# Smt. Kalpana Maheshwari v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 1424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-21
- **Case number:** Criminal Misc. Writ Petition No. 9932 of 2024
- **Bench:** Vivek Kumar Birla, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalpana-maheshwari-v-state-of-u-p-anr-52510
- **Pages:** 10

## Headnote

Criminal Law - Constitution of India, 1950
- Article 226 -whether the Central Bureau
of Investigation (CBI) should investigate
the death of daughter of petitioner, who
died in the USA- under Section 188 of the
Cr.P.C.- Sections 5 and 6 of Delhi Special
Police
Establishment
Act,
1946Governement
Notification
dated
27.05.2016
and
circular
dated
11.05.2017-for
offences
committed
outside India by Indian citizens, only the
Central
Government's
sanction
is
required-not
the
St.
Government's
consent-court directed the CBI and the
Ministry of Home Affairs-complete the
necessary formalities and conduct the
investigation
within
15
days-petition
allowed. (Paras 15 and 16)

HELD:
In view of above analysis this Court holds that
for conducting investigation for the offence
committed outside the India by Indian citizen
under
Section
188
Cr.P.C.
there
is
no
requirement to seek consent of St. Government
under Section 6 of DSPE Act and only sanction
of Central Government is required. (para 16)

Reverting back to the present case, though it is
clear from above analysis that there is no
requirement for seeking consent of the St.
Government to conduct investigation under
Section 188 Cr.P.C. but the affidavit filed by the
Secretary,
Department
of
Personnel
and
Training,
Government
of
India
specifically
mentioned
that
the
consent
of
the
St.
Government is required and on the other hand it
was also mentioned in the aforesaid affidavit
that the St. Government has also conveyed its
consent for conducting investigation in the
present case to Ministry of External Affairs,
Government of India by letter dated 5.9.2023,
therefore, in substance St. of U.P. already
conveyed its consent to Government of India for
conducting the investigation by C.B.I. about the
death of daughter of the petitioner but the
C.B.I. as well as DoPT unnecessarily raising
technical issue and shifting burden on each
other instead of taking any fruitful action to
conduct the investigation for the death of
daughter of the petitioner in United St.s of
America. (Para 16)

Petition allowed. (E-13)

## Text

1424 INDIAN LAW REPORTS ALLAHABAD SERIES
error of jurisdiction or law or the perversity
which has crept in the proceeding."

22. In the case of Kanchan Kumar
Vs. State of Bihar : (2022) 9 SCC 577 the
Apex
Court
while
considering
the
judgement in the case of Dipakbhai
Jagdishchandra Patel Vs. State of Gujarat
summarised the principles on discharge
under Section 227 Cr.P.C. and held as
follows:

"15. Summarising the principles
on discharge under Section 227 CrPC, in
Dipakbhai Jagdishchandra Patel v. State of
Gujarat [Dipakbhai Jagdishchandra Patel
v. State of Gujarat, (2019) 16 SCC 547 :
(2020) 2 SCC (Cri) 361] , this Court
recapitulated : (SCC p. 561, para 23)

"23. At the stage of framing the
charge in accordance with the principles
which have been laid down by this Court,
what the court is expected to do is, it does
not act as a mere post office. The court
must indeed sift the material before it. The
material to be sifted would be the material
which is produced and relied upon by the
prosecution. The sifting is not to be
meticulous in the sense that the court dons
the mantle of the trial Judge hearing
arguments after the entire evidence has
been adduced after a full-fledged trial and
the question is not whether the prosecution
has made out the case for the conviction of
the accused. All that is required is, the
court must be satisfied that with the
materials available, a case is made out for
the accused to stand trial. A strong
suspicion suffices. However, a strong
suspicion must be founded on some
material. The material must be such as can
be translated into evidence at the stage of
trial. The strong suspicion cannot be the
pure subjective satisfaction based on the
moral notions of the Judge that here is a
case where it is possible that the accused
has
committed
the
offence.
Strong
suspicion must be the suspicion which is
premised
on
some
material
which
commends itself to the court as sufficient to
entertain the prima facie view that the
accused has committed the offence."
(emphasis supplied)"

23. Thus, the position of law that
emerges
is
that
at
the
stage
of
discharge/framing of charge, the Court is
merely required to shift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused i.e. whether a prima facie case is
made out against the accused. Further the
ground that income of other family
members has not been considered also
cannot be looked into and considered at the
stage of discharge, it is to be considered in
the trial only.

24. Looking to the facts of the case,
the prima facie allegation against the
revisionist and the law as stated above, no
case for interference is made out. The
present revision is thus dismissed.
----------
(2024) 9 ILRA 1424
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 9932 of 2024

Smt. Kalpana Maheshwari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
9 All. Smt. Kalpana Maheshwari Vs. State of U.P. & Anr.
1425
Jitendra Kumar

Counsel for the Respondents:
G.A., Manu Vardhana, Sanjay Kumar Yadav

Criminal Law - Constitution of India, 1950
- Article 226 -whether the Central Bureau
of Investigation (CBI) should investigate
the death of daughter of petitioner, who
died in the USA- under Section 188 of the
Cr.P.C.- Sections 5 and 6 of Delhi Special
Police
Establishment
Act,
1946Governement
Notification
dated
27.05.2016
and
circular
dated
11.05.2017-for
offences
committed
outside India by Indian citizens, only the
Central
Government's
sanction
is
required-not
the
St.
Government's
consent-court directed the CBI and the
Ministry of Home Affairs-complete the
necessary formalities and conduct the
investigation
within
15
days-petition
allowed. (Paras 15 and 16)

HELD:
In view of above analysis this Court holds that
for conducting investigation for the offence
committed outside the India by Indian citizen
under
Section
188
Cr.P.C.
there
is
no
requirement to seek consent of St. Government
under Section 6 of DSPE Act and only sanction
of Central Government is required. (para 16)

Reverting back to the present case, though it is
clear from above analysis that there is no
requirement for seeking consent of the St.
Government to conduct investigation under
Section 188 Cr.P.C. but the affidavit filed by the
Secretary,
Department
of
Personnel
and
Training,
Government
of
India
specifically
mentioned
that
the
consent
of
the
St.
Government is required and on the other hand it
was also mentioned in the aforesaid affidavit
that the St. Government has also conveyed its
consent for conducting investigation in the
present case to Ministry of External Affairs,
Government of India by letter dated 5.9.2023,
therefore, in substance St. of U.P. already
conveyed its consent to Government of India for
conducting the investigation by C.B.I. about the
death of daughter of the petitioner but the
C.B.I. as well as DoPT unnecessarily raising
technical issue and shifting burden on each
other instead of taking any fruitful action to
conduct the investigation for the death of
daughter of the petitioner in United St.s of
America. (Para 16)

Petition allowed. (E-13)

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Arun Kumar Singh Deshwal, J.)

1. Short counter affidavit filed today
by the Union of India is taken on record.

2. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri J.K. Pandey
and Ms. Nimisha Jain, learned counsel for
the petitioner, Sri Ratan Singh, learned
A.G.A. appearing for the State respondents,
Sri Gyan Prakash, learned Senior Counsel
assisted by Sri Sanjay Kumar Yadav,
learned counsel appearing for the Central
Bureau of Investigation (C.B.I.) and Sri
Manu Vardhana, learned counsel appearing
for the Union of India.

3. Fact giving rise to the present
petition is that the daughter of the petitioner
Anshu Maheshwari had married to Sumit
Binani on 27.11.2020. Thereafter, both of
them shifted to United States of America
(U.S.A.), where the daughter of the
petitioner died in a blast in the house at
Seattle U.S. and when the petitioner came
to know about the same she lodged a first
information report dated 28.9.2023 at
Police Station Medical College, District
Meerut, U.P. making allegations of dowry
death against the accused-Sumit Binani and
copy of this first information report was
sent
to
Ministry
of
Home
Affairs,
Government of India, New Delhi. The
petitioner also made a complaint to C.B.I.
on 2.6.2022 about the aforesaid incident.
Thereafter, on 15.10.2023 office of Senior
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent of Police, Meerut has
submitted a report to Inspector General of
Police,
Meerut
Zone,
Meerut
recommending the case to be investigated
by the C.B.I. as the offence has been
committed outside India and finally matter
was referred to C.B.I. by the police
authorities of U.P. When no action was
taken by the C.B.I. to conduct investigation
under Section 188 Cr.P.C. regarding death
of daughter of the petitioner, the petitioner
has approached this Court by filing present
petition with the following prayers:-

"a) Issue appropriate direction to
transfer investigation of the FIR no.
0383/2023 dated 28.09.2023 U/S 304-B
IPC at P.S. Medical College to CBI;

b) Issue any other orders or
directions as this Hon'ble Court may deem
fit, just and proper in the facts and
circumstances of the case."

4. On 21.8.2024 following order was
passed:-

"1. Heard Sri Anoop Trivedi,
learned Senior Advocate assisted by Sri
A.K. Pandey and Ms. Namisha Jain,
learned counsel for the petitioner, Sri
Kuldeep Singh Chauhan, learned A.G.A.
appearing for the State of U.P./respondent
no.1, Sri Gyan Prakash, learned Senior
Advocate along with Sri Sanjay Kumar
Yadav, learned counsel appearing for
Central Bureau of Investigation/respondent
no.2.

2. The present petition has been
filed
with
the
prayer
to
transfer
investigation of FIR No. 0383/2023 dated
28.9.2023
under
section
304-B
IPC
registered
at
Police
Station
Medical
College to Central Bureau of Investigation
(hereinafter referred to as 'CBI').

3. We have heard learned counsel
for the parties at length.

4. It is an admitted fact that death
of Anshu, daughter of the petitioner has
taken place in United States of America
(U.S.A.) within 15 months of her marriage.
It is pointed out that in view of the
provisions of section 188 Cr.P.C., the
investigation has to be conducted by CBI.

5. Attention was drawn towards
Annexure 16 to the petition to submit that
vide notification dated 27.5.2016 issued by
Govt. of India, Ministry of Personnel,
Public Grievances & Pensions (Department
of Personnel & Training), New Delhi to the
effect that investigation and prosecution of
offence
committed
outside
territorial
jurisdiction of India be investigated by CBI
being the nodal agency for the purposes of
sanction for prosecution under section 188
Cr.P.C. Attention was further drawn
towards Annexure 10 to the petition which
is a letter written by Senior Superintendent
of Police, Meerut to the Inspector General,
Meerut recommending the case to be
investigated by the CBI.

6. Attention was also drawn to
Annexure 12 to the petition which is a
letter dated 05.9.2023 written by Special
Secretary, Govt. of Uttar Pradesh to Deputy
Secretary, CPB Division, Ministry of
Foreign Affairs, Government of India to the
effect that recommendation has been made
that as the death has taken place in U.S.A.,
therefore, the matter may be investigated
by CBI and it was requested that necessary
action be taken as per rules.

7. Attention was further drawn to
Annexure 13 to the petition which is a
letter dated 08.11.2023 written by CBI to
the petitioner to the effect that until and
unless notification u/s 6 of DSPE Act, 1946
for transfer of the said FIR to CBI is issued
by State Govt. of Uttar Pradesh followed
by a notification u/s 5 of DSPE Act issued
9 All. Smt. Kalpana Maheshwari Vs. State of U.P. & Anr.
1427
in that regard by Govt. of India / DoPT.,
the matter cannot be investigated by CBI
and, therefore, she was advised to pursue
the matter with the Govt. of U.P. u/s 6 of
DSPE
Act,
1946
for
transfer
of
investigation of Meerut Police case to CBI.

8. By drawing attention to para 5
of the letter dated 01.2.2024 (annexed at
page 183 of the paper book) which states
"As such you are advised to either file a
writ
under
Article
226
of
Indian
Constitution in the Hon'ble Allahabad High
Court or under Article 32 of Indian
Constitution to Hon'ble Supreme Court of
India praying for direction to CBI for
taking up investigation of Meerut Police
case by CBI or request the Chief
Secretary/Principal Secretary, Home of the
Govt. of U.P. to issue notification u/s 6 of
DSPE Act, 1946 for transfer of Meerut
Police case to CBI and send the same to the
Secretary,
DoPT.
Based
on
that,
notification u/s 5 of DSPE Act, 1946 can be
issued by DoPT and thereafter CBI can
take over the case of Meerut Police" , it is
pointed out that the petitioner has been
advised either to file a petition under
Article 226 before this Court or under
Article 32 of Constitution of India before
Hon'ble the Supreme Court of India
praying for a direction to CBI for taking up
the investigation of Meerut Police case by
CBI or request the Chief Secretary /
Principal Secretary, Home of the Govt. of
U.P. to issue notification u/s 6 of DSPE
Act, 1946 for transfer of the case and send
the same to DoPT so that based on that,
notification u/s 5 of DSPE Act, 1946 can be
issued by DoPT and thereafter CBI can
take over the case of Meerut Police.
Submission,
therefore,
is
that
vide
notification dated 27.5.2016 (Annexure 16
to the petition), CBI itself has been
designated as the nodal agency to deal with
and obtain sanction for prosecution from
Ministry of Home Affairs (MHA) under
section 188 Cr.P.C.

9. Per contra, Sri Gyan Prakash,
learned Senior Counsel appearing for CBI
submits that formalities have to be
completed before the CBI takes over the
matter for investigation or direction can be
issued by this Court in the light of the
documents herein. He further submits that
for the purpose of doing the needful, the
Union of India through Ministry of Home
Affairs and Department of Personnel &
Training (DoPT) would be the necessary
parties so that their stand may also come on
record.

10. Prima facie, it appears that
CBI alone being the nodal authority is
saddled with the liability of obtaining
sanction for prosecution from the MHA u/s
188 Cr.P.C. as per notification dated
27.5.2016 (Annexure 16 to the petition),
however, no final observation is being
made in this regard.

11. However, in view of the
assertion made by the learned A.G.A. to
avoid any further complication or legal
impediment,
learned
counsel
for
the
petitioner is directed to implead Union of
India through Secretary, Ministry of Home
Affairs, North Block, New Delhi as well as
the Department of Personnel & Training
(DoPT). Sri Gyan Prakash, learned Senior
Counsel also represents Union of India and,
therefore,
the
petitioner
counsel
is
permitted to serve copy in respect of the
newly impleaded respondents to Sri Gyan
Prakash or in the office of the Additional
Solicitor General of India at the earliest.

12. In the facts and circumstance
of the case, it is provided that all the
respondents shall bring on record their
stand on the issue by filing short counter
affidavit within a period of two weeks.

13. Put up this case as fresh on
12.9.2024.
1428 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It is expected that in the short
counter affidavit, all the respondents shall
clarify their stand on the issue involve
herein."

5.

Subsequently,
on
12.9.2014
following order was passed:-

"Re: Impleadment Application

1. Heard counsel for the parties.

2. This impleadment application
is allowed.

3. Formal impleadment may be
carried out in the array of parties during the
course of the day.

Re: Writ Petition

1. Short counter affidavit filed by
the State is taken on record.

2. On the request of Sri Manu
Vardhan, learned counsel appearing for
Union of India, put up this case as fresh on
21.9.2024 on the assurance given by him
on behalf of Union of India as well as Sri
Gyan Prakash, learned Senior Counsel
assisted by Sri Sanjay Kumar Yadav
appearing for C.B.I. that the matter will be
sorted out between them by the next date
fixed and appropriate action will be taken.

3. It is made clear in case no
satisfactory response is received from
Union of India and C.B.I., this Court will
consider summoning the highest officer
concerned in person.

4.
Secretary,
Department
of
Personnel and Training is directed to file
personal affidavit mentioning therein the
action taken by the Department pursuant to
the letter issued by the Ministry of Home
Affairs
dated
28.2.2024
regarding
permission to investigate the matter under
section 188 Cr.P.C. He shall also apprise
the Court about the procedure for handing
over the investigation to C.B.I. under
section 188 Cr.P.C."

6. Pursuant to the aforesaid orders
short counter affidavit has been filed by the
Union of India.

7. Before proceeding further it would
be relevant to take note of Section 188
Cr.P.C., which is quoted as under:-

"188. Offence committed outside
India. When an offence is committed
outside India-

(a) by a citizen of India, whether
on the high seas or elsewhere; or

(b) by a person, not being such
citizen, on any ship or aircraft registered in
India, he may be dealt with in respect of
such offence as if it had been committed at
any place within India at which he may be
found:

Provided that, notwithstanding
anything in any of the preceding sections of
this Chapter, no such offence shall be
inquired into or tried in India except with
the previous sanction of the Central
Government."

8. Relevant paragraphs 7 (d), 7 (f), 7
(g), 10, 11 and 12 of the short counter
affidavit are also quoted as under:-

"7. ......

(d) That, various grievances of
Smt. Kalpana Maheshwari have been
received in this Department seeking for
transferring the investigation from Uttar
Pradesh to CBI and also complaining
against CBI for not lodging any FIR in this
regard. The grievances had been forwarded
to the Ministry of External Affairs and
Government of Uttar Pradesh vide letters
No.
245/228/2023-AVD-II
dated
18.01.2024, 27.12.2023 and vide OM of
even
number
dated
14.11.2023
on
following grounds:
9 All. Smt. Kalpana Maheshwari Vs. State of U.P. & Anr.
1429

(i) As per the provisions of the
Delhi Special Police Establishment (DSPE)
Act, 1946, prior consent of the State
Government concerned under Section 6 of
the DSPE Act through a Notification is prerequisite for consideration for entrusting
any case to CBI for investigation and the
same is being annexed herewith and
marked as Annexure No. C.A.1 to this
counter affidavit.

(ii) That, the State Government of
Uttar Pradesh vide their letter dated
23.02.2024 has forwarded a reply to this
Department that in the questioned matter,
the State Government has taken action on
the various grievance petitions. The State
Government has enclosed a copy of letter
dated 12.02.2024, whereby they have
disposed of the grievance and the same is
being annexed herewith and marked as
Annexure No. C.A.2 to this counter
affidavit.

(f) That, no such consent under
section 6 of DSPE Act, 1946 for transfer of
FIR No. 0383/2023 dated 28.09.2023
registered u/s. 304B of I.P.C., Police
Station Medical College, District-Meerut to
CBI has been received from the State
Government in this Department.

(g)
That,
at
present,
consideration/pending no such proposal is
under in this Department for transferring of
investigation of FIR No. 0383/2023 dated
28.09.2023 registered u/s. 304B of I.P.C.,
Police Station Medical College, DistrictMeerut to CBI.

10. That, CBI in its letter dated
01.02.2024 (signed on 31.01.2024) has
inter-alia apprised the applicant about the
procedure
for
handing
over
the
investigation of a case of offences taken
abroad u/s. 188 Cr.P.C. as under:

"3. As per the provisions u/s 188
Cr.P.C. and section 4 of I.P.C. "if an
offence is committed outside India by a
citizen of India or by any person on any
ship or aircraft registered in India, the said
offence can be investigation/inquired into
or tried in India with the sanction of the
Central Government. CBI has been notified
by MHA, Government of India as the nodal
authority under these sections. As such, had
no F.I.R. been registered at Meerut Police,
CBI could have investigated/inquired into
the matter of the unnatural death of your
daughter in USA."

11.
That,
CBI
has
been
designated as nodal authority to deal with
and obtain sanction for prosecution from
Ministry of Home Affairs under section
188 of Cr.P.C.

12. That, in the absence of
consent under section 6 of DSPE Act, 1946
for transfer of FIR No. 0383/2023 dated
28.09.2023 registered u/s 304B of I.P.C.,
Police Station Medical College, DistrictMeerut to CBI this Department has no role
in the instant matter at this stage."

9. We have gone through the affidavit
carefully.

10. From perusal of the affidavit filed
by the Secretary, Department of Personnel
and Training, Government of India, New
Delhi it appears that the guideline for
conducting investigation under Section 188
Cr.P.C. has been mentioned. For initiating
investigation under Section 188 Cr.P.C.
consent of State Government is prerequisite for consideration to entrust any
case to C.B.I. for investigation. It is further
mentioned that after receiving of consent of
the State Government as required under
Section
6
of
Delhi
Special
Police
Establishment
Act,
1946
(hereinafter
referred to as DSPE Act) C.B.I. being the
Nodal Agency will get sanction from the
Department of Personnel and Training,
Government of India (hereinafter referred
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
to as DoPT) only then C.B.I. can conduct
investigation.

11. However, from perusal of Section
188 Cr.P.C. it is clear that if any offence is
committed by the citizen of India outside
India then investigation can be inquired or
tried in India after getting previous sanction
of the Central Government.

12. From perusal of the Government
notification dated 27.5.2016 issued by the
Ministry
of
Personnel
and
Public
Grievance and Pensions (Department of
Personnel and Training), New Delhi, it is
explicit that C.B.I. was designated as
Nodal Agency to deal with and obtain
sanction
for
prosecution
from
the
Ministry of Home Affairs, therefore, it is
clear that in case any offence is
committed outside India then only C.B.I.
can investigate and the State Government
has no role in such cases.

13. As per Section 6 of DSPE Act
consent of State Government is required for
investigation in any area of the State
Government but if the investigation is to be
conducted for the offence committed
outside India by the Indian citizen then
there is no requirement of seeking consent
of
State
Government.
The
Central
Government may by order under Section 5
of DSPE Act extend the jurisdiction of
C.B.I. to any area in a State but in the case
of
investigation
outside
the
country,
Central Government does not pass any
order under Section 5 of DSPE Act to
extend the jurisdiction of C.B.I. to any area
in a State. Section 5 and 6 of DSPE Act are
quoted as under:-

"5. Extension of powers and
jurisdiction
of
special
police
establishment to other areas.-

(1) The Central Government may
by order extend to any area (including
Railway areas) in a State, not being a
Union territory, the powers and jurisdiction
of members of the Delhi Special Police
Establishment for the investigation of any
offences or classes of offences specified in
a notification under section 3.

(2) When by an order under subsection (1) the powers and jurisdiction of
members of the said police establishment
are extended to any such area, a member
thereof may, subject to any orders which
the Central Government may make in this
behalf, discharge the functions of a police
officer in that area and shall, while so
discharging such functions, be deemed to
be a member of the police force of that area
and be vested with the powers, functions
and privileges and be subject to the
liabilities of a police officer belonging to
that police force.

3) Where any such order under
sub-section (1) is made relation to any area,
then, without prejudice to the provisions of
sub-section (2), any member of the Delhi
Special Police Establishment of or above
the rank of Sub-Inspector may, subject to
any orders which the Central Government
may make in this behalf, exercise the
powers of the officer in charge of a police
station in that area and when so exercising
such powers, shall be deemed to be an
officer in charge of a police station
discharging the functions of such an officer
within the limits of his station.

6. Consent of State Government
to exercise of powers and jurisdiction.-
Nothing contained in section 5 shall be
deemed to enable any member of the Delhi
Special Police Establishment to exercise
powers and jurisdiction in any area in 3[a
State, not being a Union territory or railway
area],
without
the
consent
of
the
Government of that State."
9 All. Smt. Kalpana Maheshwari Vs. State of U.P. & Anr.
1431

14. A circular dated 11.5.2017 issued
by the C.B.I., which was produced by
learned counsel for the petitioner before
this Court, itself shows that C.B.I. in
pursuance
of
the
notification
dated
27.5.2016 of the Central Government has
issued the circular and this circular
specifically mentioned that the C.B.I. has
been designated as Nodal Agency to deal
with and obtain sanction for prosecution
from Ministry of Home Affairs under
Section 188 Cr.P.C., therefore, it is the
C.B.I., which has to initiate the proceeding
for obtaining sanction for the prosecution
from Ministry of Home Affairs for
conducting investigation regarding offence
mentioned under Section 188 Cr.P.C. The
circular no. 03 of 2017 dated 11.5.2017 is
reproduced as under:-

"No. 21/47/2016-PD//28
CENTRAL BUREAU OF
INVESTIGATION
POLICY DIVISION, ROOM NO. 27,
NORTH BLOCK,
NEW DELHI.
Dated 11 May, 2017
CIRCULAR NO. 03 2017

Sub: Guidelines for Investigation
and
Prosecution of
fugitives
(Indian
Nationals) by CBI for the offences
committed outside India, referred by
Central Government from time to time.

In
exercise
of
the
powers
conferred by Section 3 of DSPE Act, the
Central
Government
has
issued
a
Notification dated 27.05.2016 empowering
and extending tha jurisdiction of members
of Delhi Spacial Police Establishment U/s 5
of DSPE Act to investigate and prosecute
the offences as described U/s 4 of the IPC,
i.e.
the
offences
committed
outside
territorial jurisdiction of India, as referred
by Central Government from time to time,
CBI has also been designated as Nodal
authority to deal with and obtain sanction
for prosecution from MHA U/s 188 of the
Cr.P.C.

2. in order to effectively deal with
these referred cases from Ministry of
Externel Alisirs, the following SOP has
been drawn for compliance by the IPCC
and concernied Zones/Branches of CBI.

(i) On receipt of case file at IPCC
Branch, the case file would be scrutinized
by the Nodal Officer, not below the rank of
Inspector of Police, to the effect that the
file is complete in all respects, especially
the documents mentioned in the covering
letter received from MEA. If the file is
Incomplete he will get the same completed
from the concerned Branch of MEA.

(ii) After completion of Initial
scrutiny of the case file and documents, the
concerned Nodal Officer shall prepare his
comments mentioning the category or class
of offence it belongs. The purpose would
be to ascertain the Branch or Zone the file
should be marked for further proceedings.

(iii) The concerned Nodal Officer
will then put up the file alongwith his
comments to the AD/IPCU who shall put
up
detailed
comments
Including
the
proposal relating to the Zone/Branch to
which the case may be referred to
according to the classification as mentioned
in Para 4 of the present Guidelines.

(iv) On receipt of the file, the
DD(CO) may obtain the legal opinion, if it
is expedient in the interest of the case, from
Additional Legal Advisor or any other Law
Officer, and after preparing his comments,
DD(CO) may submit his recommendation
for perusal/approval of JD(TFC) and
DCBI.

(v) After approval, the case
shall either be referred to the Zone as
approved by the DCBI or it shall be sent
back to the MEA, clearly mentioning the
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
non-cognizable nature of the offence and/or
any other relevant reason.

(vi) The Head of Zone (HoZ) to
whom the case has been referred shall
transmit the same to their Branches with
appropriate directions.

3. In addition to the established
monitoring mechanism within the Zone as,
envisaged in the Crime Manual, the
concerned branch shall submit an issuebased and quarterly progress report to the
DD(CO), JD(TFC) and the DCBI. The
progress may also be communicated to the
MEA, on quarterly basis or at the
frequency as decided by JD(TFC).

4. Classification of cases to be
referred to concerned Zone:-
a)
Cases pertaining to large scale
banking frauds
BSF Zone
b)

Cases pertaining to Cheating,
Criminal
misappropriation,
Breach of Trust, Embezzlement
of gold, Cybercrime and any
other
frauds
involving
Economic offences
EO Zone

c)
Cases pertaining to murder,
rape, kidnapping etc. affecting
the human body.
Special
Crime
Zone

5. Cases not belonging to any of
the above category, may be referred to
JD(TFC). who will then decide the Zone
wherein the case may be sent.

6. In view of the above, It is
requested that all HOBs should sensitize all
the Investigating Officers of the Branch
about
these
instructions
for
strict
compliance.

This issues with the approval of
DCBI.

(S.Balasubramony)
Asst. Inspr. General of Police (P)
CBI/New Delhi,

Copy to-

1. The Additional Director (RA)
& the Additional Director (YCM), CBI,
New Delhi

2. Director of Prosecution, CBI

3. All Heads of Zones, CBI

4. All DisG Range, CBI

5.
All
Heads
of
Branches
Including DIG(Trg.) & DD(IPCU), CBI

6. OSD to DCBI

7. Sr. PS to DCBI

8. Guard file of Policy Division."

15. In view of above analysis this
Court
holds
that
for
conducting
investigation for the offence committed
outside the India by Indian citizen under
Section
188
Cr.P.C.
there
is
no
requirement to seek consent of State
Government under Section 6 of DSPE
Act and only sanction of Central
Government is required.

16. Reverting back to the present
case, though it is clear from above analysis
that there is no requirement for seeking
consent of the State Government to conduct
investigation under Section 188 Cr.P.C. but
the affidavit filed by the Secretary,
Department of Personnel and Training,
Government
of
India
specifically
mentioned that the consent of the State
Government is required and on the other
hand it was also mentioned in the aforesaid
affidavit that the State Government has also
conveyed its consent for conducting
investigation in the present case to Ministry
of External Affairs, Government of India
by letter dated 5.9.2023, therefore, in
substance State of U.P. already conveyed
its consent to Government of India for
conducting the investigation by C.B.I.
about the death of daughter of the petitioner
but
the
C.B.I.
as
well
as
DoPT
unnecessarily raising technical issue and
shifting burden on each other instead of
9 All. Devendra Tripathi & Anr. Vs. State of U.P. & Ors.
1433
taking any fruitful action to conduct the
investigation for the death of daughter of
the petitioner in United States of America.

17. By our earlier order dated
12.9.2024 statement made by learned
counsel for the Union of India and C.B.I.
was noted and in paragraph 2 of the order it
was observed that the matter will be sorted
out between them by the next date and
appropriate action will be taken.

18. We find that by filing short
counter affidavit again Union of India and
other
respondents
are
shirking
their
responsibilities and are doing nothing.

19.

In view
of
the
peculiar
circumstances,
this
Court
direct
the
respondent
no.
2-Central
Bureau
of
Investigation, New Delhi and respondent
no. 3-Secretary, Ministry of Home Affairs,
North Block, New Delhi to conduct the
investigation regarding death of daughter of
the
petitioner
(first
informant)
by
completing necessary formalities within a
period of 15 days from the date of
production of a certified copy of this order
before them.

20. With the aforesaid observations,
present petition stands allowed.
----------
(2024) 9 ILRA 1433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Misc. Writ Petition No. 15393 of 2024

Devendra Tripathi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ramesh Kumar Singh

Counsel for the Respondents:
Jitendra Kumar Shukla, G.A.

Criminal Law - Constitution of India,1950
- Article 226 -prayer seeking appointment
of another agency-fair investigation-FIR
registered under Sections 452, 376, 313,
506, 323, 427 IPC- alleging bias due to
ongoing civil disputes with the informant-
accused individuals cannot demand a
change in the investigating agency- unless
there is clear evidence of malafide actions
by the current investigators- petitioners
failed
to
demonstrate
such
malafide
intent-petition dismissed. (Paras 8 and 9)
HELD:
With above observations, the Hon'ble Apex
Court concluded that "In view of the above, it is
clear that the consistent view of this Court is
that the accused cannot ask for changing the
Investigating Agency or to do investigation in a
particular manner including for Court monitored
investigation. However, Hon'ble Apex Court
while placing reliance on an earlier judgement in
In Narmada Bai v St. of Gujarat,22 the
petitioner filed a writ 22 (2011) 5 SCC 79,
observed that "this case supports my view that
in the interest of justice, and particularly when
there
are
serious
doubts
regarding
the
investigation being carried out, it is not only
permissible, but our constitutional duty to
ensure that the investigation is carried out by a
special
investigation
team
or
a
special
investigative agency so that justice is not
compromised. (Para 8)

In present case, the main contention raised on
behalf of the petitioners is that they have been
roped in by the informant in present criminal
case with a view to exert pressure in a civil suit
filed at the instance of petitioner No.1 for
avoidance of a sale deed propounded by
respondent No.4, the informant with regard to
disputed land on which petitioners claimed their
title and possession. Only, on this count, it
cannot be discerned that the case lodged at the