TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1428
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.... 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 Power-of-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), Dist....
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....e 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 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 separ....
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....the applications for further investigation are concerned. Pursuant to the aforesaid remand, by judgment dated 23.04.2016, the learned Additional Sessions Judge has rejected the application Under Section 156(3) of the Code of Criminal Procedure 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 Code of Criminal Procedure, 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....
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....le "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 Warrant-Cases by Magistrates"; "Trials of Summons-Cases by Magistrates"; and Summary Trials", respectively. 11. The relevant Sections of the Code of Criminal Procedure 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.- xxx xxx xxx (8) Nothing in this Section shall be deemed....
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....f 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. (3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shal....
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....ode 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Commiss....
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....by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the Code of Criminal Procedure that must needs inform the interpretation of all the provisions of the Code of Criminal Procedure, so as to ensure that Article 21 is followed both in letter and in spirit. 18. Pooja Pal v. UOI (2016) 3 SCC 135 is an important judgment which speaks of the fundamental right Under Article 21 of the Constitution in the context of the goal of "speedy trial" being tempered by "fair trial". The Court put it thus: 83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial ....
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....on is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast Rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice. 19. With the introduction of Section 173(8) in the Code of Criminal Procedure, 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 before us is as to whether the Magistrate can order further investigation after a police report has been forwarded to him Under Section 173. 20. It is interesting to note that even under the Code of Criminal Procedure, 1898, in Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC 91, this Court he....
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....recognised by this decision is that in the circumstance that the Magistrate does not agree with the police report, he may order further investigation-which is done in his capacity as a supervisory authority in relation to investigation carried out by the police. 22. Indeed, Section 156(3) has remained unchanged even after the advent of the Code of Criminal Procedure of 1973. Thus, in State of Bihar v. J.A.C. Saldhana and Ors. (1980) 1 SCC 554, this Court held: 19. The power of the Magistrate Under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate Under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Likewise, in Sakiri Vasu v. S....
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.... its duties under Chapter XII Code of Criminal Procedure In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation Under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [ (1980) 1 SCC 554 : 1980 SCC (Cri.) 272 : AIR 1980 SC 326] (SCC: AIR para 19). 17. In our opinion Section 156(3) Code of Criminal Procedure is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Code of Cr....
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....ers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation Under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power Under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence Under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation Under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence Under Sectio....
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....na Reddy (supra) cannot be relied upon. 27. Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322, is an early judgment which deals with the power contained in Section 173(8) after a charge-sheet is filed. This Court adverted to the Law Commission Report and to a number of judgments which recognised the right of the police to make repeated investigations under the Code of Criminal Procedure, 1898. It then quoted the early Supreme Court judgment in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 case as follows: 17. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri. LJ 526] this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case. While noticing that a police report resulting from an investigation was provided in Section 190 Code of Criminal Procedure as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the court to take cognizance. It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity....
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....s already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the Accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved Accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fre....
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.... 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 Code of Criminal Procedure, direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the complainant (see paragraph 13 therein). 29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 is an important judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held: 11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. 12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, i....
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....owers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that track. If they come to the same conclusion, it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge's direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck. 17. In Bhagwant Singh v. Commr. of Police [ (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] a three-Judge Bench of this Court has said, though in a slightly dif....
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....g officer would be governed by Sub-sections (2) to (6) of Section 173 Code of Criminal Procedure. 31. In Samaj Parivartan Samudaya (supra), a Three Judge Bench of this Court, while dealing with illegal mining in Andhra Pradesh and Karnataka, issued directions to the CBI to investigate the entire matter (despite private complaints already pending and being investigated by one or other competent Court or investigation agency), as a Central Empowered Committee Report disclosed fresh facts as to illegal mining in these States. In a review of the machinery of criminal investigations under the Code of Criminal Procedure, this Court held: 27. Once the investigation is conducted in accordance with the provisions of Code of Criminal Procedure, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated Under Section 173 Code of Criminal Procedure, upon which the Magistrate can proceed to try the offence, if the same were triable by such court or commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) Code of Criminal Procedure open with non obstante language that nothing in the provisions of Secti....
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....ncy, after presentation of a challan (charge-sheet in terms of Section 173 Code of Criminal Procedure) is permissible in any case impliedly but in no event is impermissible. xxx xxx xxx 37. We may notice that the investigation of a case or filing of charge-sheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as Accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished. 32. In Gulzar Ahmed Azmi v. Union of India and Ors. (2012) 10 SCC 731, this Court, while rejecting an argument that further investigation by the police should be entrusted with a supernumerary body created under the head of a retired Supreme Court Judge along with other officers and experts, held that if furt....
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....asmana v. CBI [ (2001) 7 SCC 536 : 2001 SCC (Cri.) 1280] where the Court held that although the said Section does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the Magistrate, in exercise of powers Under Section 173(8) of the Code can direct CBI to further investigate the case and collect further evidence keeping in view the objections raised by the Appellant to the investigation and the new report to be submitted by the investigating officer, would be governed by Sub-section (2) to Sub-section (6) of Section 173 of the Code. There is no occasion for the Court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the b....
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....1051], Ram Naresh Prasad v. State of Jharkhand [Ram Naresh Prasad v. State of Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri.) 1336. Ed.: Ram Naresh case does not seem to indicate that the Magistrate cannot suo motu direct further investigation: rather it seems to indicate that the Magistrate in fact can do so.] and Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] ] that a Magistrate cannot suo motu direct further investigation Under Section 173(8) of the Code or direct reinvestigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge-sheet where the police submits a report that no case had been made out for sending up an Accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo motu direct further investigation. 38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report Under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require the pol....
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....rmity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] by a three-Judge Bench and thus in conformity with the doctrine of precedent. 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own. 40.6. It has b....
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.... law should be accepted as part of the interpretative process. 50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic Rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/Accused. 51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct "further investigation" on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such appro....
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....ration of justice making adequate provisions to ensure a fair and efficacious trial so that the Accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Code of Criminal Procedure indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. In paragraph 34, this Court adverted to Common Cause v. Union of India (1996) 6 SCC 775, and dealt with when trials before the Sessions Court; trials of warrant-cases; and trials of summons-cases b....
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....been given to mean something other than the actual trial. A clear distinction between "inquiry" and "trial" was thereafter set out in paragraph 54 as follows: 54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an Accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate te....
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....on on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. 50. The unamended and the amended Sub-section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorised to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifestly heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone. 51. In contradistinction, Sections 156, 190, 200, 202 and 204 Code of Criminal Procedure clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation Under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once ....
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....ss can be summoned by a court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court. 37. This judgment was followed in a recent Division Bench judgment of this Court in Athul Rao v. State of Karnataka and Anr. (2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi (2019) 5 SCC 542, after referring to a number of decisions this Court concluded as follows: 7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of Code of Criminal Procedure, namely, Sections 167(2), 173, 227 and 228 Code of Criminal Procedure, what is emerging is that after the investigation is concluded and the r....
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....er and the report submitted by the investigating officer Under Section 173(2)(i) Code of Criminal Procedure, as observed by this Court in a catena of decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the Accused, we are afraid that thereafter the Magistrate can suo motu order further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo motu direct the investigating officer for further investigation and submit the report. In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 Code of Criminal Procedure However, at the same time, considering the provisions of Section 173(8) Code of Criminal Procedure, it is always open for the investigating agency to file a....
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....h a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) 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 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 midway 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 power....
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....65 and Dinubhai Bhogabhai Solanki v. State of Gujarat and Ors. (2014) 4 SCC 626, which state that the Accused has no right to be heard at the stage of investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable. Further, Babubhai v. State of Gujarat and Ors. (2010) 12 SCC 254, is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate's power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further. Likewise, Romila Thapar v. Union of India, (2018) 10 SCC 753, held that an Accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court-monitored investigation. This judgment also is far removed from the question that has been decided by us in the facts of this case. 41. When we come to the facts of this case, it is clear that the FIR dated ....
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....ill the real particulars in this matter are not becoming clear, it is appearing necessary to stop the NA Permission/Construction activities. Therefore, after making necessary proceedings in that regard, detailed report having basis of the proceedings done is to be immediately submitted to the undersigned and periodical information of the proceedings done in this matter also be given to the undersigned. 42. Given the allegations in the communication of 15.03.2011, we are 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 learned Commissioner in the said letter, we are 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. 43. We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation. However, given that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursu....