Now it’s an end to an endless investigation of the Supreme court in the case Vinubhai Haribhai Malaviya Vs State of Gujarat. We can see through this case that endless investigation has been faced by the accused and going on by the ib=nvestigation agencies. 

During the case the big question which arises in the mind of people is that “whether after filing of the chargesheet by the investigation agency, the Magistrate has power to order further investigation, and if so, up to what stage of a criminal proceeding can such further investigation be allowed.”

Further question has arised before the High Court of Gujarat is that “whether after the IO has submitted the chargesheet against the accused person and the Ld. Magistrate has taken cognizance and issued the summons against the accused, an application for further investigation that too at the instance of accused is permissible or not?

Section 173 (2) CRPC provides that the IO on completion of the investigation forwards the report to the concerned Magistrate for taking cognizance of the offence. After the new code came into force in the year 1973 section 173(8) crpc was enumerated this granted power to the police to further investigate even after filing of the final report with an objective to secure the ends of justice and not tie the hands of the investigating agencies.

The Magistrate must act in the following given manner after filing of the final report or chargesheet by the Investigation officer-

  1. Accept the final report and take cognizance
  2. Accept the closure report and close the case.
  3. Reject the closure report and take cognizance on the evidence collected.
  4. Reject the closure report and order for further investigation.

There are few cases which tell in their judgements that it is not clearly specified that till when an investigating agency can file a final report post taking cognizance by the Magistrate.

One of the judgments is of Randhir SIngh Rana vs State, in which Hon’ble Supreme court held that a Judicial Magistrate, after taking cognizance on the basis of the police report and after appearance of the accused , cannot order on his own further investigation.

Subsequently in the case Union Public Service Commission Vs S. Papaiah, Apex court under section 173 (8) crpc has held that the Magistrate could exercise its power and direct for further investigation keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the investigating officer governed by sub section (2) to (6) of section 173 crpc.

Vinubhai Haribhai Malaviya Vs State of Gujarat

A recent judgement of the Supreme Court of India on criminal law passed by the quorum of justices Rohinton F nariman, Surya Kant and Ramasubramanium. The judgement holds that a power exercised by the magistrate under section 156(3) of the Cr.Pc. is post cognizance. 

The question arises by the Supreme court that once Chargesheet is filed by the police after doing proper investigation, then whether the Magistrate has the power to pass an order to the police officials for further investigation under section 173(8)  and if so then upto what stage of criminal proceedings? 

Different views were given by different judges which also creates doubt in the judicial minds. Then after a near exhaustive survey of the conflicting decisions, the Bench in malviya held in favour of the view that a magistrate has power to direct further investigation by an investigating agency post cognizance on a police report right up to the stage of framing of charge that interpreted section 173(8) crpc restrictively. This view was acceptable as it was undoubtedly redounds in the interest of justice. 

It is pertinent to note that the Bench in malviya was concerned only with the question whether post cognizance a Magistrate could direct further investigation under section 173(8). Whether a magistrate exercising power unders section 156(3) was acting pre cognizance or post cognizance was not at all the issue in this case.

Thus it is undoubtedly correct that section 156(3)  and 173(8) operate at different stages of investigation like section 156(3) operates at pre cognizance stage whereas 173(8) operates at the post cognizance stage as it is intended to supplement a completed investigation.

It is pertinent to note here that the power of magistrate under section 173(8) is not derived from his power unders section 156(3) but is a distinct and independent power. 

This proposition regarding the meaning of “taking cognizance” has been often repeated in many apex court judgments. Had the bench of Malviya been cognizant of this well established proposition of law, it is doubtful if it would have arrived at the unfortunate finding in paragraph 26 of the judgement.

The power unders section 156(3) can only be exercised at pre cognizance stage was an erroneous finding in law”.


Therefore it was held in the case that a three judge bench of the Supreme Court Of India virtually overruled a 43 year old precedent and held that a magistrate can invoke power under section 156(3) of the code of criminal procedure even at the post cognizance stage. The Bench headed by Justice RF nariman held that this judgement was rendered without advertising the definition of “Investigation” in section 2(h) of the crpc. It was observed that the finding in the law in the said judgement that the power under section 156(3) crpc can only be exercised at the pre cognizance stage is erroneous.

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