43 Year old precedent construed the corner of Criminal Jurisprudence: – Section 156(3) CrPc can be invoked post-cognizance

Author :- Adv. Anchal Agarwal


The Hon’ble Supreme Court of India, vide it’s judgement of Vinubhai Haribhai Malaviya v The State of Gujarat (Vinubhai Case) dated 16 October 2019, arising out of a criminal appeal against an order of the High Court of Gujarat (High Court), had virtually overruled a 43 year old precedent and held that Magistrate can invoke power under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter “Code”) to direct further investigation upon an application or suo moto, even at post-cognizance stage before the commencement of trial.

The three judge bench headed by Justice RF Nariman observed that the finding in law in the judgment of the Apex Court in Devarapalli Lakshminarayana Reddy & Ors. v Narayana Reddy & Ors. (Devarapalli Case) that the power under Section 156(3) of Code can only be exercised at the pre-cognizance stage is erroneous.

Question of law to be determined

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?

Judicial view of Devarapalli case

In this judgment the Apex Court held that in the Code, Section 156(3) occurs in Chapter XII (Information to the Police and their powers to investigate); while Section 202 occurs in Chapter XV (Complaints to Magistrates). The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in session of the case. That is to say 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 if he once 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).

Judicial view of Vinubhai case

The Apex Court observed that a fair trial includes fair investigation (a pre-requisite) as envisaged under Article 20 and 21 of the Constitution.

Article 20 of the Constitution of India prohibits:-

  • Conviction for an offence under ex post-facto criminal law.
  • Prosecution and punishment for the same offence more than once.
  • Compelling a person accused of any offence to be a witness against himself.

Article 21 protects a person against arbitrary:-

  • Arrest
  • Detention
  • Deprivation of life and personal liberty.

After the decision in the landmark case of Mrs.Maneka Gandhi v Union of India & Anr., Article 21 of the constitution makes it clear that the procedure in criminal trials must be “just, fair and reasonable” and not “arbitrary, fanciful or oppressive”. Article 21 acts as a beacon of hope to the lives of arrested, under-trials and convicts.

The Apex court interpreted the following provisions of the Code:

  • Section 173:- Report of police officer on completion of investigation

In the Code, with the introduction of Section 173(8), the power of police to conduct further investigation even after laying final report to the Magistrate under Section 173(2), is recognized. This power continues until the trial can be said to commence in a criminal case.

  • Section 156:- Police officer’s power to investigate cognizable case

The words “as above-mentioned” in Section 156(3) refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.

The power of Magistrate under section 156(3) of Code, to issue a direction to police officer for further investigation, is invoked when the Magistrate finds that the police has not done its duty satisfactorily or has not done it at all. This is an independent power of Magistrate and does not affect the power of investigating officer to further investigate the case even after submission of his report under section 173(8) of Code.

  • Section 2(h):- “investigation”

According to the Code, “investigation” includes all the proceedings under this Code for the purpose of collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a magistrate in this behalf.

The Apex Court held that, as per the definition under Section 2(h), the term “investigation” referred to in Section 156(1) of the Code would include all proceedings for collection of evidence conducted by police. Accordingly, this would include proceedings by way of further investigation under Section 173(8) of the Code.

After having analysed the provisions of the Code and the various judgments, the Apex Court stated the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:-

  1. The Magistrate has no power to direct “re-investigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
  2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(8) of the Code.

Ratio Decendi

Section 2(h) of the Code is not noticed by the Devarapalli case 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.

Obiter Dicta

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.


Thus, the Code leaves clear scope for conducting of further inquiry and filing of a supplementary charge-sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-sections (2) to (6) of Section 173 of Code, to the court.

Also, empowering the Magistrates to direct further investigation even at a post-cognizance stage till commencement of trial may:-

  • reduce the multiplicity of First Information Reports,
  • Allow the Magistrate to keep a check on the investigation carried out by the police and rectify the flawed investigation even at a later stage.

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