Uttarakhand High Court
Mukesh Kumar vs State Of Uttarakhand on 6 March, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Smt. Justice Ritu Bahri, CJ.
And
Sri Justice Rakesh Thapliyal, J.
06th March, 2024 Transfer Application No. 31 of 2023 Mukesh Kumar. ................Applicant.
Versus
State of Uttarakhand
and others. .........Respondents.
Present:
Mr. Rajveer Singh, learned counsel for the applicant. Mr. J.S. Virk, learned Deputy Advocate General for the State.
Upon hearing the learned counsel, the court made following Judgment: (Per Mr. Rakesh Thapliyal, J.)
1. This application has come before this Court on a reference made by the Coordinate Bench by order dated 19.02.2024, since another Coordinate Bench of this Court opined that transfer of investigation would fall under Section 407 (a) Cr.P.C. where an inquiry too can be transferred.
2. Before deciding the issue, first of all, the facts of the case are required to be highlighted. Present transfer application has been moved by the applicant under Section 407 Cr.P.C. for transferring the investigation of FIR No. 176 of 2023, registered at Police Station - Mangalour, District - Haridwar on 26.02.2023 for the offences punishable under Section 323, 325, 504 IPC to any other police station, outside or inside the District of Haridwar or to CBCID or to any other investigating agency.
3. The ground, as taken for transfer of the investigation, is that investigating officer is in collusion with the accused and the 2 investigating officer is not doing fair and transparent investigation deliberately, which causes injury to the applicant.
4. The applicant submitted an application dated 06.07.2023 in the court of ACJM, Roorkee, to know about the progress of the investigation and the investigating officer submitted his report dated 10.07.2023 in the court of 1st Judicial Magistrate, Roorkee stating that the investigation has not been completed yet. Apart from this, the applicant had earlier filed a writ petition under Article 226 of the Constitution of India for transfer the investigation of FIR No. 176 of 2023 and the Coordinate Bench of this Court disposed of the writ petition by order dated 21.08.2023 with liberty to the applicant to file a transfer application under Section 407 Cr.P.C. The order passed in WPCRL No. 1156 of 2023 is relevant, since on the basis of observation, as recorded in the order dated 21.08.2023, the Coordinate Bench of this Court has referred the matter to this Court for deciding the issue - "whether by invoking the powers as conferred under Section 407 Cr.P.C., can investigation be transferred". The extract of order dated 21.08.2023 passed by another Coordinate Bench of this Court in WPCRL No. 1156 of 2023 is being extracted herein below:
"In this writ-petition a writ of mandamus has been sought for transfer of investigation of FIR No.176 of 2023 for the offences under Sections 323, 325, 504 and 506 of the IPC, which are triable by Magistrate.
In fact, the writ-petition would not be the remedy, because the investigation, which is being sought to be transferred would fall under Section 407(a) of the Cr.P.C., where an inquiry too could be transferred, subject to the satisfaction of the conditions provided under Section 407 of the Cr.P.C."3
5. In the order dated 19.02.2024, the another Coordinate Bench of this Court has taken note of the order passed by another Coordinate Bench dated 21.08.2023 passed in WPCRL No. 1156 of 2023, as extracted above and opined that prima facie, only an inquiry or trial can be transferred from one court to another by this Court while exercising powers under Section 407 Cr.P.C.
6. Now, the issue which is required to be decided that "while exercising the powers as conferred under Section 407 Cr.P.C. whether investigation can be transferred". In reference to this, learned Coordinate Bench in the order dated 19.02.2024 referred Section 2 (g) of the Cr.P.C., which defines inquiry, which is being reproduced as under:
"2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."
7. At this juncture, it is also necessary to give reference of Section 2 (h), which defines "investigation" and the same is being reproduced herein as under:
"2 (h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
8. On close scrutiny of these two definitions, i.e. "inquiry" and "investigation", if we take into consideration the definition of "inquiry", as defined under Section 2 (g) Cr.P.C. and definition of "investigation", as defined under Section 2 (h) Cr.P.C., Section 407 Cr.P.C. gives powers to transfer the case or appeal from one court to another, it does not include the investigation.
9. On plain reading of Section 407 Cr.P.C. it is very clear that only inquiry or trial can be transferred, in exercise of power 4 under Section 407 Cr.P.C., but investigation cannot. For deciding the issue, this Court takes note of the judgment rendered by Hon'ble Supreme Court in the case of Dr. Ram Chander Singh Sagar and another Vs. State of Tamil Nadu and another (1978) 2 SCC 35. In this case, the Hon'ble Supreme Court has considered the issue whether by invoking powers conferred by Section 406 Cr.P.C. the case or appeal can be transferred from one High Court or a court subordinate to one High Court to another High Court to a court subordinate thereto. Whether investigation can be transferred from one police station to another in the country simply because the FIR or a remand report is forwarded to a court and the Hon'ble Supreme Court dismissed the petition.
10. We have perused the judgment in which by Hon'ble Supreme Court had held that Section 406 Cr.P.C. is meant for transfer of case and appeal and not for transfer of investigation, therefore, for all purposes pending investigation cannot be transferred.
11. There is another judgment of Hon'ble Supreme Court in the case of Rhea Chakraborty Vs. State of Bihar (2020) 20 SCC 184 wherein the Hon'ble Supreme Court in paragraph 19 to 21 held as under:
"19. Section 406 CrPC empowers the Supreme Court to transfer cases and appeals. The scope of exercise of this power is for securing the ends of justice. The precedents suggest that transfer plea under Section 406 CrPC were granted in cases where the Court believed that the trial may be prejudiced and fair and impartial proceedings cannot be carried on, if the trial continues. However, transfer of investigation on the other hand was negated by this Court in Ram Chander 5 Singh Sagar v. State of T.N. [Ram Chander Singh Sagar v. State of T.N., (1978) 2 SCC 35 : 1978 SCC (Cri) 171] Writing the judgment V.R. Krishna Iyer, J.
declared that : (SCC pp. 35-36, paras 1-2) "1. The Code of Criminal Procedure clothes this Court with power under Section 406 to transfer a case or appeal from one High Court or a court subordinate to one High Court to another High Court or to a court subordinate thereto. But, it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court. The application before us stems from a misconception about the scope of Section 406. There is as yet no case pending before any court as has been made clear in the counter-affidavit of the State of Tamil Nadu. In the light of this counter-affidavit, nothing can be done except to dismiss this petition.
2. If the petitioners are being directed to appear in a far-off court during investigatory stage it is for them to move that court for appropriate orders so that they may not be tormented by long travel or otherwise teased by judicial process. If justice is denied there are other redresses, not under Section 406, though it is unfortunate that the petitioners have not chosen to move that court to be absolved from appearance until necessitated by the circumstances or the progress of the investigation. To come to this Court directly seeking an order of transfer is travelling along the wrong street. We are sure that if the second petitioner is ailing, as is represented, and this fact is 6 brought to the notice of the Court which has directed her appearance, just orders will be passed in case there is veracity behind the representation. We need hardly say courts should use their processes to the purpose of advancing justice, not to harass parties. Anyway, so far as the petition for transfer is concerned, there is no merit we can see and so we dismiss it."
20. The contrary references cited by the petitioner where transfer of investigation was allowed, do not in any manner, refer to a determination on the question of competence to transfer investigation under Section 406. In the cited cases, relief was granted without any discussion of the law, ignoring the long standing ratio laid down in Ram Chander Singh Sagar.
21. Having considered the contour of the power under Section 406 CrPC, it must be concluded that only cases and appeals (not investigation) can be transferred. The ratio in Ram Chander Singh Sagar in my view, is clearly applicable in the present matter."
12. In the similar circumstances, the Karnataka High Court in the case of M/s Achievers Agri India (P) Ltd. Vs. State in Criminal Petition No. 3156 of 2022 decided on 16.01.2024, 2024 Live Law (Kar.) 41 after relying upon the judgments Ram Chander Singh Sagar and Rhea Chakraborty (supra) has held that transfer of FIR amounts to transfer of investigation and investigation cannot be transferred by invoking powers under Section 407 Cr.P.C. Only cases and appeals can be transferred under Section 407 Cr.P.C.
13. We have also perused the said judgment passed by Hon'ble Supreme Court in the case of Rhea Chakraborty (supra). The 7 Hon'ble Supreme Court, after placing reliance on judgment in the case of Ram Chander Singh Sagar (supra), has held that only case or appeal and not investigation can be transferred. After perusing the judgment of Hon'ble Supreme Court and on examining the definition of "inquiry" and "investigation" as defined under Section 2 (g) and 2 (h) of Cr.P.C. it is very clear that only inquiry or trial can be transferred from one court to another while exercising the powers under Section 407 Cr.P.C. and the same does not include investigation. Transfer of investigation cannot be done by invoking the powers as conferred under Section 407 Cr. P.C., therefore, this Court decide the issue as under:
"Answer - Under Section 407 Cr.P.C. ongoing investigation pursuant to the FIR cannot be transferred from one district to another district or from one police station to another police station or to CBCID or to any other investigating agency."
14. Let the matter be placed before the learned Single Judge for further proceedings.
_____________ Ritu Bahri, CJ.
__________________ Rakesh Thapliyal, J.
06.03.2024 SKS