Magistrate Can Invoke Power U/S 156(3) CrPC Even At Post-Cognizance Stage

In CRIMINAL APPEAL NOS.478-479 OF 2017, Vinubhai Haribhai Malaviya Vs The State of Gujarat, an application was filed by Accused No.1 Vinubhai Haribhai Malaviya for further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 which was rejected by the Magistrate stating that the facts sought to be placed by the applicants were in the nature of evidence of the defence that would be taken in the trial.

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. The High Court on appeal held 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.

Supreme Court observed that Section 2(h) of the 1973 Criminal Procedure Code defines "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 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 on this issue also held that the judgment of the 3 judge bench in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976) 3 SCC 252, was rendered without adverting to the definition of "investigation" in Section 2(h) of the CrPC, and therefore cannot be relied upon.