Judgement Summary

Vinubhai Haribhai Malaviya v. State of Gujarat 2009 SCC OnLine SC 1346

Bench – R.F. Nariman J., Surya Kant J., V. Ramasubramanian J.

The position of Law changed–  Magistrate can direct investigation by police u/s 156(3) of CrPC  post cognizance stage

The facts in brief –

  1. On a case of fraud and land grabbing FIR was registered and charge sheet was submitted to the court for trial
  2. Cognizance was taken and summons were issued for appearance
  3. Accused persons filed a petition with the magistrate to (a) discharge him and (b) order further investigation under s. 173(8) of CrPC
  4. The magistrate rejected all those petitions.
  5. The Accused persons filed a criminal miscellaneous petition praying for order police to register FIR u/s 156(3). This was rejected by the magistrate.
  6. Revision applications were filed in the Sessions’ court and the Sessions’ court held that further investigation needed to be done without filing a fresh FIR.
  7. Pursuant to the said other, the case was handed over to the police and two further final forms were submitted directly to the sessions’ court.
  8. The High Court ordered that the magistrate does not have power to direct further investigation u/s 156(3) of CrPC post cognizance stage
  9. The question before the Supreme Court was whether further investigation can be ordered after cognizance is taken

Issue before the court – 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

Findings of the Court-

  1. CrPC is divided into 37 chapters. The present case is related to Chapter XII to XVII.
Chapter- XII Information to the Police and their Powers to Investigate  
Chapter- XIII Jurisdiction of the Criminal Courts in Inquiries and Trials  
Chapter- XIV Conditions Requisite for Initiation of Proceedings  
Chapter- XV Complaints to Magistrates  
Chapter- XVI Commencement of Proceedings before Magistrates  
Chapter- XVII The Charge  
Chapter- XVIII Trials before a Court of Session  
Chapter- XIX Trial of Warrant-Cases by 11 Magistrates  
Chapter- XX Trials of Summons-Cases by Magistrates;  
Chapter- XXI Summary Trial
  • The sections of CrPC such as S. 156,  S. 173, S. 190, S. 200, S. 202, S. 204 are used in the present case. They are reproduced here for the ease understanding. The reading of the section shows that, there is a neat distinction between be the power of police to investigate and the jurisdiction of courts in inquiry.
  • S. 156 deals with the investigation with respect to cognizable offences. Cognizable offence is defined under S. 2 (c) of CrPC. It says,

“cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

The expression “complaint” is defined in Section 2(d) as follows:

“complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

“Inquiry” is defined in Section 2(g) as follows:

“inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

“Investigation” is defined in Section 2(h) as follows:

“investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

  • Investigation is a stage before the trial commences and the purpose is to collect evidence. Investigation which ultimately leads to a police report under the CrPC is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in “complaint” cases.
  • The old CrPC did not have the provision for further investigation after the charge sheet is filed. 41st Law commission Report recommended addition of provision of further investigation. The logic behind such recommendation was:

A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

  • Right to fair trial is accepted in Maneka Gandhi (1978) and Commissioner of Police V. Registrar, Delhi High Court New Delhi (1996). Art. 21 can be violated only by procedure established by law in a fair trial. A fair trial entails from a fair investigation. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
  •  Pooja Pal v. Union of India (2016) was referred in which it was held speedy trial must be tempered by fair trial. In the same case the court held that trial includes inquiry, investigation, trial, appeal and retrial etc. After the introduction of S. 173(8) police has been given the power of further investigation till the end of trial.  The question with the court is if police can investigate till the end of the trial then does court have the power to order investigation till the end of the trial?
  • The relationship between the police and the magistrate was discussed Kamalapti Trivdedi v WB (1980) where citing Abhinandan Jha V Dinesh Mishra (1967) the court held that : magistrate’s power has two facets: (a) executive and (b) judicial. If he accepts police charge sheet or the closure report then the magistrate uses his judicial power but if he returns the case for further investigation he uses his executive power as supervisor of investigation process.
  • In State of Bihar v  J. A. C. Saldhana (1980) it was held that S. 156(3) and S. 173(8) are independent of each other and the power of magistrate under S. 156(3) does not infringe the power of police. It may be reminded that the clause 8 of 173 was added in the new code but no corresponding change was made in S. 156(3). In Sakiri Vasu v state of UP (2008) it was held power of magistrate under S. 156(3) was very wide in nature and it included everything that was necessary for the investigation.
  • But in Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) which was followed in Tula Ram & Ors. V Kishore Singh (1977) the court held that the power under S. 156 (3) can be invoked only before the cognizance is taken. After cognizanceis taken, any power whatsoever is to be effected through S. 202 of CrPC. This was not the correct position of law because of the following grounds.
  • The definition of investigation has changed in the new code. Now new code S. 2(h) defines all the process of under CrPC as investigation. The word ALL was not present in the earlier code. It means investigation is not limited to the pre-cognizance stage. It goes to post cognizance stage also because it means all the process under CrPC i.e. from FIR till framing of charges. Ram Lal Narang v State (NCT of Delhi)  (1979) citing  H.N. Rishbud v State of Delhi (1955) had held that there was no limitation to further investigation once charge sheet was filed and cognizance was taken. In Hasanbhai valibhai Qureshi v State of Gujarat (2004) the court held that further investigation could not be denied in post cognizance stage because the trial might get delayed. In UPSC v Papaiah( 1997) the court held that the magistrate could direct further investigation u/s 173(8) of CrPC.
  • The case of Vinay Tyagi V. Irshad Ali & ORs (2013) was discussed in detail in the present case.
    • Investigation can be of three kinds
      • Initial investigation
      • Further investigation
      • Fresh or de novo or reinvestigation
    • The question was whether magistrate could order further investigation u/s 173 (8) of the code.
      • Referring Hemant Dhasmana v. CBI [(2001)] where the Court held that although the said section does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court’s revision jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the Magistrate, in exercise of powers under Section 173(8) of the Code can direct CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the investigating officer, would be governed by sub-section (2) to subsection (6) of Section 173 of the Code.
      • The Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct “further investigation” and require the police to submit a further or a supplementary report. A three Judge Bench in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) also held this.
      • Many other cases including three judge bench in Reeta Nag v W.B. (2009) opposed the above view and held that the magistrate cannot direct further investigation.
    • So the court decided that: –
      • The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
      • A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.
      • The view is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three Judge Bench and thus in conformity with the doctrine of precedent.
      • Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
      • The Code is a procedural document; thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to con
      • . It has been a procedure of propriety that the police have to seek permission of the court to continue “further investigation” and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.”
  • In the present case Hardeep Singh v. State of Punjab ( 2014) ( 5 judge) was referred which discussed investigation, inquiry and trial.
    • In view of the above, the law can be summarized to the effect that as “trial” means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the “trial” commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.”
    • Section 2(g) CrPC and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under CrPC by the Magistrate or the court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.”
  • However, the ratio of the Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) was followed in Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT  and held that the magistrate has not power to further direct investigation. The power lies with the police under S. 173(8) alone. The above position was clearly wrong because the trial had not started yet. The trial starts as per Hardeep Singh case after framing of charge. So till the time the charge is not framed, trial cannot be said to have commenced. 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. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding,

[Babubhai v. State of Gujarat & Ors. (2010) 12 SCC 254, is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate’s power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further.

Romila Thapar v. Union of India, (2018) 10 SCC 753, held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court monitored investigation/] à the above two cases are not relevant in the case but important nevertheless.

Finally the court held that :-

  1. Devarapalli Laxminarayan Reddy & Ors v Narayan Reddy & Ors (1976) Amrutbhai Sambhi bhai Patel v Gujarat, Atul Rao v State of Karnatak and Bikas Rout v NCT are over ruled.
  2. Magistrate can order under S. 156(3) at post cognizance stage also


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