VERY IMPORTANT POINTS
1. A Magistrate has no power to direct CBI to conduct investigation into any offence. He can direct an Officer-in-Charge of a Police Station to conduct investigation into cognizable offence under Section 156(3) of Cr.P.C.
2. High Court has power under Article 226 and Supreme Court has power under Articles 32 and 142(1) of the Constitution for giving such direction to the CBI to conduct investigation in certain cases of cognizable offence 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 Delhi Special Police Establishment Act, 1946 under which CBI is an establishment.

Headnote:(i) Code of Criminal Procedure, 1973-Section 156(3)-Investigation into cognizable offences-Whether a Magistrate has power to order investigation by the CBI in non-cognizable cases? (No)-Effect of Section 36 of the Code on Section 156(3)-Whether it substitutes or supplements? (the later)-Delhi Special Police Establishment Act, 1946-Sections 5 and 6-Whether Sections 5 and 6 of Delhi Act confer power on a Magistrate to order the CBI to conduct investigation in exercise of power under Section 156(3) of the Code? (No)-Effects-Appeals allowed accordingly-Case Law reviewed.
       Held : 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. (Para 6)
       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. (Para 8)
       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 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. (Para 10)
       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. (Para 12)
       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. (Para 15)
       Held consequently : 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. (Para 16)
       (ii) Constitution of India-Articles 226 and 32 read with Article 142(1)-Powers of High Court and Supreme Court to direct investigation into cognizable offences by CBI-Whether can be invoked? (Yes, but sparingly)-Whether it has to be invoked in the facts of Criminal Appeal No. 1165 of 1998? (Yes)-Order accordingly-Case Law referred.
       Held : 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 (Para 13)
       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. (Paras 17 & 18)

Judgement Key Points

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JUDGMENT

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.

2. 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 relied on the observations made by this Court in State of West Bengal & Ors. v. Sampat Lal & Ors.1. 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."

3. 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 Lal s case is the High Court and not any court.

4. It is unnecessary for us to resolve the controversy formented 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.

5. 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 no

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2001 Supreme(SC) 119

Cases Referred (4)