IMPORTANT POINT
Powers under Section 156(3) can be invoked by a learned Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance.

JUDGMENT

Altamas Kabir, J. —

1.Leave granted.

2.The Appellant is the elder brother of the deceased, Kamleshbhai, whose dead body was found near Govindbhai Ghat on Sarkhej Narol Highway on 17th October, 2006. At the time of his death, Kamleshbhai was serving with M/s Airstate International Courier and his usual working time was from 1.00 p.m. to 7.00 p.m. On 17th October, 2006, on receipt of information, the Appellant went to the above-mentioned spot and found the dead body of his brother. On 17th October, 2006 itself, post- mortem was conducted by the Medical Officer of the Civil Hospital, Ahmedabad. After the post-mortem examination was conducted, the opinion of the doctor as to the cause of death was kept pending till the reports from the FSL and HTP were made available. On 21st December, 2006, upon receipt of the said reports, the Medical Officer was of the opinion that the cause of death of the deceased was on account of cardio-respiratory arrest due to lungs pathology. In other words, Kamleshbhai’s death was not found to be unnatural but as a result of natural causes. The Investigating Officer had also occasion to record the statements of the Appellant, his relatives and others. On the basis of the said statements and the report of the post-mortem examination, the investigation was closed by the Investigating Officer attached to Vatva Police Station.

3.Dissatisfied with the closure of the investigation, the Appellant filed a complaint before the Metropolitan Magistrate No.20 at Ahmedabad on 17th April, 2007, which was numbered as Enquiry Case No.17 of 2007. In the complaint, the Appellant alleged that offences had been committed under Sections 302, 114 read with Section 120-B Indian Penal Code and prayed for an order to be passed for an inquiry under Section 156(3) Cr.P.C. for taking action against the accused. Instead of directing an investigation to be conducted by higher police officials under Section 156(3) Cr.P.C., the learned Metropolitan Magistrate by his order dated 17th April, 2007, postponed the issuance of process and kept the complaint for Court inquiry, in accordance with Section 202 Cr.P.C.

4.The Appellant herein filed a Criminal Writ Petition, being Special Criminal Application No.1458 of 2007 before the Gujarat High Court, which was dismissed in limine on 2nd July, 2008, by a learned Single Judge upon holding that no case had been made out for directing investigation under Section 156(3) Cr.P.C. It is the said order of the High Court which has been questioned in the present appeal.

5.Appearing in support of the appeal, Mr. Nachiketa Joshi, Advocate, submitted that the learned Metropolitan Magistrate, Ahmedabad, had committed an error in rejecting the Appellant’s prayer for an investigation under Section 156(3) of the Code and taking recourse to Section 202 of the Code instead. It was submitted that having regard to the serious nature of the offence complained of, an inquiry by the Court under Section 202 Cr.P.C. would not be apposite in preference to an investigation by the higher police officials under Section 156(3) of the Code. Mr. Joshi submitted that the order of the learned Metropolitan Magistrate, as well as that of the High Court, failed to recognize the gravity of the offence and the attempt made to cover up the incident which has caused a miscarriage of justice. Mr. Joshi further submitted that the Courts were ill-equipped to deal with an investigation which would be required to be undertaken in the instant case and, accordingly, the orders passed by the learned Magistrate, as well as the High Court, were liable to be set aside with a direction to higher officials of the police in the District to conduct a proper investigation under Section 156(3) of the Code.

6.In support of his aforesaid submissions, Mr. Joshi referred to the decision of this Court in Suresh Chand Jain vs. State of M.P.1 [(2001) 2 SCC 628], wherein while considering the power of the Magistrate under Section 156(3) Cr.P.C., it was held