DHARMESHBHAI VASUDEVBHAI & ORS. versus STATE OF GUJARAT & ORS.

Citation: [2009] 7 S.C.R. 475 · Decided: 05-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 7 S.C.R. 475 
DHARMESHBHAI VASUDEVBHAI & ORS. 
A 
V. 
STATE OF GUJARAT & ORS. 
Criminal Appeal No. 914 of 2009 
MAY 5, 2009 
B 
(S.B. SINHA AND CYRIAC JOSEPH, JJ) 
1 
CODE OF CRIMINAL PROCEDURE, 1973: 
s. 156(3) - Magistrate recalling his order for investigation 
passed uls 156(3) - Held: Ordinarily, Magistrate has no power c 
to recall his order - When an order is passed under s. 156(3), 
> 
investigation must be carried out - Interference by Magistrate 
.. 
~; 
with exercise of statutory power of investigation by police is 
not envisaged under the Code. 
Constitution of India, 1950: 
D 
"/ 
Articles 227 and 235 - Superintendence by High Court 
over Judicial Magistrates - Held: High Court was not correct 
in refusing to consider the contention that Magistrate had no 
iurisdiction to recall the order for investigation passed by him 
E 
uls 156(3) CrPC - Apart from exercising supervisory 
iurisdiction under Articles 227 and 235, High Court has a duty 
to exercise continuous superintendence over Judicial 
~ 
Magistrates in terms of s. 483 CrPC - Orders of High Court 
and Judicial Magistrate set aside -
Code of Criminal 
F 
Procedure, 1973 - s.483 - Administration of justice. 
The City Co-operative Bank filed a complaint petition 
in the court of the Judicial Magis~rate alleging commission 
of offences punishable u/ss 406, 420, 423, 465, 477, 468, 
471, 120-8, 124 r/w 34 IPC by the respondents - accused. 
The Magistrate by order dated 11.6.2004 directed u/s 156(3) G 
.. 
CrPC the complaint to be registered and sent to the Police 
Station concerned for investigation. However, subse-
quently, on complainant's application informing the court 
475 
H 
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476 
SUPREME COURT REPORTS 
[2009] 7 S.C.R. 
A that a compromise had been arrived at between the 
parties; ·the Magistrate ordered to withdraw the inquiry. 
The appellants, who were depositors in the Bank, filed 
writ petitions challenging the orders of the Judicial 
' 
Magistrate. The High Court having dismissed the writ 
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petitions, the depositors filed the appeals. 
Allowing the appeals, the Court 
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HELD: 1.1 When an order is passed under sub-s. (3) 
" -
of s.156 of the Code of Criminal Procedure, 1973, the 
investigation must be carried out. Only when the investi-
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c 
, 
gating officer arrives at a finding that the alleged offence 
has not been committed by the accused, he may submit 
... 
a final report. On the other hand, upon investigation if it is 
found thata prima facie case has been made out, a charge-
D sheet must be filed. [para 8] [481-B-C] 
1.2 Interference with the exercise of statutory power 
'r 
t-
of investigation by police, far less direction for withdrawal 
of any investigation which is sought to be carried out, is 
not envisaged under the Code. Magistrate's power in this 
E regard is limited. Even otherwise, he does not have any 
inherent power. Ordinarily, he has no power to recall his 
order. [para 9] [481-C-D] 
S.N.Sharma v. Bipen Kumar Tiwari & Ors. (1970) 1 SCC 
" 
F 
653 and Devarapal/i Lakshminarayana Reddy & Ors. vs. 
V.Narayana Reddy & Ors. (1976) 3 SCC 252 - relied on. 
1.3 In the instant case, the Magistrate directed 
carrying out the investigation by investigating officer and 
submit a l'eport. If the investigation was to be carried out 
G in terms of s. 156(3) of the Code, the same could not have 
been equated with an enquiry as the two expressions 
have differently been defined in ss. 2(g) and 2(h) of the 
+ 
Code. In any event, the Magistrate did not have any 
jurisdiction to recall the said order. The High Court, 
H therefore, was not correct in refusing to consider the 
. 
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I,, 
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DHARMESHBHAI VASUDEVBHAI & ORS. V. 
477 
STATE OF GUJARAT & ORS. 
contention that the Magistrate had no jurisdiction in-that A 
behalf. The High Court, apart from exercising its super- . 
visory jurisdiction under Articles 227 and 235 of the 
Constitution of India, has a duty to exercise continuous 
superintendence over the Judicial Magistrates in terms of 
s.483 of the Code. When an order passed by a Magistrate B 
which was wholly without jurisdiction was brought to the 
notice of the High Court, it could have interfered therewith 
even suo motu. [para 10] [483·G-H; 484-A~C] 
Ada/at Prasad v. Roop/al Jindal & Ors. (2004) 7 SCC 
338; Everest Advertising (P) Ltd. v. StateGovernment of NCT C 
of Delhi & Ors. (2007) 5 SCC 54; Dinesh Da/mia v. CBI (2007) 
8 SCC 770 and S. Suresh Annappa Reddy (Dead) by LRs. 
(2004) 13 sec 424 - r

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