Whether a Magistrate can stop an investigation by Police?

It is settled law that a Judicial Magistrate does not have any Inherent Jurisdiction. The role and power of the Magistrate is confined within the four walls of the Code of Criminal Procedure, 1973. In other words, the Magistrate cannot cause to be done anything that has not been explicitly empowered by the Code.

An interesting question arises in cases of Investigation by a Police officer. Under Section 156(3), Code of Criminal Procedure, the Magistrate may direct a police officer to investigate into a cognizable offence. However, whether the power to direct a police investigation also includes the power to stop a police investigation?

I refer to two decisions of the Supreme on the subject. It would be beneficial to refer to the decision of S.N. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653 : 1970 SCC (Cri) 258 at page 656 by Justice V.Bhargava:

6. Without the use of the expression “if he thinks fit”, the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.

7. It may also be further noticed that, even in sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.

8. The High Court of Lahore in Crown v. Mohammad Sadiq Nazi [AIR 1949 Lah 204] , and the High Court of Patna in Pancham Singh v. State [AIR 1967 Pat 416] interpreted Section 159 to the same effect as held by us above. The reasons given were different.

Supreme Court in S.N. Sharma v. Bipen Kumar Tiwari, (1970) 1 SCC 653 : 1970 SCC (Cri) 258 at page 656

From the above decisions, it is clear that the magistrate cannot stall an investigation that has already begun. Even in a case where the Magistrate has ordered an investigation, he cannot recall his order to investigate into a cognizable offence.


Leave a Reply

Your email address will not be published. Required fields are marked *