Ajay Raj Sharma vs State
2000 Latest Caselaw 998 Del

ORDER

Usha Mehra, J.

1. This petition has been preferred by the Commissioner of Police (in short C.P.), Delhi, whereby he has raised substantial question of law pertaining to the power of the Metropolitan Magistrate to transfer the case from one investigating agency to another investigating agency out of his own jurisdiction. Secondly whether by doing so he exceeded his jurisdiction and authority under law?

2. In order to appreciate the points raised, we may have a quick glance to the facts relevant for the determination of these questions.

3. Sharifa Shekh appeared in the Court of learned Metropolitan Magistrate on 15th October,1999 and stated that she was victim of rape in the house where she was working as a maid servant. Learned Additional Public Prosecu tor (in short APP) opposed giving her custody to her previous employer, even sending to Nari Niketan was opposed. However, since her statement under Section 164 of the Code of Criminal Procedure was to be recorded she was ordered to be sent to Nari Niketan. It was directed by the learned Metropolitan Magistrate that relatives of Sharifa Shekh be found out from Murshidabad by sending wireless messages by the I.O. Case was adjourned to 22nd October,1999. She had stated that she was raped by her employer on 14th October,1999. On the basis of this complaint case was registered vide FIR No.733/99 at Police Station Shalimar Bagh under Section 376/34 IPC. On that date she stated before the Court that her parents and husband had died. Her husband died in an accident. Case was, thereafter, taken up on 25th October,1999 when Sharifa Shekh was produced from Nari Niketan. From perusal of the file learned Metropolitan Magistrate found that two attempts were made to take custody of Sharifa Shekh. One by police Constable Ajay who made oral statement that he wanted her custody and another by Sanjay Ashok resident of Amritsar claiming to be her husband. On this learned Metropolitan Magistrate observed that in the complaint the complainant had stated that she was an orphan and her husband had since died in an accident. On perusal of her statement learned Metropolitan Magistrate found that she was employed by Puja and her husband Sanjay Akash. Sanjay Akash raped her several times in his house, and thereafter, both accused Puja and Sanjay Akash put her to prostitution. She had told the police that she could identify those persons i.e. Puja and Sanjay Akash. In this background the learned Metropolitan Magistrate found that local police had not investigated the case properly. It had failed to call the prosecutrix to identify the accused persons who forcibly raped her nor got the place identified where she was raped. Efforts were not made by the Investigating Officer or the SHO, Police Station Shalimar Bagh to ascertain the facts on the point of rape even though the complaint was lodged as far back as on 15th October,1999. The learned Metropolitan Magistrate found the attitude of police and in particular of the I.O. very callous and inhuman because police neither arrested the accused persons nor indicated the steps taken in this regard. Moreover, no investigation had been done from 19th October to 25th October,1999. It was in this background that the learned Metropolitan Magistrate vide his order dated 25th October,1999 directed the C.P. to transfer 'further' investigation to Deputy Commissioner of Police (Crime). Since the case was listed on 27th October,1999 before another Metropolitan Magistrate for recording Sharifa's statement under Section 164, Cr.P.C. hence directions were also give to D.C.P. (Crime) to take steps.

4. On 1st November,1999 one Manik Shekh resident of West Bengal filed an application before the Metropolitan Magistrate claiming himself to be the father of Sharifa Shekh. He sought for her custody. On this the Metropolitan Magistrate directed the C.P. to get the facts verified through D.C.P. (Crime) as to whether Manik Shekh was father of Sharifa Shekh. C.P. was also directed to intimate whether further investigation was transferred to D.C.P. (Crime) or not. The matter was ordered to be listed on 2nd November,1999. On 2nd November,1999 learned Metropolitan Magistrate found no one from the office of C.P. nor D.C.P. (Crime) was present to inform as to whether further investigation had been transferred. The Metropolitan Magistrate accordingly issued notice to C.P. as to why contempt action be not taken against him because of his non action amounted to obstruction in the way of administration of justice. Arguments on Manik Shekh's application was adjourned to 4th November,1999. In the meantime, Assistant Commissioner of Police, Special Team (Crime Branch) filed an application on 2nd November,1999 itself indicating that the file was put up to the Commissioner of Police on 28th October,1999 and the same was marked to the D.C.P. (Crime) for necessary action. As regards verification further time was sought because it required time to get facts verified from West Bengal. It was also prayed that personal appearance of the Commissioner of Police be exempted on 4th November,1999. On this application the Metropolitan Magistrate vide his order dated 3rd November,1999 extended the time till 18th November,1999 for submitting the report of verification. As regards personal appearance of the Commissioner of Police, matter was directed to be taken up on 4th November,1999.

5. It is in this backdrop that the Commissioner of Police, Delhi filed the present petition. This Court vide its order dated 4th November,1999 stayed the directions of the Metropolitan Magistrate vide his order dated 25th October,1999 i.e. transfer of further investigation to D.C.P. (Crime) and also stayed personal appearance of the Commissioner of Police on 4th November,1999. This Court further stayed the proceedings emanating from the FIR No. 733/99, Police Station Shalimar Bagh before the Metropolitan Magistrate.

6. Heard Mr. Dinesh Mathur, Senior Advocate, appearing for the C.P. and Ms.Mukta Gupta for the State. Mr.Dinesh Mathur, Senior Advocate at the outset assailed the powers of the learned Metropolitan Magistrate ordering 'further' transfer of investigation. According to him Metropolitan Magistrate cann't order further investigation by another Agency unless it was a case of conferment. Under the Cr.P.C. there does not exist any provision authorising the Metropolitan Magistrate to order transfer of further investigation. It is only under Section 156 Cr.P.C. Court can get a case investigated. But even under Section 156 Cr.P.C. Court cannot take the case out of its jurisdiction by transferring it to another authority or agency. Power of the police to conduct further investigation after laying final report is recognised under Section 173 subsection (8) of the Cr.P.C. Even after the Court has taken congnizance of an offence on the strength of police report first submitted, it is open to the police to conduct 'further' investigation but it is with a rider that before doing so the police will seek formal permission of the Court to do so. It is only in such an eventuality that the Court exercises its power to direct further investigation but not otherwise. To support his contention Mr.Mathur placed reliance on the decision of Supreme Court in the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwan dadha Maharaj Vs. State of Andhra Pradesh & Ors., reported in 1999(6) Supreme 47.

7. Ms. Mukta Gupta appearing for the State while supporting the case of the petitioner submitted that the Metropolitan Magistrate has no authority to transfer the investigation being conducted by local police to any other agency. In fact the Magistrate suo moto cannot order 'further' investigation. The order of the Magistrate, according to Ms.Mukta Gupta, was contrary to the mandate of the Apex Court. To support her contentions she drew our attention to decision of Supreme Court in the case of Randhir Singh Rana Vs. The State Being the Delhi Administration, reported in 1997(1) Supreme 278 where the question was; Can a Magistrate order of his own 'further' investigation of the case. After dealing with various provisions of law and judgment on the point, the Apex Court opined that the Magistrate of his own cannot order for further investigation. While dealing with the power of the Magistrate to order for investigation, reference in particular was made to the judgment of Supreme Court in the case of D. Lakshminarayana Vs. Narayana Reddy, where the Apex Court held that: "17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of Complaints to Magistrate". The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the postcognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre cognizance stage and avail of Section 156(3). It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumcribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."

8. Apex Court in the case of State of West Bengal Vs. S.N.Basak, has gone to the extent of saying that :-

9. The powers of investigation into cognizable offence are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that chapter deals with information in cognizable offences and Section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A of the Criminal Procedure Code.

10. In this regard reliance can also be placed on the observation of the Privy Council in the case of Harold White Vs. The King, reported in AIR (3) 1945 Privy Council 181, the Court was dealing with the power of the judiciary in regard to the statutory right of the police to investigate. The Privy Council observed that:- "The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions, in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561A has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so. The Section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act."

11. Ms.Mukta Gupta, however, stated that the Division Bench of our own High Court in the case of C.B.I. Vs. Shiv Kumar Singh & Anr., reported in 1998 (IV) AD (Delhi) 881 had taken the view that the Metropolitan Magistrate has the power to order for the transfer of further investigation. This decision of our High Court was challenged by the C.B.I. by way of Special Leave Petition before Supreme Court. The operation of the judgment has been stayed by the Supreme Court. Hence the decision of our High Court cannot be pressed in to service nor can be of any help.

12. In view of the above proposition of law as mandate by the Apex Court, we cannot but hold that learned Metropolitan Magistrate had no authority in law to transfer 'further' investigation to any other agency. Legal proposition apart, on facts also we find that learned Metropolitan Magistrate did not act justly. He not only did not afford any opportunity to the petitioner to explain the stage of investigation or the result of the investigation done by the local police but took extreme step of issuing contempt notice, which in the facts of this case was not warranted. Admittedly the prosecutrix herself had made a statement before the Court that her parents as well as her husband had died. Therefore, when the application was received from Manik Shekh alleging himself to be the father of the prosecutrix, it was incumbent upon the Metropolitan Magistrate to atleast call the prosecutrix from Nari Niketan and confront her with the averments made by the said Manik Shekh in his application. But the learned Metropolitan Magistrate was so much in hurry that he did not bother to ascertain even this much. It appears instead of following the course of law he was swayed away by his sympathies and a zeal to help the prosecutrix. That while doing so unfortunately he overstepped his jurisdiction. He ought to have granted sufficient time to the petitioner to verify the facts from West Bengal. Manik Shekh filed the application on 1st November, 1999 and learned Metropolitan Magistrate wanted the same to be verified within a day's time, therefore, adjourned the case for awaiting report on 2nd November,1999. The learned Metropolitan Magistrate ought to have realised that in a day facts could not have been ascertained from West Bengal. Opportunity, to our mind, ought to have been given to the local police to file status report indicating the result of investigation done by the local police till then. In the absence of having afforded any such opportunity even to ascertain the facts and the stage of investigation, to our mind, the learned Metropolitan Magistrate erred on facts also in passing the impugned orders.

For the reasons stated above, we allow this petition, make the Rule absolute and set aside the order dated 25th October,1999 and all subsequent orders passed by the learned Metropolitan Magistrate.