Single Judge Bench of Justice M. A. Chowdhary Jammu Bench of Jammu & Kashmir and Ladakh High Court has held that Magistrate is neither competent to order re-investigation of the case nor to transfer investigation of the case from one agency to another agency. It is made clear that Magistrate is, however, competent to order further investigation in terms of Sub Section 8 of Section 173 CrPC, if not satisfied with the investigation carried by an agency, the re-investigation of the case can be ordered by the High Court or by Hon’ble Supreme Court only.
While hearing a Petition (Kamlesh Devu & Ors. Vs. State of J&K and Ors.) for seeking quashment of an order dated 28.7.2010 passed by Learned Judicial Magistrate (Special Mobile Magistrate Passenger Tax and Shops Act) Jammu, in a final report titled State through Police Station KanaChak vs. Nemo, whereby the learned Magistrate has directed the respondent no. 4 Sr. Superintendent of Police (Crime Branch) Jammu, to re- investigate the matter i.e. FIR No. 35 of 2009 registered at Police Station Kanachak Jammu, against the petitioners for the commission of offences punishable under sections 420,467,468,471 RPC and also for quashing the FIR No. 35 of 2009 and the charge sheet arising therefrom titled State vs. Kamlesh Devi & Ors.
The petitioners have assailed the order dated 28.07.2010 passed by Learned Special Mobile Magistrate whereby final closure report titled ‘State through Police Station Kanachack v. Nemo’ was not accepted and respondent Crime Branch Jammu was directed to re-investigate the matter. Petitioners have also sought quashment of the FIR and challan arising out of that pending before the court of Principal Sessions Court Jammu against the petitioners.
After hearing both the side in the petition, Hon'ble court framed Two important questions to be adressed by the court:
i/ Firstly, that whether a judicial Magistrate is competent to transfer the investigation of the case from local police station to Crime Branch of the police agency; and
ii/ Secondly, that whether the Crime Branch was competent to conduct investigation of a case regarding forgery of a certificate as per the directions of the Magistrate.
Addressing to the First question Hon'ble court held that no other Court except the The petitioners have assailed the order dated 28.07.2010 passed by Learned Special Mobile Magistrate whereby final closure report titled ‘State through Police Station Kanachack v. Nemo’ was not accepted and respondent Crime Branch Jammu was directed to re-Investigate the matter. Petitioners have also sought quashment of the FIR and challan arising out of that pending before the court of Principal Sessions Court Jammu against the petitioners. Superior /Constitutional Courts is vested with the powers to order reinvestigation or transfer investigation of a case from one agency to another, to secure the ends of justice, therefore, in the present case impugned order passed by learned Judicial Magistrate is without jurisdiction to order re-investigation as well as transferring the investigation from police to Crime Branch , the impugned order is
thus not sustainable on this count.
And while addressing the Second question Hon'ble court observed that Government of J&K through Home Department issued Notification (SRO 202 dated 23.6.1999) specifying the classes of cases to be investigated by the crime branch within the State of J&K for the purposes of registration and investigation. Annexure appended to the notification specifies the nature of the cases or offences under certain Acts/Code which can to be investigated by the Crime Branch. The first item in the Annexure is ‘note forgery case’. The case on hand though relates to forgery of a document but it cannot be covered under the note forgery cases and in view of the considered opinion of this court it relates to currency note.
The Court further held that " the learned Magistrate was neither competent to order re-investigation of the case nor to transfer investigation of the case from one agency to another agency. It is made clear that Magistrate is, however, competent to order further investigation in terms of Sub Section 8 of Section 173 CrPC, if not satisfied with the investigation carried by an agency, the re-investigation of the case can be ordered by the High Court or by Hon’ble Supreme Court only."
"the learned Magistrate was not competent, for lack of jurisdiction, to pass the impugned order, whereby, he had directed to reinvestigate a case registered at Police Station Kanachak and also transfered the investigation to crime branch Jammu. The order is thus bad and is not sustainable. Investigation carried out by the Crime Branch and the chargesheet laid, as a result of that investigation based on the impugned order are also not sustainable. The impugned order and the proceedings arising out of it thus require interference by this Court."
19.For the foregoing reasons and observations made hereinabove, the petition is partly allowed with the following directions:
a/ The impugned order dated 28.7.2010 passed by Learned Judicial Magistrate to the extent of reinvestigation and transfer of the investigation from Police Station Kanachak to Crime Branch is quashed.
However, the order to the extent not accepting the closure report filed by PoliceStation Kanachak is upheld.
b/ The investigation and the chargesheet formulated by Crime Branch after its investigation pursuant to the impugnedorder is ordered to be quashed.
c/ The petition to the extent of seeking quashment of FIR No.35/2009 registered at Police Station Kanachak is rejected with a direction to the SHO Police Station Kanachak to further investigate the case.
SHO Police Station Kanachak is expected to investigate the case on fast track basis so that the culprits, if any, are brought to book at the earliest and in case the petitioners are found innocent they may be allowed to live in peace. I may hasten to add that I have not expressed any opinion relating to any of the factual aspects of the case.
20. Petition is disposed of accordingly in above terms.
(CRMC No. 144/2013)
(APPCR No. 28/2013)
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