VINUBHAI HARIBHAI MALVIYA VS THE STATE OF GUJARAT: CRITICAL ANALYSIS OF SCOPE OF FURTHER INVESTIGATION BY MAGISTRATE

The author of this blog is Prerna Mayea,  an undergraduate law student pursuing B.COM. LL.B (Hons.) from Institute of Law, Nirma University, Ahmedabad

The term cognizance has not been defined anywhere in CrPC. However, a series of judgments have defined it as the judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to, taking further action.[1]This implies that a magistrate becomes fully aware of allegations made in the complaint and decides to examine such allegations.

Section 190 of the Criminal Procedure Code discusses the power of the magistrate to take cognizance. It mentions that the magistrate of first class and magistrate of second class (if empowered by Chief Judicial Magistrate under Sec 190(2) of Cr.P.C.) has the power to take cognizance of any offense:

(a)  When a complaint of facts describing the offence is made to magistrate u/s 2(d) 

(b)  When a police report is received u/s 173(2)

(c)  When information received from any person, or upon his own knowledge, that such offense has been committed.

PROCEDURAL HISTORY

In cases which are instituted upon police the report, the offense is made out by the charge sheet submitted by the police to magistrate u/s 173(2) and cognizance will say to be taken only when the magistrate has issued process u/s 204. 

Prior to the judgment, the code stated that power vested in magistrate u/s 156(3), to order investigation under Section 190 is a power that can only be exercised at the pre-cognizance stage. Moreover, magistrate directing for further investigation u/s 156(3) does not come under the purview of taking cognizance.[2]Further, the power to ‘further investigation’ mentioned in section 173 (8) can only be exercised by the police authorities and investigating agencies. The magistrate did not have the suomoto power to order ‘further investigation’ post-cognizance u/s 173(8).

However, after the case of VinubhaiHaribhaiMalaviyavs The State of Gujarat &Anr this understanding has changed.

BRIEF FACTS

An FIR was filed against the accused/appellant concerning a land dispute where the accused attempted to blackmail and extort money from the informant and grab the land from its lawful owners. Pursuant to the filing of FIR, investigation was conducted by police and a charge-sheet was submitted to Judicial Magistrate (First Class), Surat. The magistrate took cognizance and issues summons. After appearing before the magistrate an application was filed by accused before the magistrate to direct further investigation under section 173(8) of CrPC. The magistrate dismissed the applications because it stated that the facts put forward by the applicants were in the nature of the evidence of the defense which would be dealt with in the trial. A criminal revision application filed before Sessions Court was also dismissed. However, the Second Additional Sessions Judge held that a case has been made out for further investigation under section 178(3) CrPC. The HC heard criminal revision application and concluded that the Magistrate does not possess any power to order a further investigation after a charge sheet is filed and cognizance is taken. 

 

The issue lied before the SC that “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.”

Judgment

The judgment has laid down the following new principles:

1.    Magistrate has a suomoto power to order further investigation u/s 173(8), even at a post cognizance stage.

2.    The power u/s 156(3) to order investigation can also be exercised at a post-cognizance stage. 

In the Criminal Procedure Code, 1898, police did not possess any power to conduct a further investigation after a police report was forwarded to the magistrate. It was only added after the forty- first law commission report which suggested that police may sometimes discover evidence regarding the offense after the submission of the police report. The narrower view of Section 173 did not allow the police to re-open the investigation. This would be detrimental to both the parties to obtain justice and therefore such provision was introduced.

Further Article 21 of the Indian Constitution provides for a just, fair, and non-arbitrary trial procedure.[3]It It is obvious that a fair trial can only be initiated when the investigation in the first place is just and fair. Provisions of CrPC should be in conformity with Article 21 in both its letter and spirit.

In the case of Pooja Pal vs UOI it was held that if the investigation is not found to be purposeful and fair, the duty falls upon the court to order further investigation so as to discover the truth and prevent a miscarriage of justice.[4] Therefore the inflexibility in words of section 173(8) cannot deprive the magistrate to take order further investigation suo-moto even after cognizance is taken and this power continued until the trial.

When a police report is submitted under Section 173(2), the magistrate has the power to not accept the report and order further investigation under section 156(3). The judicial authority needs to be satisfied that a proper investigation has taken place in the sense of a just and fair investigation as required under article 21. Article 21 also provides all powers to the magistrate to ensure a proper investigation, which therefore will also include further investigation, and this power granted must extend to the process before the trial itself. It must be observed that investigation as defined in Section 2(h) would include all proceedings conducted by a police officer for collection of evidence, and therefore it will also include proceedings by way of further investigation under Section 173(8) of the CrPC. Court therefore should not interpret Section 173(8) restrictively[5] and allow the magistrate to direct further investigation suomoto.[6]It has been mentioned in Bhagwant Singh v. Commr. of Police&Anr, that the twin purpose of fair and proper investigation is:

“Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction.”[7]

Therefore it is the duty of the court to pass a specific order concerning the investigation which in its opinion is unfair or tainted.

However, the power of the magistrate to order further investigation can only be exercised before the trial begins. It is because once the trial begins, the stage of inquiry or investigation is over, and therefore no further investigation into the offense can be ordered.[8]

This judgment was in conflict with the decision in DevarapalliLakshminarayana Reddy &Ors. v. V. Narayana Reddy &Ors.[9]which stated that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The decision in the above case failed to take account of section 2(h) and is therefore faulty.

The investigation includes all the proceedings for the collection of evidence conducted by investigating agencies like a police an officer or by any person. Therefore, in consideration to Section 2(h), the investigation u/s 156(3) would be inclusive the entire process, beginning with the collection of evidence and continuing until the trial can be said to have begun and therefore magistrate has the power of further investigation at a post cognizance stage.

THE WAY AHEAD

A magistrate is allowed to order further investigation prior to taking cognizance and therefore it does not make any sense to deprive magistrate of all his powers soon after he takes cognizance and issues process. Such kind of process of depriving the power of magistrate amounted to a failure of justice where the case desperately required further investigation so that no innocent is convicted and no accused is acquitted. The judgment by providing a wider interpretation to section 173(8) has ensured that the trial process is not hampered due to the inability of the magistrate to order further investigation.

Moreover, further investigation is a supplement to the investigation ready conducted. Therefore if the magistrate is empowered under section 156(3) to order an investigation, such power can also be extended to section 173(8) to order further investigation. It allows the magistrate to correct any flaw and lacunae in the investigation by police. While the SC decision represents positive progress towards a more just and fair investigation procedure, it can be also be used by people for the purpose of delaying the trial as well. They may file a false applications or may challenge in a higher court, the order of the magistrate directing further investigation after the issue of process. Therefore, the duty falls upon the magistrate to order further investigation only after proper scrutiny of such requirements.

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[1]Tula Ram &Ors v. Kishore Singh, AIR 1977 SC 2401.

[2]AbhinandanJha&Ors. Vs. Dinesh Mishra, AIR 1968 SC 117.

[3]Maneka Gandhi vs Union of India &Anr, (1978) 1 SCC 248.

[4](2016) 3 SCC 135.

[5]HemantDhasmana v. CBI, (2001) 7 SCC 536.

[6]Bhagwant Singh v. Commr.of Police, (1985) 2 SCC 537.

[7](1985) 2 SCC 537.

[8]AmrutbhaiShambubhai Patel v. SumanbhaiKantibai Patel, (2017) 4 SCC 177.

[9](1976) 3 SCC 252.