Question: Sir, can a CBI investigation into an offence be directed by a Magistrate in exercise of his powers under Section 156(3) of the Criminal Procedure Code?
Answer: The short answer is “No”. A Magistrate, acting under the provisions of Section 156(3) of the Criminal Procedure Code (Cr.P.C.) cannot direct investigation into an offence by the Central Bureau of Investigation (CBI).
In the case of CBI v. State of Rajasthan, (2001) 3 SCC 333 : 2001 Cri LJ 968 : AIR 2001 SC 668, the Supreme Court has held that what is contained in sub-section (3) of Section 156 of the Cr.P.C., is the power of a Magistrate to order an “officer in charge of a police station” to conduct an investigation referred to in sub-section (1) thereof, because the words “order such an investigation as abovementioned” in sub-section (3) are unmistakably clear as referring to the other sub-section.
The Supreme Court further held that two expressions “police station” and “officer in charge of a police station” have been given separate definitions in the Code in Sections 2(o) and 2(s) respectively. 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 the 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.
The Supreme Court further held that Section 156(3) of the Criminal Procedure 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. It was held that the magisterial power cannot be stretched under Section 156(3) beyond directing the officer in charge of a police station to conduct the investigation.
The Supreme Court, thus, held that a Magistrate cannot direct CBI to conduct investigation in exercise of his powers under Section 156(3) of the Criminal Procedure Code.
Similarly, in the case of CBI v. State of Gujarat, (2007) 6 SCC 156 : AIR 2007 SC 2522, the Supreme Court reiterated the above principle that magisterial power cannot be stretched under Section 156(3) of the Cr.P.C. beyond directing the officer in charge of a police station to conduct the investigation and no such direction can be given to CBI.
However, in this regard, I may point out that in the case of State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476, a Constitution bench of the Supreme Court has held that the Supreme Court and the High Courts have the power to direct investigation by the CBI in an offence, and for that purpose the consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946, is also not required.