Vinubhai Haribhai Malaviya and Ors. Vs. Respondent: The State of Gujarat and Ors. Case Note

 Criminal – Further investigation – Filing of charge sheet – Sections 156(3) and 173(8) of Code of Criminal Procedure, 1973 – First Information Report was registered against Appellants – Pursuant to filing of FIR, investigation was conducted, which resulted in filing of charge-sheet – Magistrate took cognizance and issued summons to Accused regarding offences under Sections 420, 465, 467, 468, 471, 384 and 511 of Code – Application was filed by Accused No. 1 for further investigation under Section 173(8) of Code and for discharge, which stand rejected – Meanwhile, Application was moved by accused persons to register FIR, or for Magistrate to order investigation under Section 156(3) of Code – Revision applications were filed before Sessions Court, whereby Sessions Judge found that case had been made out for further investigation – Revisional application filed before High Court against said order, High Court held that Magistrate did not possess any power to order further investigation after charge-sheet was filed and cognizance was taken – Hence, present appeal – Whether, after charge-sheet was filed by police, Magistrate had power to order further investigation, and if so, up to what stage of criminal proceeding. Facts: An First Information Report was registered against the Appellants. Pursuant to the filing of the FIR, investigation was conducted by the police, which resulted in a charge-sheet being submitted to the Judicial Magistrate (First Class). The said Magistrate took cognizance and issued summons to the Accused regarding offences under Sections 420, 465, 467, 468, 471, 384 and 511 of the Indian Penal Code, 1860. An application was filed by Accused No. 1 for further investigation under Section 173(8) of the Code and another application for discharge. The Magistrate dismissed the applications that were filed for further investigation and discharge. Revision applications were filed before the Sessions Court, whereby Additional Sessions Judge went into details of facts that were alleged in the application Under Section 173(8) of Code and found that a case had been made out for further investigation. The Criminal Revision Application was filed before the High Court against said order. The High Court held that Magistrate did not possess any power to order further investigation after a charge-sheet was filed and cognizance was taken. The High Court further found that the two interim investigation reports virtually acquitted the Accused persons, and therefore, the High Court set aside the judgment of the Second Additional Sessions Judge. Held, while disposing off the appeal: (i) It was clear that the Magistrate’s power under Section 156(3) of the Code of Criminal Procedure was very wide, for it was 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 supervise-Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, were available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report was received by him under Section 173(2) of Act 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 Code of Criminal Procedure would, as per the definition of investigation under Section 2(h) of Act, include all proceedings for collection of evidence conducted by a police officer which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the Code of Criminal Procedure. [23] (ii) There was no good reason given by the Court in various decisions 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 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 charges are framed. What was not given any importance at all in the recent judgments of this Court was 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 to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) of Act to further investigate an offence till charges were framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person was not wrongly arraigned as an Accused or that a prima facie guilty person is not so left out. There was no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers were traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the Code of Criminal Procedure, 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 was within the discretion of the Magistrate who would exercise such discretion on the facts of each case and in accordance with law. [38] (iii) Given the allegations in the communication made by the Commissioner of Revenue, to the Collector, it was found that this was not a case which calls for any further investigation into the facts alleged in the FIR lodged. Yet, having regard to what was stated by the Commissioner in the said letter, 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. [42] (iv) Therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate was denuded of power to order further investigation. However, given that the facts stated in the application for further investigation had no direct bearing on the investigation conducted pursuant to the FIR, upheld the impugned High Court judgment insofar as it had set aside the judgment of the Second Additional Sessions Judge which had ordered further investigation, and also the consequential order setting aside the two additional interim reports. [43]