COGNIZANCE: The Vinubhai Haribhai Malviya Judgment
The Hon’ble Supreme Court in R.R.Chari v. State of U.P stated: “taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of the offence”.
A three-judge passed the judgment of Vinubhai Haribhai Malaviya and Others. vs State of Gujarat. Issue- Whether after the charge sheet has been filed by the Police, the Magistrate has the power to order a further investigation, and till what stage of criminal proceedings?
The definition of investigation has been discussed under 2(h) Cr.P.C. which includes ‘all the proceedings by the police for the collection of evidence’. The term investigation mentioned in Section 156(1) derives its meaning from section 2(h). Section 156(3) is empowered from Section 156(1) and the meaning of ‘investigation’ under section 156(3) is the same as of Section 156(1), i.e. 2(h). The term investigation under 2(h) refers to ‘all proceedings’ which also includes further investigation under Section 173(8) as further investigation is a part of an investigation carried on by the police. From this, it can be inferred that the power of the magistrate to order investigation under Section 156(3) includes a further investigation.
The question arises whether the magistrate has the power to order further investigation- ‘pre-cognizance’ as well as ‘post-cognizance’. In the case, Devarapalli Lakshminarayana Reddy & Others Vs Narayana Reddy & Others it was held that the magistrate has the power to order further investigation only pre-cognizance. Once, the cognizance has been taken, the magistrate loses the power to order further investigation In the case of Mohd. Yusuf Vs Afaq Jahan it was held that the magistrate is empowered to direct further investigation under Section 156(3) but only pre-cognizance. For this purpose, the definition of investigation and trial was discussed. While the “investigation” specified under Section 156(3) would include the entire process, beginning from the collection of evidence and which continues until charges are framed by the Court, "trial" refers to the determination of the guilt or the innocence of a person and the "trial" commences only when the charges have been framed.
It was discussed that trial and cognizance are two varying terminologies. Cognizance refers to the application of judicial conscience of the magistrate followed by issuing of summons while trial commences after framing of charges. Framing of charges is the subsequent stage of issuing a summons. Thus, it was derived that cognizance and trial as completely different from each other.
The hallmark of any criminal investigation is proper and fair conduct of the investigation. In the case of Maneka Gandhi Vs Union of India, it was held that Article 21 of the Constitution ensures that the procedure in criminal trials is “right, just and fair and not arbitrary, fanciful or oppressive”. If the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, it would amount to a sham of justice. Thus, Article 21 guarantees Magistrate to take all powers necessary, which are incidental or implied, for the purpose of ensuring proper investigation at all stages of the criminal proceedings until the trial itself commences. In the case of Sakiri Vasu Vs State of UP, it was held that even though the magistrate doesn’t have the inherent powers, it has incidental and ancillary powers under which it can pass an order for ‘proper investigation’.
Moreover, Section 173 and 190 doesn’t mention that the power of the police to further investigate in a case gets exhausted when the Magistrate has taken cognizance of the case. This implies that there is the absence of any provision in the Code of Criminal Procedure, 1898 which, either expressly or through implication, after the cognizance has been taken by the magistrate, bar the right of the police to further investigate.
The judicial conscience of the Magistrate needs to be satisfied with respect to the records and the documents which are produced before him by the investigating agency. It is for the purpose to reach an appropriate conclusion in consonance with the legal principles. If the court is unable to direct "further investigation" for the purpose of clarifying its doubt or ordering the police to further substantiate its charge-sheet it might lead to being a travesty of justice. Hence, it was concluded that investigation can take place until the time ‘trial’ commences. Cognizance of a case by the magistrate is taken at the pre-trial stage. Therefore, irrespective of the fact that whether the cognizance has been taken by the Magistrate or not, the magistrate can direct further investigation for the aim of achieving fair and proper investigation enshrined under Article 21 of the Constitution.
ABOUT THE AUTHOR
Nehal Misra is a 3rd-year student at Nirma University, Ahmedabad.
LinkedIn ID: https://www.linkedin.com/in/nehal-misra-4ab380175
Edited by: Arushi Gupta
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