I.A. Ansari, J.
1. Whether a judicial magistrate can direct investigation or further investigation to be conducted by the Central Bureau of Investigation (commonly known as 'CBI') This is the principal question, which has been raised for determination in the present revision. This question, in turn, brings me to a basic question, the basic question being as to whether it is permissible at all for a judicial, magistrate to direct the police to make further investigation into a case, wherein, on completion of investigation, the police has submitted charge sheet ?
2. I have heard Mr. U. Bhuyan, learned Counsel for the accused-petitioner, and Mr. P. Bora, learned Public Prosecutor, Assam.
3. Before I deal with the questions, which have arisen in the present revision, let me point out the material facts, which have given rise to the present revision. Upon investigation into the Vigilance P.S. Case No. 1/2000 under Section 409. Upon investigation into the Vigilance P.S. Case No. 1/2000 under Section 409 IPC, registered against the accused-petitioner, police submitted a charge sheet against the accused under Section 409 IPC. Following the submission of the charge sheet, Special Case No. 12(A)/2002 was registered in the court of the Special Judicial Magistrate, Assam, Guwahati, and the said case was subsequently re-numbered as Special Case No. 47(0/03. When the case was taken up for framing of charge, it was pointed out, on behalf of the accused-petitioner, that under Sub-section (2) of Section 219 Cr.P.C., not more than three offences of criminal breach of trust committed within the space of twelve months from the first to the last of such offences can be tried in one trial and since the accusations made against the accused-petitioner of misappropriation were ranging over a period of eight years, commencing from 1990 and ending in 1998, the trial of the accused-petitioner was impermissible in law. On the objections, so raised, the learned Special Judicial Magistrate passed an order, on 5.5.2006, observing, inter alia, that since the investigation into the allegations of misappropriation of government money made against the accused-petitioner had not been properly investigated by the State police, the CBI shall conduct investigation into the case, for, the materials on record, according to the learned Magistrate, disclose a prima facie case of offence having been committed by the accused-petitioner under Section 13(2) of the Prevention of Corruption Act, 1988. Aggrieved by the directions, so given to the CBI to investigate, the accused-petitioner has impugned the same in the present revision.
4. Presenting the case, on behalf of the accused-petitioner, Mr. U. Bhuyan has pointed out that in the present case, when the police had already submitted a charge-sheet against the accused, the charge sheet indicated the conclusions already reached by the investigating officer, there was no scope to direct further investigation into the allegations made against the accused-petitioner, for, there is, according to Mr. Bhuyan, no provisions, under the Code of Criminal Procedure, ('the Code'), empowering a magistrate to direct further investigation or re-investigation into a case after the charge sheet has already been submitted by the police. At any rate, contends Mr. U. Bhuyan, the learned Magistrate had no power to direct investigation, much less further investigation, by the CBI. In support of his contention that the magistrate cannot direct the CBI to conduct investigation, Mr. Bhuyan has placed reliance on the case of Central Bureau of Investigation v. State of Rajasthan and Anr. reported in : 2001CriLJ968 .
5. Resisting the above submissions, made on behalf of the accused-petitioner, learned Public Prosecutor has contended that in a given case, the Magistrate does have the power, under Section 173(8) of the Code of Criminal Procedure, to direct re-investigation or further investigation into a case. It is also contended by learned Public Prosecutor that when the materials on record disclose commission of an offence by an accused under Section 13(1)(c) of the Prevention of Corruption Act, a Magistrate can direct the CBI to investigate the case. In support of this submission that a Magistrate may direct further investigation into a case in exercise of his powers under Section 173(8), Mr. Bora places reliance on Hemant Dhasmana v. Central Bureau of Investigation and Anr. reported in : 2001CriLJ4190 . That apart, for his submission that a Magistrate can direct even the CBI to investigate a case, the learned Public Prosecutor seeks to derive support from Kashmeri Devi v. Delhi Administration and Anr. reported in 1988 (Supp) SCC 482.
6. Before I deal with the rival submissions made before me, on behalf of the parties, it needs to be noted as to what a charge sheet really means and conveys. In this regard, pertinent it is to note that the expression 'charge sheet' or 'final report' does not occur in the Code. However, the Police Manual of some States contain Rules and Regulations, which describe the report submitted by the police under Section 170 of the Code as 'charge sheet'. It may be pointed out that when an officer-in-charge, on completion of investigation, finds that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such police officer shall forward the accused to a magistrate and the magistrate is, in such a case, empowered to take cognizance of the offence upon such police report and try the accused or commit him for trial. The report, so submitted under Section 170, is called 'charge sheet'. However, when the officer-in-charge of a police station finds that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer, according to Section 169 of the Code, shall, if such person is in custody, release him, on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before, a magistrate empowered to take cognizance of the offence, on a police report, and to try the accused or commit him for trial. When a report is submitted under Section 169, i.e., when there is no sufficient evidence to justify forwarding of a case to a magistrate, it is commonly called, and referred to as, 'final report'. In short, whereas a 'charge sheet' is the report, which is submitted under Section 170 by the police indicating that it has found sufficient materials in support of the complaint made to it or to the court, which it has investigated on the direction of the court, a 'final report' is a report, which is submitted, under Section 169 of the Code by the police, indicating that either it has not found sufficient material in support of the accusations made or that the accusations made are false.
7. It may also be pointed out that a careful reading of Sub-section (2) of Section 173 shows that when the officer-in-charge of a police station forwards the report, in the form, as may be prescribed by the State Government, the magistrate has to apply his judicial mind into such a report, if such report, which is called charge sheet, indicates that the allegations made in the complaint have been found, on investigation, to be true, the magistrate has to decide as to whether he shall take cognizance of offence or not on the strength of such a report or commit the case to trial on such a report. Even when the police, on investigation, conclude and report to the magistrate, in the form of final report, that no offence has been committed and/or no sufficient material is available to try the accused, it is still open to the magistrate to accept the report or not to accept the same. In other words, if the magistrate, on perusal of final report, is of the view that the offence appear to have been committed by the accused named in the complaint and/or any one else, the magistrate can ignore the conclusions reached by the investigating officer and take, in exercise of powers under Section 190(1)(b) of the Code, cognizance of such offence as the 'final report' may disclose. However, acceptance of such a 'final report' is not possible without giving an opportunity to the complainant or informant to have his say as to why the report shall not be accepted. See Bhagwant Singh v. Commissioner of Police reported in : 1985CriLJ1521 .
8. The third option, open to a magistrate, is indicated by the Section 173(8). In fact, it is Section 173(8), which is of material consequence for the purpose of determining as to whether further investigation can be ordered by a magistrate or not.
9. Turning, therefore, to the question as to whether an investigation or further investigation can be directed by a magistrate after the police has already submitted, on completion of investigation, 'charge sheet' let me, now, deal with Section 173(8). For the sake of convenience, Section 173(8) is reproduced below:
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be applied in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
10. Though Sub-section (8) of Section 173 does not, in clear and specific terms, mention that a magistrate can order further investigation, the fact remains that Sub-section (8) of Section 173 shows that the police, even after submitting a report or charge sheet in terms of Sub-section (2) of Section 173, can conduct further investigation and, if such investigation discloses further evidence, oral or documentary, the same shall be forwarded to the magistrate as a further report. The power, so given to the police, can be exercised by the police on its own or on receiving some information in this regard. Such a further investigation can also be carried out by the police on the strength of the orders of the court. Thus, in a given case, a magistrate may direct the police to conduct further investigation. Such power cannot be said to be without jurisdiction, and must not be, ordinarily, interfered with in a revision. On conducting further investigation, the police may either reach the same conclusions, which it had reached earlier, or it may reach a conclusion different from the one, which it had reached earlier. During such extended investigation, the police officer can either act on the same materials, which were already available with the police, or it can act on such further materials as may come to light. See Hemant Dhasmana v. Central Bureau of Investigation and Anr. reported in : 2001CriLJ4190 . Even in Union Public Service Commission v. S. Papaiah reported in : 1997CriLJ4636 the court has held that the magistrate could, in exercise of its powers under Section 173(8), direct further investigation into a case. (See also Bhagawant Singh v. Commissioner of Police, reported in : 1985CriLJ1521 .
11. However, for the purpose of determining as to whether a magistrate can direct the CBI to investigate, what is of utmost importance to note is that there are, broadly speaking, two different routes through which materials placed before a magistrate may warrant taking cognizance of an offence against an accused One of these routes commences with the lodging of the First Information Report and the other one by filing of a complaint with the magistrate. Whether it is the FIR, as contemplated under Section 154 of the Code, or it is the complaint, as contemplated under Section 190, the magistrate, in either case, can direct investigation.
12. While considering the question as to whether a magistrate can order investigation into a case or not, what also needs to be noted is that under Section 190, the magistrate can take cognizance of an offence on the basis of the following materials, namely,
(a) on receipt of complaint of facts, which constitute an offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed.
13. A magistrate may, on receipt of complaint, postpone issue of process against an accused and either enquire into the case himself or direct an investigation to be made by a police officer under Section 202 Cr.P.C. When investigation, in such a case, is ordered, the investigation is for the limited purpose of enabling the magistrate to decide if there is sufficient ground for proceeding with the complaint. As far as Section 155 is concerned, this section relates to investigation by the police into non-cognizable offences inasmuch as the magistrate can, under Section 155, direct the investigation by the police, when an FIR, lodged with the police, discloses commission of a non-cognizable offence. It is Section 156 of the Code, which is most relevant for the purpose of determining as to what an investigation into a cognizable offence means and conveys. Section 156, therefore, reproduced hereunder:
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.
14. From a careful reading of Section 156(3), it clearly transpires that a magistrate can order investigation with reference to such an investigation, which a police officer can conduct in terms of Sub-section (1) of Section 156. The expression, occurring under Section 156(3), 'order such an investigation as above-mentioned' refers to the investigations, which are mentioned in Sub-section (1) and Sub-section (2) of Section 156. Thus, the magistrate has the power, under Section 156(3), to direct an officer-in-charge of a police station to conduct investigation.
15. The question, therefore, is as to what a police station is, and what the officer-in-charge of a police station means Section 2(o) of the Code defines officer-in-charge of a police station as under:
2(o) officer-in-charge of a police station' includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;
16. Section 2(s) defines a Police Station, thus,
(s) police station' means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;
17. When Section 156 is read, in the light of the definitions of police station and officer-in-charge of a police station, as contained under Section 2(o) and 2(s) 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 Section 2(o), 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 Section 156(3), 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 Section 136 of the Code, the magistrate cannot direct anyone other than the officer-in-charge of a police station to conduct investigation in terms of Section 156(3). See Central Bureau of Investigation v. State of Rajasthan and Anr. reported in : 2001CriLJ968 .
18. What logically follows from the above discussion is that a police personnel, whether from a 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 Section 156(3). 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, if I may reiterate, must necessarily remain confined to the officer-in-charge of a police station. In no uncertain words, therefore, concluded the Supreme Court, in Central Bureau of Investigation v. State of Rajasthan, reported in : 2001CriLJ968 , thus: 'As the present discussion is restricted to the question whether a magistrate can direct 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.'
19. Because of what have been discussed and pointed out above, it becomes abundantly clear that a magistrate cannot direct the CBI to investigate or further investigate a case.
20. In view of the above, the direction given to the CBI to investigate the case by the learned Special Judicial Magistrate, in the present case, is contrary to law and must be set aside.
21. In the result and for the reasons discussed above, this revision partly succeeds. The impugned order, dated 5.6.2006, is hereby set aside and the matter is remanded to the learned court below with liberty given to the learned court below to pass appropriate direction, for further investigation, in accordance with law.
22. This revision shall stand disposed of in terms of the above observations and directions.