Supreme Court of India
HARIBHAI MALAVIYA AND ORS.versusTHE STATE OF GUJARAT AND ANR.
- Citation
- 2019 INSC 1146
- Decided
- 16 October 2019
- Disposal
- Disposed off
- Bench
- R F NARIMAN
Holding
A magistrate retains the authority under s.156(3) read with s.173(8) of the CrPC to order further investigation at any pre‑trial stage, and this power is not lost upon taking cognizance or issuing process.
Summary
An FIR alleging land‑grab and extortion was filed in 2009, leading to a police investigation and a charge‑sheet. After the magistrate took cognizance and issued summons, the accused applied under s.173(8) CrPC for further investigation and for the magistrate to order a fresh FIR; the magistrate rejected these applications. The High Court held that a magistrate has no power to order further investigation post‑cognizance, a view the Supreme Court rejected, holding that s.156(3) together with s.173(8) gives the magistrate a wide supervisory power to order further investigation until trial commences. The Court emphasized that a fair investigation is a constitutional requirement under Art. 21 and that the magistrate’s discretion must be exercised based on the facts of each case. While the Court set aside the High Court’s denial of the magistrate’s power, it also held that the specific facts in the applications constituted a cross‑FIR and did not warrant further investigation of the original FIR, directing the police to register a new FIR on the revenue‑related allegations. The appeals were disposed of with directions for a fresh FIR and related investigation.
Issues considered
- Whether a magistrate can order further investigation under s.156(3) CrPC after taking cognizance and after a charge‑sheet has been filed.
- Whether the power to order further investigation under s.173(8) CrPC continues until the trial commences.
- Whether the High Court’s view that the magistrate’s power is denuded post‑cognizance is legally correct.
- Whether the applications for further investigation were essentially a cross‑FIR and should be entertained.
- Whether the magistrate can direct registration of a fresh FIR in the circumstances.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(1), s. 156(3), s. 173(2), s. 173(6), s. 173(8), s. 190, s. 200, s. 202, s. 204, s. 227, s. 228, s. 240, s. 246, s. 251, s. 311, s. 319
- Constitution of Indias. Article 21
- Indian Penal Code, 1860s. 384, s. 420, s. 465, s. 467, s. 468, s. 471, s. 571
Subjects
Magistrate powerFurther investigationSection 156(3) CrPCSection 173(8) CrPCFair trialArticle 21Criminal procedureCognizanceCharge‑sheet
Judgment
936 [2019]REPORTS
SUPREME COURT 15 S.C.R. 936 [2019] 15 S.C.R.
A VINUBHAI HARIBHAI MALAVIYA AND ORS.
v.
THE STATE OF GUJARAT AND ANR.
(Criminal Appeal Nos.478-479 of 2017)
B OCTOBER 16, 2019
[R. F. NARIMAN, SURYA KANT AND
V. RAMASUBRAMANIAN, JJ.]
Code of Criminal Procedure, 1973 – ss. 156(1)(3) and 173(8)
– The High Court held that the Magistrate does not possess any
C
power to order a further investigation after a charge-sheet is filed
and cognizance is taken – Propriety of – Held: Not proper – The
Magistrate’s power u/s. 156(3) of the CrP.C. 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
D investigation” takes place in the sense of a fair and just
investigation by the police which such Magistrate is to supervise -
Art.21 of the Constitution 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
E
received by him u/s.173(2); and which power would continue to
ensure in such Magistrate at all stages of the Criminal Proceedings
until trial itself commences – Further, the “investigation” referred
to in s.156(1) of the CrPC would, as per definition of
“investigation” u/s.2(h), include all proceedings for collection of
F evidence conducted by a police officer; which would undoubtedly
include proceedings by way of further investigation u/s.173(8) of
the Cr.P.C – Constitution of India – Art. 21.
Code of Criminal Procedure, 1973 – ss.156(1)(3),173(8) –
Penal Code, 1860 – ss. 420, 465, 467, 468, 471, 384 & 571 – After
G a Police Report – Power of Magistrate to further investigate – A
FIR was lodged by a power-of-attorney holder of ‘R’ and ‘S’ who
were allegedly residing at ‘UK or USA’ – The FIR narrated that ‘R’
and ‘S’ were independent owners of a agricultural land – It was
alleged that heirs of one ‘B’, from whom ‘R’ and ‘S’ had obtained
the said agricultural land, along with ‘V’ had hatched a conspiracy
H
936
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 937
STATE OF GUJARAT AND ANR.
and were attempting to extort money from the power-of-attorney A
holder of ‘R’ and ‘S’ and had tried to grab the said land –
Investigation was conducted and charge-sheet was filed –
Magistrate took cognizance and issued summons to the accused
regarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 of
IPC – Accused persons filed applications for further investigation
B
u/s.173(8) of the Cr.P.C and discharge – Magistrate dismissed the
applications – Application by accused to register an FIR or for the
Magistrate to order investigation u/s. 156(3) was also rejected –
Separate Criminal Revisions for dismissal by Magistrate of further
investigation and order rejecting FIR were filed – Second
Additional Session Judge went through the application u/s.173(8) C
and held that a case was made out for further investigation – The
High Court held that the Magistrate does not possess any power to
order further investigation after a charge-sheet is filed and
cognizance is taken – On appeal, held: There is no warrant for
such a narrow and restrictive view of the powers of the Magistrate,
D
particularly when such powers are traceable to s.156(3) r/w.
s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be available
at all stages of the progress of a criminal cases before the trial
actually commences – Whether further investigation should or should
not be ordered is within the discretion of the Magistrate who will
exercise such discretion on the facts of each case and in E
accordance with law – In the instant case, the facts alleged in the
application for further investigation were facts which pertained to
revenue entries made in favour of ‘R’ and ‘S’ and how their claim
was false and bogus – Therefore, the facts alleged in the
applications for further investigation were in the nature of
F
cross-FIR which was not registered – Further, the Commissioner of
the Revenue doubted the order passed by the Revenue Authority
and he also stated that one application was filed by widow of ‘B’ in
the 2000, who had passed away in the year 1999 which showed
that her signature were prima facie forged – Therefore, it does not
call for further investigation into the facts alleged in the FIR G
already filed – However, considering the letter of the Commissioner
and other facts, police directed to register an FIR qua facts – Thus,
the judgment of the High Court insofar it stated that
post-cognizance the Magistrate is denuded of power to order
further investigation set aside.
H
938 SUPREME COURT REPORTS [2019] 15 S.C.R.
A Code of Criminal Procedure, 1973 – Constitution of India –
Art. 21 – Fair trial and fair investigation – Held: A fair trial must
kick-off only after an investigation is itself fair and just – The
ultimate aim of all investigation and inquiry whether by the police
or by the Magistrate, is to ensure that those who have not are not
arraigned to stand trial – That this is the minimal procedural
B
requirement that is the fundamental requirement of Art. 21 of
Constitution cannot be doubted – It is the hovering omnipresence
of Art. 21 over the Cr.P.C that must needs inform the interpretation
of all the provisions of the Cr.P.C, so as to ensure that Art. 21 is
followed both in letter and in spirit.
C Disposing of the appeals, the Court
HELD: 1. With the introduction of Section 173(8) in the
Code of Criminal Procedure, 1973 the police department has been
armed with the power to further investigate an offence even after
a police report has been forwarded to the Magistrate. Quite
D obviously, this power continues until the trial can be said to
commence in a criminal case. The vexed question was as to
whether the Magistrate can order further investigation after a
police report has been forwarded to him under Section 173.
[Para 19] [956-E]
E 2. 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
F 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
G 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
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 939
STATE OF GUJARAT AND ANR.
officer; which would undoubtedly include proceedings by way of A
further investigation under Section 173(8) of the CrPC.
[Para 23] [960-D-F]
3. In Union Public Service Commission v. S. Papaiah this
Court dealt with a case in which the Central Bureau of
Investigation had submitted a closure report. It then quoted from B
a Three Judge Bench judgment in Bhagwant Singh v.
Commissioner of Police and Anr. in which this Court stated that
a Magistrate, in dealing with a report from the police under Section
173, can adopt one of three courses - (1) he may accept the report
and drop the proceedings; or (2) he may disagree with the report,
take cognizance of the offence and issue process; or (3) he may C
direct further investigation to be made by the police under Section
156(3). The Court then went on to hold that where objections
have been furnished by the complainant, i.e. the Union Public
Service Commission, against the closure report of the police,
the Magistrate could, in exercise of powers under Section 173(8) D
of the CrPC, direct the CBI to further investigate the case and
collect further evidence keeping in view the objections raised by
the complainant. [Para 28] [965-C-E]
4. There is no good reason given by the Court in the
decisions in Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai E
Patel, Athul Rao v. State of Karnataka and Anr. and Bikash Ranjan
Rout v. State through the Secretary (Home), Government of NCT
of Delhi 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 F
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, Samaj Parivartan Samudaya, Vinay Tyagi and
Hardeep Singh; Hardeep Singh having clearly held that a criminal
trial does not begin after cognizance is taken, but only after G
charges are framed. What is not given any importance at all in
the recent judgments of this Court is Article 21 of the Constitution
and the fact that the Article demands no less than a fair and just
investigation. To say that a fair and just investigation would lead
H
940 SUPREME COURT REPORTS [2019] 15 S.C.R.
A to the conclusion that the police retain the power, subject, of
course, to the Magistrate’s nod under Section 173(8) to further
investigate an offence till charges are framed, but that the
supervisory jurisdiction of the Magistrate suddenly ceases
mid-way through the pre-trial proceedings, would amount to a
travesty of justice, as certain cases may cry out for further
B
investigation so that an innocent person is not wrongly arraigned
as an accused or that a prima facie guilty person is not so left out.
There is no warrant for such a narrow and restrictive view of the
powers of the Magistrate, particularly when such powers are
traceable to Section 156(3) read with Section 156(1), Section 2(h),
C and Section 173(8) of the CrPC, as has been noticed hereinabove,
and would be available at all stages of the progress of a criminal
case before the trial actually commences. 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
D
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
E than avoiding further delay being caused in concluding the criminal
proceeding, as was held in Hasanbhai Valibhai Qureshi. Therefore,
to the extent that the judgments in Amrutbhai Shambubhai Patel,
Athul Rao and Bikash Ranjan Rout have held to the contrary,
they stand overruled. Needless to add, Randhir Singh Rana v.
State (Delhi Administration) and Reeta Nag v. State of West
F
Bengal and Ors. also stand overruled. [Para 38] [985-G-H; 986-
A-G]
5. When this Court comes to the facts of this case, it is
clear that the FIR dated 22.12.2009 is concerned with two criminal
acts, namely, the preparing of fake and bogus ‘Satakhat’ and
G Power-of-Attorney in respect of the agricultural land in question,
and the demanding of an amount of Rs. 2.5 crores as an attempt
to extort money by the accused persons. The facts that are alleged
in the application for further investigation are facts which pertain
to revenue entries having been made in favour of ‘R’ and ‘S’ and
H how their claim over the same land is false and bogus.
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 941
STATE OF GUJARAT AND ANR.
Respondents are therefore, right in submitting that the facts A
alleged in the applications for further investigation are really in
the nature of a cross-FIR which has never been registered. In
fact, the communication of the Commissioner of Revenue, dated
15.03.2011 to the Collector, - so strongly relied upon by appellants
- bears this out. In this communication, the Commissioner doubts
B
that a particular order dated 14.04.1976 passed by a revenue
authority ever existed, and that by making an application in the
name of the long since deceased ‘B’ in 2010, for getting a copy of
Form No.3 would, prima facie, amount to a criminal offence.
Further, the Commissioner goes on to state that B’s widow, who
had passed away in December 1999, could not possibly have made C
an application in the year 2000; which shows that her signature is
also prima facie forged. Further, the said ‘R’ and ‘S’ Patel are at
present 48 and 53 years old, and if they could be said to be in
possession of the said agricultural land since 1934, they could be
said to be in possession at a time when they were not yet born.
D
Further, since these two gentlemen were abroad from the very
beginning, it is stated that they could not possibly be farmers
cultivating agricultural land. [Para 41] [987-F-H; 988-A-D]
6. Given the allegations in the communication of 15.03.2011,
this Court is of the view that this is not a case which calls for any
further investigation into the facts alleged in the FIR lodged on E
22.12.2009. Yet, having regard to what is stated by the
Commissioner in the said letter, this Court is of the view that the
police be directed to register an FIR qua these facts, which needs
to be investigated by a senior police officer nominated by the
concerned Commissioner of Police. [Para 42] [988-G-H; 989-A] F
Pooja Pal v. UOI (2016) 3 SCC 135 : [2016] 11 SCR
560; State of Bihar v. J.A.C. Saldhana and Ors. (1980)
1 SCC 554 : [1980] 2 SCR 16 ; Sakiri Vasu v. State of
U.P. and Ors. (2008) 2 SCC 409 : [2007] 12 SCR
1100 ; Ram Lal Narang v. State (Delhi Administration) G
(1979) 2 SCC 322 ; H.N. Rishbud v. State of Delhi
AIR 1955 SC 196 : [1955] SCR 1150 ; Union Public
Service Commission v. S. Papaiah (1997) 7 SCC 614 :
[1997] 4 Suppl. SCR 56; Bhagwant Singh v.
Commissioner of Police and Anr. (1985) 2 SCC 357:
H
942 SUPREME COURT REPORTS [2019] 15 S.C.R.
A [1985] 3 SCR 942; Hasanbhai Valibhai Qureshi v. State
of Gujarat and Ors. (2004) 5 SCC 347 : [2004] 3 SCR
762 ; Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC
536 : [2001] 1 Suppl. SCR 646 ; Gulzar Ahmed Azmi v.
Union of India and Ors. (2012) 10 SCC 731 : [2012]
9 SCR 287 ; Vinay Tyagi v. Irshad Ali and Ors. (2013)
B
5 SCC 762 : [2012] 13 SCR 1005 – relied on.
Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai
Patel (2017) 4 SCC 177 : [2017] 4 SCR 105 ; Athul
Rao v. State of Karnataka and Anr. (2018) 14 SCC
298 ; Bikash Ranjan Rout v. State through the Secretary
C (Home), Government of NCT of Delhi (2019) 5 SCC
542 ; Randhir Singh Rana v. State (Delhi Administration)
(1997) 1 SCC 361 : [1996] 10 Suppl. SCR 880 ;
Reeta Nag v. State of West Bengal and Ors. (2009) 9
SCC 129 : [2009] 13 SCR 276 – overruled.
D Devarapalli Lakshminarayana Reddy & Ors. v.
V. Narayana Reddy & Ors. (1976) 3 SCC 252 :
[1976] Suppl. SCR 524 – held not correct law.
Union of India and Anr. v. W.N Chadha (1993) Suppl.
4 SCC 260 : [1992] 3 Suppl. SCR 594; Smt. Nagawwa
E v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3
SCC 736 : [1976] Suppl. SCR 123; Prabha Mathur
and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC
469 : [2008] 13 SCR 1086 ; Narender G. Goel v. State
of Maharashtra (2009) 6 SCC 65 : [2009] 8 SCR
F 1004 ; Dinubhai Bhogabhai Solanki v. State of Gujarat
& Ors. (2014) 4 SCC 626 : [2014] 3 SCR 932
– distinguished.
Babubhai v. State of Gujarat & Ors. (2010) 12 SCC
254 : [2010] 10 SCR 651 ; Romila Thapar v. Union of
G India, (2018) 10 SCC 753 : [2018] 11 SCR 951 –
held inapplicable.
Mrs. Maneka Gandhi v. Union of India & Anr. (1978)
1 SCC 248 : [1978] 2 SCR 621; Commissioner of
Police, Delhi v. Registrar, Delhi High Court, New Delhi
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 943
STATE OF GUJARAT AND ANR.
(1996) 6 SCC 323 : [1996] 7 Suppl. SCR 432; A
Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC
91 : [1979] 2 SCR 717; Tula Ram & Ors. v. Kishore
Singh (1977) 4 SCC 459 : [1978] 1 SCR 615 ; Hardeep
Singh v. State of Punjab and Ors. (2014) 3 SCC 92 :
[2014] 2 SCR 1 ; Common Cause v. Union of India
B
(1996) 6 SCC 775 : [1996] 9 Suppl. SCR 296 ; King
Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 –
referred to.
Case Law Reference
[1978] 2 SCR 621 referred to Para 16 C
[1996] 7 Suppl. SCR 432 referred to Para 16
[2016] 11 SCR 560 relied on Para 18
[1979] 2 SCR 717 referred to Para 20
[1980] 2 SCR 16 relied on Para 22 D
[2007] 12 SCR 1100 relied on Para 22
[1976] Suppl. SCR 524 held not correct law Para 24
[1978] 1 SCR 615 referred to Para 24
(1979) 2 SCC 322 relied on Para 27 E
[1955] SCR 1150 relied on Para 27
[1997] 4 Suppl. SCR 56 relied on Para 28
[1985] 3 SCR 942 relied on Para 28
F
[2004] 3 SCR 762 relied on Para 29
[2001] 1 Suppl. SCR 646 relied on Para 30
[2012] 9 SCR 287 relied on Para 32
[2012] 13 SCR 1005 relied on Para 33
G
[2014] 2 SCR 1 referred to Para 34
[1996] 9 Suppl. SCR 296 referred to Para 34
[2017] 4 SCR 105 overruled Para 38
H
944 SUPREME COURT REPORTS [2019] 15 S.C.R.
A (2018) 14 SCC 298 overruled Para 38
(2019) 5 SCC 542 overruled Para 38
[1996] 10 Suppl. SCR 880 overruled Para 38
[2009] 13 SCR 276 overruled Para 38
B AIR 1945 PC 18 referred to Para 39
[1992] 3 Suppl. SCR 594 distinguished Para 40
[1976] Suppl. SCR 123 distinguished Para 40
[2008] 13 SCR 1086 distinguished Para 40
C
[2009] 8 SCR 1004 distinguished Para 40
[2014] 3 SCR 932 distinguished Para 40
[2010] 10 SCR 651 held inapplicable Para 40
[2018] 11 SCR 951 held inapplicable Para 40
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 478-479 of 2017
From the Judgment and Order dated 05.08.2013 of the High Court
of Gujarat at Ahmedabad in Criminal Revision Application No. 44 of
2012 with Criminal Misc. Application No. 1746 of 2012
E
Dushyant Dave, Sr. Adv., Nachiketa Joshi, Aniket Seth, Niraj
Malaviya, Mohd. Asad Khan, Ms. Sucheta Joshi, Ms. Himadri Maksar,
Advs. for the Appellants.
Basant R., Vinay Navare, Sr. Advs., Ms. Hemantika Wahi,
F Aniruddha P. Mayee, Sunil Kumar Verma, Manu Krishnan G., Shariq
Ahmed, Ms. Gwen Karthika, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
G 1. This case arises out of a First Information Report (hereinafter
referred to as “FIR”) that was lodged on 22.12.2009. The FIR is by one
Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai
Bhagubhai Patel and Shankarbhai Bhagubhai Patel, who are allegedly
residing at “UK or USA”. The gravamen of the complaint made in the
FIR is that one Vinubhai Haribhai Malaviya is blackmailing these two
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 945
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
gentlemen with respect to agricultural land which is just outside the city A
of Surat, Gujarat and which admeasures about 8296 square meters. The
FIR alleges that Ramanbhai Patel and Shankarbhai Patel are absolute
and independent owners of this land, having obtained it from one
Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year
1975. The FIR then narrates that because of a recent price-hike of
B
lands in the city of Surat, the heirs of Bhikhabhai and Bhikiben together
with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have
hatched a conspiracy in collusion with each other, and published a public
notice under the caption “Beware of Land-grabbers” in a local newspaper
on 07.06.2008. Sometime thereafter, Vinubhai Haribhai Malaviya then
contacted an intermediary, who in turn contacted Nitinbhai Patel (who C
lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya
demanded an amount of Rs. 2.5 crores in order to “settle” disputes in
respect of this land. It is alleged in the said FIR that apart from attempting
to extort money from the said Nitinbhai Patel, the heirs of Bhikhabhai
and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai
D
Kurjibhai Malaviya have used a fake and bogus ‘Satakhat’ and Power-
of-Attorney in respect of the said land, and had tried to grab this land
from its lawful owners Ramanbhai and Shankarbhai Patel.
2. The background to the FIR is the fact that one Khushalbhai
was the original tenant of agricultural land, bearing Revenue Survey
No.342, admeasuring 2 Acres, 2 Gunthas, situated at Puna (Mauje), E
Choriyasi (Tal), District Surat. Khushalbhai died, after which his son
Bhikhabhai became tenant in his place. Bhikhabhai in turn died on
23.12.1984 and his wife Bhikiben died on 18.12.1999. A public notice
dated 07.06.2008 was issued in ‘Gujarat Mitra’ and ‘Gujarat Darpan
Dainik’ by the heirs of Bhikhabhai, stating that Ramanbhai and F
Shankarbhai Patel are land-grabbers, and are attempting to create third-
party rights in the said property. This led to the legal heirs of Bhikhabhai,
through their Power-of-Attorney holder, applying on 12.06.2008 to the
Collector, Nanpura (Surat), to cancel revenue entries that were made
way back in 1976.
G
3. Pursuant to the filing of the FIR, investigation was conducted
by the police, which resulted in a charge-sheet dated 22.04.2010 being
submitted to the Judicial Magistrate (First Class), Surat. On 23.04.2010,
the said Magistrate took cognizance and issued summons to the accused
regarding offences under Sections 420, 465, 467, 468, 471, 384 and 511
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946 SUPREME COURT REPORTS [2019] 15 S.C.R.
A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
Pursuant to the summons, the accused appeared before the said
Magistrate. On 10.06.2011, an application (Exhibit 28) was filed by
Accused No.1 Vinubhai Haribhai Malaviya for further investigation under
Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “CrPC”) and another application (Exhibit 29) for discharge.
B
Likewise, on 14.06.2011, applications for further investigation (Exhibit
31) and for discharge (Exhibit 32) were filed by accused 2 to 6. By an
order dated 24.08.2011, the Magistrate dismissed the applications that
were filed for further investigation (i.e. Exhibits 28 and 31), stating that
the facts sought to be placed by the applicants were in the nature of
C evidence of the defence that would be taken in the trial. Likewise, on
21.10.2011 the learned Magistrate also rejected the discharge applications
that were made (i.e. Exhibits 29 and 32).
4. Meanwhile, on 26.07.2011, Criminal Miscellaneous Application
No.816 of 2011 was moved by Vinubhai Haribhai Malaviya and the
D other accused to register an FIR, or for the Magistrate to order
investigation under Section 156(3) of the CrPC into the facts stated in
their applications. This was rejected by the learned Magistrate by an
order dated 09.09.2011.
5. Separate criminal revision applications were filed before the
E Sessions Court, Surat, being Revision Application Nos. 376 and 346 of
2011, insofar as the dismissal by the learned Magistrate of further
investigation and the order rejecting registration of the FIR were
concerned. Both these revision applications were decided by the learned
Second Additional Sessions Judge, Surat by a common order dated
10.01.2012. By this order, the learned Second Additional Sessions Judge
F went into details of facts that were alleged in the application under Section
173(8) and found that a case had been made out for further investigation.
Accordingly, he held:
“As per the above referred discussion, it can be seen that no
effective investigation or discussions have been carried out in all
G these respect during in the course of the investigation of said
offence and further, it is very noteworthy here that matters for
which the prayers are made in these Revision Applications, all
these matters are pertaining to the complaint of this case. Hence,
it is very much necessary that for the purpose of carrying out a
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 947
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
detailed and full investigation of this complaint, all these matters A
should also be investigated. But for the said purpose, it is not
necessary that a separate complaint be registered and thereafter
its investigation be carried out. But by covering this investigation
also in the complaint of the present matter, if it is found out in such
investigation that any offence was committed, then appropriate
B
criminal proceedings can be initiated against such person.”
6. Pursuant to this order, the investigation was handed over to
Investigating Officer R.A. Munshi (hereinafter referred to as “IO
Munshi”) on 06.03.2012, who then submitted two further investigation
reports – one within three days, dated 09.03.2012 and a second one
dated 10.04.2012, in which the IO Munshi went into the facts mentioned C
in the 173(8) applications that were filed. On 13.06.2012, the original
accused withdrew Special Criminal Application No.727 of 2012 filed in
the High Court, which was filed challenging the order by which the
learned Revisional Court had confirmed the order rejecting the discharge
applications, with liberty to move an appropriate application for discharge D
before the Magistrate. The High Court heard Criminal Revision
Application No.44 of 2012 together with Criminal Miscellaneous
Application No.1746 of 2012, and arrived at the conclusion that, as a
matter of law, the Magistrate does not possess any power to order further
investigation after a charge-sheet is filed and cognizance is taken. The
High Court further castigated IO Munshi, holding that the furnishing of E
interim investigation reports, not through a special public prosecutor and
not to the Magistrate, but to the Additional Sessions Judge himself smacks
of mala fides, as if IO Munshi wanted to oblige and/or favour the accused
persons. The High Court further found that the two interim investigation
reports virtually acquitted the accused persons, and therefore, the High F
Court set aside the judgment of the learned Second Additional Sessions
Judge dated 10.01.2012, and consequently, the two further interim
investigation reports. So far as Criminal Revision Application No.346 of
2011 (which was disposed of by the learned Second Additional Sessions
Judge without considering merits, in light of its order in Criminal Revision
Application No.376 of 2011) was concerned, the High court remanded G
the same for fresh consideration to the learned Second Additional Sessions
Judge, who would then decide as to whether an FIR should be registered,
insofar as the allegations contained in the applications for further
investigation are concerned. Pursuant to the aforesaid remand, by
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948 SUPREME COURT REPORTS [2019] 15 S.C.R.
A judgment dated 23.04.2016, the learned Additional Sessions Judge has
rejected the application under Section 156(3) of the CrPC on merits,
against which Special Criminal Application No.3085 of 2016 has been
filed and is awaiting disposal. Several other proceedings that are pending
between the parties have been pointed out to us, with which we have no
immediate concern in this case.
B
7. Shri Dushyant Dave, learned Senior Advocate, appearing on
behalf of the Appellants, has forcefully argued, placing reliance on a
number of provisions of the CrPC, and a number of our judgments, that
the High Court was wholly incorrect as a matter of law, in holding that
post-cognizance a Magistrate would have no power to order further
C investigation into an offence. He read out in great detail the FIR dated
22.12.2009, the contents of the charge-sheet dated 22.04.2010, and relied
heavily on a communication made by the Commissioner of Revenue,
Gujarat to the Collector, Surat dated 15.03.2011. According to him, the
contents of this communication would show that there is no doubt that
D further investigation ought to have been carried out on the facts of this
case, in that, a huge fraud had been perpetrated on his clients by land-
grabbing mafia, and it would be a travesty of justice if the learned Second
Additional Sessions Judge’s judgment dated 10.01.2012 was not upheld.
According to him, the High Court judgment was greatly influenced by
the fact that: (1) IO Munshi submitted further interim investigation reports
E very quickly, and (2) had submitted these reports to the Additional
Sessions Judge instead of the Magistrate; resulting in the throwing out
of the baby with the bathwater. He therefore urged us to uphold the
order of the Second Additional Sessions Judge who ordered further
investigation, as that would lead to the truth of the matter in this case.
F 8. On the other hand, Shri Basant and Shri Navare, learned Senior
Advocates appearing on behalf of the respondents, supported the
judgment of the trial court and the High Court, stating that there is no
doubt that without filing a cross-FIR, what was sought to be adduced is
evidence which may perhaps amount to a defence in the trial to be
G conducted, which would be impermissible. They emphasised that at no
stage had an application been moved to quash the proceedings, and
obviously, a belated application made more than a year after cognizance
had been taken, to obtain by way of further investigation facts which
were wholly divorced from the FIR would be wholly outside the
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 949
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
Magistrate’s power under Section 173(8) of the CrPC. They relied upon A
several judgments, and particularly recent judgments of this Court, in
order to show that post-cognizance and particularly after summons is
issued to the accused, and the accused appears pursuant to such summons,
the Magistrate has no suo motu power, nor can he be moved by the
accused, for further investigation at this stage of the proceedings.
B
9. The question of law that therefore arises in this case is 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.
10. The CrPC is neatly divided into 37 Chapters. In this case we C
are concerned with Chapters XII to XVII. Chapter XII is titled
“Information to the Police and their Powers to Investigate”. Chapter
XIII has as its title “Jurisdiction of the Criminal Courts in Inquiries and
Trials”. Chapter XIV speaks of “Conditions Requisite for Initiation of
Proceedings”. Chapter XV then speaks of “Complaints to Magistrates”.
Chapter XVI is headed “Commencement of Proceedings before D
Magistrates” and Chapter XVII is headed “The Charge”. Chapters
XVIII to XXI are “Trials before a Court of Session”; “Trial of Warrant-
Cases by Magistrates”; “Trials of Summons-Cases by Magistrates”;
and Summary Trials”, respectively.
11. The relevant sections of the CrPC with which we are E
concerned are as follows:
“156. Police officer’s power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which F
a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try
under the provisions of Chapter XIII.
xxx xxx xxx
(3) Any Magistrate empowered under Section 190 may order G
such an investigation as above-mentioned.
xxx xxx xxx
173. Report of police officer on completion of
investigation.-
H
950 SUPREME COURT REPORTS [2019] 15 S.C.R.
A xxx xxx xxx
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the police station
B obtains further evidence, oral or documentary, he shall forward to
the Magistrate a further report or reports regarding such evidence
in the form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report or
reports as they apply in relation to a report forwarded under
sub-section (2).
C
xxx xxx xxx
190. Cognizance of offences by Magistrates.- (1) Subject to
the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in
D this behalf under sub-section (2), may take cognizance of any
offence –
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
E
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1) of
F
such offences as are within his competence to inquire into or
try.
xxx xxx xxx
200. Examination of complainant.- A Magistrate taking
G cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also by
the Magistrate:
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 951
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
Provided that, when the complaint is made in writing, the A
Magistrate need not examine the complainant and the
witnesses –
(a) if a public servant acting or purporting to act in the discharge
of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to B
another Magistrate under Section 192.
Provided further that if the Magistrate makes over the case to
another Magistrate under Section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them. C
xxx xxx xxx
202. Postponement of issue of process.– (1) Any Magistrate,
on receipt of a complaint of an offence of which he is authorised
to take cognizance or which has been made over to him under D
Section 192, may, if he thinks fit, [and shall, in a case where the
accused is residing at a place beyond the area in which he
exercises his jurisdiction] postpone the issue of process against
the accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or not E
there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) Where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Sessions;
F
or
(b) Where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he G
thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath. H
952 SUPREME COURT REPORTS [2019] 15 S.C.R.
A (3) If an investigation under sub-section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Code on an officer in charge of a
police station except the power to arrest without warrant.
xxx xxx xxx
B 204. Issue of process.– (1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be –
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
C
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a
summon, for causing the accused to be brought or to appear
at a certain time before such other Magistrate or (if he has no
jurisdiction himself) some other Magistrate having
jurisdiction.
D
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has
been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
E
accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees
or other fees are payable, no process shall be issued until the fees
are paid and, if such fees are not paid within a reasonable time,
the Magistrate may dismiss the complaint.
F
(5) Nothing in this section shall be deemed to affect the
provisions of section 87.”
12. As the Chapter headings themselves show, there is a neat
distinction between the powers of the police to investigate and jurisdiction
G of the criminal courts in inquiries - followed by the procedure once the
trial itself begins. Section 156 deals with a police officer’s power to
investigate “cognizable cases”. A “cognizable case” is defined under
Section 2(c) of the CrPC as follows:
“cognizable offence” means an offence for which, and
H “cognizable case” means a case in which, a police officer may, in
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 953
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
accordance with the First Schedule or under any other law for A
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 B
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; C
“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 authorised by a
Magistrate in this behalf. D
13. The statutory scheme contained in the CrPC therefore puts
“inquiry” and “trial” in water-tight compartments, as the very definition
of “inquiry” demonstrates. “Investigation” is for the purpose of collecting
evidence by a police officer, and otherwise by any person authorised by
a Magistrate in this behalf, and also pertains to a stage before the trial E
commences. 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.
14. The erstwhile Code of Criminal Procedure, 1898 did not contain
a provision by which the police were empowered to conduct a further F
investigation in respect of an offence after a police report under Section
173 has been forwarded to the Magistrate. The Forty-First Law
Commission Report (The Code of Criminal Procedure, 1898) forwarded
to the Ministry of Law in September 1969 (hereinafter referred to as the
“Law Commission Report”), therefore, recommended the addition of
sub-section (7) to Section 173 as it stood under the Code of Criminal G
Procedure, 1898 for the following reasons:
“14.23. 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
H
954 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B
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
C must of course be furnished to the accused.”
(emphasis supplied)
15. What is interesting to note is that the narrow view of some of
the High Courts had placed a hindrance in the way of the investigating
agency, which can be very unfair to the prosecution as well as the
D accused.
16. Article 21 of the Constitution of India makes it clear that the
procedure in criminal trials must, after the seminal decision in
Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248,
be “right, just and fair and not arbitrary, fanciful or oppressive” (see
E paragraph 7 therein). Equally, in Commissioner of Police, Delhi v.
Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323, it was
stated that Article 21 enshrines and guarantees the precious right of life
and personal liberty to a person which can only be deprived on following
the procedure established by law in a fair trial which assures the safety
F of the accused. The assurance of a fair trial is stated to be the first
imperative of the dispensation of justice (see paragraph 16 therein).
17. It is clear that a fair trial must kick off only after an investigation
is itself fair and just. The ultimate aim of all investigation and inquiry,
whether by the police or by the Magistrate, is to ensure that those who
G 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
H Article 21 is followed both in letter and in spirit.
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 955
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
18. Pooja Pal v. UOI (2016) 3 SCC 135 is an important judgment A
which speaks of the fundamental right under Article 21 of the Constitution
in the context of the goal of “speedy trial” being tempered by “fair trial”.
The Court put it thus:
“83. A “speedy trial”, albeit the essence of the fundamental right
to life entrenched in Article 21 of the Constitution of India has a B
companion in concept in “fair trial”, both being inalienable
constituents of an adjudicative process, to culminate in a judicial
decision by a court of law as the final arbiter. There is indeed a
qualitative difference between right to speedy trial and fair trial
so much so that denial of the former by itself would not be
prejudicial to the accused, when pitted against the imperative of C
fair trial. As fundamentally, justice not only has to be done but
also must appear to have been done, the residuary jurisdiction of
a court to direct further investigation or reinvestigation by any
impartial agency, probe by the State Police notwithstanding, has
to be essentially invoked if the statutory agency already in charge D
of the investigation appears to have been ineffective or is
presumed or inferred to be not being able to discharge its
functions fairly, meaningfully and fructuously. As the cause of
justice has to reign supreme, a court of law cannot reduce itself to
be a resigned and a helpless spectator and with the foreseen
consequences apparently unjust, in the face of a faulty E
investigation, meekly complete the formalities to record a
foregone conclusion. Justice then would become a casualty. Though
a court’s satisfaction of want of proper, fair, impartial and
effective investigation eroding its credence and reliability is the
precondition for a direction for further investigation or F
reinvestigation, submission of the charge-sheet ipso facto or the
pendency of the trial can by no means be a prohibitive
impediment. The contextual facts and the attendant circumstances
have to be singularly evaluated and analysed to decide the need-
fulness of further investigation or reinvestigation to unravel the
truth and mete out justice to the parties. The prime concern and G
the endeavour of the court of law is to secure justice on the basis
of true facts which ought to be unearthed through a committed,
resolved and a competent investigating agency.
xxx xxx xxx
H
956 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 86. A trial encompasses investigation, inquiry, trial, appeal and
retrial i.e. the entire range of scrutiny including crime detection
and adjudication on the basis thereof. Jurisprudentially, the
guarantee under Article 21 embraces both the life and liberty of
the accused as well as interest of the victim, his near and dear
ones as well as of the community at large and therefore, cannot
B
be alienated from each other with levity. It is judicially acknowl-
edged that fair trial includes fair investigation as envisaged by
Articles 20 and 21 of the Constitution of India. Though
well-demarcated contours of crime detection and adjudication do
exist, if the investigation is neither effective nor purposeful nor
C objective nor fair, it would be the solemn obligation of the courts,
if considered necessary, to order further investigation or
reinvestigation as the case may be, to discover the truth so as to
prevent miscarriage of the justice. No inflexible guidelines or hard-
and-fast rules as such can be prescribed by way of uniform and
universal invocation and the decision is to be conditioned to the
D
attendant facts and circumstances, motivated dominantly by the
predication of advancement of the cause of justice.”
19. With the introduction of Section 173(8) in the CrPC, the police
department has been armed with the power to further investigate an
offence even after a police report has been forwarded to the Magistrate.
E Quite obviously, this power continues until the trial can be said to
commence in a criminal case. The vexed question before us is as to
whether the Magistrate can order further investigation after a police
report has been forwarded to him under Section 173.
20. It is interesting to note that even under the Code of Criminal
F Procedure, 1898, in Kamlapati Trivedi v. State of West Bengal (1980)
2 SCC 91, this Court held as follows:
“50. Sections 169 and 170 do not talk of the submission of any
report by the police to the Magistrate, although they do state what
the police has to do short of such submission when it finds at the
G conclusion of the investigation (1) that there is not sufficient
evidence or reasonable ground of suspicion to justify the forward-
ing of the accused to a Magistrate (Section 169) or (2) that there
is sufficient evidence or reasonable ground as aforesaid (Section
170). In either case the final report of the police is to be submitted
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 957
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
to the Magistrate under sub-section (1) of Section 173. A
Sub-section (3) of that section further provides that in the case of
a report by the police that the accused has been released on his
bond (which is the situation envisaged by Section 169), the
Magistrate shall make “such order for the discharge of such bond
or otherwise as he thinks fit”. Now what are the courses open to
B
the Magistrate in such a situation? He may, as held by this Court
in Abhinandan Jha v. Dinesh Mishra [(1967) 3 SCR 668: AIR
1968 SC 117: 1968 Cri LJ 97]:
(1) agree with the report of the police and file the proceedings; or
(2) not agree with the police report and C
(a) order further investigation, or
(b) hold that the evidence is sufficient to justify the forwarding of
the accused to the Magistrate and take cognizance of the offence
complained of.
D
51. The appropriate course has to be decided upon after a
consideration of the report and the application of the mind of the
Magistrate to the contents thereof. But then the problem to be
solved is whether the order passed by the Magistrate pertains to
his executive or judicial capacity. In my opinion, the only order
which can be regarded as having been passed by the Magistrate E
in his capacity as the supervisory authority in relation to the
investigation carried out by the police is the one covered by the
course 2(a). The order passed by the Magistrate in each of the
other two courses, that is, (1) and (2)(b), follows a conclusion
of the investigation and is a judicial order determining the rights F
of the parties (the State on the one hand and the accused on the
other) after the application of his mind. And if that be so, the
order passed by the Magistrate in the proceeding before us must
be characterised as a judicial act and therefore as one performed
in his capacity as a Court.”
G
21. What is recognised by this decision is that in the circumstance
that the Magistrate does not agree with the police report, he may order
further investigation - which is done in his capacity as a supervisory
authority in relation to investigation carried out by the police.
H
958 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 22. Indeed, Section 156(3) has remained unchanged even after
the advent of the CrPC of 1973. Thus, in State of Bihar v. J.A.C.
Saldhana and Ors. (1980) 1 SCC 554, this Court held:
“19. The power of the Magistrate under Section 156(3) to direct
further investigation is clearly an independent power and does not
B stand in conflict with the power of the State Government as spelt
out hereinbefore. The power conferred upon the Magistrate
under Section 156(3) can be exercised by the Magistrate even
after submission of a report by the investigating officer which
would mean that it would be open to the Magistrate not to accept
the conclusion of the investigating officer and direct further
C investigation. This provision does not in any way affect the power
of the investigating officer to further investigate the case even
after submission of the report as provided in Section 173(8).”
Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2
SCC 409, this Court held:
D
“12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627:
(2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this Court observed:
(SCC p. 631, para 11)
“11. The clear position therefore is that any Judicial Magistrate,
E before taking cognizance of the offence, can order investigation
under Section 156(3) of the Code. If he does so, he is not to
examine the complainant on oath because he was not taking
cognizance of any offence therein. For the purpose of enabling
the police to start investigation it is open to the Magistrate to
direct the police to register an FIR. There is nothing illegal in
F doing so. After all registration of an FIR involves only the process
of entering the substance of the information relating to the
commission of the cognizable offence in a book kept by the of-
ficer in charge of the police station as indicated in Section 154 of
the Code. Even if a Magistrate does not say in so many words
G while directing investigation under Section 156(3) of the Code
that an FIR should be registered, it is the duty of the officer in
charge of the police station to register the FIR regarding the
cognizable offence disclosed by the complainant because that
police officer could take further steps contemplated in Chapter
XII of the Code only thereafter.”
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 959
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
13. The same view was taken by this Court in Dilawar Singh v. A
State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (JT
vide para 17). We would further clarify that even if an FIR has
been registered and even if the police has made the investigation,
or is actually making the investigation, which the aggrieved
person feels is not proper, such a person can approach the
B
Magistrate under Section 156(3) CrPC, and if the Magistrate is
satisfied he can order a proper investigation and take other
suitable steps and pass such order(s) as he thinks necessary for
ensuring a proper investigation. All these powers a Magistrate
enjoys under Section 156(3) CrPC.
14. Section 156(3) states: C
“156. (3) Any Magistrate empowered under Section 190 may
order such an investigation as abovementioned.”
The words “as abovementioned” obviously refer to Section 156(1),
which contemplates investigation by the officer in charge of the D
police station.
15. Section 156(3) provides for a check by the Magistrate on the
police performing its duties under Chapter XII CrPC. In cases
where the Magistrate finds that the police has not done its duty of
investigating the case at all, or has not done it satisfactorily, he E
can issue a direction to the police to do the investigation properly,
and can monitor the same.
16. The power in the Magistrate to order further investigation
under Section 156(3) is an independent power and does not
affect the power of the investigating officer to further investigate F
the case even after submission of his report vide Section 173(8).
Hence the Magistrate can order reopening of the investigation
even after the police submits the final report, vide State of Bihar
v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 :
AIR 1980 SC 326] (SCC : AIR para 19).
G
17. In our opinion Section 156(3) CrPC is wide enough to include
all such powers in a Magistrate which are necessary for ensuring
a proper investigation, and it includes the power to order
registration of an FIR and of ordering a proper investigation if the
Magistrate is satisfied that a proper investigation has not been
H
960 SUPREME COURT REPORTS [2019] 15 S.C.R.
A done, or is not being done by the police. Section 156(3) CrPC,
though briefly worded, in our opinion, is very wide and it will
include all such incidental powers as are necessary for ensuring a
proper investigation.
18. It is well settled that when a power is given to an authority to
B do something it includes such incidental or implied powers which
would ensure the proper doing of that thing. In other words, when
any power is expressly granted by the statute, there is impliedly
included in the grant, even without special mention, every power
and every control the denial of which would render the grant it-
self ineffective. Thus where an Act confers jurisdiction it impliedly
C also grants the power of doing all such acts or employ such means
as are essentially necessary for its execution.”
23. 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
D 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
E 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
F of evidence conducted by a police officer; which would undoubtedly
include proceedings by way of further investigation under Section 173(8)
of the CrPC.
24. However, Shri Basant relied strongly on a Three Judge Bench
judgment in Devarapalli Lakshminarayana Reddy & Ors. v. V.
G Narayana Reddy & Ors. (1976) 3 SCC 252. This judgment, while
deciding whether the first proviso to Section 202 (1) of the CrPC was
attracted on the facts of that case, held:
“17. Section 156(3) occurs in Chapter XII, under the caption :
“Information to the Police and their powers to investigate”; while
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 961
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
Section 202 is in Chapter XV which bears the heading: “Of A
complaints to Magistrates”. The power to order police
investigation under Section 156(3) is different from the power to
direct investigation conferred by Section 202(1). The two operate
in distinct spheres at different stages. The first is exercisable at
the pre-cognizance stage, the second at the post-cognizance stage
B
when the Magistrate is in seisin of the case. That is to say in the
case of a complaint regarding the commission of a cognizable
offence, the power under Section 156(3) can be invoked by the
Magistrate before he takes cognizance of the offence under
Section 190(1)(a). But if he once takes such cognizance and
embarks upon the procedure embodied in Chapter XV, he is not C
competent to switch back to the pre-cognizance stage and avail
of Section 156(3). It may be noted further that an order made
under sub-section (3) of Section 156, is in the nature of a
peremptory reminder or intimation to the police to exercise their
plenary powers of investigation under Section 156(1). Such an
D
investigation embraces the entire continuous process which
begins with the collection of evidence under Section 156 and ends
with a report or charge-sheet under Section 173. On the other
hand, Section 202 comes in at a stage when some evidence has
been collected by the Magistrate in proceedings under Chapter
XV, but the same is deemed insufficient to take a decision as to E
the next step in the prescribed procedure. In such a situation, the
Magistrate is empowered under Section 202 to direct, within the
limits circumscribed by that section an investigation “for the
purpose of deciding whether or not there is sufficient ground for
proceeding”. Thus the object of an investigation under Section
F
202 is not to initiate a fresh case on police report but to assist the
Magistrate in completing proceedings already instituted upon a
complaint before him.”
This judgment was then followed in Tula Ram & Ors. v. Kishore
Singh (1977) 4 SCC 459 at paragraphs 11 and 15.
G
25. 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
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962 SUPREME COURT REPORTS [2019] 15 S.C.R.
A “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
B
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).
26. Section 2(h) is not noticed by the aforesaid judgment at all,
C 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
D have begun. For these reasons, the statement of the law contained in
paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot
be relied upon.
27. Ram Lal Narang v. State (Delhi Administration) (1979) 2
SCC 322, is an early judgment which deals with the power contained in
E Section 173(8) after a charge-sheet is filed. This Court adverted to the
Law Commission Report and to a number of judgments which recognised
the right of the police to make repeated investigations under the Code of
Criminal Procedure, 1898. It then quoted the early Supreme Court
judgment in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 case as
follows:
F
“17. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196: (1955)
1 SCR 1150: 1955 Cri LJ 526] this Court contemplated the
possibility of further investigation even after a Court had taken
cognizance of the case. While noticing that a police report
resulting from an investigation was provided in Section 190 CrPC
G as the material on which cognizance was taken, it was pointed
out that it could not be maintained that a valid and legal police
report was the foundation of the jurisdiction of the court to take
cognizance. It was held that where cognizance of the case had, in
fact, been taken and the case had proceeded to termination, the
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 963
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
invalidity of the precedent investigation did not vitiate the result A
unless miscarriage of justice had been caused thereby. It was
said that a defect or illegality in investigation, however serious,
had no direct bearing on the competence of the procedure
relating to cognizance or trial. However, it was observed:
“It does not follow that the invalidity of the investigation is to be B
completely ignored by a Court during trial. When the breach of
such mandatory provision is brought to the knowledge of the Court
at a sufficiently early stage, the Court, while not declining
cognizance, will have to take the necessary steps to get the
illegality cured and the defect rectified, by ordering such
re-investigation as the circumstances of an individual case may C
call for.”
This decision is a clear authority for the view that further
investigation is not altogether ruled out merely because
cognizance of the case has been taken by the court; defective
investigation coming to light during the course of a trial may be D
cured by a further investigation, if circumstances permit it.”
The Court then went on to hold:
“20. Anyone acquainted with the day-to-day working of the criminal
courts will be alive to the practical necessity of the police E
possessing the power to make further investigation and submit a
supplemental report. It is in the interests of both the prosecution
and the defence that the police should have such power. It is easy
to visualise a case where fresh material may come to light which
would implicate persons not previously accused or absolve
persons already accused. When it comes to the notice of the F
investigating agency that a person already accused of an offence
has a good alibi, is it not the duty of that agency to investigate the
genuineness of the plea of alibi and submit a report to the
Magistrate? After all the investigating agency has greater
resources at its command than a private individual. Similarly, where G
the involvement of persons who are not already accused comes
to the notice of the investigating agency, the investigating agency
cannot keep quiet and refuse to investigate the fresh information.
It is their duty to investigate and submit a report to the Magistrate
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964 SUPREME COURT REPORTS [2019] 15 S.C.R.
A upon the involvement of the other persons. In either case, it is for
the Magistrate to decide upon his future course of action
depending upon the stage at which the case is before him. If he
has already taken cognizance of the offence, but has not
proceeded with the enquiry or trial, he may direct the issue of
process to persons freshly discovered to be involved and deal
B
with all the accused in a single enquiry or trial. If the case of
which he has previously taken cognizance has already proceeded
to some extent, he may take fresh cognizance of the offence
disclosed against the newly involved accused and proceed with
the case as a separate case. What action a Magistrate is to take
C in accordance with the provisions of the CrPC in such situations
is a matter best left to the discretion of the Magistrate. The
criticism that a further investigation by the police would trench
upon the proceeding before the court is really not of very great
substance, since whatever the police may do, the final discretion
in regard to further action is with the Magistrate. That the final
D
word is with the Magistrate is sufficient safeguard against any
excessive use or abuse of the power of the police to make further
investigation. We should not, however, be understood to say that
the police should ignore the pendency of a proceeding before a
court and investigate every fresh fact that comes to light as if no
E cognizance had been taken by the Court of any offence. We think
that in the interests of the independence of the magistracy and
the judiciary, in the interests of the purity of the administration of
criminal justice and in the interests of the comity of the various
agencies and institutions entrusted with different stages of such
administration, it would ordinarily be desirable that the police should
F
inform the court and seek formal permission to make further
investigation when fresh facts come to light.
21. As observed by us earlier, there was no provision in the CrPC,
1898 which, expressly or by necessary implication, barred the
right of the police to further investigate after cognizance of the
G case had been taken by the Magistrate. Neither Section 173 nor
Section 190 lead us to hold that the power of the police to further
investigate was exhausted by the Magistrate taking cognizance
of the offence. Practice, convenience and preponderance of
authority, permitted repeated investigations on discovery of fresh
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 965
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
facts. In our view, notwithstanding that a Magistrate had taken A
cognizance of the offence upon a police report submitted under
Section 173 of the 1898 Code, the right of the police to further
investigate was not exhausted and the police could exercise such
right as often as necessary when fresh information came to light.
Where the police desired to make a further investigation, the
B
police could express their regard and respect for the court by
seeking its formal permission to make further investigation.”
(emphasis supplied)
28. In Union Public Service Commission v. S. Papaiah (1997)
7 SCC 614, this Court dealt with a case in which the Central Bureau of C
Investigation (hereinafter referred to as the “CBI”) had submitted a
closure report. It then quoted from a Three Judge Bench judgment in
Bhagwant Singh v. Commissioner of Police and Anr. (1985) 2 SCC
357, in which this Court stated that a Magistrate, in dealing with a report
from the police under Section 173, can adopt one of three courses - (1)
he may accept the report and drop the proceedings; or (2) he may disagree D
with the report, take cognizance of the offence and issue process; or (3)
he may direct further investigation to be made by the police under Section
156(3). The Court then went on to hold that where objections have been
furnished by the complainant, i.e. the Union Public Service Commission,
against the closure report of the police, the Magistrate could, in exercise E
of powers under Section 173(8) of the CrPC, direct the CBI to further
investigate the case and collect further evidence keeping in view the
objections raised by the complainant (see paragraph 13 therein).
29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.
(2004) 5 SCC 347 is an important judgment which deals with the necessity F
for further investigation being balanced with the delaying of a criminal
proceeding. If there is a necessity for further investigation when fresh
facts come to light, then the interest of justice is paramount and trumps
the need to avoid any delay being caused to the proceeding. The Court
therefore held:
G
“11. Coming to the question whether a further investigation is
warranted, the hands of the investigating agency or the court should
not be tied down on the ground that further investigation may
delay the trial, as the ultimate object is to arrive at the truth.
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966 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 12. Sub-section (8) of Section 173 of the Code permits further
investigation, and even dehors any direction from the court as
such, it is open to the police to conduct proper investigation, even
after the court took cognisance of any offence on the strength of
a police report earlier submitted. All the more so, if as in this case,
the Head of the Police Department also was not satisfied of the
B
propriety or the manner and nature of investigation already
conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC
322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by
this Court that further investigation is not altogether ruled out
C merely because cognisance has been taken by the court. When
defective investigation comes to light during course of trial, it may
be cured by further investigation, if circumstances so permitted.
It would ordinarily be desirable and all the more so in this case,
that the police should inform the court and seek formal
D permission to make further investigation when fresh facts come
to light instead of being silent over the matter keeping in view only
the need for an early trial since an effective trial for real or actual
offences found during course of proper investigation is as much
relevant, desirable and necessary as an expeditious disposal of
the matter by the courts. In view of the aforesaid position in law,
E if there is necessity for further investigation, the same can
certainly be done as prescribed by law. The mere fact that there
may be further delay in concluding the trial should not stand in the
way of further investigation if that would help the court in arriving
at the truth and do real and substantial as well as effective justice.
F We make it clear that we have not expressed any final opinion on
the merits of the case.”1
30. In Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC 536,
this Court followed Papaiah (supra) and held:
“16. Although the said sub-section does not, in specific terms,
G mention about the powers of the court to order further
1
This statement of the law was approved in Rama Chaudhary v. State of Bihar
(2009) 6 SCC 346 (at paragraphs 14 to 19) and in Samaj Parivartan Samudaya and
H Ors. v. State of Karnataka and Ors. (2012) 7 SCC 407 (at paragraph 58).
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 967
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
investigation, the power of the police to conduct further A
investigation envisaged therein can be triggered into motion at the
instance of the court. When any such order is passed by a court
which has the jurisdiction to do so, it would not be a proper
exercise of revisional powers to interfere therewith because the
further investigation would only be for the ends of justice. After
B
the further investigation, the authority conducting such
investigation can either reach the same conclusion and reiterate it
or it can reach a different conclusion. During such extended
investigation, the officers can either act on the same materials or
on other materials which may come to their notice. It is for the
investigating agency to exercise its power when it is put back on C
that track. If they come to the same conclusion, it is of added
advantage to the persons against whom the allegations were made,
and if the allegations are found false again the complainant would
be in trouble. So from any point of view the Special Judge’s
direction would be of advantage for the ends of justice. It is too
D
premature for the High Court to predict that the investigating
officer would not be able to collect any further material at all.
That is an area which should have been left to the investigating
officer to survey and recheck.
17. In Bhagwant Singh v. Commr. of Police [(1985) 2 SCC
537 : 1985 SCC (Cri) 267] a three-Judge Bench of this Court has E
said, though in a slightly different context, that three options are
open to the court on receipt of a report under Section 173(2) of
the Code, when such report states that no offence has been
committed by the persons accused in the complaint. They are:
(SCC p. 542, para 4) F
(1) The court may accept the report and drop the proceedings; or
(2) the court may disagree with the report and take cognizance of
the offence and issue process if it takes the view that there is
sufficient ground for proceeding further; or
G
(3) the court may direct further investigation to be made by the
police.
H
968 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 18. Another three-Judge Bench in India Carat (P) Ltd. v. State
of Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306] has
stated thus: (SCC pp. 139-40, para 16)
“16. The position is, therefore, now well settled that upon receipt
of a police report under Section 173(2) a Magistrate is entitled to
B take cognizance of an offence under Section 190(1)(b) of the
Code even if the police report is to the effect that no case is made
out against the accused. The Magistrate can take into account
the statements of the witnesses examined by the police during the
investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190(1)(b)
C does not lay down that a Magistrate can take cognizance of an
offence only if the investigating officer gives an opinion that the
investigation has made out a case against the accused. The
Magistrate can ignore the conclusion arrived at by the
investigating officer and independently apply his mind to the facts
D emerging from the investigation and take cognizance of the case,
if he thinks fit, in exercise of his powers under Section 190(1)(b)
and direct the issue of process to the accused.”
19. In Union Public Service Commission v. S. Papaiah [(1997)
7 SCC 614 : 1997 SCC (Cri) 1112] a two-Judge Bench
E considered the scope of Section 173(8) of the Code in extenso.
Dr. A.S. Anand, J. (as the learned Chief Justice then was) after
extracting Section 173(8) of the Code has observed thus: (SCC
pp. 620-21, para 13)
“The Magistrate could, thus in exercise of the powers under
F Section 173(8) CrPC direct the 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-sections (2) to (6) of Section 173 CrPC.””
G 31. In Samaj Parivartan Samudaya (supra), a Three Judge Bench
of this Court, while dealing with illegal mining in Andhra Pradesh and
Karnataka, issued directions to the CBI to investigate the entire matter
(despite private complaints already pending and being investigated by
one or other competent Court or investigation agency), as a Central
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 969
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
Empowered Committee Report disclosed fresh facts as to illegal mining A
in these States. In a review of the machinery of criminal investigations
under the CrPC, this Court held:
“27. Once the investigation is conducted in accordance with the
provisions of CrPC, a police officer is bound to file a report
before the court of competent jurisdiction, as contemplated under B
Section 173 CrPC, upon which the Magistrate can proceed to try
the offence, if the same were triable by such court or commit the
case to the Court of Session. It is significant to note that the
provisions of Section 173(8) CrPC open with non obstante
language that nothing in the provisions of Sections 173(1) to 173(7)
shall be deemed to preclude further investigation in respect of an C
offence after a report under sub-section (2) has been forwarded
to the Magistrate. Thus, under Section 173(8), where
charge-sheet has been filed, that court also enjoys the jurisdiction
to direct further investigation into the offence. (Ref. Hemant
Dhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280] .) D
This power cannot have any inhibition including such requirement
as being obliged to hear the accused before any such direction is
made.
xxx xxx xxx
29. While the trial court does not have inherent powers like those E
of the High Court under Section 482 CrPC or the Supreme Court
under Article 136 of the Constitution of India, such that it may
order for complete reinvestigation or fresh investigation of a case
before it, however, it has substantial powers in exercise of
discretionary jurisdiction under Sections 311 and 391 CrPC. In F
cases where cognizance has been taken and where a substantial
portion of investigation/trial has already been completed and where
a direction for further examination would have the effect of
delaying the trial, if the trial court is of the opinion that the case
has been made out for alteration of charge, etc. it may exercise
such powers without directing further investigation. (Ref. Sasi G
Thomas v. State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] .)
30. Still in another case, taking the aid of the doctrine of implied
power, this Court has also stated that an express grant of
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970 SUPREME COURT REPORTS [2019] 15 S.C.R.
A statutory power carries with it, by necessary implication, the
authority to use all reasonable means to make such statutory power
effective. Therefore, absence of statutory provision empowering
the Magistrate to direct registration of an FIR would not be of
any consequence and the Magistrate would nevertheless be
competent to direct registration of an FIR. (Ref. Sakiri Vasu v.
B
State of U.P. [(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] )
31. Thus, CrPC leaves clear scope for conducting of further
inquiry and filing of a supplementary charge-sheet, if necessary,
with such additional facts and evidence as may be collected by
the investigating officer in terms of sub-sections (2) to (6) of
C Section 173 CrPC to the court. To put it aptly, further
investigation by the investigating agency, after presentation of a
challan (charge-sheet in terms of Section 173 CrPC) is
permissible in any case impliedly but in no event is impermissible.
xxx xxx xxx
D
37. We may notice that the investigation of a case or filing of
charge-sheet in a case does not by itself bring the absolute end to
exercise of power by the investigating agency or by the court.
Sometimes and particularly in the matters of the present kind, the
investigating agency has to keep its options open to continue with
E the investigation, as certain other relevant facts, incriminating
materials and even persons, other than the persons stated in the
FIR as accused, might be involved in the commission of the crime.
The basic purpose of an investigation is to bring out the truth by
conducting fair and proper investigation, in accordance with law
F and ensure that the guilty are punished.”
32. In Gulzar Ahmed Azmi v. Union of India and Ors. (2012)
10 SCC 731, this Court, while rejecting an argument that further
investigation by the police should be entrusted with a supernumerary
body created under the head of a retired Supreme Court Judge along
G with other officers and experts, held that if further investigation is sought
under Section 173(8) of CrPC, the same can always be effected even
after the filing of the final report.
33. We now come to the decision in Vinay Tyagi v. Irshad Ali
and Ors. (2013) 5 SCC 762. This is another case that arose out of a
CBI report to the Magistrate, which requested for closure of the case
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 971
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
against the accused. The judgment of the Court first discussed in detail A
how the criminal investigative machinery is set into motion right until the
stage at which the trial begins. The Court then held:
“20. Having noticed the provisions and relevant part of the scheme
of the Code, now we must examine the powers of the court to
direct investigation. Investigation can be ordered in varied forms B
and at different stages. Right at the initial stage of receiving the
FIR or a complaint, the court can direct investigation in
accordance with the provisions of Section 156(1) in exercise of
its powers under Section 156(3) of the Code. Investigation can be
of the following kinds:
C
(i) Initial investigation,
(ii) Further investigation,
(iii) Fresh or de novo or reinvestigation.”
Thereafter, the question with which we are faced was directly D
tackled as follows:
“29. Now, we come to the former question i.e. whether the
Magistrate has jurisdiction under Section 173(8) to direct further
investigation.
xxx xxx xxx E
32. In Minu Kumari v. State of Bihar [(2006) 4 SCC 359: (2006)
2 SCC (Cri) 310] (SCC pp. 363-64, para 11), this Court explained
the powers that are vested in a Magistrate upon filing of a report
in terms of Section 173(2)(i) and the kind of order that the court
can pass. The Court held that when a report is filed before a F
Magistrate, he may either (i) accept the report and take
cognizance of the offences and issue process; or (ii) may
disagree with the report and drop the proceedings; or (iii) may
direct further investigation under Section 156(3) and require the
police to make a further report.
G
33. This judgment, thus, clearly shows that the Court of
Magistrate has a clear power to direct further investigation when
a report is filed under Section 173(2) and may also exercise such
powers with the aid of Section 156(3) of the Code. The lurking
doubt, if any, that remained in giving wider interpretation to
H
972 SUPREME COURT REPORTS [2019] 15 S.C.R.
A Section 173(8) was removed and controversy put to an end by
the judgment of this Court in Hemant Dhasmana v. CBI [(2001)
7 SCC 536: 2001 SCC (Cri) 1280] 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
B
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 revisional jurisdiction. Such orders would
normally be of an advantage to achieve the ends of justice. It was
C 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 sub-section (6) of
D
Section 173 of the Code. There is no occasion for the Court to
interpret Section 173(8) of the Code restrictively. After filing of
the final report, the learned Magistrate can also take cognizance
on the basis of the material placed on record by the investigating
agency and it is permissible for him to direct further investigation.
E Conduct of proper and fair investigation is the hallmark of any
criminal investigation.
34. In support of these principles reference can be made to the
judgments of this Court in UPSC v. S. Papaiah [(1997) 7 SCC
614: 1997 SCC (Cri) 1112], State of Orissa v. Mahima [(2007)
F 15 SCC 580: (2010) 3 SCC (Cri) 611: (2003) 5 Scale 566] , Kishan
Lal v. Dharmendra Bafna [(2009) 7 SCC 685: (2009) 3 SCC
(Cri) 611], State of Maharashtra v. Sharadchandra Vinayak
Dongre [(1995) 1 SCC 42: 1995 SCC (Cri) 16].
35. We may also notice here that in S. Papaiah [(1997) 7 SCC
G 614: 1997 SCC (Cri) 1112] , the Magistrate had rejected an
application for reinvestigation filed by the applicant primarily on
the ground that it had no power to review the order passed
earlier. This Court held that it was not a case of review of an
order, but was a case of further investigation as contemplated
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 973
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
under Section 173 of the Code. It permitted further investigation A
and directed the report to be filed.
36. Interestingly and more particularly for answering the
question of legal academia that we are dealing with, it may be
noticed that this Court, while pronouncing its judgment in Hemant
Dhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280] B
has specifically referred to the judgments S. Papaiah [(1997) 7
SCC 614: 1997 SCC (Cri) 1112] and Bhagwant Singh v. Commr.
of Police [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC
537: 1985 SCC (Cri) 267] . While relying upon the three-Judge
Bench judgment of Bhagwant Singh [Bhagwant Singh v. Commr.
of Police, (1985) 2 SCC 537: 1985 SCC (Cri) 267] , which C
appears to be a foundational view for development of law in rela-
tion to Section 173 of the Code, the Court held that the Magistrate
could pass an order for further investigation. The principal
question in that case was whether the Magistrate could drop the
proceedings after filing of a report under Section 173(2), without D
notice to the complainant, but in para 4 of the judgment, the three-
Judge Bench dealt with the powers of the Magistrate as enshrined
in Section 173 of the Code…”
“37. In some judgments of this Court, a view has been advanced,
[amongst others in Reeta Nag v. State of W.B. [Reeta Nag v. E
State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] ,
Ram Naresh Prasad v. State of Jharkhand [Ram Naresh Prasad
v. State of Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri)
1336. Ed.: Ram Naresh case does not seem to indicate that the
Magistrate cannot suo motu direct further investigation: rather it
seems to indicate that the Magistrate in fact can do so.] and F
Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh
Rana v. State (Delhi Admn.), (1997) 1 SCC 361] ] that a
Magistrate cannot suo motu direct further investigation under
Section 173(8) of the Code or direct reinvestigation into a case on
account of the bar contained in Section 167(2) of the Code, and G
that a Magistrate could direct filing of a charge-sheet where the
police submits a report that no case had been made out for
sending up an accused for trial. The gist of the view taken in
these cases is that a Magistrate cannot direct reinvestigation and
cannot suo motu direct further investigation.
H
974 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 38. However, having given our considered thought to the
principles stated in these judgments, we are of the view that 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 of this Court in
B
Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985)
2 SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain terms,
stated that principle, as aforenoticed.
39. The contrary view taken by the Court in Reeta Nag [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri)
C 1051] and Randhir Singh [Randhir Singh Rana v. State (Delhi
Admn.), (1997) 1 SCC 361] do not consider the view of this Court
expressed in Bhagwant Singh [Bhagwant Singh v. Commr. of
Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] . The decision of
the Court in Bhagwant Singh [Bhagwant Singh v. Commr. of
D Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] in regard to the
issue in hand cannot be termed as an obiter. The ambit and scope
of the power of a Magistrate in terms of Section 173 of the Code
was squarely debated before that Court and the three-Judge Bench
concluded as aforenoticed. Similar views having been taken by
different Benches of this Court while following Bhagwant Singh
E [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985
SCC (Cri) 267] , are thus squarely in line with the doctrine of
precedent. To some extent, the view expressed in Reeta Nag
[Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC
(Cri) 1051] , Ram Naresh [Ram Naresh Prasad v. State of
F Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri) 1336. Ed.:
Ram Naresh case does not seem to indicate that the Magistrate
cannot suo motu direct further investigation: rather it seems to
indicate that the Magistrate in fact can do so.] and Randhir Singh
[Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC
361] , besides being different on facts, would have to be
G examined in light of the principle of stare decisis.
40. Having analysed the provisions of the Code and the various
judgments as aforeindicated, we would state the following
conclusions in regard to the powers of a Magistrate in terms of
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Section 173(2) read with Section 173(8) and Section 156(3) of A
the Code:
40.1. The Magistrate has no power to direct “reinvestigation” or
“fresh investigation” (de novo) in the case initiated on the basis of
a police report.
40.2. A Magistrate has the power to direct “further B
investigation” after filing of a police report in terms of Section
173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in
conformity with the principle of law stated in Bhagwant Singh
case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 C
: 1985 SCC (Cri) 267] by a three-Judge Bench and thus in
conformity with the doctrine of precedent.
40.4. 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 D
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).
40.5. The Code is a procedural document, thus, it must receive a E
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 F
case and the ends of justice demand, the court can still not direct
the investigating agency to conduct further investigation which it
could do on its own.
40.6. It has been a procedure of propriety that the police has to
seek permission of the court to continue “further investigation”
G
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.”
xxx xxx xxx
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976 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 48. What ultimately is the aim or significance of the expression
“fair and proper investigation” in criminal jurisprudence? It has a
twin purpose: 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. Once these twin
B
paradigms of fair investigation are satisfied, there will be the least
requirement for the court of law to interfere with the
investigation, much less quash the same, or transfer it to another
agency. Bringing out the truth by fair and investigative means in
accordance with law would essentially repel the very basis of an
C unfair, tainted investigation or cases of false implication. Thus, it
is inevitable for a court of law to pass a specific order as to the
fate of the investigation, which in its opinion is unfair, tainted and
in violation of the settled principles of investigative canons.
49. Now, we may examine another significant aspect which is
D how the provisions of Section 173(8) have been understood and
applied by the courts and investigating agencies. It is true that
though there is no specific requirement in the provisions of
Section 173(8) of the Code to conduct “further investigation” or
file supplementary report with the leave of the court, the
investigating agencies have not only understood but also adopted
E it as a legal practice to seek permission of the courts to conduct
“further investigation” and file “supplementary report” with the
leave of the court. The courts, in some of the decisions, have also
taken a similar view. The requirement of seeking prior leave of
the court to conduct “further investigation” and/or to file a
F “supplementary report” will have to be read into, and is a
necessary implication of the provisions of Section 173(8) of the
Code. The doctrine of contemporanea expositio will fully come to
the aid of such interpretation as the matters which are understood
and implemented for a long time, and such practice that is
supported by law should be accepted as part of the interpretative
G process.
50. Such a view can be supported from two different points of
view: firstly, through the doctrine of precedent, as aforenoticed,
since quite often the courts have taken such a view, and,
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 977
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
secondly, the investigating agencies which have also so A
understood and applied the principle. The matters which are
understood and implemented as a legal practice and are not
opposed to the basic rule of law would be good practice and such
interpretation would be permissible with the aid of doctrine of
contemporanea expositio. Even otherwise, to seek such leave of
B
the court would meet the ends of justice and also provide
adequate safeguard against a suspect/accused.
51. We have already noticed that there is no specific embargo
upon the power of the learned Magistrate to direct “further
investigation” on presentation of a report in terms of Section 173(2)
of the Code. Any other approach or interpretation would be in C
contradiction to the very language of Section 173(8) and the
scheme of the Code for giving precedence to proper
administration of criminal justice. The settled principles of
criminal jurisprudence would support such approach, particularly
when in terms of Section 190 of the Code, the Magistrate is the D
competent authority to take cognizance of an offence. It is the
Magistrate who has to decide whether on the basis of the record
and documents produced, an offence is made out or not, and if
made out, what course of law should be adopted in relation to
committal of the case to the court of competent jurisdiction or to
proceed with the trial himself. In other words, it is the judicial E
conscience of the Magistrate which has to be satisfied with
reference to the record and the documents placed before him by
the investigating agency, in coming to the appropriate conclusion
in consonance with the principles of law. It will be a travesty of
justice, if the court cannot be permitted to direct “further F
investigation” to clear its doubt and to order the investigating
agency to further substantiate its charge-sheet. The satisfaction
of the learned Magistrate is a condition precedent to
commencement of further proceedings before the court of
competent jurisdiction. Whether the Magistrate should direct
“further investigation” or not is again a matter which will depend G
upon the facts of a given case. The learned Magistrate or the
higher court of competent jurisdiction would direct “further
investigation” or “reinvestigation” as the case may be, on the facts
of a given case. Where the Magistrate can only direct further
H
978 SUPREME COURT REPORTS [2019] 15 S.C.R.
A investigation, the courts of higher jurisdiction can direct further,
reinvestigation or even investigation de novo depending on the
facts of a given case. It will be the specific order of the court that
would determine the nature of investigation. In this regard, we
may refer to the observations made by this Court in Sivanmoorthy
v. State [(2010) 12 SCC 29: (2011) 1 SCC (Cri) 295].”
B
34. A Bench of 5 learned Judges of this Court in Hardeep Singh
v. State of Punjab and Ors. (2014) 3 SCC 92 was faced with a question
regarding the circumstances under which the power under Section 319
of the Code could be exercised to add a person as being accused of a
criminal offence. In the course of a learned judgment answering the
C aforesaid question, this Court first adverted to the constitutional mandate
under Article 21 of the Constitution as follows:
“8. The constitutional mandate under Articles 20 and 21 of the
Constitution of India provides a protective umbrella for the smooth
administration of justice making adequate provisions to ensure a
D fair and efficacious trial so that the accused does not get
prejudiced after the law has been put into motion to try him for
the offence but at the same time also gives equal protection to
victims and to society at large to ensure that the guilty does not
get away from the clutches of law. For the empowerment of the
E courts to ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified by the
legislature under CrPC indicating as to how the courts should
proceed in order to ultimately find out the truth so that an innocent
does not get punished but at the same time, the guilty are brought
to book under the law. It is these ideals as enshrined under the
F Constitution and our laws that have led to several decisions,
whereby innovating methods and progressive tools have been
forged to find out the real truth and to ensure that the guilty does
not go unpunished.”
In paragraph 34, this Court adverted to Common Cause v.
G Union of India (1996) 6 SCC 775, and dealt with when trials before the
Sessions Court; trials of warrant-cases; and trials of summons-cases by
Magistrates can be said to commence, as follows:
“34. In Common Cause v. Union of India [(1996) 6 SCC 775 :
1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this Court while dealing
H with the issue held: (SCC p. 776, para 1)
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 979
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
“1. II (i) In cases of trials before the Sessions Court the trials A
shall be treated to have commenced when charges are framed
under Section 228 of the Code of Criminal Procedure, 1973
in the cases concerned.
(ii) In cases of trials of warrant cases by Magistrates if the cases
are instituted upon police reports the trials shall be treated to have B
commenced when charges are framed under Section 240 of the
Code of Criminal Procedure, 1973 while in trials of warrant cases
by Magistrates when cases are instituted otherwise than on
police report such trials shall be treated to have commenced when
charges are framed against the accused concerned under
Section 246 of the Code of Criminal Procedure, 1973. C
(iii) In cases of trials of summons cases by Magistrates the trials
would be considered to have commenced when the accused who
appear or are brought before the Magistrate are asked under
Section 251 whether they plead guilty or have any defence to
make.” D
(emphasis supplied)
The Court then concluded:
“38. In view of the above, the law can be summarised to the
effect that as “trial” means determination of issues adjudging the E
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 F
commences on cognizance being taken.”
35. Paragraph 39 of the judgment then referred to the “inquiry”
stage of a criminal case as follows:
“39. Section 2(g) CrPC and the case laws referred to above,
therefore, clearly envisage inquiry before the actual G
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
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980 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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.”
A clear distinction between “inquiry” and “trial” was thereafter
B set out in paragraph 54 as follows:
“54. In our opinion, the stage of inquiry does not contemplate any
evidence in its strict legal sense, nor could the legislature have
contemplated this inasmuch as the stage for evidence has not yet
arrived. The only material that the court has before it is the
C material collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether a person,
who can be an accused, has been erroneously omitted from being
arraigned or has been deliberately excluded by the prosecuting
agencies. This is all the more necessary in order to ensure that
the investigating and the prosecuting agencies have acted fairly in
D bringing before the court those persons who deserve to be tried
and to prevent any person from being deliberately shielded when
they ought to have been tried. This is necessary to usher faith in
the judicial system whereby the court should be empowered to
exercise such powers even at the stage of inquiry and it is for this
E reason that the legislature has consciously used separate terms,
namely, inquiry or trial in Section 319 CrPC.”
36. Despite the aforesaid judgments, some discordant notes were
sounded in three recent judgments. In Amrutbhai Shambubhai Patel
v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that
F case, the Appellant/Informant therein sought a direction under Section
173(8) from the Trial Court for further investigation by the police long
after charges were framed against the Respondents at the culminating
stages of the trial. The Court in its ultimate conclusion was correct, in
that, once the trial begins with the framing of charges, the stage of
investigation or inquiry into the offence is over, as a result of which no
G further investigation into the offence should be ordered. But instead of
resting its judgment on this simple fact, this Court from paragraphs 29 to
34 resuscitated some of the earlier judgments of this Court, in which a
view was taken that no further investigation could be ordered by the
Magistrate in cases where, after cognizance is taken, the accused had
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 981
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
appeared in pursuance of process being issued. In particular, Devarapalli A
Lakshminarayana Reddy (supra) was strongly relied upon by the Court.
We have already seen how this judgment was rendered without adverting
to the definition of “investigation” in Section 2(h) of the CrPC, and cannot
therefore be relied upon as laying down the law on this aspect correctly.
The Court therefore concluded:
B
“49. On an overall survey of the pronouncements of this Court on
the scope and purport of Section 173(8) of the Code and the
consistent trend of explication thereof, we are thus disposed to
hold that though the investigating agency concerned has been
invested with the power to undertake further investigation
desirably after informing the court thereof, before which it had C
submitted its report and obtaining its approval, no such power is
available therefor to the learned Magistrate after cognizance has
been taken on the basis of the earlier report, process has been
issued and the accused has entered appearance in response
thereto. At that stage, neither the learned Magistrate suo motu D
nor on an application filed by the complainant/informant can
direct further investigation. Such a course would be open only on
the request of the investigating agency and that too, in
circumstances warranting further investigation on the detection
of material evidence only to secure fair investigation and trial, the
life purpose of the adjudication in hand. E
50. The unamended and the amended sub-section (8) of Section
173 of the Code if read in juxtaposition, would overwhelmingly
attest that by the latter, the investigating agency/officer alone has
been authorised to conduct further investigation without limiting
the stage of the proceedings relatable thereto. This power qua F
the investigating agency/officer is thus legislatively intended to be
available at any stage of the proceedings. The recommendation
of the Law Commission in its 41st Report which manifestly
heralded the amendment, significantly had limited its proposal to
the empowerment of the investigating agency alone. G
51. In contradistinction, Sections 156, 190, 200, 202 and 204 CrPC
clearly outline the powers of the Magistrate and the courses open
for him to chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate has
H
982 SUPREME COURT REPORTS [2019] 15 S.C.R.
A the power to direct investigation under Section 156(3) at the
pre-cognizance stage even after a charge-sheet or a closure
report is submitted, once cognizance is taken and the accused
person appears pursuant thereto, he would be bereft of any
competence to direct further investigation either suo motu or
acting on the request or prayer of the complainant/informant. The
B
direction for investigation by the Magistrate under Section 202,
while dealing with a complaint, though is at a post-cognizance
stage, it is in the nature of an inquiry to derive satisfaction as to
whether the proceedings initiated ought to be furthered or not.
Such a direction for investigation is not in the nature of further
C investigation, as contemplated under Section 173(8) of the Code.
If the power of the Magistrate, in such a scheme envisaged by
CrPC to order further investigation even after the cognizance is
taken, the accused persons appear and charge is framed, is
acknowledged or approved, the same would be discordant with
the state of law, as enunciated by this Court and also the relevant
D
layout of CrPC adumbrated hereinabove. Additionally had it been
the intention of the legislature to invest such a power, in our
estimate, Section 173(8) CrPC would have been worded
accordingly to accommodate and ordain the same having regard
to the backdrop of the incorporation thereof. In a way, in view of
E the three options open to the Magistrate, after a report is
submitted by the police on completion of the investigation, as has
been amongst authoritatively enumerated in Bhagwant Singh
[Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985
SCC (Cri) 267] , the Magistrate, in both the contingencies, namely;
when he takes cognizance of the offence or discharges the
F
accused, would be committed to a course, whereafter though the
investigating agency may for good reasons inform him and seek
his permission to conduct further investigation, he suo motu
cannot embark upon such a step or take that initiative on the
request or prayer made by the complainant/informant. Not only
G such power to the Magistrate to direct further investigation suo
motu or on the request or prayer of the complainant/informant
after cognizance is taken and the accused person appears,
pursuant to the process, issued or is discharged is incompatible
with the statutory design and dispensation, it would even
otherwise render the provisions of Sections 311 and 319 CrPC,
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 983
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
whereunder any witness can be summoned by a court and a A
person can be issued notice to stand trial at any stage, in a way
redundant. Axiomatically, thus the impugned decision annulling
the direction of the learned Magistrate for further investigation is
unexceptional and does not merit any interference. Even
otherwise on facts, having regard to the progression of the
B
developments in the trial, and more particularly, the delay on the
part of the informant in making the request for further
investigation, it was otherwise not entertainable as has been rightly
held by the High Court.”
37. This judgment was followed in a recent Division Bench
judgment of this Court in Athul Rao v. State of Karnataka and Anr. C
(2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. State
through the Secretary (Home), Government of NCT of Delhi
(2019) 5 SCC 542, after referring to a number of decisions this Court
concluded as follows:
“7. Considering the law laid down by this Court in the aforesaid D
decisions and even considering the relevant provisions of CrPC,
namely, Sections 167(2), 173, 227 and 228 CrPC, what is
emerging is that after the investigation is concluded and the
report is forwarded by the police to the Magistrate under Section
173(2)(i) CrPC, the learned Magistrate may either (1) accept the E
report and take cognizance of the offence and issue process, or
(2) may disagree with the report and drop the proceedings, or (3)
may direct further investigation under Section 156(3) and require
the police to make a further report. If the Magistrate disagrees
with the report and drops the proceedings, the informant is
required to be given an opportunity to submit the protest F
application and thereafter, after giving an opportunity to the
informant, the Magistrate may take a further decision whether to
drop the proceedings against the accused or not. If the learned
Magistrate accepts the objections, in that case, he may issue
process and/or even frame the charges against the accused. As G
observed hereinabove, having not been satisfied with the
investigation on considering the report forwarded by the police
under Section 173(2)(i) CrPC, the Magistrate may, at that stage,
direct further investigation and require the police to make a
further report. However, it is required to be noted that all the
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984 SUPREME COURT REPORTS [2019] 15 S.C.R.
A aforesaid is required to be done at the pre-cognizance stage. Once
the learned Magistrate takes the cognizance and, considering the
materials on record submitted along with the report forwarded by
the police under Section 173(2)(i) CrPC, the learned Magistrate
in exercise of the powers under Section 227 CrPC discharges the
accused, thereafter, it will not be open for the Magistrate to suo
B
motu order for further investigation and direct the investigating
officer to submit the report. Such an order after discharging the
accused can be said to be made at the post-cognizance stage.
There is a distinction and/or difference between the
pre-cognizance stage and post-cognizance stage and the powers
C to be exercised by the Magistrate for further investigation at the
pre-cognizance stage and post-cognizance stage. The power to
order further investigation which may be available to the
Magistrate at the pre-cognizance stage may not be available to
the Magistrate at the post-cognizance stage, more particularly,
when the accused is discharged by him. As observed hereinabove,
D
if the Magistrate was not satisfied with the investigation carried
out by the investigating officer and the report submitted by the
investigating officer under Section 173(2)(i) CrPC, as observed
by this Court in a catena of decisions and as observed
hereinabove, it was always open/permissible for the Magistrate
E to direct the investigating agency for further investigation and may
postpone even the framing of the charge and/or taking any final
decision on the report at that stage. However, once the learned
Magistrate, on the basis of the report and the materials placed
along with the report, discharges the accused, we are afraid that
thereafter the Magistrate can suo motu order further
F
investigation by the investigating agency. Once the order of
discharge is passed, thereafter the Magistrate has no jurisdiction
to suo motu direct the investigating officer for further
investigation and submit the report. In such a situation, only two
remedies are available: (i) a revision application can be filed against
G the discharge or (ii) the Court has to wait till the stage of Section
319 CrPC. However, at the same time, considering the provisions
of Section 173(8) CrPC, it is always open for the investigating
agency to file an application for further investigation and
thereafter to submit the fresh report and the Court may, on the
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 985
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
application submitted by the investigating agency, permit further A
investigation and permit the investigating officer to file a fresh
report and the same may be considered by the learned
Magistrate thereafter in accordance with law. The Magistrate
cannot suo motu direct for further investigation under Section
173(8) CrPC or direct reinvestigation into a case at the
B
post-cognizance stage, more particularly when, in exercise of
powers under Section 227 CrPC, the Magistrate discharges the
accused. However, Section 173(8) CrPC confers power upon the
officer in charge of the police station to further investigate and
submit evidence, oral or documentary, after forwarding the report
under sub-section (2) of Section 173 CrPC. Therefore, it is C
always open for the investigating officer to apply for further
investigation, even after forwarding the report under sub-section
(2) of Section 173 and even after the discharge of the accused.
However, the aforesaid shall be at the instance of the
investigating officer/police officer in charge and the Magistrate
D
has no jurisdiction to suo motu pass an order for further
investigation/reinvestigation after he discharges the accused.”
Realising the difficulty in concluding thus, the Court went on to
hold:
“10. However, considering the observations made by the learned E
Magistrate and the deficiency in the investigation pointed out by
the learned Magistrate and the ultimate goal is to book and/or
punish the real culprit, it will be open for the investigating officer
to submit a proper application before the learned Magistrate for
further investigation and conduct fresh investigation and submit
the further report in exercise of powers under Section 173(8) F
CrPC and thereafter the learned Magistrate to consider the same
in accordance with law and on its own merits.”
38. 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 G
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
H
986 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
Article 21 of the Constitution and the fact that the Article demands no
B
less than a fair and just investigation. To say that a fair and just
investigation would lead to the conclusion that the police retain the power,
subject, of course, to the Magistrate’s nod under Section 173(8) to further
investigate an offence till charges are framed, but that the supervisory
jurisdiction of the Magistrate suddenly ceases mid-way through the pre-
C trial proceedings, would amount to a travesty of justice, as certain cases
may cry out for further investigation so that an innocent person is not
wrongly arraigned as an accused or that a prima facie guilty person is
not so left out. There is no warrant for such a narrow and restrictive
view of the powers of the Magistrate, particularly when such powers
are traceable to Section 156(3) read with Section 156(1), Section 2(h),
D
and Section 173(8) of the CrPC, as has been noticed hereinabove, and
would be available at all stages of the progress of a criminal case before
the trial actually commences. 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
E 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
F
proceeding, as was held in Hasanbhai Valibhai Qureshi (supra).
Therefore, to the extent that the judgments in Amrutbhai Shambubhai
Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra)
have held to the contrary, they stand overruled. Needless to add, Randhir
Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and
G Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also
stand overruled.
39. We now come to certain other judgments that were cited
before us. King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18,
was strongly relied upon by Shri Basant for the proposition that unlike
H superior Courts, Magistrates did not possess any inherent power under
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 987
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
the CrPC. Since we have grounded the power of the Magistrate to A
order further investigation until charges are framed under Section 156(3)
read with Section 173(8) of the CrPC, no question as to a Magistrate
exercising any inherent power under the CrPC would arise in this case.
40. Union of India and Anr. v. W.N Chadha (1993) Supp. 4
SCC 260, is a judgment which states that the accused has no right to B
participate in the investigation till process is issued to him, provided there
is strict compliance of the requirements of fair investigation Likewise,
the judgments in Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi
& Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod
Aggarwal & Ors., (2008) 9 SCC 469, Narender G. Goel v. State of
Maharashtra (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v. C
State of Gujarat & Ors. (2014) 4 SCC 626, which state that the accused
has no right to be heard at the stage of investigation, has very little to do
with the precise question before us. All these judgments are, therefore,
distinguishable. Further, Babubhai v. State of Gujarat & Ors. (2010)
12 SCC 254, is a judgment which distinguishes between further D
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.
Likewise, Romila Thapar v. Union of India, (2018) 10 SCC 753, held E
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. This judgment also is far
removed from the question that has been decided by us in the facts of
this case. F
41. When we come to the facts of this case, it is clear that the
FIR dated 22.12.2009 is concerned with two criminal acts, namely, the
preparing of fake and bogus ‘Satakhat’ and Power-of-Attorney in respect
of the agricultural land in question, and the demanding of an amount of
Rs. 2.5 crores as an attempt to extort money by the accused persons. G
The facts that are alleged in the application for further investigation are
facts which pertain to revenue entries having been made in favour of
Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how
their claim over the same land is false and bogus. Shri Basant is, therefore,
right in submitting that the facts alleged in the applications for further
H
988 SUPREME COURT REPORTS [2019] 15 S.C.R.
A investigation are really in the nature of a cross-FIR which has never
been registered. In fact, the communication of the Commissioner of
Revenue, Gujarat dated 15.03.2011 to the Collector, Surat - so strongly
relied upon by Shri Dushyant Dave - bears this out. In this communication,
the learned Commissioner doubts that a particular order dated 14.04.1976
passed by a revenue authority ever existed, and that by making an
B
application in the name of the long since deceased Bhikhabhai Khushalbhai
in 2010, for getting a copy of Form No.3 would, prima facie, amount to
a criminal offence. Further, the learned Commissioner goes on to state
that Bhikiben (Bhikhabhai’s widow), who had passed away in December
1999, could not possibly have made an application in the year 2000;
C which shows that her signature is also prima facie forged. Further, the
said Ramanbhai and Shankarbhai Patel are at present 48 and 53 years
old, and if they could be said to be in possession of the said agricultural
land since 1934, they could be said to be in possession at a time when
they were not yet born. Further, since these two gentlemen were abroad
from the very beginning, it is stated that they could not possibly be farmers
D
cultivating agricultural land. For these, and various other reasons, the
Commissioner concluded:
“Thus, looking to all the aforesaid particulars, as per the
submission made by the lady applicant, scam has been made in
respect of her land by creating false bogus cases/resolutions/
E orders passed or by forging fake documents. Submission is made
for initiating criminal proceedings against all those who are
involved in such scam and whether there is substance in this
matter or not? Thorough inquiry be made in that connection at
your level. Till the real particulars in this matter are not becoming
F clear, it is appearing necessary to stop the NA Permission/
Construction activities. Therefore, after making necessary
proceedings in that regard, detailed report having basis of the
proceedings done is to be immediately submitted to the
undersigned and periodical information of the proceedings done
in this matter also be given to the undersigned.”
G
42. Given the allegations in the communication of 15.03.2011, we
are of the view that this is not a case which calls for any further
investigation into the facts alleged in the FIR lodged on 22.12.2009. Yet,
having regard to what is stated by the learned Commissioner in the said
H
VINUBHAI HARIBHAI MALAVIYA AND ORS. v. 989
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
letter, we are of the view that the police be directed to register an FIR A
qua these facts, which needs to be investigated by a senior police officer
nominated by the concerned Commissioner of Police.
43. We, therefore, set aside the impugned High Court judgment
insofar as it states that post-cognizance the Magistrate is denuded of
power to order further investigation. However, given that the facts stated B
in the application for further investigation have no direct bearing on the
investigation conducted pursuant to the FIR dated 22.12.2009, we uphold
the impugned High Court judgment insofar as it has set aside the judgment
of the Second Additional Sessions Judge dated 10.01.2012 which had
ordered further investigation, and also the consequential order setting
aside the two additional interim reports of the IO Munshi. So far as C
Criminal Revision Application No.346 of 2011 is concerned, we set aside
the impugned High Court judgment which remanded the matter to the
revisional court. Consequently, the judgment of the learned Additional
Sessions Judge dated 23.04.2016 upon remand is also set aside, rendering
Special Criminal Application No.3085 of 2016 infructuous. D
44. However, given the serious nature of the facts alleged in the
communication of the Commissioner of Revenue dated 15.03.2011, we
direct that the police register an FIR based on this letter within a period
of one week from the date of this judgment. This FIR is to be enquired
into by a senior police officer designated by the concerned Commissioner E
of Police, who is to furnish a police report pursuant to investigation within
a period of three months from the date on which such officer is appointed
to undertake such investigation. If such police report results in a prima
facie case being made out, and if the Judicial Magistrate takes cognizance
of such charge-sheet, charges will then be framed and trial held. In the
meanwhile, the trial in FIR dated 22.12.2009, which has been stayed by F
this Court by an order dated 24.04.2019, will not be commenced until the
police report is submitted in the FIR to be lodged by the police pursuant
to this judgment. The learned Magistrate may then decide, in the event
that cognizance is taken of the police report in the FIR to be filed, as to
whether a joint-trial should take place, or whether separate trials be G
conducted one after the other pursuant to both the FIRs.
45. With these observations, these appeals are disposed of.
Ankit Gyan Appeals disposed of.
H
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