Bombay High Court Quashes Sessions Judge's Order Directing Further Investigation by State CID — Holds Sessions Court Lacks Jurisdiction to Transfer Investigation Under Section 173(8) Cr.P.C. Direction to CID Set Aside as Agency Not a 'Police Station' Under Cr.P.C., and Complainant Locus Standi Lacking After Charge-Sheet.

Criminal writ petition under Article 227 of the Constitution of India challenging an order of the Sessions Judge directing further investigation under section 173(8) Cr.P.C. and transferring the investigation to the State CID.

The State of Maharashtra sought to quash and set aside the order dated 24th November 2009 passed by the Additional Sessions Judge, Karad, and to restore the investigation to the Karad Police Station. The Public Prosecutor also sought expunging of strictures passed against him.

The State was aggrieved by the Sessions Judge’s order which, according to the State, was passed without jurisdiction, as the Sessions Court had no power under section 173(8) Cr.P.C. to order further investigation after committal, nor could it transfer the investigation from the police station to the State CID.

The Additional Sessions Judge, Karad, by judgment and order dated 24th November 2009, allowed the application filed by Respondent Nos. 1 and 2 under section 173(8) Cr.P.C. and directed further investigation to be conducted by the State CID, Pune, withdrawing it from Karad Police Station, and directed the Additional Commissioner of Police, State CID, Pune to supervise the investigation. Earlier, Respondent Nos. 1 and 2 had filed Criminal Writ Petition No. 770 of 2009 in the Bombay High Court seeking transfer of investigation to CBI, but withdrew it on 7th May 2009 with liberty to move the trial court.

Whether the original complainant had locus standi to file an application for further investigation after the charge-sheet was filed before the Sessions Court? Whether the Sessions Court had jurisdiction to order further investigation under section 173(8) of the Cr.P.C? Whether the Sessions Court could direct the Government to change the Investigating Agency and entrust the investigation to CID or CBI and then monitor the said investigation?

The Advocate General for the State argued that the complainant has no locus standi to seek further investigation after charge-sheet is filed; the Police alone have the right to investigate and submit a report under section 173(1) Cr.P.C., and the complainant’s role is limited to engaging a lawyer to watch proceedings. After committal, only the Public Prosecutor or Investigating Officer can act. The Advocate General contended that the Sessions Court had no jurisdiction under section 173(8) Cr.P.C. after committal, as the power of further investigation vests only in the officer in charge of a police station. The Magistrate’s power to direct investigation is confined to section 156(3) and does not extend to transferring investigation to another agency like CID or CBI; such power lies only with the High Court or Supreme Court under writ jurisdiction. The State argued that the State CID is not a 'police station' as defined under section 2(s) Cr.P.C. and no notification had been issued declaring it as such; therefore, the direction to CID was invalid. Under the Bombay Police Act, only the State Government can organize and control the police force, and the court cannot usurp that executive function. The respondents argued that the court possesses inherent powers to ensure a free and fair investigation, and that the Sessions Judge’s order was necessary to uncover the truth and prevent a miscarriage of justice. They submitted that the right to fair trial encompasses the right to fair investigation.

After committal of a case to the Court of Session, the Sessions Judge has no jurisdiction under section 173(8) of the Code of Criminal Procedure, 1973 to order further investigation or to transfer the investigation from the officer in charge of a police station to another agency such as the State CID. The power of further investigation rests solely with the officer in charge of the police station. The complainant has no locus standi to seek such further investigation after the charge-sheet is filed. A court cannot direct investigation by an agency that is not a 'police station' as defined under section 2(s) Cr.P.C., and the State CID is not such a police station. The power to transfer investigation from one agency to another in exceptional circumstances can only be exercised by the High Court or the Supreme Court under their writ jurisdiction. Inherent powers of the court cannot be invoked to override the express statutory scheme of the Code.

An important question of law as to ‘whether the learned Sessions Judge has a jurisdiction to transfer the investigation from one agency to another’ arises for consideration in the present matter. The learned Sessions Judge has no jurisdiction to direct further investigation under section 173(8) of the Cr.P.C. after committal of the case. The State CID is not a police station and, therefore, the direction given by the Sessions Judge to the State CID to carry out further investigation was clearly without jurisdiction. Inherent powers of the Court cannot be invoked if there are specific provisions in the Code which lay down the procedure to be followed.

An FIR was registered on 15th January 2009 on a complaint alleging murder of Sanjay Tukaram Patil. The police investigated, arrested the accused, and filed a charge-sheet before the Judicial Magistrate First Class, Karad. The original complainant and the brother of the deceased filed Criminal Writ Petition No. 770 of 2009 in the Bombay High Court seeking transfer of investigation to CBI, but withdrew it on 7th May 2009 with liberty to approach the trial court. Thereafter, they filed an application under section 173(8) Cr.P.C. before the Additional Sessions Judge, Karad. The Sessions Judge allowed the application on 24th November 2009, directing further investigation by the State CID, Pune, and withdrawing the investigation from Karad Police Station. The State of Maharashtra filed the present Criminal Writ Petition No. 3233 of 2009 under Article 227 challenging that order. The petition was admitted on 23rd February 2010, and Rule was granted with an interim stay. A connected application, Criminal Application No. 237 of 2010, was filed by the Public Prosecutor to expunge strictures passed against him in the impugned order. The matter was finally heard on 20th September 2010.

• Code of Criminal Procedure, 1973: Section 2(o), Section 2(s), Section 154, Section 156, Section 173(1), Section 173(2), Section 173(8), Section 190
• Bombay Police Act, 1951: Section 3, Section 4
• Constitution of India: Article 227