Issue raised before Hon’ble Supreme Court in Vinubhai Haribhai Malaviya Vs The State of Gujarat 2019. SCC OnLine SC 1346, was whether post-cognizance a Magistrate would have no power to order further investigation into an offence? In short, question of law arises in this case is whether, after a charge-sheet 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?
Speedy Justice and fair and proper investigation are the principles enshrined under Article 21 of Constitution of India and the same has been enunciated by Hon’ble Apex Court in Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248 held that Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be “right, just and fair and not arbitrary, fanciful or oppressive” and which is possible only after an investigation is itself fair and just.
It is a rule of law that justice not only has to be done but also must appear to have been done for which Court can exercise its residuary power to direct further investigation or reinvestigation by any impartial agency. The Code, 1973 provides numerous power though not inherent power but u/s 156(1) & (3) r/w 173(8) of CrPC to Magistrate to take issue directions even if FIR was registered by police or chargesheet was filed by police to order further investigation. Though there is no specific requirement under law for police seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” but they investigation agencies have adopted such practice to such prior permission.
After registration of FIR, when investigation was completed by police, then question arises as to what are the options available to magistrate under Section 173 CrPC?
Three Options are available for Magistrate while dealing with a report from the police under Section 173, stated by Apex Court in Commissioner of Police and Anr. (1985) 2 SCC 357, Magistrate may either:- (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3).
Apex Court held in State of Bihar v. J.A.C. Saldhana and Ors. (1980) 1 SCC 554, that power u/s 156(3) CrPC is an independent power can same can be exercised even after submission of final report. Similarly Apex Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 held power u/s 156 CrPC can be exercised for ensuring proper investigation.
If magistrate exercise the option no.3, then first it is necessary to know as to when trial commences to understand upto which stage magistrate can exercise power u/s 156(3) CrPC?
The Hon’ble Apex Court answered the above question in Common Cause v. Union of India [(1996) 6 SCC 775 held that trial shall be treated to have commenced (i) In cases of trials before the Sessions Court, when charges are framed under Section 228 of CrPC and (ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports, when charges are framed under Section 240 of CrPC (iii)while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report, when charges are framed against the accused concerned under Section 246 of the Code of Criminal Procedure, 1973 (iv) In cases of trials of summons cases by Magistrates, when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.
After referring to above question, next question is whether power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1) and the two operate in distinct spheres at different stages i.e. The first is exercisable at the pre-cognizance stage, the second at the post- cognizance stage?
Apex Court held in Vinubhai Haribhai Malaviya v. State of Gujarat, JT 2019 (10) SC 537, that “There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed.
Further Apex Court in Vinubhai Haribhai Malaviya (supra) observed that “There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled”
Once it is clear that power of Magistrate to order further investigation can be exercised u/s 156(3) CrPC even after filing of chargesheet. Then question arose is whether Hon’ble High Court in extra ordinary jurisdiction under Article 227 of Constitution can grant simultaneous relief which was available by Ld. Magistrate for further investigation?
The aforesaid question was answered by Hon’ble High Court of Kerala in Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided on 17-12-2019, Hon’ble High Court dismissed the original petition filed under Article 227 of the Constitution where the petitioner prayed the Court to direct the Sessions Court to pass orders under Section 173(8) of CrPC to direct the investigating officer to conduct further investigation in the case of her son’s death. The High Court referred to Vinubhai Haribhai Malaviya (supra), in light of this decision, the Court held that the petitioner should have approached the appropriate court below and seek further investigation of the case. It was not proper for this Court to exercise its jurisdiction under Article 227 of the Constitution of India even before the petitioner had approached the appropriate court below in that regard. It is well settled if there are an alternative and efficacious remedy provided under the provisions of the concerned Act, normally the High Court should not interfere by exercising the extra-ordinary jurisdiction.
In view of above, it is clear that judgment Vinubhai Haribhai Malaviya (supra) paves a way for bonafide complainant to approach the magistrate with a request to investigate further, as well as, it also gives liberty to the accused persons to avail its right to provide evidence before Magistrate to ascertain truth. However, empowering the magistrates to direct further investigation (even at a post-cognizance stage till commencement of trial) may reduce the multiplicity of First Information Reports (FIRs) and subsequent cases by cumulative investigation in relation to complaints and counter-complaints amongst parties. This may also allow the magistrates to rectify a flawed investigation carried out by the police. While this may embolden the magistrates to rectify lacunae at a later stage of the proceedings, it may simultaneously increase the number of appellate or revisional proceedings, with each such order of the magistrate being challenged before a superior court by the aggrieved party thereby causing further delay as a result of these appeals / revisions / applications.
 Article 21 in The Constitution Of India
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
 The Code of Criminal Procedure, 1973
 Section 156 in The Code Of Criminal Procedure, 1973
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
 State of Bihar v. J.A.C. Saldhana and Ors. (1980) 1 SCC 554,