[Crl Appeal No. 478-479/2017, decided on 16.10.2019]
A three-judge bench headed by Justice R.F. Nariman has set aside a 43 years old precedent. The bench held that even at the post-cognizance stage, a Magistrate can invoke power under Section 156(3) of the Code of Criminal Procedure. It was observed that in the said precedent, the definition of “investigation” under Section 2(h) of the CrPC was not referred to while passing the judgment. In the said judgment, it was held that the power under Section 156(3) can be exercised only at pre-cognizance stage. The bench in the present case held that this finding of the said case was erroneous. It was held in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 that:
“The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case.
That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied 27 in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1)”.
In the present case, the apex court observed only one distinction between the term “investigation” as defined in Section 2 (h) of the 1973 Criminal Procedure and as in Section 2 (l) of the 1898 Criminal Code. The difference is that after the 1973 Code came into force, the term “investigation” includes all the proceedings under the CrPC for collection of evidence conducted by a police officer. The expression “all” includes the proceedings under Section 173(8) of the Code as well. Therefore, 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). This should be done while keeping the definition of “investigation” contained in Section 2 (h) of the Code in mind.
While pointing out the flaws in the Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy case, the court said:
“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”.