Whether transfer case to another investigating agency is possible. I have no faith in the investigating officer because he is trying to save the accused. Offence was committed by the husband but he is utilising his contacts in the police and administration for pressurising the investigating officer to do faulty investigation. In this circumstance I approached the police commissioner but he did not entertain my request. He clearly said that meet the investigating officer and cooperate in the investigation. I cannot interfere in the investigation process. Such callous behaviour of the police commissioner made me upset. Please suggest how to change this investigating officer for ensuring free and fair investigation.
Asked from: Uttar Pradesh
If you want to change the investigative agency, you must prove that the current investigating officer is conducting the investigation with malafide intentions and that the state police cannot conduct a free and fair investigation.
In the present scenario, the lower court, specifically the court of judicial magistrate, can provide an appropriate remedy. Under Section 175 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) 2023, the magistrate has the authority to monitor the investigation and issue necessary directions to ensure a fair and impartial investigation.
However, the judicial magistrate does not have the power under the BNSS or the CrPC to change the investigating agency. In the case of Central Bureau of Investigation vs. State of Rajasthan and Another [2001 (3) SCC 333], the Supreme Court held that magisterial powers cannot be extended to changing the investigative agency or directing the officer in charge of a police station to conduct the investigation.
To seek further intervention, you can approach the High Court under Article 226 of the Constitution for directions to ensure a fair investigation. However, the Supreme Court in Divine Retreat Centre vs. State of Kerala and Others (2008) 3 SCC 542 clarified that the High Court cannot change the investigating officer mid-investigation or appoint one of its own choice.
The Court emphasised that neither the accused nor the complainant is entitled to choose their own investigative agency. Still, if the High Court finds that the investigation is being conducted with malafide intent, it can issue appropriate directions to rectify the situation.
If you believe that the investigating officer is trying to falsely implicate you, such claims must be supported by solid evidence. Courts generally do not interfere in ongoing investigations without sufficient proof, as affirmed by the Privy Council in Emperor vs. Khawaja Nazir Ahmad AIR 1945 PC 45, where it was held that the power of investigation lies exclusively with the police and should not be interfered with by the courts.
You still have the option to seek further investigation if the current one is found defective, as stated in Om Prakash Narang and Another vs. State AIR 1979 SC 1791. It is advisable to wait for the investigation to conclude, and if the police report is defective or not supported by legal evidence, you can then request further investigation instead of engaging in premature litigation to transfer case to another investigating agency.
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