The Hon’ble Supreme Court in its recent judgement in the case of Vinubhai Haribhai Malaviya & Ors. v. The State of Gujarat and Anr., held that a Magistrate has power to order further investigation into an offence under Section 156(3) of the Code of Criminal Procedure post cognizance until the commencement of trial. The decision of the Supreme Court laid to rest the hitherto lingering ambiguity around the issue.

The issue before the court was whether after a charge sheet is filed, the magistrate has the power to order further investigation and if yes, up to what stage of criminal proceeding.

After a rigorous examination of judicial precedents and statutory provisions of the Code of Criminal Procedure[hereinafter, “Code”], and placing a heavy reliance on the constitutional guarantee of a ‘fair, just and reasonable’ trial, the bench held that the magistrate is so empowered. To hold otherwise would be to deny the spirit and scheme of the Code.

Judicial Precedents on Further Investigation

Different benches of the Supreme Court have held differently regarding the power of the magistrate to order further investigation under Section 173(8). The decision of the Supreme Court in the present case is in line with the precedent set in Vinay Tyagi v. Irshad Ali & Ors., amongst other cases. The bench expressly overruled other cases (viz. Amrutbhai Shambubhai Patel, Athul Rao, Bikash Ranjan Rout, etc.) where the SC had taken a restrictive view of the powers of a magistrate under Section 173(8), thus concretising the law in this respect.

Another important case discussed by the bench, which has sent great ripples in the fraternity, is that of Devarapalli Lakshminarayana Reddy. The Supreme Court, in that case, had discussed Section 202 and Section 156 of the Code to hold that the only difference between the powers exercised under the two provisions is that the former is post cognizance, while the latter is pre-cognizance. Reddy’s case did not deal with the question of whether a magistrate is empowered under Section 173(8) to order further investigation. The question was, whether in a case instituted based on a private complaint, the magistrate was required to first take cognisance under Section 202 and then order police investigation, or he could directly order an investigation under Section 156(3). The court held that the magistrate is free to avail either of the options.

Reasoning of the Supreme Court

The Supreme Court relied heavily on the requirements of Article 21 as laid down in the Constitution. The court held –

“To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left.”

The bench traced the power of the magistrate to order further investigation to Section 156(1) read with Section 156(3), and Section 173(8) read with Section 2(h). It held that since the definition of “investigation” includes all proceedings under the Code for the collection of evidence conducted by a police officer, it would include proceedings under Section 173(8) as well. The court then traced the power of the magistrate to order investigation back to Section 156(3) and Section 190.

There has been a certain level of discontent with the decision of the Supreme Court as firstly, the decision unnecessarily dabbles with Section 156 to hold that the phrase ‘such an investigation’ under S. 156(3) derives its colour from S. 2(h) and not Section 156(1). Secondly, the issue before the court was restricted to a magistrate’s power to order ‘further investigation’ under S. 173(8), which the case of Devarapalli Lakshminarayana did not indulge in. This would render the court’s discontent with the bench’s decision in that case merely obiter.


The Honourable bench relied heavily on Article 21 and its ‘hovering omnipresence’ over the Code, which should be the guiding principle of all its provisions, to ensure a just & fair trial. The court analysed judgements dating back to 1980 to reason the need for empowering a magistrate to order post-cognizance investigation.

Emphasising on unrestricted powers of the investigating agency under Section 173(8), the Court traced the magisterial power’s authorisation back to Section 156 as the supervision of the Court is considered a must for a free and fair trial.  The bench relied on a 2008 judgement arising in the case of Sakiri Vasu v. State of UP & Ors. to state that –

“…the Magistrate’s power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place… Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2)…”.

However, the case of Devarapalli Lakshminarayana dealt with a different scenario and different issues of law altogether (as discussed above), rendering the relevance questionable.

The judgement of the court in the case of Haribhai Malviya assumes great significance as it furthers the constitutional mandate under Article 21, and is in line with the spirit of the Code. The judgements overruled by the bench, which adopted a narrow view of the powers of a magistrate, hampered the process of law. With the bench explicitly overruling those judgements, the position of law is in the clear and in consonance with the spirit of India’s criminal justice system.


Indubitably, the Supreme Court’s exhaustive examination of conflicting views on the issue of a magistrate’s power under Section 173(8) has laid to rest hitherto prevalent anxieties. The decision to hold the magistrate empowered is in line with the requisites of Article 21- to ensure a just and fair investigation and the scheme of the Code itself. To hold otherwise would indeed be a travesty of justice.

However, the court’s obiter around the issue of Section 156(3) and the magistrate’s powers arising therefrom is likely to lead to more haze around the provision. Concomitantly, the Supreme Court concretised the law around Section 173(8) which is of great significance.

In the writer’s opinion, currently, both judgements stand good in law. The situation created by the bench’s judgement is likely to be chaotic with respect to the scope of Section 156(3). To avoid situations of disorder, it would help to interpret Section 156 to include powers to be exercised at the pre-cognizance stage by the magistrate. Authority of the magistrate to order ‘further investigation’ should be read into Section 173(8) of the Code, as exhaustively reasoned by the Hon’ble court.

The Supreme Court’s decision empowering the magistrates is likely to ensure fair investigations, with the possibility of even rectifying a flawed run. Even as this is likely to increase the burden of courts with challenges and counter-challenges being filed against such decisions, it is in the interest of justice to ensure that the supervisory jurisdiction of the magistrate is pervasive.

About the Author: Mitakshara [2019-24] is pursuing B.A.LL.B (Hons) NALSAR University of Law, Hyderabad.

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