Judicial Magistrate not competent to order re-investigation or transfer case to another investigating agency: Jammu & Kashmir High Court

The High Court of Jammu & Kashmir and Ladakh recently ruled that a judicial magistrate is not competent to order re-investigation in a case or transfer the case from one investigating agency to another [Kamlesh Devi & Ors. V/s State of J&K & Ors.]..Single-judge Justice MA Chowdhary said that a Judicial Magistrate is competent to order further investigation in terms of sub-section 8 of Section 173 of Code of Criminal Procedure (CrPC), if not satisfied with the investigation carried by an agency.But re-investigation of a case can be ordered only by a High Court or by the Supreme Court, the Court made it clear. ."The learned Magistrate is neither competent to order re-investigation of the case nor to transfer investigation of the case from one agency to another agency. Magistrate is 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 the Supreme Court only," the judgment said. .The Court was hearing a plea seeking to quash an order passed by the Judicial Magistrate, Jammu (Special Mobile Magistrate Passenger Tax and Shops Act) whereby the Magistrate has directed SP Crime Branch, Jammu to re-investigate a case registered at Kanachak police station in Jammu against petitioner for the commission of offences punishable under Sections 420 (cheating), 467 (forgery of valuable security, will etc), 468 (forgery for purpose of cheating), Section 471 (using as genuine a forged document or electronic record) of the Ranbir Penal Code (RPC). .The case was 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 on the basis of the complaint directed the Police to conduct investigation..On direction passed by the Chief Judicial Magistrate (CJM), 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..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..The counsel for the petitioner argued before the High Court that neither was the Magistrate competent to direct re-investigation of the case to be carried out by a different police agency nor was the Crime Branch competent to investigate the matter in terms of SRO 202 which, it was contended, does not empower the Crime Branch to investigate any offences which is not scheduled in the Annexure to SRO..The High Court examined the following two issues raised by the petitioner:Firstly, whether a judicial Magistrate is competent to transfer the investigation of the case from local police station to Crime Branch of the police agency; andSecondly, that whether the Crime Branch was competent to conduct investigation of a case regarding forgery of certificate as per the directions of the Magistrate..On the first issue, the High Court said 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.."It is clear that no other Court except the Superior/Constitutional Courts is vested with the powers to order re-investigation or transfer of a case from one agency to another, to secure the ends of justice, therefore, in the present case impugned order passed by the learned Judicial Magistrate is without jurisdiction to order re-investigation as well as transferring the investigation from police to Crime Branch, the impugned is thus not sustainable on this count," the Court said. .On the second question, the High Court said 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 High Court further said 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)..The case on hand was not assigned to the Crime Branch either by the government or by the DGP but by a judicial Magistrate, who as already discussed, was not competent to transfer investigation of the case from one investigating agency to other, the High Court said..The High Court, therefore, 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..The High Court further quashed the investigation and the charge sheet formulated by the Crime Branch and also rejected petitioner's plea seeking quashing of FIR..[Read Judgment]