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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.