A magistrate cannot direct any police officer, other than one who is in charge of the police station, to conduct the investigation under S. 156(3) of the Code.

Can a Magistrate, while ordering under S. 156(3) of the Code of Criminal Procedure (for short 'the Code'), direct the Inspector General of Police to conduct the investigation ? Answer to this question would resolve the dispute now raised by the State in the Criminal Miscellaneous case. A judicial magistrate of first class has forwarded a complaint filed before him to the Inspector General of Police (Crimes) and ordered him to conduct investigation into the complaint. State of Kerala now challenges the said order in this Crl. Miscellaneous case under S. 482 of the Code.

2. The complaint was filed by the first respondent against eight police personnel, among whom are included a DIG of Police, an Assistant Superintendent of Police, a Dy. Superintendent of Police, a Circle Inspector, two Sub-Inspector and two Constables. The complaint makes mention of an incident which happened at about 3 p.m. on 15-12-1991 in which a teenaged girl "Sirajunneesa" sustained bullet injuries in police firing and died. Complainant alleged that the firing was deliberately ordered by the DIG without any justification and the said illegal order was carried out by the other police officers arraigned in the complaint. Offences alleged against them included murder.

3. On receipt of the complaint, learned magistrate passed an order the operative portion of which reads thus :

"On a perusal of the complaint I am satisfied that the averments in the complaint constitute cognizable offences. The allegation made in the complaint, if true, requires a probe because it reveals high handed acts of police officers as they have indulged in gross abuse of the vast powers vested in them. A detailed investigation is required in this matter. The persons described as accused in the complaint includes high ranking officials in the police department including DIG of police. Hence it may not be proper to direct the local station house officer or superintendent of police to conduct an investigation in this matter. The complaint is therefore forwarded to the Inspector General of Police (Crimes) for investigation under S. 156(3) of the Code".

4. Shri K. C. Peter, learned Public Prosecutor (who is also the Addl. Director General of Prosecutions), contended that no magistrate can under S. 156(3) of the Code, direct a police officer, other than a station house officer of the police station concerned, to investigate a case. As such, the order is without the sanction of law and is liable to be quashed, according to the learned Public Prosecutor. On the other hand learned counsel appearing for the complainant (first respondent) contended that since higher police officers can also exercise the powers of a station house officer in view of S. 36 of the Code learned magistrate has exercised his power quite properly, particularly because the station house officer of the local police station is far inferior in rank to the main accused arraigned in the complaint.

5. All the accused in the complaint are arrayed as respondents in this Criminal Miscellaneous case. Shri M. N. Sukumaran Nayar, senior counsel addressed arguments for some of them. He fully supported the stand adopted by the learned Public Prosecutor.

6. Section 156 of the Code reads thus :

"Police Officer's power to investigate cognizable case. - (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."

7. An officer in charge of a police station is defined in S. 2(o) of the Code. It is the following :