Magisterial Powers to order Further Investigation under 156 (3) CrPC in post-cognizance stage

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(Author: Palak Jain, pursuing LLB from Faculty of law, Delhi University.)

An “investigation” means the search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by a police officer or a custom officer or any other officer authorized to investigate into the matter of an offence committed under a law other than the IPC.

“Investigation” has been defined under Section  2 (h) of the Criminal Procedure Code,1973. It includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate)who is authorized by a Magistrate in this behalf.

Communication of information of a cognisable offence to the Police Officer in writing is called FIR. In fact, it is the information first in point of time which sets the Criminal Law in motion. Subsequent information received is not FIR it is mentioned under section 154 of code of criminal procedure 1973.

If the Police officer refuses to record the FIR, the informant may send the substance of such information to the S.P. (superintendent of police) by post, who may take the necessary action under subsection 3 of section 154. He may provide for investigation. FIR should be lodged at the earliest point of time. The object of FIR is to receive information and to record the circumstances before the person forgets to establish the information. 

In case the police officer still denies to register FIR or despite FIR is registered, no proper investigation is done, the person can approach Magistrate under section 156(3).

Magisterial power to order further investigation

Magistrate has the power to order investigation in case the police officer denies to register  FIR or despite FIR is registered, no proper investigation is done. This is mentioned under section 156(3) of code of criminal procedure,1973. The word “Magistrate” mentioned in section 156(3) means Judicial Magistrate who is competent to take cognizance of a cognizable offence and not Executive Magistrate.

This subsection enables a Magistrate to order the investigation of an offence of which he may have taken cognizance under section 190. Magistrate may direct investigation of the case by the police under sub-section (3) of this section without taking cognizance.

The magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit and exercise is power under section 190(1)(b).

The power under section 156(3) of the Code can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses commission of a cognizable offence. Thus, where the complaint did not disclose commission of a cognizable offence, the order directing investigation was held liable to be quashed.

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Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3). If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR.  It is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. The Magisterial power cannot be stretched under section 156(3) beyond directing the officer in charge of police station to conduct the investigation.

Sakiri Vasu v. State of U.P. 2008 2 SCC 409, it was held that the Magistrate cannot order under section 156 (3) investigation by the CBI. The words ‘abovementioned’ refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station rather than any other investigating authority.  A victim can demand for proper and speedy investigation. But he cannot demand investigation by special agency including CBI. The aggrieved person has no right to claim the offence be investigated by any particular agency of his choice.

Dilawar Singh v State of Delhi, AIR 2007 SC 3234 : (2007) 12 SCC 641 : 2007 Cr LJ 4709. It was held that even if the FIR has been registered and police has made or making the investigation and the aggrieved is not satisfied, then the person can approach magistrate under section 156(3) of CrPC. If magistrate is convinced then he can pass orders to ensure proper investigation.

Section 173(8) of code of criminal procedure, 1973 allows the police to conduct further investigation even after it has forwarded a final report to the magistrate. Magistrate can order reopening of the investigation even after the police submits the final report. The Court may direct further investigation where charge-sheet has been filed. But such further investigation will not mean fresh investigation or reinvestigation.

The magistrate has powers mentioned in section 156(3), 156(1), section 173(8) are not narrow and would be available at all stages of the progress of a criminal case before the trial actually commences. The power to direct further investigation is exercisable even after filing of chargesheet. The power to direct further investigation is not inhibited by the requirement to hear the accused before making such direction.

Hemant Dhasmana v CBI, AIR 2001 SC 2721 : (2001) 7 SCC 536 ,in this case it was held that direction made by the Special Judge that further investigation be conducted by an officer of DIG rank of CBI was deleted as it is not within the province of the Magistrate while exercising the power under section 173(8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation.

Vinubhai Haribhai Malaviya vs The State of Gujarat & Anr 2019, it was held that after the chargesheet is filed by the police , the magistrate has the power to order further investigation even at post cognizance stage  upto the stage of framing of charge. Section 156(3) and section 173(8) applies at different stages. Under section 156(3), order initiates an investigation, it directs the police to register FIR but section 173(8) applies after the investigation completes, after chargesheet is filed.

Read Also: FIR Must Be Uploaded On Police Website Within 24 Hours: Supreme Court

Conclusion

A magistrate has suo moto power to order further investigation even at post cognizance stage before the commencement of trial. He can order to initiate the investigation by directing the police to register the FIR as well as can order after investigation completes, after chargesheet is filed.

The magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit and exercise is power under section 190(1)(b).