Cr.P.C 1973 gives exhaustive power to a magistrate that it can order investigation under sec 156 (3) read with sec 190 before taking cognizance of an offence. It is imperative to read sec 156(3) and sec 190 in consonance. Magistrate can also order investigation under sec 202 after taking cognizance of complaint to check the fitness of complaint & protect frivolous, vexatious complains from getting admitted. But whether the magistrate has the power to order for investigation at post cognizance stage is a matter of question.
In case: AMRUTBHAI SHAMBUBHAI PATEL VS. SUMANBHAI KANTIBHAI (2017):- two Judge Bench of the Supreme Court held that Magistrate cannot order further investigation after the cognizance has been taken, process has been issued and accused has entered appearance in response thereto. The Bench comprising Justices Dipak Misra and Amitava Roy held that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefore to the Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto.
“At that stage, neither the Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand”, the Bench said.
The Bench said that the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto.The bench has also distinguished the power of Magistrate to order investigation under S.202(1) of Cr.PC. “The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not”, the Bench said.
STUDENT REPORTER, INBA