Full Judgment Text
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CASE NO.:
Appeal (crl.) 1163-66 of 1998
Appeal (crl.) 1162 of 1998
Appeal (crl.) 42 of 2001
PETITIONER:
CENTRAL BUREAU OF INVESTIGATION THROUGH S.P., JAIPUR
Vs.
RESPONDENT:
STATE OF RAJASTHAN AND ANOTHER
DATE OF JUDGMENT: 19/01/2001
BENCH:
R.P.Sethi, K.T.Thomas
JUDGMENT:
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J U D G M E N T
THOMAS, J. Has a magistrate power to direct the
Central Bureau of Investigation to conduct investigation
into any offence? This question, seemingly ingenuous, has
become compounded with divergent verdicts pronounced by
different High Courts. When the High Courts of Rajasthan
and Delhi answered the question in the affirmative, the High
Courts of Gujarat and Karnataka have answered it in the
negative. These appeals are filed at the instance of the
Central Bureau of Investigation (for short CBI) in
challenge of the judgments of the High Courts of Rajasthan
and Delhi by which the orders passed by certain magistrates
were upheld.
It is not necessary to narrate the facts in each case.
The common feature in all the appeals is, when a complaint
was filed before a magistrate alleging serious offences, he
ordered investigation to be conducted by the CBI and on
completion of the investigation final report was required to
be filed. We may now mention what happened thereafter to
one of the cases before us. The CBI challenged the order of
the magistrate before the High Court of Delhi contending
that the magistrate has no jurisdiction to order the CBI to
conduct the investigation, at least without obtaining
consent of the State Government concerned as required under
Section 6 of the Delhi Special Police Establishment Act,
1946, (Delhi Act for short). The CBI sought support for
the said contention from some of the earlier decisions
rendered by single judges of the Delhi High Court. When the
matter was placed before a Division Bench of the Delhi High
Court, a contrary view was taken and the Bench held that the
magistrate has the power to do so. The Division Bench of
the Delhi High Court, in reaching the said view, has mainly
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relied on the observations made by this Court in State of
West Bengal & ors. vs. Sampat Lal & ors. {1985 (1) SCC
317}. Learned Judges highlighted the following observation
contained in Sampatlal: In our considered opinion, Section
6 of the Delhi Act does not apply when the Court gives a
direction to the CBI to conduct an investigation and counsel
for the parties rightly did not dispute this position. In
this view, the impugned order of the learned Single Judge
and the appellate decision of the Division Bench appointing
DIG of CBI to inquire into the matter would not be open to
attack for want of sanction under Section 6 of the Delhi
Act.
Learned Judges gave emphasis to the words when the
court gives a direction to the CBI to conduct an
investigation. The Division Bench of the High Court took
it for granted that what this Court meant by the word
court as used in the said observation in Sampat Lal should
be understood as any court. The Division Bench declined to
accept the view of the Karnataka High Court (in one of the
decisions) that what the Supreme Court meant in Sampat Lals
case is the High Court and not any court.
It is unnecessary for us to resolve the controversy
fomented up with the expression court in Sampat Lal
because the question whether a magistrate has the power to
direct the CBI to conduct the investigation was not the
issue involved in Sampat Lal at all. The fact situation in
Sampat Lal was centered on the direction issued by the High
Court. That apart, it is not advisable to read more than
what is contained in a judgment.
For deciding the present question we may refer to the
powers of the magistrate in ordering investigation. There
are three provisions in the Code of Criminal Procedure (for
short the Code) by which a magistrate can order
investigation to be conducted. They are Sections 155, 156
and 202 of the Code. Among them Section 155 concerns only
with the investigation into non-cognizable offences whereas
Section 202 only enables a magistrate to have the assistance
of an investigation conducted either by the police or by any
other person, for the limited purpose of deciding whether or
not there is sufficient ground for proceeding with the
complaint. Hence we need not vex our mind with those two
provisions. It is Section 156 of the Code which is relevant
for the present purpose as it deals with investigation into
cognizable offences. The section reads thus: 156. Police
officers power to investigate cognizable cases.- (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.
(2) No proceeding of a police officer in any such case
shall at any stage be called in question on the ground that
the case was one which such officer was not empowered under
this section to investigate.
(3) Any Magistrate empowered under section 190 may
order such an investigation as above-mentioned.
If the power of a magistrate to order investigation by
the CBI in non-cognizable cases cannot be traced in the
above provision, it is not possible to trace such power in
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any other provision of the Code. What is contained in sub-
section (3) of Section 156, is the power to order the
investigation referred to in sub-section (1), because the
words order such an investigation as above-mentioned in
sub-section (3) are unmistakably clear as referring to the
other sub-section. Thus the power is to order an officer
in charge of a police station to conduct investigation.
The two expressions police station and officer in
charge of a police station have been given separate
definitions in the Code. Section 2(o) of the Code defines
officer in charge of a police station as under:
Officer in charge of a police station includes, when the
officer in charge of the police station is absent from the
station- house or unable from illness or other cause to
perform his duties, the police officer present at the
station-house who is next in rank to such officer and is
above the rank of constable or, when the State Government so
directs, any other police officer so present.
Section 2(s) defines a police station as under:
Police station means any post or place declared generally
or specially by the State Government, to be a police
station, and includes any local area specified by the State
Government in this behalf.
It is clear that a place or post declared by the
Government as police station, must have a police officer in
charge of it and if he, for any reason, is absent in the
station-house, the officer who is in next junior rank
present in the police station, shall perform the function as
officer in charge of that police station. The primary
responsibility for conducting investigation into offences in
cognizable cases vests with such police officer. Section
156(3) of the Code empowers a magistrate to direct such
officer in charge of the police station to investigate any
cognizable case over which such magistrate has jurisdiction.
In this context a reference has to be made to Section
36 of the Code which says that police officers superior in
rank to an officer in charge of a police station may
exercise the same powers, throughout the local area to which
they are appointed, as may be exercised by such officer
within the limits of his station.
This means any other police officer, who is superior
in rank to an officer in charge of a police station, can
exercise the same powers of the officer in charge of a
police station and when he so exercises the power he would
do it in his capacity as officer in charge of the police
station. But when a magistrate orders investigation under
Section 156(3), he can only direct an officer in charge of a
police station to conduct such investigation and not a
superior police officer, though such officer can exercise
such powers by virtue of Section 36 of the Code.
Nonetheless when such an order is passed, any police
officer, superior in rank of such officer, can as well
exercise the power to conduct investigation, and all such
investigations would then be deemed to be the investigation
conducted by the officer in charge of a police station.
Section 36 of the Code is not meant to substitute the
magisterial power envisaged in Section 156(3) of the Code,
though it could supplement the powers of an officer in
charge of a police station. It is permissible for any
superior officer of police to take over the investigation
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from such officer in charge of the police station either suo
motu or on the direction of the superior officer or even
that of the government.
In a decision rendered by the Kerala High Court the
complaint was forwarded by a magistrate to the Inspector
General of Police (Crimes) for investigation under Section
156(3) of the Code. When the State challenged the said
order of the magistrate the High Court held that a
magistrate cannot order any police officer, other than one
who is in charge of a police station to conduct the
investigation, though the Government in exercise of their
executive powers can authorise any superior police officer
to investigate a case and such direction can be issued by
the higher officer to his subordinate officer in the police
department. The said decision is reported in State of
Kerala vs. Moosa Haji {1993 (2) K.L.T. 609 and also in
1994 Criminal Law Journal 1288}. A two Judge Bench of this
Court (G.N. Ray and G.B. Pattanaik, JJ) has affirmed the
said decision of the Kerala High Court as per order dated
8.4.1997 in Criminal Appeal No.410 of 1994. The principle
involved in the said case would as well be applicable when
the magistrate is approached to direct the CBI for
conducting the investigation.
Section 5 of the Delhi Act enables the Central
Government to extend the powers and jurisdiction of members
of the Delhi Police Establishment to any area in a State.
Section 6 of the Delhi Act says that nothing contained in
Section 5 shall be deemed to enable any member of the Delhi
Special Police Establishment to exercise powers and
jurisdiction in any area in a State, not being a Union
Territory or railway area, without the consent of the
Government of that State. A contention was made before us
that when the State Government gives consent for the CBI to
investigate any offence within the area of the State it
would be permissible for the magistrate to direct the
officer of the CBI to conduct such investigation. What is
envisaged in Sections 5 & 6 of the Delhi Act is not one of
conferring power on a magistrate to order the CBI to conduct
investigation in exercise of Section 156(3) of the Code.
True, powers of the High Court under Article 226 of
the Constitution and of the Supreme Court under Article 32
or Article 142(1) of the Constitution can be invoked, though
sparingly, for giving such direction to the CBI to
investigate in certain cases, [vide Kashmeri Devi vs. Delhi
Administration and anr. {1988 (Supple.) SCC 482} and
Maniyeri Madhavan vs. Sub-Inspector of Police and ors.
{1994 (1) SCC 536}]. A two Judge Bench of this Court has by
an order dated 10.3.1989, referred the question whether the
High Court can order the CBI to investigate a cognizable
offence committed within a State without the consent of that
State Government or without any notification or order having
been issued in that behalf under Section 6 of the Delhi Act.
In Mohammed Anis vs. Union of India and ors. {1994
Supple (1) SCC 145} Ahmadi, J. (as his Lordship then was)
has observed thus: True it is, that a Division Bench of
this Court made an order on March 10, 1989 referring the
question whether a court can order the CBI, an establishment
under the Delhi Special Police Establishment Act, to
investigate a cognizable offence committed within a State
without the consent of that State Government or without any
notification or order having been issued in that behalf. In
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our view, merely because the issue is referred to a larger
Bench everything does not grind to a halt. The reference to
the expression court in that order cannot in the context
mean the Apex Court for the reason that the Apex Court has
been conferred extraordinary powers by Article 142(1) of the
Constitution so that it can do complete justice in any cause
or matter pending before it.
As the present discussion is restricted to the
question whether a magistrate can direct the CBI to conduct
investigation in exercise of his powers under Section 156(3)
of the Code it is unnecessary for us to travel beyond the
scope of that issue. We, therefore, reiterate that the
magisterial power cannot be stretched under the said
sub-section beyond directing the officer in charge of a
police station to conduct the investigation.
The appeals are accordingly allowed and the impugned
orders of the magistrates as well as the judgments of the
High Court are hereby set aside. But this would not
prejudice any investigation to be conducted on the FIR
registered or to be registered by the police station
concerned in respect of the complaints involved in these
appeals.
In Criminal Appeal No.1165 of 1998, when special leave
was granted the orders of the magistrate directing the CBI
to conduct investigation were stayed. However, this Court
permitted the complainant in the case, to move the
magistrate again for appropriate order for investigation of
the offences. Pursuant thereto a direction was given by the
magistrate concerned to the officer in charge of Hari Nagar
Police Station, New Delhi, and on the strength of the said
direction FIR No.32/99 was registered. We considered the
facts alleged in the said case and we deem it that it
requires to be investigated by a specialised agency, like
the CBI. Hence we order the CBI to take up investigation in
FIR No.32/99 of Hari Nagar Police Station. These appeals
are disposed of accordingly.