Ashok Bhushan, Ag.CJ.
This Writ Appeal has been filed by the Central Bureau of Investigation against the judgment of the learned Single Judge dated 22.7.2010 in W.P(C).No.9989 of 2010. The 7th respondent to this appeal had filed the Writ Petition. The brief facts giving rise to this Writ Appeal are as follows:
2. The 7th respondent (hereinafter referred to as 'the writ petitioner') had two sons, namely, Vino George, aged 30 years and Vipin George, aged 21 years. On 30.8.2009 at 1.30 a.m, while they were riding on a motor cycle, they met with an accident on the road in front of Pala Bishop House on the Pala-Ettumanoor road and both of them succumbed to the fatal injuries while undergoing treatment in the General Hospital, Pala. First Information Report was lodged by one Sri.Thomas, a relative of the writ petitioner. Investigation was conducted by the local police. The case thereafter was handed over to the Crime Branch Police, which took over the investigation on 24.9.2009. After questioning 42 witnesses and recording their statements and getting the statement of the occurrence witnesses under Section 164 of Code of Criminal Procedure (Cr.P.C), the Crime Branch Police submitted factual report before the Judicial First Class Magistrate Court, Pala on 29.4.2010 to the effect that death of the two youngsters was accidental. After investigation, a report was submitted by the Crime Branch, which mentioned that the accident occurred when the motor cycle hit on the road-roller parked on the road. The petitioner had suspicion that while his sons were riding the motor cycle, the police jeep hit them from back, due to which they died. The petitioner sent a complaint dated 8.9.2009 to the Home Minister of Kerala, which was produced as Exhibit P8 to the Writ Petition. In the said complaint the petitioner made a request that necessary investigation may be ordered against the accused to render justice. He also made allegations against the son of his elder brother, who had altercation with his sons on previous day and who conspired with Police.
3. The learned Single Judge, after hearing, disposed of the Writ Petition observing that the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the Judicial First Class Magistrate Court, Pala. It was further observed by the learned Single Judge that in case the Magistrate, after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C. It is useful to quote paragraph 5 of the judgment, which is to the following effect:
“5. In the light of Sakkiri Vasu v. State of Uttar Pradesh 2008 (1) KLT (724) SC and Thomas V.C v. Achama Thomas and another 2009 2 KHC 693, the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the J.F.C.M Court, Pala. The petitioner may move the said Magistrate for appropriate directions. In case the Magistrate after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C as directed in Kashmeridevi v. Delhi Administration (1998) SCC Criminal 864.”
The Central Bureau of Investigation, aggrieved by the judgment of the learned Single Judge, has come up in this Writ Appeal.
4. Counter affidavit has been filed in the Writ Appeal by the State Government sworn in by the Under Secretary, Home Department. The State Government in the counter affidavit has stated that no Court subordinate to the High Court can be empowered to issue any direction to the Central Bureau of Investigation to investigate a case.
5. Learned counsel for the appellant, in support of the Writ Appeal, submitted that the direction of the learned Single Judge in the impugned judgment permitting Judicial First Class Magistrate to direct for investigation by Central Bureau of Investigation exercising his jurisdiction under Section 173(8) Cr.P.C is erroneous. It is submitted that no Magistrate, in exercise of power under Section 173 (8) Cr.P.C, can direct investigation by Central Bureau of Investigation, whereas the investigation is being conducted by Police/Crime Branch of the State. The judgment, which has been relied upon by the learned Single Judge in issuing direction, i.e., Kashmeridevi v. Delhi Administration [(1998) SCC Criminal 864] is not applicable in the present case. It is submitted that present was not a case where this Court could have directed Central Bureau of Investigation to investigate the crime.
6. Learned counsel for the writ petitioner, refuting the submission of learned counsel for the appellant, contended that the Writ Petition was filed seeking a direction from the High Court to get the case investigated by the Central Bureau of Investigation and the High Court in its discretion, has authorised Judicial First Class Magistrate, which was in accordance with the law laid down by the Apex Court in Kashmeri Devi's case (supra).
7. We have considered the submissions of learned counsel for the parties and perused the records.
8. From the facts, which have been brought on record, it is clear that the FIR was registered at the Pala Police Station on 30.8.2009, on which case Crime No.579/09 was registered. The investigation was initially conducted by the local police, which was subsequently entrusted to the Crime Branch of the State, who, after conducting investigation, has submitted a report to the Judicial First Class Magistrate that the death occurred on account of motor cycle accident with road-roller, which was parked on the road. The petitioner being not satisfied with the investigation, has written to the Home Minister, Kerala for necessary investigation against the accused. The petitioner in his letter has expressed two suspicions; firstly, the accident occurred when the police jeep hit the motor cycle from back; and secondly, son of his elder brother, with whom there was altercation by the petitioner's son on the previous night may be involved, who has conspired with the Police. The learned Single Judge in its judgment, relying on two judgments of this Court, has rightly observed that the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the Judicial First Class Magistrate Court, Pala. To the above extent the judgment of the learned Single Judge was fully in consonance with law. The other direction of the learned Single Judge permitting the Judicial First Class Magistrate Court, Pala to issue direction for further investigation by the Central Bureau of Investigation is under challenge. The issue to be decided in this Writ Appeal is as to whether the First Class Judicial Magistrate, in exercise of power under Section 173(8) Cr.P.C, can direct investigation by another agency, i.e., Central Bureau of Investigation. We proceed to examine the above issue.
9. Section 173 Cr.P.C is with regard to “report of police officer on completion of investigation”. Section 173 (2) contemplates that as soon as the investigation is completed, the officer in charge of the Police Station, shall forward to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed. Section 173 Cr.P.C for ready reference is quoted as below:
“173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.
(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the state Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so,by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C section 376D or section 376E of the Indian Penal Code (456 of 1860).
(ii) The officer shall also communicate, in such manner as may be prescribed by the state Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Nothing in this seection shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
10. Section 173(8) Cr.P.C, which has been mentioned by the learned Single Judge in its judgment, provides that nothing in Section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary. Section 173 clearly delineate that further investigation, which is contemplated in the sub- Section is by the “officer in charge of the police station”, i.e., the officer, who has undertaken the investigation and submitted a report under sub-Section (2) of Section 173 Cr.P.C. Section 173, thus, contemplates further report/reports by the officer in charge of the Police Station, who is entrusted with the investigation. Thus, Section 173(8) Cr.P.C contemplates further investigation by the same Police Officer, who has conducted the investigation and submitted a report under Section 173(2) Cr.P.C. Section 173(8) Cr.P.C cannot be read in a manner as to empower the Magistrate to direct any central agency to conduct a further investigation. Sub-section (8) of Section 173 has been added subsequently to clarify that further investigation is not precluded when a report under Section 173(2) has been submitted. The Apex Court had occasion to consider the provisions of Section 156 Cr.P.C in the context of the power of Magistrate to direct such investigation by Central Bureau of Investigation in Central Bureau of Investigation, Jaipur v. State of Rajasthan (AIR 2001 SC 668). In the said case a complaint was filed before the Magistrate alleging serious offences on which he directed the investigation to be conducted by the Central Bureau of Investigation. The order of the Magistrate was challenged by the Central Bureau of Investigation in a Writ Petition before the Delhi High Court, which Writ Petition was dismissed, against which judgment, the Central Bureau of Investigation filed an appeal. The following was laid down by the Apex Court in paragraphs 5, 6, 7 and 8:
“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 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 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.”
6. 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 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(I) because the words “order such an investigation as abovementioned” in sub-section(3) are unmistakably clear as referring to the other subsection. Thus the power is to order an “officer-in-charge of a police station” to conduct investigation.
7. 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.”
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 stationhouse, 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.”
The Apex Court also considered the provisions of Section 36 Cr.P.C, which provides that the 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. After considering provisions of the Code of Criminal Procedure, it was further held that 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 officer. The Apex Court has also considered the provisions of the Delhi Special Police Establilshment Act, 1946 (for short, 'DSPE Act'). It was further held that Sections 5 and 6 of DSPE Act also does not confer power on the Magistrate to order Central Bureau of Investigation to conduct investigation in exercise of power under Section 156(3) Cr.P.C. It was however held that the High Court in exercise of power under Article 226 and the Apex Court under Article 32 of the Constitution of India can issue such direction. The following was laid down in paragraph 12, 13 and 15 of the judgment:
“12. 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 and 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.
13. 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 v. Delhi Administration (1988) Suppl. SCC 482 : (AIR 1988 SC 1323 : 1988 Crl. LJ 1800) and Maniyeri Madhavan v. Sub-Inspector of Police, (1994) 1 SCC 536 : (1994 AIR SCW 1131 : AIR 1994 SC 1033 :
1994 Crl. LJ 3063). A two Judge Bench of this Court has by an order dated 10.03.1989, 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.
xx xx xx 15. 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.”
11. A Constitution Bench of the Apex Court in State of W.B and others v. Committee for Protection of democratic Rights West Bengal and others [(2010)3 SCC 571], after considering the provisions of the DSPE Act, has held that for enforcement of fundamental rights under Part III of the Constitution of India, it is only the High Court, in exercise of power under Article 226 and the Supreme Court under Article 32 of the Constitution, can direct the Central Bureau of Investigation to investigate a cognizable offence. It was further held that when the High Court and the Supreme Court issues a direction to the Central Bureau of Investigation to investigate an offence, permission of the State Government is not required.
12. The learned Single Judge in the impugned judgment has referred to the judgment of the Apex Court in Kashmeri Devi's case (supra). It is necessary to look into the above case to find out the ratio of the judgment. In Kashmeri Devi's case (supra), the allegation was that one Gopi Ram died due to serious beating with iron rods and iron rulers in the Police Station. In spite of brother of Gopi Ram filing a written complaint to the Police Station, no FIR was lodged immediately. The complaint mentioned that Gopi Ram died due to beating by police officers. Subsequently, although a case was registered, no action was taken against the police officers and the case was subsequently converted to Section 304 IPC. At that stage, the wife of the deceased filed a Writ Petition before the Delhi High Court for transferring the investigation from the Crime Branch of Delhi to the Central Bureau of Investigation. The Writ Petition was dismissed. The matter was taken to the Supreme Court and the Supreme Court, after noting all the events and incidents, came to the opinion that effort has been made to protect and shield the guilty police officers. The Apex Court had formed an opinion that present was a fit case for directing fresh investigation through an independent authority. It is useful to quote paragraphs 5, 6 and 7 of the judgment, which are to the following effect:
“5. After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar. The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing. The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that doctor had postponed giving his opinion regarding the cause of death although the injuries were ante-mortem. The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from Section 302 IPC to Section 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the post-mortem report. The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
6. We are in full agreement with the observations made by the learned Sessions Judge. As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from Section 304 IPC to Section 323/34 IPC. Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.
7. Since according to the respondents charge- sheet has already been submitted to the Magistrate we direct the trial court before whom the charge- sheet has been submitted to exercise his powers under Section 173(8) CrPC to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly.”
13. After having come to the conclusion that the case requires investigation by an independent agency, direction was issued by the Apex Court to the Magistrate to direct Central Bureau of Investigation for proper and thorough investigation. The above directions were issued in exercise of power of the Apex Court under Article 142 of the Constitution. The Apex Court had formed an opinion that the same was a fit case for directing investigation by the independent agency. The judgment of the Apex Court in the above case does not help the writ petitioner in the present case for two reasons. Firstly, the Apex Court in the said case had formed an opinion after considering all facts and materials that the case was fit to be got investigated by an independent agency. In the present case there is no decision of the High Court or satisfaction that present is a fit case for directing investigation by the Central Bureau of Investigation. The High Court did not exercise its jurisdiction under Article 226 of the Constitution to issue any direction for conducting the investigation by Central Bureau of Investigation, rather, the learned Single Judge had permitted the petitioner to move the Magistrate for appropriate direction and discretion was given to the Magistrate, after perusing the investigation files to issue a further direction for getting the investigation done by the Central Bureau of Investigation. We have already held that the Magistrate, in exercise of power under Section 173(8) Cr.P.C, cannot direct investigation to be conducted by a central agency, i.e., Central Bureau of Investigation. The power under Section 173(8) Cr.P.C can be utilised for further investigation by the same investigating authority, who has submitted report under Section 173(2) Cr.P.C.
14. Secondly, the order of the Apex Court in Kashmeri Devi's case (supra) is referable to exercise of jurisdiction by the Apex Court under Article 142 of the Constitution. In the above judgment no such ratio was laid down that the Magistrate, in exercise of power under Section 173(8) Cr.P.C, can direct for further investigation by a central agency, the Central Bureau of Investigation, i.e., different agency from the one which has already conducted the investigation.
15. There cannot be any dispute that the High Court can, exercising power under Article 226 of the Constitution, issue a direction for investigation by the Central Bureau of Investigation in appropriate cases. In the present case neither the learned Single Judge recorded his satisfaction after considering the materials on record that present is a fit case for issuing a direction to the Central Bureau of Investigation to take over the investigation, nor we are of the view that there are enough materials on record on which any direction can be issued to the Central Bureau of Investigation to conduct investigation, especially when more than five years have elapsed from the accident, which took place on 30.8.2009.
16. In view of the foregoing discussion, we are of the considered opinion that the Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct for investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. The power under Section 173(8) Cr.P.C has to be exercised for further investigation by the same investigating agency, which had conducted investigation and submitted a report under Section 173(2) Cr.P.C. The direction of the learned Single Judge giving discretion to the authorised Magistrate to direct for further investigation by Central Bureau of Investigation was clearly erroneous and cannot be sustained. The learned Single Judge has rightly observed that the forum to be approached by the petitioner for further investigation was the Magistrate concerned, i.e., Judicial First Class Magistrate, Pala.
17. In the result, although we uphold the first part of the direction given in paragraph 5 of the judgment of the learned Single Judge observing that “the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the Judicial First Class Magistrate Court, Pala”, the direction issued in second part of the judgment that “in case the Magistrate after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C as directed in Kashmeri Devi v. Delhi Administration (1998) SCC Crl.
864)” is set aside.
The Writ Appeal is partly allowed as indicated above. The parties shall bear their respective costs.
ASHOK BHUSHAN ACTING CHIEF JUSTICE
vgs
A.M.SHAFFIQUE JUDGE