Allahabad High Court: Deciding an application under Section 482 CrPC, for quashing the order passed by the Chief Judicial Magistrate, Bulandshahar the Bench of Abhai Kumar, J held that under Section 156 CrPC, the Magistrate has the whole sole authority to monitor the investigation and in case the investigation is not going on in a proper or fair manner, the Magistrate even has the authority to interfere in the investigation.
The Magistrate by the impugned order had dismissed the surrender application filed by the applicant doctor, who was accused of medical negligence, on the ground that interference in the investigation cannot be done. The surrender application also prayed that various papers along with the surrender application be sent to the Investigating Officer and after taking into consideration the papers, report may be called for from the Investigating Officer.
The Court observed that “the learned Magistrate while passing the impugned order observed that court cannot interfere in the investigation. The observation of the Magistrate can be correct up to certain extent, but what does interfere mean is entirely dependent upon the facts and circumstances of the case.”
Referring to the law as laid down in Sakiri Vasu v. State of UP, (2008) 2 SCC 409, the Court observed that a special duty has been casted by the Apex Court upon the Magistrate while monitoring the investigation. Doctrine of implied power was also applied by the Apex Court and even asserted that the Income Tax Appellate Tribunal has implied power to grant stay, although no such power was expressly granted to it by the Income Tax Act. The Court further inferred that there is no express power to the Magistrate regarding the monitoring of the investigation but under Section 156 CrPC, that implied power is there and the Magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on in a proper or fair manner, the Magistrate is even having authority to interfere in the investigation.
Dismissing the application, the Court held that the applicant cannot be allowed to bye-pass the regular procedure and only on the apprehension that applicant will be arrested, he cannot be allowed not to cooperate with the investigating agency thereby prolonging the investigation. Prayer for quashing of FIR by co-accused Dr Kuldeep Kaushik and others was also refused. [Dr. Kuldeep Kaushik v. State Of U.P., 2016 SCC OnLine All 722 , decided on September 2, 2016]
What if the investigation officer is not taking investigation properly.