ORDER
Ramachandriah, J.
1. This Criminal Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is directed against the order dated 21-7-89 of the M.M.V. Court, Bangalore (for short 'the Magistrate') in P.C.R. 39/89 arising out of a private complaint lodged by the first respondent-complainant on 10-7-89 against the petltioner-6th accused and 9 others regarding what is described as 'the Police murder' of her husband Shekhar in her presence within her house in Banasawadi area, Bangalore on the intervening night of 30-6-89/1-7-89.
2. The Magistrate acting on that complaint and the affidavit dated 17-7-89 filed by the first respondent (hereinafter referred to as 'the complainant') referred the complaint of the complainant under Section 156(3) of the Code to the Superintendent of Police, Central Bureau of Investigation, Bangalore, for investigation and report by 21-3-1989. All the 10 accused in that complaint are of the Karnataka Police Department. Accused Nos. 1 and 4 are Sub-Inspectors of Police, accused Nos. 5 and 6 are Assistant Commissioners of Police and accused Nos. 7 to 10 are Police Constables working in various Police Stations or Police Sub-Divisions within Bangalore City.
3. The material allegations made by the complainant in her complaint dated 10-7-89 are that she and her husband Shekar along with their infant baby, aged about 2 months, were residing together in a house belonging to one Parashuram, Munegowda Road, Banasawadi, Bangalore. All the three of them slept after having their dinner on the intervening night of 30-6-89/1-7-1989. Sometime thereafter, all the accused came in a group, knocked at the door of the house of the complainant and woke them up by making one Ganesh @ Kalapa known to them to call the name of her husband Shekhar. Thereupon, complainant and her husband woke up, opened the windows and peeped out. Within a few seconds, all the 10 accused of whom some of them were in mufti and some of them were in Police uniform gained entry into the house by opening the front door with force although it was bolted from inside. Immediately after entering the house, they held her husband Shekhar, handcuffed his hands and made him to sit down and thereafter first accused B.B. Ashok Kumar fired gunshots at Shekhar and killed him at the spot itself. Thereafter, petitioner was taken out of her house and wrongfully confined in Banasawadi Police Station and then in Kadugondanahalli Police Station for a few days. In the meanwhile, the accused invented a false story to cover up their highhanded acts. On the basis of a complaint lodged by first accused B.B. Ashok Kumar at about 4 a.m. on 1-7-89, a false case was registered in Banasawadi Police Station in Crime No. 294/89 under Sections 353 and 307 IPC against deceased Sekhar describing him as Shekhar @ Station Shekhar on the allegations that when all of them had gone to the house of the complainant at about 2-30 a.m. on 1-7-89 in order to arrest Shekhar in connection with Crime No. 165/89 registered against him at Cubbon Park Police Station for an offence under Section 324 IPC, Shekhar resisted their attempt to arrest him and opened fire at them with a revolver possessed by him and, therefore, Sub-Inspector Ashok Kumar by way of self-defiance opened fire at Shekhar with his revolver resulting in gun-shot injuries to Shekhar and his eventual death at the spot. It is significant to note that accused in Crime No. 294/89 is described as Shekhar @ Station Shekhar and it is not even indicated that he was dead although it is mentioned in the brief facts of the case column that Shekhar died at the spot due to gun-shot injuries (Vide Xerox copy of FIR in Crime No. 294/89 found at pages 22 to 26 of the paper book made available by the learned Counsel for the complainant-first respondent). After she was released by the accused from Police custody, she made a complaint at Eanasawadi Police Station but it was refused. Even the Commissioner of Police, Bangalore City whom she approached with a complaint refused to take any action. It is under those circumstances that the complainant had to file a Private complaint under Section 190 read with Section 200 of the Code before the Magistrate on 10-7-89 by alleging that by committing the above mentioned acts, the accused-Police Officers have committed offences punishable under Sections 120B, 343, 302, 460, 506B and 201 read with Section 34 IPC with a prayer that her complaint may kindly be referred to the CBI, Bangalore, for investigation as the accused were all Police Officers and some of them were holding the high position as Assistant Commissioners of Police, and therefore, an impartial investigation cannot be expected if the case is referred to any Police Officer for investigation. She also supplemented her said prayer by filing her affidavit on 17-7-89 wherein she averred that under the circumstances narrated in her complaint and her affidavit there was no safety for her life and she cannot expect justice and fair and impartial investigation if the complaint is referred to any member of the State Police as the Commissioner of Police and Deputy Commissioner of Police themselves had demanded her to withdraw the complaint.
4. In view of the said prayer of the complainant, the learned Magistrate heard Sri Tomy, Sebastian, who was appearing for the complainant in the trial Court also, and passed the impugned order on 21-7-1989 being very much impressed by the argument submitted by Sri Tomy Sebastian 'with his usual learning's and submissions in a flowery language relying on number of decisions' 'as has been observed by the learned Magistrate in paragraph-4 of his order. In the course of the order, the learned Magistrate observed that although some of the offences alleged against the accused in the Private complaint of the complainant were exclusively triable by the Court of Session, there was no impediment for the Court to refer the complaint under Section 156(3) of the Code to the Police for investigation in view of the law laid down by the Supreme Court in DEVARAPALLI AND ORS. v. V. NARAYANA REDDY AND ORS : 1976CriLJ1361 . and by this Court in GURUBASAPPA v. STATE OF KARNATAKA AND ORS 1979 Cr. L.J. 294 (Karnataka). to the effect that the first proviso to Section 202(1) of the Code does not debar a Magistrate to send a complaint disclosing the offences exclusively triable by the Sessions Court for investigation under Section 156(3) of the Code. He next answered the point whether he can refer the complaint under Section 156 of the Code to the Superintendent of Police, CBI, Bangalore, for investigation in the affirmative by placing strong reliance on the observations of the Supreme Court in STATE OF WEST BENGAL v. Sampathlal : 1985CriLJ516 and by Gujarat High Court in KANAYALAL v. STATE OF GUJARAT 1989 Crl.L.J.. 492 and also a decision of this Court in PREMIER IRRIGATION EQUIPMENT LTD. v. STATE OF KARNATAKA AND ANR 1987 Crl.L.J. 1404. The learned Magistrate thought that taking any other view would be doing violence to the principles stated in the above mentioned Rulings strongly relied upon by the learned Counsel for the complainant and in his opinion the principles enunciated in the said decisions appear to be well founded and, therefore, they must prevail. In referring the complaint to the Superintendent of Police, CBI, Bangalore for investigation, the learned Magistrate was also influenced by the fact that accused Nos. 1 to 6 are all top Officers of the Police Department and accused Nos. 7 to 10 are Police Constables and considering the gravity of the offences and also the circumstances in which the alleged offences were committed by the accused, it was a fit case to refer the complaint to the Superintendent of Police, CBI, Bangalore in order to have an impartial investigation in the matter in the interest of justice.
5. It is the said order that is assailed by only the 6th accused out of 10 accused in P.C.R.No. 39/89 by filing this Criminal Petition. The prayer made in the petition is to allow the petition and to quash the impugned order in the interest of justice.
6. Although one of the grounds urged in the petition is that the Court-below has no jurisdiction to refer the complaint under Section 156(3) of the Code to the Superintendent of Police, CBI, Bangalore for investigation when the offence alleged is the one triable exclusively by the Court of Session and it is the duty of the Magistrate under Section 202(1) to examine the complainant and all the witnesses named in such a complaint and thereafter send the matter to the Court of Session for trial, Sri N. Santosh Hegde, learned Counsel for the petitioner-accused, did not, in my opinion rightly, urge that ground at the time of arguments in view of the above referred decisions of the Supreme Court and of this Court which are directly on the point.
7. However, Sri N. Santosh Hegde, argued that the view taken by the learned Magistrate that the words 'the Court' used in the decision of the Supreme Court in the case of West Bengal v. Sampathlal are comprehensive enough to include the Court of the Magistrate also is erroneous and the said view is palpably incorrect on a plain reading of the provisions of Sub-section (1) read with Sub-section (3) of Section 156 of the Code. He further submitted that the view taken by the learned Magistrate renders nugatory the provisions of Section 6 of The Delhi Special Police Establishment Act, 1946 (for short 'the Act') which bears the heading 'consent of State Government to exercise of powers and jurisdiction' and reads that 'Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area without the consent of the Government of that State'. According to Sri Hegde, the words 'the Court' used by their Lordships of the Supreme Court in the case of West Bengal v. Sampathlal means the High Court exercising the writ Jurisdiction under Article 226 of the Constitution of India (COI) or the Supreme Court acting under Articles 32 and 136 of the COI. He also placed reliance on a recent decision of the Supreme Court in CHAITANYA KAIBAGH AND ANR. ETC. v. STATE OF U.P. AND ORS. ETC 1989 I SVLR (CR) 206. in support of his contention that it is only the High Court and the Supreme Court which can order reference of a complaint for investigation to the CBI under Special circumstances and in extraordinary situations and not in each and every case. He further submitted that learned Magistrate has abused the powers vested in him under Section 156(3) of the Code in making the impugned reference by bypassing the State Police whose duty it is to investigate into the allegations made in complaints being the guardians of law and order and the principles of natural justice are also violated as the impugned order is passed without issuing notices to the State Government and the Police and without affording them an opportunity to have their say in the matter before taking the extreme step of referring the complaint under Section 156(3) of the Code to the Superintendent of Police, CBI, Bangalore.
8. On the other hand, Sri Tomy Sebastian, learned Counsel for the first respondent-complainant, argued in support of the impugned order by contending that the words 'the Court' used by their Lordships of the Supreme Court in the case of State of West Bengal v. Sampathlal can by no means be restricted to the High Courts and the Supreme Court only and the said words, as per the plain meaning of the word 'Court' include the Courts of the Magistrates and also Session Courts. He placed strong reliance in support of his said argument on the decision of the Supreme Court in State of West Bengal v. Sampathlal and also on a subsequent decision of the Supreme Court in KASHMERI DEVI v. DELHI ADMINISTRATION : 1988CriLJ1800 and also on a few other decisions to which reference will be made shortly. He also contended that the petitioner has no locus standi to invoke inherent jurisdiction of this Court under Section 482 of the Code as the learned Magistrate has not ordered issue of process against any of the accused and the petitioner-6th accused in particular is not yet served with summons to appear before the Magistrate. He further submitted that, even otherwise, this is not a fit case for interference with the impugned order under Section 482 of the Code as no abuse of the process of Court is involved and the prayer made in the petition also does not come within the expression 'otherwise to secure the ends of justice' employed in Section 482 of the Code.
9. Sri Venkatachalaiah, learned Central Government Standing Counsel, representing the second respondent, submitted that subsequent to the order of the learned Magistrate the CBI has filed FIR and It has also taken steps to get the consent of the State Government for investigating into the offences alleged against the accused in the complaint as the offence under Section 460 IPC mentioned in the complaint is not yet included in any of the Notifications issued by the Central Government from time to time in exercise of the powers vested in them under Section 5 of the Act although all other offences mentioned in the complaint are covered by the Notifications issued under Section 5 of the Act. In support of his said contention, he has produced copies of Notifications issued by the Central Government from time to time and also the Notification dated 12-2-81 issued by the State Government in exercise of the powers conferred by Section 6 of the Act, He further submitted that he would remain neutral in respect of other contentions relied on by both sides on the meritsof the petition.
10. By way of reply, Sri N. Santosh Hegde, submitted that the petitioner is one of the persons against whom the complaint is made and he is really aggrieved and affected by the impugned order as investigation by the CBI is ordered against him behind his back and since it is unlawful, petitioner can question it and this Court can quash the impugned order under Section 482 of the Code in order to prevent abuse of the process of the Court or otherwise to secure the ends of justice. He tried to distinguish the decisions of the Supreme Court in State of West Bengal v. Sampathlal and Ors. decisions on which reliance was placed by Sri Tomy Sebastian in his own way and submitted that it is clear from the preamble of the Act and the reference made to the 'Union Territory' in Sections 2, 5(1) and 6 of the Act that the Delhi Special Police Establishment is established under the Act enacted by the Parliament for the purpose of investigation of certain offences in the Union Territories and to make provision for the superintendence and administration of the said Force and for the extension to other areas of the powers and jurisdiction of the members of the said Force in regard to the investigation of certain category of offences which may be brought within its fold by Notifications issued by the State Governments under Section 6 of the Act. He also submitted that under Item No. 2 in List-II of the State List mentioned in the Seventh Schedule of the COI, the Police Establishment comes within the exclusive jurisdiction of the State List and the powers vested in the said Police cannot be divested by making reference to an outside agency like the CBI to investigate into the complaints in respect of offences like the one alleged in the complaint of the first respondent.
11. The points that arise for determination in the light of the submissions made by the learned Counsel on both sides may be formulated as under:
(i) Whether the Magistrate has no jurisdiction to refer the complaint under Section 156(3) of the Code to the Superintendent of Police, CBI, Bangalore, for investigation?
(ii) Whether petitioner has no locus standi to seek quashing of the impugned order? and
(iii) Whether this is not a fit case to exercise the inherent powers vested in this Court under Section 482 of the Code for quashing the impugned order?
12. POINT NO. (i): This is a pivotal point for consideration as the fate of this petition mainly hinges upon the finding to be recorded on this point.
13. For a proper appreciation of the arguments submitted by the learned Counsel on both sides on this point, it is necessary to refer to the provisions of Section 156 of the Code. It reads thus:
Police Officer's power to investigate cognizablecase.
'156(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. Police Station as defined in Clause (s) of Section (3) of the Code 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. Two other definitions to which reference becomes necessary are 'enquiry' and 'investigation'. 'Enquiry' as defined in Clause (g) of Section 3 of the Code means every enquiry other than the trial, conducted under the Code by a Magistrate or Court. 'Investigation' as defined in Clause (h) of Section 3 includes all the proceedings under the Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf. 'Court' is not defined in Section 3 of the Code although 'High Court' is defined in Clause (e) of Section 3. In my opinion, it would not be proper to take into consideration the meaning of the word 'Court' as defined in the Contempt of Courts Act.
15. Sri N. Santosh Hegde submitted that a combined reading of the provisions of Sub-sections (1) and (3) of Section 156 of the Code would indicate that a Magistrate empowered under Section 190 may order an investigation to be made by any officer-in-charge of a Police Station thereby meaning the Police Station which comes within the definition of Clause (s) of Section 3 and not the Police Station of a CBI which is having its branch at Bangalore and, therefore, the Magistrate was competent to refer the complaint of the first respondent to the Police Station established by the State Government and not to the Police Station of the CBI and that too without issuing notice to the State and hearing the State and added that the CBI cannot take up the investigation without the consent of the State as required under Section 6 of the Act. Therefore, it is necessary to examine whether the view taken by the learned Magistrate on the strength of the observations made by the Supreme Court in the case of State of West Bengal v. Sampathlal that the consent as envisaged under Section 6 of the Act is not a condition precedent to comply with the Court's direction and Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation when the offences are already notified under Section 3. According to Sri N. Santosh Hegde, the words 'the Court' used by the Supreme Court in the case of State of West Bengal v. Sampathlal means the High Court and not any Court including the Court of a Magistrate.
16. In my opinion, the said argument appears to be a sound one as if it was the intention of Their Lordships of the Supreme Court that the consent envisaged under Section 6 of the Act is not necessary, when the Court gives a direction for the investigation, Their Lordships would have used the words 'a Court' or 'any Court' and not the words 'the Court'. Their Lordships have used the words 'this Court' thereby meaning the Supreme Court in paragraph-10 and twice in paragraph-13. It is further observed in paragraph-13 and as under;
'It has been accepted by Counsel for all the parties including the Additional Solicitor General that while Section 6 of the Delhi Special Police Establishment Act, 1946 (for short 'the Act') would require the consent of the State Government before jurisdiction under Section 5 of that Act is exercised by Officers of that establishment. When a direction is given by the Court in an appropriate case, consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and Counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned Single Judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction under Section 6 of the Act.'
In the said decision, Their Lordships were considering the correctness of the order passed by a learned Single Judge of the Calcutta High Court directing the DIG, CBI, Calcutta-16 to cause an enquiry to be made and to report to the Calcutta High Court by 26-3-83 as to how the two boys concerned in that case met their death. In that connection, Their Lordships have referred in paragraph-19 to the meaning of the statutory terms 'enquiry' and 'investigation' which are defined in the Code and have observed that they were sure that the High Court never intended the cause of Justice to be prejudiced and the serious attempt to find out the truth to be aborted as in their view the investigation is a matter for the Police under the scheme of the Code. Reference is also made in the said decision to the observations of the Judicial Committee in the case of KIND EMPEROR v. KHWAJA NAZIR AHMED in which the Privy Council observed as under:
'The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561A (now Section 482) has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so, the Section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed bythe Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act.'
Their Lordships have also observed towards the end of paragraph-24 at page 204 that the well-settled proposition laid down by the Judicial Committee of the Privy Council is approved on three occasions by the Supreme Court. One of the said decisions is the one reported in STATE OF BIHAR v. J.A.C. SALDANA : 1980CriLJ98 in which it is observed that the view of the Judicial Committee clearly demarcates the functions of the executive end the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary. Reference is also made to the said observations towards the end of paragraph-23 at page 204 and the words 'is ordinarily' are underlined thereby meaning that the judiciary can interfere with the course of Investigation which is within the realm of the police only in exceptional cases and not ordinarily. Therefore, I find it difficult to accept the argument of Sri Tomy Sebastian that the words 'the Court' used by their Lordships of the Supreme Court in paragraph-13 includes the Courts of Magistrates also and not necessarily the High Court or the Supreme Court. As a matter of fact, the said argument of the learned Counsel for the complainant does not find support from the decision of the Gujarat High Court in Kanayalal v. State of Gujarat on which he strongly relied inasmuch as it is observed in paragraph-3 of the said decision that in the case of State of West Bengal v. Sampathlal in paragraph-13 the Supreme Court considered the question whether the High. Court could appoint CBI to enquire into the matter in the absence of proper consent of the State Government.
17. While dismissing the writ Petition filed by Manav Ekta Abhiyan to ban Ram Shila Pujan procession to Ayodhya, the Supreme Court has observed in its order dated 27-10-89 as reported in all leading Indian Dailies dated 28-10-89 that the maintenance of the law and order is the primary duty of the State.
18. Sri Tomy Sebastian also tried to derive sustenance to his argument from two decisions of this Court one of which is a reported decision in M/s. Premier Irrigation Equipment Ltd. v. State of Karnataka and the other one is an un-reported decision in KRUPA-NANDA v. SMT. KATHYAYINIAMMA AND ORS. Cr.P.1267/87 decided on 25-11-87. The latter decision is of no assistance as it cannot be regarded as a speaking order inasmuch as the Criminal Petition filed under Section 482 of the Code filed for quashing the order passed by the Chief Metropolitan Magistrate, Bangalore City in PCR 61/86 referring the complaint in that case to CBI for enquiry is dismissed with a brief order which runs as under:
'I.A. for dispensation is granted.
Office to number it.
Heard regarding admission.
No merits.
Dismissed.'
The other decision in M/s P.I.E. Ltd. is of a learned Single Judge of this Court. In the said decision, the main ground that was urged by the learned Counsel for the petitioners was that the Special Court constituted under the Essential Commodities Act has no power under Section 156(3) of the Code to refer the complaint for investigation as he is not empowered to take cognizance under Section 190 of the Code but he is empowered to take cognizance under Section 12-AA(1)(e) of the Act (Special Provisions Act 1981). It is observed towards the end of paragraph-4 after examining the provisions of Sections 12AA(1)(e) and 12 AC of the Act and Sections 190, 191-B, 193 and 156(3) of the Code that there was no force in the said contention of the learned Counsel for the petitioners and, therefore, the petition is dismissed. That apart, the point now covered by point No. (i) in this petition was neither urged nor any finding recorded by this Court in the said decision. Therefore, I am of the view that the said two decisions of this Court do not lend any support to the argument advanced by Sri Tomy Sebastian.
19. On this point, Sri N. Santosh Hegde placed strong reliance on a recent decision of the Supreme Court In Chaitanya Kaibagh and Anr. etc. v. State of U.P. and Ors. etc. In the said decision, their Lordships of the Supreme Court were considering three writ Petitions filed invoking the jurisdiction of the Supreme Court under Article 32 of the COI in respect of death of various people during what was described by the police as 'encounters'. The facts of that case are that massacre of 24 Harijans in Dehuli in the district of Mainpuri in the State of Uttar Pradesh led the then Chief Minister of Uttar Pradesh to determine upon eradicating the menace from dacoits in the State and during the man-hunt which followed, a number of persons alleged to be dacoits, were killed by the police during what was described by the Police as in various 'encounters'. An investigation conducted by one of the petitioners by name Chaitanya Kaibagh, in those writ Petitions was made the basis of the petition and it was alleged that amongst the persons killed by the Police during such 'encounters' there were as many as 299 innocent persons and, therefore, it was prayed that an Impartial agency should be appointed to Investigate into the deaths with authority to prosecute the Police Officers and other personnel found guilty of murder and other offences under the Indian Penal Code. In that context, it is observed in paragraph-6 of the said decision that the prayer made in the three writ Petitions relate to matters which properly fall within the domain of the State Governments and, therefore, the State Government should be petitioned in the first instance and as such their Lordships were inclined to provide an opportunity to the petitioners to petition the State Governments concerned in the first instance for the relief sought in those writ Petitions. With the said observations, their Lordships have directed the petitioners in those writ Petitions to make their representations before the State Governments within four weeks and have directed the State Governments concerned to dispose of the petitions that may be filed by the petitioners in the three writ Petitions within three months thereafter. On the strength of the said decision, Sri N. Santosh Hedge, learned Counsel for the petitioner-accused, argued that even in such an extreme case in which the Police were alleged to have committed the murder of nearly 300 innocent persons in the guise of 'encounters', their Lordships have not thought it fit to grant the prayer of the petitioners in the three writ Petitions to appoint an impartial agency to investigate into the large scale killing of innocent persons by the Police although nothing prevented their Lordships in exercise of the extraordinary powers of the Supreme Court under Article 32 of the COI to appoint the CBI or any other impartial agency to investigate into the deaths of nearly 300 innocent persons. In my opinion, the said argument deserves to be accepted.
19. One other decision of the Supreme Court on which strong reliance was placed by Sri Tomy Sebastian is the one reported in Kashmeri Devi v. Delhi Administration. The facts of that decision are that the husband of Kashmeri Devi by name Sudesh Kumar was alleged to have been beaten to death by the Police when he was in Police custody. In that connection, a case was registered under Sections 302 and 342 IPC against the police Officers at Patelnagar Police Station. Within hours of registration of that case, it was converted into one under Section 304 IPC even without waiting for the post-mortem report. Later, the said case was further converted to one under Section 323 read with Section 34 IPC during the pendency of the writ Petition and Special Leave Petition for transfer of investigation of the case to CBI and charge-sheet was submitted on that basis. Therefore, Kashmeri Devi approached the High Court by means of a writ Petition under Article 226 of the COI for transferring the investigation of the case from the Crime Branch of the Delhi Police to CBI. The Division Bench of the High court dismissed the. writ Petition. Thereupon, Kashmeri Devi approached the Supreme Court by means of Special Leave Petition under Article 136 of the COI. In paragraph-2 of the said decision, their Lordships of the Supreme Court have observed that it was an unfortunate case which tends to shake the credibility of the Police Investigation and undermines the faith of common man in Delhi Police which Is supposed to protect the life and liberty of citizens and maintain law and order and there has been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused Police Officers was made with a view to shield the guilty members of the Delhi Police. Again, their Lordships have observed in paragraph-6 of the said decision that prima facie the Police had acted in a partisan manner to shield the real culprits and the investigation of the case has not been done In a proper and objective manner and, therefore, their Lordships were of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known. It is then observed in paragraph-7 as under:
'7. Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial Court before whom the charge-sheet has been submitted to exercise his powers under Section 173(8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction, the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly.'
Sri Tomy Sebastian, learned Counsel for the first respondent-complainant, placed emphasis on the words to exercise 'his powers' under Section 173(8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case, (Emphasis is added) and contended that it is clear from the use of the words 'his powers' with reference to the Magistrate concerned in that case under Section 173(8) of the Code to direct the CBI to make a proper and through investigation of the case.
21. I find it difficult to accept the said argument inasmuch as their Lordships of the Supreme Court have directed the Magistrate to direct the CBI to make proper and thorough investigation of the case in exercise of the powers vested in him under Section 173(8) of the Code as in my opinion, the words 'his powers' cannot be interpreted to mean that he himself had powers to direct the CBI under Section 173(8) of the Code to make a proper and thorough investigation of the case. Therefore, the said decision is also of no assistance to the point canvassed by Sri Tomy Sebastian.
22. Reverting to the decision in the State of West Bengal v. Sampathtal their Lordships of the Supreme Court observed in paragraph-14 that 'no notice was given by the learned Single Judge of the Calcutta High Court to the State Government. When no notice was given to the State Government and no opportunity was offered to them, it is difficult to see how an exparte order could be made on such an assumption although their Lordships do not wish to be understood to say that in no case an exparte order can be made by the Court' thereby meaning the High Court of Calcutta.
23. In the instant case also, the learned Magistrate has passed the impugned order exparte without affording any opportunity to the State Police or the State Government to have their say in the matter.
24. In the light of the above discussion, I hold that the learned Magistrate has acted improperly and illegally in referring the complaint of the first respondent to the Superintendent of Police, CBI, Bangalore, for investigation and he could not have done so acting under Section 156(3) of the Code. Point No. (i) is answered accordingly.
25. POINT NO. (ii): On this point, Sri Tomy Sebastian argued that since the Magistrate has only referred the complaint for investigation under Section 156(3) of the Code and has not yet ordered issue of process against the accused, the petitioner has no locus standi to take suo motu notice of the complaint and to approach this Court for quashing the impugned order. In support of the said submission, he placed reliance on a decision of the Supreme Court in SMT. NAGAWWA v. VEERANNA SHIVALINGAPPA KONJALGI AND ORS 1976 Supreme Court Cases (Cri) 507. in which it is held that the scope of enquiry under Section 202 of the Code is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to the defence that the accused may have and in proceedings under Section 202 of the Code the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
26. One other decision to which reference was made by Sri Tomy Sebastian is of the Gauhati High Court in ABDUL HANNAN AND ANR. v. GHANA-SHYAM TALUKDAR 1989(1) Cr.L.C. 159 in which it is held by following the above mentioned observations of the Supreme Court in Smt. Nagawwa's case that the accused has neither any right to be heard in any enquiry under Section 202 nor has any locus standi to challenge such enquiry during its pendency. In my opinion, the above mentioned observations made by the Supreme Court cannot be pressed into service against the petitioner as the immediate consequence of the impugned order, if it is allowed to stand, is that he will have to face investigation by the CBI Police in respect of a matter over which the State Police has exclusive jurisdiction when the Magistrate had no jurisdiction to make the impugned order. Therefore, point No. (ii) is answered in the negative.
27. Point No. (iii): Section 482 of the Code under which the petitioner has sought the quashing of the impugned order reads thus:
Saving of '482. Nothing in this Code shall be inherent to deemed limit or affect the of inherent powers powers of the High Court to make such orders as may be necessary of to give effect to any order under this Code, or High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice.'
The present petition does not admittedly come within the ambit of the words or expression 'to make such orders as may be necessary to give effect to any order under this Code' used in Section 482 of the Code. However, according to Sri N. Santosh Hegde, this Court can quash the impugned order under the latter half of Section 482 of the Code in order to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
28. Reliance was placed by Sri Tomy Sebastian in support of contention No. (iii) on a decision of the Supreme Court In EASTERN SPINNING MILLS SRI. VIRENDRA KUMAR SHARDA AND ANR. v. SRI RAJ1V PODDAR AND ORS : 1985CriLJ1858 and the decision of a learned Single Judge of Gujarat High Court in KANAK-SINH HATHISINH JADEJA AND ORS. v. BALA-BHADRASINH NARENDRASINH JHALA AND ANR 1988(1) Cr.L.C. 134. The relevant observations made in the case of Eastern Spinning Mills by their Lordships of the Supreme Court are that 'save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at any stage of investigation of the offences.' But, according to Sri N. Santosh Hegde, this is one of the exceptional cases where non-interference would result in miscarriage of justice as the impugned order made behind the back of the petitioners and the State Government would adversely affect the right of the petitioner to have the investigation made by the State Police if it is allowed to stand. In my opinion, the said argument deserves to be accepted for the reasons already mentioned in the course of the discussion on point No. (ii). Therefore, point No. (iii) is also answered in the negative.
29. It follows from the above findings recorded on point Nos. (i) to (iii) that the petition deserves to be allowed.
30. Before concluding this order, I consider it necessary to point out that the first respondent-complainant is not without a remedy. If the allegations made by the complainant in her complaint and her affidavit represent the truth, it calls for severe condemnation of the high handed acts of the accused-Police Officers and officials and a very deterrent action will have to be taken against them as they have indulged in gross abuse of the vast powers vested in the police. The apprehension of the complainant that investigation of the allegations made in her complaint by usual Police machinery would not bring out the truth is quite reasonable.. Even then, she could have prayed that any senior Police Officer of proved ability and integrity may be directed to take up investigation of the allegations made in her complaint as Section 36 of the Code provides that superior officers of the Police may exercise the same powers which an officer-in-charge of a Police Station may exercise or she could have approached this Court with a petition under Article 226 of the COI to direct the CBI to conduct the investigation. As a matter of fact, Sri N. Santosh Hegde fairly conceded that position in the course of his reply. But, since the complainant has chosen a wrong remedy, she has to suffer the consequences.
31. In the result, for the foregoing reasons, the petition is allowed and the order dated 21-7-1989 of the Metropolitan Magistrate, V Court, Bangalore, in P.C.R.No. 39/89 referring the complaint of the first respondent under Section 156(3) of the Code to the Superintendent of Police, CBI, Bangalore for investigation is quashed.