A Metropolitan Magistrate is not supposed to step into the shoes of investigating officer and not interfere in the probe, a Delhi court has said while setting aside an order directing the police to seize case property in a criminal complaint. The court’s decision came on an appeal by a man, who was booked under section 409 (criminal breach of trust) of the IPC for wrongfully retaining three luxury cars owned by a company, in which he was one of the directors, for personal use.
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“During the course of investigation, issuance of directions like conducting raid, arresting accused, seizure of specific property by a Magistrate would amount to interference in the exclusive sphere of investigation… it would seem that Magistrate is himself probing the matter.
“The manner and method of conducting investigation are left entirely to the investigating officer which should not be interfered with” unless and until necessary.
“A Magistrate is not supposed to step into the shoes of the investigating officer,” Additional Sessions Judge Sudesh Kumar said.
The judge made the remark while hearing a revision plea of accused Rishi Aggarwal, a Delhi resident, challenging the order of a magisterial court which had allowed an application seeking monitoring of probe and directed the IO to verify the ownership of cars, seize case property and take expedient steps to secure the interest of the complainant, a co-director in the company.
“I am satisfied that the order vide which, directions have been issued by the MM to the IO to seize the vehicles in dispute and also to take expedient steps to secure interests of the complainant is not in consonance with the scheme as postulated in the aforesaid judgments. The order hence stands set aside,” the judge said.
According to prosecution case, complainant Mukesh Khurana had lodged a complaint against Aggarwal, on whose request three luxury cars were bought in the name of their joint firm for his use and were to be returned to the company on demand.
It was alleged that the vehicles were retained by the accused for his personal use with an undertaking to compensate the firm for depreciation in the value of the cars by his use but despite repeated demands, he neither returned the cars, nor compensated the company.
The magisterial court, in its March 22, 2016 order directed the police lodge FIR against Aggarwal and seize the cars, other case property and take steps in interest of the complainant.
In his revision plea against the order, the accused had contended that the complaint was filed by Khurana in his individual capacity and the order was availed on the basis of false statements.
He had further said that though the magistrate has the power to monitor investigation, directions issued for seizure of the vehicles cannot be passed by him as the same would amount to direct interference with the investigation, a contention accepted by the sessions court.
The judge, while deciding the issue of whether directions for seizure of the property could be passed by the Magistrate after commencement of probe, relied on several Supreme Court and High Court judgements.
“On an application under Section 156 (3) Cr.P.C., if the Magistrate is satisfied that proper investigation has not been done or no investigation is done by the officerincharge of the concerned police station, he can certainly direct officer incharge for proper investigation and can further monitor it.
“However, it has been expressly made clear that the Magistrate cannot himself investigate, directions should not be issued which convey the impression that he is himself investigating.
“The directions issued must clearly reflect only the yearning and endeavour of search for truth. Unless the directions are passed within this framework, there is a possibility that the judicial institution will become responsible, at least indirectly, but, certainly, morally for the quality of investigation,” the judge said.