JOKHAN Vs. STATE OF U P

JUDGEMENT

(1.) M. K. Mittal, J. This application has been filed under section 482 Cr. P. C. for setting aside the order dated 6. 9. 2007 passed by Sessions Judge Basti, in Criminal Revision No. 451/07, Nagendra Tiwari v. State of U. P. and another, with the further prayer to restore the order dated 13. 4. 2007 passed by the learned Magistrate directing for registration and investigation of the case under section 156 (3) Cr. P. C.

(2.) HEARD Sri Ravindra Prakash Srivastava the learned Counsel for the applicant, learned AGA and perused the material on record.

(3.) LEARNED Sessions Judge has also observed that in this case the offence was also allegedly committed within the provisions of the SC/st Act and that could only be investigated by an Officer not below the rank the Deputy Superintendent of Police and therefore, the learned Magistrate could not have directed for registration and investigation of the case under section 156 (3) Cr. P. C. In order to arrive at this conclusion the learned Sessions Judge has placed reliance on the case of C. B. I v. State of Rajasthan2001 (42) ACC 451 (SC ). But the learned Sessions Judge has not correctly interpret the law as laid down in that case. In paragraphs 9, 10, 11 it has been held as under:- " 9. It is clear that a place or post declared by the Government as police station, must have a police officer in charge of it and if he, for any reason, is absent in the station house, the officer who is next in the junior rank present in the police station, shall perform the function as officer in charge of that police station. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Section 156 (3) of the Code empowers a Magistrate to direct such officer in charge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction. 10. In this context reference has to be made to section 36 of the Code which says that: " 36 Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. " 11. This means any other police officer, who is superior in rank to an officer in charge of a police station can exercise the same powers of the officer in charge of a police and when he so exercise the power he would do it in his capacity as officer in charge of the police station. But when a Magistrate orders investigation under section 156 (3), he can only direct an officer in charge of a police station to conduct such Investigation and not a superior police officer, though such officer can exercise such powers by virtue of section 36 of the Code. Nonetheless, when such an order is passed, any police officer superior in rank of such officer, can as well exercise the power to conduct an investigation and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in section 156 (3) of the Code, though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu or on the direction of the superior officer or even that of the Government. "