Can a Magistrate stop investigation? If so, in what cases and under which provision of the Code of Criminal Procedure?

Question: Can a Magistrate stop investigation? If so, in what cases and under which provision of the Code of Criminal Procedure? [W.B.J.S. 1997]

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Answer

Section 159 of the Criminal Procedure Code runs as:

“Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code.”

It may be noticed that Section 159 CrPC confers power on the Magistrate either to proceed or to depute a subordinate Magistrate to proceed to the spot to hold a preliminary enquiry into the case does not expressly confer upon, him the power to stop the investigation by the Police which is already in progress.

In S.N.Sharma v. Bipen Kumar Tiwari [1970 AIR 786], it has been observed that the power of the police to investigate is independent of any control by the Magistrate. Further, it was apparently held that Section 159 of CrPC does not empower a Magistrate to stop the investigation by the police. Justice V. Bhargava in this case has observed this effect:

“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.

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.”

In Manubhai Ratilal Patel v. State of Gujarat and Others, [(2013) 1 SCC 314], the Hon’ble Apex court held

“It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear-cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law.”

Thus, from the aforesaid judgment of the Hon’ble Supreme Court, 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 a cognizable offence.

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