The Supreme Court has overruled an old decision and held that Magistrate can invoke power under section 156(3) of the Code of Criminal Procedure even at post-cognizance stage.
It observed that the finding in law in the said judgment that the power under Section 156(3) CrPC can only be exercised at the pre-cognizance stage is erroneous.
In the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But once the Magistrate takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).
It may be noted that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1).
Supreme Court Today 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).
Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. 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.