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Hon’ble Justice R.F Nariman, Hon’ble Justice Surya Kant and Hon’ble Justice V. Ramasubramaniam of Supreme Court passed a Judgement in the matter of Vinubhai Haribhai Malaviya and Ors v. the State of Gujarat and Anr, that Magistrate can invoke the power under Section 156(3) of the Code of Criminal Procedure, 1973 even at post-cognizance stage. This judgement was rendered without adverting to the definition of “investigation” in Section 2(h) of the Code of Criminal Procedure.
The court said that the precedent in the Devarapalli Lakshminarayana Reddy v. Narayana Reddy[1] case, that the power under Section 156(3) of Code of Criminal Procedure can only be exercised at the pre-cognizance stage is erroneous and bad in law. Supreme Court observed Section 2(h) of the 1973 Criminal Procedure Code definition “investigation” in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this definition- that “investigation” after 1973 code has come into force will now include all the proceeding under the Criminal Procedure Code for collection of evidence conducted by a police officer. “All” would include proceeding under Section 173(8) as well. This, 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).
The bench held that the judgement in above mention case was rendered without adverting to the definition of “investigation” in section 2(h) of the Criminal Procedure Code, and cannot, therefore, be relied upon as lying down the law on this aspect correctly. Court observed that:
“Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The ‘investigation’ spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.
[1] (1976) 3 SCC 252
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