Uttarakhand High Court
Vijay Kumar Gupta vs State Of Uttarakhand & Ors on 18 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 712, AIRONLINE 2019 UTR 651
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No.1949 of 2018
Vijay Kumar Gupta .....Petitioner
Versus
State of Uttarakhand & Ors. ..... Respondents
Mr. Siddhartha Singh, Advocate for the petitioner
Mr. Lalit Miglani, Brief Holder for the State/respondent nos.1 to 3
Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr. Mukesh Kaparuwan,
Advocate for respondent nos.4 to 9
Mr. D.S. Patni, Senior Advocate assisted by Mr. Siddhant Manral and Mrs.
Rangoli Purohit, Advocates for respondent nos.10, 11, 13, 14 and 15
Mr. V.K. Kohli, Senior Advocate assisted by Ms. Rajni Supyal, Advocate for
respondent no.12
Mr. Sandeep Tandon, Special Counsel for C.B.I./respondent no.17
List of cases referred:
i) Shree Shree Ram Janki Ji Asthan v. State of Jharkhand & Ors.,
(2019) 6 SCC 777
ii) Pooja Pal v. Union of India reported in (2016) 3 SCC 135
iii) Union of India v. Ramesh Gandhi, (2012) 1 SCC 476
iv) State v. Punjab and Ors. V. Davinder Pal Singh Bhullar (2011) 14
SCC 770
v) S.P. Chengalvaraya Naidu v. Jagannath & Ors., (1994) 1 SCC 1
JUDGMENT
Hon'ble Lok Pal Singh, J. (Oral) Petitioner has approached this Court seeking the following reliefs:-
i) Issue a writ, order or direction in the nature of mandamus directing the respondent nos.1 and
2 to transfer the investigation of the case crime no.46 of 2015 under Sections 420, 467, 468, 471, 120-B & 34 IPC registered on 21.02.2015 at Police Station Rishikesh Dehradun to the C.B.I.
ii) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
22. Facts, in brief, are that petitioner lodged a First Information Report at P.S. Rishikesh Dehradun on 21.02.2015 stating therein that the trust has been formed for the proper management of the registered society established by Swami Kailashanand in the year 1959. The property of the society was registered for the religious and welfare purpose. Trust was registered in the year 1971 and Shri Kailashanand became lifetime Trustee/President and later on in 1976 advisory committee has passed a proposal to appoint more trustees and nominated Brijraj Gopal and Sarojini Devi as the new trustees of the trust and agreed to make them trusty in writing. On 08.08.1977 President Swami Kailashanand has executed Trust Deed to appoint them as trustees and registered that Deed on 10.08.1977. It is written in this deed that all the above three trustees would have equal rights and will work as trustees for their lifelong and they will possess similar rights and powers like they can operate bank accounts personally and Swami Ji has given all his rights and powers to them and declared that he will not write any deed in future and all the Trust property belong to above three trustees. Swami Kailashanad became N.R.I. and every year for six month he used to live in America and all the meetings of trust were to be organized in New York because most of the trustees were living there. All the work related with the donation and trust had been executed in America and later on the Kailashanand Mission trust have proposed a resolution on 10.05.1978 and Vijay Kumar Gupta had been appointed as the Assistant Manager of the trust to sign all the papers and deeds of the Trust in absence of Swami Kailashanand. In the year 1987 Swami 3 Kailashanand has written power of attorney in favour of Rangi Lal (Purohit) to operate the bank account number 5643 of the State Bank of India Rishikesh Branch at Laxman Jhula Road, Rishikesh. After the sudden demise of Brij Raj Gupta in the year 1992, Trust passed a resolution in the year 1993 and Vijay Kumar Gupta was appointed as a trustee in place of Brij Raj Gupta and as such he acquired all the powers and rights. On 12.08.1997 when the President Swami Kailashanand was in America then at that time Manager of Trust Sri Baburam Porwal stated that it is very important to settle the tax matter and that a person from the Trust should be present in the office. Swami Ji directed the Manager to take signatures of Rangi Lal and Daya Ram Rayal in his absence only for the purpose of tax matters. It is alleged that Naveen Porwal, Ratnesh Gupta and Shri Krishna Awtar Gupta, J.K. Pandey and I.C. Singhal (C.A.) are involved in criminal conspiracy and also indulge in illegal acts and they are doing forgery and they have fraudulently made wrong balance sheet and wrong bills and are involved in misappropriation of the funds and property of the trust. They fraudulently made signature of Swami Kailashanand in collusion with I.C. Singhal. Thereafter, Ratikant who was the Manager of the trust brought the fact of these illegal acts into the knowledge of President Swami Kailashanand. It is further alleged that on 11.04.2009 a Resolution was passed by the Trust against Naveen Porwal, Ratnesh Gupta, Kishan Avtar Gupta and Jai Kishore Pandey for hatching criminal conspiracy and their indulgence in illegal acts and misappropriation by making forged signatures. On 05.05.2011 Swami Kailashanand died in mysterious 4 circumstances. At that time, petitioner Vijay Kumar Gupta and Sarojini Devi were lifetime trustee whereas others were mere trustees. On 14.09.2011, a meeting was held in America wherein a resolution was passed that the President Vijay Kumar Gupta will look after the property and rights of the Trust property because some persons are misappropriating the property and money of the trust. This was also proposed that the petitioner Vijay Kumar Gupta will look after and have the power to file the criminal, civil or revenue case in any court of law. After the death of Swami Ji, the petitioner and other trustees, informed the State Bank of India vide letter dated 16.05.2011 that all the transactions/withdrawal may be restricted. But after few days Branch Manager Anil Kumar Jain and Regional Manager Pankaj Sharma has removed that estoppel with the collusion of above persons and removed the original papers from the bank record and at the place of original papers they kept new forged papers which were given to them by the persons doing conspiracy. It is clear from that act that these employees were also involved in the money withdrawal from the bank with the help of those documents. It is also alleged that the Branch Manager has illegally removed signature of Swami Kailashanand from the bank records and put signature of Naveen Porwal and Rangilal to operate the bank accounts.
3. It is contended that the petitioner had given an application to the Investigating Officer on 24.06.2015 informing that on 23.03.2006 Proposal was made by Rangi Lal Sharma, Dayaram Rayal, Naveen Porwal by making forged signature of Swamiji which 5 was found forged in the report of handwriting expert dated 24.05.2012. It is also contended that the petitioner has given several documents to the Investigating Officer in support of the allegations made in the F.I.R. but the Investigating Officer has not paid any heed on the same. It is submitted that the petitioner has no hope that fair and unbiased investigation will be conducted in the matter as the respondents are very influential persons.
4. Counter affidavit has been filed on behalf of respondent nos.17 - Central Bureau of Investigation wherein it is inter-alia stated as under:-
"IX. That the above trust is registered under the Society Registration Act which is a self contained code to resolve the disputes relating to election of office bearers and management of affairs of the trust with the remedial measures in the form of rendition of accounts of trust on the point of financial irregularities. But till date the petitioner did not invoke the jurisdiction of Competent Court under Society Registration Act, 1860. It appears that the case is of civil nature and the litigation is between the private parties only and allegations are civil in nature. In this case government was neither sustained exchequer loss nor in any manner government properties are involved.
X. That the subscription collected by the said Trust from the members is also not part of the State exchequer. Since neither any fund of Central Government nor employees of Central Government shown involved, therefore, respondent no.17 and 18 the Central Bureau of Investigation did not have jurisdiction to take up the matter for investigation as per para 1.10 of CBI Crime Mannual. "Even through the CBI/SPE is empowered to investigate all offences notified by the Central Government under Section 3 of 6 the DSPE Act, 1946, it does not take up all such cases keeping in view its limited resources and its powers being current and coextensive with those of the State Police Forces, which if exercised without coordination with the State Police, might lead to conflict and duplication of efforts. To avoid such duplication, an administrative arrangement has been arrived at by CBI with the State Police Forces, according to which:
1.10.1 The cases, which are substantially and essentially against Central Government employees or concerning affairs of the Central Government, shall be investigated by the Delhi Police Special Establishment although certain employees of the State Government may also be involved. The State Police or State Anti-Corruption Bureau/Vigilance set-up when informed of such cases involving their employees, will render necessary assistance to the CBI, during investigation and prosecution of such cases.
1.10.2 The cases, which are essentially and substantially against State Government employees or are in respect of matters concerning the State Government shall be investigated by the State Police irrespective of the fact that certain employees of the Central Government are also involved as co-accused. In such cases, the Delhi Special Police Establishment will assist the State Police or State Anti-Corruption Bureau/Vigilance set-up, if necessary, in completing the investigation.
1.10.3 In addition to cases involving Central Government employees, the Delhi Special Police Establishment (CBI) is authorized to investigate cases of the following categories:
i) Cases in which the interest of the Central Government or of any Statutory Corporation or Body set up and financed by Government of India are involved particularly those in which public servants are concerned or very large amounts are involved.7
ii) Cases relating to the breaches of Central Laws with the enforcement of which the Government of India is mainly concerned.
iii) Big cases of fraud, cheating, embezzlement and the like, relating to public Joint Stock Companies in which large funds are involved. Similar other cases when committed by organized gangs or professional criminals having ramification in several States.
iv) Cases having interstate and international ramifications and being investigated by several agencies and where it is considered necessary that a single investigating agency should be incharge of the investigation.
1.10.4 While above is the general arrangement, it may not be possible for the CBI to take up all cases falling under these categories because of limited resources and need to concentrate on cases having interstate or international ramifications and those involving bribery and corruption. It is, therefore, a matter of discretion, whether the State Police or the CBI should investigate a particular offence even though it may have been notified under Section 3 of the Delhi Special Police Establishment Act, 1946. Ordinary cases of theft, misappropriation, cheating, etc. even if committed by Central Government employees have, therefore, to be dealt with the State Police.
5. On the strength of the averments made in the counter affidavit, Mr. Sandeep Tandon, Special Counsel appearing for the C.B.I. would submit that it is not a fit case to be transferred to C.B.I. He would also submit that the C.B.I. is already overburdened and has limited resources. He would also place reliance upon a decision in Pooja Pal v. Union of India reported in (2016) 3 SCC 135, wherein the Hon'ble Apex Court has held that the extra-ordinary power of the constitutional 8 courts under Articles 32 and 226 of the Constitution of India qua the issuance of direction to the CBI to conduct investigation must be exercised with great caution.
6. Respondent nos.4 to 9 have also filed counter affidavit stating therein that before lodging of the present F.I.R., on the identical allegations, a complaint was made by the petitioner to the P.S. Muni- ki-Reti, wherein the Superintendent of Police, Tehri Garhwal instructed Mr. Rajesh Bhatt, Circle Officer, Tehri Garhwal to conduct inquiry and submit report. Pursuant to such direction, Mr. Rajesh Bhatt, Circle Officer submitted a detailed report wherein nothing was found on the complaint of the petitioner. Being dissatisfied with the report, the petitioner made another complaint to the D.I.G., Pauri, whereupon Superintendent of Police, Tehri Garhwal conducted a thorough inquiry and thereafter submitted a report stating that allegations made in the complaint could not be confirmed. In regard to the ownership of trust, there is a dispute between the parties and, time and again, they are making complaint against each other and they have also instituted several cases against each other in different courts. It was also stated that as the dispute regarding ownership of Trust is of civil nature and the parties are free to put-forth their case in respective civil courts, thus, there is no necessity of any other proceedings in the matter. Being dissatisfied with the report, the petitioner again moved a complaint to the S.S.P., Tehri Garhwal, who in turn, directed the Circle Officer, Narendra Nagar. On the instructions, Mr. Rajan Singh, C.O., Narendra Nagar submitted a 9 detailed report wherein again allegations were found false.
7. Mr. Rakesh Thapliyal, learned Senior Counsel would submit that time and again the petitioner has made complaints but every time the allegations made in the complaint were found false. He would further submit that now the petitioner has filed the present F.I.R. and has approached this Court seeking fair investigation in the matter, which is nothing but misuse of process of law at the hands of the petitioner. He would submit that the petitioner has not approached this Court with clean hands as he has suppressed the material facts from this Court that thrice detailed inquiry has been conducted by the higher police officials on the complaints of the petitioner but nothing has been found on the said complaints. He would submit that besides this the petitioner has also concealed that an F.I.R. was lodged against the petitioner by the private respondent Naveen Porwal on 15.7.2015, wherein on completion of investigation, charge-sheet was submitted against the petitioner, but the petitioner in order to gain advantage from the Court, has deliberately not disclosed this fact in the present writ petition. He would submit that the petitioner has played fraud upon this Court and is making bald allegations that proper and fair investigation is not being carried out in the matter. He would submit that there is no need of issuing any direction either to the CBI or any other agency to conduct fresh investigation in the matter. To buttress his submissions, learned Senior Counsel would refer following judgments of Hon'ble Apex Court:-
10i) Union of India v. Ramesh Gandhi, (2012) 1 SCC 476, paras 25, 26 and 27 "25. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengalvaraya Naidu v. Jagannath, this Court observed as follows: (SCC p. 2, para 1) "1. 'Fraud-avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law.
Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
26. Again in A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., AIR 2007 SC 1546, this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows:
"38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.
39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained 11 by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."
27. If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest.
i) S.P. Chengalvaraya Naidu v. Jagannath & Ors., (1994) 1 SCC 1, Paras 1, 5 and 6 "1. 'Fraud-avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
5. The High Court, in our view, fell into patent error. The short question before the High Court was whether 12 in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal- gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not 13 agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
8. Mr. V.K. Kohli, learned Senior Counsel would submit that the bank officials have no role to play in the instant case. He would submit that the petitioner never informed to the bank officials that he was ever been appointed as President of the Kailashanad Trust. He would further submit that since the bank officials have been made party in the F.I.R. the bank officials are unnecessarily being harassed. He would further submit that the bank officials have discharged their duty as per the resolution of the Trust.
9. Mr. D.S. Patni, learned Senior Counsel would submit that the bank accounts were operated for six years but the petitioner never raised this objection. He would submit that the petitioner is claiming that he was appointed Trustee during the lifetime of Swami Kailashanand but he did not produce any proof thereof. He would further submit that the Late Swami Kailashanand during his lifetime never informed the bank officials that the petitioner has ever been appointed as Trustee and the Resolution was never disputed by the petitioner during the lifetime of Late Kailashanand. Learned Senior Counsel would submit that the petitioner has made bald allegations that 14 investigation is not being carried out properly. He would submit that the matter has already been investigated thrice by the concerned police officials and there is not necessity for investigation by the C.B.I. In support of his case, learned Senior Counsel would place reliance on the following case-laws:-
i) Shree Shree Ram Janki Ji Asthan v. State of Jharkhand & Ors., (2019) 6 SCC 777, Paras12 to 23 "12. The question as to whether the High Court could direct CBI to take over investigation in the facts of the present case needs to be examined. The Constitution Bench in its judgment reported as State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others 5 has examined the question as to the rights of CBI to investigate a criminal offence in a State without its consent. This Court examined Entry 2 of List II of VII Schedule of the Constitution. It was held that the legislative power of the Union to provide for the regular police force of one State to exercise power and jurisdiction in any area outside the State can only be exercised with the consent of the Government of that particular State in which such area is situated. The Court held that though the Court had wide powers conferred by Articles 32 and 226 of the Constitution, but it must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order is necessary for doing complete justice and enforcing fundamental rights.
13. The relevant extract from the judgment reads as under: (Committee for Protection of Democratic Rights, SCC p. 602 para 70) "70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the 15 Courts must bear in mind certain self-imposed 5 (2010) 3 SCC 571 limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
14. The Court approved earlier two Judge Bench Judgment reported as Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Another6 wherein it was held that the High Court under Article 226 of the Constitution can direct inquiry to be conducted by CBI but such power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need for such inquiry. It was held that it is not sufficient to have such material in the pleadings. The Court also held that the right to live under Article 21 include the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen.
15. The relevant extracts from the judgment read as under (SCC pp. 524-25, paras 5 & 6) 16 "5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have 6 (2002) 5 SCC 521 such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause6. This Court in the said judgment at para 174 of the Report has held thus: (SCC p. 750) '"174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of ' LIFE' and 'LIBERTY' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21."
6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar 17 agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause6."
17. A three Judge Bench Judgment reported as Sujatha Ravi Kiran v. State of Kerala and Others held that the extraordinary power of the Constitutional Courts in directing CBI to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the investigating agency or in the national interest. This Court held as under:-
"10. Taking into account the law laid down by this Court in Committee for Protection of Democratic Rights, direction for investigation by CBI was declined by this Court in K. Saravanan Karuppasamy v. State of T.N.10 and Sudipta Lenka v. State of Odisha.
11. Considering the facts and circumstances of the case in hand, in the light of the above principles, we are of the view that the case in hand does not entail a direction for transferring the investigation from the State police/special team of State police officers to CBI. The facts and circumstances in which the offence is alleged to have been committed can be better investigated into by the State police. However, having regard to the nature of allegations levelled by the petitioner, we deem it appropriate to direct the State of Kerala to constitute a special team of police officers headed by an officer not below the rank of Deputy Inspector General of Police to investigate the matter."
18. In another three Judge Bench Judgment reported as K.V. Rajendran v. Superintendent of Police, CBCID 18 South Zone, Chennai and Others , it was held that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency only in rare and exceptional circumstances. The Court gave instances 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 to instil confidence in the investigation.
19. In another two Judge Bench Judgment reported as Bimal Gurung v. Union of India13 , this Court held that the power of transferring such investigation must be in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties and to instil confidence in the public mind. It was held as under:-
"29. The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran v. Supt. of Police, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as:
(i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii) where investigation prima facie is found to be tainted/biased."
20. In an earlier two Judge Bench Judgment reported as T.C. Thangaraj v. V. Engammal and Others14, this Court found that merely because complaint was against the police officer, the investigations should not be entrusted to Central Bureau of Investigation. The Court held as under:-
19"8. The learned counsel for the complainant, on the other hand, cited a decision of two-Judge Bench of this Court in Ramesh Kumari v. State (NCT of Delhi)15 in which this Court directed CBI to register a case and investigate into the complaint of the appellant because the complaint was against the police officer and the Court was of the view that the interest of justice would be better served if the case is registered and investigated by an independent agency like CBI.
9. The decision of the two-Judge Bench of this Court in Ramesh Kumari v. State (NCT of Delhi) will have to be now read in the light of the principles laid down by the Constitution Bench of this Court in State of W.B. v. Committee for Protection of Democratic Rights. The Constitution Bench has considered at length the power of the High Court to direct investigation by CBI into a cognizable offence alleged to have been committed within the territorial jurisdiction of a State and while taking the view that the High Court has wide powers under Article 226 of the Constitution cautioned that the courts must bear in mind certain self- imposed limitations.
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11. In the impugned order, the High Court has not exercised its constitutional powers under Article 226 of the Constitution and directed CBI to investigate into the complaint with a view to protect the complainant's personal liberty under Article 21 of the Constitution or to enforce her fundamental rights guaranteed by Part III of the Constitution. The High Court has exercised its power under Section 482 CrPC on a grievance made by the complainant that her complaint that she was cheated in a loan transaction of Rs 3 lakhs by the three accused persons, was not being investigated properly because one of the accused persons is an Inspector of Police. In our considered view, this was not one of those exceptional situations calling for exercise of 20 extraordinary power of the High Court to direct investigation into the complaint by CBI. If the High Court found that the investigation was not being completed because P. Kalaikathiravan, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) CrPC and not to CBI.
12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.)"
21. We find that the finding recorded by the High Court that the Deity could not transfer its land in any case is not tenable. The appellant relies upon statutory provisions in support of its stand to transfer of land. The sweeping remarks that the allegations are against the Government and the Board which consist of Government functionaries; therefore, the matter requires to be investigated by CBI are wholly untenable and such sweeping remarks against the Government and/or the Board should not have been made. The functioning in the Government is by different Officers and the working of the Executive has inbuilt checks and balances. Therefore, merely because, permission has been granted by a functionary of the State Government will not disclose a criminal offence. The High Court has thus travelled much beyond its jurisdiction in directing investigations by CBI in a matter of sale of property of the Deity. Still further, the High Court has issued directions without their being any complaint to the local police in respect of the property of the religious Trust.
22. It may be kept in mind that the public order (Entry 1) and the police (Entry 2) is a State subject falling in List II of the VII Schedule of the 21 Constitution. It is a primary responsibility of the investigating agency of the State Police to investigate all offences which are committed within its jurisdiction. The investigations can be entrusted to Central Bureau of Investigation on satisfaction of the conditions as specified therein only in exceptional circumstances as laid down in State of West Bengal (supra) case. Such power cannot and should not be exercised in a routine manner without examining the complexities, nature of offence and some time the tardy progress in the investigations involving high officials of the State investigating agency itself.
23. We find that the High Court has completely misdirected itself in directing the Central Bureau of Investigation to take over investigation in a matter which relates to the rights of the trustees to sell property of a religious Trust or Deity, giving rise to civil dispute."
ii) State v. Punjab and Ors. V. Davinder Pal Singh Bhullar (2011) 14 SCC 770, Para 75 "75. Thus, in view of the above, it is evident that a constitutional court can direct CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible."
10. This Court, vide order dated 16.12.2019, had directed the Investigating Officer of the case to 22 remain present in person before this Court along with the record. Pursuant to such order, Mr. Manoj Kumar Nailwal, the then Investigating Officer, and Mr. Om Kant Bhushan, Senior Sub Inspector, present Investigating Officer of the case are present along with the record of the case. Mr. Om Kant Bhushan, S.S.I, submit that he has been entrusted with the investigation of the case and sought two months time to conclude the investigation and submit police report.
11. This Court has also perused the entire record of the investigation. A perusal whereof would transpire that a detailed investigation has been carried out in the matter. As far as issuance of a direction to C.B.I. for conducting investigation in the case is concerned, the ratio of judgment in Shree Shree Ram Janki Ji (supra) is fully applicable to the facts and circumstances of the present case. In Shree Shree Ram Janki Ji (supra), Hon'ble Apex Court has discussed the law on the subject matter from inception and has held that the High Court completely misdirected itself in directing the Central Bureau of Investigation to take over investigation in a matter which relates to the rights of the trustees to sell property of a religious trust or deity, giving rise to civil dispute. In the present case also, the dispute is related to a Trust which is purely civil in nature and this Court is satisfied that the investigation is being carried out in proper and fair manner. In the opinion of the Court, present case does not fall in any of the category enumerated in Shree Shree Ram Janki Ji (supra). Having said so, this Court is not inclined to transfer the investigation of the case to C.B.I. But, as the Investigating Officer of the case 23 has made a statement at bar that he will submit the police report within two months, it is hoped and expected that the investigation shall be concluded within two months from today, without being untrammeled by any of the observation made hereinabove.
12. With the aforesaid observation and direction, writ petition is disposed of finally. No order as to costs.
13. Let a certified copy of this judgment/order be issued to learned counsel for the parties within 48 hours, as per rules.
(Lok Pal Singh, J.) 18.12.2019 Rajni