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Unravelling the progressive step of Apex Court: Analysis of Vinubhai Judgement

Forum: Supreme Court Of India (SC) - Title: Vinubhai Haribhai Malviya & Ors v. State of Gujarat & Another - Citation: (2019) 17 SCC; 2019 SCC OnLine SC 1346. - Decided On: 16-10-2019. - Statute: Criminal Procedure Code, 1973: S 2(g), S 2(h), S. 156(3), S. 173(8), S. 190. - Appellants: Vinubhai Haribhai Malviya and Others - Respondent: State of Gujarat and Another - Case Number: Criminal Appeal Number 478-479 of 2017 - Coram / Quoram: Hon'ble Mr. Justice R.F. Nariman, Hon'ble Mr. Justice Surya Kant and Hon'ble Mr. Justice V. Ramasubramanian

Brief Facts:
  1. The instant case stems from an FIR that was registered on 22.12.2009 by Nitinbhai, Power of Attorney holder of Ramanbhai and Shankarbhai. They both live in UK and US respectively, as alleged in FIR
  2. FIR alleges that Ramanbhai and Shankarbhai are owners of the land of 8296 sq. m. which is located on the outskirts of Surat, they bought the land from one Bhikabhai and his wife Bhikiben in 1975.
  3. It was alleged in FIR that the legal heirs of Bhikabhai and Venubhai together have hatched a conspiracy due to a price hike of land in Surat. A notice published in Gujarati newspaper on 07.06.2008 titled Beware of Land-grabbers Henceforth, a dispute arose and Vinubhai demanded Rs. 2.5 crores to resolve and settle disputes concerning this land.
  4. Also, as per facts it was said that apart from extortion of money from Nitinbhai, to settle the dispute regarding land, legal heirs of Bhikhabhai and Bhikiben along with Vinubhai and Manubhai have used a forged and bogus Satakhat and Power-of-Attorney in respect of the disputed land, and accused had tried to snatch the land from its lawful owner Ramanbhai and Shankarbhai

Procedural History
  1. Application was filed by the accused before the judicial magistrate (First Class) for further investigation. The application was rejected by the magistrate
  2. Accused approaches High Court against the said order of Magistrate. HC held Magistrate is not empowered to order further investigation when cognizance is taken
  3. The accused approached the Apex Court by way of an appeal against the order of HC.
  1. Whether Magistrate has the power to order a further investigation after filing of charge sheet by police and if yes, up to what stage of criminal proceedings? (Para 9)
  2. Whether the Magistrate is authorized under Section 173(8) to order a further investigation after a police report has been forwarded to him?

Rules and Principle Applicable:
  1. Section 156(3) CrPC: Police officer's power to investigate cognizable case
  2. Section 173(8) CrPC: Power of the magistrate to order further investigation.
  3. Section 202(1) CrPC: Power to direct investigation.
  4. Section 190 CrPC: Cognizance of offences by Magistrate
  5. Section 2(h) CrPC: Interpretation of definition of investigation

Judgement / Decision
Hon'ble Apex court set aside the impugned judgement of HC and held that Magistrate can exercise its power under Section 156(3) of CrPC even at post cognizance stage. Therefore, Magistrate has the authority to order further investigation into an offence prior to the inception of trial, as provided for in Section 173(8) read in conjunction with Section 156(3) and Section 2(h) of the Criminal Procedure Code. In toto, the court held that a Magistrate has the right to order further investigation even after taking cognizance of a charge sheet filed by the police, before the inception of the trial.

Application: Critical Analysis
The judgement of Supreme Court (hereinafter SC) laid to rest the ambiguous position pertaining the evasive issue of further investigation directed by the Magistrate. The three-judge bench after a rigorous deliberation of precedents and statutory framework of CrPC, and relying heavily on the principle of Right to a fair trial as in accordance with Article 21 pronounced their decision.

The bench held that Magistrate is empowered to order further investigation even at the post cognizance stage and to hold otherwise would be contrary to the spirit of the CrPC itself. Court has examined various judicial precedents on the subject of further investigation. The court while examining the statutory scheme of CrPC creatively interpreted the idea or definition of Investigation envisaged in Section 2(h). To understand the instant decision, it is pertinent to understand the judicial precedents and reasoning of the Court.

Prior to this significant decision, different benches of the Apex court have held concurring and conflicting decisions on powers of the magistrate to order further investigation under Section 173(8). The court heavily relied on the established precedent of Vinay Tyagi v. Irshad Ali & Ors[1] and Kamlapati Trivedi v. State of W.B.[2] amongst cases. While examining other precedents bench expressly overruled different cases that provides a restrictive view on powers of a magistrate under Section 173(8).

Further, the bench virtually overruled A 43-year-old precedent that has sent a great impact on the legal fraternity is that of Devarapalli case[3]. In that case, the court has discussed Section 202 and Section 156 of CrPC from which the court differentiated the power exercised at pre and post cognizance stage. It is pertinent to note here that the Devarapalli case didn't deal with Section 173(8) and the issue of the instant case.

It is imperative to note that, in-Obiter, the court has proceeded on the aspect that a criminal trial begins only after charges are framed and not after the cognizance is taken.

Rationale of Apex Court & Analysis:
The instant case involved a substantial question of law of paramount importance for the right of a fair trial which is a fundamental right under the constitutional scheme (viz. Article 21).SC needs to address the issue on which judicial precedents existed that are concurring and contrary. Finally, the court cleared the position of powers of the magistrate under Section 173(8).

The reasoning of the court is:
Court started from the starting and interpreted Section 2(h) of the CrPC, 1973 with a contrast to Section 2(i) of the 1898 CrPC. The court interpreted Section 2(h) in its spirit and essence, the emphasis on the word ALL is placed. Adopting this interpretation, the court said that all indicates that all proceedings under the CrPC for the collection of evidence in the matter of investigation by police gets covered.

It means that proceedings under Section 178(3) is covered as well. Henceforth, court went into reading down Section 156(3) and Section 190, states that the magistrate may order such an investigation. Therefore, The magistrate may order further investigation under Section 173(8), despite the investigation is defined under Section 2(h).

In Toto, power of the magistrate to order further investigation under Section 156(1) r/w Section 156(3) and Section 173(8) r/w Section 2(h). The key to the judgement is the definition of investigation as it includes all proceedings under the CrPC for collection of evidence by a police officer. To strengthen the spirit and essence of CrPC court highlighted the power of magistrate w.r.t Section 156(3) and Section 190.

Further, the bench envisaged a dynamic mix of Article 21 (viz. Right to fair trial) and its hovering omnipresence over the CrPC, and it is the core principle for the whole CrPC to ensure just and fair trial. The court relied on the case of Sakiri Vasu[4] in support of the above finding.

Conclusion & Suggestions
Indubitably, the SC dealt the case with an exhaustive examination of settled precedents with conflicting views on the issue of the power of magistrate under Section 173(8) to order further investigation has laid to rest with this significant decision. The decision is based on the reasoning which is heavily dominated by the principle of Right to fair trail provided in Article 21. To order otherwise would indeed be a miscarriage of justice.

I personally appraise the decision as there are several benefits from this, as it allows the magistrate to rectify a flawed investigation.

Although, the present decision is not free from criticism as the situation created a new dilemma and chaos with respect to the scope of Section 156(3). Further, it will add to the delay of cases as an order rejecting the application will be challenged before the higher courts. Concurrently, the SC settled the law w.r.t Section 173(8) which is of great significance.

To avoid chaotic situations, it would be beneficial to interpret Section 156 to include powers to be exercised by the magistrate during the pre-cognizance stage. As the Hon'ble Court has exhaustively reasoned, the magistrate's authority to order "further investigation" should be read into Section 173(8) of the code. Therefore, to avoid chaos, restricting the magistrate's power to Suo-moto performance would be in the best interests of justice. Based on the facts and merits of the case, the Magistrate will allow further investigation. It is necessary because appealing the orders to the Higher Courts would only add to the burden of courts.

This landmark judgement comes with its own pros and cons for the criminal justice system and the procedural aspect of CrPC, hence to uphold the spirit of CrPC it needs to be ensured that the magistrate's supervisory jurisdiction is widespread. The consideration of the instant decision is still remaining to be seen whether the ratio would be strengthened by other courts in further time being or it will get the change again with coming time as the decision comes with some erroneous overruling's of precedents and legal professionals criticised it.

In all and all, it can be said that the reasoning and position laid by the SC is aligned with the spirit of the CrPC and intent of legislatures. It is a progressive approach where the court widened the power of the magistrate under the scheme or the framework of CrPC.

  1. (2013) 4 SCC (Cri) 557
  2. 1980 2 SCC 91.
  3. Devarapalli.Lakshminarayana.Reddy v. V. Narayana Reddy (1976) 3 SCC 252.
  4. Sakiri.Vasu v. State.of .UP & Ors. (2008) 2 SCC 409.

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