Power of Magistrate u/s 178(3) CrPC viz. a viz.

Extra Ordinary
Jurisdiction of High Court under Article 227 of Constitution of
India to order further investigation

Issue raised before Hon’ble Supreme Court in Vinubhai Haribhai

Malaviya Vs The State of Gujarat 2019. SCC OnLine SC 1346, was
whether post-cognizance a Magistrate would have no power to order
further investigation into an offence? In short, question of law 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?

Speedy Justice and fair and proper investigation are the principles
enshrined under Article 21 of Constitution of India and the same has
been enunciated by Hon’ble Apex Court in Mrs. Maneka Gandhi v.
Union of India & Anr. (1978) 1 SCC 248 held that Article 211 of the
Constitution of India makes it clear that the procedure in criminal trials
must be “right, just and fair and not arbitrary, fanciful or oppressive”
and which is possible only after an investigation is itself fair and just.

It is a rule of law that justice not only has to be done but also must
appear to have been done for which Court can exercise its residuary
power to direct further investigation or reinvestigation by any impartial
agency. The Code, 19732 provides numerous power though not
inherent power but u/s 156(1) & (3) r/w 173(8) of CrPC 3 to Magistrate
to take issue directions even if FIR was registered by police or
chargesheet was filed by police to order further investigation. Though
there is no specific requirement under law for police seeking prior
leave of the court to conduct “further investigation” and/or to file a

1
Article 21 in The Constitution Of India
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty
except according to procedure established by law
2
The Code of Criminal Procedure, 1973
3
Section 156 in The Code Of Criminal Procedure, 1973
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 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.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on
the ground that the case was one which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned.
“supplementary report” but they investigation agencies have adopted
such practice to such prior permission.

After registration of FIR, when investigation was completed by police,

then question arises as to what are the options available to magistrate
under Section 173 CrPC?
Three Options are available for Magistrate while dealing with a
report from the police under Section 173, stated by Apex Court in
Commissioner of Police and Anr. (1985) 2 SCC 357, Magistrate
may either:- (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 direct further investigation to be
made by the police under Section 156(3).
Apex Court held in State of Bihar4 v. J.A.C. Saldhana and Ors.
(1980) 1 SCC 554, that power u/s 156(3) CrPC is an independent
power can same can be exercised even after submission of final
report. Similarly Apex Court in Dilawar Singh v. State of Delhi
[(2007) 12 SCC 641 held power u/s 156 CrPC can be exercised for
ensuring proper investigation.

If magistrate exercise the option no.3, then first it is necessary to know

as to when trial commences to understand upto which stage
magistrate can exercise power u/s 156(3) CrPC?
The Hon’ble Apex Court answered the above question in Common
Cause v. Union of India [(1996) 6 SCC 775 held that trial shall be
treated to have commenced (i) In cases of trials before the Sessions
Court, when charges are framed under Section 228 of CrPC and (ii) In
cases of trials of warrant cases by Magistrates if the cases are
instituted upon police reports, when charges are framed under Section
240 of CrPC (iii)while in trials of warrant cases by Magistrates when
cases are instituted otherwise than on police report, when charges are
framed against the accused concerned under Section 246 of the Code
of Criminal Procedure, 1973 (iv) In cases of trials of summons cases
by Magistrates, 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.

4
State of Bihar v. J.A.C. Saldhana and Ors. (1980) 1 SCC 554,
After referring to above question, next question is whether power to
order police investigation under Section 156(3) is different from the
power to direct investigation conferred by Section 202(1) and the two
operate in distinct spheres at different stages i.e. The first is
exercisable at the pre-cognizance stage, the second at the post-
cognizance stage?
Apex Court held in Vinubhai Haribhai Malaviya v. State of
Gujarat, JT 2019 (10) SC 537, that “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 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 (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.
Further Apex Court in Vinubhai Haribhai Malaviya (supra) observed
that “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), 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 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 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”

Once it is clear that power of Magistrate to order further investigation

can be exercised u/s 156(3) CrPC even after filing of chargesheet.
Then question arose is whether Hon’ble High Court in extra ordinary
jurisdiction under Article 227 of Constitution can grant simultaneous
relief which was available by Ld. Magistrate for further investigation?
The aforesaid question was answered by Hon’ble High Court of Kerala
in Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided
on 17-12-2019, Hon’ble High Court dismissed the original petition filed
under Article 227 of the Constitution where the petitioner prayed the
Court to direct the Sessions Court to pass orders under Section 173(8)
of CrPC to direct the investigating officer to conduct further
investigation in the case of her son’s death. The High Court referred
to Vinubhai Haribhai Malaviya (supra), in light of this decision, the
Court held that the petitioner should have approached the appropriate
court below and seek further investigation of the case. It was not
proper for this Court to exercise its jurisdiction under Article 227 of the
Constitution of India even before the petitioner had approached the
appropriate court below in that regard. It is well settled if there are an
alternative and efficacious remedy provided under the provisions of the
concerned Act, normally the High Court should not interfere by
exercising the extra-ordinary jurisdiction.

In view of above, it is clear that judgment Vinubhai Haribhai Malaviya

(supra) paves a way for bonafide complainant to approach the
magistrate with a request to investigate further, as well as, it also gives
liberty to the accused persons to avail its right to provide evidence
before Magistrate to ascertain truth. However, empowering the
magistrates to direct further investigation (even at a post-cognizance
stage till commencement of trial) may reduce the multiplicity of First
Information Reports (FIRs) and subsequent cases by cumulative
investigation in relation to complaints and counter-complaints amongst
parties. This may also allow the magistrates to rectify a flawed
investigation carried out by the police. While this may embolden the
magistrates to rectify lacunae at a later stage of the proceedings, it
may simultaneously increase the number of appellate or revisional
proceedings, with each such order of the magistrate being challenged
before a superior court by the aggrieved party thereby causing further
delay as a result of these appeals / revisions / applications.