Kolkata: The Calcutta High Court has laid down strict guidelines for magistrates while ordering police investigations, holding that the inquiry required before directing a probe cannot be delegated to the police.
Justice Ajoy Kumar Mukherjee set aside orders of three magistrates who had directed police to conduct inquiries and proceed with investigations, observing that the mandatory procedure under the Bharatiya Nagarik Surakhsha Sanhita (BNSS) had not been followed.
The court found that the magistrates had failed to conduct the inquiry themselves and did not comply with the statutory requirements under Section 175(3) of the BNSS.
The court made it clear that a magistrate cannot ask the police to conduct a preliminary “inquiry” to decide whether an investigation should begin. Instead, the law requires the magistrate to apply his own judicial mind and conduct such inquiry independently.
Dealing with the scope of Section 175(3), the court said the provision introduces safeguards to prevent misuse of the criminal process. A complainant must first approach the police, then the Superintendent of Police if no action is taken, and only thereafter move the magistrate with an application supported by an affidavit.
The magistrate, before directing investigation, must satisfy himself on two counts — whether a cognizable offence is disclosed and whether there is sufficient ground to investigate. The court emphasised that these conditions must be established through an independent inquiry and not presumed.
Drawing a distinction between registration of an FIR and investigation, the High Court observed that while police are bound to register an FIR if a cognizable offence is made out, investigation can proceed only when there is sufficient ground.
A magistrate ordering an investigation must meet this higher threshold.
The court also cautioned that the inquiry by a magistrate shouldn’t become a roving exercise and may vary depending on the facts of each case.
Setting aside the magistrates’ orders in all three cases, the High Court remitted the matters back for
fresh consideration.
It directed that magistrates must conduct their own inquiry, seek an explanation from the officer-in-charge for refusal to act — preferably through video conference within a short time — and pass reasoned orders reflecting compliance with statutory requirements. Fresh decisions are to be taken preferably within 30 days.