Bombay High Court
Yeshwant S/O Natthuji Meshram vs State Of Maharashtra on 8 August, 1994
Equivalent citations: 1996(5)BOMCR358, 1995CRILJ2228, 1995(1)MHLJ48
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. In the cover of the public interest litigation filed under Article 226 of the Constitution of India, the petitioner has sought directions for entrusting the investigation in Crime No. 97/94 registered at Jaripatka Police Station, Nagpur relating to rape and murder of maid servant Manorama Kamble to the Central Bureau of Investigation (for short, 'C.B.I').
2. According to the averments made in the writ application, the petitioner is Corporator of the Nagpur Municipal Corporation and he claims to be a social worker and belongs to scheduled caste community being Mahar by caste and is fighting for the cause of people as their representative. The writ petition is entirely based on the newspaper reports. The petitioner has alleged in the writ petition that the investigating agency is not proceedings with the investigation in the right earnest and in an impartial manner, because of involvement of some VIPs including the members belong to the judiciary and they are influencing the investigation being close to Advocate Dewani family at those place the incident occurred. According to allegations in the writ petition, some wet party was arranged at the residence of Advocate a Dewani on 27th March 1994 and the incident of rape and murder was sequel to that party. Basing his knowledge on the information received from the newspaper reports, the petitioner has also alleged that to suppress the crime, on 28-3-1994, the Dewanis showed the death of their maid servant Mrs. Manorama Kamble due to electric shock and police registered the case of accidental death only. The post-mortem was conducted on the dead body of Mrs. Manorama Kamble on 29-3-1994 and it transpired that her death was not accidental but a culpable homicide amounting to murder and that prior to her murder, she was raped. After post-mortem report, the case of rape and murder was registered bearing Crime No. 97/94.
The petitioner has alleged that the members of the Dewani family obtained the order of ad interim anticipatory bail from the Sessions Judge, Nagpur on 30-3-1994 at 10.45 p.m. despite the fact that the crime was also covered under Section 3 of the Prevention of Atrocities Act to the Scheduled Castes and Scheduled Tribes, and that gave the accused persons an opportunity to tamper with the evidence and it was only that on 2-4-1994 the anticipatory bail application filed by the members of Dewani family was dismissed. The petitioner has alleged that the Police authorities of Jaripatka Police Station were hand-in-gloves with the accused persons and only because of pressure from the social workers and various organisations, the investigation was transferred to the State Crime Investigation Department (for Short, "C.I.D.") on 3-4-1994. The petitioner has submitted that the incident was of ghastly gang rape and murder and the image of judiciary has been tarnished by publication of the news items in the newspapers alleging involvement of persons from judiciary and, therefore, it was in the public interest that the investigation or the aforesaid Crime No. 97/94 involving rape and murder of maid servant should be transferred to C.B.I. as that would give solace to the sentiments of the people at large.
3. Rule was issued on 29-4-1994 made returnable on 6-6-1994. The Assistant Government Pleader accepted notice for the respondents 1 and 3 and Mr. M. G. Bhangde, Advocate accepted notice for respondent No. 2. The State Government was ordered to file reply by 6-5-1994. However, the State Govt. filed its reply on 13-5-1994. The State Government as well as the Director General Police in their Return submitted that the writ petition contained several unverified, inaccurate and misleading statements and the allegations made by the petitioner are without proper verification. According to the Return of the respondents 1 and 3, the investigation conducted till filing of return did not substantiate the allegations made by the petitioner relating to involvement of VIPs and members from judiciary. As regards the wet party of which reference has been made by the petitioner on the basis of the newspapers reports, the respondents 1 and 3 submitted that this aspect of the matter has been investigated and not found to be true in the course of investigation by that time. The Return of the respondents 1 and 3 disclose that the doctor conducting the post-mortem found that Manorama's death took place within 24 hours prior to the post-mortem and thus, the evidence was to the effect that offences of rape and murder of Manorama Kamble were committed on 28-3-1994. The investigating authorities i.e. the State C.I.D. who were especially entrusted with investigation into the matter have succeeded in collecting substantial evidence. It was submitted that sample of semen on the private parts of Manorama Kamble and hair have been collected and all such material had been sent to the Chemical Analyser and reports thereon have been received. They emphatically denied that any slide of semen or any other slide pertaining to the investigation of the present case has been destroyed. The State Government took a serious view of the alleged inaction of the concerned police officers on duty at Jaripatka Police Station and also superior police officers and the respondent No. 3 Director General of Police transferred the Additional Commissioner of Police Shir R. P. Khilani and suspended B. M. Sakharkar, Police Inspector of Police Station, Jaripatka for the delay in registering the offence promptly and the delay in investigation. Similarly, Shri D. B Gotmare, Police Sub-Inspector of Police Station, Jaripatka has been ordered to be suspended. The respondents 1 and 3 submitted that in fact investigation was transferred to the C.I.D. only at the instance of public and the investigation is being carried in a fair and impartial manner. The respondents 1 and 3 denied the allegation that the accused persons were given very good treatment by the police while in the the custody and were given break-fast and rich food on the recommondation of a Star Hotel owner and Builder. On the other hand, the respondents 1 and 2 submitted that various members of Dewani family have been kept in different cells and the other family members are prevented from meeting them. It has been stated in Return that the investigation officer has not collected any other independent material from which it could be concluded that the persons from judiciary or police department attended wet party on 27-3-1994. However, in order to investigate into the truth or otherwise of the contents of the said news items, proper summons under Section 161, Cr.P.C., has been issued in the name of the journalist who has written the news items, but now the journalist is avoiding to answer the summons on one pretext or the other. It has been emphasised in the Return that in fact, the Investigation Officer has on all occasions made available case diary to the competent Court and is pursuing investigation diligently and the investigation is being regularly reviewed by a superior officer and is found to be on right track. The respondent 1 and 3 have shown their anxiety that the investigation should be brought to conclusion without any delay or hindrance. According to them, since the investigation is being made in fair, impartial and effecient manner and is about to the completed, transfer of investigation at this stage would not be in the interest of justice and accused persons may take benefit of non-filing of the charge sheet within time. In specific pleadings, the respondents 1 and 3 have submitted that every effort is being made by the Investigating Officer i.e. Dy. S.P., State C.I.D. Shri S. D. Godbole and his team of officers is following up all information being received by them in regard to the said offences and are also enquiring into the truth or otherwise of the news items also appearing in the newpapers. The respondents have also stated that the State Government has not accorded its consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (for Short, 'the DSPE Act') and without such consent it would not be legal and proper to direct handing over of the present investigation to CBI.
4. Though the respondent No. 2 has not filed any counter para-wise to the writ petition, yet in its short reply, the respondent No. 2 has submitted that it cannot suo motu entrust to the C.B.I. investigation of an offience which had taken place in the State unless the State Government proposed and gave consent under Section 6 of DSPE Act for extension of jurisdiction to the C.B.I. in respect of that offence and since the respondent No. 2 has not received any request from the State Government of Maharashtra where the offence has occurred for investigation of this case by C.B.I. nor the State Government of Maharashtra has accorded its consent for extension of jurisdiction of the C.B.I. for investigation of this case, the relief against the respondent No. 2 was premature and it is only after the State Government of Maharashtra accords and consent, feasibility of entrusting the case to C.B.I. would be examined considering the stage of investigation, availability of resource/man-power etc.
5. The petitioner as a public spirited person and social activities having filed the present writ petition in the cover of the public interest litigation was expected to act with the sense of responsibility and take due care, diligence and caution to verify the allegations made in the writ petition before making them. Reckless and careless allegations and that too vague unspecific and indefinite cannot be permitted to be made in the name of Public Interest Litigation. But for our concern that in the sensitive case of rape and murder, there has to be fair and impartial investigation by an investigating agency of credibility, we would have dismissed the writ petition at the threshold. The public interest demands that investigation into the cognizable crime is carried by an agency of integrity, credibility and without fear or favour. It is also in the interest of justice that public retains confidence in the investigating agency and should not have any grievance that a particular crime or offence has not been properly investigated due to the influence of the accused or others and that real culprits have not been booked. The unverified allegations in the public interest litigation based on newspaper reports many a time lead to dangerous consequence and such tendency needs to be curbed. Whether the newspaper reports tentamount to scandalise or tend to scandalise the injury, is not being examined since the same is already subject-matter of separate contempt proceedings. Despite the callous attitude of the petitioner of making unverified allegations in the writ petition we in the larger public interest, have decided to examine the case public interest, have decided to examine the case and power of this Court under Article 226 of the Constitution and whether the facts and circumstances of the present case warrant transfer to investigation to C.B.I. which was already been entrusted to State C.I.D.
6. Mr. S. A. Bobide, the learned counsel for the respondents 1 and 3 raised preliminary objection that offences under Sections 302 and 376 of the Indian Penal Code have not been notified under Section 3 of the DSPE Act within the State of Maharashtra and there being no consent given by the State of Maharashtra under Section 6 of the said Act, this Court cannot order investigation of Crime No. 97/94 registered at Jaripatka Police Station, Nagpur by C.B.I. in exercise of its jurisdiction under Article 226 of the Constitution of India. This preliminary objection was raised by Mr. Bobde making it very clear that the present writ petition being a public interest litigation, the State is not appearing in the case as an adversary to the petitioner, but is assisting the Court in the subject-matter of the petition.
7. Mr. Patil, the learned counsel for the petitioner submitted that the powers of this Court under Article 226 of the Constitution of India are very wide and extensive and even in the absence of notification or order under Section 3 of the DSPE Act and even without consent of the State Government under Section 6 of the said Act, this Court is empowered to direct investigation to be conducted by C.B.I. in appropriate case. By referring to Punjab and Haryana High Court Bar Association v. State of Punjab, , Mr. Patil submitted that the apex Court in that case even after investigation having been completed by the police and charge-sheet submitted to the Court in the facts and circumstances of the case to do complete justice in the matter, ordered fresh investigation through the specialised agency like C.B.I. Yet another decision, Maniyeri Madhavan v. Sub-Inspector of Police , was cited by Mr. Patil in support of his submission that consent of the State Government under Section 6 of the DSPE Act is not necessary. The submission of the learned counsel for the petitioner is that the orders which could be passed by the apex Court in exercise of its power under Article 142 of the Constitution of India, can similarly be passed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India and power of the High Courts under Article 226 of the Constitution of India is as extensive as the power of the Supreme Court under Article 142 of the Constitution of India. Mr. Patil submitted that even otherwise the decisions rendered by the Supreme Court under Article 142 of the Constitution of India are binding on the High Court as binding precedents under Article 141 of the Constitution of India.
8. Looking to the legal debate which took shape during the course of arguments relating to the power of the apex Court under Article 142 of the Constitution of India vis-s-vis the power of the High Court under Article 226 of the Constitution of India, we invited the learned members of Bar to address the Court on the important question of law of general importance and significance as to whether the power of the High Court under Article 226 of the Constitution of India is as wide as the power of the Supreme Court under Article 142 of the Constitution of India and in response thereto, Mr. S. G. Aney, the learned Sr. Counsel appeared before us. Mr. Aney, with his usual clarity, submitted that power of the High Court under Article 226 is very wide and what the Supreme Court could do under Article 142 for doing complete justice between the parties, could also be done by High Court in the interest of justice.
9. The apex Court in Mohammed Anis v. Union of India, 1994 SCC (Cri) 251 noted that in Writ Petition Nos. 531-36 of 1988, Haryana Mahila Sanghatana v. Union of India, the Division Bench of the apex Court by its order dated March 10, 1989 has referred the question to the larger Bench whether the Court can order the CBI to investigate an alleged offence without the consent and orders of the concerned State Government or without any notification or order having been issued in that behalf. However, pendency of such reference to a larger Bench does not grind to halt everything, observed the apex Court. Hon'ble Ahmadi, J. who delivered the judgment in the Mohammed Ani's case (supra) further held that the reference to the expression 'Court' in the order of reference to the larger bench cannot in the context mean the apex Court for the reason that the apex Court has been conferred extraordinary powers under Article 142(1) of the Constitution, so that it can do complete justice in any cause or matter pending before it.
10. It, therefore, becomes clear that so far as apex court is concerned, in appropriate cases in its extraordinary power under Article 142 of the Constitution of India, the Supreme Court can order the CBI to investigate a cognizable offence committed within the State without the consent of that State Government or without any notification or order having been issued in that behalf. But the question is, whether such power can be exercised by the High Court under Article 226 also. Whether even when the circumstances warrant in the public interest to have investigation conducted by special agency like the CBI of a cognizable offence within the particular State, whether without the consent of that State Government or without notification or order having been issued in that behalf, the High Court can also pass appropriate orders or directions under Article 226 of the Constitution of India. In other words, the question is, whether the High Court in exercise of its jurisdiction under Article 226 of the Constitution can issue order or direction for investigation into the crime of cognizable offence by CBI in the absence of any notification under Section 3 of the DSPE Act or in the absence of any consent having been given by the concerned State Government under the said Act during the pendency of the reference on the said question before the larger Bench of the Supreme Court.
11. The DSPE Act, 1946 was enacted in the year 1946 and extends to whole of India. Section 2 of the said Act provides for constitution of the Special Police Establishment. CBI was constituted under the said Act in the year 1963. Under Section 3 of the said Act, the Central Government may, by notification in the official gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. The superintendence of the Delhi Special Police Establishment vests in the Central Government and the administration of the said Police Establishment vests in an officer appointed in the behalf by the Central Government under Section 4 of the said Act. Section 5 of the said Act provides that the Central Government may be order extend to any area (including Railway areas) in a State, not being a Union Territory or Railway area, the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under S. 3. It further provides that when by an order under sub-section (1) of Section 5 the powers and jurisdiction of members of the said Police Establishment are extended to any such area, a member thereof may, subject to any order which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, function and privileges and be subject to the liabilities of a police officer belonging to that police force. Sub-section (3) of Section 5 of the DSPE Act provides that where any such order under sub-section (1) is made in relation to any area, then without prejudice to the provisions of sub-section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in that behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station. Section 6 of the DSPE Act provides that 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 areas; not being a Railway area without the consent of the Government of the State.
12. In Mohammed Anis's Case (1994 SCC (Cri) 215) (supra), the Supreme Court has held that the statutory obligation governing the relations between the Central Government and the State Government cannot control the power of the apex court under Article 142(1) of the Constitution. It was further observed by the Supreme Court that statue viz. the DSPE does not prohibit investigation by CBI., but requires certain formalities to be completed which have no relevance when the apex court makes an order in exercise of its power under Article 142(1) of the Constitution.
13. It is true that the power of the High Court under Article 226 of the Constitution cannot be equated with the powers of the apex court under Article 142(1) of the Constitution. The Supreme Court being the final court of the country, is empowered to pass any order in exercise of its jurisdiction for doing the complete justice to the parties and orders passed in exercise of such extraordinary power of the Supreme Court which has been constitutionally conferred only on the apex court cannot be of much guidance on the scope of Article 226 of the Constitution India. Though the powers of the High Court under Article 226 are also extraordinary, but the level and quality of that extraordinary jurisdiction of the High Court cannot be equated and is not akin to the extraordinary power of Supreme Court under Article 142(1) of the Constitution of India.
14. In State of Punjab v. Surinder Kumar , the apex court held that the powers of the High Court under Article 226 of the Constitution of India cannot be equated with the Supreme Court. It has been thus held (Paras 6 and 7) :-
"..................... There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Art. 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge".
"It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined in declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate considerations; and it does not permit the High Court to grant relief on such a consideration alone".
15. Apex Court in Delhi Judicial Service Association v. State of Gujarat also dealt with the scope of power of the Supreme Court under Art. 142 of the Constitution of India and held that the said power is plenary power of the Supreme Court. It was held (Para 51) :-
"This Court's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional powers of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do "complete justice" in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law".
It was further held in the aforesaid case of Delhi Judicial Service Association v. State of Gujarat that (1991 Cri LJ 3086, Para 51) (SC) :-
"No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of "complete justice" in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken a seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter".
16. In Harbans Singh v. U.P. State , the Supreme Court observed (Para 20) :-
"Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from this jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution, I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice".
16A. Again in Union Carbide Corporation v. Union of India , the Supreme Court examined the width and amplitude of the power of the Supreme Court under Article 142 of the Constitution of India and held that the power under Article 142 is at entirely different level and of different quality. The Supreme Court, thus, held (Para 43) :-
"The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot ipso facto, act as prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers - limited in some appropriate way - is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney-General, referring to Garg's case, said that limitation on the powers under Article 142 arising from "inconsistency with express statutory provisions of substantive law" must really mean and be understood as some express prohibition, contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Art. 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Act. 142 and in assessing the needs of "complete justice" of a cause or matter, the apex court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public-policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the court under Art. 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise".
17. Recently, in the State of Haryana v. Nareshkumar the apex court held (at P. 2544 of AIR SCW) :-
"The exercise of the extraordinary jurisdiction constitutionally conferred on the apex court under Article 142(1) of the Constitution of India can be of no guidance on the scope of Article 226".
18. While dealing with the scope of Article 226 in Dwarka Nath v. Income-tax Officer , the Supreme Court held that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in decribing the nature of the power, the purposes for which and the person or authority against whom it can be exercised was designedly used by the Constitution. In the words of the Supreme Court (Para 4) :-
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also widened by the use of the expression "nature", for the said expression does not equate the writs, that can be issued in India with those in England, but only draws an analogy from them. That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself".
19. In M/s. Shiv Shankar Dal Mills etc. v. State of Haryana , the Supreme Court again considered the scope of Article 226 and held as under (Para 6) :-
"Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects. Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest".
20. The legal position which emerges very clearly from the aforesaid discussion is that though the power of the High Court under Article 226 of the Constitution of India is wide and comprehensive, but certainly not as wide and as extraordinary as the Supreme Court under Article 142 of the Constitution. The power of the High Court under Article 226 cannot be equated with the power of the Supreme Court under Article 142 of the Constitution and the width, amplitude and scope of the power of the Supreme Court under Article 142 of the Constitution is much more than the power of the High Court under Article 226 of the Constitution. Prohibitions or limitations in the statutory provisions do not limit the power of the Supreme Court under Article 142, but that is not so as far as the power of the High Court under Article 226 of the Constitution is concerned. Article 142 vests in the Supreme Court a plenary power which is not possessed by the High Court under Article 226. The power under Article 142 is at an entirely different level and of different quality which stands on much more higher pedestal than the powers of the High Court under Article 226 of the Constitution of India. That is why the exercise of the extraordinary jurisdiction conferred on the apex court under Article 142(1) of the Constitution of India can be of no guidance on the scope of Article 226. The High Court in exercise of its jurisdiction can only issue writ, order or direction keeping in view the provisions of particular law or statute. The High Court while exercising its power under Article 226 of the Constitution of India has to consider the provisions of law or prohibitions or limitations contained therein even while passing the orders in the interest of justice which is not the matter when the apex court exercises its power under Article 142 of the Constitution of India in assessing needs of complete justice of the cause or matter. In exercising such power by the Supreme Court no question of lack of jurisdiction or of nullity could arise.
21. Therefore, the decisions and the judgments of the Supreme Court wherein the apex court has directed the investigation of the cognizable offence to be conducted by CBI within a particular State without the consent of that State Government or without any notification or order having been issued in that behalf, are not of much help and guidance to the High Court since such directions have been issued by the Supreme Court to do complete justice in the cause or matter before it invoking its power under Article 142 of the Constitution of India, and such power has been conferred on the apex court only. Logically it follows that if the judgment of the apex court invoking the power under Article 142(1) of the Constitution of India cannot be of any guidance to the High Court, then such judgment cannot be said to be a precedent and is, therefore, not law under Article 141 of the Constitution of India. We, therefore, negative the argument of Mr. Patil, the learned counsel for petitioner that the decisions rendered by the Supreme Court under Article 142 of the Constitution of India are binding on the High Court as binding precedents under Article 141 of the Constitution of India.
22. True it is that the question whether a court can order the CBI., an establishment under the DSPE Act, 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, is referred to the larger Bench by the order of the Supreme Court dated March 10, 1989 in Haryana Mahila Sanghatan's case (supra), but the law already laid down by the apex court in some of its judgments relating to Section 6 of the DSPE Act does not cease to be binding on the High Court. We are of the view that the decision of the Supreme Court referred to larger Bench and sought to be examined in some cases does not make the law already laid down not binding on the High Court till the authoritative pronouncement is delivered by the larger Bench of Supreme Court.
23. In the State of West Bengal v. Sampat Lal , the question arose whether sanction under Section 6 of the DSPE Act was necessary before directions by court to CBI to conduct investigation into the matter and the apex court, thus, held (Para 13) :-
"One of the controversies which loomed large the Division Bench of the Calcutta High Court was as to the appointment of the DIG, CBI to inquire into the matter in the absence of proper consent of the State Government. The question has not been recanvassed before us and it has been accepted by counsel for all the parties including the Additional Solicitor General that while section 6 of the Delhi Special Police Establishment Act, 1946 ('Act') for short would require the consent of the State Government before jurisdiction under S. 5 of the Act is exercised by officers of that establishment, when a direction is given by the Court in appropriate case, consent envisaged under S. 6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion, S. 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned single Judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction under S. 6 of the Act."
24. If Section 6 of the DSPE Act does not come in the way when the court gives direction to the CBI to conduct an investigation, a fortiori, absence of notification under Section 3 of the DSPE Act or order under Section 5 of the said Act cannot come in the way of the High Court in giving direction to the CBI to conduct an investigation into the cognizable crime. Till the reference is answered by the larger Bench of the Supreme Court and authoritative pronouncement is delivered by the apex court on the question as to whether court can order the CBI, an establishment under the DSPE Act to investigate a cognizable crime committed in any State without the consent of that State Government or without any notification or order having been issued in that behalf, we are of the firm view that the judgment of the apex court in Sampatlal's case (1985 Cri. LJ 576) (supra) is binding and does not cease to have binding force on the High Court and, therefore, the High Court is not powerless in issuing writ, order or direction for investigation of a cognizable crime to be conducted by CBI without the consent of the State Government or without any notification or order having been issued in that behalf.
25. We are fortified in our view by a Division Bench Judgment of the Rajasthan High Court in the case of State of Rajasthan v. Phool Chand Garg 1991 Cri LJ 125 wherein the Rajasthan High Court has held :-
"No material has been placed before us whether there has been any consent under S. 6 of the Act of the State Government, but it can hardly be disputed that in case this court orders that the case should be investigated by the CBI, no consent of the State Government is necessary. The Supreme Court in the case of State of West Bengal v. Sampat Lal, , has said that consent under S. 6 of the Act would not be a condition precedent to compliance with the Court's direction and S. 6 of the Act does not apply when the court gives a direction to the CBI to conduct an investigation. Therefore, it may be that a mandamus under Article 226 of the Constitution may be issued directing the State Government to transfer the investigation or to direct the CBI to make the investigation in a case registered with any local police station, but the powers under Art. 226 of the Constitution are wide enough and this Court in a proper case, if satisfied that the investigation is not proceeding in a right manner, can order the transfer of investigation from local police to CBI. It can hardly be disputed that residuary powers vest in this court and for public interest and the court may give direction that the case pending investigation with the local police may be transferred to which the notification under S. 6 of the Act has not been issued, this court will have still power to order that the investigation of a case will be transferred to CBI for investigation and the CBI will investigate the case and proceed thereafter in accordance with law."
26. In our view, therefore, in a fit case if the larger public interest demands and the investigation into the cognizable crime has not been fair, impartial or suffers from any credibility, the High Court can direct the investigation of such cognizable offence to be transferred to CBI even if the offence is one in respect of which the notification under Section 3 of the DSPE Act has not been issued or where there is no consent from the State Government in that behalf.
27. Decks having been cleared, now we have to see whether in the present case the investigation in Crime No. 97/94 registered at Jaripatka Police Station, Nagpur which has already been transferred to the State CID, still needs to be transferred to CBI or not.
28. Mr. Patil, the learned counsel for petitioner reiterated the allegations made in the writ petition that even after the investigation was transferred to State CID on 3-4-1994, no positive and effective investigation into the crime has been done so far. The learned counsel has alleged that though the offence was also committed under the Prevention of Atrocities Act to the Scheduled Castes and Scheduled Tribes, still no offence has been registered under the said Act. Mr. Patil has argued that the female members of Dewani family were also guilty of commission of crime, but the Investigating Agency has not registered any case against them and even the statement of Mrs. Dewani has not been recorded.
29. Mr. Patil also submitted that Dewani family has tried to hush up the matter and has succeeded in tampering the substantial evidence of the crime. He submitted that Advocate Nankani went to the house of the husband of deceased Manorama Kamble and informed her husband Nirajan Kamble that his wife had died due to electric shock and she may be cremated and for the same offered Rs. 1000/- and also asked the husband of deceased Manorama to accept Rs. 500/- towards her salary. According to the submissions of Mr. patil, the investigation was transferred to State CID on 3-4-1994 but not much progress has been done by the State CID in the investigation and during this period of more than two months only pieces of bangles were recovered on 11-4-1994. The learned counsel for the petitioner feared that the State CID was proceeding with the investigation in slow and casual manner so that charge-sheet might not be filed within time.
30. We directed Mr. Bobde, the learned counsel for respondents 1 and 3 to keep the case diary ready for our perusal.
31. On the other hand, Mr. Bobde strenously urged before us that there has been no delay whatsoever in investigation by the State CID and all relevant material and evidence connecting the accused persons with crime have been collected. According to him, the investigation in the case is not being conducted on class or caste lines or on any consideration that anybody belongs to higher or lower economy strata or to a powerful or weaker section of the society. Investigation, according to Mr. Bobde, is being carried out taking various aspects into consideration and all persons who were required to be introgated, have been introgated. Mr. Bobde made it cleat that after the investigation has been handed over to the State CID., the accused persons have not succeeded in their any attempt, if any, to tamper with the evidence and the investigating authority has succeeded in collecting substantial evidence. The learned counsel for the respondents 1 and 3 also submitted that the State CID has even obtained the permission of the Chief Minister to get certain tests done from the Laboratory as Hyderabad and are proceeding ahead with that test as well. Mr. Bobde urged before us that in fact, the investigation was entrusted to the State CID because the people approached the Commissioner of Police, Nagpur for entrusting the investigation to State CID which was done in order to allay the suspicion of the people regarding local officers and there is no reason, either due to lack of competence or integrity, which necessitated transfer of investigation from State CID to any other investigating authority including the CBI.
31A. With the help of the Investigating Officer and Mr. Bobde, the learned counsel for respondents 1 and 3, we perused case diary and feel that the State CID has looked into all available aspects of the case and have also taken note of all features of material and evidence. The investigation has been careful looking to the sensitiveness of crime. It will not be proper for us to make a detailed observation about the investigation conducted by the State CID since any observations may effect the merits of case in the criminal trial. However, suffice it to say that the investigation conducted by the State CID into Crime No. 97/94 registered at Police Station, Jaripatka, Nagpur relating to rape and murder of maid servant Manorama Kamble does not suffer from unfairness or partiality. At the time of closure of arguments and after perusal of the case diary by us, the Investigating Officer has assured us that charge-sheet would be filed without any further delay and within prescribed time and those involved in the crime would be properly framed and booked. On or about 29th June 1994, the State CID has aleady submitted charge-sheet against the accused persons. In this view of the matter, we are of the view that this is not a fit case where the investigation in Crime No. 97/94 registered at Jaripatka Police Station, Nagpur should now be transferred from State CID to CBI. We may, however, observe that the State CID is not precluded from further investigation even after the chargesheet has been filed and if the State CID obtains further evidence - oral or documentary, it may forward to the concerned Magistrate with further report or reports regarding such evidence in the form prescribed. Section 173(8) of Cr.PC 1973 provides as under :-
"173. Report of Police officer on completion of investigation -
(1) to (7) .....
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)".
32. Under sub-section (8) of section 173, Cr.PC the State CID (Investigating Officer) would be competent to examine such further evidence which may come to his notice and file supplementary report to the Magistrate concerned, complying with the requirements of sub-sections (2) to (6) of Section 173, Cr.PC.
33. Upshot of the aforesaid discussion is that there has been proper and objective investigation by the State C.I.D. in Crime no. 97/94 registered at Police Station, Jaripatka, Nagpur and charge-sheet has also been filed in the competent Court by the said investigating agency against the accused persons and, therefore, directions for investigation into the said crime by C.B.I. are not required. We therefore, find no merit in this writ petition and the same is dismissed. Rule is discharged. No order as to costs.
34. Petition dismissed.