Whether a Magistrate is empowered under Section 156(3) Cr.P.C. to direct the Crime Branch CID to investigate an offence?

The  extract  of Section 156 Cr.P.C.:

“156. Police officer’s 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.”

Local area over which a Magistrate has jurisdiction is traceable to Section 2(j) of the Code, which reads as follows:

“(j) “local jurisdiction”, in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify.”

From an anyalysis of these provisions, it is abundantly clear that an Officer-in-charge of a Police Station can investigate a cognizable offence which can be enquired into or tried by a Magistrate having jurisdiction over the area. The expression “such an investigation as abovementioned” employed in Section 156(3) Cr.P.C. does not give wholesale power to a Magistrate to direct the Officer in- charge of any Police Station to investigate an offence. The Magistrate can only order the Officer-in-charge of a Police Station that falls within his territorial jurisdiction to investigate an offence. This issue has been clearly settled by the Supreme Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan [(2001) Crl.L.J. 968]. Paragraphs 8 and 15 from the said ruling will clinch the issue beyond any pale of doubt.
“8. 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.

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.”

Very recently in Chandra Babu @ Moses v. State through Inspector of Police [2015 (7) Scale 529] the Hon’ble Supreme Court had on occasion to consider the power of a Magistrate under Section 173(8) Cr.P.C. to direct the CB CID to conduct further investigation. While discussing this aspect, the Hon’ble Supreme Court has stated thus:

“21.We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency.”

Thus the CB CID is an elite force within the police Department that has been constituted to investigate cases, on the orders of Supreme Court, High Court, Government and Director General of Police. Therefore, the direction issued by the Magistrate to the CB CID under Section 156(3) Cr.P.C. to investigate is not sustainable.

In Chandra Babu alias Moses v. State through Inspector of Police and others, (2015) 8 SCC 774,

the appellant had filed a FIR with the Kulasckaram Police Station against the respondents-accused alleging unlawful assembly and assault resulting in multiple injuries. After the initial investigation, the same was transferred to the District Crime Branch Police, Kanyakumari which eventually filed a final report in favour of the respondents-accused, which was accepted by the learned Magistrate. Meanwhile, however the appellant/informant filed a protest petition before the Magistrate praying for a direction to the CBCID to reopen the case and file a fresh report. As before any decision on this protest petition, the final report filed by the police had already been accepted, the appellant approached the High Court, which called for the report from the learned Magistrate and finally interfered with the order accepting the final report and directed the Magistrate to consider the same along with the protest petition. The Magistrate next held that there was no justification for ordering reinvestigation of the case and directed that the protest petition be treated as a separate private complaint.

This order being challenged again before the High Court, the matter was remanded to the learned Magistrate with a direction to consider the final report and the other materials on record and pass appropriate orders after hearing both the public prosecutor and the de facto complainant. This time, the learned Magistrate returned a finding that the investigation by the District Crime Branch was a biased one and that the final report was not acceptable and consequently forwarded the complaint for further investigation by the CBCID, which was a different investigating agency. The matter was taken to the High Court by one of the respondents/accused, whereupon it annulled the direction of the learned Magistrate for reinvestigation, holding that not only there were material discrepancies in the evidence brought on record, but also there was no exceptional circumstance for such a course to be adopted by the Magistrate. It was also of the view, having regard to the scheme of the Section 173(8) of the Code that the investigating officer only could request for further investigation.

While disapproving the approach of the High Court in reappreciating the facts in the exercise of its revisional jurisdiction, this Court adverting, amongst others to the three Judge Bench exposition in Bhagwant Singh (supra) reiterated that a Magistrate could disagree with the police report and take cognizance and issue process and summon the accused, if satisfied as deemed fit in the attendant facts and circumstances. The rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately expounded that the learned Magistrate had really intended to direct further investigation, but as a different investigating agency had been chosen, the word re-investigation had been used. This Court thus construed the direction for investigation by the CBI to be one for further investigation and upheld the same, but nullified the selection of a new investigating agency therefor. As a corollary, the investigating agency that had investigated the case earlier and had submitted the final report, was directed by apex Court to undertake further investigation to be supervised by the Superintendent of Police and to submit a report before the learned Chief Judicial Magistrate to be dealt with in accordance with law.

Calcutta High Court in Dilip Kumar Roy vs The State And Anr. on 5 July, 1994
Equivalent citations: 1994 Cri LJ 3489 held : 

“In the instant case, as it appears from the impugned order, certain materials were not seized which are very material for the purpose of the case and are lying in the office of the respondent No. 2. The allegations are of serious nature of cheating, criminal breach of trust by public servant and criminal conspiracy. From the impugned order it appears that the investigating authority acted negligently and carelessly. In such circumstances the learned Sub-Divisional Judicial Magistrate directed further investigation by an agency other than the criminal investigation” department, which was investigated by a Sub-Inspector of Police. The learned Sub-Divisional Judicial Magistrate directed investigation by a higher authority not below the rank of Inspector of Police. He is also under the D.I.G. C.I.D. West Bengal. His jurisdiction is all over West Bengal and if an officer subordinate to him is directed to conduct investigation, in my view, there is no illegality and irregularity in that. In view of my above observation I am of the opinion that the impugned order of the learned S.D.J.M. does not call for any interference”.