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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.