The Central Bureau Of Investigation Through H. O. B. Anti Corruption Branch, C. B. I. PatnaversusThe State Of Bihar and Ors

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Writ Jurisdiction Case No.239 of 2018
       Arising Out of PS. Case No.-257 Year-2015 Thana- KISHANGANJ District- Kishanganj
     ======================================================
     The Central Bureau Of Investigation through H.O.B., Anti Corruption
     Branch, C.B.I., Patna
                                                          ... ... Petitioner
                                   Versus
1.    The State Of Bihar
2.   The Chief Secretary, Govt. of Bihar, Patna.
3.   The Principal Secretary, Home Department, Govt. of Bihar, Patna.
4.   The Director General of Police, Bihar, Patna.
5.   The Superintendent of Police, Kishanganj, Bihar.
6.    Amrendra Narayan S/o Sri Maheshwari Sharma, R/o Vill + Post- Mundera,
      P.S.- Konch, Distt.- Gaya.
                                                          ... ... Respondents
     ======================================================
     Appearance :
     For the Petitioner/CBI            :      Mr. Satyabir Bharti, Sr. Advocate
                                              Mr. Shivaditya Dhari Sinha, Advocate
                                              Mr. Bipin Kumar Sinha, Advocate
                                              Mr. Sanjay Kumar, SC, CBI
     For the Resp Nos. 1 to 5 /State   :      Mr. Raghwanand, GA-11
                                              Mr. Sanjay Kumar Tiwari, AC to GA-11
     For the Resp. No. 6               :      None
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
                       CAV JUDGMENT

      Date : 15-06-2026

              The present criminal writ petition has been filed by the

      Petitioner, Central Bureau of Investigation under Articles 226

      and 227 of the Constitution of India for issuance of writ of

      certiorari for quashing and setting aside the impugned order

      dated 26.09.2017 passed by learned Court of Sessions Judge,

      Kishanganj in A.B.P. No. 306 of 2017 (Tejveer Singh and Ors.

      Vs. State of Bihar) in connection with Kishanganj P.S. Case

      No. 257 of 2015, whereby learned Sessions Court has directed
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         the Petitioner to do independent investigation and send

         preliminary investigation report to the Court on or before

         30.10.2017.

                                    Factual Background

                 2. The Kishanganj P.S. Case No. 257 of 2015 was

         registered on 06.07.2015 against unknown persons for the

         offence punishable under Sections 341, 323, 504, 506 and 307

         of the Indian Penal Code on the written report of one Amrendra

         Narayan. Later on, Section 302 of the Indian Penal Code was

         also added in the FIR.

                 3. As per the written report of the Informant, his son

         Shyam Narayan @ Siku, 21 years of age had gone to

         Kishanganj BSF Camp on 01.07.2015 for participating in

         physical test being conducted by SCC GD and in the running

         test, he had fainted and fallen down. On contact, the

         Informant/father advised his son to return taking a vehicle.

         Thereafter, there was no contact of the Informant with his son.

         Next day, on 02.07.2015, when the son came to Patna, contact

         was again established and his son informed him that he had

         stomach pain and on inquiry, he disclosed to him weepingly that

         police has beaten him badly. He assured his father/informant

         that he would get treatment and he got treatment at P.M.C.H. but
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         next day on 03.07.2015, the condition started deteriorating and

         the friends of his son got him admitted to Chanakya Hospital,

         Kankarbagh, Patna and currently he was getting treatment in

         Ruban Hospital, Patna. In course of treatment, he died and

         Section 302 of IPC was added in the FIR.

                 4. It further transpires that in the said Kishanganj P.S.

         Case No. 257 of 2015, some of the accused persons, namely,

         Tejveer Singh and five others filed anticipatory bail petition in

         the Court of learned Sessions Judge, Kishanganj bearing A.B.P.

         No. 306 of 2017 wherein learned Sessions Court vide order

         dated 04.09.2017 directed Intelligence Bureau, Government of

         India to       investigate      the      matter   and send   preliminary

         investigation report to the Court on or before 06.10.2017.

         However, one letter was sent by the Intelligence Bureau,

         Government of India to the Court of learned Sessions Judge,

         informing that the Intelligence Bureau has no jurisdiction to

         conduct investigation in any criminal matter, and hence, he

         prayed learned Sessions Court to modify the order dated

         04.09.2017.

                 5. In view of the letter of the Intelligence Bureau, learned

         Sessions Court vide order dated 26.09.2017 modified its order

         dated 04.09.2017 and directed the Petitioner/Central Bureau of
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         Investigation to conduct independent investigation and submit

         preliminary investigation report on or before 30.10.2017.

         Hence, the Petitioner is before this Court.

                 6. A counter affidavit on behalf of Respondent No.

         5/Superintendent of Police, Kishanganj, Bihar has been filed, as

         per which it transpires that subsequent to the filing of the FIR

         bearing Kishanganj P.S. Case No. 257 of 2015, the father of the

         victim moved this Court by filing C.W.J.C. No. 12190 of 2015

         for direction of this Court for proper investigation, alleging that

         no action was taken by the police despite filing the said FIR. In

         this writ, Superintendent of Police, Kishanganj, had filed

         supplementary affidavit stating that six persons were found

         involved in the occurrence in question and Investigating Officer

         was directed to arrest those persons and do the needful. Hence,

         the writ petition was disposed of by learned Division Bench

         vide order dated 25.01.2017, hoping that Investigating Officer

         would take appropriate action and submit a report under Section

         173 Cr.PC in accordance with law expeditiously, preferably

         within six months. In pursuance of this direction, the

         Investigating Officer completed the investigation in Kishanganj

         P.S. Case No. 257 of 2015 and submitted charge-sheet dated

         27.06.2018 in the Court of learned C.J.M., Kishanganj. The
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         Investigating Officer has been also directed to obtain sanction

         order against the accused persons belonging to B.S.F. Jawans

         and submit the same in the Court.

                 7. It further transpires that by the impugned order dated

         26.09.2017, passed by learned Sessions Judge, Kishanganj in

         anticipatory bail petition bearing A.B.P. No. 306 of 2017,

         Central Bureau of Investigation, Government of India has been

         directed to hold an independent investigation and to send

         preliminary investigation report to learned Sessions Court on or

         before 30.10.2017.

                                Submission of the Parties

                 8. I heard learned counsel for the Petitioner and learned

         G.A.-11, Mr. Raghwanand for the State and State Officials.

         However, the Informant, who is Respondent No.6 herein was

         not present, despite service of notice.

                 9. Learned counsel for the Petitioner submits that except

         the constitutional Courts like Hon’ble Supreme Court and High

         Courts, no other Courts like the Court of Sessions or Magistrate

         can change the Investigating Agency and direct the Central

         Bureau of Investigation to investigate any crime. He further

         refers to Delhi Special Police Establishment Act, 1946 to argue

         that the Central Bureau of Investigation has been established for
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         investigation into certain offences in the Union Territories and

         only by the Order of the Central Government, the Central

         Bureau of Investigation may investigate in the offences in a

         State not being a Union Territory, with the consent of the

         Government of the concerned State.

                 10. He also refers to and relies upon C.B.I., Jaipur Vs.

         State of Rajasthan, reported in (2001) 3 SCC 333.

                 11. He also submits that the impugned order has been

         passed by learned Sessions court while hearing a bail petition

         and hence, order is unsustainable also on the ground that it is

         beyond the scope of bail jurisdiction.

                 12. However, learned G.A.-11 for the State defends the

         impugned order submitting that there is no illegality or infirmity

         in the impugned order because Sessions Court and Judicial

         Magistrate have also power to direct the C.B.I. to investigate the

         cognizable offence.

                                       Position of Law

                 13. Now question is whether the Sessions Court has

         power to direct Central Bureau of Investigation to investigate

         the crime as registered by Kishanganj P.S. Case No. 257 of

         2015.

                 14. The question is not res integra. There is a long line of
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         judgments       of    Hon’ble       Apex       Court   holding   that   the

         Constitutional Courts i.e. Supreme Court and High Courts,

         being guardians of the fundamental rights, have power to direct

         the investigation of cognizable offence by any Investigating

         Agency including the C.B.I., if so requires, for enforcement of

         fundamental rights as granted and guaranteed by the

         Constitution. However, Courts other than the Constitutional

         Courts have no such power to direct the C.B.I. to investigate the

         crime.

                  15. Here, the issues involved are separation of power and

         federal features of our Democratic polity. Parliament and the

         State Legislature have their own legislative fields as provided in

         Schedule Seventh to the Constitution. As per Entry-2 of the

         State List, police is a State subject for legislation. However,

         Entry-80 of the Union List provides for extension of powers

         and jurisdiction of members of a police force belonging to any

         State to any area outside that State, but not so as to enable the

         police of one State to exercise powers and jurisdiction in any

         area outside that State without the consent of the Government of

         the concerned State.

                  16. Section 6 of Delhi Special Police Establishment Act,

         1946 provides for consent of State Government to enable any
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         member of Delhi Special Police Establishment to exercise

         powers and jurisdiction in area of any State.

                 17. As such, as per the Constitutional Scheme and

         Statutory Provisions of Delhi Special Police Establishment Act,

         1946, any police force of Union Territory or any State cannot

         function as a police in any other State without the consent of

         that State Government.

                 18. However, the Constitutional Courts, being guardians

         of    the    fundamental        rights    and   being   possessed   with

         constitutional power of judicial review under Article 32/ Article

         226 of the Constitution, can direct the C.B.I. or any other

         Investigating Agency to take up the matter for investigation, if

         so requires, for protection of fundamental rights of the

         petitioner. However, District Courts, be it Sessions Court or

         Magisterial Court, who function within the four corners of the

         enabling statutes, cannot direct Central Bureau of Investigation

         (C.B.I.) to investigate any crime.

                 19. In CBI v. State of Rajasthan, (2001) 3 SCC 333,

         Hon’ble Supreme Court, dealing with similar question, has held

         that even with consent of State Government, Judicial Magistrate

         cannot direct C.B.I. to conduct investigation and it is only the

         Constitutional Courts who can order C.B.I. to investigate a
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         cognizable offence committed within a State without the

         consent of that State Government or without any notification or

         order having been issued in that behalf under Section 6 of the

         Delhi Act, holding as follows:

                 “13. Section 5 of the Delhi Act enables the Central
               Government to extend the powers and jurisdiction of
               members of the Delhi Police Establishment to any area in
               a State. Section 6 of the Delhi Act says that:
               “6. Nothing contained in Section 5 shall be deemed to
               enable any member of the Delhi Special Police
               Establishment to exercise powers and jurisdiction in any
               area in a State, not being a Union Territory or railway
               area, without the consent of the Government of that
               State.”
               A contention was made before us that when the State
               Government gives consent for CBI to investigate any
               offence within the area of the State it would be
               permissible for the Magistrate to direct the officer of CBI
               to conduct such investigation. What is envisaged in
               Sections 5 and 6 of the Delhi Act is not one of conferring
               power on a Magistrate to order CBI to conduct
               investigation in exercise of Section 156(3) of the Code.
               14. True, powers of the High Court under Article 226 of
               the Constitution and of the Supreme Court under Article
               32 or Article 142(1) of the Constitution can be invoked,
               though sparingly, for giving such direction to CBI to
               investigate in certain cases, (vide Kashmeri Devi v. Delhi
               Admn. [1988 Supp SCC 482] and Maniyeri Madhavan v.
               Sub-Inspector of Police [(1994) 1 SCC 536]. A two-Judge
               Bench of this Court has by an order dated 10-3-1989,
               referred the question whether the High Court can order
               CBI to investigate a cognizable offence committed within
               a State without the consent of that State Government or
               without any notification or order having been issued in
               that behalf under Section 6 of the Delhi Act.”
                                                        (Emphasis supplied)

                 20. In Sakiri Vasu v. State of U.P., (2008) 2 SCC 409,

         Hon’ble Supreme Court has again held that Magistrate cannot

         order investigation by C.B.I., holding as follows :
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                 “31. No doubt the Magistrate cannot order investigation
               by CBI vide CBI v. State of Rajasthan [(2001) 3 SCC 333]
               but this Court or the High Court has power under Article
               136 or Article 226 to order investigation by CBI. That,
               however, should be done only in some rare and
               exceptional case, otherwise, CBI would be flooded with a
               large number of cases and would find it impossible to
               properly investigate all of them.”


                 21. The question involved was dealt with by Hon’ble

         Supreme Court in State of W.B. v. Committee for Protection

         of Democratic Rights, (2010) 3 SCC 571, at length and it was

         held as follows:

                 “Conclusions
               68. Thus, having examined the rival contentions in the
               context of the constitutional scheme, we conclude as
               follows:
               (i) The fundamental rights, enshrined in Part III of the
               Constitution, are inherent and cannot be extinguished by
               any constitutional or statutory provision. Any law that
               abrogates or abridges such rights would be violative of the
               basic structure doctrine. The actual effect and impact of
               the law on the rights guaranteed under Part III has to be
               taken into account in determining whether or not it
               destroys the basic structure.
               (ii) Article 21 of the Constitution in its broad perspective
               seeks to protect the persons of their lives and personal
               liberties except according to the procedure established by
               law. The said article in its broad application not only takes
               within its fold enforcement of the rights of an accused but
               also the rights of the victim. The State has a duty to
               enforce the human rights of a citizen providing for fair and
               impartial investigation against any person accused of
               commission of a cognizable offence, which may include
               its own officers. In certain situations even a witness to the
               crime may seek for and shall be granted protection by the
               State.
               (iii) In view of the constitutional scheme and the
               jurisdiction conferred on this Court under Article 32 and
               on the High Courts under Article 226 of the Constitution
               the power of judicial review being an integral part of the
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               basic structure of the Constitution, no Act of Parliament
               can exclude or curtail the powers of the constitutional
               courts with regard to the enforcement of fundamental
               rights. As a matter of fact, such a power is essential to
               give practicable content to the objectives of the
               Constitution embodied in Part III and other parts of the
               Constitution. Moreover, in a federal constitution, the
               distribution of legislative powers between Parliament and
               the State Legislature involves limitation on legislative
               powers and, therefore, this requires an authority other than
               Parliament to ascertain whether such limitations are
               transgressed. Judicial review acts as the final arbiter not
               only to give effect to the distribution of legislative powers
               between Parliament and the State Legislatures, it is also
               necessary to show any transgression by each entity.
               Therefore, to borrow the words of Lord Steyn, judicial
               review is justified by combination of “the principles of
               separation of powers, rule of law, the principle of
               constitutionality and the reach of judicial review”.
               (iv) If the federal structure is violated by any legislative
               action, the Constitution takes care to protect the federal
               structure by ensuring that the Courts act as guardians and
               interpreters of the Constitution and provide remedy under
               Articles 32 and 226, whenever there is an attempted
               violation. In the circumstances, any direction by the
               Supreme Court or the High Court in exercise of power
               under Article 32 or 226 to uphold the Constitution and
               maintain the rule of law cannot be termed as violating the
               federal structure.
               (v) Restriction on Parliament by the Constitution and
               restriction on the executive by Parliament under an
               enactment, do not amount to restriction on the power of
               the Judiciary under Articles 32 and 226 of the
               Constitution.
               (vi) If in terms of Entry 2 of List II of the Seventh
               Schedule on the one hand and Entry 2-A and Entry 80 of
               List I on the other, an investigation by another agency is
               permissible subject to grant of consent by the State
               concerned, there is no reason as to why, in an exceptional
               situation, the Court would be precluded from exercising
               the same power which the Union could exercise in terms
               of the provisions of the statute. In our opinion, exercise of
               such power by the constitutional courts would not violate
               the doctrine of separation of powers. In fact, if in such a
               situation the Court fails to grant relief, it would be failing
               in its constitutional duty.
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               (vii) When the Special Police Act itself provides that
               subject to the consent by the State, CBI can take up
               investigation in relation to the crime which was otherwise
               within the jurisdiction of the State police, the Court can
               also exercise its constitutional power of judicial review
               and direct CBI to take up the investigation within the
               jurisdiction of the State. The power of the High Court
               under Article 226 of the Constitution cannot be taken
               away, curtailed or diluted by Section 6 of the Special
               Police Act. Irrespective of there being any statutory
               provision acting as a restriction on the powers of the
               Courts, the restriction imposed by Section 6 of the Special
               Police Act on the powers of the Union, cannot be read as
               restriction on the powers of the constitutional courts.
               Therefore, exercise of power of judicial review by the
               High Court, in our opinion, would not amount to
               infringement of either the doctrine of separation of power
               or the federal structure.”
                                                        (Emphasis supplied)

                 22. In Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762,

         Hon’ble Supreme Court has again held that Constitutional

         Courts are vested with power of transfering investigation from

         one agency to another, holding as follows:

                        “43. At this stage, we may also state another well-
               settled canon of the criminal jurisprudence that the
               superior courts have the jurisdiction under Section 482 of
               the Code or even Article 226 of the Constitution of India
               to direct “further investigation”, “fresh” or “de novo” and
               even “reinvestigation”. “Fresh”, “de novo” and
               “reinvestigation” are synonymous expressions and their
               result in law would be the same. The superior courts are
               even vested with the power of transferring investigation
               from one agency to another, provided the ends of justice
               so demand such action. Of course, it is also a settled
               principle that this power has to be exercised by the
               superior courts very sparingly and with great
               circumspection.”


                 23. Similar view has been held by Hon’ble Apex Court in
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         K.V. Rajendran v. Supt. of Police, (2013) 12 SCC 480,

         holding as follows :

                 “17. In view of the above, the law can be summarised to
               the effect that the Court could exercise its constitutional
               powers for transferring an investigation from the State
               investigating agency to any other independent
               investigating agency like CBI only in rare and exceptional
               cases. Such as where high officials of State authorities are
               involved, or the accusation itself is against the top officials
               of the investigating agency thereby allowing them to
               influence the investigation, and further that it is so
               necessary to do justice and to instil confidence in the
               investigation or where the investigation is prima facie
               found to be tainted/biased.”
                                                        (Emphasis supplied)

                 24. In Chandra Babu                @ Moses v. State through

         Inspector of Police & Ors., (2015) 8 SCC 774, Hon’ble

         Supreme Court has again reiterated that Chief Judicial

         Magistrate has no power to direct another agency to investigate,

         holding as follows:

                     “22. We respectfully concur with the said view. As
               we have already indicated, the learned Chief Judicial
               Magistrate has basically directed for further investigation.
               The said part of the order cannot be found fault with, but
               an eloquent one, he could not have directed another
               investigating agency to investigate as that would not be
               within the sphere of further investigation and, in any case,
               he does not have the jurisdiction to direct reinvestigation
               by another agency. Therefore, that part of the order
               deserves to be lancinated and accordingly it is directed
               that the investigating agency that had investigated shall
               carry on the further investigation and such investigation
               shall be supervised by the Superintendent of Police
               concerned. After the further investigation, the report shall
               be submitted before the learned Chief Judicial Magistrate
               who shall deal with the same in accordance with law. We
               may hasten to add that we have not expressed any opinion
               relating to any of the factual aspects of the case.”
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                 25. In Dharam Pal v. State of Haryana, (2016) 4 SCC

         160, Hon’ble Supreme Court has again held the view that

         Constitutional Courts can direct for investigation or further

         investigation by any other agency. The relevant paragraph of the

         judgment reads as follows :

                        “24. Be it noted here that the constitutional courts
               can direct for further investigation or investigation by
               some other investigating agency. The purpose is, there has
               to be a fair investigation and a fair trial. The fair trial may
               be quite difficult unless there is a fair investigation. We
               are absolutely conscious that direction for further
               investigation by another agency has to be very sparingly
               issued but the facts depicted in this case compel us to
               exercise the said power. We are disposed to think that
               purpose of justice commands that the cause of the victim,
               the husband of the deceased, deserves to be answered so
               that miscarriage of justice is avoided. Therefore, in this
               case the stage of the case cannot be the governing factor.”
                                                        (Emphasis supplied)

                 26. Referring to and relying upon Chandra Babu Case

         (supra) and Vinay Tyagi Case (supra), Karnataka High Court in

         State Vs. Smt. Padmavathamma C. @ Padmavathi (Crl.P.

         No. 7813 of 2024) vide order dated 08.08.2024 has held that

         Judicial Magistrate has no power under Section 156(3) Cr.PC to

         direct any investigation by another agency.

                 27. In Smt. Padmavathamma C. @ Padmavathi Case

         (supra), Crime was registered for the offences punishable under

         Sections 302, 201, 120B read with Section 34 of the Indian

         Penal Code and Section 3(1)(s), 3(1)(r) and 3(2)(va) of SC & ST
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         (POA) Act, 1989. On application of mother of the deceased,

         learned Judicial Magistrate directed the CID to take up further

         investigation and make a report within the stipulated period.

         However, Karnataka High Court set aside the order of learned

         Judicial Magistrate holding as follows :

                 “22. We respectfully concur with the said
               view. As we have already indicated, the learned
               Chief Judicial Magistrate has basically directed for
               further investigation. The said part of the order
               cannot be found fault with, but an eloquent one, he
               could not have directed another investigating
               agency to investigate as that would not be within
               the sphere of further investigation and, in any case,
               he does not have the jurisdiction to direct
               reinvestigation by another agency. Therefore, that
               part of the order deserves to be lancinated and
               accordingly it is directed that the investigating
               agency that had investigated shall carry on the
               further investigation and such investigation shall be
               supervised     by     the Superintendent    of    Police
               concerned. After the further investigation, the
               report shall be submitted before the learned Chief
               Judicial Magistrate who shall deal with the same in
               accordance with law. We may hasten to add that we have
               not expressed any opinion relating to any of the factual
               aspects of the case.”

                 28. However, Gujarat High Court in Ashok Devendra

         Goyal Vs. State of Gujarat, (R/SCR.A/8268 of 2019), vide

         order dated 03.09.2019 has held a contrary view, holding that

         under Section 156(3) Cr.PC, concerned Judicial Magistrate “has

         power to direct proper investigation to be done which includes

         in his discretion recommending change of investigation officer

         so that proper investigation is done in the matter”. The relevant
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         part of the judgment reads as follows:

                 “2. Having heard the submissions made at bar, it appears
               that the applicant has ventilated grievance in the present
               application that proper investigation is not done and
               therefore, made a prayer to entrust the investigation to any
               other independent investigating agency. Looking to the
               nature of grievance ventilated in the present application,
               the remedy of the aggrieved person is to approach the
               Magistrate concerned under Section-156(3) of the
               Criminal Procedure Code, 1973. Needless to say that the
               Magistrate concerned has power to direct proper
               investigation to be done which includes in his discretion
               recommending change of investigation officer so that
               proper investigation is done in the matter.”
                                                     (Emphasis Supplied)

                 29. However, I find that this order has been passed by

         Gujarat High Court without discussing the relevant statutory

         provisions and federal features of our Constitution. It has also

         not taken notice of the limitation of the power of the District

         Courts, whose power exists only within four corners of enabling

         statutes and is circumscribed by its language, purpose and

         legislative intent, whereas Constitutional Courts i.e. Supreme

         Court and High Courts derive their power not only from the

         statutes but also from the Constitution and the constitutional

         power is self sustaining and not contingent upon any act of the

         legislature, nor can it be abridged or extinguished except

         through constitutional amendment.

                 30. Moreover, the order passed by Gujarat High Court in

         Ashok Devendra Goyal Case (supra) is cryptic and contrary to

         binding judicial precedents.
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                 31. However, the matter has now reached Hon’ble

         Supreme Court vide petition(s) for Special Leave to Appeal

         (Crl.) No(s). 9442 of 2019 and hence, it is pending

         consideration of Hon’ble Apex Court.

                                        Present Case

                 32. Coming to the case on hand, I find that Kishanganj

         P.S. Case No. 257 of 2015 was initially registered for offence

         punishable under Section 307 and other minor Sections of the

         I.P.C. However, on account of death of the victim subsequently,

         Section 302 of I.P.C. was also added in the F.I.R.

                 33. It further transpires that another writ petition bearing

         C.W.J.C. No. 12190 of 2015 was also filed by father of the

         victim before this Court for proper investigation alleging

         inaction on behalf of the police. Here, the concerned

         Superintendent of Police had filed supplementary affidavit

         stating that six persons had been found to be involved in the

         commission of the alleged offence and Investigating Officer had

         been directed to arrest those persons and to take needful steps.

         Accordingly, the writ petition was disposed of by learned

         Division Bench of this Court vide order dated 25.01.2017,

         hoping that Investigating Officer would take appropriate action

         and submit a report under Section 173 Cr.PC in accordance with
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         law expeditiously, preferably within six months and in

         pursuance of this direction, Investigating Officer completed the

         investigation and submitted charge-sheet dated 27.06.2018 in

         the Court of learned Chief Judicial Magistrate, Kishanganj.

                 34. It further transpires that the impugned order dated

         26.09.2017 was passed by learned Sessions Court while hearing

         anticipatory bail petition bearing A.B.P. No. 306 of 2017 filed

         by some of the accused persons. By the impugned order, the

         petitioner/Central Bureau of Investigation was directed to do

         independent investigation and sending preliminary investigation

         report to the Court on or before 30.10.2017.

                 35. From the aforesaid facts and circumstances, it clearly

         transpires that the impugned order has been passed by learned

         Sessions Court in complete violation of binding judicial

         precedents as discussed above. No District Court, be it Sessions

         Courts or Magisterial Court, has power to change Investigating

         Agency. It is for the State Government to entrust the

         investigation to any of the Investigating Agencies or it is only

         the Constitutional Courts i.e. Hon’ble Apex Court and High

         Courts, who can, under constitutional power, direct the change

         of the Investigating Agency or direct Central Bureau of

         Investigation to take up the matter for investigation or for
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         further investigation.

                 36. District Courts exercise their power as per enabling

         statutory provisions. But Section 6 of the Delhi Special Police

         Establishment Act clearly provides that the consent of the State

         Government is required to enable any member of Delhi Special

         Police Establishment to exercise power and jurisdiction in area

         of that State. However, the constitutional power of Supreme

         Court and High Courts are not circumscribed by such statutory

         provisions of Delhi Special Police Establishment Act and hence,

         exercising constitutional power under Article 32/ Article 226 of

         the Constitution, Supreme Court/ High Courts can direct the

         Central Bureau of Investigation for investigation or further

         investigation, if the situation so requires. Hence, the impugned

         order is not sustainable and is liable to be set aside.

                 37. The impugned order is not sustainable also on the

         ground that learned Sessions Court cannot pass order like the

         impugned one while exercising bail jurisdiction, which is

         limited to adjudicating the question whether the petitioner is

         entitled to get released on bail or not.

                 38. Here, it would be profitable to refer to Rambalak V.

         State of U.P., 2026 INSC 511, decided by Hon’ble Supreme

         Court on 19.05.2026, wherein Hon’ble Apex Court has set aside
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         the direction of Allahabad High Court, issued by the Court

         while hearing regular bail petition under Section 439 Cr.PC.

                 39. In the said case, Allahabad High Court had directed

         the trial Court to issue summons under Sections 62 and 69

         Cr.PC and also take coercive measures as against those persons

         who delayed or impeded the proceedings.

                 40. In the State of Uttar Pradesh v. Anurudh and Anr.

         (AIROnline 2026 SC 105, 2026 SCC OnLine SC 40) also

         Hon’ble Supreme Court had set aside the judgment of Allahabad

         High Court which was passed by the Court while hearing a bail

         petition. In that judgment, Allahabad High Court had

         adjudicated issue regarding age of the victim, besides granting

         bail to the accused. Here, Hon’ble Apex Court held that the

         constitutional power cannot overshadow the statutory power,

         enlarging its scope beyond what has been envisaged by the

         statute. Expressing in other words, Hon’ble Apex Court held

         that while both powers - constitutional and statutory rest with

         the High Court, one power cannot usurp the ambit of another,

         unless otherwise permitted by law.

                 41. In Union of India v. Man Singh Verma (2025 SCC

         OnLine SC 456) also Hon’ble Supreme Court had set aside the

         order of Allahabad High Court granting compensation of
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                     Rs.5,00,000/- for wrongful confinement as the order was passed

                     while exercising bail jurisdiction, and not writ jurisdiction.

                             42. Hence, the impugned order dated 26.09.2017 passed

                     by learned Sessions Court, Kishanganj in A.B.P. No. 306 of

                     2017 in connection with Kishanganj P.S. Case No. 257 of 2015,

                     is set aside allowing the writ petition.

                             43. However, the legal representatives of the victim are at

                     liberty to pursue legal remedy for change of Investigating

                     Agency for further investigation/reinvestigation as per law by

                     filing appropriate proceeding before competent Court.



                                                                    (Jitendra Kumar, J.)
shoaib/Ravishan
kar
AFR/NAFR               AFR
CAV DATE               14.05.2026
Uploading Date         15.06.2026
Transmission Date      15.06.2026