Critique of the Supreme Court’s judgment in Vinubhai Haribhai Malviya & Ors v. State of Gujarat

Mahesh Jethmalani

A recent judgment of the Supreme Court in Vinubhai Haribhai Malviya & Ors v. State of Gujarat & Anr passed by a quorum of Justices Rohinton F Nariman, Surya Kant and V Ramasubramanium has created ripples at the criminal bar. The judgment holds that a power exercised by a magistrate u/s 156(3) of the Criminal Procedure. Code (CrPC) is post-cognizance, contrary to both unambiguous statutory provisions as also established judicial precedent.

A comment on the judgment is accordingly not out of order.

According to the Supreme Court in paragraph 9, the question of law that arose in the case before it was whether,

“after a chargesheet 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”.

In sum, the Court had to decide whether a magistrate has the power to order further investigation under Section 173(8) CrPC.

The issue the Court was faced with was undoubtedly one which was not free from doubt. Different benches of the Supreme Court had held conflicting views. Earlier judgments had taken the view that the power u/s 173(8) vested only in the investigating agency and that a magistrate had no power to order investigation under the sub-section.

Subsequently, further judgments of the Supreme Court either followed the earlier view or departed from it, the latter holding that a magistrate did indeed have the power to order further investigation under Section 173 (8) CrPC after a police report was filed and further even after cognizance was taken on the said police report [see particularly Vinay Tyagi v. Irshad Ali & Ors, relying upon Hemant Dhasmanav. CBI and other cases].

After a near exhaustive survey of the conflicting decisions, the Bench in Malviya held in favour of the view that a magistrate had power to direct further investigation by an investigating agency post cognizance on a police report right up to the stage of framing of charge. In paragraph 38, the Court expressly overruled those decisions of the Apex Court that interpreted Section 173(8) CrPC restrictively. This resolution of conflicting views by Malviya’s Bench is both welcome as it promotes certainty in the law, and unexceptionable, as it undoubtedly redounds in the interest of justice.

With the greatest respect to the Court, it has unnecessarily overruled a three-judge bench judgment in Devarapally Lakshminarayana Reddy v. V Narayana Reddy, and in paragraph 24, laid down the quite untenable proposition that the Bench in that case had made the “erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage.”

It is pertinent to point out that the Bench in Malaviya was concerned only with the question whether post-cognizance a magistrate could direct further investigation under Section 173(8). Whether a magistrate exercising power under Section 156(3) was acting pre-cognizance or post-cognizance was not at all an issue in the case.

On the other hand, Devarapally’s judgment does not deal with Section 173(8) at all. It deals with the issue as to whether a magistrate dealing with a private complaint who felt that the matter required a police investigation could act under Section 156(3) and direct a police investigation or was bound to take cognizance of the complaint, examine the complainant on oath, and order an investigation under Section 202 CrPC.

The Court in Devarapally’s case held that either option was open to the magistrate, holding that the distinction between the two sections was that an exercise of power under Section 156(3) was pre-cognizance and that under Section 202 was post-cognizance. Manifestly, the case had no relevance to the issue of whether a magistrate could direct an investigation under Section 173 (8) post-cognizance.

The rationale on which Malaviya’s Bench doubted Devarapally’s view that Section 156(3) could only be exercised at the pre-cognizance stage is, with further respect, patently flawed. According to the Bench (Para 25),

“…..Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).”

Firstly the words, “such an investigation” in Section 156(3) CrPC derives its color from Section 156(1), and not merely from the definition of “investigation” in Section 2(h) of the CrPC.

Secondly, it is trite to state that Section 156(3) and Section 173(8) operate at different stages of investigation. An order under Section 156 (3) commences an investigation because in effect, it directs the police to register an FIR. Section 173(8) in contradistinction applies after the completion of an investigation, which is signified by the filing of a police report (or charge sheet) under Section 173(2).

Thus, Section 156(3) is undoubtedly pre-cognizance as it triggers an investigation, while Section 173(8) is undoubtedly post-cognizance as it is intended to supplement a completed investigation.

Thirdly, the power of the magistrate under Section 173(8) is not derived from his power under Section 156(3), but is a distinct and independent power.

Again with the utmost respect, the error which the Bench fell into in holding that Section 156(3) was not necessarily exercised at a pre-cognizance stage and consequently holding Devarapally to be wrongly decided stemmed from its omission to consider what taking cognizance meant.

The Bench in Devarapally’s case set out what was meant by “taking cognizance of an offence” and held in paragraph 14,

“…Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190(1)(a). It, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”

This proposition regarding the meaning of “taking cognizance” has been oft repeated in many an Apex Court judgment. Had the Bench in Malviya been cognizant of this well established proposition of law, it is doubtful if it would have arrived at the unfortunate findings in para 26 that:

“the power under section 156(3) can only be exercised at pre- cognizance stage was an erroneous finding in law and

that the statement of law contained in para 14 in Devarapally could not be relied upon.”

In the respectful submission of the author, the upshot of the above discussion can be summarized as follows:

a. That the final conclusion in Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat and Anr. is unexceptionable;

b. That, however, the Bench’s finding that the power under Section 156(3) could be exercised at the post- cognizance stage and that the Devarapally Lakshminarayana Reddy judgment cannot be relied upon, set out in para 26 of the judgment, is per incuriam and erroneous;

c. That in any event, the finding in para 26 is not the ratio decidendi of the case and is pure obiter. The law in Devarapally’s case thus continues to hold the field.

The author is a Senior Advocate practicing at the Supreme Court of India and the Bombay High Court.