Sakina Tashrifwala
Published on: 06 December 2022 at 22:16 IST
Judicial magistrates in Jammu and Kashmir and Ladakh are not authorised to reopen investigations or shift cases from one law enforcement agency to another, according to a recent ruling by the state’s highest court.
Based on subsection 8 of Section 173 of the Code of Criminal Procedure (CrPC), a single judge, Justice MA Chowdhary, ruled that a Judicial Magistrate has the authority to compel additional investigation if they are dissatisfied with the results of an agency’s inquiry.
However, as the Court made clear, only a High Court or the Supreme Court has the authority to order a re-investigation of a matter.
“The learned Magistrate lacks authority to either reopen the probe or transfer it to a different agency. Subsection 8 of Section 173 of the Criminal Procedure Code gives the Magistrate the authority to request additional investigation into the case.”
“However, if the Magistrate is dissatisfied with the results of the initial investigation conducted by the agency, only the High Court or the Supreme Court can request a new investigation” the ruling ruled.
Petitioner was charged with offences under Sections 420 (cheating), 467 (forgery of valuable security, will, etc.), 468 (forgery for purpose of cheating), and 471 (using as genuine a forged document or electronic record) of the Ranbir Penal Code, and the Court was hearing a petition to vacate an order passed by the Judicial Magistrate, Jammu (Special Mobile Magistrate Passenger Tax and Shops Act) directing SP Crime Branch, Jammu to (RPC).
The case was based on a complaint submitted 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.
After hearing the allegation, the judge ordered police to investigate.
After a case was opened under the CJM’s order, it was determined that the charges made in the complaint were completely baseless, untrue, and fabricated.
As a result, the police decided to press charges against the complainant for filing a false and frivolous complaint under Section 182 CrPC.
The CJM of Jammu then moved the matter to the Special Mobile Magistrate Passenger Tax and Shops Act after receiving a closure report from the police.
Beero Devi, the original complainant, was called in for a statement by the Special Mobile Magistrate, and she testified that she was unhappy with the inquiry and wanted it moved to the Crime Branch in Jammu.
Due to the nature of the forgery case, the Judicial Magistrate shifted the investigation of the case from the Kanachak Police Station in Jammu to the Crime Branch in Jammu by order dated July 28, 2010, citing SRO 202, dated June 3, 1999.
Petitioner’s advocate argued before the High Court that the Magistrate lacked authority to order a new police investigation into the case, and that the Crime Branch lacked authority to investigate the matter under SRO 202, which, it was argued, does not empower the Crime Branch to investigate any offences that are not scheduled in the Annexure to the SRO.
The petitioner presented the High Court with the following two concerns, which were considered at length:
Whether or whether a judicial Magistrate has the authority to order the local police department to hand over their investigation to the agency’s Crime Branch comes first.
Secondly, the Magistrate wanted to know if the Crime Branch had the authority to investigate a case of certificate forgery.
In regard to the first question, the High Court ruled that only the top/Constitutional courts have the authority to transfer or reopen an inquiry.
As the CJ said, “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.”
Further added that, “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,”
In response to the second part of your query, the High Court of J&K stated that the government of J&K, acting through the Home Department, had issued SRO 202, which outlined the kind of cases that were to be examined by the crime branch in J&K.
According to the notification, the High Court further stated that the Crime Branch has the authority to file additional matters for inquiry as may be submitted to it from time to time by the government or the Director General of Police (SRO 202).
According to the High Court, neither the government nor the DGP transferred the matter at hand to the Crime Branch; rather, it was allocated by a judicial Magistrate, who, as we’ve previously shown, lacked the authority to transfer the investigation to the Crime Branch.
The High Court consequently reversed the decision made by the Judicial Magistrate, Jammu (Special Mobile Magistrate Passenger Tax and Shops Act) but upheld the decision to reject the closure report submitted by Police Station Kanachak.
Petitioner’s request to have the FIR invalidated was also denied by the High Court, along with the investigation and charge sheet drafted by the Crime Branch.