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
[3] 1976 AIR 1672
[4] Abhinandan Jha & Ors vs Dinesh Mishra, AIR 1968 SC 117

[5] Supra at 1
[6] Vinubhai Haribhai Malviya v State of Gujarat, AIR 2019 SC 5233
[7] Supra at 2
[8] Mrs. Maneka Gandhi v. Union of India (1978) 1 SCC 248

[9] (1996) 6 SCC 323
[10] Ibid
[11] Supra at 5
[12] Supra at 6