Calcutta High Court (Appellete Side)
The Director General Of Police (W.B.) ... vs Gopal Kumar Agarwal &Anr on 15 April, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
MAT 318 of 2019
The Director General of Police (W.B.) &Ors.
-Vs.-
Gopal Kumar Agarwal &Anr.
&
MAT 353 of 2019
Manoj KumarBhalotia
-Vs.-
The Director General of Police (W.B.) &Ors.
Before: The Hon'ble The Chief Justice Thottathil B. Radhakrishnan
&
The Hon'ble Justice Arijit Banerjee
For the State : Mr. Kishore Datta, Advocate General
(MAT 318/19 & MAT 353/19) Mr. Arka Kumar Nag
For the Respondent 1 : Mr. Partha Sarathi Sengupta, Sr. Adv.
(MAT 318/19) Mr. Souvik Chakraborty, Adv.
Mr. Soumen Mohanty, Adv.
For the Respondent 2 : Mr. Anindya Kumar Mitra, Sr. Adv.
(MAT 318/19) Mr. Ayan Bhattacharya, Adv.
Mr. Avik Ghatak, Adv.
Mr. Sandip Dasgupta, Adv.
Mr. Ayan De, Adv.
For the appellant : Mr. Anindya Kumar Mitra, Sr. Adv.
(MAT 353/19) Mr. Ayan Bhattacharya, Adv.
Mr. Avik Ghatak, Adv.
Mr. Debanjan Mandal, Adv.
Mr. Sandip Dasgupta, Adv.
Mr. Ayan De, Adv.
For theRespondent 4 : Mr. Partha Sarathi Sengupta, Sr. Adv.
(MAT 353/19) Mr. Souvik Chakraborty, Adv.
Mr. Somopriyo Chowdhury, Adv.
Mr. Soumen Mohanty, Adv.
Mr. Soumik Kanti Chakraborty, Adv.
Mr. Dibanath Dey, Adv.
Heard On : 05.08.2019, 08.08.2019, 22.08.2019, 27.08.2019,
05.09.2019, 05.11.2019 & 23.12.2019
CAV on : 23.12.2019
Judgment On : 15.04.2020
Arijit Banerjee, J.: -
1. These two appeals are directed against the judgment and order dated
February 7, 2019 whereby a Learned Single Judge disposed of W.P. No.1208 (W)
of 2019 by substituting the Central Bureau of Investigation (CBI) as the
investigating authority in the place instead of Crime Investigation Department
(CID) which is an organ of the State of West Bengal, in connection with Raniganj
P.S. Case No.372 of 2017.
2. The said police case was instituted in connection with the unnatural death
of one Pushpa Bhalotia. The writ petitioner is the elder brother of Pushpa. He
alleged that the investigation is not being conducted in a proper manner by the
state police machinery. There are serious loopholes in the investigation process.
He alleged that the state police machinery is conducting the investigation in a
manner so as to shield the accused person viz., Manoj Bhalotia who is the
husband of Pushpa. In the writ petition, the writ petitioner enumerated certain
alleged loopholes in the investigation process. It was his submission before the
Learned Single Judge that for the ends of justice and to preserve public
confidence in the process of investigation, the investigation should be handed
over to CBI or any other independent agency. By the impugned judgment and
order, the Learned Single Judge accepted the submission of the writ petitioner
and entrusted the investigation with CBI. Being aggrieved the present two
appeals have been filed, one by the State of West Bengal through the Director
General of Police, West Bengal, and the other by Manoj Bhalotia.
3. We have heard Learned Senior Counsel for the parties in extenso on
various dates. Two points arise for determination by us. Firstly, whether or not
these intra court appeals are maintainable? This question has been raised by
Learned Senior Counsel appearing for the respondent no.1 in MAT 318/2019
who is the private respondent in MAT 353/2019. Secondly, if we hold the appeals
to be maintainable, whether or not the Learned Single Judge was justified, in the
facts and circumstances of the case, in directing transfer of the investigation
from State Police to CBI?
Re: Maintainability of the appeals
4. This point has been argued at great length by Learned Counsel for the
parties. At first blush it may appear that the point is a simple one. However, in
view of the erudite arguments advanced by Learned Senior Counsel for all the
parties, the point has assumed a complex character.
5. Mr. Sengupta, Learned Senior Counsel representing the writ petitioner,
drew our attention to Clause 15 of the Letters Patent, 1865, which reads as
follows:-
"15. Appeal from the Courts of original jurisdiction
to the High court in its appellate jurisdiction.-And we do
further ordain, that an appeal shall lie to the said High Court of
Judicature at Fort William in Bengal from the judgment (not
being a judgment passed in the exercise of appellate
jurisdiction in respect of a decree or order made in the exercise
of appellate jurisdiction by a Court subject to the
superintendence of the said High Court, and not being an order
made in the exercise of revisional jurisdiction and not being a
sentence or order passed or made in the exercise of the power
of superintendence under the provisions of S.107 of the
Government of India Act (or in the exercise of criminal
jurisdiction) or one Judge of the said High Court or one Judge of
any Division Court, pursuant to sec.108 of the Government of
India Act, and that notwithstanding anything hereinbefore
provided an appeal shall lie to the said High Court from a
judgment of one Judge of the said High Court or one Judge or
any Division Court, pursuant to sec.108 of the Government of
India Act made on or after the first day of February One
thousand nine hundred and twenty nine in exercise of
appellate jurisdiction in respect of a decree or order made in the
exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court, where the Judge who
passed the judgment declares that the case is a fit one for
appeal, but that the right of appeal from other judgments of
Judges of the said High Court or of such Division Court shall be
to Us, Our heirs or successors in Our or Their Privy Council as
hereinafter provided."
He submitted that although the Learned Single Judge passed the
impugned order on an application under Article 226 of the Constitution of India,
in essence, the Learned Judge exercised criminal jurisdiction by directing
substitution of CBI in the place and stead of the State Police/CID as the
investigating agency for the purpose of carrying on investigation in the matter of
unnatural death of Pushpa. Hence, intra court appeal to the Division Bench
under Clause 15 of the Letters Patent would not lie. To buttress his submission
he relied on the following four decisions:
(i) Ram Kishan Fauji v. State of Haryana &Ors.: (2017) 5 SCC 533
(ii) Jalaluddin v. State of Haryana &Ors.: (2018) 190 PLR 168
(iii) Decision of a Division Bench of Delhi High Court in LPA 1194/2006
and LPA 1196/2006 (Vinod Kumar Pandey &Ors. v. Sheesh Ram
Saini &Ors.)
(iv) Laxmi Narayan Udyog Ltd. (In Liqn) &Ors. v. Omendra Kumar
Chowdhury &Ors.: 2017 (4) CHN (Cal) 261
We will revert back to these decisions later in this judgment.
6. Mr. Sengupta also submitted that the appeal filed by Manoj Kumar
Bhalotia is not maintainable for the additional reason that an accused has no say
in the matter of who should be the investigating agency. This point need not
detain us since there is another appeal involving an identical issue filed by the
State and it is nobody's case that the State does not have a say in the matter.
7. Appearing for the State, Learned Advocate General took us through various
clauses of the Letters Patent and submitted that Clauses 22 to 29 thereof define
what criminal jurisdiction of the High Court is. Clause 22 defines the ordinary
original criminal jurisdiction of the High Court. Clause 23 empowers the High
Court, in the case of its ordinary original criminal jurisdiction, to try all persons
brought before it in due course of law. Clause 24 delineates the extraordinary
original criminal jurisdiction of the High Court. Clause 25 provides that there
shall be no appeal to the High Court of Judicature at Fort William in Bengal from
any sentence or order passed or made in any criminal trial before the Courts of
original criminal jurisdiction which may be constituted by one or more Judges of
the said High Court. Clause 26 empowers the High Court to review an order
passed in exercise of criminal jurisdiction on it being certified by the Advocate
General. Clause 27 provides for appeals from criminal courts in the Provinces.
Clause 28 pertains to hearing of referred cases and revision of criminal trials.
Clause 29 empowers the High Court to direct the transfer of any case or appeal
from any court to any other court of equal or superior jurisdiction, and also to
direct the preliminary investigation or trial of any criminal case by any officer or
Court otherwise competent to investigate or try it, though such case may belong
in ordinary course to the jurisdiction of some other officer or Court. Learned
Advocate General also referred to Clause 41 of the Letters Patent which provides
that "from any judgment, order or sentence of the High Court made in the exercise
of original criminal jurisdiction... It shall be lawful for the person aggrieved by such
judgment, order or sentence to Us, Our heirs or successors, in Council; provided the
said High Court shall declare that the case is a fit one for such appeal, and under
such conditions as the said High court may establish or require, subject always to
such rules and orders as We may, with the advice of Our Privy Council, hereafter
make in that behalf."
8. Referring to the above provisions of the Letters Patent, Learned Advocate
General urged that in the present case the Learned Single Judge did not exercise
criminal jurisdiction within the meaning of Clauses 22 to 29 of the Letters Patent
and hence the exclusion of appeal in Clause 15 would not apply. He submitted
that reading Clauses 15, 22 to 29 and 41 as a whole, what merely follows is that
an intra court appeal from the order of a Learned Single Judge of the High Court
passed in exercise of criminal jurisdiction within the meaning of Clauses 22 to 29
of the Letters Patent, would not lie and that such an appeal would lie to a higher
forum, now the Hon'ble Supreme Court.
9. Appearing for the appellant in MAT 353/2019 (the accused in the criminal
case) Mr. Mitra, Learned Senior Counsel submitted that it would appear from the
writ petition itself that the same is based on alleged infringement of fundamental
rights of the writ petitioner under Article 21 of the Constitution of India. Article
226 of the Constitution empowers only the High Courts to enforce fundamental
rights. The High Court's power to direct transfer of investigation from one agency
to another is a constitutional power and not a power under criminal jurisdiction.
He further submitted that the words 'criminal jurisdiction' in Clause 15 and
Clauses 22/23 of the Letters Patent must be given the same meaning. He further
submitted that the established canons of interpretation warrant that the same
phrase appearing at different places of a statute must be ascribed the same
meaning. The impugned order was passed in the exercise of constitutional writ
jurisdiction and not in exercise of criminal jurisdiction meaning within the
meaning of Clauses 15, 22 and 23 of the Letters Patent. Mr. Mitra referred to a
decision of this Court in the case of Indofer Society &Ors. v. Director General
of Foreign Trade & Additional Secretary to the Government of India &Ors.:
(2004) 1 CHN 374. However, that decision pertains to whether or not a writ
petition could be heard by a Division Bench of this court instead of a Learned
Single Judge, which issue is not germane to the case in hand.
10. Mr. Mitra then submitted that the Chief Justice of a High court is the
Master of the Roster. He assigns different classes of cases to different Judges. On
the day the impugned judgment and order was passed by the Learned Single
Judge, His Lordship did not have determination to hear criminal matters. The
Learned Single Judge could not have exercised criminal jurisdiction. In this
connection, he referred to the decision of a Division Bench of this Court in
Sohan Lal Baid v. The State of West Bengal & Ors.: 1989 (II) CHN 474 in
support of his submission that an order passed by a Learned Judge who did not
have determination to entertain the writ petition, is a nullity. He also referred to
the Hon'ble Supreme Court's decisions in Asok Pande v. Supreme Court of
India through its Registrars & Ors.: (2018) 5 SCC 341and in Shanti
Bhushan v. Supreme Court of India through its Registrars & Anr.: (2018) 8
SCC 396 in support of his submission that allocation of work to individual
judges is the sole prerogative of the Chief Justice of a High Court. We refrain
from dealing with these two cases since there is no dispute with the proposition
in respect of which they have been cited. It may also not be necessary to deal
with the decision of this Court's Division Bench in Sohan Lal Baid (supra)
although we are of the view that the said decision may require to be revisited in
an appropriate case.
11. Mr. Mitra finally relied on a decision of the Hon'ble Supreme court in the
case of S.A.L. Narayan Row &Anr. v. Ishwarlal Bhagwandas & Anr.: AIR
1965 SC 1818 and in particular on Paragraph 16 of the reported judgment
wherein the Hon'ble Court held that there is no ground for restricting the
expression "civil proceeding" only to those proceedings which arise out of civil
suits or proceedings which are tried as civil suits, nor is there any rational basis
for excluding from its purview proceedings instituted and tried in the High Court
in exercise of its jurisdiction under Article 226, where the aggrieved party seeks
relief against infringement of civil rights by authorities purporting to act in
exercise of the powers conferred upon them by revenue statutes.
12. We have carefully considered the submissions made by the Learned Senior
Counsel for the respective parties on the point of maintainability of these two
intra court appeals. The short question is whether or not the Learned Single
Judge passed the impugned order in exercise of criminal jurisdiction.
13. In the present case, a criminal case was instituted on the complaint of the
writ petitioner (who is the respondent no.1 in MAT 318 of 2019 and hereinafter
referred to as 'Gopal') against the appellant (hereinafter referred to as 'Manoj') in
MAT 353 of 2019. Criminal investigation started. Being aggrieved by and
dissatisfied with the manner in which the investigation was proceeding, Gopal
approached the Learned Single Judge by filing an application under Article 226
of the Constitution of India praying for change of the investigating agency.
According to him, the investigation was being done in a biased manner to protect
Manoj for the reasons alleged by him in the writ petition. The Learned Single
Judge was of the opinion that there was substance in Gopal's contention and
accordingly directed substitution of CBI as the Investigating Authority in the
place and stead of CID.
14. In his writ petition, Gopal did not pray for quashing of the criminal
proceedings and naturally so because he is the de-facto complainant. Nor did
Gopal pray for an order for initiation of a criminal proceeding since the criminal
proceeding already stood initiated. The order of the Learned Single Judge which
is impugned before us neither had the effect of causing initiation of a criminal
proceeding nor had the effect of quashing or terminating a criminal proceeding.
The Learned Judge was of the view that the investigation was not being
conducted in a proper manner and accordingly directed change of the
investigating agency. This, in our considered opinion, did not amount to exercise
of criminal jurisdiction by the Learned Single Judge.
15. Criminal jurisdiction of the Calcutta High Court has been defined in
Clauses 22 to 29 of the Letters Patent, 1865 which have been adverted to above.
On a careful analysis and consideration of the said clauses, it cannot be said that
the Learned Single Judge passed the impugned order in exercise of criminal
jurisdiction. Further, on the day the Learned Judge passed the impugned order,
His Lordship did not have determination to hear or decide a case in criminal
jurisdiction. In our opinion, the Learned Judge exercised supervisory jurisdiction
under Article 226 of the Constitution of India in directing change of the
investigating agency. The criminal investigation was already in progress. The
investigation was not initiated as a result of the impugned order.
16. A number of decisions of the Hon'ble Supreme Court have been cited before
us, which we will refer to later in this Judgment which have laid down that
undoubtedly High Courts have power to direct change of investigating authority
in exercise of power under Article 226 of the Constitution of India, although such
power should be sparingly exercised. We are of the view that in this case the
Learned Single Judge exercised such a power. Gopal approached the Learned
Single Judge with the grievance that there were loopholes in the process of
investigation, deliberately created by the investigating authority to shield Manoj.
His contention was that he has a constitutional or civil right to have the
investigation conducted in a fair and impartial manner. The Learned Judge
accepted such contention and passed the impugned order. The impugned order
of the Learned Judge does not by itself have any criminal consequence, be it
initiation or termination of a criminal case. Even without the order of the Learned
Judge, the criminal case would have proceeded to its logical conclusion. Hence,
we are unable to agree with the contention of Mr. Sengupta, Learned Senior
Counsel representing Gopal, that the impugned order was passed in exercise of
criminal jurisdiction and therefore, the present appeals are barred by the
provisions of Clause 15 of the Letters Patent, 1865.
17. The fulcrum of Gopal's contention that the appeals are not maintainable is
the decision of the Hon'ble Supreme Court in the case of Ram Kishan Fauji
(supra). In that case, acting on the reference made by the Chief Secretary to the
Govt. of Haryana in exercise of power under Section 8(1) of the Haryana
Lokayukta Act, 2002, the Lokayukta of Haryana, after conducting requisite
enquiry, recommended registration of FIR against the appellant for offences
punishable under the provisions of Prevention of Corruption Act, 1988 and
investigation by a senior competent officer of impeccable integrity. This
recommendation was challenged by the appellant before the Haryana High Court.
The Learned Single Judge quashed the recommendation and all actions taken
pursuant to such recommendation. This was carried before the Division Bench
by way of an intra-court appeal by the State of Haryana. The Division Bench
admitted the Letters Patent Appeal, stayed the operation of the Learned Single
Judge's order and with a view to ensuring absolute objectivity in the ongoing
investigation and to rule out any possibility of alleged prejudice against the
accused, directed the Director General of Police, Haryana to constitute a Special
Investigation Team comprising three senior IPS Officers, who originally did not
belong to the State of Haryana. This order of the Division Bench was assailed by
the appellant before the Hon'ble Supreme Court. The only point that was urged
before and considered by the Hon'ble Supreme Court was whether or not the
Letters Patent appeal against the Learned Single Judge's order before the
Division Bench was maintainable.
18. Before the Hon'ble Supreme Court, the State of Haryana relied on a Full
Bench decision of the Andhra Pradesh High Court in the case of Gangaram
Kandaram v. Sunder Chikha Amin: (2000) 2 An LT 448. The Hon'ble High
Court held that issuing a writ of mandamus or certiorari by the High Court under
Article 226 of the Constitution pertaining to a criminal complaint or proceeding
cannot be said to be an order passed in exercise of criminal jurisdiction. Hence,
an intra-court appeal from such an order would lie under Clause 15 of the
Letters Patent, 1865. Learned Counsel for the appellant relied on the Division
Bench Decision of the Gujarat High Court in the case of Sanjeev Rajendrabhai
Bhatt v. State of Gujarat: (2000) 1 Guj LR 206 and on the Full Bench
Decision of the Delhi High Court in the case of C.S. Agarwal v. State: 2011
SCC OnLine Del 3136. The Gujarat High Court held that in the facts of that
case the proceeding could be said to be criminal proceeding inasmuch as, carried
to its conclusion, they may result in imprisonment, fine, etc. It was held that a
proceeding under Article 226 of the Constitution arising from an order passed or
made by a Court in exercise of power under the Code of Criminal Procedure is
still a 'criminal proceeding' within the meaning of Clause 15 of the Letters Patent.
A proceeding seeking to avoid the consequences of a criminal proceeding initiated
under the Code of Criminal Procedure will continue to remain 'criminal
proceeding' covered by the exclusion portion of Clause 15 of the Letters Patent. In
the Delhi Case, the High Court held that proceedings under Article 226 of the
Constitution would be treated as original civil proceedings only when it concerns
civil rights. If it concerns criminal matters, then such proceedings would be
original criminal proceedings. Letters Patent appeal would lie when the Single
Judge decides the writ petition in proceedings concerning civil rights. On the
other hand, if the proceedings are concerned with rights in criminal law domain,
then it can be said that the Single Judge was exercising 'criminal jurisdiction'
while dealing with such a petition filed under Article 226 of the Constitution.
19. Having considered the aforesaid three decisions and several other
decisions, the Hon'ble Supreme Court held that the High Courts of Gujarat and
Delhi have correctly laid down the law and the view expressed by the Full Bench
of the Andhra Pradesh High Court is incorrect. The Hon'ble Court also observed
that: "the conception of 'criminal jurisdiction' as used in Clause 10 (which is in pari
materia with Clause 15 in our case) of the Letters Patent is not to be construed in a
narrow sense. It encompasses in its gamut the inception and the
consequence."(the emphasis is ours). The Hon'ble Supreme Court held that in
the facts of that case the consequence of the order of the Learned Single Judge
was of a criminal nature inasmuch as by such order the FIR stood quashed
thereby leading to termination of the criminal proceeding. Hence, the order was
passed in exercise of criminal jurisdiction and therefore, no Letters Patent appeal
would lie therefrom. On this sole ground, the Hon'ble Supreme Court allowed the
appeal and set aside the order of the Division Bench leaving it open for the State
of Haryana to challenge the Learned Single Judge's order before any other
appropriate forum as may be available in law.
20. The facts in the case of Ram Kishan Fauji (supra) are different from the
facts in the present case. In that case the Learned Single Judge's order had a
consequence which was clearly criminal in nature. The Learned Single Judge
opined that the recommendation of the Lokayukta for registration of FIR against
Ram Kishan Fauji deserved to be quashed and accordingly quashed the same
and also quashed all actions taken pursuant to such recommendation including
the FIR. This led to the termination of the criminal proceeding. In the present
case, the impugned order of the Learned Single Judge does not have any such
consequence. Neither the impugned order was the reason for initiation of
criminal proceeding nor for termination of any criminal proceeding. In our view,
the Learned Single Judge merely upheld the civil right of the writ petitioner
(Gopal) to have a fair and impartial investigation conducted in connection with
the alleged unnatural death of his sister, as was claimed by him. No point of
criminal law was decided by the Learned Single Judge. The impugned order
cannot be said to have been passed in criminal domain. We are in respectful
agreement with the ratio decidendi of the decisions of the Division Bench of the
Gujarat High Court and the Full Bench of the Delhi High Court which were
approved by the Hon'ble Supreme Court in the case of Ram Kishan Fauji
(supra), as mentioned above. Reading the Hon'ble Supreme Court's decision in
the case of Ram Kishan Fauji (Supra) as a whole, we cannot accept the
contention of Learned Senior Counsel representing Gopal (writ petitioner) that if
the High Court in exercise of power under Article 226 of the Constitution passes
an order which has even the remotest connection with a criminal case, then the
order must be said to have been passed in exercise of criminal jurisdiction,
notwithstanding that the order by itself does not have any criminal consequence
in the sense that it neither directs initiation of a criminal proceeding which may
have penal consequences for the accused person, nor it directs quashing or
termination of a criminal proceeding thereby relieving the accused person of
possible penal consequences. In our considered view, the decision in Ram Kishan
Fauji (supra) does not advance the case of the writ petitioner on the point of
maintainability of these appeals.
21. In this connection it may also be noted that the Hon'ble Supreme Court in
Ram Kishan Fauji (supra) at Paragraph 42 of the Judgment observed, inter alia,
that: "The tenability of intra-court appeal will depend upon the Bench adjudicating
the lis as to how it understands and appreciates the order passed by the learned
Single Judge. There cannot be a straitjacket formula for the same." In our
understanding, in the facts of the present case, the Learned Single Judge was
exercising civil jurisdiction under Article 226 of the Constitution and not criminal
jurisdiction.
22. Learned Senior Counsel representing Gopal also relied on a decision of the
Punjab & Haryana High Court in the case of Jalauddin (supra). In that case the
writ petitioner had approached the Learned Single Judge praying for a direction
to entrust the investigation of a criminal case with an independent agency like
CBI. The Learned Single Judge dismissed the writ petition. The appeal preferred
by the writ petitioner was dismissed by the Division Bench holding that no intra
court appeal would be maintainable. The Division Bench observed that in the
light of the prayer made in the writ petition and keeping in mind the enunciation
of law by the Hon'ble Supreme Court in the case of Ram Kishan Fauji (supra),
the order passed by the Learned Single Judge was in exercise of criminal
jurisdiction. It was observed that investigation of a crime would fall within the
criminal jurisdiction. With the greatest of respect, we are unable to agree with the
decision in that case. In our respectful opinion, the said decision is not based on
a proper appreciation of the ratio decidendi in the case of Ram Kishan Fauji
(supra).
23. Another decision relied upon on this point by Learned Senior Counsel
representing Gopal is one of this Court in the case of Laxmi Narayan Udyog
Limited (In Liqn.) &Ors. (supra). A Division Bench of this Court held that no
appeal lies under Clause 15 of the Letters Patent from an order passed by a
Single Judge of this Court under Section 340 of the Code of Criminal Procedure.
We have absolutely no dispute with this proposition since an order passed by a
Learned Single Judge under Section 340 of the Code of Criminal Procedure would
indisputably be an order passed in exercise of criminal jurisdiction and hence not
amenable to an intra court appeal under Clause 15 of the Letters Patent.
24. Learned Senior Counsel representing Gopal also relied on the decision of
the Delhi High Court rendered on 13 March, 2019 in LPA No.1194 of 2006 and
LPA No.1196 of 2006 (Vinod Kumar Pandey & Ors. v. Sheesh Ram Saini &
Ors.). In that case, the petitioner had filed a criminal writ petition registered as
WP (Crl) No.675 of 2001 under Article 226 of the Constitution read with Section
482 of the Code of Criminal Procedure seeking registration of a criminal case
against the respondent no.3. The learned Single Judge had allowed the writ
petition by directing registration of FIR. The only question that arose for
consideration before the Division Bench was whether an intra-court appeal under
Article 10 of the Letters Patent was maintainable against the order made in a
criminal writ petition. The Division Bench held that a Court which directs
investigation in according with the requirement of criminal law i.e., the procedure
contemplated in the Code of Criminal Procedure, exercises criminal jurisdiction
and it does not make any difference if the proceedings initiated are for setting in
motion a criminal proceeding or to quash a criminal proceeding already initiated.
In both cases, the effect of the order would be to proceed with the matter,
criminal in nature with regard to a criminal offence allegedly committed and to
bring it to its logical conclusion, i.e., either conviction or acquittal of the accused
person. With such reasoning, the Division Bench held that an intra-court Letters
Patent Appeal was not maintainable against the order of the Learned Single
Judge in that case.
25. We have no disagreement with the proposition of law propounded in the
aforesaid decision. However, in the facts of the present case the order of the
Learned Single Judge neither resulted in initiation of the criminal proceeding nor
in quashing of a criminal proceeding. The facts of the instant case are different
from the facts of the Delhi case discussed above.
26. For the aforesaid reasons we hold that the present appeals are
maintainable and not barred by Clause 15 of the Letters Patent, 1865.
Re: Merits of the appeals
27. Appearing for Gopal, Mr. Sengupta, Learned Senior Counsel submitted that
the investigation that was being conducted by the State Police was sham and not
worthy of the name. From the very beginning, attempt was being made to dilute
the case to go to the rescue of Manoj. Learned Senior Counsel took us through
the documents on record and submitted that in the unnatural death (UD) case
there is no mention of bullet injury. Only burn injury has been mentioned. Even
after the CID took over investigation, the following matters have not been
investigated:
(a) No attempt has been made to find out who informed the
Raniganj Fire Station about the incident. Further, no attempt
has been made to discover as to how an outsider could see a
fire from nozzle of cylinder (since no mention has been made
that an insider informed of the fire). No mention of investigating
the call records which could throw light on who informed the
police.
(b) No attempt has been made to find out the location of Manoj
Bhalotia at the time of the incident. Charge-sheet completely
silent on tracing of mobile phone of Manoj Bhalotia.
(c)No attempt made to interrogate the doctor of Anandalok Hospital
who treated the deceased first.
(d) No attempt to take finger print from the gun, which is alleged to
have been used.
(e) No attempt to find out why revolver was kept in a loaded
condition with safety catch open in a place which can be
accessed by others.
(f) No attempt to find out why Sandhya Bauri's (maid) statement is
different from that of Raniganj Fire Station's.
(g) No attempt to investigate as to why no one in the house heard
the sound of the gunshot.
28. It was then submitted that the charge-sheet differs from the Post Mortem
(PM) Report. The PM Report states that burn injury is prior to bullet injury. This
story has been completely changed in the charge-sheet. No explanation is
provided. The body of the deceased was cremated as per Hindu rituals, hence,
fresh examination of the body is not possible. The story has been deliberately
changed to add a veneer of credibility regarding suicide and to explain as to how
a burn victim (with burns on her hand) could fire a revolver.
According to the PM Report, the burn injuries were on the deceased's inner
aspect of right arm, whole length of forearm, outer aspect of left arm, whole
length of forearm, 1/3rd of the right thigh and whole of the left leg. Report filed by
CID on 19 February, 2018 mentions that burn injuries were to the tune of 15 to
20 per cent only. However, according to the charge-sheet, the victim suffered 48
per cent burn injuries after the bullet injury. Further, according to the CID, the
victim came into contact with fire only momentarily.
29. Learned Senior Counsel also pointed out certain alleged inconsistencies
between the version of the incident recorded in the charge-sheet and the version
of different authorities including Raniganj Fire Brigade.
30. It was further submitted that although CID claimed in the charge-sheet
that the victim shot herself, the examination report submitted by the SSO, FSL,
West Bengal opined that "the presence of any firing elements or any fire arm
discharge elements could be ruled out". This rules out the possibility of suicide by
the victim. He submitted that when the PM Report is clear, it is not understood
as to why CID has made out a new story, more so, when the CID and the other
experts have never seen the dead body of the victim
31. Mr. Sengupta submitted that Anandalok Hospital (where the deceased was
first treated) in response to an application dated April 10, 2018 under RTI Act,
stated that Dr. Deep Mukhopadhyay was the first Doctor who attended to the
deceased. However, this Doctor finds no mention in the charge-sheet. The Doctor
in his report has stated that he has seen injuries on the deceased (without
specifying the nature of the injuries) and he could smell kerosene. No step has
been taken by CID to question Dr. Mukhopadhyay.
32. The victim has been projected as being a patient of depression. However,
there is no mention of any medicine that the victim used to take for such alleged
depression. CID's submission before the Learned Judge of this Court was that
they found the prescription of a Doctor who had allegedly prescribed medicine for
depression. The said Doctor, when questioned, said that he never issued such
prescription to the victim as asserted by Manoj. CID has not investigated as to
why Manoj gave a fabricated prescription to the Police. It was further submitted
that the maid in her statement has said that she entered the kitchen only to get
'Nirma' and then she saw the victim on the kitchen floor. She did not go to the
kitchen because of sound of any gunshot. None of the documents on record
mentions any person hearing any gunshot.
33. The CID in the charge-sheet has stated: "but as the contact was
momentary, the wearing apparels of the victim did not catch fire." However, the
charge-sheet mentions 48 per cent burn injuries including burn injuries on right
thigh. There is no explanation as to how with 48 per cent burn injury, the
wearing apparels of the deceased did not catch fire. Moreover, in the report dated
19 February, 2018, the CID admitted that wearing apparels of the deceased could
not be found. In such circumstances it is not understood as to how they could
come to a conclusion that the wearing apparels did not catch fire.
34. It was then submitted that no attempt has been made to find out whose
finger print was there on the revolver. If the victim wanted to commit suicide and
she had access to a revolver, she would simply shoot herself. There can be no
plausible reason as to why she should go through the process of setting herself
on fire.
35. On the basis of the aforesaid submission, Mr. Sengupta submitted that the
CID is conducting the investigation in a motivated manner so as to protect Manoj
against a charge of murder.
36. Mr. Sengupta relied on a Division Bench decision of the Kerala High court
in the case of George Muthoot v. State of Kerala: 2010 (1) KLT 399 wherein at
Paragraphs 56 to 59 of the Judgement, the Court observed as follows:
"56. Similarly, the story of object of quotation gang and their
presence at the scene, their assault on deceased due to
'sudden and grave provocation' etc. appears to be not only
unbelievable but tailor made. In fact the investigation material
as per final report itself discloses that they had been hired to
assault some body that even after the incident they have not
carried or even attempt to carry out quotation work. There are
similar many surprises emanating from prosecution story
which we need not go into details. Suffice it to say all is not
well in the investigation. It is not mere roving/imaginary
suspicion of the petitioner but after looking into final report we
too find shocking state of affairs. The investigation carried out
is suspicious full of many wide gaps and self contradictory.
57. According to us, we feel that in order to assure the victims
of heinous crime an assurance of fair, proper, impartial and
complete investigation and to restore faith, it is just and proper
to direct the CBI to conduct investigation particularly when
gross allegations are made against jurisdictional investigating
agency justifiable and as such interest of justice would be
better served if CBI investigates the case.
58. Under these circumstances as has been held by Apex Court
in the case of Rubabbuddin Sheik (supra) we find that
investigation carried out is not fair, it is improper and
incomplete apart from suspicious and tailor made. As such we
find there is justification in petitioner's contentions to seek
direction from this Court for investigation by independent
agency like CBI.
59. According to us, we feel that in order to assure the victims
of heinous crime an assurance of fair, proper, impartial and
complete investigation and to restore faith, it is just and proper
to direct the CBI to conduct investigation especially when we
find gross allegations are made against jurisdictional
investigating agency justifiable and as such in our view interest
of justice would be better served if CBI investigates the case."
37. Learned Senior Counsel then referred to a Division Bench decision of the
Hyderabad High Court rendered in Writ Appeal No.957 of 2016 wherein the
Court had directed transfer of the investigation to the CBI.
38. Learned Senior Counsel then referred to the Apex Court's decision in
Dharam Pal v. State of Haryana & Ors.: (2016) 4 SCC 160 in support of his
submission that the process of investigation should be such as would instil faith
of the victim and the public at large in the investigating agency. Finally, reference
was made to the Apex Court's decision in Union of India &Anr.v. W.N.
Chadha: AIR 1993 SC 1082 in support of the submission that the accused has
no right to have any say as regards the manner and method of investigation.
39. Appearing for the State, Learned Advocate General submitted that this is
not a rare or exceptional case warranting investigation by CBI. Gopal wants a
charge of homicide to be added. His remedy is to approach the Learned Trial
Judge who is empowered under Section 216 Cr.P.C. to alter or add any charge at
any time before Judgement is pronounced. He submitted that the Cr.P.C. is a
complete Code in itself and when the provisions of that Code provide an
alternative efficacious remedy to an aggrieved party, the Writ Court should not
interfere. In this connection, Learned Advocate General referred to the following
decisions:
(i) Bimal Gurung v. Union of India &Ors.: (2018) 15 SCC 480
(ii) M.C. Mehta (Taj Corridor Scam) v. Union of India &Ors.: (2007) 1
SCC 110
(iii) Popular Muthiah v. State (represented by Inspector of Police):
(2006) 7 SCC 296
40. Learned Advocate General submitted that Gopal's case in the writ petition
is based on alleged infirmities in the investigation process and alleged loopholes
in the charge-sheet - as if the charge-sheet has been designed to favour and
protect Manoj. On such alleged premise, enquiry by CBI has been prayed for. He
submitted that this cannot be done. The power lies with the Magistrate to alter
the charge. Further in the present case, from time to time, there were five
different Investigating Officers. They could not all be under the influence of
Manoj.
41. Learned Advocate General then submitted that the Learned Single Judge
did not give the State an opportunity to file affidavit to deal with the allegations
made in the writ petition, especially those in paragraph 22 of the writ petition
pertaining to alleged deficiencies in the charge-sheet. He submitted that the
CCTV footage is now available with the Police and if necessary, the Learned
Magistrate can order further investigation. In this connection, he relied on the
decision of the Hon'ble Supreme Court in Vinubhai Haribhai Malaviya & Ors.
v. The State of Gujarat & Anr.: (2019) 14 SCALE 1. There is no finding by the
Learned Single Judge that this case falls under any of the three cases that the
Supreme Court has mentioned in Bimal Gurung's Case (supra). There is also no
finding that the allegations in Paragraph 22 of the writ petition are correct. Some
loopholes in an investigation process do not make the investigation biased. The
provisions of Cr.P.C. and in particular Sections 216 (Court may alter charge), 221
(where it is doubtful what offence has been committed) and 319 (power to
proceed against other persons appearing to be guilty of offence) are sufficient to
take care of Gopal's grievance.
42. Appearing for Manoj (the accused), Mr. Anindya Mitra, Learned Senior
Advocate submitted that there is no allegation against the State Police or CID
that they are biased or otherwise involved. This is not a case of public or national
interest. There is no allegation in the writ petition that the Investigating Officers
are biased or have personal malice against Gopal (de-facto complainant) or the
victim. No case of wilful commission/omission on the part of the investigating
agency has been made out by Gopal. At best it can be a case of error of judgment
on the part of the investigating authority.
43. Mr. Mitra submitted that charges have not yet been framed though charge-
sheet has been filed. A charge under Section 302 IPC can always be added by the
Learned Trial Court. In the charge-sheet, the Investigating Officer stated that
investigation is not complete. He reserved his right to conduct further
investigation after obtaining CCTV footage, pen drive, mobile phone etc., which
were under forensic examination. Supplementary charge-sheet can always be
filed if found necessary by the investigating agency.
44. Learned Senior Counsel submitted that one of the Investigating Officers
was the third respondent before the Learned Single Judge. The matter was
disposed of by the Learned Judge at the motion stage without giving an
opportunity to the respondents in the writ petition to file affidavit. The third
respondent was condemned without being given a chance to deal with the
allegations in the writ petition. This amounts to violation of the principles of
natural justice.
45. Mr. Mitra also submitted that the relevant provisions of the Cr.P.C provide
an alternative efficacious remedy to Gopal and hence, the writ petition should not
have been entertained. Gopal should have approached the Learned Magistrate
with his grievance. In this connection Mr. Mitra referred to the decision of the
Hon'ble Supreme Court in the case of Sakiri Vasu v. State of U.P. &Ors.:
(2008) 2 SCC 409.
46. Mr. Mitra also referred to several decisions of the Hon'ble Supreme Court
and High Courts to demonstrate as to when investigation should be transferred
from a State Agency to an independent agency like CBI. Those decisions are:
(i) Disha v. State of Gujarat &Ors.: (2011) 13 SCC 337
(ii) State of West Bengal &Ors. v. Committee for Protection of
Democratic Rights, West Bengal &Ors.: (2010) 3 SCC 571
(iii) Sakiri Vasu v. State of Uttar Pradesh &Ors.: (2008) 2 SCC 409
(iv) T.C. Thangaraj v. Engammal & Ors.: (2011) 12 SCC 328
(v) K.V. Rajendran v. Superintendent of Police, CBCID, South Zone,
Chennai &Ors.: (2013) 12 SCC 480
(vi) Sujatha Ravi Kiran @ Sujatasahu v. State of Kerala &Ors.:
(2016) 7 SCC 597
(vii) Shree Shree Ram Janki Ji Asthan Tapovan Mandir & Ors. v.
The State of Jharkhand &Ors.: 2019 (7) SCALE 215
(viii) Sajina T. V. State of Kerala &Ors.: 2008 Cri LJ 2712
(ix) Smt. Namita Naskar v. State of West Bengal &Ors.: (2014) 2 Cal
LT 195
(x) Unreported decision of the Hon'ble Supreme Court dated 18
February, 2019 rendered in Criminal Appeal No.294 of 2019 {arising
out of Special Leave Petition (Criminal) No.9561 of 2017}, Director,
Central Bureau of Investigation v. Krishna Kumar Mishra &Ors.
Court's decision
47. We have given our anxious consideration to the rival contentions of the
parties. Essentially two questions arise for determination. Firstly, was the
Learned Single Judge justified in entertaining the writ petition? And secondly, in
the facts and circumstances of this case, was the Learned Single Judge justified
in passing the impugned order directing transfer of investigation to CBI?
48. In Popular Muthiah v. State (supra) at Paragraphs 21 and 22 of the
reported Judgment, the Hon'ble Supreme Court held that the Cr.P.C. is an
exhaustive Code providing a complete machinery to investigate into and try
cases. It has provisions at each stage to correct errors, failures of justice and
abuse of process under the supervision and superintendence of the High Court. A
Magistrate can postpone the issue of process and inquire into the case himself
under Section 202(1) of the Cr.P.C. When a charge-sheet is filed, the Court can
refuse to accept the same and proceed to take cognizance of the offence on the
basis of materials on record. The Court can direct further investigation into the
matter. The Cr.P.C., thus, provides for a corrective mechanism at each stage vis.
(i) investigation; (ii) trial; (iii) appeal and (iv) revision.
49. In Sakiri Vasu v. State of U.P. &Ors.(supra), the Hon'ble Supreme Court
observed that the provisions of Cr.P.C. provide for several alternative remedies to
a person who is aggrieved by non-registration of the FIR by the police or by the
fact that a proper investigation is not being done by the Police. Hence, a writ
petition should not normally be entertained at the instance of such party. At
paragraphs 25 to 31 of the Judgment, the Hon'ble Apex Court observed as
follows:
"25. We have elaborated on the above matter because we often
find that when someone has a grievance that his FIR has not
been registered at the police station and/or a proper
investigation is not being done by the police, he rushes to the
High Court to file a writ petition or a petition under Section
482 Cr.P.C. We are of the opinion that the High Court should
not encourage this practice and should ordinarily refuse to
interfere in such matters, and relegate the petitioner to his
alternating remedy, firstly under Section 154(3) and Section
36 Cr.P.C. before the concerned police officers, and if that is of
no avail, by approaching the concerned Magistrate
under Section 156(3).
26. If a person has a grievance that his FIR has not been
registered by the police station his first remedy is to approach
the Superintendent of Police under Section 154(3) Cr.P.C. or
other police officer referred to in Section 36 Cr.P.C. If despite
approaching the Superintendent of Police or the officer referred
to in Section 36 his grievance still persists, then he can
approach a Magistrate under Section 156(3) Cr.P.C. instead of
rushing to the High Court by way of a writ petition or a petition
under Section 482 Cr.P.C. Moreover he has a further remedy of
filing a criminal complaint under Section 200 Cr.P.C. Why then
should writ petitions or Section 482 petitions be entertained
when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has
very wide powers to direct registration of an FIR and to ensure
a proper investigation, and for this purpose he can monitor the
investigation to ensure that the investigation is done properly
(though he cannot investigate himself). The High Court should
discourage the practice of filing a writ petition or petition
under Section 482 Cr.P.C. simply because a person has a
grievance that his FIR has not been registered by the police, or
after being registered, proper investigation has not been done
by the police. For this grievance, the remedy lies under Sections
36 and 154(3) before the concerned police officers, and if that is
of no avail, under Section 156(3) Cr.P.C. before the Magistrate
or by filing a criminal complaint under Section 200 Cr.P.C. and
not by filing a writ petition or a petition under Section
482 Cr.P.C.
28. It is true that alternative remedy is not an absolute bar to a
writ petition, but it is equally well settled that if there is an
alternative remedy the High Court should not ordinarily
interfere.
29. In Union of India vs. Prakash P. Hinduja and
another 2003 (6) SCC 195 (vide para 13), it has been
observed by this Court that a Magistrate cannot interfere with
the investigation by the police. However, in our opinion, the
ratio of this decision would only apply when a proper
investigation is being done by the police. If the Magistrate on
an application under Section 156(3) Cr.P.C. is satisfied
that proper investigation has not been done, or is not
being done by the officer-in-charge of the concerned
police station, he can certainly direct the officer in
charge of the police station to make a proper
investigation and can further monitor the same (though
he should not himself investigate).
30. It may be further mentioned that in view of Section
36 Cr.P.C. if a person is aggrieved that a proper
investigation has not been made by the officer-in-charge
of the concerned police station, such aggrieved person
can approach the Superintendent of Police or other
police officer superior in rank to the officer-in-charge of
the police station and such superior officer can, if he so
wishes, do the investigation vide CBI vs. State of
Rajasthan and another 2001 (3) SCC 333 (vide para 11),
R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the
State Government is competent to direct the Inspector
General, Vigilance to take over the investigation of a
cognizable offence registered at a police station
vide State of Bihar vs. A.C. Saldanna: (1980) 1 SCC 554.
31. No doubt the Magistrate cannot order investigation by the
CBI vide CBI vs. State of Rajasthan and another (Supra),
but this Court or the High Court has power under Article
136 or Article 226 to order investigation by the CBI. That,
however should be done only in some rare and exceptional
case, otherwise, the CBI would be flooded with a large number
of cases and would find it impossible to properly investigate all
of them."
(Emphasis is ours)
In conclusion, the Hon'ble Court held that the materials on record in that
case did not disclose a prima facie case calling for an investigation by the CBI.
The mere allegation of the appellant that his son had been murdered because he
had discovered some corruption, could not justify a CBI enquiry, particularly
when enquiries were held by the Army Authorities as well as by the G.R.P. at
Mathura which revealed that it was a case of suicide.
The decision of the Hon'ble Supreme Court in Sakiri Vasu (supra) was
followed by the Kerala High Court in Sajina T. v. State of Kerala & Ors.
(supra) where the prayer for investigation by CBI was declined.
Similarly, a Learned Single Judge of our High Court in Namita Naskar v.
State of West Bengal & Ors. (supra) declined the writ petitioner's prayer for
directing investigation by a superior agency like CID, following the ratio of the
decision in Sakiri Vasu (supra).
50. We are conscious that availability of an efficacious alternative remedy is
not a complete bar to the maintainability of a writ petition. However, when such
an alternative remedy is available, the Writ Court ordinarily should not interfere.
The well recognized exceptions to this principle, e.g., the impugned order or
action being without jurisdiction or suffering from the vice of breach of the
principles of natural justice, are not present in the instant case. The writ
petitioner is aggrieved by the alleged lapses on the part of the CID in conducting
the investigation. It was open to the writ petitioner to approach the Learned
Magistrate under the provisions of Cr.P.C. The Learned Magistrate is sufficiently
empowered to order further investigation and also to alter or add to the charge.
51. In view of the above principles of law and the ratio of the decision in Sakiri
Vasu v. State of U.P. & Ors. (supra), we are of the opinion that the Learned
Single Judge ought not to have entertained the writ petition and should have
relegated the writ petitioner to the statutory alternative remedies he has under
the provisions of Cr.P.C.
52. The other issue is, even assuming for the sake of argument that the
Learned Single Judge did not fall in error in exercising discretion to entertain the
writ petition, do the facts and circumstances of the case justify the order passed
by the Learned Single Judge?
53. In State of West Bengal &Ors. v. Committee for Protection of
Democratic Rights, West Bengal &Ors. (supra) the complainant along with a
large number of workers of a political party had been staying in several camps of
that party at Garbeta, District- Midnapore, West Bengal. On 4 January, 2001,
the complainant and few others decided to return to their homes from one such
camp. When they reached the complainant's house, some miscreants, numbering
50-60, attacked them with fire arms and other explosives, which resulted in a
number of casualties. The complainant managed to escape, hid himself,
witnessed the carnage and later lodged a written complaint with the police. On 8
January, 2001, the Director General of Police, West Bengal directed CID to take
over the investigation in the case. A writ petition under Article 226 of the
Constitution was filed in the Calcutta High Court by the Committee for Protection
of Democratic Rights, West Bengal in public interest, alleging, inter alia, that
although in the said incident 11 persons had died on 4 January, 2001 and more
than three months had elapsed since the incident had taken place, yet except
two persons, no other person named in FIR had been arrested; no serious
attempt had been made to get the victims identified and the police had not been
able to come to a definite conclusion whether the missing persons were dead or
alive. It was alleged that since the police administration in the State was under
the influence of the ruling party which was trying to hide the incident to save its
image, the investigation in the incident may be handed over to CBI, an
independent agency. The High Court felt that in the background of the case it
had strong reservations about the impartiality and fairness in the investigation
by the State Police because of the political fallout, and therefore, no useful
purpose would be served in continuing with the investigation by the State
investigating agency. It was further observed by the High Court that even if the
investigation was conducted fairly and truthfully by the State Police, it would still
be viewed with a suspicion because of the allegation that all the assailants were
members of the ruling party. Having regard to such circumstances, the High
Court directed handing over of the investigation to the CBI. On the matter being
carried to the Hon'ble Supreme Court, a Two Judge Bench observed that very
important points of law were involved in that case including as to whether or not
the High Court in exercise of power under Article 226 of the Constitution can
direct the CBI to conduct investigation into an alleged criminal incident occurring
within the territorial jurisdiction of a State, without the consent of the State
Government. The issue was referred to a Constitution Bench. While holding that
the High Court had the power to so direct, the Constitution Bench observed as
follows:
"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
Courts must bear in mind certain self-imposed limitations on
the exercise of these constitutional powers. The very plenitude
of the power under the said articles requires great caution in its
exercise. In so far 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.
71. In Minor Irrigation & Rural Engg. Services, U.P. v.
Sahngoo Ram Arya: (2002) 5 SCC 521 this Court had said
that an order directing an enquiry by CBI should be passed
only when 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 agency. We respectfully concur with these
observations."
54. The aforesaid decision was followed by the Hon'ble Supreme Court in T.C.
Thangaraj v. V. Engammal &Ors. (supra). In K.V. Rajendran v.
Superintendent of Police CBCID (supra) at Paragraph 13 of the Judgment the
Hon'ble Supreme Court observed as follows:
"The issue involved herein, is no more res integra. This Court
has time and again dealt with the issue under what
circumstances the investigation can be transferred from the
State investigating agency to any other independent
investigating agency like CBI. It has been 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, or where investigation by the State police lacks
credibility and it is necessary for having 'a fair, honest and
complete investigation', and particularly, when it is imperative
to retain public confidence in the impartial working of the State
agencies. Where the investigation has already been
completed and charge sheet has been filed, ordinarily
superior courts should not reopen the investigation and
it should be left open to the court, where the charge
sheet has been filed, to proceed with the matter in
accordance with law. (Emphasis is ours) Under no
circumstances, should the court make any expression of its
opinion on merit relating to any accusation against any
individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of
India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of
U.P. & Ors., AIR 1994 SC 38; Punjab and Haryana Bar
Association, Chandigarh through its Secretary v. State
of Punjab & Ors., AIR 1994 SC 1023; Vineet Narain &
Ors., v. Union of India &Anr., AIR 1996 SC 3386; Union
of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997
SC 314; Disha v. State of Gujarat & Ors., AIR 2011 SC
3168; Rajender Singh Pathania & Ors. v. State (NCT of
Delhi) & Ors., (2011) 13 SCC 329; and State of Punjab v.
Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC
364)."
55. In Vinay Tyagi v. Irshad Ali @ Deepak & Ors.: 2013 5 SCC 762, at
paragraph 43 of the reported Judgment, the Hon'ble Supreme Court observed
that the superior Courts are vested with the power of transferring investigation
from one agency to another, provided the ends of justice demand such action.
However, it is also a settled principle that this power has to be exercised by the
superior Courts very sparingly and with correct circumspection.
56. In Sujatha Ravi Kiran v. State of Kerala (supra) the Hon'ble Supreme
Court took into account the law laid down by that Court by the Constitution
Bench in Committee for Protection of Democratic Rights (supra) and held
that the facts of that case did not call for transfer of investigation to CBI.
57. In the recent decision of the Hon'ble Supreme Court in the case of Shree
Shree Ram Janki Ji Asthan Tapovan Mandir & Ors. v. The State of
Jharkhand &Ors. (supra) the issue involved was whether there was gross
illegality in transfer of a land belonging to a deity. A Public Interest Litigation was
instituted. The High Court at Jharkhand directed investigation into the matter by
the CBI. The matter was carried to the Hon'ble Supreme Court. At Paragraph 20
of the Judgment, the Hon'ble Supreme Court observed as follows:
"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 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 investigations involving high officials of the State
Investigating agency itself."
58. In Director, Central Bureau of Investigation v. Krishna Kumar Mishra
&Ors.(supra), the High Court ordered the CBI to conduct investigation into the
disappearance of a highly valuable imported technical equipment from Raja
Ramanna Centre for Advanced Technology, Department of Atomic Energy, Indore.
The CBI carried the matter to the Hon'ble Supreme Court. The order of the High
Court was set aside. It was observed that while the jurisdiction of the High Court
to order an investigation by CBI cannot be doubted, such jurisdiction is to be
very sparingly exercised with great care and caution, keeping in mind that the
premier investigation agency is primarily engaged in investigation of anti-
corruption cases and cases of vital importance for the nation. It was further
observed that having regard to the nature of the work that the CBI is required to
perform, the High Court was not justified in requiring the CBI to investigate into
the matter and the High Court should have allowed the State Police to conduct
and complete the further investigation ordered by the Learned Chief Judicial
Magistrate.
59. In Bimal Gurung v. Union of India &Ors. (supra) the Hon'ble Supreme
Court after discussing its earlier decisions including the Constitution Bench
decision in State of West Bengal v. Committee for Protection of Democratic
Rights (supra) observed as follows:
"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 vs. Superintendent of
Police, CBCID South Zone, Of Police, (2013) 12 SCC 480,
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."
(Emphasis is ours)
60. Having noted the law laid down by the Hon'ble Supreme Court as regards
transfer of a criminal investigation by the High Court in exercise of its power
under Article 226 of the Constitution from a State investigating agency to a
Central agency like CBI, let us see with what case the writ petitioner approached
the Learned Single Judge.
61. We have gone through the writ petition carefully. The short case of the writ
petitioner is that initially the State Police and subsequently the CID branch of the
State Police has conducted the investigation in a slip shod manner which led to
the filing of a charge-sheet against the accused person, tailor-made to favour
him. There are glaring defects, infirmities and loopholes in the process of
investigation and such deficiencies are intentional to protect the accused. The
alleged deficiencies/defects in the investigation process have been tabulated in
Paragraph 22 of the writ petition. They are substantially the same as have been
submitted before us by Learned Senior Counsel for the writ petitioner and which
we have noted above. Particularly speaking, such alleged defects are non-
examination of certain persons whose statements would have important bearing
on the filing of the charge-sheet and also lack of explanation of inconsistencies
between the statements of persons recorded under Section 164 of the Cr.P.C. The
basic grievance of the writ petitioner is that his sister was murdered but the
charge-sheet has been filed projecting a case of suicide.
62. The Learned Single Judge discussed several authorities on the point of
transfer of an investigation to the CBI and observed in the impugned order, inter
alia, as follows:
"...Applying the ratio as noted above to the facts of the present
case, it appears that, the Division Bench while granting bail
noted various discrepancies in the charge-sheet and noted that,
further investigations are required. The charge-sheet itself
notices that, further investigations are required. The charge-
sheet speaks of C.C.T.V. footage which is yet to be considered.
The C.C.T.V. footage can have a material bearing on the
inference that a person can draw on the incident.
....
The charge-sheet as it stands today raises more questions than answers. The charge-sheet explains the death as a suicide. It takes a view that, the gun shot was prior in point of time than the burn injuries.... The charge-sheet does not explain how the victim could obtain the knowledge and expertise of firing the revolver. The revolver needs to be loaded with bullet, the safety catch cocked for it to fire. These aspects remain sketchy at best. The charge-sheet as it stands does not instil much confidence. The investigation did not proceed in a proper direction. A lot of issues remain unanswered. Going to trial with this charge-sheet will not ensure to the administration of justice particularly when there are avenues still available to remedy the lacunae.
....
That apart, there are discrepancies which the petitioner notes in paragraph 22 of the writ petition. When the earlier writ petition was filed, the charge-sheet was not before the Writ Court. In paragraph 22 of the writ petition, the petitioner tabulates various points which according to the petitioner highlight the loose ends between the post mortem report and the charge-sheet. Therefore, the same materials were not before the Writ Court while the Writ Court was considering whether to direct the investigation to be conducted by the CBI or not. The decision of the Division Bench dated August 27, 2018 on the first writ petition of the writ petitioner has to be read and understood in such context. Such decision cannot cover the period subsequent thereto. The petitioner is also highlighting the events happening subsequent to the judgment and order dated October 27, 2018 in this writ petition.
Therefore in the facts of the present case, interest of justice would be sub-served by substituting the Investigating Authority with CBI as prayed for by the petitioner. CBI is entrusted with the investigation.... It will do so at the rank of a person higher than the rank of the last Investigating Officer. It will complete the investigation as expeditiously as possible."
63. The Learned Single Judge disposed of the writ petition at the motion stage without inviting affidavits. Allegations of deficiency in the investigation process undertaken by the CID, which are factual in nature, were made in the writ petition and in particular at paragraph 22 thereof. In our opinion, an opportunity should have been granted to the respondents to file their response to such allegations by way of affidavit, before a final decision was taken on the writ petition. Such a course of action was also warranted by the principles of natural justice. The Learned Judge accepted the allegations made in the writ petition without affording an opportunity to the respondents to refute or deal with such allegations. On this ground alone we would have remanded the matter back to the Learned First Court for consideration afresh after calling for affidavits from the respondents. However, we refrain from doing so as we are of the view that the facts and circumstances of this case do not warrant transfer of the criminal investigation from the CID to the CBI.
64. The essence of the case of the writ petitioner is that the State Police authorities are biased in favour of the accused person and there is malice on their part against the writ petitioner/de-facto complainant. No particulars or plausible reason for the State Police to be biased in favour of the accused person has been indicated in the writ petition. A bald assertion of bias is not sufficient. It is a serious allegation and must be supported by tangible evidence. The mere allegation that defective investigation is indicative of such bias begs the question. Defective investigation, may be due to error of judgment and infirmities or loopholes in the process of investigation, per se would not unfailingly indicate any unholy entente between the investigating agency and the accused person. As many as five Investigating Officers were involved in the present case. It is highly unlikely that all five were biased against the writ petitioner and in favour of the accused person. The writ petitioner has not attributed bias to any particular Investigating Officer by identifying him. An omnibus statement that the entire State Police administration is biased in favour of the accused person and against the writ petitioner is too far a cry and not acceptable.
65. As regards the malice, the writ petitioner has not pleaded malice in fact against any particular Police Officer conducting the investigation. At best the writ petitioner's case can be that there is malice in law on the part of the police authorities against him. A mere allegation of malice in law against a public authority will not invalidate an action of such authority which is assailed before a court of law. Such malice has to be proved/demonstrated by the person making the allegation to the satisfaction of the Court on the basis of proper materials and such malice has to be egregious in nature before the Court interferes with the impugned action of the public authority on the basis of there being malice in law. On a careful consideration of the case pleaded by the writ petitioner, we are of the view that such a case of malice in law has not been established by him.
66. The writ petitioner contended before the Learned Single Judge and also before us that he has a right to justice which includes the right to have a fair and impartial investigation into the matter of his sister's unnatural death and such right is guaranteed under Article 21 of the Constitution of India. We do not for a moment suggest that the writ petitioner does not have such a right. However, we are of the view that transfer of the investigation to the CBI is not the appropriate manner of enforcement of such right in the facts and circumstances of this case. The writ petitioner has other remedial avenues available to him.
67. The writ petitioner has tabulated in the writ petition the alleged defects/infirmities in the process of investigation undertaken by the CID. Even if for the sake of argument we agree with the writ petitioner that there are such loopholes in the investigation process, would that be ground enough for transfer of the investigation from CID to CBI? In our opinion, the answer must be in the negative. The Learned Magistrate has sufficient powers under the provisions of the Cr.P.C. to order further investigation and to ensure that defects/loopholes in the investigating process are remedied. We have discussed this aspect of the matter hereinabove with reference to decisions of the Hon'ble Supreme Court including the one in the case of Sakiri Vasu (supra). It is true that the Learned Magistrate is not empowered to direct the CBI to take over the investigation. However, such a direction is not necessary in the facts of the present case since in our opinion, the writ petitioner has not been able to establish that the entire State Police administration is biased against him and is favourably disposed towards the accused person and therefore, has deliberately undertaken a defective process of investigation leading to filing of a charge-sheet designed to shield the accused person. The Learned Magistrate may, if he deems necessary, direct the Investigating Agency to conduct further investigation and he may monitor the same.
68. The Hon'ble Supreme Court has repeatedly observed in several cases adverted to above that the High Court's power under Article 226 of the Constitution to direct transfer of a criminal investigation from the State Investigating Agency to CBI should be exercised sparingly and with great caution and circumspection. Just because some allegations are made against the State Police, the investigation should not be directed to be so transferred excepting in a case of national importance or where specific substantive allegations are made against high authorities in the State Police administration, or where it is clearly demonstrated that the investigation has been carried out in such a manner as would not instil public confidence therein. The State Investigating Agency should not be substituted by an independent agency like CBI for the mere asking. Otherwise, floodgates would be opened and in a vast number of cases the de- facto complainant, whenever he/she thinks, however fancifully, that the investigation is not going his/her way, he/she would approach the High Court under Article 226 of the Constitution for directing transfer of the investigation from the State Police to the CBI. Entertaining such a prayer would be counter- productive. The CBI is the premier investigating agency of the country and has the responsibility of investigating into alleged crimes involving national interest including corruption matters. The CBI cannot be overburdened as in that event it would be unable to discharge its primary duties and functions efficiently and diligently.
69. We are, therefore, of the considered opinion that this is not a fit case where the investigation should be directed to be transferred from the State Police to the CBI. Accordingly, the order under appeal is set aside.
70. We understand that charge-sheet has been filed in the instant case. The writ petitioner contends that the charge-sheet is designed to protect the accused person. The writ petitioner has enumerated certain alleged defects/deficiencies in the process of investigation. The writ petitioner will be at liberty to approach the Learned Magistrate to bring to his notice such alleged defects/deficiencies. The Learned Magistrate may consider directing the police to conduct such further investigation in the matter as may be deemed fit and proper for unveiling the truth. If necessary, supplementary charge-sheet may be directed to be filed. Even at the stage of trial if the Learned Magistrate, on an overall consideration of the materials on record before him, finds that it is necessary to add to or alter the charge against the accused person under any other Section of the Indian Penal Code, obviously the Learned Magistrate shall be at liberty to do so. The Learned Magistrate is specifically empowered to do so under Section 216 of the Cr.P.C.
71. MAT 318 of 2019 & MAT 353 of 2019 are, accordingly disposed of.
72. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. (Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)