Judicial Magistrate Not Competent To Direct Re-Investigation Or Transfer Case From One Investigating Agency To Another: JKL High Court

Justice M A Chowdhary observed,

"No other Court except the 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."

The remarks were made while hearing a plea in terms of which the petitioner had sought quashing of an order passed by the Judicial Magistrate, Jammu directing SP Crime Branch to re-investigate a case against petitioner for the commission of offences punishable under Sections 420, 467, 468, Section 471 of the Ranbir Penal Code (RPC).

In the instant matter, based on a complaint filed by one Beero Devi against petitioner, Kamlesh Devi before the Chief Judicial Magistrate, Jammu, (Special Mobile Magistrate Passenger Tax and Shops Act) under Section 156(3) CrPC the Court had directed the Police to conduct investigation.

Subsequently a case was registered and after collecting the material/documentary evidence and recording the statements of witnesses, it was found that the allegations levelled in the complaint were false, manipulated and without any basis. Hence, the Police considered it a fit case to proceed against the complainant under Section 182 CrPC for having lodged a false and frivolous case.

Thereafter, the police filed a closure report before the CJM of Jammu who transferred the case to another Judicial Magistrate (Special Mobile Magistrate Passenger Tax and Shops Act) for disposal under law. Special Mobile Magistrate then issued summons to complainant Beero Devi and recorded her statement wherein she deposed that she was not satisfied with the investigation and, therefore, the same should be transferred to the Crime Branch Jammu.

As a consequence the Judicial Magistrate by an order dated July 28, 2010 transferred the investigation of the case from Kanachak Police Station, Jammu to Crime Branch, Jammu relying on Statutory Regulatory Order (SRO) 202, dated June 3, 1999 with the understanding that the Crime Branch Jammu was empowered to carry out the investigation in a case of forgery.

Challenging the order of transfer counsel for the petitioner contended that the Magistrate was not competent to direct re-investigation of the case to be carried out by a different police agency. Counsel further submitted that even the Crime Branch was not competent to investigate the matter in terms of SRO 202 which does not empower the Crime Branch to investigate any offences which is not scheduled in the Annexure to SRO.

The moot questions that fell for adjudication were:-

i) 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) whether the Crime Branch was competent to conduct investigation of a case regarding forgery of certificate as per the directions of the Magistrate.

Deliberating on the first issue, Justice Chowdhary observed that no court except the superior/Constitutional courts is vested with the powers to order re-investigation or transfer investigation of a case from one agency to another.

In its bid to answer the second question the bench observed that the government of J&K through Home Department had issued SRO 202 specifying the classes of cases to be investigated by the crime branch within J&K for the purposes of registration and investigation.

The bench further noted that the Crime Branch can also register other cases for investigation which may be referred to it by the government or Director General of Police from time to time as per the notification (SRO 202).

Discussing the matter further the bench explained that in terms of the above, the assignment of the cases to the Crime Branch can take place either by the government or by the DGP, and therefore the judicial magistrate was not competent to transfer investigation of the case from one investigating agency to other.

In view of the the discussion above the Court quashed the order passed by the Judicial Magistrate, Jammu (Special Mobile Magistrate Passenger Tax and Shops Act) and upheld the order to the extent not accepting the closure report filed by the Police Station Kanachak.

Case Title : Kamlesh Devi & Ors Vs State of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 236

Coram : Justice M A Chowdhary

Counsel For Petitioner : Mr Rakesh Chargotra

Counsel For Respondent : Mr Pawan Dev DyAG, Mr RP Sapolia

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