A court of Special Judge Anti-Corruption CBI is a court of original criminal jurisdiction. Therefore, it can entertain an application under section 156(3) of Cr.P.C. for ordering registration of FIR. CBI court can hear only those matters, in which investigation has been done by the CBI. Pronouncements of Hon’ble Apex Court say that lower court can not order investigation by CBI. Then how a special court can direct the CBI to register a case and investigate it?
Answer: As per Section 5 of the Prevention of Corruption Act, 1988, the court of a Special Judge shall be deemed to be a Court of Session; however, the Special Judge has to follow the procedure prescribed by the Code of Criminal Procedure (Cr.P.C.) for the trial of warrant cases by Magistrates. Moreover, as per this section, the Special Judge may take cognizance of offences directly without the accused having been committed to him, like any other Magistrate.
Thus, the Special Judge has the power to directly take cognizance of offences under Section 190 Cr.P.C., like any other Magistrate. Now, Section 156(3) Cr.P.C. says that “Any Magistrate empowered under Section 190 may order such an investigation as above mentioned”. Thus, a Special Judge may have the power to order an investigation under Section 156(3) Cr.P.C. However, a Special Judge (for CBI cases) cannot direct the CBI to conduct investigation.
To understand why a Special Judge, who exercises the powers of a Magistrate under Section 156(3) of the Cr.P.C., cannot direct the CBI to conduct investigation, one has to see the language of Section 156(3) of Cr.P.C. Section 156 Cr.P.C. is reproduced below:
“156. Police officer’s power to investigate cognizable case.— (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.”
Section 156 Cr.P.C. is mainly concerned with the powers of the officer in charge of a police station to conduct investigation into cognizable offences without orders of a Magistrate. This is what is clear from Section 156(1) of Cr.P.C. It is in continuation of sub-section (1) that sub-section (3) of Section 156 speaks of the power of the Magistrate to order investigation by using the language “as above mentioned”, and it has been interpreted by the Supreme Court that such order can be given only to the officer-in-charge of the police station and not to other police officers. CBI is not a regular police station of the State Police in that sense. It is a special investigation agency of the Central Government. It is in view of these reasons that it has been held by the Supreme Court that the Special Judge cannot direct the CBI to conduct investigation.
In this regard, it may be pointed out that in the case of Central Bureau of Investigation, Jaipur v. State of Rajasthan, AIR 2001 SC 668 at pp. 670-671 : 2001 Cri LJ 968 : (2001) 3 SCC 333 [see also, Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 at p. 416 : AIR 2008 SC 907], the question before the Supreme Court was as to whether a Magistrate has power to direct the Central Bureau of Investigation (CBI) to conduct investigation into any offence. The Supreme Court held that the magisterial power under S. 156(3) of Cr.P.C. cannot be stretched beyond directing the officer in charge of a police station to conduct the investigation. A Magistrate therefore has no power to direct the CBI to conduct investigation into any offence. The Supreme Court observed that Section 156 of Cr.P.C. deals with investigation into cognizable offences. If the power of a magistrate to order investigation by the CBI in non-cognizable cases cannot be traced in S. 156 it is not possible to trace such power in any other provision of the Code. What is contained in sub-section (3) of S. 156 is the power to order the investigation referred to in sub-section (1) because the words “order such an investigation as above-mentioned” in sub-section (3) are unmistakably clear as referring to the other sub-section. Thus the power is to order an “officer in charge of a police station” to conduct investigation. The Supreme Court further clarified that from the definitions of “police station” and “officer-in-charge of a police station” it is clear that a place or post declared by the Government as police station, must have a police officer-in-charge of it. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. S. 156(3) of the Cr.P.C. empowers a Magistrate to direct such officer-in-charge of the police station to investigate any cognizable case over which such magistrate has jurisdiction. Moreover, S. 36 of the Cr.P.C. authorises any other police officer, who is superior in rank to an officer in charge of a police station to exercise the same powers of the officer-in-charge of a police station. But when a Magistrate orders investigation under S. 156(3) of Cr.P.C. he can only direct an officer-in-charge of a police station to conduct such investigation and not a superior officer. S. 36 of the Cr.P.C. is not meant to substitute the magisterial power envisaged in S. 156(3) of the Cr.P.C., though it could supplement the powers of an officer-in-charge of a police station. It was further observed that what is envisaged in Ss. 5 and 6 of the Delhi Special Police Establishment Act, 1946 (under which Act, CBI has been constituted) is not one of conferring power on a Magistrate to order the CBI to conduct investigation in exercise of S. 156(3) of the Cr.P.C. Therefore, it was held that the plea 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 is not tenable.
Likewise, relying upon the aforesaid judgment of Supreme Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan, in the case of Atul Chandra Buragohain v. State of Assam, 2007 (1) Gau LR 707 (Gau), the Gauhati High Court held that when S. 156 of Cr.P.C. is read, in the light of the definitions of “police station” and “officer-in-charge of a police station”, as contained under S. 2(o) and S. 2(s) of Cr.P.C., respectively, it becomes clear that the primary responsibility of conducting investigation into cognizable offences rests in the officer-in-charge of a police station or such other officer, who may be deemed to be officer-in-charge in terms of S. 2(o) of Cr.P.C., i.e., an officer, who performs the function of an officer-in-charge of a police station in the absence of its in-charge. Thus, when a magistrate orders investigation, under S. 156(3) of Cr.P.C., this direction is really meant for the officer-in-charge of a police station. It is worth pointing out though an officer, superior in rank to an officer-in-charge of a police station, may conduct investigation into a case by virtue of S. 36 of Cr.P.C., the magistrate cannot direct anyone other than the officer-in-charge of a police station to conduct investigation in terms of S. 156(3) of Cr.P.C. Therefore, a police personnel, whether from the CBI or from any other department, who does not fall within the definition of the officer-in-charge of a police station, cannot be directed to investigate any case under S. 156(3) of Cr.P.C. Considered thus, it is clear that a magistrate cannot direct anyone including the CBI to investigate or further investigate a case, for, a magistrate’s power to direct investigation must necessarily remain confined to the officer-in-charge of a police station. Thus, a magistrate cannot direct the CBI to investigate or further investigate a case. Accordingly, in the instant case, the direction given to the CBI to conduct further investigation in the case by the Special Judicial Magistrate was held to be contrary to law and was set aside.
Similarly, in the case of CBI v. State of Gujarat, 2002 (2) CCR 316 (Guj), the order issued by the Special Judge of directing the CBI under S. 156(3) of Cr.P.C. to conduct investigation in a private complaint case under S. 13(2) read with S. 13(1)(d) of Prevention of Corruption Act, 1988, and Ss. 120-B, 467, 468, 471, 471(a), 211 of IPC, was set aside by the Gujarat High Court on the ground that the Special Judge had no such power to direct CBI to investigate a case.
In view of the reasons mentioned above, it is not possible for the Special Judge for CBI to direct the CBI to conduct investigation in a case even though the Special Judge may have the powers under Section 156(3) of Cr.P.C., mainly because CBI is not a police station and such direction can be given only to the officer in charge of a police station.
At the same time, it is pertinent to point out that the superior Constitutional Courts such as the High Courts and the Supreme Court have the powers to direct the CBI to conduct investigation in any case.
For example, in the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 at p. 416 : AIR 2008 SC 907, the Supreme Court held that no doubt the Magistrate cannot order investigation by CBI but the Supreme Court or the High Court has power under Article 136 or Article 226 (respectively) to order investigation by CBI. It was further held that this should however be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
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 CBI even without taking consent of the State Government which is otherwise required for CBI investigation under Section 6 of the Delhi Special Police Establishment Act, 1946, when the investigation is within the territorial jurisdiction of a state.
Thus, the conclusion is that while the Special Judge (for CBI) cannot direct investigation into a case by CBI, the Supreme Court and the High Courts can direct such investigation by CBI.
[Note: Some contents of this answer have been taken from the author’s book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]