# ANANT THANUR KARMUSE v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2023] 3 S.C.R. 56
- **Court:** Supreme Court of India
- **Decided:** 2023-02-24
- **Case number:** Criminal Appeal No.13 of 2023
- **Bench:** M. R. Shah, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anant-thanur-karmuse-v-the-state-of-maharashtra-ors-36915
- **Pages:** 23

## Headnote

Code of Criminal Procedure, 1973 - s.173(8) -Further
Investigation - Transfer of Investigation to CBI -Appellant shared
a viral picture of then Cabinet Minister on facebook-As per him,
appellant was forcibly took from his residence by police officers
and beaten up and threatened by the police - FIR lodged by
appellant, however, name of the Cabinet Minister not named in FIR
- Writ Petition was filed in the High Court seeking transfer of
investigation to CBI or to any other agency-During the pendency
of the writ petition, the trial Court framed the charges against the
accused on the basis of the chargesheets filed -The High Court
refused to transfer the investigation -High Court while dismissing
the petition observed that once the charges have been framed by
the Magistrate/Trial Court and therefore, it can be said that the
trial has begun and therefore, thereafter, re- investigation/further
investigation is not permissible- On appeal, held : Investigation
may be transferred to the CBI only in "rare and exceptional cases"
-High Court has not committed any error in refusing to transfer the
investigation to CBI -The real investigation started only after the
intervention of the High Court and after passing various orders in
the present proceedings by the High Court - Even according to the
State investigating agency, still the further investigation is required
on certain aspects - The victim has a fundamental right of fair
investigation and fair trial -Therefore, mere filing of the chargesheet
and framing of the charges cannot be an impediment in ordering
further investigation / re-investigation / de novo investigation, if
the facts so warrant - No proper investigation by the State
investigating agency at the relevant time and even the material
evidences were also not collected - High Court has committed a
very serious error in not ordering and/or permitting the State police
agency to further investigate into the FIR.
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Partly allowing the appeal, the Court
HELD :1.Bearing in mind the position of law, in the facts,
and circumstances of the case, this Court is of the opinion that
the High Court has not committed any error in refusing to transfer
the investigation to CBI. Even the appellant has not vehemently
pressed such a prayer. The Court is in complete agreement with
the view taken by the High Court insofar as refusing to transfer
the investigation to CBI is concerned. Applying the law laid down
by this Court in the case of Dharam Pal and Bharati Tamang and
to do the complete justice and in furtherance of fair investigation
and fair trial, the constitutional courts may order further
investigation / re-investigation / de novo investigation even after
the charge sheet is filed and the charges are framed.[Paras 7.4
and 11][70-E-F; 75-D]
3. It is required to be noted that in the present case, the
allegations in the FIR, right from very beginning, were against
the accused No. 13, who at the relevant time was the sitting
Cabinet Minister occupying the high position. Even at the
relevant time, when the State Police investigated the FIR bearing
No. 120 of 2020, in the first chargesheet and the second
chargesheet did not name the accused No. 13. Even the
investigation was also conducted in a perfunctory manner. The
real investigation started only after the intervention of the High
Court and after passing various orders in the present proceedings
by the High Court. The allegations in the FIR were very serious
including the misuse of powers by the sitting Cabinet Minister
and of abducting, kidnapping and beating the complainant.[Para
12.1][75-G-H; 76-A-B]
4. Be that as it may,even according to the State investigating
agency, the further investigation is required. As observed and
held by this Court in its various decisions, the victim has a
fundamental right of fair investigation and fair trial. Therefore,
mere filing of the chargesheet and framing of the charges cannot
be an impediment in ordering further investigation / rei

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 [2023] 3 S.C.R. 56
56
ANANT THANUR KARMUSE
v.
THE STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No.13 of 2023)
FEBRUARY 24, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Code of Criminal Procedure, 1973 - s.173(8) -Further
Investigation - Transfer of Investigation to CBI -Appellant shared
a viral picture of then Cabinet Minister on facebook-As per him,
appellant was forcibly took from his residence by police officers
and beaten up and threatened by the police - FIR lodged by
appellant, however, name of the Cabinet Minister not named in FIR
- Writ Petition was filed in the High Court seeking transfer of
investigation to CBI or to any other agency-During the pendency
of the writ petition, the trial Court framed the charges against the
accused on the basis of the chargesheets filed -The High Court
refused to transfer the investigation -High Court while dismissing
the petition observed that once the charges have been framed by
the Magistrate/Trial Court and therefore, it can be said that the
trial has begun and therefore, thereafter, re- investigation/further
investigation is not permissible- On appeal, held : Investigation
may be transferred to the CBI only in "rare and exceptional cases"
-High Court has not committed any error in refusing to transfer the
investigation to CBI -The real investigation started only after the
intervention of the High Court and after passing various orders in
the present proceedings by the High Court - Even according to the
State investigating agency, still the further investigation is required
on certain aspects - The victim has a fundamental right of fair
investigation and fair trial -Therefore, mere filing of the chargesheet
and framing of the charges cannot be an impediment in ordering
further investigation / re-investigation / de novo investigation, if
the facts so warrant - No proper investigation by the State
investigating agency at the relevant time and even the material
evidences were also not collected - High Court has committed a
very serious error in not ordering and/or permitting the State police
agency to further investigate into the FIR.
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Partly allowing the appeal, the Court
HELD :1.Bearing in mind the position of law, in the facts,
and circumstances of the case, this Court is of the opinion that
the High Court has not committed any error in refusing to transfer
the investigation to CBI. Even the appellant has not vehemently
pressed such a prayer. The Court is in complete agreement with
the view taken by the High Court insofar as refusing to transfer
the investigation to CBI is concerned. Applying the law laid down
by this Court in the case of Dharam Pal and Bharati Tamang and
to do the complete justice and in furtherance of fair investigation
and fair trial, the constitutional courts may order further
investigation / re-investigation / de novo investigation even after
the charge sheet is filed and the charges are framed.[Paras 7.4
and 11][70-E-F; 75-D]
3. It is required to be noted that in the present case, the
allegations in the FIR, right from very beginning, were against
the accused No. 13, who at the relevant time was the sitting
Cabinet Minister occupying the high position. Even at the
relevant time, when the State Police investigated the FIR bearing
No. 120 of 2020, in the first chargesheet and the second
chargesheet did not name the accused No. 13. Even the
investigation was also conducted in a perfunctory manner. The
real investigation started only after the intervention of the High
Court and after passing various orders in the present proceedings
by the High Court. The allegations in the FIR were very serious
including the misuse of powers by the sitting Cabinet Minister
and of abducting, kidnapping and beating the complainant.[Para
12.1][75-G-H; 76-A-B]
4. Be that as it may,even according to the State investigating
agency, the further investigation is required. As observed and
held by this Court in its various decisions, the victim has a
fundamental right of fair investigation and fair trial. Therefore,
mere filing of the chargesheet and framing of the charges cannot
be an impediment in ordering further investigation / reinvestigation / de novo investigation, if the facts so warrant. [Para
12.3][77-B]
5. The endeavour of the Court should be to have the fair
investigation and fair trial only. Therefore, in the facts and
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circumstances of the case narrated hereinabove, this Court is of
the opinion that a case is made out for further investigation and
the State agency may be permitted to conduct a further
investigation and to bring on record the further material, which
may be in the furtherance of fair investigation and fair trial. The
High Court has committed a very serious error in not ordering
and/or permitting the State police agency to further investigate
into the FIR bearing Nos. 119 and 120 of 2020. The High Court
has not considered the relevant aspects narrated hereinabove
and therefore interference of this Court is warranted. [Para 13][77E-G]
Himanshu Kumar and Ors. Vs. State of Chhattisgarh
and Ors., 2022 SCC Online SC 884; Bharati Tamang
Vs. Union of India and Ors., (2013) 15 SCC 578:[2013]
14 SCR 525; Dharam Pal Vs. State of Haryana and
Ors., (2016) 4 SCC 160 : [2016] 1 SCR 194 - relied
on.
Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 :
[2010] 10 SCR 651; Ram Jethmalani Vs. Union of India
(2011) 8 SCC 1 : [2011] 8 SCR 725; Vinubhai Haribhai
Malviya and Ors. Vs. State of Gujarat and Anr., (2019)
17 SCC 1 : [2019] 15 SCR 936; Rama Chaudhary Vs.
State of Bihar, (2009) 6 SCC 346 : [2009] 5 SCR 482referred to.
Case Law Reference
[2013] 14 SCR 525
relied on
Para 8.1,11
[2010] 10 SCR 651
referred to
Para 8.1
[2011] 8 SCR 725
referred to
Para 8.1
[2016] 1 SCR 194
relied on
Para 3.4, 8.2,11
[2019] 15 SCR 936
referred to
Para 5.6, 9
[2009] 5 SCR 482
referred to
Para 5.7, 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.13 of 2023.
From the Judgment and Order dated 26.04.2022 of the High Court
of Judicature at Bombay in WP No.411 of 2021.
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Mahesh Jhethmalani, Siddharth Dave, Sr. Advs., Chirag Shah,
Utsav Trivedi, Anirudh Ganu, Ms. Manini Roy, Himanshu Sachdeva,
Ms. Shivani Bhushan, Piyush Tiwari, Ms. Kanjani Sharma, Prastut Dalvi,
Ms. Mugdha Pande, Ms. Astha Prasad, Advs. for the Appellant.
Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Dr. Abhishek Manu
Singhvi, Shekhar Naphade, Sr. Advs., Ms. Diksha Rai, Tushar Sonawane,
Ms. Ragini Pandey, Ms. Atiga Singh, Rahul Chitnis, Siddharth
Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Ms. Kirti
Dadheech, Rajat Nair, Pratyush Srivastava, Madhav Sinhal, A K Sharma,
Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Bombay dated
26.04.2022 passed in Writ Petition No. 411 of 2021 by which the High
Court has dismissed the said writ petition preferred by the appellant
herein - the victim seeking transfer of the investigation to Central Bureau
of Investigation or to any other agency to investigate / re-investigate the
FIR Nos. 119 of 2020 and 120 of 2020 registered at Vartak Nagar Police
Station, Thane, the original writ petitioner - the victim has preferred the
present appeal.
2. The facts leading to the present appeal and as per the case on
behalf of the appellant in nutshell are as under:-
2.1 That the appellant is a Civil Engineer, working as a consultant,
shared on his Facebook account on 05.04.2020, a viral picture of one
Mr. Jitendra Awhad, the then sitting Cabinet Minister of the State of
Maharashtra (who is subsequently arrayed as accused No. 13 after the
High Court intervened), criticizing his act of ridiculing the Hon'ble Prime
Minister of India. According to the appellant, at around 11.50 pm at night
on 05.04.2020, four Policemen, two dressed in Civilian Dress and other
two in uniform came to his residence and forcibly took him to the
Bungalow of the said Minister. According to the appellant, thereafter,
the Minister instructed his men to beat him and make him apologies for
circulating the said viral picture of the Minister. The Minister threatened
him to delete the post immediately. Thereafter, an ally of the Minister
called the appellant on his number as he left his phone in his house and
told his wife to delete the controversial post. According to the appellant,
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he was mercilessly and ruthlessly beaten up by the police personnel
present at the premises of the Minister.
2.2 That the appellant went to the Police Station and he got the
information that an FIR bearing No. 119 of 2020 under Section 292 of
the Indian Penal Code (IPC) and Section 66(E) of the Information and
Technology Act has been registered against him by the Police on the
complaint of one Mr. Hitesh Wani, accused No. 3 in the present case
and close ally of the Minister with sole purpose to threaten him if in case
he decides to file a complaint about the said incident. It is the case on
behalf of the appellant that thereafter the appellant without fear narrated
the entire incident along with the specific allegations against the Minister
and the other police officials and registered a complaint against the
Minister and his men. However, the names of the Minister, against whom
the specific allegations were made and his men were not mentioned in
the FIR bearing No. 120 of 2020 dated 06.04.2020 for the offences
under Sections 365, 143, 144, 147, 149, 324 and 506(2) in the Vartak
Nagar Police Station, Thane. It is the case on behalf of the appellant
that the concerned Minister was not named in the FIR as he was the
sitting Cabinet Minister in the government of the State.
2.3 That thereafter apprehending and alleging the bias and alleging
that the entire investigation has been conducted in sham and casual
manner, and nothing significant was done by the Police, the appellant
approached the High Court by way of present writ petition praying for
transfer of the investigation of the aforesaid FIRs to the Central Bureau
of Investigation (CBI), Mumbai or any other agency.
It appears that thereafter various interim orders came to be passed
by the High Court in the writ petition and the investigating agency of the
State was compelled to carry out the investigation. The Police filed the
chargesheet initially without naming the concerned Minister namely, Mr.
Jitendra Awhad as accused. However, thereafter and during the pendency
of the writ petition before the High Court and in view of the constant
monitoring of the investigation by the High Court, the Minister Mr. Jitendra
Awhad was added as accused two years after the said incident. That
thereafter during the pendency of the writ petition, the learned Trial
Court framed the charges against the accused on the basis of the
chargesheets already filed, which according to the appellant was for the
lesser offences than the actually committed, like, Kidnapping, abducting
and causing grievous hurt. That thereafter by the impugned judgment
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and order, the High Court has dismissed the said writ petition seeking
transfer of the investigation to the CBI and/or any other agency by
observing that after the investigation, the chargesheet is filed and the
High Court prima facie opined that by filing the chargesheet /
supplementary chargesheet, the investigating agency has conducted the
investigation from all angles and after considering the medical report
and even after collecting the CRD of the Mobile Phone and that once
the charges have been framed by the Magistrate / Trial Court and
therefore, it can be said that the trial has begun and therefore, thereafter,
re- investigation/further investigation is not permissible. By the impugned
judgment and order, the High Court has dismissed the said writ petition.
2.4 Feeling aggrieved and dissatisfied with the impugned judgment
and order, the original writ petitioner - the victim has preferred the present
appeal.
3. Shri Mahesh Jethmalani, learned senior counsel appearing on
behalf of the appellant has vehemently submitted that the entire
investigation was conducted by the investigating agency of the State in a
sham and casual manner because one of the accused was the influential
Minister of the State.
3.1 It is submitted that despite the fact that the name of Mr. Jitendra
Awhad, Minister and his other men were disclosed in the FIR and a
clear case of kidnapping and causing grievous hurt was alleged, no FIR
was lodged against the Minister, Mr. Jitendra Awhad and his other men.
It is submitted that only after various orders were passed by the High
Court in the pending writ petition and the Hon'ble High Court was
monitoring the investigation, chargesheet / supplementary chargesheet
came to be filed and Mr. Jitendra Awhad was arrayed as an accused in
the supplementary chargesheet after a period of two years of the incident.
3.2 It is further submitted that even the chargesheet is filed with
the lesser offences, like for the offences under Sections 324 and 365
and other lesser offences only. It is submitted that despite a clear case is
made out for the offence under Section 326 (grievous hurt), which is
established from the photographs and a clear case of kidnapping for the
offence under Section 367, the chargesheet has not been filed for the
offences under Section 326 read with Section 367 IPC.
3.3 It is further submitted that even the relevant evidence in the
form of CDR of the mobile of the appellant as well as that of the
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concerned accused have not been collected. It is submitted that even
the CCTV footage has also not been collected, which goes to the root of
the investigation and the allegations against the accused persons.
3.4 It is further submitted that as observed and held by this Court
in the case of Dharam Pal Vs. State of Haryana and Ors., (2016) 4
SCC 160 (para 25), the Constitutional Courts are envisaged with the
power to order fresh, de novo or re-investigation and as observed and
held the commencement of a trial and examination of some witnesses
cannot be an absolute impediment for exercising the said constitutional
power, which is meant to ensure a fair and just investigation.
3.5 It is further submitted by Shri Jethmalani, learned senior
counsel appearing on behalf of the appellant that as observed and held
by this Court in the case of Bharati Tamang Vs. Union of India and
Ors., (2013) 15 SCC 578, in case of deficient / unsatisfactory
investigation, it is the duty of the Courts to ensure effective conduct of
prosecution and the Courts have powers to direct re-investigation in
exceptional circumstances in case it warrants due to deficient /
unsatisfactory investigation.
3.6 It is submitted that as observed and held in the said decision if
deficiency in investigation or prosecution is visible or can be perceived
by lifting the veil which try to hide the realities or covering the obvious
deficiency, Courts have to deal with the same with an iron hand
appropriately within the framework of law. It is submitted that it is further
observed that it is the duty of the Court to ensure that full and material
facts are brought on record so that there might not be miscarriage of
justice. He has relied upon the observations made by this Court in
paragraph 41 of the said decision.
3.7 It is further submitted by Shri Jethmalani, learned senior
counsel appearing on behalf of the appellant that even the State has now
in the counter affidavit specifically admitted that some further
investigation is necessary/required on certain relevant and material
aspects, in the interest of justice under Section 173(8) Cr.P.C. It is
submitted that now the State has specifically admitted the lapse in the
investigation on certain material aspects and according to the State now,
further investigation is needed on the relevant aspects mentioned in
paragraph 4 of the counter affidavit before this Court. It is submitted
that therefore also now the State / investigating agency of the State may
be permitted to conduct the further investigation in exercise of the
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constitutional powers to do the complete justice to the victim in
furtherance of the administration of criminal justice.
4. Shri Tushar Mehta, learned Solicitor General appearing on
behalf of the State has pointed out certain lapses / lacunae in the
investigation earlier conducted by the State / investigating agency and
highlighted the lacunae from paragraph 4 of the counter affidavit and
has fairly conceded and even so stated in the counter affidavit that a
further investigation in exercise of powers under Section 173(8) Cr.P.C.
is needed / required.
5. Shri Shekhar Naphade and Dr. Abhishek Manu Singhvi, learned
Senior Advocates have appeared on behalf of the respondent Nos. 3
and 5 and opposed the present appeal.
5.1 It is vehemently submitted by the learned senior counsel
appearing on behalf of the respective contesting respondent Nos. 3 and
5 that as such no case is made out for transfer of the investigation to the
CBI, more particularly, when, now, not only the investigation is concluded
and the chargesheets have been filed but even thereafter the charges
have also been framed by the Trial Court. It is submitted that therefore
on framing of the charges, it can be said that the trial has begun and
therefore, the case may not be transferred to the CBI as prayed.
5.2 It is further submitted that even otherwise the allegation of
grievous injuries is raised for the first time. It is submitted that as such
the allegation of grievous injuries alleged to have been caused to the
appellant has not been supported by any record or document. It is
submitted that the appellant never alleged that he suffered a fracture
due to injuries caused upon him.
5.3 It is submitted that the FIR registered by the appellant on
06.04.2020 is completely silent about the injuries being grievous and any
fracture being caused. It is submitted that the chargesheet filed by the
Police also states that the appellant was examined at Shivaji Hospital
and the medical report was received intimating that the injuries caused
are simple in nature. It is submitted that even the additional statement
given by the appellant to the Police on 10.04.2020 is also silent on the
aspect of any fracture being caused or the injuries being grievous in
nature.
5.4 It is further submitted that even the Hon'ble High Court in
paras 16, 17 and 20 has categorically noted the fact that the appellant
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failed to produce any medical certificate or document evidencing any
fracture or injuries being grievous in nature and ruled that the injuries
are simple in nature, which is evident from the medical report filed with
the charge sheet. It is submitted that, therefore, there is no substance in
the allegation that there are any lacunae on the part of the investing
agency in indicating a higher offence of grievous hurt / injuries.
5.5 It is further submitted that even so far as the recovery of
CCTV footage is concerned, the same has already been recovered,
ceased and in the custody of the learned Magistrate.
5.6 It is vehemently submitted by the learned senior counsel
appearing on behalf of the respective private respondent Nos. 3 and 5 -
original accused that once the chargesheet has been filed, charges are
framed and the trial has commenced, further investigation cannot be
permitted. It is submitted that in the present case, the first chargesheet
has been filed on 07.12.2020 and thereafter supplementary chargesheets
have been filed on 28.7.2021 and 14.10.2021 in FIR No. 120/2020. It is
submitted that even the chargesheet in FIR No. 119/2020 has also been
submitted to the concerned Magistrate on 13.09.2022. It is submitted
that in the present case, the charges have been framed by the concerned
Court in FIR No. 120/2020 against the accused Nos. 1 to 12 on 20.08.2021
and on 28.11.2022 against accused No. 13 and, thus, the trial has
commenced. It is submitted that since the investigation is complete,
chargesheets have been filed and charges have been framed, seeking
re-investigation by the appellant is wholly impermissible under the law.
It is submitted that upon framing of charges, the operation of Section
173(8) ceases to operate since the trial has commenced as observed
and held by this Court in Vinubhai Haribhai Malviya and Ors. Vs.
State of Gujarat and Anr., (2019) 17 SCC 1 (para 42).
5.7 It is submitted that even as observed and held by this Court in
the case of Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346
that from a plain reading of sub-section (2) and sub-section (8) of Section
173, it is evident that even after submission of Police report under subsection (2) on completion of investigation, the Police has a right to
"further" investigation under sub-section (8) of Section 173 but not "fresh
investigation" or "re-investigation".
5.8 It is further submitted that so far as the prayer of the appellant
to transfer the investigation to CBI is concerned, as observed and held
by this Court in catena of decisions, transfer of investigation to C.B.I. is
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to be done only in rarest of rare cases. Reliance is placed upon the
decision of this Court in the case of Himanshu Kumar and Ors. Vs.
State of Chhattisgarh and Ors., 2022 SCC Online SC 884 (para 44
onwards). It is submitted that as observed and held by this Court in the
case of State of West Bengal and Ors. Vs. Committee for Protection
of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571,
the power to transfer investigation must be exercised sparingly, cautiously
and in exceptional situations. It is submitted that in the present case as
on the basis of the chargesheet, the Trial Court has framed the charges,
no exceptional case is made out to transfer the investigation to the C.B.I.
now.
5.9 Now, so far as the change in its stand by the State, now, so
taken in the counter affidavit filed before this Hon'ble Court is concerned,
it is submitted that as such before the Hon'ble High Court, the State had
defended the investigation throughout. It is submitted that just because
the political dispensation in the State has changed, now, the State has
filed an affidavit before this Hon'ble Court seeking further investigation
in the matter without any substantial evidence and as such the same is
impermissible in law. It is submitted that this Hon'ble Court has time and
again held that the Governments change but the State remains the same.
Reliance is placed upon the decisions of this Court in the case of State
of Karnataka and Anr. Vs. All India Manufacturers Organisation
and Ors., (2006) 4 SCC 683 (para 57); State of Tamil Nadu and
Ors. Vs. K. Shyam Sunder and Ors., (2011) 8 SCC 737 (para 35)
and Jal Mahal Resorts Private Limited Vs. K.P. Sharma and Ors.,
(2014) 8 SCC 804 (para 89).
5.10 Now, so far as the chart filed in the affidavit of the State
wherein, the State has mentioned previous cases registered against
accused No. 13 is concerned, it is submitted that the State is trying to
prejudice this Hon'ble court as the correct status of those cases have
not been presented before this Court by the State. It is submitted that
out of the said 24 cases, 18 cases have either been withdrawn by the
State or disposed of by the respective learned Courts. It is further
submitted that in a case filed by a lady, accused No. 13 has been granted
anticipatory bail by the learned Court and the lady who registered the
FIR against accused No. 13 is herself facing an FIR under IPC and
POCSO Act. It is submitted that therefore the allegations made in the
counter filed by the State mentioning the previous cases registered against
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accused No. 13 is nothing but a political vendetta and it is requested not
to consider the same while considering the issue in the present case.
5.11 Making above submissions, it is prayed to dismiss the present
appeal.
6. Heard the learned counsel appearing for the respective parties
at length.
7. By the impugned judgment and order, the High Court has refused
the prayer made on behalf of the appellant to transfer the investigation
to CBI and also refused the prayer for further investigation /reinvestigation of FIR No. 120 of 2020 on merits as well as mainly on the
ground that once the chargesheet is filed after investigation and the
charges are framed, the Magistrate has no jurisdiction to order further
investigation / re-investigation / de novo investigation.
7.1 Therefore, the short question, which is posed for the
consideration of this Court is:
"Whether in the facts and circumstances of the case, the High
Court is justified in denying the relief of transfer of the investigation
to CBI and refusing to order further investigation / re-investigation
/ de novo investigation?"
7.2 While considering the aforesaid issue and appreciating the
above submissions made on behalf of the respective parties, few decisions
of this Court on the power of the Courts to transfer the investigation to
another agency like CBI and the powers of the constitutional courts to
order further investigation / re-investigation / de novo investigation are
required to be referred to.
7.3 In the case of Himanshu Kumar and Ors. (supra), this
Court had occasion to consider the power of the Court to transfer
investigation to any other independent agency. After taking into
consideration the catena of judgments on the point, it is reiterated that
investigation may be transferred to the CBI only in "rare and exceptional
cases". In paragraphs 44 to 53, it is observed and held as under:-
"44. It is now settled law that if a citizen, who is a de facto
complainant in a criminal case alleging commission of cognizable
offence affecting violation of his legal or fundamental rights against
high Government officials or influential persons, prays before a
Court for a direction of investigation of the said alleged offence
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by the CBI, such prayer should not be granted on mere asking. A
Constitution Bench of this Court, in the case of the State of West
Bengal v. Committee for Protection of Democratic Rights, West
Bengal, reported in (2010) 3 SCC 571, has made the following
observations pointing out the situations where the prayer for
investigation by the CBI should be allowed:
"70.... 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 powers 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."
(emphasis supplied)
45. In the above decision, it was also pointed out that the
same court in Secretary, Minor Irrigation & Rural Engineering
Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, had
said that an order directing an enquiry by the CBI should be passed
only when the High Court, after considering the material on record,
comes to the conclusion that such material does disclose a prima
facie case calling for an investigation by the CBI or any other
similar agency.
46. In an appropriate case when the Court feels that the
investigation by the police authorities is not in a proper direction,
and in order to do complete justice in the case and if high police
officials are involved in the alleged crime, the Court may be justified
in such circumstances to handover the investigation to an
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independent agency like the CBI. By now it is well-settled that
even after the filing of the charge sheet the court is empowered
in an appropriate case to handover the investigation to an
independent agency like the CBI.
47. The extraordinary power of the Constitutional Courts
under Articles 32 and 226 respectively of the Constitution of India
qua the issuance of directions to the CBI to conduct investigation
must be exercised with great caution as underlined by this Court
in the case of Committee for Protection of Democratic Rights,
West Bengal (supra) as adverted to herein above, observing that
although no inflexible guidelines can be laid down in this regard,
yet it was highlighted that such an order cannot be passed as a
matter of routine or merely because the parties have levelled some
allegations against the local police and can be invoked in exceptional
situations where it becomes necessary to provide credibility and
instill confidence in the investigation or where the incident may
have national or international ramifications or where such an order
may be necessary for doing complete justice and for enforcing
the fundamental rights. We are conscious of the fact that though
a satisfaction of want of proper, fair, impartial and effective
investigation eroding its credence and reliability is the precondition
for a direction for further investigation or re- investigation,
submission of the charge sheet ipso facto or the pendency of the
trial can, by no means, be a prohibitive impediment. The contextual
facts and the attendant circumstances have to be singularly
evaluated and analyzed to decide the needfulness of further
investigation or re-investigation to unravel the truth and mete out
justice to the parties. The prime concern and the endeavour of
the court of law should be to secure justice on the basis of true
facts which ought to be unearthed through a committed, resolved
and a competent investigating agency.
48. The above principle has been reiterated in K.V.
Rajendran v. Superintendent of Police, CBCID South Zone,
Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for
a three-Judge Bench of this Court held:
"13. ...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
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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. ..."
49. Elaborating on this principle, this Court further observed:
"17. ... 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."
50. The Court reiterated that an investigation may be transferred
to the CBI only in "rare and exceptional cases". One factor that
courts may consider is that such transfer is "imperative" to retain
"public confidence in the impartial working of the State agencies."
This observation must be read with the observations made by the
Constitution Bench in the case of Committee for Protection of
Democratic Rights, West Bengal (supra), that mere allegations
against the police do not constitute a sufficient basis to transfer
the investigation.
51. In Romila Thapar v. Union of India, (2018) 10 SCC 753,
one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench
of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the
dictum in a line of precedents laying down the principle that the
accused "does not have a say in the matter of appointment of
investigating agency". In reiterating this principle, this Court relied
upon its earlier decisions in Narmada Bai v. State of Gujarat,
(2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India,
(2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC
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365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC
542. This Court observed:
"30...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."
52. It has been held by this Court in CBI v. Rajesh Gandhi, 1997
Cri LJ 63, that no one can insist that an offence be investigated by
a particular agency. We fully agree with the view in the aforesaid
decision. An aggrieved person can only claim that the offence he
alleges be investigated properly, but he has no right to claim that it
be investigated by any particular agency of his choice.
53. The principle of law that emerges from the precedents of this
Court is that the power to transfer an investigation must be used
"sparingly" and only "in exceptional circumstances". In assessing
the plea urged by the petitioner that the investigation must be
transferred to the CBI, we are guided by the parameters laid
down by this Court for the exercise of that extraordinary power."
7.4 Bearing in mind the position of law as discussed above and, in
the facts, and circumstances of the case, we are of the opinion that the
High Court has not committed any error in refusing to transfer the
investigation to CBI. Even the learned counsel appearing on behalf of
the appellant has not vehemently pressed such a prayer. We are in
complete agreement with the view taken by the High Court insofar as
refusing to transfer the investigation to CBI is concerned.
8. Now, so far as the power of the Constitutional Courts to order
further investigation / re-investigation / de novo investigation even after
the chargesheet is filed and charges are framed is concerned, the following
decisions are required to be referred to:-
8.1 In the case of Bharati Tamang (supra), after taking into
consideration the decisions of this Court in the case of Babubhai Vs.
State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the
subsequent decision of this Court in the case of Ram Jethmalani Vs.
Union of India (2011) 8 SCC 1 and other decision on the point, ultimately
the principles, which are culled out are as under:-
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"41. From the various decisions relied upon by the petitioner
counsel as well as by respondents' counsel, the following principles
can be culled out.
41.1. The test of admissibility of evidence lies in its
relevancy.
41.2. Unless there is an express or implied constitutional
prohibition or other law, evidence placed as a result of even an
illegal search or seizure is not liable to be shut out.
41.3. If deficiency in investigation or prosecution is visible
or can be perceived by lifting the veil which try to hide the realities
or covering the obvious deficiency, Courts have to deal with the
same with an iron hand appropriately within the framework of
law.
41.4. It is as much the duty of the prosecutor as of the
Court to ensure that full and material facts are brought on record
so that there might not be miscarriage of justice.
41.5. In order to ensure that the criminal prosecution is
carried on without any deficiency, in appropriate cases this Court
can even constitute Special Investigation Team and also give
appropriate directions to the Central and State Governments and
other authorities to give all required assistance to such specially
constituted investigating team in order to book the real culprits
and for effective conduct of the prosecution.
41.6. While entrusting the criminal prosecution with other
instrumentalities of State or by constituting a Special Investigation
Team, the High Court or this Court can also monitor such
investigation in order to ensure proper conduct of the prosecution.
41.7. In appropriate cases even if the charge-sheet is filed
it is open for this Court or even for the High Court to direct
investigation of the case to be handed over to CBI or to any other
independent agency in order to do complete justice.
41.8. In exceptional circumstances the Court in order to
prevent miscarriage of criminal justice and if considers necessary
may direct for investigation de novo."
8.2 In the case of Dharam Pal (supra), after taking into
consideration the catena of decisions on the point, it is observed and held
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that the constitutional courts can direct for further investigation or
investigation by some other investigating agency. It is observed that the
purpose is, there has to be a fair investigation and a fair trial. It is observed
that the fair trial may be quite difficult unless there is a fair investigation.
It is further observed and held that the power to order fresh, de novo or
re- investigation being vested with the constitutional courts, the
commencement of a trial and examination of some witnesses cannot be
an absolute impediment for exercising the said constitutional power which
is meant to ensure a fair and just investigation. While observing and
holding so, in paragraphs 24 and 25, it is observed and held s under:-
"24. Be it noted here that the constitutional courts can direct
for further investigation or investigation by some other investigating
agency. The purpose is, there has to be a fair investigation and a
fair trial. The fair trial may be quite difficult unless there is a fair
investigation. We are absolutely conscious that direction for further
investigation by another agency has to be very sparingly issued
but the facts depicted in this case compel us to exercise the said
power. We are disposed to think that purpose of justice commands
that the cause of the victim, the husband of the deceased, deserves
to be answered so that miscarriage of justice is avoided. Therefore,
in this case the stage of the case cannot be the governing factor.
25. We may further elucidate. The power to order fresh,
de novo or reinvestigation being vested with the constitutional
courts, the commencement of a trial and examination of some
witnesses cannot be an absolute impediment for exercising the
said constitutional power which is meant to ensure a fair and just
investigation.