The Supreme Court in Vinubhai Haribhai Malaviya vs State Of Gujarat [ (2019) 17 SCC 1 ] disagreed with its earlier view taken in Devarapalli Lakshminarayana Reddy vs V. Narayana Reddy [ (1976) 3 SCC 252 ] and held that the power of ordering further investigation is available to a Magistrate even at post-cognizance stage.
The question is whether Vinubhai also unsettles the position that a Magistrate cannot invoke Section 156(3) CrPC and order investigation after he takes cognizance and examines the complainant on oath?
Before the Jammu and Kashmir High Court, in Aijaz Ahmad Jahra & Others vs UT Of J&K , it was contended that in view of the law laid down in Vinubhai, the power of a Magistrate to direct investigation under Section 156 CrPC is available even at post cognizance stage until the trial commences i.e., when charges are framed.
The court said that , at the first blush, this argument appears to be attractive, but when closely analyzed, the following aspects can be noticed:
(1) Vinubhai dealt with a situation where the charge sheet had been laid before the Magistrate and one of the accused had filed an application for further investigation under Section 173(8) CrPC and the said application was rejected by the learned Magistrate. It was not a case initiated on a complaint but it was a case filed on the basis of the police report laid before the Magistrate under Section 173 CrPC.
(2) The statement of law laid down by the Supreme Court in Vinubhai based upon interpretation of the provisions contained in Section 156(3) read with the provisions contained in Section 173(8) Cr. P. C.
The court therefore held thus: “There is no scope for holding that the learned Magistrate, after taking cognizance of the offences, had any jurisdiction to direct registration of the FIR by going back to the pre-cognizance stage. A Magistrate, on a complaint regarding commission of a cognizable offence, is vested with power to direct investigation into the offences by taking resort to Section 156(3) of the Cr. P. C but if he takes cognizance of the offences under Section 190(a) of the Cr. P. C and embarks upon a procedure embodied in Chapter XV of the Code, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3) of the Cr. P. C.”
Our View
It is true that Vinubhai mostly deals with power of Magistrate to order further investigation and is not a case which dealt with the scope of the power of a Magistrate to order ‘investigation’ u/S 156(3) CrPC when a complaint alleging cognizable offence is presented before him. But at para 26 of the judgment, the Court, referring to Devarapalli , observed that it was an erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage.
The Magistrate can order both ‘investigation’ and ‘further investigation’ invoking Section 156(3) CrPC only as there is no other provision which empowers the Magistrate to pass such an order. Similarly, if a Magistrate can invoke Section 156(3) after taking cognizance of a Police report, how can it be said that he is powerless to invoke it after taking cognizance of a Complaint? In fact, which provision in CrPC (not caselaws) expressly bars Magistrate to order investigation under S 156(3) CrPC if he takes cognizance of the Complaint/Police Report? We would like to know it from you.