The Progression of the Power of Judicial Magisterate to Undertake Further Investigation at the Post- Cognizance Level: Decoding Vinubhai Malviya’s Judgment

  • Piyush Thanvi and Shubham Bhandari

A Supreme Court judgment passed recently by Justice Nariman, Justice Surya Kant, and Justice Ramasubramanium in the case of Vinubhai Haribhai Malviya & Ors.v. State of Gujarat & Ors. (hereinafter ‘Malviya’) has sparked chaos in the world of criminal law. The Judgement stated that the Magistrate had the authority to order a further investigation of the crime under S. 156(3) of the Criminal Procedure Code (hereinafter Cr.P.C) 1973, at the post-cognizance stage, until the initiation of the trial and whether a further investigation could be ordered under S. 173(8) of Cr.P.C by the Magistrate.

A critical question that arose before the bench was 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.”

Understanding this issue requires an understanding of the term ‘Cognizance.’ Criminal law in India provides an inconsistent concept of cognizance, and therefore it does not have a rigid definition. Under S.190 of the Cr.P.C empowers a magistrate to take cognizance of an offence. It states that “any magistrate of first-class or second-class particularly authorized under this title may take cognizance on any offense related to the police report, complaint, or knowledge of the incident.”

Section 173(8) of Cr.P.C, allowed the Police to conduct a further investigation after the submission of the final report under S. 173(2) of the Cr.P.C. It does not provide these powers on the Magistrate to direct further and/or fresh investigation after Police submitted the final report.

This Judgment holds an essential place in the light of the earlier rulings, where a coherent view was taken as to the authority given under S. 173(8) of the Cr.P.C, i.e., the power conferred only on the investigative body and the Magistrate had no authority to issue the investigation under S. 173(8) of the Cr.P.C at the post-cognizance stage.

Previous judgments of the Supreme Court in the Case of AmrutbhaiShambhubhai Patel v. SumanbhaiKantibhai Patel (hereinafter ‘Patel’) and Athul Rao v. State of Karnataka &Anr(hereinafter ‘Rao’) considered that power under S. 173(8) of Cr.P.C was only given to the investigating agency and that a magistrate had no authority under the sub-section to order an investigation.

However, in other decisions of the Supreme Court, such as in Fakhruddin Ahmad v State of Uttarakhand(hereinafter ‘Ahmad’), it was stated that the Magistrate’s experience of the matter is subjective and differs according to the circumstances of the case. The Court stated that This is clear that the Magistrate is not bound by the viewpoint of the investigating officer and can exercise his power in his capacity, regardless of the opinions held in the police report, and to decide whether or not a crime has been committed or not.In another case, Vinay Tyagi v. Irshad Ali &Ors(hereinafter ‘Tyagi’), Supreme Court stated that after the Police took cognizance on the report, the Magistrate undoubtedly had the authority of ordering a further investigation under Section 173 (8)of the Cr.P.C.

In light of contradictory rulings of the courts in the case of Patel and Rao from Ahmed and Tyagi, the Court in the case of Malviya ruled in favor of the opinion that the Magistrate has the authority to order further inquiry, post-cognizance, due to his investigative agency on a police case right up to the phase of the framing of charges. The Court explicitly overruled those Supreme Court decisions which restrictively interpreted Section 173(8)of the Cr.P.C.This settlement of opposing opinions in the Case of Malviya is welcome as it encourages legal clarity.

However, this Judgment has overruled a three-judge bench decision of the Supreme Court in DevarapallyLakshminarayana Reddy v. V Narayana Reddy(hereinafter ‘Reddy’). The case of Reddy does not clarify the issue of law, as the term “investigation” defined under Section 2(h) of the Cr.P.C was not taken into consideration during the reading with Section 156(3) or Section 173(8) of the Cr.P.C, nor did the Reddy’sJudgment offer any justifiable basis to restrict a magistrate from practicing his rights. On the other hand, the Supreme Court held in Malviya’s case quoted “Moreover, in the context of the “investigation” referred Under S. 156(1) of the Cr.P.C, as the interpretation of “investigation” Under S. 2(h) would cover all proceedings for the compilation of evidence by a police department, and would undoubtedly entail proceedings for any further investigation under Section 173(8) of the CrPC”.

The Bench in Reddy’s case was meant by “taking cognizance of an offense,” broadly speaking, the Magistrate extends his observations to continuing within the scope of Section 200 and Chapter XV which contains Section 202, it deals with provisions relating to the measures to be taken by the Magistrate before and after cognizance of any offence has been made. But in the said case, it was held thatthe Magistrate has no power to undertake proceeding under Chapter XV in the post-cognizance stage and therefore he has no powers Under S. 156(3) to order a further investigation and cannot be considered to have taken cognizance of the crime within the context of Section 190(1) (a).As it was well quoted in Reddy’s Judgment that “that the power under Section 156(3) can only be exercised at the pre-cognizance stage”.

The reasoning in which Malviya’s Bench challenged Reddy’s Judgment was, it noted that “there is no reasonable explanation given by the Court in Reddy’s rulings as to why the Magistrate’s powers to order furthermore investigation should immediately be ended upon the process being issued and the accused appearing before the Magistrate while, at the same time, the Police’s power to further investigate the crime remains the right until the stage the trial starts.”It was well quoted in Malviya’s Judgment “Thus when Section 156(3) states that a 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).”

The Supreme Court has stated in the Malviya’s ruling that the Magistrate has the right to order a further investigation in a criminal case also after it had already taken note of the matter and issued a summons based on a charge sheet.

To arrive at a decision, the Supreme Court also relied on the prudence established in the Judgment of Kamlapati Trivedi v. State of West Bengal (hereinafter ‘Trivedi’), which acknowledged that if the Magistrate disagreed with the police report, then he may order further investigation.


The investigation is triggered by Section 156(3), which is seen as pre-cognizance, whereas Section 173(8)permits the Police to carry out further investigations also after a final report has been forwarded to the Magistrate.

The power for Magistrate to undertake further investigation can, by means of cumulative investigations in connection with complaints and counter-claims between the parties, minimize the multitude of First Information Reports (FIR) and corresponding litigation. The magistrates may also be able to resolve a faulty police investigation. It may rejuvenate the Magistrate to rectify a gap between the later stage at the proceedings, at the same time, the number of complaints or reconsider proceedings will rise, with each decision appealed by the aggrieved party before the superior Court causing the appeals/revisions/applications to be more delayed.

The previous judgments of the Court were limited to the acknowledgment of offenses before the Court as a matter of legal procedure. However, it was later modified to accommodate the fundamental change in the criminal justice system and legal procedure. The judge shall allow using all the authority given to him in such a manner to ensure that justice is served. The power of the Magistrate to order an investigation and further examination, according to sections 156(3) and173(8), has expanded to the post-cognition level.

Piyush is a third-year law student at Institue of Law, Nirma University, and Shubham is a third-year law student at National Law University, Jodhpur.

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