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  • Harish Shetty

ORDER OF INVESTIGATION AT VARIOUS STAGES OF CRIMINAL JUSTICE PROCESS

Harish Shetty,

NA Global Law School


CRIMINAL JUSTICE PROCESS

INTRODUCTION

Order of investigation by the court is one of the important steps in the criminal justice process. The provisions are very clear for direct complaints, whereas the provisions are not straightforward for cases where FIR is registered. We will take help from some landmark judgements to look into when and under what circumstances the court orders the investigation. Also this works differently for pre cognizance stage, post cognizance stage and trial stage. Let us now look into this one by one with the help of different provisions in Code of Criminal Procedure ( Cr.P.C) and case laws.

CRIMINAL JUSTICE PROCESS

Typically following is a very high level process of criminal justice.

●       The victim files a complaint in police station then FIR is registered.

●       Police completes the investigation and submits the police report to the court.

●       Court takes cognizance of the offenses and charges are framed.

●       Trial begins , evidence are presented, examination and cross of the witness is done.

●       Final Arguments

●       Decision

Section 190 of Cr.P.C. (Sec 190 Cr.P.C.) talks about the Cognizance of offenses by Magistrates. As per this section the cognizance can be taken by the magistrate under the following three circumstances/stages.

  1. 190(1)(a)- When complaint of facts is filed directly before the magistrate.

  2. 190(1)(b)- On completion of the police investigation and Police Report is submitted.

  3. 190(1)(c)- Information received from any person other than a police officer, or upon his own knowledge.

DIRECTS COMPLAINTS

Let us look into the power of the magistrate to order for investigation in cases other than submission of police reports i.e., when a complaint of facts is filed directly before the court.

Under Section 200 of Cr.P.C. (Sec 200 Cr.P.C.) the magistrate after taking cognizance of offenses can examine the complainant and witness. Even here in the pre cognizance stage if required the magistrate can order for investigation under Section 156(3) of Cr.P.C (Sec 156 CrPC).

After examination is done as per Sec 200, if the magistrate feels further investigation needs to be done, he can order for further investigation under Sec 202(1) (Sec 202 CrPC). So Cr.P.C is very clear on the power of the magistrate to order for investigation in both pre and post cognizance stages when the direct complaint of facts is made.

FIR CASES

On registration of FIR and completion of investigation the police report will be submitted by the police officer to the court. If the magistrate finds it necessary to order for investigation before taking cognizance of the offense, he can do so under Section 156(3) of Cr.P.C.

What about the post cognizance stage? Here the provisions in Cr.P.C are silent and we need to look into some of the landmark judgements to get a clear picture.

As we know in FIR cases the magistrate has power to order for investigation in the pre cognizance stage. The challenge is when there is a need for further investigation after cognizance is taken by the magistrate. Until 2019 in FIR cases only during the pre-cognizance stage the magistrate could order for investigation under Section 156(3) of Cr.P.C and not in the post-cognizance stage.

The following case was instrumental in clarifying the issue of order of investigation by the court even after cognizance has been taken.

  • Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 (Case : Vinubhai)

The court held that the magistrate has power to order further investigation under Section 156(3) of Cr.P.C even after submission of charge sheet. But this can be done only before the trial begins. So it's clear now that even after the magistrate takes cognizance of the offense he can order for further investigation but not later than the commencement of the trial.

Also we need to look at cases where the Charge sheet is filed with mistakes and based on the faulty charge sheet charges are framed and trial begins. Is there any remedy for the aggrieved party or is the law very rigid here? This was decided in the following case .

  • Anant Thanur Karmuse vs State Of Maharashtra on 24 February, 2023 (Case: Anant Thanur)

Fair trial is a Fundamental Right and for fair trial to happen fair investigation is must. It was held that after looking into facts and circumstances the courts have the power under Section 482 of Cr.P.C to order for re-investigation or further investigation even after the charges have been framed i.e., after commencement of the trial. This power should be used sparingly and to prevent grave injustice. In exceptional circumstances if necessary the court may direct a de novo investigation for preventing miscarriage of criminal justice.

CONCLUSION

The provisions in Cr.P.C. does not mention about the power of the court to order investigation after taking cognizance of offenses. But through case laws precedent has been set on how and when it can be done and also provide guidance to use this power sparingly in exceptional cases.

REFERENCES

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