Recalibrating Justice: Post-Cognisance Investigation and The Legislative Shift

Authored by Kirti Mehta & Manasvi Mittal, 3rd-year law students at Institute of Law, Nirma University, Ahmedabad

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Introduction

The transformation of the criminal justice system in India revolves around an effort to recalibrate investigative powers with safeguards of the Constitution. Within this framework, the magistrate’s power to order further investigation is a contested issue. Furthermore, the incorporation of parallel provisions in the Bharatiya Nagrik Suraksha Sanhita (hereinafter referred to as BNSS) further exacerbates the problem, compelling a re-examination of how procedural law can be shaped to achieve a broader goal of justice.

Recently, the Supreme Court, in the case of Rampal Gautam v. The State, ruled that a further investigation by the magistrate can be ordered even after taking cognisance. The bench comprising Justice Vikram Nath, Sanjay Karol and Sandeep Mehta delineated the powers of the magistrate to order further investigation under section 175(3) of BNSS after the post-cognisance stage of the criminal trial, unlike the precedents, which denuded the magistrate of the power to order further investigation post-cognisance. Therefore, provided a new interpretation to section 175(3) BNSS.

The court placed reliance on Vinubhai Haribhai Malaviya, until this judgment, the judiciary has categorically rejected the idea of further investigation post cognizance by the magistrate. Justice Fali S. Nariman ruled that a magistrate’s power to order a further investigation would not suddenly cease to exist once the process is issued, as it would result in a violation of Article 21 of the Constitution. As a fair trial is an intrinsic part of Article 21, to achieve that, a fair investigation must be ensured, so that an innocent person is not arraigned or a prima facie guilty person is not left out.

While this may seem like a progressive step that enhances India’s criminal justice system, it raises potential concerns about the prejudice that it may cause to the accused and unnecessary delays in delivering justice.  The article traces the trajectory of the evolution of the juristic interpretation of Section 156(3) of the CrPC, which has been incorporated as Section 175 (3) in the BNSS, to analyse the implications of this judgment on the criminal justice system. The article attempts to resolve the legal conundrum of fair trial and unwarranted delay with the change in the magistrate's power to order further investigation post-cognisance. Furthermore, the article also highlights the procedural shift introduced by the new legislation, which orders further investigation by the magistrate.

Juristic Interpretation of Further Investigation

The term  ‘Investigation’ was defined in Section 2(h) of CrPC, 1973, which departed from the original act and incorporated all the proceedings for collecting evidence, thereby encapsulating further investigation under Section 173(8) /193 (8) BNSS and 156(3) of CrPC /175(3) BNSS.

The case of Amrutbhai Shambhubhai Patel delved into the concept of further investigation and elucidated the meaning of the word ‘additional’ or ‘supplemental’ to convey the meaning of further investigation. Conventionally, it was exercised when a police officer obtained additional oral or documentary evidence. The evidence is laid before the court in continuation of the earlier investigation and relating to the same occurrence incidental thereto through the submission of the supplementary report under section 173(8) of CrPC. Therefore, a magistrate is also empowered under 156(3) of CrPC to order further investigation under 173(8), with regard to the definition of ‘Investigation’ in the Act.

Before Vinubhai Haribhai Malaviya (supra), there was an axiomatic distinction in the powers of the magistrate, pre- and Post-cognisance stage of the trial. Earlier, a magistrate, before taking cognisance (under section 190 of CrPC), could exercise his statutory power to order further investigation under section 156(3) of BNSS. However, this landmark judgement diluted the distinction, allowing the magistrate to order an investigation even after cognisance.

Similarly, in the case of H. N. Rishbud, the court entered the territory of further investigation and contemplated whether the magistrate had the statutory authority to order further investigation after cognisance, and allowed it to ensure a fair investigation. Although illegality in the investigation will not vitiate the proceedings, when patent illegality has been brought to the court's attention, it becomes pertinent to take steps to rectify it by ordering a further investigation. Furthermore, the court also stated in Ram Lal Narang that it would be preposterous to rule out altogether the scope of further investigation post-cognisance merely on the grounds that the court has taken cognisance. Therefore, we can conclude that apart from the statutory power of a police officer authorised by law, the learned magistrate can also direct further investigation post-cognisance if the investigation is tainted or unfair to either of the parties.

Investigation is the hallmark of the criminal justice system in India, and the same is reiterated in Lalita Kumari. Sections 173(8) and 156(3) of the CrPC allow for further investigation even after a chargesheet is filed, thereby preventing wrongful prosecution or miscarriage of justice. This provision safeguards the rights of the accused under Article 21 by ensuring that the investigation is conducted in a manner that is not subject to the whims and caprices of the authorities. However, 173(8) doesn’t explicitly envisage the power of the magistrate to order further investigation post cognisance. It can still be triggered into motion at the instance of the court. 

Applicability of the Doctrine of Implied Powers

In Vinubhai Haribhai Malaviya, the Supreme Court invoked the Doctrine of Contemporanea Expositio, which asserts that the proper interpretation of a statute is best understood by construing it as it would have been understood at the time of its enactment. Applying this doctrine, the Court addressed the complex issue of whether a Magistrate retains the authority to order further investigation after taking cognisance. This ruling has significant implications, striking a balance between judicial oversight and reaffirming that procedural technicalities should not hinder the delivery of justice.

This is also supplemented by the Doctrine of Implied Powers, which establishes a fundamental legal principle that ensures the effective exercise of expressly conferred powers. This doctrine elucidates that, when an authority is entrusted with a duty, it is inherently vested with the necessary ancillary powers to fulfil that duty.  The doctrine extends to the authority of the Magistrate, empowering them to ensure a fair and comprehensive investigation through the power to order further investigation post cognisance.

The Supreme Court, in Sanjay Gambhir, affirmed this interpretation by holding that Sections 156(3) and 173(8) of the CrPC, when read harmoniously, empower the Magistrate to direct further investigation post-cognisance. The Court emphasised that rigid procedural boundaries must not obstruct the pursuit of truth, and that judicial discretion must prevail when necessary to correct investigative lapses. This precedent reinforces the idea that statutory interpretation must evolve to uphold the values of transparency and justice in the criminal process.

Furthermore, in Sakiri Vasu v. The State of U.P., the Supreme Court took a broader interpretative approach by expanding the scope of section 156(3) CrPC. It held that the section includes all incidental and necessary powers required to ensure a proper and meaningful investigation. The Court clarified that the role of the Magistrate is not merely passive but extends to actively supervising the integrity of the investigative process. The language of section 173(8) must not be construed narrowly to rob the Magistrate of his supervisory or judicial power to order further investigation post cognisance U/s 156(3). This ruling broadens the understanding of the Magistrate's jurisdiction and strengthens its role as a sentinel of procedural justice.

Analysis

The judgment in Vinubhai carries significance; however, it inadvertently left a lacuna by failing to delineate whether further investigation could be permitted once the trial had commenced. This omission created a potential for a deluge of cases and inconsistent judicial interpretations. This void has now been effectively addressed by the proviso clause of section 193(9) of the BNSS, which is acting as an extension to the Vinubhai Judgement. The newly introduced proviso not only affirms that further investigation is permissible after the trial commences but also prescribes a definite timeframe of 90 days for its completion. Furthermore, the provision also vests power in the court to exercise its discretionary authority and extend this period, advancing the ends of justice, thereby precluding any unwarranted prejudice to the accused and curbing unnecessary delays.

Though power is vested with the magistrate, it must be exercised sparingly and in exceptional cases to achieve the ends of justice. The courts must consider concrete evidence; mere fishing expeditions will cause prejudice to the accused. However, new facts that could lead to inculpating the accused must be considered, as substantial justice is more important than avoiding mere delay.

Whether the new grounds pleaded by the petitioner satisfy the judicial conscience to order further investigation after cognisance will depend on the facts and circumstances of the case.  The court must consider the number of times further investigation can be ordered post-cognisance, which may be an arbitrary discretion of the magistrate and may lead to a travesty of justice by delaying the process of trial.

The Hon’ble Supreme Court in Hussainara Khatoon v. Home Secretary, delineated the right to speedy trial of the accused under Article 21 of the Constitution. The court has placed the state machinery under a constitutional mandate to take positive action, such as augmenting the investigative capabilities of the police and the ED, and setting up new courts and courthouses to increase effectiveness and ensure timely adjudication. Additionally, the court also remarked that the state cannot deny citizens their constitutional rights on the grounds of poverty and a lack of funds for infrastructure development. This judicial precedent underscores a deeper principle for interpreting that statute: as the code is a procedural document, a liberal construction would seek to advance the cause of justice and balance efficiency with the protection of the accused's rights.

Conclusion 

The judgment of Vinubhai is a milestone towards the betterment of the inquisitorial criminal justice system in India. The subsequent introduction of the proviso to Section 193(9) of BNSS, which affirms the permissibility of further investigation even after the commencement of trial within 90 days strikes a balance ensuring procedural fairness and safeguarding both the rights of the accused and the interests of the prosecution, maintaining transparency through judicial oversight remains crucial,  reaching to this watershed, the judiciary pronounced various precedents, thereby, shaping the contemporary legal framework with aid of the legislature.