Before framing charges magistrate can suo moto order further investigation

The Hon’ble Supreme Court, on 16th October 2019, in the matter of Vinubhai Haribhai Malaviya and Ors. v.The State of Gujarat and Anr. pronounced that before framing of charges, the Magistrate can suo moto order further investigation even after a police report has been forwarded to him under Section 173 of CrPC.

Question(s) before the Hon’ble Supreme Court?

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 ?

Once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. (Para 36)

Whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173 ?

The power of the Magistrate to order further investigation until charges are framed is grounded under Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, and would be available at all stages of the progress of a criminal case before the trial actually commences. (This inference has been drawn on the basis of Para 38 and Para 39)

The Hon’ble Supreme Court observed that:

The statutory scheme contained in the CrPC puts “inquiry” and “trial” in water-tight compartments, as the very definition of “inquiry” demonstrates. “Investigation” is for the purpose of collecting evidence by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also pertains to a stage before the trial commences. Investigation which ultimately leads to a police report under the CrPC is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in “complaint” cases. (Para 13)

A fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit. (Para 17)

The Magistrate’s power under Section 156(3) of the CrPC is very wide, for it is 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, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); 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 CrPC would, as per the definition of “investigation” under Section 2(h), 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 CrPC. (Para 23)

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). (Para 25)

The “investigation” spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. (Para 26)

Once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. (Para 36)

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) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid- way 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 is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. 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, 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. (Para 38)

Copy of judgement: Judgement_16-Oct-2019

-Adv. Tushar Kaushik

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