MAGISTRATE’S POWER TO ORDER FRESH AND FURTHER INVESTIGATIONS – CHANGING CONTOURS
Author: Khushi Sehgal, III year of B.B.A.,LLB (Hons.) From Bennett University, Greater Noida.
A Civil Officer who has limited power to administer and enforce the law is called a Magistrate. He is a one who handles small criminal as well as civil cases and has wide powers to order two different types of investigation to any accused during the trail process. This article will be covering about the powers which the Magistrate can use to order Fresh or Further Investigation to an accused. Here, the term Investigation according to the Oxford’s Dictionary may be defined as an official examination of facts about a situation, crime etc.1 or in other words, it is a process in which materials are cited, relevant facts and data are found.2 Thus, Magistrates have power to order the two types of investigations under Sections 156 (1) and 173 (8) of the Criminal Procedure Code. But there are certain situations in which a magistrate cannot order these types of investigation which may vary from case to case. Likewise, there are variety of cases which can be referred to determine that a magistrate can order such types of investigation or not, such as: Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat and Anr.3; State v. Mehar Singh & Ors.4; Chandra Babu v. State through Inspector of Police & Ors.5; R.N. Chatterji v. Havildar Kaur Singh6 etc.
The concept of Fresh Investigation (or de novo investigation) is also called Reinvestigation and the Criminal Procedure Code is silent about it thus prohibiting the use of Fresh investigation during the trials.7 But the concept was first observed in the case of Vinay Tyagi v. Irshad Ali and Deepak & Ors. According to this case, it has been stated by the Chief Justice Deepak Mishra that in order to get fresh investigation or reinvestigation or de novo investigation, there must be a definite order from the court which specifies that ‘the previous investigation of the accused has been recorded but it is incapable of being acting upon.’8 Here, neither the magistrate nor any investigating agency has the power to go for fresh investigation unless and until the higher court gives specific directions to investigate the case again. But, in another leading case of R.S. Sodhi, Advocate v. State of U.P., it was held by the court that the case should be transferred to CBI to investigate it properly by maintaining proper credibility of public as well as judicial interest or in short it can be said that depending upon special circumstances of the cases, the court may exercise its jurisdiction to order Fresh Investigation even by transferring the case to higher jurisdiction courts which may pass such directions.9 After looking at above stated Supreme Court judgements, the main point should be cleared that the Magistrates have no such jurisdiction to order Fresh Investigation to any accused but the magistrate has the power to accept or reject the report of the accused at the beginning stage of the case. There are various case laws which states that Fresh Investigation cannot be ordered such as: K. Chandrasekhar v. State of Kerala10, Ramachandran v. R. Udhayakumar11, Nirmal Singh Kahlon v State of Punjab & Ors.12 etc. Thus, Fresh Investigation can only be ordered when there are special circumstances of the case or specific order from the Higher Court to conduct fresh proceeding in the situations of biased, unfair or undesirable facts and conditions during the trails and Magistrate does not have any power to order any fresh investigation to the accused.
On the other hand, the concept of Further Investigation is defined as a continuous investigation in an ongoing investigation in the court which is made by an Investigating officer with the help of oral and written evidences which may be collected after submission of the final reports in front of the court under Section 173 (8) of CrPC.13 Here, the Magistrates have power to order Further investigation to any accused under Section 173 (8) of CrPC and if the case is of cognizable offence, then under Section 156 (1) of CrPC.14 The concept of further investigation was first found in the leading case law of Rama Chaudhary v. State of Bihar.15 The scope of Further Investigation is limited in nature and the report of the investigating Officer is considered as a Supplementary Report of the same proceeding which took place before in the court.16 This type of investigation can be done for cognizable offences by police officers as well and it depends from case to case that police investigation is permissible or not.
Likewise, in the leading case law of State v. Mehar Singh & Ors, the court did not give permission to police officers to do further investigation17 while, in another case of H.N. Rishbud v. State of Delhi, the magistrate gave permission to conduct police investigation and submit their report.18 The main objective of further investigation is to find out the truth and deliver justice to both the parties as per Hasanbhai Valibhai Qureshi v. State of Gujarat.19 So, in short, magistrates have power to order Further investigation to any accused during the trials.
Thus, it can be concluded that Magistrates do not have any power to order Fresh Investigation unless and until the case comes within the purview of Special Circumstances or the proceeding was done with biased, unfair or undesirable facts. Whereas on the other hand the Magistrates have power to order Further Investigation under Sections 156 (1) r/w 173 (8) of CrPC. These types of investigation are ordered to deliver equal justice to the deceased party which depends upon case to case.
2 Ayush Verma, ‘Concept of investigation, further investigation and reinvestigation’, 5th Aug. 2020 https://blog.ipleaders.in/concept-investigation-investigation-reinvestigation/
3 Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat and Anr. (2019) (17 SCC 1).
4 State v. Mehar Singh & Ors. (1974) (Crl LJ 970).
5 Chandra Babu v. State through Inspector of Police & Ors. (Criminal Appeal No. 866 of 2015) [Arising out of SLP (Crl.) No. 5702 of 2012].
6 R.N. Chatterji v. Havildar Kaur Singh (1970) (INSC 25).
7 Supra note 3.
8 Vinay Tyagi v. Irshad Ali and Deepak & Ors (2013) 5 SCC 762.
9 R.S. Sodhi, Advocate v. State of U.P. (1994 SCC Supp. (1) 142)
10 K. Chandrasekhar v. State of Kerala (1998) (5 SCC 223)
11 Ramachandran v. R. Udhayakumar (2008) (5 SCC 413)
12 Nirmal Singh Kahlon v State of Punjab & Ors. (2009) (1 SCC 441)
14 The Code of Criminal Procedure, 1973 – Section 156 (1),
Section 173 (8)
15 Rama Chaudhary v. State of Bihar (2009) (6 SCC 346)
16 Id 14.
17 Supra note 5.
18 H.N. Rishbud v. State of Delhi (AIR 1955 SC 196)
19 Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) (5 SCC 347)