not
16
Parasuram Jha v. State of Bihar, 1986 Cr LJ 1266 (Pat).
17
1966 Cr LJ 1408 (Cal).
18
1981 Cr LJ 1002 (Cal).
19
Ram Ekbal Pandey v. Kapil Deo Rai, 1984 Cr LJ 945 (Pat).

6
make a hybrid composite order under both the sections. When a complaint is filed before a
Magistrate, he should either take cognizance of it under section 200 observing the peremptory
requirements of examining the complainant under that section and proceed under Chapter XV
and call for a police enquiry and report under section 202, or send the complaint to the
officer-in-charge of the police station directing him to treat it as the First Information Report
under section 154 and to proceed under Chapter XII, and to investigate the case under section
156 and submit a charge-sheet, if they find the complaint established, under section 173 of
that Chapter. A Magistrate proceeding under Chapter XV has no jurisdiction to direct the
police to investigate under Chapter XII and he would be acting wholly without jurisdiction in
proceedings on the charge-sheet submitted after such investigation.
In a case in which cognizance has been taken on a police report, it is irregular for the
Magistrate to order a judicial inquiry under section 202. 20 A duly empowered Magistrate
taking cognizance of a non-cognizable offence on a police report under section 190(b) must
immediately summon the accused. He cannot hold a judicial enquiry under section 202. 21 If
he orders a judicial inquiry, the irregularity will not deprive the Magistrate of his jurisdiction
to issue process to the accused which he is otherwise competent to issue.22
The inquiry under section 202 has a limited scope. The purpose is to find out whether or not
there is sufficient ground for proceeding and that has to be determined on the basis of
material placed by the complainant before the court and purely from the point of view of
complainant without at all adverting to any defence that the accused may have. 23 While the
Magistrate shall call upon the complainant to produce all his witnesses and examine them on
oath. Section 202 neither expressly nor impliedly prescribes that it is mandatory for the
complainant to examine every witness named in the complaint petition. 24 The phrase "all his
witnesses" does not necessarily mean all witnesses named in the complaint petition. It means
all witnesses the complainant chooses to examine.25 The proviso to section 202(2), neither
expressly nor impliedly lays down that it is mandatory on the part of the complainant to
examine all the witnesses cited by him in the complaint. Where the complainant filed a
memorandum stating that she does not intend to examine a witness though he is named as a
witness in the complaint petition, Additional Sessions Judge is clearly in error in holding that
the enquiry held by the
20
AIR 1948 Pat 25.
21
20 Cr LJ 413.
22
Supra 20.
23
Jacob Harold Aranha v. Mrs. Vera Aranha, 1979 Cr LJ 974 (Bom).
24
Rabindra Prasad Singh v. Smt. Lili Bala Singh, 1992 Cr LJ 1716 (Ori).
25
Shankar Roul v. Ramakanta Swain, 1992 Cr LJ 4020 (Ori).

7
Magistrate and the cognizance order passed by him are vitiated on account of non-
examination of a witness.26
If the Magistrate records only the substance of the evidence led by the complainant which
will establish the ingredients of an offence, then the act of the Magistrate is arbitrary and
illegal.27
The expression 'all his witnesses' in the proviso to sub-section (2) of section 202 should be
construed to mean all the witnesses whom the complainant chooses to examine. In a given
case, the complainant, after having submitted his list of witnesses, may indicate to the court
that he does not want to examine some witnesses. The proviso to sub-section (2) of section
202 is not of such a mandatory nature that non-compliance therewith will vitiate the
jurisdiction of the Magistrate taking cognizance.28 Therefore, though the Magistrate, while
holding inquiry under section 202 is bound to call upon the complainant to produce all his
witnesses, yet if the complainant decides to produce only some of the witnesses, the
Magistrate cannot force the complainant to produce the remaining witnesses. 29 In this view of
the matter, where the Magistrate has examined all the witnesses which the complainant
desired to produce and intended to rely upon, there is substantial compliance with the
provisions of section 202(2).30 The Magistrate conducting enquiry may grant pardon also.31

CONCLUSION
The lecture has provided a detailed insight into the provisions discussed. This lecture further
elaborated upon the difference between Section 156 (3) and Section 202 of the Code of
Criminal Procedure, 1973. All doubts regard the same were thoroughly solved. Section 202
unlike Section 156 (3) applies in the post cognizance stage. The   scope   of   inquiry   under
Section  202   is   extremely limited.   It   is   only   to   the ascertainment   of   the   truth   or
falsehood   of   the   allegations made   in   complaint   before   the Court. 

26
Sukanti Sura v. Sashibhusan Mahakur, 1993 Cr LJ 222 (Ori).
27
Govinda Ghose v. Smt. Subola Ghose, 1979 Cr LJ 1005 (Cal).
28
Sk. Siraj v. State, 1994 Cr LJ 2410 (Ori).
29
Satya Pal v. State, 1994 Cr LJ 3790 (All).
30
Gopal Singh v. Dhanraji Devi, 1994 Cr LJ 1652 (All).
31
B.M. Lamba v. State of U.P., 1971 Cr LJ 1357 (All).