No Mechanism U/S 190 CrPC Empowering Magistrate To Direct Further Investigation Suo Moto Or On Application By Any Person: Madhya Pradesh High Court

The Madhya Pradesh High Court recently held that Section 190 CrPC does not empower a Magistrate to suo moto pass directions for further investigation in a matter.

The bench comprising Justice Sanjay Dwivedi observed that once cognizance of a matter is taken, the Magistrate cannot direct for further investigation-

After considering the cases relied by learned counsel for the petitioner and as per the relevant provisions of Cr.P.C., it is clear that in Section 190 of Cr.P.C., the expression “taking cognizance” means the Magistrate should apply his mind on the facts mentioned in the complaint with a view to take further action. The Magistrate on the basis of the material placed in the charge-sheet, if satisfied to take cognizance then exercising power provided under Section 190 of Cr.P.C., he may take cognizance or can discharge the accused but there is no mechanism available under Section 190 of Cr.P.C. empowering the Magistrate to direct for further investigation suo moto or even on application by any person. It is observed by the Supreme Court that even considering the provision that the Magistrate can direct investigation under Section 156(3) of Cr.P.C. before the stage of taking cognizance but once cognizance is taken, the Magistrate cannot direct for further investigation.

Facts of the case were that a government officer had got a FIR registered against certain individuals, which did not include or make a mention of the Petitioner. Subsequently, a charge-sheet was filed in the matter, but the investigation was kept open as per the provision under Section 173(8) CRPC. Thereafter, an application under Section 190 CRPC was moved by the Complainant before the trial court. Allowing the said application, the lower court directed the investigating agency to investigate the matter with respect to role of the Petitioner since it had already taken cognizance of [In/of? kindly review] the matter wherein the Petitioner was accused of multiple offence punishable under the IPC. The Petitioner filed a revision against the impugned order before the lower appellate court but the same was dismissed. Aggrieved, the Petitioner moved the Court, praying that the order taking cognizance, the impugned order, and its subsequent proceedings against him be quashed.

The Petitioner submitted before the Court that the impugned order suffered form want of jurisdiction as a direction for further investigation cannot be passed under Section 190 CRPC. It was asserted that under Section 190 CRPC, the Magistrate can either take cognizance of the offences or can discharge the accused. It further argued that in case the investigating agency wishes to keep the investigation open, they may do so as per the provision under Section 173(8) CRPC. However, in case the investigating agency implies that no case is made out against an individual, the trial court cannot suo moto direct for further investigation.

Examining the submissions of parties and documents on record, the Court concurred with the arguments put forth by the Petitioner. The Court noted that there is no mechanism available under Section 190 CRPC empowering the Magistrate to direct for further investigation suo moto or even on application by any person. It observed that the Magistrate, under Section 156(3) CRPC, can direct investigation but only before the stage of taking cognizance. Once the cognizance is taken, the Magistrate cannot direct for further investigation.

The Court observed that the charge-sheet in the case was submitted but the investigation was kept open against other accused persons but not the Petitioner. Thereafter, the Magistrate took cognizance of the offences vis-à-vis the other accused as well as the Petitioner and directed the investigating agency to collect material against the Petitioner. This, accordingly to the Court, was procedural illegality[Kindly review] -

As per the settled principle of law, if the statute provides that things are to be done in a particular manner then it should be done in that manner only and not otherwise. Undoubtedly, the Magistrate has power to direct investigation or for further investigation under Section 156(3) of Cr.P.C. but not at this stage when the Court has exercised the power under Section 190 of Cr.P.C. In the present case, the Court below has done so and, therefore, the order dated 24.11.2022 is illegal and contrary to law.

With the aforesaid observations, the Court held that the order on/of cognizance [Kindly review] was bad in law. Accordingly, the petition was allowed and the impugned order was set aside.

Case Title: Krishna Pati Tripathi v. State of M.P. & Ors. [W.P. 29159/2022]

Case Citation: 2023 LiveLaw (MP) 56