# VINUBHAI HARIBHAI MALAVIYA AND ORS v. THE STATE OF GUJARAT AND ANR

- **Citation:** [2019] 15 S.C.R. 936
- **Court:** Supreme Court of India
- **Decided:** 2019-10-16
- **Case number:** Criminal Appeal Nos.478-479 of 2017
- **Bench:** R. F. Nariman, Surya Kant, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vinubhai-haribhai-malaviya-and-ors-v-the-state-of-gujarat-and-anr-33895
- **Pages:** 54

## Headnote

Code of Criminal Procedure, 1973 - ss. 156(1)(3) and 173(8)
- The High Court held that the Magistrate does not possess any
power to order a further investigation after a charge-sheet is filed
and cognizance is taken - Propriety of - Held: Not proper - The
Magistrate's power u/s. 156(3) of the CrP.C. is very wide, for it is
this judicial authority that must be satisfied 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 supervise -
Art.21 of the Constitution 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 u/s.173(2); and which power would continue to
ensure in such Magistrate at all stages of the Criminal Proceedings
until trial itself commences - Further, the "investigation" referred
to in s.156(1) of the CrPC would, as per definition of
"investigation" u/s.2(h), include all proceedings for collection of
evidence conducted by a police officer; which would undoubtedly
include proceedings by way of further investigation u/s.173(8) of
the Cr.P.C - Constitution of India - Art. 21.
Code of Criminal Procedure, 1973 - ss.156(1)(3),173(8) -
Penal Code, 1860 - ss. 420, 465, 467, 468, 471, 384 & 571 - After
a Police Report - Power of Magistrate to further investigate - A
FIR was lodged by a power-of-attorney holder of 'R' and 'S' who
were allegedly residing at 'UK or USA' - The FIR narrated that 'R'
and 'S' were independent owners of a agricultural land - It was
alleged that heirs of one 'B', from whom 'R' and 'S' had obtained
the said agricultural land, along with 'V' had hatched a conspiracy
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and were attempting to extort money from the power-of-attorney
holder of 'R' and 'S' and had tried to grab the said land -
Investigation was conducted and charge-sheet was filed -
Magistrate took cognizance and issued summons to the accused
regarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 of
IPC - Accused persons filed applications for further investigation
u/s.173(8) of the Cr.P.C and discharge - Magistrate dismissed the
applications - Application by accused to register an FIR or for the
Magistrate to order investigation u/s. 156(3) was also rejected -
Separate Criminal Revisions for dismissal by Magistrate of further
investigation and order rejecting FIR were filed - Second
Additional Session Judge went through the application u/s.173(8)
and held that a case was made out for further investigation - The
High Court held that the Magistrate does not possess any power to
order further investigation after a charge-sheet is filed and
cognizance is taken - On appeal, held: There is no warrant for
such a narrow and restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to s.156(3) r/w.
s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be available
at all stages of the progress of a criminal cases before the trial
actually commences - Whether further investigation should or should
not be ordered is within the discretion of the Magistrate who will
exercise such discretion on the facts of each case and in
accordance with law - In the instant case, the facts alleged in the
application for further investigation were facts which pertained to
revenue entries made in favour of 'R' and 'S' and how their claim
was false and bogus - Therefore, the facts alleged in the
applications for further investigation were in the nature of
cross-FIR which was not registered - Further, the Commissioner of
the Revenue doubted the order passed by the Revenue Authority
and he also stated that one application was filed by widow of 'B' in
the 2000, who had passed away in the year 1999 which showed
that her signature were prima facie for

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SUPREME COURT REPORTS
[2019] 15 S.C.R.
 VINUBHAI HARIBHAI MALAVIYA AND ORS.
v.
THE STATE OF GUJARAT AND ANR.
(Criminal Appeal Nos.478-479 of 2017)
OCTOBER 16, 2019
[R. F. NARIMAN, SURYA KANT AND
V. RAMASUBRAMANIAN, JJ.]
Code of Criminal Procedure, 1973 - ss. 156(1)(3) and 173(8)
- The High Court held that the Magistrate does not possess any
power to order a further investigation after a charge-sheet is filed
and cognizance is taken - Propriety of - Held: Not proper - The
Magistrate's power u/s. 156(3) of the CrP.C. is very wide, for it is
this judicial authority that must be satisfied 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 supervise -
Art.21 of the Constitution 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 u/s.173(2); and which power would continue to
ensure in such Magistrate at all stages of the Criminal Proceedings
until trial itself commences - Further, the "investigation" referred
to in s.156(1) of the CrPC would, as per definition of
"investigation" u/s.2(h), include all proceedings for collection of
evidence conducted by a police officer; which would undoubtedly
include proceedings by way of further investigation u/s.173(8) of
the Cr.P.C - Constitution of India - Art. 21.
Code of Criminal Procedure, 1973 - ss.156(1)(3),173(8) -
Penal Code, 1860 - ss. 420, 465, 467, 468, 471, 384 & 571 - After
a Police Report - Power of Magistrate to further investigate - A
FIR was lodged by a power-of-attorney holder of 'R' and 'S' who
were allegedly residing at 'UK or USA' - The FIR narrated that 'R'
and 'S' were independent owners of a agricultural land - It was
alleged that heirs of one 'B', from whom 'R' and 'S' had obtained
the said agricultural land, along with 'V' had hatched a conspiracy
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and were attempting to extort money from the power-of-attorney
holder of 'R' and 'S' and had tried to grab the said land -
Investigation was conducted and charge-sheet was filed -
Magistrate took cognizance and issued summons to the accused
regarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 of
IPC - Accused persons filed applications for further investigation
u/s.173(8) of the Cr.P.C and discharge - Magistrate dismissed the
applications - Application by accused to register an FIR or for the
Magistrate to order investigation u/s. 156(3) was also rejected -
Separate Criminal Revisions for dismissal by Magistrate of further
investigation and order rejecting FIR were filed - Second
Additional Session Judge went through the application u/s.173(8)
and held that a case was made out for further investigation - The
High Court held that the Magistrate does not possess any power to
order further investigation after a charge-sheet is filed and
cognizance is taken - On appeal, held: There is no warrant for
such a narrow and restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to s.156(3) r/w.
s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be available
at all stages of the progress of a criminal cases before the trial
actually commences - Whether further investigation should or should
not be ordered is within the discretion of the Magistrate who will
exercise such discretion on the facts of each case and in
accordance with law - In the instant case, the facts alleged in the
application for further investigation were facts which pertained to
revenue entries made in favour of 'R' and 'S' and how their claim
was false and bogus - Therefore, the facts alleged in the
applications for further investigation were in the nature of
cross-FIR which was not registered - Further, the Commissioner of
the Revenue doubted the order passed by the Revenue Authority
and he also stated that one application was filed by widow of 'B' in
the 2000, who had passed away in the year 1999 which showed
that her signature were prima facie forged - Therefore, it does not
call for further investigation into the facts alleged in the FIR
already filed - However, considering the letter of the Commissioner
and other facts, police directed to register an FIR qua facts - Thus,
the judgment of the High Court insofar it stated that
post-cognizance the Magistrate is denuded of power to order
further investigation set aside.
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
STATE OF GUJARAT AND ANR.
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Code of Criminal Procedure, 1973 - Constitution of India -
Art. 21 - Fair trial and fair investigation - Held: A fair trial must
kick-off only after an investigation is itself fair and just - The
ultimate aim of all investigation and inquiry whether by the police
or by the Magistrate, is to ensure that those who have not are not
arraigned to stand trial - That this is the minimal procedural
requirement that is the fundamental requirement of Art. 21 of
Constitution cannot be doubted - It is the hovering omnipresence
of Art. 21 over the Cr.P.C that must needs inform the interpretation
of all the provisions of the Cr.P.C, so as to ensure that Art. 21 is
followed both in letter and in spirit.
Disposing of the appeals, the Court
HELD: 1. With the introduction of Section 173(8) in the
Code of Criminal Procedure, 1973 the police department has been
armed with the power to further investigate an offence even after
a police report has been forwarded to the Magistrate. Quite
obviously, this power continues until the trial can be said to
commence in a criminal case. The vexed question was as to
whether the Magistrate can order further investigation after a
police report has been forwarded to him under Section 173.
[Para 19] [956-E]
2. 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. 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
supervise - 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); and which power would continue to enure in such
Magistrate at all stages of the criminal proceedings until the trial
itself commences. Indeed, even textually, the "investigation"
referred to in Section 156(1) of the CrPC would, as per the
definition of "investigation" under Section 2(h), include all
proceedings for collection of evidence conducted by a police
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officer; which would undoubtedly include proceedings by way of
further investigation under Section 173(8) of the CrPC.
[Para 23] [960-D-F]
3. In Union Public Service Commission v. S. Papaiah this
Court dealt with a case in which the Central Bureau of
Investigation had submitted a closure report. It then quoted from
a Three Judge Bench judgment in Bhagwant Singh v.
Commissioner of Police and Anr. in which this Court stated that
a Magistrate, in dealing with a report from the police under Section
173, can adopt one of three courses - (1) he may accept the report
and drop the proceedings; or (2) he may disagree with the report,
take cognizance of the offence and issue process; or (3) he may
direct further investigation to be made by the police under Section
156(3). The Court then went on to hold that where objections
have been furnished by the complainant, i.e. the Union Public
Service Commission, against the closure report of the police,
the Magistrate could, in exercise of powers under Section 173(8)
of the CrPC, direct the CBI to further investigate the case and
collect further evidence keeping in view the objections raised by
the complainant. [Para 28] [965-C-E]
4. There is no good reason given by the Court in the
decisions in Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai
Patel, Athul Rao v. State of Karnataka and Anr. and Bikash Ranjan
Rout v. State through the Secretary (Home), Government of NCT
of Delhi as to why a Magistrate's powers to order further
investigation would suddenly cease upon process being issued,
and an accused appearing before the Magistrate, while
concomitantly, the power of the police to further investigate the
offence continues right till the stage the trial commences. Such a
view would not accord with the earlier judgments of this Court,
in particular, Sakiri, Samaj Parivartan Samudaya, Vinay Tyagi and
Hardeep Singh; Hardeep Singh having clearly held that a criminal
trial does not begin after cognizance is taken, but only after
charges are framed. What is not given any importance at all in
the recent judgments of this Court is Article 21 of the Constitution
and the fact that the Article demands no less than a fair and just
investigation. To say that a fair and just investigation would lead
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
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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 out.
There is no warrant for such a narrow and restrictive view of the
powers of the Magistrate, particularly when such powers are
traceable to Section 156(3) read with Section 156(1), Section 2(h),
and Section 173(8) of the CrPC, as has been noticed hereinabove,
and would be available at all stages of the progress of a criminal
case before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is within
the discretion of the learned Magistrate who will exercise such
discretion on the facts of each case and in accordance with law. If,
for example, fresh facts come to light which would lead to
inculpating or exculpating certain persons, arriving at the truth
and doing substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding the criminal
proceeding, as was held in Hasanbhai Valibhai Qureshi. Therefore,
to the extent that the judgments in Amrutbhai Shambubhai Patel,
Athul Rao and Bikash Ranjan Rout have held to the contrary,
they stand overruled. Needless to add, Randhir Singh Rana v.
State (Delhi Administration) and Reeta Nag v. State of West
Bengal and Ors. also stand overruled. [Para 38] [985-G-H; 986A-G]
5. When this Court comes to the facts of this case, it is
clear that the FIR dated 22.12.2009 is concerned with two criminal
acts, namely, the preparing of fake and bogus 'Satakhat' and
Power-of-Attorney in respect of the agricultural land in question,
and the demanding of an amount of Rs. 2.5 crores as an attempt
to extort money by the accused persons. The facts that are alleged
in the application for further investigation are facts which pertain
to revenue entries having been made in favour of 'R' and 'S' and
how their claim over the same land is false and bogus.
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Respondents are therefore, right in submitting that the facts
alleged in the applications for further investigation are really in
the nature of a cross-FIR which has never been registered. In
fact, the communication of the Commissioner of Revenue, dated
15.03.2011 to the Collector, - so strongly relied upon by appellants
- bears this out. In this communication, the Commissioner doubts
that a particular order dated 14.04.1976 passed by a revenue
authority ever existed, and that by making an application in the
name of the long since deceased 'B' in 2010, for getting a copy of
Form No.3 would, prima facie, amount to a criminal offence.
Further, the Commissioner goes on to state that B's widow, who
had passed away in December 1999, could not possibly have made
an application in the year 2000; which shows that her signature is
also prima facie forged. Further, the said 'R' and 'S' Patel are at
present 48 and 53 years old, and if they could be said to be in
possession of the said agricultural land since 1934, they could be
said to be in possession at a time when they were not yet born.
Further, since these two gentlemen were abroad from the very
beginning, it is stated that they could not possibly be farmers
cultivating agricultural land. [Para 41] [987-F-H; 988-A-D]
6. Given the allegations in the communication of 15.03.2011,
this Court is of the view that this is not a case which calls for any
further investigation into the facts alleged in the FIR lodged on
22.12.2009. Yet, having regard to what is stated by the
Commissioner in the said letter, this Court is of the view that the
police be directed to register an FIR qua these facts, which needs
to be investigated by a senior police officer nominated by the
concerned Commissioner of Police. [Para 42] [988-G-H; 989-A]
Pooja Pal v. UOI (2016) 3 SCC 135 : [2016] 11 SCR
560; State of Bihar v. J.A.C. Saldhana and Ors. (1980)
1 SCC 554 : [1980] 2 SCR 16 ; Sakiri Vasu v. State of
U.P. and Ors. (2008) 2 SCC 409 : [2007] 12 SCR
1100 ; Ram Lal Narang v. State (Delhi Administration)
(1979) 2 SCC 322 ; H.N. Rishbud v. State of Delhi
AIR 1955 SC 196 : [1955] SCR 1150 ; Union Public
Service Commission v. S. Papaiah (1997) 7 SCC 614 :
[1997] 4 Suppl. SCR 56; Bhagwant Singh v.
Commissioner of Police and Anr. (1985) 2 SCC 357:
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
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[1985] 3 SCR 942; Hasanbhai Valibhai Qureshi v. State
of Gujarat and Ors. (2004) 5 SCC 347 : [2004] 3 SCR
762 ; Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC
536 : [2001] 1 Suppl. SCR 646 ; Gulzar Ahmed Azmi v.
Union of India and Ors. (2012) 10 SCC 731 : [2012]
9 SCR 287 ; Vinay Tyagi v. Irshad Ali and Ors. (2013)
5 SCC 762 : [2012] 13 SCR 1005 - relied on.
Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai
Patel (2017) 4 SCC 177 : [2017] 4 SCR 105 ; Athul
Rao v. State of Karnataka and Anr. (2018) 14 SCC
298 ; Bikash Ranjan Rout v. State through the Secretary
(Home), Government of NCT of Delhi (2019) 5 SCC
542 ; Randhir Singh Rana v. State (Delhi Administration)
(1997) 1 SCC 361 : [1996] 10 Suppl. SCR 880 ;
Reeta Nag v. State of West Bengal and Ors. (2009) 9
SCC 129 : [2009] 13 SCR 276 - overruled.
Devarapalli Lakshminarayana Reddy & Ors. v.
V. Narayana Reddy & Ors. (1976) 3 SCC 252 :
[1976] Suppl. SCR 524 - held not correct law.
Union of India and Anr. v. W.N Chadha (1993) Suppl.
4 SCC 260 : [1992] 3 Suppl. SCR 594; Smt. Nagawwa
v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3
SCC 736 : [1976] Suppl. SCR 123; Prabha Mathur
and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC
469 : [2008] 13 SCR 1086 ; Narender G. Goel v. State
of Maharashtra (2009) 6 SCC 65 : [2009] 8 SCR
1004 ; Dinubhai Bhogabhai Solanki v. State of Gujarat
& Ors. (2014) 4 SCC 626 : [2014] 3 SCR 932
- distinguished.
Babubhai v. State of Gujarat & Ors. (2010) 12 SCC
254 : [2010] 10 SCR 651 ; Romila Thapar v. Union of
India, (2018) 10 SCC 753 : [2018] 11 SCR 951 -
held inapplicable.
Mrs. Maneka Gandhi v. Union of India & Anr. (1978)
1 SCC 248 : [1978] 2 SCR 621; Commissioner of
Police, Delhi v. Registrar, Delhi High Court, New Delhi
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(1996) 6 SCC 323 : [1996] 7 Suppl. SCR 432;
Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC
91 : [1979] 2 SCR 717; Tula Ram & Ors. v. Kishore
Singh (1977) 4 SCC 459 : [1978] 1 SCR 615 ; Hardeep
Singh v. State of Punjab and Ors. (2014) 3 SCC 92 :
[2014] 2 SCR 1 ; Common Cause v. Union of India
(1996) 6 SCC 775 : [1996] 9 Suppl. SCR 296 ; King
Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 -
referred to.
Case Law Reference
[1978] 2 SCR 621
referred to
Para 16
[1996] 7 Suppl. SCR 432
referred to
Para 16
[2016] 11 SCR 560
relied on
Para 18
[1979] 2 SCR 717
referred to
Para 20
[1980] 2 SCR 16
relied on
Para 22
[2007] 12 SCR 1100
relied on
Para 22
[1976] Suppl. SCR 524
held not correct law
Para 24
[1978] 1 SCR 615
referred to
Para 24
(1979) 2 SCC 322
relied on
Para 27
[1955] SCR 1150
relied on
Para 27
[1997] 4 Suppl. SCR 56
relied on
Para 28
[1985] 3 SCR 942
relied on
Para 28
[2004] 3 SCR 762
relied on
Para 29
[2001] 1 Suppl. SCR 646
relied on
Para 30
[2012] 9 SCR 287
relied on
Para 32
[2012] 13 SCR 1005
relied on
Para 33
[2014] 2 SCR 1
referred to
Para 34
[1996] 9 Suppl. SCR 296
referred to
Para 34
[2017] 4 SCR 105
overruled
Para 38
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
STATE OF GUJARAT AND ANR.
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(2018) 14 SCC 298
overruled
Para 38
(2019) 5 SCC 542
overruled
Para 38
[1996] 10 Suppl. SCR 880
overruled
Para 38
[2009] 13 SCR 276
overruled
Para 38
AIR 1945 PC 18
referred to
Para 39
[1992] 3 Suppl. SCR 594
distinguished
Para 40
[1976] Suppl. SCR 123
distinguished
Para 40
[2008] 13 SCR 1086
distinguished
Para 40
[2009] 8 SCR 1004
distinguished
Para 40
[2014] 3 SCR 932
distinguished
Para 40
[2010] 10 SCR 651
held inapplicable
Para 40
[2018] 11 SCR 951
held inapplicable
Para 40
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 478-479 of 2017
From the Judgment and Order dated 05.08.2013 of the High Court
of Gujarat at Ahmedabad in Criminal Revision Application No. 44 of
2012 with Criminal Misc. Application No. 1746 of 2012
Dushyant Dave, Sr. Adv., Nachiketa Joshi, Aniket Seth, Niraj
Malaviya, Mohd. Asad Khan, Ms. Sucheta Joshi, Ms. Himadri Maksar,
Advs. for the Appellants.
Basant R., Vinay Navare, Sr. Advs., Ms. Hemantika Wahi,
Aniruddha P. Mayee, Sunil Kumar Verma, Manu Krishnan G., Shariq
Ahmed, Ms. Gwen Karthika, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. This case arises out of a First Information Report (hereinafter
referred to as "FIR") that was lodged on 22.12.2009. The FIR is by one
Nitinbhai Mangubhai Patel, Power-of-Attorney holder of Ramanbhai
Bhagubhai Patel and Shankarbhai Bhagubhai Patel, who are allegedly
residing at "UK or USA". The gravamen of the complaint made in the
FIR is that one Vinubhai Haribhai Malaviya is blackmailing these two
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gentlemen with respect to agricultural land which is just outside the city
of Surat, Gujarat and which admeasures about 8296 square meters. The
FIR alleges that Ramanbhai Patel and Shankarbhai Patel are absolute
and independent owners of this land, having obtained it from one
Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year
1975. The FIR then narrates that because of a recent 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
hatched a conspiracy in collusion with each other, and published a public
notice under the caption "Beware of Land-grabbers" in a local newspaper
on 07.06.2008. Sometime thereafter, Vinubhai Haribhai Malaviya then
contacted an intermediary, who in turn contacted Nitinbhai Patel (who
lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya
demanded an amount of Rs. 2.5 crores in order to "settle" disputes in
respect of this land. It is alleged in the said FIR that apart from attempting
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 fake and bogus 'Satakhat' and Powerof-Attorney in respect of the said land, and had tried to grab this land
from its lawful owners Ramanbhai and Shankarbhai Patel.
2. The background to the FIR is the fact that one Khushalbhai
was the original tenant of agricultural land, bearing Revenue Survey
No.342, admeasuring 2 Acres, 2 Gunthas, situated at Puna (Mauje),
Choriyasi (Tal), District Surat. Khushalbhai died, after which his son
Bhikhabhai became tenant in his place. Bhikhabhai in turn died on
23.12.1984 and his wife Bhikiben died on 18.12.1999. A public notice
dated 07.06.2008 was issued in 'Gujarat Mitra' and 'Gujarat Darpan
Dainik' by the heirs of Bhikhabhai, stating that Ramanbhai and
Shankarbhai Patel are land-grabbers, and are attempting to create thirdparty rights in the said property. This led to the legal heirs of Bhikhabhai,
through their Power-of-Attorney holder, applying on 12.06.2008 to the
Collector, Nanpura (Surat), to cancel revenue entries that were made
way back in 1976.
3. Pursuant to the filing of the FIR, investigation was conducted
by the police, which resulted in a charge-sheet dated 22.04.2010 being
submitted to the Judicial Magistrate (First Class), Surat. On 23.04.2010,
the said Magistrate took cognizance and issued summons to the accused
regarding offences under Sections 420, 465, 467, 468, 471, 384 and 511
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
STATE OF GUJARAT AND ANR. [R.F. NARIMAN, J.]
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of the Indian Penal Code, 1860 (hereinafter referred to as "IPC").
Pursuant to the summons, the accused appeared before the said
Magistrate. On 10.06.2011, an application (Exhibit 28) was filed by
Accused No.1 Vinubhai Haribhai Malaviya for further investigation under
Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "CrPC") and another application (Exhibit 29) for discharge.
Likewise, on 14.06.2011, applications for further investigation (Exhibit
31) and for discharge (Exhibit 32) were filed by accused 2 to 6. By an
order dated 24.08.2011, the Magistrate dismissed the applications that
were filed for further investigation (i.e. Exhibits 28 and 31), stating that
the facts sought to be placed by the applicants were in the nature of
evidence of the defence that would be taken in the trial. Likewise, on
21.10.2011 the learned Magistrate also rejected the discharge applications
that were made (i.e. Exhibits 29 and 32).
4. Meanwhile, on 26.07.2011, Criminal Miscellaneous Application
No.816 of 2011 was moved by Vinubhai Haribhai Malaviya and the
other accused to register an FIR, or for the Magistrate to order
investigation under Section 156(3) of the CrPC into the facts stated in
their applications. This was rejected by the learned Magistrate by an
order dated 09.09.2011.
5. Separate criminal revision applications were filed before the
Sessions Court, Surat, being Revision Application Nos. 376 and 346 of
2011, insofar as the dismissal by the learned Magistrate of further
investigation and the order rejecting registration of the FIR were
concerned. Both these revision applications were decided by the learned
Second Additional Sessions Judge, Surat by a common order dated
10.01.2012. By this order, the learned Second Additional Sessions Judge
went into details of facts that were alleged in the application under Section
173(8) and found that a case had been made out for further investigation.
Accordingly, he held:
"As per the above referred discussion, it can be seen that no
effective investigation or discussions have been carried out in all
these respect during in the course of the investigation of said
offence and further, it is very noteworthy here that matters for
which the prayers are made in these Revision Applications, all
these matters are pertaining to the complaint of this case. Hence,
it is very much necessary that for the purpose of carrying out a
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detailed and full investigation of this complaint, all these matters
should also be investigated. But for the said purpose, it is not
necessary that a separate complaint be registered and thereafter
its investigation be carried out. But by covering this investigation
also in the complaint of the present matter, if it is found out in such
investigation that any offence was committed, then appropriate
criminal proceedings can be initiated against such person."
6. Pursuant to this order, the investigation was handed over to
Investigating Officer R.A. Munshi (hereinafter referred to as "IO
Munshi") on 06.03.2012, who then submitted two further investigation
reports - one within three days, dated 09.03.2012 and a second one
dated 10.04.2012, in which the IO Munshi went into the facts mentioned
in the 173(8) applications that were filed. On 13.06.2012, the original
accused withdrew Special Criminal Application No.727 of 2012 filed in
the High Court, which was filed challenging the order by which the
learned Revisional Court had confirmed the order rejecting the discharge
applications, with liberty to move an appropriate application for discharge
before the Magistrate. The High Court heard Criminal Revision
Application No.44 of 2012 together with Criminal Miscellaneous
Application No.1746 of 2012, and arrived at the conclusion that, as a
matter of law, the Magistrate does not possess any power to order further
investigation after a charge-sheet is filed and cognizance is taken. The
High Court further castigated IO Munshi, holding that the furnishing of
interim investigation reports, not through a special public prosecutor and
not to the Magistrate, but to the Additional Sessions Judge himself smacks
of mala fides, as if IO Munshi wanted to oblige and/or favour the accused
persons. The High Court further found that the two interim investigation
reports virtually acquitted the accused persons, and therefore, the High
Court set aside the judgment of the learned Second Additional Sessions
Judge dated 10.01.2012, and consequently, the two further interim
investigation reports. So far as Criminal Revision Application No.346 of
2011 (which was disposed of by the learned Second Additional Sessions
Judge without considering merits, in light of its order in Criminal Revision
Application No.376 of 2011) was concerned, the High court remanded
the same for fresh consideration to the learned Second Additional Sessions
Judge, who would then decide as to whether an FIR should be registered,
insofar as the allegations contained in the applications for further
investigation are concerned. Pursuant to the aforesaid remand, by
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
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judgment dated 23.04.2016, the learned Additional Sessions Judge has
rejected the application under Section 156(3) of the CrPC on merits,
against which Special Criminal Application No.3085 of 2016 has been
filed and is awaiting disposal. Several other proceedings that are pending
between the parties have been pointed out to us, with which we have no
immediate concern in this case.
7. Shri Dushyant Dave, learned Senior Advocate, appearing on
behalf of the Appellants, has forcefully argued, placing reliance on a
number of provisions of the CrPC, and a number of our judgments, that
the High Court was wholly incorrect as a matter of law, in holding that
post-cognizance a Magistrate would have no power to order further
investigation into an offence. He read out in great detail the FIR dated
22.12.2009, the contents of the charge-sheet dated 22.04.2010, and relied
heavily on a communication made by the Commissioner of Revenue,
Gujarat to the Collector, Surat dated 15.03.2011. According to him, the
contents of this communication would show that there is no doubt that
further investigation ought to have been carried out on the facts of this
case, in that, a huge fraud had been perpetrated on his clients by landgrabbing mafia, and it would be a travesty of justice if the learned Second
Additional Sessions Judge's judgment dated 10.01.2012 was not upheld.
According to him, the High Court judgment was greatly influenced by
the fact that: (1) IO Munshi submitted further interim investigation reports
very quickly, and (2) had submitted these reports to the Additional
Sessions Judge instead of the Magistrate; resulting in the throwing out
of the baby with the bathwater. He therefore urged us to uphold the
order of the Second Additional Sessions Judge who ordered further
investigation, as that would lead to the truth of the matter in this case.
8. On the other hand, Shri Basant and Shri Navare, learned Senior
Advocates appearing on behalf of the respondents, supported the
judgment of the trial court and the High Court, stating that there is no
doubt that without filing a cross-FIR, what was sought to be adduced is
evidence which may perhaps amount to a defence in the trial to be
conducted, which would be impermissible. They emphasised that at no
stage had an application been moved to quash the proceedings, and
obviously, a belated application made more than a year after cognizance
had been taken, to obtain by way of further investigation facts which
were wholly divorced from the FIR would be wholly outside the
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Magistrate's power under Section 173(8) of the CrPC. They relied upon
several judgments, and particularly recent judgments of this Court, in
order to show that post-cognizance and particularly after summons is
issued to the accused, and the accused appears pursuant to such summons,
the Magistrate has no suo motu power, nor can he be moved by the
accused, for further investigation at this stage of the proceedings.
9. The question of law that therefore arises in this case is whether,
after a charge-sheet 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.
10. The CrPC is neatly divided into 37 Chapters. In this case we
are concerned with Chapters XII to XVII. Chapter XII is titled
"Information to the Police and their Powers to Investigate". Chapter
XIII has as its title "Jurisdiction of the Criminal Courts in Inquiries and
Trials". Chapter XIV speaks of "Conditions Requisite for Initiation of
Proceedings". Chapter XV then speaks of "Complaints to Magistrates".
Chapter XVI is headed "Commencement of Proceedings before
Magistrates" and Chapter XVII is headed "The Charge". Chapters
XVIII to XXI are "Trials before a Court of Session"; "Trial of WarrantCases by Magistrates"; "Trials of Summons-Cases by Magistrates";
and Summary Trials", respectively.
11. The relevant sections of the CrPC with which we are
concerned are as follows:
"156. Police officer's power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which
a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try
under the provisions of Chapter XIII.
xxx xxx xxx
(3) Any Magistrate empowered under Section 190 may order
such an investigation as above-mentioned.
xxx xxx xxx
173. Report of police officer on completion of
investigation.-
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
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xxx xxx xxx
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the police station
obtains further evidence, oral or documentary, he shall forward to
the Magistrate a further report or reports regarding such evidence
in the form prescribed; and the provisions of sub-sections (2) to
(6) shall, as far as may be, apply in relation to such report or
reports as they apply in relation to a report forwarded under
sub-section (2).
xxx xxx xxx
190. Cognizance of offences by Magistrates.- (1) Subject to
the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered in
this behalf under sub-section (2), may take cognizance of any
offence -
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or
try.
xxx xxx xxx
200. Examination of complainant.- A Magistrate taking
cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also by
the Magistrate:
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Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses -
(a) if a public servant acting or purporting to act in the discharge
of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under Section 192.
Provided further that if the Magistrate makes over the case to
another Magistrate under Section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
xxx xxx xxx
202. Postponement of issue of process.- (1) Any Magistrate,
on receipt of a complaint of an offence of which he is authorised
to take cognizance or which has been made over to him under
Section 192, may, if he thinks fit, [and shall, in a case where the
accused is residing at a place beyond the area in which he
exercises his jurisdiction] postpone the issue of process against
the accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) Where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Sessions;
or
(b) Where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath.
VINUBHAI HARIBHAI MALAVIYA AND ORS. v.
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(3) If an investigation under sub-section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Code on an officer in charge of a
police station except the power to arrest without warrant.
xxx xxx xxx
204. Issue of process.- (1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a
summon, for causing the accused to be brought or to appear
at a certain time before such other Magistrate or (if he has no
jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has
been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees
or other fees are payable, no process shall be issued until the fees
are paid and, if such fees are not paid within a reasonable time,
the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87."
12. As the Chapter headings themselves show, there is a neat
distinction between the powers of the police to investigate and jurisdiction
of the criminal courts in inquiries - followed by the procedure once the
trial itself begins. Section 156 deals with a police officer's power to
investigate "cognizable cases". A "cognizable case" is defined under
Section 2(c) of the CrPC as follows:
"cognizable offence" means an offence for which, and
"cognizable case" means a case in which, a police officer may, in
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accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant.
The expression "complaint" is defined in Section 2(d) as follows:
"complaint" means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that
some person, whether known or unknown, has committed an
offence, but does not include a police report.
"Inquiry" is defined in Section 2(g) as follows:
"inquiry" means every inquiry, other than a trial, conducted under
this Code by a Magistrate or Court;
"Investigation" is defined in Section 2(h) as follows:
"investigation" includes all the proceedings under this Code for
the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorised by a
Magistrate in this behalf.
13. The statutory scheme contained in the CrPC therefore puts
"inquiry" and "trial" in water-tight compartments, 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 pertains to a stage before the trial
commences. Investigation which ultimately leads to a police report under
the CrPC is an investigation conducted by the police, and may be ordered
in an inquiry made by the Magistrate himself in "complaint" cases.
14. The erstwhile Code of Criminal Procedure, 1898 did not contain
a provision by which the police were empowered to conduct a further
investigation in respect of an offence after a police report under Section
173 has been forwarded to the Magistrate. The Forty-First Law
Commission Report (The Code of Criminal Procedure, 1898) forwarded
to the Ministry of Law in September 1969 (hereinafter referred to as the
"Law Commission Report"), therefore, recommended the addition of
sub-section (7) to Section 173 as it stood under the Code of Criminal
Procedure, 1898 for the following reasons:
"14.23. A report under Section 173 is normally the end of the
investigation. Sometimes, however, the police officer after
submitting the report under Section 173 comes upon evidence
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bearing on the guilt or innocence of the accused. We should have
thought that the police officer can collect that evidence and send
it to the magistrate concerned. It appears, however, that courts
have sometimes taken the narrow view that once a final report
under Section 173 has been sent, the police cannot touch the case
again and cannot re-open the investigation. This view places a
hindrance in the way of the investigating agency, which can be
very unfair to the prosecution and, for that matter, even to the
accused.