An analysis of Investigation at Post-cognizance stage
The author of this blog is Shivam Kunal, B.Com LLB (Hons.) 2018-2023, 3rd year, 5th-semester Institute of Law, Nirma University.
Legal statutes in India are silent
on the definition of cognizance. Thus, we cannot rigidly define the same, the
meaning and scope of cognizance have been a subject of Interpretations, and the
Judiciary has been actively modifying the same to make it fit for the justice
system to incorporate it within the procedural mechanism better. The apex court
in Fakhruddin Ahmad v State of Uttarakhand[1] has said
that a magistrate taking cognizance is a subjective matter and it defers per
the circumstances of the case. In simple words, if a magistrate has taken notice
of the accusations and applied his mind to the allegations in the complaint.[2] He
is said to have taken the cognizance of the case. In another case of Devarapalli Lakshminarayana vs V. Narayana Reddy & Ors[3]
the court held:
“The
term cognizance can be said to have been taken by the judge when he applies his
judicial mind to the matters present before him and proceeds under section 200
CrPC. If the magistrate orders further investigation under section 173(8) or
takes other discourse under the criminal procedure code, it will not impose
that the cognizance has been taken.”
Section 190 and Section 156(3) of
the Code of Criminal Procedure empowers a magistrate to take cognizance of an
offense. Section 190 CrPC reads:
“Any
magistrate of the first class and any magistrate of the second class specially
empowered under this behalf may take cognizance of any offence on the complaint, police report, or knowledge of the incident.”
Cognizance can be termed as the
judicial intervention in the matters presently before the court, or when a judge
initiates the process of commencement of trial under section 204. A magistrate
has been given a wide array of powers to exercise in the criminal proceedings
when a closure report is filed before the magistrate under section 173 of the
criminal procedure code.
Under the provisions so associated
with the power of the magistrate, they have three resources to proceed further:
-
●
They may accept the closure report filed by the competent authority under section 173(8) if deemed fit
●
They may order further investigation under
section 173(8)
●
They may take cognizance under section 190
These options can be exercised by
the magistrate depending upon the factual matrix of the case presented[4].
With the basic understanding of the
meaning of the term cognizance, we now proceed towards the relevance of
cognizance along with other powers provided to him under section 156(3),
section 173(8), section 200, section 202. It is of utmost importance to understand
whether the proceedings under these sections can be ordered before taking
cognizance or post the taking of cognizance. The criminal investigation process
is wide and complex, it has been divided into pr-cognizance and post-cognizance
processes for the sake of convenience and easier applicability.
Power to take cognizance lies solely
with the magistrate and they can exercise the power depending upon their
conscience and understanding of the factual matrix of the case. Section 156(3)
empowers a magistrate to direct an investigation to the competent authority,
this section acts as a recourse and it has been incorporated to safeguard the
interest of the common public. Section 173(8) provides the power to order a
further investigation. Under section 173(2), the police officer has to submit
either the closure report or the charge sheet before the magistrate after
thorough investigation. Magistrates can accept the closure report if there is
enough reason to believe that no case can be made out against the accused based
on the investigation carried out. The magistrate can accept the charge sheet
and issue process under section 204 of the CrPC if he has the reason to believe
that a case can be made out against the accused. The magistrate can also resort
to section 173(8) and order the police to carry out further investigation to
further consolidate the evidence, relevant facts and materials of the case. It
was a well-established position in law that the powers under section 156(3) and
173(8) to order an investigation and further investigation respectively can be
exercise at a pre-cognizance stage[5].
This stance of the judiciary was altered in the Vinubhai case[6],
where the court held that the power exercised by a magistrate u/s 156(3) and
173(8) of the Criminal Procedure can also be extended to the post-cognizance
stage. The court established that a magistrate could order further
investigation under section 173(8) even after the court has taken cognizance,
the previous stance of this court as per Devarapalli case[7] was that
the incorporation of section 173(8) in due process of judicial intervention
could only be used at a pre cognizance stage to avoid any unnecessary delay in
the commencement of trial. The substance of this section has been read in close to the connotation with Article 21 of the Indian Constitution.
It is to be duly noted that Section
173 does not bar the police officer to investigate even after the filing of
closure report or submission of the charge sheet before the magistrate. This
section enables the police officer to carry out further investigation and
submit all the relevant findings in the form of a supplementary report, which
shall necessarily consist of any material finding relevant to the case that was
collected in the course of further investigation. The primary question before
the court in the concerned case was to adjudge whether the magistrate can order
further investigation under section 173(8) after the charge-sheet has been
filed by the police. In other words, the determination of the power of the
magistrate in this regard extends to the post-cognizance stage or not?
There exists a relation
between the legal statutes in India and the constitution of India, the latter
plays the role of a guiding force for the interpretation of these legal
statutes including the code of criminal procedure. Article 21 of the Indian
constitution substantiates “free and fair trial” as a matter of right to all
the people in the country. This right extends to the citizens and
non-citizens alike. There exist further sub-sections and divisions in the
impugned article which ensures the safety and a fair opportunity to get
justice. The procedure in criminal trials must be right, just and fair and not
arbitrary, fanciful, or oppressive[8].
Further substantiated in Commissioner of Police, Delhi v. Registrar, Delhi High
Court, New Delhi[9],
it was stated:
“Article 21
enshrines and guarantees the precious right of life and personal liberty to a
person which can only be deprived of following the procedure
established by law in a fair trial which assures the safety of the accused. The
assurance of a fair trial is stated to be the first imperative of the
dispensation of justice”[10]
The powers provided to a magistrate
under chapter XV of the code of criminal procedure and under section 156(3),
173(8), and 190 are to enable him to ensure proper investigation and proper
commencement of trial. Article 21 of the Indian constitution provides all
powers necessary for this purpose, a magistrate has all the incidental or
implied powers under the said article and they can exercise the same to
safeguard the judicial process. The court in Vinubhai case[11] held that
the previous judgments have not provided a clinical answer to why shall the
powers of a magistrate seize to exist under section 173(8) after the cognizance
has been taken. The court said that the power of the magistrate to order a further investigation does not extend only till the trial itself commences, but
it is a toolkit essential for the magistrates to be exercised even after the
initiation of procedures under chapter XV of the code of criminal
procedure.
If the term cognizance is merely
restricted to the judicial application of the mind to the matters before the
court, the emphasis of power to ensure a free and fair trial is restricted upon
a rigid procedural mechanism. It shall be well within the rights of the
magistrate to exhaust all the powers so provided under the code to ensure no
tampering with justice ensues. The court in the judgment of Vinubhai case[12]
altered the previous stance of the judiciary on the limitations imposed upon
the power of the magistrate. The power of the magistrate under section 173(8)
and 156(3) was extended to the post cognizance stage.
[1] 2008 17 SCC 157
[2] Ibid
[4] Abhinandan
Jha & Ors vs Dinesh Mishra, AIR 1968 SC 117
[10] Ibid
[11] Supra at 5
[12] Supra at 6
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