Vinubhai Hirabhai Malviya v. The state of Gujarat & anr – MEANING OF TERM COGNIZANCE IN CrPC

This guest post was written by Harsh Rampuria, a student at Institute of Law, Nirma University

The Supreme court of India recently passed a landmark judgement under Section 156(3) r/w Section 156(1) and Section 2(h) r/w Section 173(8) of the CrPC. Before reflecting into the judgement of the case it is pertinent to state facts and issue of the case briefly. The case emanates from an application that has been filed by the accused before the judicial magistrate First Class in Surat city, requesting further investigation, by citing additional facts that could have been incriminated into the complainant. However, the Magistrate later dismissed the said application by noting that the facts sought to be placed by the accused were in nature of defence to the allegations made in the FIR by the original complainant and the said facts must be led during the trial instead.

The accused persons thereafter challenged the said order before the High Court of Gujarat, wherein it was held that the Magistrate does not possess power to order further investigation in the case, after a chargesheet has been filed by police and the cognizance has been taken by the magistrate. It was followed by an appeal in the Supreme court of India by the said complainant. The issue of the case to be decided by the Supreme court is, whether after a chargesheet has been filed by the police, the magistrates has power to order the further investigation and if so, then up to which stage of criminal proceedings.

To this the three-judge bench of the Supreme court held that the term “investigation” as referred to in the Section 156(1) of CrPC would include all proceedings for collections of evidence conducted by police as per the definition in Section 2(h). Hence, it would undoubtedly include all proceedings encompassing further investigation u/s 173(8) CrPC. Therefore, a Magistrate empowered under Section 156 CrPC to order the investigation, shall include the empowerment to order a further investigation u/s 173(8) CrPC. In other words, it can be said that magistrate is empowered to order further investigation into the case at a post cognizance stage.

The Supreme court heavily relied upon the judgement of Kamlapati Trivedi v State of West Bengal (1980) 2 SCC 91, which held that if magistrate is not satisfied with the police report then he can order further investigation. The court also rejected several other cases that restricts the power of further investigation by citing that the definition given in Section 2(f) is not taken into consideration.

Now, reflecting to the judgment, I appraise the decision to empower the magistrate at a post cognizance stage. Among several foreseeable benefits it allows the magistrates to rectify a flawed investigation carried out by the police officer. Also, it will reduce the multiplicity of FIRs as it will reduce the subsequent applications for cumulative investigation in reference to complaints and counter-complaints amongst parties. However, it will further add to the delay of cases as an order rejecting the application will be further challenged before the superior courts. This becomes even more deplorable because the case does not mention absence of exceptional or specific circumstances being prescribed for the exercise of this powers by the magistrate.

Therefore, it can be said that it would be in interest of justice if the power given to the magistrate should be restricted to the Suo-moto performance. Magistrate will allow the further investigation based on the facts and merits of the case.  It becomes essential as challenging the orders into the Superior courts will only adds burden to the judicial system. Further, the judgement is also in contradiction to the landmark judgement of Hardeep Singh where it was also held that the criminal trial does not begin after the charge has been framed but after the cognizance is taken.

Once it is clear that the power of Magistrate to order further investigation can be exercised u/s 156(3) CrPC even after filing of the chargesheet. Then a question also arises that whether a High Court in extra ordinary jurisdiction under Article 227 of Constitution can grant simultaneous relief which was available by Ld. Magistrate for further investigation. This will also enhance the burden of case at the lower level because now the lower court also needs to be approached for passing the order. It was not earlier to this judgement.

Added to that, it can be seen that Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion the investigation has made out a case against the accused. Therefore, by widening the power of magistrate into the definition the Supreme Court has attempted to widen the definition of cognizance.