Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e, the CBI or an investigating agency different from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C, rules a Division Bench of the High Court of Kerala

A Division Bench of the High Court of Kerala comprising Acting Chief Justice Ashok Bhushan and Justice A.M. Shaffique setting aside the judgment of a learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation files, has held that a Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct 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 writ petitioner had two sons, namely, Vino George, and Vipin George. 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. The 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. 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. Under these factual circumstances, the Writ Petition was filed seeking a direction from the High Court to get the case further investigated by the Central Bureau of Investigation

The learned Single Judge disposed of the writ petition holding as follows: 

"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 (1988) SCC Criminal 864." 

It was assailing the said judgment of the learned Single Judge that the Central Bureau of Investigation filed the writ appeal to the Division Bench. Standing Counsel for the Central Bureau of Investigation, the appellant contended before the Division Bench that no Magistrate, in exercise of power under Section 173 (8) Cr.P.C, can direct investigation by Central Bureau of Investigation,  when   the    investigation    is   being conducted by Police/Crime Branch of the State, and further that, the decision in Kashmeridevi v. Delhi Administration (supra) relied upon by the learned Single Judge was not applicable to the facts of the case. 

The State Government filed a counter affidavit stating 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. 

The Division Bench held that Section 173 clearly delineates 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, said the Division Bench. 

Relying on the decision of the Apex Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan (AIR 2001 SC 668) the Bench  held that a 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 and that 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. The Division Bench also held that the order of the Apex Court in Kashmeri Devi's case (supra) relied on by the learned Single Judge, is referable to exercise of jurisdiction by the Apex Court under Article 142 of the Constitution, and that in the said 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.

The Bench observed that while in Kashmeri Devi's case (supra) the Supreme Court, after noting all the events and incidents of the case, came to the opinion that effort has been made to protect and shield the guilty police officers, and it had formed an opinion that it was a fit case for directing fresh investigation through an independent authority, in the case at hand, neither did the learned Single Judge record 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 was the Division Bench 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".

The Division Bench accordingly held 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", ruled the Division Bench of the High Court of Kerala, and set aside the second direction of the learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation file.