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Vinubhai Haribhai Malviya & Ors Vs. State Of Gujarat: A Progressive Step Of The Supreme Court Of India By - Anshu Barak

‘Vinubhai Haribhai Malviya & Ors Vs. State Of Gujarat: A Progressive Step Of The Supreme Court Of India [1]

Authored By - Anshu Barak



Fair Trial should commence simply after an examination is itself reasonable and just. A definitive point of all investigation and inquiry, regardless of whether by the police or by the Magistrate, is to guarantee that the individuals who have perpetrated a crime are effectively punished, and the individuals who have not carried out a wrongdoing are not summoned to stand a trial. That this is the minimal procedural prerequisite that is the crucial necessity of Article 21 of India's Constitution and can't be questioned.

Section 156(3) of the Code of Criminal Procedure, 1973 [Cr.P.C.] deliberates powers upon a magistrate empowered under Section 190 of Cr.P.C. to order a police officer in charge of a police station to investigate any cognizable offence. The scope of Section 156(3) was always considered as pre-cognizance, which is apparent from the several judicial precedents stating that the power of the magistrate to order investigation under Section 156(3) is always pre-cognizance. The justification, for considering Section 156(3) as pre-cognizance only, was that the expression ‘taking cognizance’ was judicially interpreted by the courts to mean the ‘judicial application of mind’ by the magistrate with the purpose of proceeding under Section 200 and the succeeding sections of Chapter XV of Cr.P.C., and any other action in his judicial discretion such as ordering investigation under Section 156(3) of Cr.P.C. would be pre-cognizance only.

However, a Three Justices' Bench of the Supreme Court in Vinubhai Haribhai Malviya & Ors. v. State of Gujarat[2](“Vinubhai”)], held that a magistrate can order further investigation under Section 156(3) of the Cr.P.C. in the post-cognizance stage. The judgment has, although not unexpectedly, caused wide-spread confusion among criminal law practitioners with respect to the scope of Section 156(3), and it has also been criticised by some practitioners on grounds that it is conflicting to statutory provisions and recognized judicial precedent.

The current discussion with respect to the extent of Section 156(3) is to be seen with regards to the said judgment. At the very start, the preliminary issue that bears into mind is with respect to the topic of propriety of the said judgment, considering various restricting decisions from different courts including the Apex Court itself, which have just set out the purpose of law unmistakably on the topic. This examination expects to feature the tricky issue of of noncompliance of a celebrated judicial principle, which should be held getting looked at while articulating a judgment. This examination will contend that the said judgment is in opposition to the very structure of our legal framework which observes the common law tradition, where the past judgements of the Supreme Court of India under Article 141 and furthermore of High Courts, as Courts of Records, establishes the "Law of the Land" as points of reference which has restricting impact over all lower courts, and furthermore on the coordinate benches of the Apex Court and the High Courts.


This case ascends out of a First Information Report (hereinafter referred to as “FIR”) that was filed on 22.12.2009 by Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel. The FIR claims that Ramanbhai Patel and Shankarbhai Patel are complete and independent owners of this land, having attained it from one Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year 1975.The FIR then tells that because of a current price-hike of lands in the city of Surat, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have marked a plot in conspiracy with each other, and published a public notice under the description “Beware of Land-grabbers” in a local newspaper on 07.06.2008.

One-time subsequently, Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted Nitinbhai Patel (who lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya wanted an amount of Rs. 2.5 crores in order to “settle down” disputes in respect of this land.

It is said in the said FIR that apart from bidding to extort money from the said Nitinbhai Patel, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have used a bogus and false ‘Satakhat’ and Power-of-Attorney in respect of the said land, and had tried to take this land from its legitimate owners Ramanbhai and Shankarbhai Patel.

The issue conveys from application(s) documented by the accused persons before the judicial magistrate (First Class), Surat, (Magistrate) for further investigation hovering to extra realities that might have implicated the complainant.

The Magistrate dismissed the said application(s) seeing that the realities tried to be put by the blamed were in the nature for defense to the claims in the FIR by the first complainant and along these lines, the said facts and evidence(s) might be driven during the trial. The accused persons attacked the said request under the steady gaze of the High Court, wherein the High Court held that the Magistrate doesn't have any capacity to arrange further examination after a charge-sheet has been documented and Cognizance has been taken by the concerned judge.

The said order was challenged by way of an appeal by the accused persons under the authority of the Supreme Court (Appeal).


  1. Whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, after a police report has been forwarded to him under Section 173 and if so, up to what stage of a criminal proceeding?
  2. 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
  3. 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


According to the Supreme Court in paragraph 9, the question of law that arose in the case before it was whether, “after a chargesheet 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”.

Different benches of the Supreme Court had held contradictory views. Prior judgments had taken the view that the power u/s 173(8) bestowed only in the investigating agency and that a magistrate had no authority to order investigation under the sub-section.

Later, further judgments of the Supreme Court either followed the prior view or departed from it, the later holding that a magistrate did definitely have the power to order further investigation under Section 173 (8) CrPC after a police report was filed and further even after cognizance was taken on the said police report.

After a near thorough review of the disagreeing decisions, the Court in Malviya held in favour of the view that a magistrate had power to direct further investigation by an investigating agency post cognizance on a police report right up to the stage of framing of charge. In paragraph 38, the Court expressly overruled those decisions of the Apex Court that interpreted Section 173(8) CrPC restrictively. This determination of contradictory views by Malviya’s Bench is both wanted as it endorses certainty in the law, and faultless, as it certainly redounds in the interest of justice.

With the greatest respect to the Court, it has superfluously overruled a three-judge bench judgment in Devarapally Lakshminarayana Reddy v. V Narayana Reddy, and in paragraph 24, laid down the quite unsound proposition that the Bench in that case had made the “erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage.”

It is relevant to point out that the Bench in Malaviya was concerned only with the question whether post-cognizance a magistrate can direct further investigation under Section 173(8). Whether a magistrate exercising power under Section 156(3) was acting pre-cognizance or post-cognizance was not at all an matter in the case.

On the other hand, Devarapally’s judgment does not talks about Section 173(8) at all. It talks about the issue as to whether a magistrate dealing with a private complaint who felt that the matter required a police investigation could act under Section 156(3) and direct a police investigation or was bound to take cognizance of the complaint, examine the complainant on oath, and order an investigation under Section 202 CrPC.

The Court in Devarapally’s case held that either option was open to the magistrate, holding that the dissimilarity between the two sections was that an exercise of power under Section 156(3) was pre-cognizance and that under Section 202 was post-cognizance.

The justification on which Malaviya’s Bench questioned Devarapally’s view that Section 156(3) could only be exercised at the pre-cognizance stage is, with further respect, patently flawed. According to the Bench (Para 25),

“…. Thus, 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).”

Firstly, the words, “such an investigation” in Section 156(3) CrPC stems its hue from Section 156(1), and not just from the definition of “investigation” in Section 2(h) of the CrPC.

Secondly, it is stale to state that Section 156(3) and Section 173(8) operate at different phases of investigation. An order under Section 156 (3) starts an investigation because in consequence, it directs the police to register an FIR. Section 173(8) in contrary applies after the conclusion of an investigation, which is indicated by the filing of a police report (or chargesheet) under Section 173(2). Thus, Section 156(3) is unquestionably pre-cognizance as it activates an investigation, while Section 173(8) is unquestionably post-cognizance as it is projected to supplement a accomplished investigation.

Thirdly, the authority of the magistrate under Section 173(8) is not resultant from his power under Section 156(3), but is a discrete and independent power.


The court observed that the statutory scheme contained in CrPC therefore puts “inquiry” and “trial” in sealed partitions, as the very definition of “inquiry” demonstrates. “Investigation” is for the purpose of collecting evidence by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also relates to a stage before the trial begins. Investigation which eventually leads to a police report under CrPC is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in “complaint” cases. Article 21 of the Constitution of India also makes it vibrant that the procedure in criminal trials must, after the pivotal decision in Maneka Gandhi v. Union of India[3] be “right, just and fair and not arbitrary, fanciful or oppressive”.

The court relied on Pooja Pal v. Union of India[4] which is an significant judgment which states of the fundamental right under Article 21 of the Constitution in the background of the “speedy trial” being strengthened by “fair trial”. The Court put it thus:

“83. A “speedy trial”, albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in “fair trial”, both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial.”[5]

The court further observed that the Magistrate’s power under Section 156(3) CrPC is very extensive, he must be pleased that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police—which such Magistrate is to administer— Article 21 of the Constitution of India mandates that all powers important, which may likewise be accidental or suggested, are accessible to the Magistrate to guarantee a proper investigation which, without question, would incorporate the  ordering of further investigation after a report is gotten by him under Section 173(2); and which power would keep on resting in such Magistrate at all phases of the criminal procedures until the trial itself begins. Certainly, even textually, the “investigation” mentioned to in Section 156(1) CrPC would, as per the definition of “investigation” under Section 2(h), comprise all proceedings for collection of evidence steered by a police officer; which would unquestionably comprise proceedings by way of further investigation under Section 173(8) CrPC.

Hasanbhai Valibhai Qureshi v. State of Gujarat[6]  is a significant judgment which deals with the need for further investigation being balanced with the delaying of a criminal proceeding. If there is a requirement for further investigation when fresh facts come to light, then the interest of justice is principal and trumps the need to dodge any delay being caused to the proceeding.

The court lastly observed that there is no good justification given by the Court in these decisions as to why a Magistrate’s authority to order further investigation would swiftly cease upon process being issued and an accused appearing before the Magistrate, while alongside, the power of the police to further investigate the offence lasts right till the stage the trial begins.

What is not given any standing at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article strains no less than a fair and just investigation. It would also be in the interest of justice that this authority be exercised suo motu by the Magistrate himself, contingent on the facts of individual case.

If, for instance, fresh facts come to light which would lead to incriminating or acquitting certain persons, arriving at the certainty and doing substantial justice in a criminal case are more imperative than evading further delay being caused in finishing the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi[7]. Consequently, to the level that the judgments in Amrutbhai Shambhubhai Patel[8] , Athul Rao[9]  and Bikash Ranjan Rout[10]  have held to the conflicting, they stand overruled. Needless to enhance, Randhir Singh Rana v. State (Delhi Admn.[11])  and Reeta Nag v. State of W.B.[12] also position overruled.

By way of the facts, Specified the allegations in the statement of 15-3-2011, the court was of the opinion that this is not a case which demands for any further investigation into the facts alleged in the FIR lodged on 22-12-2009. Yet, having respect to what is stated by the learned Commissioner in the said letter, the court held that that the police be directed to record an FIR qua these facts, which requires to be investigated by a senior police officer designated by the Commissioner of Police concerned.


In Vinubhai, the issue of law that the Court had to resolve upon was, “whether a magistrate has the authority to order further investigation after a chargesheet is filed by the police”. The Court held that the magistrate had authority under Section 173(8) of Cr.P.C. to direct further investigation up to the point of framing of charges, and at the same time overruled those decisions of the Apex Court, which construed the powers under Section 173(8) in a limiting style and thus providing funding to a latest decision of the Court, which interpreted the authority under Section 173(8) to allow the magistrate to order further investigation after a police report was lodged and cognizance was taken upon the said police report.

This was a positive advance taken by the Bench in the improvement of law through legal understanding, as it settled clashing perspectives given by the Court in the past to advance sureness of law, and assisted the interest of justice because of liberal interpretation. The judgment empowers real candidates to demand for further investigation, and this would likewise prompt a decrease in multiple First Information Reports (FIRs) being documented. Notwithstanding, it should likewise be noticed that the judgment additionally empowers the accused persons and other parties in a criminal proceeding, with the capacity to defer and crash the proceedings by filing applications requesting for further investigation to happen, and these orders under Section 173(8) will be subject to appeals which will habitually result in postponements of the criminal proceedings causing severe harm either to the accused or to the victim. 


Flawed Interpretation of Section 156(3)

Section 156(1) supersedes Section 2(h) with respect to interpretation of the scope of application of Section 156(3) of Cr.P.C.

Vinubhai has formed adversative currents in criminal jurisprudence, which is the outcome of the Bench mistakenly observing that the magistrate’s power to order investigation under Section 156(3) is post-cognizance, and in doing so, the Bench has overruled a prior judgment of the Apex Court in Devarapally Lakshminarayana Reddy v. V. Narayana Reddy[13]  “Devrapally” and so many other judgments, which had paved the scheme that the power under Section 156(3) of Cr.P.C. can be raised only at a pre-cognizance stage.

The bare reading of the provision also plainly reads that it is pre-cognizance and not post-cognizance. The first and prime rule of construction of statues visibly positions that if the plain reading of the statute is clear-cut, then the courts should go by the plain reading and not read elsewhere the text of the statute. The interpretation provided in Malviya is conflicting to the legislative intent, which is apparent from the language hired in Section 156(3). Section 156(3) engages the language, “such an investigation as mentioned above” to induces reference to the scope of application of the term ‘investigation’, which is given in the Section 156(1) of Cr.P.C.

Nonfulfillment of the Principle of Stare Decisis in reference to the expression ‘taking cognizance of an offence’

The Bench in Vinubhai could have evaded the flawed interpretation with respect to the scope of Section 156(3) of Cr.P.C., if it would have comprehensively considered the judicial precedents, including Devrapally, pondering upon the expression ‘taking cognizance’, then it would have appreciated that the earlier decisions on the subject matter are flagged as courts have always expressly construed the authority of the magistrate to order investigation under Section 156(3) to be pre-cognizance only. This is since a magistrate ‘takes cognizance’ of an offence when he applies his mind for the purposes of proceeding under Section 200 and the subsequent sections in Chapter XV of Cr.P.C., and only then can he be said to have taken cognizance of the offence within the meaning of Section 190(1)(a). Nevertheless, if the magistrate takes any other action in his judicial discretion, as a replacement for of proceeding under Chapter XV of Cr.P.C., then he cannot be said to have taken cognizance.


The outcome of the above discussion can be abridged as follows:

  • That the final deduction in Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat and Anr. is unobjectionable;
  • That, nevertheless, the Bench’s conclusion that the power under Section 156(3) could be exercised at the post- cognizance stage and that the Devarapally Lakshminarayana Reddy judgment cannot be depend on upon, set out in para 26 of the judgment, is per incuriam and flawed;
  • That in any occurrence, the outcome in para 26 is not the ratio decidendi of the case and is pure obiter. The law in Devarapally’s case thus remains to embrace the field.

It is also submitted that Vinubhai has eroded the principle of ‘Stare Decisis’, which is the underpinned upon which the common law tradition exists. The Bench in Vinubhai overruled the number of judgments which followed Devarapally. Now, one could contend that the Bench was not improper in superseding the number of judgments as the bench strength was higher in Vinubhai, nevertheless that logic stands accurate only if the Malviya judgment overruled Devarapally judgment which is not the case as the former is a per incuriam judgment with respect to the question of scope of Section 156(3) of Cr.P.C., and Devarapally also enjoys backing from R.R. Chari which is one more three-judge bench judgment, which held that Section 156(3) is pre-cognizance only.

The lower courts can still follow the decision in Devarapally despite Vinubhai being a more recent judgment on the ground that the latter is per incuriam as it did not scrutinize the scope of Section 156(3) in the framework of judicial precedents relating to the expression ‘taking cognizance’, which is of vital importance when determining whether the scope of Section 156(3) is pre-cognizance or post-cognizance. It would be practical to settle the present discussion on the theme that the cardinal principle of the law of precedents is that the superior courts, particularly the Apex Court and the High Courts, should settle questions of law in a reliable manner so that the law of precedents reaches some degree of safe bet, and adherence of law is ensured.


[1] Vinubhai Haribhai Malviya & Ors v. State of Gujarat & Another, (2019) 17 SCC; 2019 SCC OnLine SC 1346

[2] Criminal Appeal Nos. 478-479 of 2017, decided on 16.10.2019.

[3] Maneka Gandhi v. Union of India, (1978) 1 SCC 248, Para 7

[4] Pooja Pal v. Union of India, (2016) 3 SCC 135 : (2016) 1 SCC (Cri) 743]

[5] SCC pp. 175-76, paras 83 & 86

[6] Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603

[7] [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603

[8] Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331]

[9] Athul Rao v. State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri) 594

[10] Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613

[11] Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361

[12] Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051]

[13] 1976 AIR 1672


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