Magistrate Power to Order Further Investigation Even in Post Cognizance Stage Until Trial Commences


The Supreme Court, held that a Magistrate has power to order further investigation into an offence, even at a post cognizance stage, until the trial commences.

The bench comprising Justice Rohinton Fali Nariman, Justice Surya Kant and Justice V. Ramasubramanian set aside a Gujarat High Court order which had held that post-cognizance a Magistrate would have no power to order further investigation into an offence.

After examining various provisions of the code, the bench observed:

It is thus clear that 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 ensure 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

Finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage erroneous

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. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.