Breaking: Magistrate Has Power To Order Further Investigation Even In Post Cognizance Stage Until Trial Commences: SC [Read Judgment]

The Supreme Court, in an important judgment delivered on Wednesday, held that a Magistrate has power to order further investigation into an offence, even at a post cognizance stage, untill the trial commences.The bench comprising Justice Rohinton Fali Nariman, Justice Surya Kant and Justice V. Ramasubramanian set aside a Gujarat High Court order which had held that post-cognizance a Magistrate would have no power to order further investigation into an offence.The question considered by the bench in Vinubhai Haribhai Malaviya vs. State of Gujarat was whether after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding. After examining various provisions of the code, the bench observed: It is thus clear that the Magistrate's power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156(1) of the CrPC would, as per the definition of "investigation" under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC Finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage erroneousThe court also observed that the finding in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy that the power under Section 156(3) can only be exercised at the pre-cognizance stage is erroneous. In this regard the court said: Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines "investigation" in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference – that "investigation" after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. "All" would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order "such an investigation", such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of "investigation" contained in Section 2(h). . Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The "investigation" spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon. The bench also observed that this erroneous finding was reiterated in Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel when it observed that no further investigation could be ordered by the Magistrate in cases where, after cognizance is taken, the accused had appeared in pursuance of process being issued. Overruling these judgments (which followed this dictum), the bench observed:There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is...

Breaking: Magistrate Has Power To Order Further Investigation Even In Post Cognizance Stage Until Trial Commences: SC [Read Judgment]

Ashok Kini

"It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case."

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