This article is written by Nishtha Wadhwa. The present article scrutinises the landmark judgement delivered by a Division Bench of three Supreme Court Judges, J. R.F. Nariman, J. Surya Kant, and V. Ramasubramanian, in the landmark case of Vinubhai Haribhai Malaviya and Ors. v. The State of Gujarat (2019). The case at hand dealt with the scope and application of Sections 156 (3) and 202 of the Code of Criminal Procedure (CrPC) and settled the issue regarding the power of a Magistrate to direct police investigation before and after taking cognizance of an offence. The article provides brief facts about the case, the relevant issues, and judgement of the Court based on the arguments of both parties.


Article 21 of the Indian Constitution demands that the procedure in criminal trials must be ‘right, just and fair and not arbitrary, fanciful or oppressive’, as fortified under the historical case of Mrs. Maneka Gandhi v. Union of India & Anr. (1978). Therefore, it can be concluded that the Constitution of India guarantees, or at the very least proposes, for the courts to conduct a fair, just and reasonable trial that is based on the principles of natural justice. 

In the same thread, the extent of the Magistrate’s power with respect to further investigation had been ever perplexing and an ambiguous issue open for explorations by the lower Courts and exploitation by the parties. A narrow interpretation of the concerned provisions in earlier judgments of the Apex Court had been preventing the investigation authorities from performing their functions effectively and at the same time had robbed the lower Courts of their powers to pacify investigations that seemed to be taking a stray walk off the path, which were ultimately unfair to the prosecution as well as the accused. Hence, it became increasingly crucial for the Supreme Court to adopt a critically wider and more comprehensive approach to elaborate on the issue of further investigation in both pre and post cognizance cases.

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After a meticulous inspection of the provisions of the CrPC and a thorough examination of a plethora of judgements, the bench finally put this 70-pager in black and white. In this article, we shall deal with the facts, laws involved, a detailed prognosis of the interpretation of the Court and its ultimate implication in the courtrooms.  

Details of the case 

Name of the case: Vinubhai Haribhai Malaviya v. State of Gujarat

Citation: AIRONLINE 2019 SC 1199; AIR 2019 SUPREME COURT 5233

Case Type: Criminal Appeal

Bench:  Justice R.F. Nariman; Justice Surya Kant; and Justice V. Ramasubramanian

Name of the Appellants: Vinubhai Haribhai Malaviya and Ors.

Name of the Respondent: The State of Gujarat and Anr.

Date of Judgement: 16.10.2019

Facts of Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 

The factual matrix of the case is as follows:

  • On 22.12.2009, Nitinbhai Patel, acting as the Power of Attorney holder, filed an FIR on behalf of Ramanbhai and Shankarbhai, who resided in the US and UK, respectively, as per the FIR.
  • It was alleged that the dispute revolved around an agricultural land situated in Surat that was acquired by Ramanbhai and Shankarbhai from Bhikabhai and his wife Bhikiben in 1975.
  • The FIR claimed that as the land prices hiked in Surat, the heirs of Bhikhabhai and Bhikiben, Vinubhai, and Manubhai conspired against the actual owners of the property and accused them of being landgrabbers.
  • Thereafter, it was alleged that not only did Vinubhai demand Rs. 2.5 crores to resolve the disputes, but also used forged ‘Satakhat’ and Power of Attorney to grab the disputed land from its lawful owners.

Procedural background

  • After due investigation, a charge sheet was submitted and the learned Judicial Magistrate (First Class) took cognizance on 23.04.2010.
  • On 10.06.2011 Vinubhai filed one application for further investigation under Section 173(8) CrPC and another for discharge, which were dismissed by the Magistrate.
  • Simultaneously, Vinubhai and the other accused filed an application to register an FIR against the other parties or for the Magistrate to order an investigation under Section 156(3) CrPC. This application was also rejected by the Magistrate.
  • Separate criminal revision applications were preferred to the Sessions Court and it was held that a case had been made out for further investigation, although a separate complaint was not required to be registered. In compliance with the orders of the Sessions Judge, IO named R.A. Munshi submitted two further investigation reports. 
  • In the meantime, the accused had approached the High Court regarding the disposal of the discharge applications. After perusal of the documents, the High Court held that the Magistrate did not possess any power to order further investigation after cognizance had been taken and therefore, judgement of the learned Second Additional Sessions Judge was set aside.
  • Finally, this Special Criminal Application was filed before the Supreme Court against the order rejecting the application under Section 156(3).

Issues raised 

  • Whether investigation under Section 2(h) includes further investigation?
  • Whether further investigation should have been ordered in this case?
  • Whether the Magistrate can 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? 
  • Whether the Magistrate has jurisdiction under Section 173(8) to direct further investigation?
  • Whether Devarapalli’s judgement is reliable?

Arguments of the parties

Arguments by the appellants

The appellants were represented by learned Senior Advocate, Shri Dushyant Dave. He contended that the hon’ble High Court had erred in holding that post-cognizance, a Magistrate would have no power to order further investigation in a cognizable offence. 

He argued that a huge fraud had been perpetrated on his clients by the land-grabbing mafias (respondents) and if the High Court’s order was not set aside, it would amount to a gross failure of justice. The counsel for the appellant relied on the FIR dated 22.12.2009, the contents of the Charge Sheet and even the communication made by the Commissioner of Revenue, Gujarat to the Collector, Surat dated 15.03.2011.

It was alleged that the High Court’s order was majorly influenced by the fact that the further investigation reports were submitted very soon and that they were not submitted to the Magistrate. In doing so, the Court discarded something valuable along with something unwanted. Therefore, it was urged that the order of further investigation be upheld.

Arguments by the respondent 

Judgements of the Trial Court and the High Court were supported by the learned Senior Advocates, Shri Basant and Shri Navare, who appeared on behalf of the respondents. 

The respondents argued against the introduction of evidence that could amount to a defence without filing a cross-FIR, emphasising that such actions would be prohibited during trial. 

It was highlighted that, at no stage, an application had been moved to quash the proceedings.

The party argued that it would exceed the Magistrate’s power under Section 173(8) CrPC to deal with a belated application (of the appellants) made more than a year after cognizance had been taken to introduce purely new facts by way of further investigation.

As a way to support their main contentions, the counsel appearing for the respondents sighted various landmark and recent judgements. It was asserted that once an accused appears in the Court pursuant to the summons issued, the Magistrate lacks authority to initiate further investigation either on their own accord or at the request of the accused.

Involved legal aspects 

Section 2(h) CrPC

Investigation is defined under Section 2(h) so as to include all the proceedings under this Code for the collection of evidence. An investigation is conducted by a police officer or any person who may be authorised by a Magistrate, however, the Magistrate himself never conducts an investigation. It can be understood from UP v. Sant Prakash (1975) that for the purpose of an investigation, evidence must be collected by a police officer or a person enjoying the powers of a police officer or authorised by a Magistrate in this behalf or a person in authority.

The term collection of evidence is not exhaustive. In Ananth Kumar Naik v. State of Andhra Pradesh (1977), it was held that even a medical examination of the arrested person is a part of the investigation. Generally, investigation is the first stage of criminal proceedings, which is followed by inquiry; however, it is crucial to note that it is not a judicial proceeding.

Section 156(3) CrPC

Section 156 deals with the powers of a police officer to investigate a cognizable offence. Section 156(3) specifically provides that a Magistrate who is empowered under Section 190 may order a police officer in charge of a police station to investigate any cognizable offence. The power granted under this Section is discretionary in nature. An application under Section 156(3) can also be treated as a complaint. 

The Supreme Court in Sakiri Vasu v. State of Uttar Pradesh (2007) held that the Magistrate has implied and incidental powers and can pass another order of investigation or proper investigation if the police officer doesn’t conduct a proper investigation. It was also stressed that there is no need for the aggrieved party to approach the High Court under Section 482 of CrPC or under Article 226 of the Constitution.

It is significant to note that in Mohd Yusuf v. Afaq Jahan (2006), it was held that if the Magistrate directs the police to register a complaint or an FIR or directs the investigation under Section 156(3), no revision shall lie, although the revision will lie if the application is rejected.

Section 173(8) CrPC 

In 1969, the Law Commission of India, in its 41st report, recommended adding the provision relating to further investigation under CrPC. Section 173(8) of the CrPC permits an investigating officer to conduct further investigation even after a police report has been forwarded to the Magistrate. Investigating authorities do not even need the prior permission of the magistrate for conducting further investigation. 

It is quite evident that in Section 173(8), the power of Magistrate to order further investigation has not been mentioned but the Supreme Court in State of Bihar v. JAC Saldhana (1980) held that the Magistrate can order further investigation under Section 156(3) even after a police report has been submitted. This was reiterated by the Supreme Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017). Therefore, it can be understood that the power of the Magistrate under Section 156(3) to direct further investigation is an independent power and is not contrary to the power of police to conduct further investigation, as given under Section 173(8).

Section 190 CrPC

Section 190 provides for the power of the Magistrate to take cognizance of offences. It contemplates three ways in which a Magistrate is empowered to take cognizance, i.e., upon receiving a complaint, upon receiving an FIR, or upon receiving information from any person other than a police officer or upon their own knowledge.

Section 202 CrPC

A Magistrate, who has taken cognizance of an offence or to whom a case has been made over under Section 192 CrPC, can exercise the power under Section 202 to decide whether or not there is sufficient ground for proceeding. Section 202 enables the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer. The Magistrate may even order some other person to conduct the investigation. 

The Supreme Court clarified in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017) that direction under Section 202 CrPC is not in the nature of further investigation as understood under Section 173(8). 

The Supreme Court in D. Lakshminaryana Reddy and Ors. v. Naryana Reddy and Others (1976) shed light on the fact that the purpose of an investigation under Section 202 is not to initiate a fresh case on a police report but to assist the Magistrate in completing the proceedings that have already been instituted upon a complaint. The power to order police investigation under Section 156(3) and the power to direct investigation under Section 202(1) were also distinguished by the Hon’ble Court.

Section 204 CrPC

After the Magistrate comes to the conclusion that there is sufficient ground for proceedings, he shall issue summons in a summons case and may issue a warrant or summons in a warrant case. At this stage, the Magistrate is chiefly concerned with the complaint and the allegations made in it and needs to be satisfied that there are prima facie grounds that are sufficient to initiate proceedings against the accused.

Judgement in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

After a comprehensive and expansive examination of a copious amount of judgements, the hon’ble Supreme Court in this case concluded that a Magistrate had powers to direct further investigation on a police report, even at a post cognizance stage, right until the commencement of the trial. The Magistrate is entrusted with all incidental or implied powers that are necessary to ensure a proper investigation in a case.

The Supreme Court acknowledged that the Magistrate is vested with very wide powers under Section 156(3) CrPC. This power could also be exercised suo moto by the Magistrate and it would be at the discretion of the Magistrate, whether to order further investigation or not. 

It was also observed by the Court that the definition of ‘investigation’ under Section 2(h) is an inclusive definition; hence, it includes all proceedings for the collection of evidence conducted by a police officer, even encompassing further investigation under Section 173(8) of the CrPC. 

The Bench partially set aside the impugned judgement of the High Court insofar as it stated that the Magistrate has no power to order further investigation at a post cognizance stage. In light of the new facts that came before the Court, it directed the police to register an FIR on behalf of the appellants.

Consequently, the application in this case was partially allowed and the trial in FIR dated 24.04.2009 was stayed by the Court. 

Rationale behind 

The Supreme Court recognised the significance of Article 21 of the Constitution, which guarantees the fundamental right to life and personal liberty that cannot be deprived except by a procedure established by law in a fair trial. The substantial rights of a person are at stake when he is named as an accused in any case, as his dignity is threatened. Therefore, the Court emphasised that the criminal procedure should be interpreted so as to ensure that Article 21 is followed not only in letter but also in spirit. Not only the accused but also the victims have high hopes from the judicial system that the case presented by the victim would be sincerely examined in all aspects. Restricting the powers of Magistrate to only ordering investigations pre-cognizance or only using the powers under Section 202 would prejudice the trial in the sense that the party moving an application against an apparently insufficient investigation would have to settle for either just what the investigative agencies could find out in the original stint of investigation or to find complacence in the limited investigation that a Police officer is expected to conduct under the provisions of Section 202 for the purpose of assisting the Magistrate in finding grounds to stand on before he issues process under Section 204 of the Code. In any of the above-mentioned circumstances, the result would have been either an incomplete investigation into the matter resulting further into extended litigation, revisionary instruments being moved before the courts, not so sustainable decisions, and most fatal – the shaken confidence of a common man in the ever revered judicial system of India. 

Thus, this judgement ensures that justice is not only done through the use of incidental powers and legal intelligence of the judges but is also shown to be done on record and also crystallised as a clear principle to be followed in the matters to come.

In order to eliminate any kind of ambiguities and irregularities that might have emerged because of a narrow interpretation in various judicial precedents, the Supreme Court overruled various judgements and appreciated the wide powers of the Magistrate. The Hon’ble Supreme Court asserted that it would be gross injustice if it were held that the supervisory jurisdiction of the magistrate suddenly ceases midway through the pre-trial proceedings. 

The Hon’ble Court conducted an exhaustive scrutiny of Section 156(1) read with Section 156(3), and Section 173(8) read with Section 2(h) and deduced that there was no justification as to why a Magistrate’s power to order further investigation would suddenly cease upon the stage of cognizance. On that account, the Court held that since the definition of investigation includes all proceedings under the Code for the collection of evidence, it would eventually include proceedings under Section 173(8) as well.

As far as the direction of the FIR is concerned, the Court relied heavily on the gravity of the facts alleged by the Commissioner. It was noted that there could be a possibility that the signature of Bhikiben could be forged and that a huge fraud had been perpetrated by the respondents.

Case laws relied upon

The Supreme Court of India, in the landmark judgement of Maneka Gandhi v. Union of India (1978), recognised that the expression ‘Personal Liberty’ under Article 21 of the Constitution covers the widest aptitude and ensures a variety of rights. The principle of just, fair and reasonable law was also established in this case. Maneka Gandhi’s case relied on the particular matter at hand to emphasise that the procedure in criminal trials must be right, just and fair rather than arbitrary, fanciful or oppressive.

In Commissioner of Police, Delhi v. Registrar, Delhi High Court, New Delhi (1996), it was stated that the assurance of a fair trial as assured under Article 21 is the first imperative of the dispensation of justice. 

In Pooja Pal v. Union of India (2016), it was held that justice not only has to be done but also must appear to have been done. Therefore, while exploring the rights of the prosecution and the defence, it becomes indispensable to strike a balance between the inalienable constituents of a judicial proceeding. The need for further investigation or reinvestigation would vary from case to case and it should be scrupulously adjudged. The legislative in its intent, would never mean to frustrate or compromise any of the two basic principles of justice.

Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) is one of the leading cases where the Hon’ble Court tried to evaluate and strike a balance between the need for further investigation and delay in criminal proceedings. If fresh facts come to light which necessitate further investigation, then the interest of justice is paramount and surpasses the need to avoid any delay being caused to the proceeding.

In Ram Lal Narang v. State (Delhi Admn.) (1979), it was observed by the Supreme Court in this case that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. Defective investigation can always be rectified by further investigation, subject to the circumstances of the case. It was held that ‘the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and doing real and substantial as well as effective justice.’

Judicial precedents overruled 

Upon an in-depth examination and consideration, the three Judge Bench, in this case, overruled a variety of judgements, to the extent that they were either restrictive in their approach or were in conflict with the decision of the court in this case. 

First of all, while interpreting the law laid down in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976), the Court held that the judgement was delivered without referring to the definition of ‘investigation’ under Section 2 (h) and hence could not be relied upon. A three Judge Bench, in this case, held that the power to order an investigation under Section 156(3) was different from that of Section 202(1). Also, the two operate in distinct spheres at different stages as provided under CrPC, i.e., the first is exercisable at the pre-cognizance stage and the latter at the post cognizance stage. However, various jurists and critics have varied opinions regarding this overruling.

Paragraph 38 of the judgement enlists other overruled judicial precedents. Contrary to the opinion of the Supreme Court in the Vinubhai case, the verdicts in Randhir Singh Rana v. State (Delhi Administration) (1996), Reeta Nag v. State of West Bengal and Ors. (2009), Athul Rao v. State of Karnataka and 55 Anr. (2018), Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017), and Bikash Ranjan Rout v. The State through the Secretary (Home), Government of NCT of Delhi (2019) had taken a different stance and were therefore overruled.

Critical analysis

The Supreme Court made an extensive effort to fill in the ambiguities of the Criminal Procedure Code regarding further investigation under the direction of a Magistrate. To a certain extent, the legal fraternity has been dissatisfied with this judgement, despite the Apex Court pedantically considering provisions related to the investigation, evaluating judicial precedents, and recognising the Right to Fair Trial under Article 21 of the Indian Constitution.

The bench overruled a number of judgements that either held a conflicting view regarding the Magistrate’s power to order further investigation or interpreted Section 173(8) restrictively. It was criticised that the Supreme Court overruled Devarapalli’s judgement by stating that the Hon’ble Court had erred in its decision when it held that the power under Section 156(3) could only be exercised at the pre-cognizance stage.

However, it is critical to note that the Devarapalli judgement did not deal with Section 173(8) but resolved a private complaint dispute. Therefore, many critics have considered that the finding in paragraph 26 of the judgement is not ratio decidendi of the case but merely obiter. A few senior advocates are of the view that a decision made by a three-judge bench cannot be overruled by another three-judge bench. 

Significance of Vinubhai Haribhai Malaviya vs. State of Gujarat (2019)

The landmark judgement in Vinubhai Haribhai Malaviya v. State of Gujarat has played a noteworthy role in expanding the scope of judicial supervision in criminal proceedings, especially criminal investigations. The issue of the Magistrate’s power to order further investigation has long been marked by uncertainty and lack of clarity because of various differing judgements. Therefore, in the present day, this judgement has great significance for the legal fraternity which can be understood as follows 

  • The Supreme Court has clarified that the Magistrate’s authority to order further investigation is not limited to the pre-cognizance stage, making justice more accessible. 
  • The decision intends to safeguard the right to a fair trial as enshrined under Article 21 of the Constitution of India, by providing another opportunity to get assistance from the investigating agencies. 
  • It has been reiterated in the judgement that justice should not only be done but also seen to be done; procedures in criminal trials must be just, fair and reasonable.
  • The judgement ensures thorough investigation i.e. collection of every possible evidence in criminal cases by reinterpreting Sections 2(h), 156(3) 173(8). 
  • Several judicial precedents that restricted the powers of the Magistrate were overruled by this judgement, thus, marking a critical development in the Indian criminal jurisprudence.
  • Ultimately, through this broad and expansive interpretation, a balance has been achieved between the rights of the accused and those of the prosecution.

Changes in criminal laws 

The legal provisions discussed in this case have not undergone any substantial changes except the rearrangement of the sections. Section 2(h) of CrPC which defines the investigation is now covered under 2(l) of the new criminal procedure i.e. Bhartiya Nagrik Suraksha Sanhita. The powers of a police officer to investigate a cognizable offence, as described under Section 156(3) of CrPC have now moved to Section 175(3) of BNSS. Lastly, the power of the police to further investigate a case is now given under Section 193(9) of BNSS as against Section 173(8) of CrPC. 

The only alteration made to this power of further investigation of the police is the proviso that has been added to section 193(9), which imposes a duty on the police officer to seek permission from the Court to investigate further after the trial has begun. Although it falls close to the process discussed under the Vinubhai judgement, it does not really affect or get affected by the operative discussion that was undertaken under the said judgement. Rather, the injection of 193 (90 in the new CrPC or BNSS makes it clearer as to what the expanse of the word ‘investigation’ and the question of whether investigation transgresses into the realm of trials, in addition to pre-cognizance plus the post cognizance stage that has been affirmed in the Vinubhai judgement to be encompassed under investigation? 

The answer now is a clear no and one can understand that the legislative intent is to allow investigative agencies to investigate a matter up till the stage of framing of charges after which the trial starts and to continue any further, they will have to get permission from the Court trying the matter in question. 


There is no denial that the Supreme Court should be praised for such an exhaustive analysis of various provisions of CrPC, judicial precedents, and, most importantly, the power of the Magistrate to order further investigation. However, at the same time, this judgement is one of the most challenging judgements of the Supreme Court and needs to be more easily comprehensible. 

Ensuring that there is balance in the rights given under Article 21, i.e., the right to fail trial and speedy trial, the Bench had directed that an FIR should be registered within 7 months of the date of judgement and the report on the basis of that investigation must be submitted within 3 months of the registration of the FIR. To conclude, the Magistrate has very wide powers under CrPC that must be exercised with due diligence at all times to ensure that criminal proceedings are conducted on the basis of principles enshrined under the Constitution, especially Article 21. 

Frequently Asked Questions (FAQs)

Can an accused file an application for reinvestigation under Section 173(8) CrPC?

As discussed in the above case, by virtue of Section 2(h) read with Section 156(3), the Magistrate has incidental and implied powers to not only order registration of the FIR and investigation of an offence but also further investigation/ reinvestigation. Therefore, an accused can file an application under Section 156(3) instead of Section 173(8).

What is the value of obiter in a judicial proceeding?

There are two parts to a judgement, ratio decidendi and obiter. Ratio decidendi is the ratio and rationale behind a judgement that is binding on all courts. Obiter, on the other hand, is an incidental discussion amongst the judges. Although obiter is not binding, it has persuasive value. A judicial precedent set up by the Supreme Court is not overruled by the obiter.

Whether a person can be arrested under Section 202 CrPC?

If the case warrants it, the Magistrate can order an investigation under Section 202, and if sufficient evidence is produced before the Court against the accused, the Magistrate can issue a warrant of arrest against the accused. Thus, it can be concluded that a person can be arrested under Section 202 of the CrPC.


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