Guest Post: Analysing 156(3) Cr.P.C. in Context of Vinubhai Haribhai Malviya

(This is a guest post by Jaiyesh Bhoosreddy)

Introduction

Section 156(3) of the Code of Criminal Procedure, 1973 [Cr.P.C.] confers 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 evident from the numerous judicial precedents stating that the power of the magistrate to order investigation under Section 156(3) is always pre-cognizance. The rationale, 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 [To understand the different stages of a criminal case such as cognizance etc., see here]. 

However, a Three Justices' Bench of the Supreme Court in Vinubhai Haribhai Malviya & Ors. v. State of Gujarat [Criminal Appeal Nos. 478-479 of 2017, decided on 16.10.2019 (“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, albeit not surprisingly, 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 contrary to statutory provisions and established judicial precedent.

The present discussion regarding the scope of Section 156(3) is to be viewed in the context of the said judgment. At the very outset, the preliminary issue that bears into mind is regarding the question of propriety of the said judgment, in view of a number of opposing judgments from various courts including the Apex Court itself, which have already laid down the point of law very clearly on the subject matter. The author intends to highlight the problematic issue of noncompliance of a celebrated judicial principle, which should be kept under consideration while pronouncing a judgment. The author will argue that the said judgment is contrary to the very structure of our judicial system which follows the common law tradition, where the previous judicial decisions of the Supreme Court of India under Article 141 and also of High Courts, as Courts of Records, constitutes the “law of the land” in the form of precedents which has binding effect over all lower courts, and also on the coordinate benches of the Apex Court and the High Courts.

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

Vinubhai has created adverse ripples in criminal jurisprudence, which is the result of the Bench erroneously observing that the magistrate’s power to order investigation under Section 156(3) is post-cognizance, and in doing so, the Bench has overruled an earlier judgment of the Apex Court in Devarapally Lakshminarayana Reddy v. V. Narayana Reddy [1976 AIR 1672 (“Devrapally”)] and a plethora of other judgments, which had cemented the proposition that the power under Section 156(3) of Cr.P.C. can be invoked only at a pre-cognizance stage.

The plain reading of the provision also clearly reads that it is pre-cognizance and not post-cognizance. The first and primary rule of construction of statues clearly states that if the plain reading of the statute is unambiguous, then the courts should go by the plain reading and not read beyond the text of the statute. The interpretation provided in Malviya is contrary to the legislative intent, which is evident from the language employed in Section 156(3). Section 156(3) employs the language, “such an investigation as mentioned above” to draw reference to the scope of application of the term ‘investigation’, which is provided in Section 156(1) of Cr.P.C.

The Court was erroneous in holding the rationale of Devarapally as incorrect simply because the Bench in Devarapally did not ‘notice’ Section 2(h) of Cr.P.C., as the proviso attached to the title of Section 2 states that the ‘definitions’ provided in Section 2 are subject to exceptions which is evident from the phrase, “In this Code, unless the context otherwise requires”. The author stresses upon the usage of the phrase, “unless the context otherwise requires” in support of the scope of application of investigation to be done only in the manner prescribed under Section 156(1) of Cr.P.C., where the ‘context’ mandates that the power of magistrate with respect to ordering of investigation under Section 156(3) to be limited only to the pre-cognizance stage. This was consciously provided by the legislature for situations where the police would fail to take cognizance of a cognizable offence under its jurisdiction, and so the victim or any other person could approach the magistrate for legal remedy to ensure dispensation of justice. Therefore, Section 2(h) of Cr.P.C. is irrelevant for the purpose of determining the scope of application of Section 156(3) because it triggers an investigation as provided under Section 156(1).

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

The Bench in Vinubhai could have avoided the erroneous interpretation with respect to the scope of Section 156(3) of Cr.P.C., if it would have exhaustively considered the judicial precedents, including Devrapally, deliberating upon the expression ‘taking cognizance’, then it would have realised that the earlier decisions on the subject matter are cemented as courts have always expressly construed the power of the magistrate to order investigation under Section 156(3) to be pre-cognizance only. This is because a magistrate ‘takes cognizance’ of an offence when he applies his mind for the purposes of proceeding under Section 200 and the succeeding 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). However, if the magistrate takes any other action in his judicial discretion, instead of proceeding under Chapter XV of Cr.P.C., then he cannot be said to have taken cognizance.

Additionally, the above stated judicial explanation of the expression ‘taking cognizance’ was reiterated by the Apex Court, in R.R Chari v. State of Uttar Pradesh [1951 AIR 207 (“R.R Chari”) (Three Justices' Bench)], while considering the phrase ‘taking cognizance’, approved the decision of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee [AIR 1950 Cal. 437], wherein the Court observed that taking an action of the nature of ordering an investigation under Section 156(3) will be pre-cognizance only. The same view was reiterated by the Apex Court in Nirmaljit Singh Hoon v. State of West Bengal and Anr. [AIR 1972 SC 2639] and Jamuna Singh and Ors. v. Bhadai Sah [AIR 1964 SC 1541].

Thus, R.R. Chari is another judgment pronounced by a three-judge bench, apart from Devarapally, where the Court has affirmed that Section 156(3) is pre-cognizance only. In view of this, the Bench in Vinubhai should have refrained from overruling Devrapally as it is a recognised principle that the views by one Bench is binding upon another coordinate Bench. In Union of India v. Godfrey Phillips India Ltd. [AIR 1986 SC 806] and Union of India v. Raghubir Singh [AIR 1989 SC 1933], the Courts have held that when one Bench thinks differently from another Bench of equal strength, then it should refer the matter to a larger Bench for decision rather than deciding upon the correctness of the view of the earlier coordinate Bench. Therefore, even if the Bench in Vinubhai was possessed by a very strong inclination that the interpretation in Devrapally was flawed, it should have referred the matter to a larger bench for resolution, however the Bench proceeded, on the basis of a flawed reasoning, to overrule established judicial precedents which has caused confusion in the field of criminal law.

Practical Benefits of the Judgment: Positive Impact for Bona Fide Applicants

In Vinubhai, the question of law that the Court had to decide upon was, “whether a magistrate has the power to order further investigation after a charge sheet is filed by the police”. The Court held that the magistrate had power under Section 173(8) of Cr.P.C. to direct further investigation up to the stage of framing of charges, and simultaneously overruled those decisions of the Apex Court, which interpreted the powers under Section 173(8) in a restrictive manner and thereby providing support to a latest decision of the Court, which construed the power under Section 173(8) to allow the magistrate to order further investigation after a police report was filed and cognizance was taken upon the said police report.

This was a positive step taken by the Bench in the development of law through judicial interpretation, as it resolved conflicting views given by the Court in the past to promote certainty of law, and furthered the interest of justice as a result of liberal interpretation. The judgment enables bona fide applicants to request for further investigation, and this would also lead to a reduction in multiple First Information Reports (FIRs) being filed. However, it should also be noted that the judgment also enables the accused persons and other parties in a criminal proceeding, with the ability to delay and derail the proceedings by filing applications requesting for further investigation to occur, and these orders under Section 173(8) will be subject to appeals which will invariably result in delays of the criminal proceedings causing irreparable loss either to the accused or to the victim.

Conclusion

The author submits that Vinubhai has eroded the principle of ‘Stare Decisis’, which is the foundation upon which the common law tradition exists. The Bench in Vinubhai overruled the plethora of judgments which followed Devarapally. Now, one could argue that the Bench was not improper in overruling the plethora of judgments as the bench strength was higher in Vinubhai, however that logic stands correct 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 support from R.R. Chari which is another three-judge bench judgment, which held that Section 156(3) is pre-cognizance only.

The lower courts can still adhere to the decision in Devarapally despite Vinubhai being a more recent judgment on the ground that the latter is per incuriam as it did not analyse the scope of Section 156(3) in the context of judicial precedents pertaining to the expression ‘taking cognizance’, which is of crucial importance when determining whether the scope of Section 156(3) is pre-cognizance or post-cognizance. This question was resolved by the various High Courts themselves in Amar Singh Yadav v. Shanti Devi [AIR 1987 Pat. 191] and Ganga Saran v. Civil Judge, Hapur [AIR 1991 All. 114], wherein the Courts have held that in the case of conflicting views rendered by different coordinate benches of the Supreme Court of India, then the decision which states the law more elaborately and accurately should be followed, by the High Courts, rather than the view that has been expressed at a later date. It would be prudent to conclude the present discussion on the point that the cardinal principle of the law of precedents is that the superior courts, especially the Apex Court and the High Courts, should settle questions of law in a consistent manner so that the law of precedents attains some degree of certainty, and observance of law is ensured.

De-Facto Complainants, Further Investigations, and The Curious Reference in Jagdish Patni v Nikita Patni

A few days ago, a Two-Justices' Bench of the Supreme Court passed what seemed an innocuous order referring the petition in Jagdish Patni v Nikita Patni & Ors [SLP (Crl) 3806/2018)] to a bench of higher-strength. This was because the Justices thought that an earlier Supreme Court decision - Reeta Nag  [(2009) 9 SCC 129, Two Justices' Bench] - might need re-consideration. In this post, I briefly cover that earlier decision and the problem that the Supreme Court alluded to. I argue that there is, frankly, no problem at all, and the petition should have been dismissed for more reasons than one. 

Further Investigations and De-Facto Complainants: What is the Law?

When police investigate a case under the Criminal Procedure Code, 1973 [Cr.P.C.], the investigation ends with a Final Report under Section 173. When this suggests allegations have enough basis to be tried in court, this Report is colloquially called a Charge-Sheet. But that is not the end of the matter. Section 173(8) Cr.P.C. makes it clear that even after filing of a Report, "further investigation" into the allegations can take place. And police file subsequent reports detailing what that further investigation revealed. As always, problems emerge when we probe further for details. What all can come within "further" investigation - can the same documents / witnesses be considered again? Are there no limits to this power of continuing investigations? Must the police file an application, or can the Magistrate herself direct further investigation? What about the victim / informant? Here, I am only concerned with two of these themes and their intersections: till when can a police do "further" investigations, and how can this be triggered. For a discussion on the scope of what can happen in further investigations, I'd encourage reading Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762].

The Supreme Court has clarified that further investigations can happen at any stage before judgment, and that triggering such investigations is not an exclusive power with the police. A magistrate on her own, or on an application by an aggrieved party, can also direct the police to further investigate a case. But, importantly, there is no right to further investigations: it is another area where the court has to exercise discretion, and it considers different considerations in deciding whether granting that permission makes sense. Basically, the more advanced a case gets, the more difficult it is to go back and investigate. This makes ample sense, as revisiting a case causes more delays in what is already a slow system of justice. 

The Court has made the time-element relevant in another sense: once the case crosses certain stages, a magistrate, and the aggrieved person, lose their ability to trigger a hearing for considering further investigations. The Court has held that a magistrate loses the right to trigger further investigations after taking cognizance. So, after deciding that there is enough material warranting the case proceed to trial, the magistrate on her own cannot turn back the clock and seek further investigations. For an aggrieved party, the starting-line is not as clear. But one point of no return was clearly identified in Reeta Nag by the Court. There, it held that an aggrieved person cannot seek further investigation once charges have been framed. After this stage, the only way left to trigger this process was if the police approach a court. 

Again, this makes sense. It is clear under the Cr.P.C. that there are other avenues that allow a court to arraign other defendants or bring in new evidence once the trial has begun, either on its own or on an application by an aggrieved party. Under Section 319, Cr.P.C., a court has broad powers to arraign new defendants it finds sufficient grounds. Equally broad powers are vested in a court to take in fresh evidence after the start of a case under Section 311.  

The Petition in Jagdish Patni and the (Mis)Perceived Legal Issue

Prakash Patni died on 27.05.2013. His father, Jagdish Patni, lodged a complaint with the police which resulted in registration of a First Information Report. The subsequent police investigation concluded his death was a suicide, and alleged that three defendants - his wife, mother-in-law, and a maternal aunt - abetted his suicide and recommended a case under Sections 306 read with 34, IPC. After cognizance was taken, Jagdish Patni moved an application on 16.06.2015 for "further investigation", at at time when the court was hearing arguments on charge. On 27.07.2015, the court rejected the plea for discharge by the defendants. Then, on 12.10.2015, the court passed an order dismissing the application for further investigation. This was challenged before the High Court, which affirmed the order and relied on Reeta Nag to do so. Challenging that order, Jagdish Patni came to the Supreme Court. And on May 7, a Bench comprising of Justices Chelameshwar and Kaul were of the view that relying upon Reeta Nag was a problem. The daily order notes: 

"The High Court dismissed the case of the petitioner by the impugned order relying on a judgment of this Court reported in Reeta Nag (citation omitted) wherein it was held that the criminal court is not competent to direct further investigation at the instance of de-facto complainant. Further, that judgment is rendered on the basis of the law as it existed prior to the judgment. By an amendment Act V of 2009 which came into force on 31st December 2009, a right of appeal is created in favour of a victim against order of acquittal under the proviso of Section 372 Cr.P.C. In light of the above-mentioned amendment, the scheme of Section 173 CrPC, in our view, requires a further examination." 

In my view, the Court gets it wrong here on multiple levels. First, Reeta Nag did not say this at all, as I have discussed above. De-facto complainants continue to have a right to seek further investigations, as long as it is before arguments on charge. In fact, this position was clarified in 2017 by the Court in Amrutbhai Patel [(2017) 4 SCC 177] nine years after the victim-rights amendment was passed, and curiously that decision is not cited by the Court. Moreover, assuming that the Court knew of this, and wanted to remove this limitation on the right of de-facto complainants, one struggles to see a connection between granting victims a right of appeal against acquittals and a right to seek further investigation after cognizance has been taken. Victims already had a panoply of rights, including the right to seek further investigations, but did not have a right to appeal. This was the lacunae being filled, but instead, the Court has put the cart before the horse in the extracted order. 

But the biggest reasons are pragmatic. Nobody needs reminding of how serious the problem of delays is. This is apparent in Jagdish Patni itself, as the FIR was registered in 2013, and according to the case status website charges have not even been framed yet. As I have argued previously, a large part of the reason for this is the Supreme Court itself. How? Because the Supreme Court, over the years, has repeatedly transformed routine administrative stages into full-blown hearings, purportedly in the interests of justice. This has led to a strange reality where the Court itself creates avenues for more delays, and then criticises that the system for delay. Sensibly, previous decisions created some limits on the right of aggrieved parties to seek further investigations. There was no marginal benefit gained at the cost of the additional delays this step invited. After all, the benefits accruing by this process were already being conferred by existing provisions, i.e. Sections 319 and 311. By reversing this, the Court would only drive another nail in the coffin of our tedious criminal process. 

Conclusions

Having seen how a SLP is heard, I would not find it unthinkable that the nuances of a legal issue evade a Bench of Supreme Court that is pressed for time. But the Court was not hearing the petition in Jagdish Patni for the first time on May 7; it was a week after it had first taken up the case as notice was issued on May 1. In that week, surely the able support of judicial clerks would have seen this obvious point that I raise. There are two reasons then, why this petition moved forward. The first reason is that, well, somehow owing to the burdens of work this legal point did elude everybody. The second is that the Justices knew of it but wanted to change the legal position. I only hope it is not the latter possibility.