Sessions Court Cannot Direct CBI to Investigate: Patna High Court Sets Aside Kishanganj Order

Patna High Court quashes a Sessions Court order directing CBI to independently investigate a custodial death case, holding only constitutional courts hold that power.

The Patna High Court has quashed an order passed by the Sessions Court, Kishanganj, which had directed the Central Bureau of Investigation to conduct an independent investigation into a custodial death case and submit a preliminary report. Justice Jitendra Kumar, sitting singly, held that no District Court — whether a Sessions Court or a Magisterial Court — has the power to change the investigating agency or direct the CBI to take up a matter. That power, the court held, vests exclusively in constitutional courts: the Supreme Court of India and the High Courts. The order also fell on a second, independent ground: it was passed while the Sessions Court was hearing an anticipatory bail petition, a jurisdiction confined to deciding whether an accused is entitled to bail and nothing more.

The Kishanganj Custodial Death and the FIR

Kishanganj P.S. Case No. 257 of 2015 was registered on 6 July 2015 against unknown persons for offences under Sections 341, 323, 504, 506 and 307 of the Indian Penal Code, on the written complaint of one Amrendra Narayan. The informant alleged that his son, Shyam Narayan @ Siku, aged 21, had gone to the Kishanganj BSF Camp on 1 July 2015 to participate in a physical test for SCC GD recruitment. During the running test, he fainted and fell. His father advised him to return by vehicle. Contact was lost.

The next day, 2 July 2015, when the son reached Patna, he told his father — weeping — that police had beaten him badly. He sought treatment at P.M.C.H. but his condition deteriorated. Friends admitted him to Chanakya Hospital, Kankarbagh, Patna, and he was subsequently shifted to Ruban Hospital, Patna. He died in the course of treatment. Section 302 of the IPC was thereafter added to the FIR.

The father separately filed C.W.J.C. No. 12190 of 2015 before the Patna High Court, alleging police inaction. A Division Bench disposed of that writ petition on 25 January 2017, after the Superintendent of Police, Kishanganj, filed a supplementary affidavit stating that six persons had been found involved and the Investigating Officer had been directed to arrest them. The Division Bench expressed the hope that the Investigating Officer would submit a charge-sheet under Section 173 Cr.PC within six months. In pursuance of that direction, the Investigating Officer completed the investigation and filed a charge-sheet dated 27 June 2018 before the Chief Judicial Magistrate, Kishanganj. The Investigating Officer was also directed to obtain sanction against the accused persons belonging to BSF.

The Sessions Court Orders That Triggered the Writ

Some of the accused persons — Tejveer Singh and five others — filed an anticipatory bail petition before the Sessions Court, Kishanganj, bearing A.B.P. No. 306 of 2017. While hearing that petition, the Sessions Court passed an order dated 4 September 2017 directing the Intelligence Bureau, Government of India, to investigate the matter and send a preliminary investigation report by 6 October 2017.

The Intelligence Bureau wrote to the Sessions Court stating that it has no jurisdiction to conduct investigation in any criminal matter and sought modification of the order. The Sessions Court then passed the impugned order dated 26 September 2017, modifying its earlier direction and substituting the CBI in place of the Intelligence Bureau. The CBI was directed to conduct an independent investigation and submit a preliminary investigation report on or before 30 October 2017.

The CBI challenged this order before the Patna High Court by filing Criminal Writ Jurisdiction Case No. 239 of 2018 under Articles 226 and 227 of the Constitution, seeking a writ of certiorari to quash the Sessions Court's direction.

What the Parties Argued

Senior Advocate Mr. Satyabir Bharti, appearing for the CBI, advanced two distinct arguments. First, he submitted that except constitutional courts — the Supreme Court and the High Courts — no court, including a Sessions Court or a Magistrate, can change the investigating agency and direct the CBI to investigate a crime. He relied on Section 6 of the Delhi Special Police Establishment Act, 1946, which requires the consent of the State Government before any member of the Delhi Special Police Establishment can exercise powers and jurisdiction within that State. He also placed reliance on CBI v. State of Rajasthan, (2001) 3 SCC 333. Second, he argued that the impugned order was passed while the Sessions Court was exercising bail jurisdiction, which is inherently limited to the question of bail and cannot be stretched to direct an investigation by a different agency.

The State, through Government Advocate Mr. Raghwanand, defended the Sessions Court's order, submitting that Sessions Courts and Judicial Magistrates also have the power to direct the CBI to investigate cognizable offences. Respondent No. 6, the informant Amrendra Narayan, did not appear despite service of notice.

The Constitutional and Statutory Framework

Justice Jitendra Kumar framed the core question as whether a Sessions Court has the power to direct the CBI to investigate a crime registered by the Kishanganj police. He held the question was not res integra.

The court traced the constitutional architecture. Entry 2 of the State List in the Seventh Schedule to the Constitution makes police a State subject. Entry 80 of the Union List permits extension of powers of a State police force to areas outside that State, but only with the consent of the Government of the concerned State. Section 6 of the Delhi Special Police Establishment Act, 1946 gives statutory form to this requirement: no member of the Delhi Special Police Establishment can exercise powers and jurisdiction in any State without that State Government's consent.

District Courts, the court held, function within the four corners of enabling statutes. Their powers are circumscribed by the language, purpose and legislative intent of those statutes. Constitutional courts, by contrast, derive their power from the Constitution itself. That constitutional power is self-sustaining and cannot be abridged or extinguished except through a constitutional amendment. It is not contingent upon any act of the legislature.

The Line of Supreme Court Authority

The court surveyed a consistent line of Supreme Court decisions. In CBI v. State of Rajasthan, (2001) 3 SCC 333, the Supreme Court held that even with the consent of the State Government, a Judicial Magistrate cannot direct the CBI to conduct investigation. Only constitutional courts can order the CBI to investigate a cognizable offence committed within a State, without the consent of that State Government or without a notification under Section 6 of the Delhi Act.

In Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, the Supreme Court reiterated that a Magistrate cannot order investigation by the CBI, while affirming that the Supreme Court or a High Court can do so under Article 136 or Article 226 — but only in rare and exceptional cases, lest the CBI be flooded with matters it cannot properly investigate.

In State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, the Supreme Court held at length that the power of judicial review under Articles 32 and 226 is an integral part of the basic structure of the Constitution and cannot be excluded or curtailed by any Act of Parliament. The court held that where the Special Police Act itself provides that the CBI can take up investigation within a State subject to State consent, a constitutional court can exercise its power of judicial review to direct the CBI to investigate within that State. The restriction imposed by Section 6 of the Special Police Act on the powers of the Union cannot be read as a restriction on the powers of constitutional courts.

In Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, the Supreme Court confirmed that superior courts have jurisdiction under Section 482 of the Code or Article 226 to direct further investigation, fresh investigation, or reinvestigation, and are vested with the power of transferring investigation from one agency to another where the ends of justice so demand — but this power must be exercised sparingly and with great circumspection.

In K.V. Rajendran v. Supt. of Police, (2013) 12 SCC 480, the Supreme Court summarised the position: a court can exercise its constitutional powers to transfer investigation to an independent agency like the CBI only in rare and exceptional cases, such as where high officials of State authorities are involved, or where the accusation is against top officials of the investigating agency itself, or where the investigation is found to be tainted or biased.

In Chandra Babu @ Moses v. State through Inspector of Police, (2015) 8 SCC 774, the Supreme Court held that a Chief Judicial Magistrate has no power to direct another agency to investigate. While a direction for further investigation is permissible, directing a different investigating agency to take over is outside the Magistrate's jurisdiction entirely.

In Dharam Pal v. State of Haryana, (2016) 4 SCC 160, the Supreme Court again confirmed that constitutional courts can direct further investigation or investigation by another agency, but that this power must be exercised very sparingly.

The Divergent High Court Views and the Gujarat Outlier

The court noted that the Karnataka High Court, in State v. Smt. Padmavathamma C. @ Padmavathi (Crl.P. No. 7813 of 2024), decided on 8 August 2024, had followed Chandra Babu and Vinay Tyagi and held that a Judicial Magistrate has no power under Section 156(3) Cr.PC to direct investigation by another agency. The Karnataka High Court set aside a Judicial Magistrate's order directing the CID to conduct further investigation.

The Gujarat High Court, in Ashok Devendra Goyal v. State of Gujarat (R/SCR.A/8268 of 2019), decided on 3 September 2019, took a contrary view, holding that a Magistrate has power under Section 156(3) Cr.PC to recommend a change of investigating officer so that proper investigation is done.

Justice Jitendra Kumar declined to follow the Gujarat High Court's view. He found the order cryptic and contrary to binding judicial precedents. He held that it was passed without discussing the relevant statutory provisions or the federal features of the Constitution, and without taking notice of the limitation on District Courts whose powers exist only within the four corners of enabling statutes. He noted that the matter has since reached the Supreme Court by way of Special Leave Petition (Crl.) No. 9442 of 2019 and is pending consideration.

The Bail Jurisdiction Ground

The court held that the impugned order was independently unsustainable because it was passed while the Sessions Court was exercising anticipatory bail jurisdiction. Bail jurisdiction is confined to adjudicating whether an accused is entitled to be released on bail. It cannot be used to issue directions of the kind the Sessions Court issued here.

The court referred to three recent Supreme Court decisions on this point. In Rambalak v. State of U.P., 2026 INSC 511, decided on 19 May 2026, the Supreme Court set aside a direction issued by the Allahabad High Court while hearing a regular bail petition under Section 439 Cr.PC, where the High Court had directed the trial court to issue summons and take coercive measures against persons who delayed proceedings. In State of Uttar Pradesh v. Anurudh and Anr. (AIROnline 2026 SC 105), the Supreme Court set aside an Allahabad High Court judgment passed while hearing a bail petition, in which the High Court had adjudicated the age of the victim. The Supreme Court held that while both constitutional and statutory powers rest with the High Court, one power cannot usurp the ambit of another unless otherwise permitted by law. In Union of India v. Man Singh Verma (2025 SCC OnLine SC 456), the Supreme Court set aside an Allahabad High Court order awarding compensation of Rs. 5,00,000 for wrongful confinement, because the order was passed while exercising bail jurisdiction rather than writ jurisdiction.

Outcome

Justice Jitendra Kumar allowed the writ petition and set aside the impugned order dated 26 September 2017 passed by the Sessions Court, Kishanganj, in A.B.P. No. 306 of 2017 in connection with Kishanganj P.S. Case No. 257 of 2015.

The court clarified that the legal representatives of the victim are at liberty to pursue the appropriate legal remedy for change of investigating agency for further investigation or reinvestigation, by filing the appropriate proceeding before a competent court.