The main legal point established in the judgment is that while Section 36 of the Cr.P.C. allows superior police officers to exercise the same powers as an officer in charge of a police station, there is no statutory authority to delegate the power of investigation to an inferior officer.

A nice question of law has arisen for consideration in this petition “Whether a police officer exercising his power under Section 36 of Cr.P.C. while taking out the investigation of a case from an officer in charge of police station, can transfer the investigation to another police officer inferior to him?”

2. The fact is:

The forth respondent herein filed a private complaint before the jurisdictional Magistrate under Section 200 r/w. Section 190 of Cr.P.C. in respect of the offences punishable under Sections 403, 406, 409, 420, 464, 468, 471, 477A, 385 and 120B of IPC and the learned Magistrate acting under Section 156(3) of Criminal Procedure Code (hereinafter referred to as ‘the Code’) referred the matter for investigation, vide order dated 01.10.2014 to the first respondent police and the case is registered in crime No.447/2014 on 11.10.2014.

3. It appears that on a representation made by the wife of the complainant, the Commissioner of Police/first respondent transferred the investigation to the Central Crime Branch. On the first respondent’s representation to the Court seeking permission to transfer the investigation, the accused persons have approached this Court.

4. Sri Arvind Kamath .K, learned Counsel for petitioners submits that when the JMFC Court had referred the investigation to the jurisdictional local police, the first respondent/Commissioner of Police has no authority to intervene and meddle with the investigation. It is not the prerogative of the complainant to select a particular investigating agency as held by the Apex Court in the case of CBI and Another Vs. Rajesh Gandhi and Another reported in 1997 Crl.L.J 63. Even if the complainant is not happy with the mode in which investigation is proceeding, the only avenue open for him is to approach the Magistrate who referred investigation under Section 156(3) of the Cr.P.C. for the redressal of his grievance. The Magistrate if convinced may order for proper investigation as held by the Apex Court in Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in AIR 2008 SC 907. The investigation cannot be handed over to CCB, but shall continue as per the order of the Magistrate with the jurisdictional police only.

5. In reply, Sri C.V. Sudhindra, learned Counsel for respondent No.4 submits that the petitioners and the fourth respondent/complainant are the partners of a registered partnership firm; the petitioner was the Managing Partner, in view of the differences that arose inter se, it was impossible for the complainant to continue to work as Managing Partner; he had to resign from the position of Managing Partner, but he had not rescinded from the partnership of the firm; the accused persons treated his letter of resignation as the retirement from the partnership firm, though it was in respect of his designation as Managing Partner, they concocted documents and notified to the bank and financial institutions that he has resigned. Thus blocked his access to firm and firm’s emails etc. On that he was constrained to file a complaint to the jurisdictional JMFC Court, though the complaint was referred on 29.09.2014 for investigation, the Investigating Officer did not register the case and investigation did not gain speed.

That made the complainant to doubt that the local police are in hand and glove with the accused persons. There is nothing wrong on the part of the Commissioner to act on the representation of his wife, who is also complaint witness to exercise his jurisdiction under Section 36 of the Code in transferring the investigation to the Police Officer of the same rank. The law laid down by the Apex Court in Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in AIR 2008 SC 907 that Magistrate can order a proper investigation and take other suitable steps is perincurium and its correctness was doubted in Nirmal Singh Kahlon Vs. State of Punjab reported in 2009 (1) SCC 441 at Para No.68 and in Kishan Lal Vs. Dharmendra Bafna reported in AIR 2009 SC 2