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Inquiry by CBI – rejected due to delay – with liberty to file fresh application on fresh grounds if any = the High Court has rejected the prayer of the appellant to transfer the investigation of his case/complaint to Central Bureau of Investigation (hereinafter referred to as the `CBI’). – His request to the Judicial Magistrate in regard to medical examination of the injuries which had been caused to him was rejected. = In sum and substance, firstly, the facts and circumstances of the instant case do not present special features warranting transfer of investigation to CBI, and that too, at such a belated stage where the final report under Section 173(2) Cr.P.C. has already been submitted before the competent criminal court. The allegations are only against the then RDO who might have been transferred to various districts during these past 15 years. Similarly various other police officials might have investigated the case and it is difficult to assume that every police official was under his influence and all of them acted with malafide intention. In view of the earlier order of this Court dated 2.9.2008, no subsequent development has been brought to the notice of the court which could warrant interference by superior courts and transfer the investigation to CBI. 15. In view of the above, we do not see any cogent reason to interfere with the impugned judgment and order of the High Court. The appeal lacks merit and is, accordingly, dismissed.

   published in         http://judis.nic.in/supremecourt/imgst.aspx?filename=40664

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1167 of 2013
Prof. K.V. Rajendran
…Appellant

 
Versus

 
Superintendent of Police, CBCID South …Respondents
Zone, Chennai & Ors.
J U D G M E N T

 
Dr. B.S. CHAUHAN, J.

 
1. This appeal has been preferred against the judgment and order
dated 8.12.2011 passed by the High Court of Judicature at Madras in
Crl.O.P. No. 9639 of 2011, by way of which the High Court has rejected
the prayer of the appellant to transfer the investigation of his
case/complaint to Central Bureau of Investigation (hereinafter
referred to as the `CBI’).
2. The case has a chequered history as the matter has moved from
the court of the Magistrate to this Court time and again. Facts and
circumstances necessary to adjudicate upon the controversy involved
herein are that:
A. The appellant, who is an Associate Professor in Physics in the
Presidency College, Chennai, went to his village on 26.8.1998. At
about 11.00 P.M., approximately ten people headed by the then Revenue
Divisional Officer (hereinafter referred to as the `RDO’), forcibly
took him in a government jeep and brought him to the Taluk office and
enquired about why he had given a false complaint regarding the
smuggling of teakwood in that area. The then RDO and other officials
treated him with utmost cruelty and caused severe injuries all over
his body and then obtained his signatures on blank papers which were
filled up as directed by the then RDO. On the next day, he was handed
over to the local Police Inspector along with the statement purported
to have been written by the officials concerned.
B. The appellant was produced before the Magistrate on 27.8.1998 at
10.30 A.M. and he was remanded to judicial custody. His request to
the Judicial Magistrate in regard to medical examination of the
injuries which had been caused to him was rejected. The appellant was
kept in Sub Jail, Poraiyar, wherein he was treated by the jail doctor
on 28.8.1998. On being released on bail, the appellant got treatment
of his injuries in a private hospital.
C. The appellant filed a complaint against the said RDO and other
officials. The said complaint was also sent to the office of Hon’ble
Chief Minister of the State, the Director General of Police and other
officials, alleging the brutal torture caused to him by the then RDO.
The case was entrusted for investigation to Deputy Superintendent of
Police, SBCID, Nagapattinam. A confidential report was forwarded to
higher officials by the said DSP in this regard. However, no progress
could be made in the investigation and no case was registered in
respect of the complaint of the appellant.
D. The appellant approached the High Court of Madras by filing Crl.
O.P. No. 19352/1998 with the prayer to direct the registration of
First Information Report (FIR) based on his complaint. In view of the
fact that a confidential report of Deputy Superintendent of Police,
SBCID revealed that the preliminary enquiry was conducted in a proper
manner, the High Court did not transfer the investigation to CBI,
however, the petition was allowed vide order dated 1.3.2001 issuing
the direction to register a case.
E. The DSP, SBCID filed an application i.e. Crl.M.P. No. 3713/2001
before the High Court in the disposed of case i.e. Crl.O.P. No.
19352/1998 stating that there was no post of DSP, SBCID on the date of
the order as the same had been abolished, so proper directions needed
to be issued. In the meanwhile, the appellant also filed another
petition to transfer the case to CBI. Both the said applications were
heard together and the order dated 1.10.2004 was passed modifying the
earlier order dated 1.3.2001 for transferring the investigation to
CBI.
F. Aggrieved, the DSP, SBCID, preferred Criminal Appeal No. 1389 of
2008 before this Court. The said criminal appeal was disposed of by
this Court vide a detailed judgment and order dated 2.9.2008. It was
observed that by the first order dated 1.3.2001, the High Court had
declined to handover the investigation to CBI, therefore, it was not
proper for the High Court to pass a fresh order in a petition that had
been disposed of, directing again the investigation to be made by the
CBI. This view was taken in view of the provisions of Section 362 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
`Cr.P.C.’). This Court also took note of the fact that it was not the
application by the appellant to transfer the case to CBI. Thus, the
said order dated 1.10.2004 transferring the investigation to CBI by
the High Court was set aside. However, this Court kept it open that
the appellant could prefer a fresh criminal petition under Section 482
Cr.P.C. for transferring the investigation from the State police
authorities to CBI, depending upon subsequent events. In such an
eventuality, it would be open to High Court to entertain such
application and decide the same in accordance with law.
G. The appellant was summoned by the DSP, SBCID on 7.7.2010 and
again on 25.10.2010 and his statements were recorded. Being un-
satisfied with the investigation conducted by the SBCID, the appellant
filed Crl. O.P. No. 9639 of 2011 in April 2011 before the High Court,
seeking transfer of the investigation to CBI. The said application
has been dismissed vide impugned judgment and order dated 8.12.2011.
Hence, this appeal.
3. Ms. Kamini Jaiswal, learned counsel appearing on behalf of the
appellant, has submitted that there was no justification for the High
Court to reject the application seeking transfer of the investigation
from the State investigating agency to CBI as the State investigating
agency did not conduct the investigation properly as its investigation
has been tainted and biased, favouring the then RDO. The SBCID
threatened the witnesses and recorded their version under coercion.
Moreover, inordinate delay had been there in concluding the
investigation. The High Court could not be justified in making such
an observation that even if a shabby investigation had been made, it
could not be a ground to change the investigating agency. Further,
there was no material to show as observed by the High Court, that the
appellant had improved his case stage by stage. Even if the
investigation was at the verge of conclusion or already stood
concluded, it is permissible in law to change the investigating
agency. Thus, the appeal deserves to be allowed.
4. On the contrary, Shri K. Ramamurthy and Shri Nagendra Rai
learned senior counsel appearing on behalf of the State and respondent
no. 3, the then RDO, have opposed the appeal contending that there was
no subsequent development on the basis of which the transfer of
investigation could be sought to CBI. Moreover, it is not a fit case
to transfer to CBI. The appellant is pursuing a trivial issue since
1998 and had been moving from one court to another for the last 15
years. The liberty was given to the appellant by this Court vide
order dated 2.9.2008 to move the High Court for transfer of
investigation to CBI only on the basis of subsequent events, if any.
In fact there has been no such subsequent event, which could warrant
such a course of action. This Court has laid down certain parameters
for transferring the case to CBI and the present case does not fall
within the ambit thereof. The State police has already investigated
the matter and filed the final report under Section 173(2) Cr.P.C.
before the court concerned. The appellant has already filed the
protest petition and it is for the learned Magistrate to decide the
case in accordance with law. The Magistrate is not bound to accept the
report so submitted by the investigating agency, he may take
cognizance and also direct further investigation under Section 173(8)
Cr.P.C. Thus, there is no justification to transfer the case to CBI
and the appeal is liable to be rejected.
Shri Mukul Gupta, learned senior counsel appearing on behalf of
the CBI, supported the case of the respondents and further submitted
that the CBI has a shortage of manpower and is already overburdened.
More so, the present case does not present special features warranting
transfer to CBI for investigation.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. 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. 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).
7. In Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010) 2 SCC
200, this Court dealt with a case where the accusation had been
against high officials of the police department of the State of
Gujarat in respect of killing of persons in a fake encounter and the
Gujarat police after the conclusion of the investigation, submitted a
charge sheet before the competent criminal court. The Court came to
the conclusion that as the allegations of committing murder under the
garb of an encounter are not against any third party but against the
top police personnel of the State of Gujarat, the investigation
concluded by the State investigating agency may not be satisfactorily
held. Thus, in order to do justice and instil confidence in the minds
of the victims as well of the public, the State police authority could
not be allowed to continue with the investigation when allegations and
offences were mostly against top officials. Thus, the Court held that
even if a chargesheet has been filed by the State investigating agency
there is no prohibition for transferring the investigation to any
other independent investigating agency.
8. In State of West Bengal v. Committee for Protection of
Democratic Rights, AIR 2010 SC 1476, a Constitution Bench of this
Court has clarified that extraordinary power to transfer the
investigation from State investigating agency to any other
investigating agency 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 and international ramifications or where
such an order may be necessary for doing complete justice and
enforcing the fundamental rights.
(See also: Ashok Kumar Todi v. Kishwar Jahan & Ors., AIR 2011 SC
1254).
9. This Court in the case of Sakiri Vasu v. State of UP, AIR 2008
SC 907 held:
“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 added)
10. In view of the above, the law can be summarised to the effect
that the Court could exercise its Constitutional powers for
transferring an investigation from the State investigating agency to
any other independent investigating agency like CBI only in rare and
exceptional cases. 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 further that it is so necessary to do justice and
to instil confidence in the investigation or where the investigation
is prima facie found to be tainted/biased.
11. The case is required to be examined in view of aforesaid settled
legal propositions.
The matter originated in September 1998 and a period of 15 years
has already been lapsed. During this period, respondent no. 3, the
then RDO, against whom the allegations are made, might have been
transferred to various districts of the State. The allegations of
malafide had been made against the police in general without
impleading any person by name. During the period of 15 years,
investigation could have been carried out by many police officers. It
cannot be presumed that each of them could be influenced by the
respondent no. 3. This Court had also given the liberty to the
appellant to approach the High Court for transferring the
investigation to CBI provided there is sufficient material available
subsequent to the earlier orders passed by the High Court. Even if
the investigating agency did not proceed promptly and was in deep
slumber for a long time, the appellant also did not make any attempt
to move the court for issuance of appropriate direction to transfer
the case to the CBI. It was at a belated stage when the High Court was
approached. In the meanwhile, the High Court came to the conclusion
that the investigation of the case has already been concluded and,
therefore, did not transfer the case to CBI. Admittedly, the final
report has already been filed and the appellant is fully aware of
those facts. If he has not already taken the appropriate steps to meet
the present situation, he can still do so as the learned Magistrate
concerned, as we are informed, has not yet passed any final order. It
is always open to the Magistrate to accept the final report or reject
the same and has the power to direct further investigation under
Section 173(8) Cr.P.C.
12. The High Court while passing the impugned judgment and order
had, in fact, taken note of the earlier judgment of this Court dated
2.9.2008 and rejected the application observing that the subsequent
development would not warrant the transfer of investigation. The High
Court has further taken note of the fact that the investigation had
been properly conducted by the State investigating agency, 46
witnesses had been examined and a large number of documents had been
filed and the investigating agency had concluded the investigation in
respect of allegations labelled by the appellant against the alleged
accused.
13. The High Court has further taken note of the earlier judgment of
this Court dated 2.9.2008 wherein this Court had given liberty to the
appellant to move a fresh application under Section 482 Cr.P.C., if it
is so required in view of the “subsequent events having been taken
place”. The relevant part of the order of this Court reads as under:
“We make it clear once again that if a fresh criminal petition
under Section 482 of the Code is filed by the respondent for
transferring the investigation from State Police authorities to
CBI after bringing certain subsequent events that had taken
place after the disposal of the original criminal petition if
there be any, it would be open for the High Court to entertain
such application if it is warranted and decide the same in
accordance with law for which we express no opinion on merit.”

 

(Emphasis added)
14. In sum and substance, firstly, the facts and circumstances of
the instant case do not present special features warranting transfer
of investigation to CBI, and that too, at such a belated stage where
the final report under Section 173(2) Cr.P.C. has already been
submitted before the competent criminal court. The allegations are
only against the then RDO who might have been transferred to various
districts during these past 15 years. Similarly various other police
officials might have investigated the case and it is difficult to
assume that every police official was under his influence and all of
them acted with malafide intention. In view of the earlier order of
this Court dated 2.9.2008, no subsequent development has been brought
to the notice of the court which could warrant interference by
superior courts and transfer the investigation to CBI.
15. In view of the above, we do not see any cogent reason to
interfere with the impugned judgment and order of the High Court. The
appeal lacks merit and is, accordingly, dismissed.

 
………………………………………………….J. (DR. B.S.
CHAUHAN)

 

……………………………………………………….J.
(SUDHANSU JYOTI
MUKHOPADHAYA)

 

 

……………………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI;
August 21, 2013

 

 
———————–
15

 

 

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