Madras High Court
S.Madhiyazhagan vs State Rep By on 9 February, 2015
Author: P.N.Prakash
Bench: P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.07.2015
DELIVERED ON : 20.08.2015
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.O.P.No.9542 of 2015 and Crl.R.C.No.496 of 2015
and M.P.No.1 of 2015 in Crl.R.C.No.496 of 2015
S.Madhiyazhagan .. Petitioner in Crl.O.P.No.9542 of 2015
State rep by
The Inspector of Police
Crime Branch CID
Tirupur. .. Petitioner in Crl.R.C.No.496 of 2015
Vs
State rep by
The Inspector of Police
CBCID
Tirupur District. .. Respondent in Crl.O.P.No.9542 of 2015
S.Mathiyazhagan .. Respondent in Crl.R.C.No.496 of 2015
Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the respondent police to register the complaint of the petitioner dated 09.02.2015 forwarded by the learned Judicial Magistate No.I, Tirupur, for registration and investigation by the respondent Police.
Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C. to allow this revision petition by setting aside the order of the Judicial Magistrate No.I, Tiruppur passed in CMP No.172 of 2015, dated 09.02.2015
Crl.OP.9542 of 2015:
For Petitioner Mr.S.Thangavel
For respondent Mr.S.Shanmugavelayutham
Public Prosecutor
Asst. by
Mr.C.Emalias, Addl.Public Prosecutor
Crl.R.C.No.496 of 2015:
For petitioner Mr.S.Shanmugavelayutham
Public Prosecutor
Asst. by
Mr.C.Emalias, Addl.Public Prosecutor
For respondent Mr.S.Thangavel
C O M M O N O R D E R
Heard.
2. The short point that falls for consideration in these petitions is, whether a Magistrate is empowered under Section 156(3) Cr.P.C. to direct the Crime Branch CID to investigate an offence?
3. The precursor of the present Crime Branch CID was Criminal Investigation Department that was constituted by the provincial Government by G.O.Ms.No.1862 Judicial dated 16.11.1912. This was not a separate police force. In existing police force created under the Tamil Nadu District Police Act, 1859, a Special Wing was constituted for investigation of certain high profile crimes. Old Police Standing Orders No.504 [present 483] in Chapter XXVI defined the role of the Criminal Investigation Department. In the year 1929, Criminal Investigation Department was bifurcated into Special Branch CID and Crime Branch CID and CB CID was placed under the over all charge of an Inspector General of Police. At present, the bifurcations made to the Criminal Investigation Department is best explained in PSO 493 [New], which is as under:
"Branches of work in Criminal Investigation Department:-
493(1) The Criminal Investigation Department is divided into two Branches known as Intelligence and Crime, each divided into sub divisions as indicated above:-
(a) Intelligence Branch:
(i) Special Branch
(ii) 'Q' Branch
(iii) Special Branch (V.I.P. Security)
(b) Crime Branch:-
(i) Crime and Criminal Intelligence not of a specially confidential nature.
(ii) Commercial Crime Investigation Wing."
4. In PSO 486, categories of cases that can be dealt with by the CB CID has been catalogued and omnibus power has been given to the Director General of Police and the Government to entrust a case to the CB CID, if the investigation by the local police becomes suspect of partisanship or corruption. The Headquarters of the CBICID has been notified as a Police Station with jurisdiction over the entire State of Tamil Nadu and all police officers in CBCID, above the rank of Inspector of Police/Deputy Superintendent of Police, have been notified to have the powers of an Officer-in-charge of Police Station under Section 2(s) of Cr.P.C. 1973 (Central Act 2 of 1974), vide G.O.Ms.No.1093 Home (Police.D) Department dated 08.07.1991 and G.O.Ms.No.226 Home (Police XIV) Department dated 18.02.2004.
5. Chapter V Para 1 of the CB CID Manual reads as under:
REGISTRATION OF RCs:
1. Regular case should be registered under the following circumstances:-
a) On the orders of the Supreme Court/High Court;
b) On the request of the State Government;
c) On the orders of the DGP/CB CID Headquarters."
6. The Crime Branch Manual has been approved by the Government as could be seen from G.O.Ms.No.185, Home (Pol.VIII) Department dated 16.02.2004 which reads as under:
"ORDER:
The Crime Branch, CID manual of Police Department sent by the Director General of Police in his letter read above is approved and forwarded to him for Printing in the Printing Press in the Office of the Director General of Police and for supply free of cost. The proof shall be sent to the Inspector General of Police, Crime, for correction. The Inspector General of Police (Crime) is also requested to make indent for No.of copies to be supplied. (ORDER OF THE GOVERNOR) SYED MUNIR HODA SECRETARY TO GOVERNMENT
7. Now it may be apposite to extract Section 156 Cr.P.C.:
"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 abovementioned."
8. Local area over which a Magistrate has jurisdiction is traceable to Section 2(j) of the Code, which reads as follows:
"(j) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify."
9. From an anyalysis of these provisions, it is abundantly clear that an Officer-in-charge of a Police Station can investigate a cognizable offence which can be enquired into or tried by a Magistrate having jurisdiction over the area. The expression "such an investigation as abovementioned" employed in Section 156(3) Cr.P.C. does not give wholesale power to a Magistrate to direct the Officer in- charge of any Police Station to investigate an offence. The Magistrate can only order the Officer-in-charge of a Police Station that falls within his territorial jurisdiction to investigate an offence. This issue has been clearly settled by the Supreme Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan [(2001) Crl.L.J. 968]. Paragraphs 8 and 15 from the said ruling will clinch the issue beyond any pale of doubt.
"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 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.
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."
10. Very recently in Chandra Babu @ Moses v. State through Inspector of Police [2015 (7) Scale 529] the Hon'ble Supreme Court had on occasion to consider the power of a Magistrate under Section 173(8) Cr.P.C. to direct the CB CID to conduct further investigation. While discussing this aspect, the Hon'ble Supreme Court has stated thus:
"21.We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency."
11. Thus the CB CID is an elite force within the police Department that has been constituted to investigate cases, on the orders of Supreme Court, High Court, Government and Director General of Police. Therefore, the direction issued by the Magistrate to the CB CID under Section 156(3) Cr.P.C. to investigate is not sustainable.
In the result, Crl.R.C.No.496 of 2015 is allowed. In Crl.O.P.No.9542 of 2015, this Court has already passed orders on 23.07.2015 directing the CB CID to investigate the complaint given by the petitioner, as the allegations therein involve falsification of Court seals and fabrication of Court orders. In view of the above, Crl.O.P.No.9542 of 2015 is closed. Consequently, connected miscellaneous petition is closed.
20.08.2015 gms To
1.The Inspector of Police CBCID Tirupur District.
2. Judicial Magistate No.I, Tirupur.
3.The Public Prosecutor High Court, Madras.
P.N.PRAKASH, J.
gms Pre-delivery order in Crl.O.P.No.9542 of 2015 and Crl.R.C.No.496 of 2015 20.08.2015