ANANT THANUR KARMUSE versus THE STATE OF MAHARASHTRA & ORS

[2023] 3 S.C.R. 56

[2023] 3 S.C.R.

ANANT THANUR KARMUSE

THE STATE OF MAHARASHTRA & ORS.

(Criminal Appeal No.13 of 2023)

BFEBRUARY 24, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Code of Criminal Procedure, 1973 – s.173(8) –FurtherInvestigation – Transfer of Investigation to CBI –Appellant shareda viral picture of then Cabinet Minister on facebook–As per him,Cappellant was forcibly took from his residence by police officersand beaten up and threatened by the police – FIR lodged byappellant, however, name of the Cabinet Minister not named in FIR– Writ Petition was filed in the High Court seeking transfer ofinvestigation to CBI or to any other agency–During the pendencyDof the writ petition, the trial Court framed the charges against theaccused on the basis of the chargesheets filed –The High Courtrefused to transfer the investigation –High Court while dismissingthe petition observed that once the charges have been framed bythe Magistrate/Trial Court and therefore, it can be said that thetrial has begun and therefore, thereafter, re- investigation/furtherEinvestigation is not permissible– On appeal, held : Investigationmay be transferred to the CBI only in “rare and exceptional cases”–High Court has not committed any error in refusing to transfer theinvestigation to CBI –The real investigation started only after theintervention of the High Court and after passing various orders inFthe present proceedings by the High Court – Even according to theState investigating agency, still the further investigation is requiredon certain aspects – The victim has fundamental right of fairinvestigation and fair trial –Therefore, mere filing of the chargesheetand framing of the charges cannot be an impediment in orderingfurther investigation / re-investigation / de novo investigation, ifGthe facts so warrant – No proper investigation by the Stateinvestigating agency at the relevant time and even the materialevidences were also not collected – High Court has committed avery serious error in not ordering and/or permitting the State policeagency to further investigate into the FIR.H

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 thatthe High Court has not committed any error in refusing to transferthe investigation to CBI. Even the appellant has not vehementlypressed such prayer. The Court is in complete agreement withthe view taken by the High Court insofar as refusing to transferthe investigation to CBI is concerned. Applying the law laid downby this Court in the case of Dharam Pal and Bharati Tamang andto do the complete justice and in furtherance of fair investigationand fair trial, the constitutional courts may order furtherinvestigation / re-investigation / de novo investigation even afterthe charge sheet is filed and the charges are framed.[Paras 7.4and 11][70-E-F; 75-D]

3. It is required to be noted that in the present case, theallegations in the FIR, right from very beginning, were againstthe accused No. 13, who at the relevant time was the sittingCabinet Minister occupying the high position. Even at therelevant time, when the State Police investigated the FIR bearingNo. 120 of 2020, in the first chargesheet and the secondchargesheet did not name the accused No. 13. Even theinvestigation was also conducted in perfunctory manner. Thereal investigation started only after the intervention of the HighCourt and after passing various orders in the present proceedingsby the High Court. The allegations in the FIR were very seriousincluding the misuse of powers by the sitting Cabinet Ministerand of abducting, kidnapping and beating the complainant.[Para12.1][75-G-H; 76-A-B]4. Be that as it may,even according to the State investigatingagency, the further investigation is required. As observed andheld by this Court in its various decisions, the victim has afundamental right of fair investigation and fair trial. Therefore,mere filing of the chargesheet and framing of the charges cannotbe an impediment in ordering further investigation / re-investigation / de novo investigation, if the facts so warrant. [Para12.3][77-B]

5. The endeavour of the Court should be to have the fairinvestigation and fair trial only. Therefore, in the facts and

DEF

Acircumstances of the case narrated hereinabove, this Court is ofthe opinion that case is made out for further investigation andthe State agency may be permitted to conduct furtherinvestigation and to bring on record the further material, whichmay be in the furtherance of fair investigation and fair trial. TheHigh Court has committed very serious error in not orderingBand/or permitting the State police agency to further investigateinto the FIR bearing Nos. 119 and 120 of 2020. The High Courthas not considered the relevant aspects narrated hereinaboveand therefore interference of this Court is warranted. [Para 13][77-E-G]CHimanshu Kumar and Ors. Vs. State of Chhattisgarhand Ors., 2022 SCC Online SC 884; Bharati TamangVs. Union of India and Ors., (2013) 15 SCC 578:[2013]14 SCR 525; Dharam Pal Vs. State of Haryana andOrs., (2016) 4 SCC 160 : [2016] 1 SCR 194 – reliedDon.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 HaribhaiMalviya and Ors. Vs. State of Gujarat and Anr., (2019)E17 SCC 1 : [2019] 15 SCR 936; Rama Chaudhary Vs.–State of Bihar, (2009) 6 SCC 346 : [2009] 5 SCR 482referred to.

From the Judgment and Order dated 26.04.2022 of the High CourtHof Judicature at Bombay in WP No.411 of 2021.

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 ManuSinghvi, Shekhar Naphade, Sr. Advs., Ms. Diksha Rai, Tushar Sonawane,Ms. Ragini Pandey, Ms. Atiga Singh, Rahul Chitnis, SiddharthDharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Ms. KirtiDadheech, Rajat Nair, Pratyush Srivastava, Madhav Sinhal, 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 judgmentand order passed by the High Court of Judicature at Bombay dated26.04.2022 passed in Writ Petition No. 411 of 2021 by which the HighCourt has dismissed the said writ petition preferred by the appellantherein – the victim seeking transfer of the investigation to Central Bureauof Investigation or to any other agency to investigate / re-investigate theFIR Nos. 119 of 2020 and 120 of 2020 registered at Vartak Nagar PoliceStation, Thane, the original writ petitioner – the victim has preferred thepresent appeal.

2. The facts leading to the present appeal and as per the case onbehalf of the appellant in nutshell are as under:-

2.1 That the appellant is Civil Engineer, working as consultant,shared on his Facebook account on 05.04.2020, viral picture of oneMr. Jitendra Awhad, the then sitting Cabinet Minister of the State ofMaharashtra (who is subsequently arrayed as accused No. 13 after theHigh Court intervened), criticizing his act of ridiculing the Hon’ble PrimeMinister of India. According to the appellant, at around 11.50 pm at nighton 05.04.2020, four Policemen, two dressed in Civilian Dress and othertwo in uniform came to his residence and forcibly took him to theBungalow of the said Minister. According to the appellant, thereafter,the Minister instructed his men to beat him and make him apologies forcirculating the said viral picture of the Minister. The Minister threatenedhim to delete the post immediately. Thereafter, an ally of the Ministercalled the appellant on his number as he left his phone in his house andtold his wife to delete the controversial post. According to the appellant,

[2023] 3 S.C.R.

Ahe was mercilessly and ruthlessly beaten up by the police personnelpresent at the premises of the Minister.

2.2 That the appellant went to the Police Station and he got theinformation that an FIR bearing No. 119 of 2020 under Section 292 ofthe Indian Penal Code (IPC) and Section 66(E) of the Information andBTechnology Act has been registered against him by the Police on thecomplaint of one Mr. Hitesh Wani, accused No. 3 in the present caseand close ally of the Minister with sole purpose to threaten him if in casehe decides to file complaint about the said incident. It is the case onbehalf of the appellant that thereafter the appellant without fear narratedthe entire incident along with the specific allegations against the MinisterCand the other police officials and registered complaint against theMinister and his men. However, the names of the Minister, against whomthe specific allegations were made and his men were not mentioned inthe FIR bearing No. 120 of 2020 dated 06.04.2020 for the offencesunder Sections 365, 143, 144, 147, 149, 324 and 506(2) in the VartakDNagar Police Station, Thane. It is the case on behalf of the appellantthat the concerned Minister was not named in the FIR as he was thesitting Cabinet Minister in the government of the State.

2.3 That thereafter apprehending and alleging the bias and allegingthat the entire investigation has been conducted in sham and casualEmanner, and nothing significant was done by the Police, the appellantapproached the High Court by way of present writ petition praying fortransfer of the investigation of the aforesaid FIRs to the Central Bureauof Investigation (CBI), Mumbai or any other agency.

It appears that thereafter various interim orders came to be passedFby the High Court in the writ petition and the investigating agency of theState was compelled to carry out the investigation. The Police filed thechargesheet initially without naming the concerned Minister namely, Mr.Jitendra Awhad as accused. However, thereafter and during the pendencyof the writ petition before the High Court and in view of the constantmonitoring of the investigation by the High Court, the Minister Mr. JitendraGAwhad was added as accused two years after the said incident. Thatthereafter during the pendency of the writ petition, the learned TrialCourt framed the charges against the accused on the basis of thechargesheets already filed, which according to the appellant was for thelesser offences than the actually committed, like, Kidnapping, abductingHand causing grievous hurt. That thereafter by the impugned judgmentand order, the High Court has dismissed the said writ petition seekingtransfer of the investigation to the CBI and/or any other agency byobserving that after the investigation, the chargesheet is filed and theHigh Court prima facie opined that by filing the chargesheet /supplementary chargesheet, the investigating agency has conducted theinvestigation from all angles and after considering the medical reportand even after collecting the CRD of the Mobile Phone and that oncethe charges have been framed by the Magistrate / Trial Court andtherefore, it can be said that the trial has begun and therefore, thereafter,re- investigation/further investigation is not permissible. By the impugnedjudgment and order, the High Court has dismissed the said writ petition.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order, the original writ petitioner – the victim has preferred the presentappeal.

3. Shri Mahesh Jethmalani, learned senior counsel appearing onbehalf of the appellant has vehemently submitted that the entireinvestigation was conducted by the investigating agency of the State in asham and casual manner because one of the accused was the influentialMinister of the State.

3.1 It is submitted that despite the fact that the name of Mr. JitendraAwhad, Minister and his other men were disclosed in the FIR and aclear case of kidnapping and causing grievous hurt was alleged, no FIRwas lodged against the Minister, Mr. Jitendra Awhad and his other men.It is submitted that only after various orders were passed by the HighCourt in the pending writ petition and the Hon’ble High Court wasmonitoring the investigation, chargesheet / supplementary chargesheetcame to be filed and Mr. Jitendra Awhad was arrayed as an accused inthe supplementary chargesheet after period of two years of the incident.

3.2 It is further submitted that even the chargesheet is filed withthe lesser offences, like for the offences under Sections 324 and 365and other lesser offences only. It is submitted that despite clear case ismade out for the offence under Section 326 (grievous hurt), which isestablished from the photographs and clear case of kidnapping for theoffence under Section 367, the chargesheet has not been filed for theoffences under Section 326 read with Section 367 IPC.

3.3 It is further submitted that even the relevant evidence in theform of CDR of the mobile of the appellant as well as that of the

Aconcerned accused have not been collected. It is submitted that eventhe CCTV footage has also not been collected, which goes to the root ofthe investigation and the allegations against the accused persons.

3.4 It is further submitted that as observed and held by this Courtin the case of Dharam Pal Vs. State of Haryana and Ors., (2016) 4BSCC 160 (para 25), the Constitutional Courts are envisaged with thepower to order fresh, de novo or re-investigation and as observed andheld the commencement of trial and examination of some witnessescannot be an absolute impediment for exercising the said constitutionalpower, which is meant to ensure fair and just investigation.

C3.5 It is further submitted by Shri Jethmalani, learned seniorcounsel appearing on behalf of the appellant that as observed and heldby this Court in the case of Bharati Tamang Vs. Union of India andOrs., (2013) 15 SCC 578, in case of deficient / unsatisfactoryinvestigation, it is the duty of the Courts to ensure effective conduct ofprosecution and the Courts have powers to direct re-investigation inDexceptional circumstances in case it warrants due to deficient /unsatisfactory investigation.

3.6 It is submitted that as observed and held in the said decision ifdeficiency in investigation or prosecution is visible or can be perceivedby lifting the veil which try to hide the realities or covering the obviousEdeficiency, Courts have to deal with the same with an iron handappropriately within the framework of law. It is submitted that it is furtherobserved that it is the duty of the Court to ensure that full and materialfacts are brought on record so that there might not be miscarriage ofjustice. He has relied upon the observations made by this Court inFparagraph 41 of the said decision.

3.7 It is further submitted by Shri Jethmalani, learned seniorcounsel appearing on behalf of the appellant that even the State has nowin the counter affidavit specifically admitted that some furtherinvestigation is necessary/required on certain relevant and materialGaspects, in the interest of justice under Section 173(8) Cr.P.C. It issubmitted that now the State has specifically admitted the lapse in theinvestigation on certain material aspects and according to the State now,further investigation is needed on the relevant aspects mentioned inparagraph 4 of the counter affidavit before this Court. It is submittedthat therefore also now the State / investigating agency of the State mayHbe permitted to conduct the further investigation in exercise of the

constitutional powers to do the complete justice to the victim infurtherance of the administration of criminal justice.

4. Shri Tushar Mehta, learned Solicitor General appearing onbehalf of the State has pointed out certain lapses / lacunae in theinvestigation earlier conducted by the State / investigating agency andhighlighted the lacunae from paragraph 4 of the counter affidavit andhas fairly conceded and even so stated in the counter affidavit that afurther investigation in exercise of powers under Section 173(8) Cr.P.C.is needed / required.

5. Shri Shekhar Naphade and Dr. Abhishek Manu Singhvi, learnedSenior Advocates have appeared on behalf of the respondent Nos. 3and 5 and opposed the present appeal.

5.1 It is vehemently submitted by the learned senior counselappearing on behalf of the respective contesting respondent Nos. 3 and5 that as such no case is made out for transfer of the investigation to theCBI, more particularly, when, now, not only the investigation is concludedand the chargesheets have been filed but even thereafter the chargeshave also been framed by the Trial Court. It is submitted that thereforeon framing of the charges, it can be said that the trial has begun andtherefore, the case may not be transferred to the CBI as prayed.

5.2 It is further submitted that even otherwise the allegation ofgrievous injuries is raised for the first time. It is submitted that as suchthe allegation of grievous injuries alleged to have been caused to theappellant has not been supported by any record or document. It issubmitted that the appellant never alleged that he suffered fracturedue to injuries caused upon him.

5.3 It is submitted that the FIR registered by the appellant on06.04.2020 is completely silent about the injuries being grievous and anyfracture being caused. It is submitted that the chargesheet filed by thePolice also states that the appellant was examined at Shivaji Hospitaland the medical report was received intimating that the injuries causedare simple in nature. It is submitted that even the additional statementgiven by the appellant to the Police on 10.04.2020 is also silent on theaspect of any fracture being caused or the injuries being grievous innature.5.4 It is further submitted that even the Hon’ble High Court inparas 16, 17 and 20 has categorically noted the fact that the appellant

Afailed to produce any medical certificate or document evidencing anyfracture or injuries being grievous in nature and ruled that the injuriesare simple in nature, which is evident from the medical report filed withthe charge sheet. It is submitted that, therefore, there is no substance inthe allegation that there are any lacunae on the part of the investingagency in indicating higher offence of grievous hurt / injuries.B5.5 It is further submitted that even so far as the recovery ofCCTV 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 counselCappearing on behalf of the respective private respondent Nos. 3 and 5 –original accused that once the chargesheet has been filed, charges areframed and the trial has commenced, further investigation cannot bepermitted. It is submitted that in the present case, the first chargesheethas been filed on 07.12.2020 and thereafter supplementary chargesheetshave been filed on 28.7.2021 and 14.10.2021 in FIR No. 120/2020. It isDsubmitted that even the chargesheet in FIR No. 119/2020 has also beensubmitted to the concerned Magistrate on 13.09.2022. It is submittedthat in the present case, the charges have been framed by the concernedCourt in FIR No. 120/2020 against the accused Nos. 1 to 12 on 20.08.2021and on 28.11.2022 against accused No. 13 and, thus, the trial hasEcommenced. It is submitted that since the investigation is complete,chargesheets have been filed and charges have been framed, seekingre-investigation by the appellant is wholly impermissible under the law.It is submitted that upon framing of charges, the operation of Section173(8) ceases to operate since the trial has commenced as observedand held by this Court in Vinubhai Haribhai Malviya and Ors. Vs.FState of Gujarat and Anr., (2019) 17 SCC 1 (para 42).

5.7 It is submitted that even as observed and held by this Court inthe case of Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346that from plain reading of sub-section (2) and sub-section (8) of Section173, it is evident that even after submission of Police report under sub-Gsection (2) on completion of investigation, the Police has right to“further” investigation under sub-section (8) of Section 173 but not “freshinvestigation” or “re-investigation”.

5.8 It is further submitted that so far as the prayer of the appellantto transfer the investigation to CBI is concerned, as observed and heldHby this Court in catena of decisions, transfer of investigation to C.B.I. is

to be done only in rarest of rare cases. Reliance is placed upon thedecision of this Court in the case of Himanshu Kumar and Ors. Vs.State of Chhattisgarh and Ors., 2022 SCC Online SC 884 (para 44onwards). It is submitted that as observed and held by this Court in thecase of State of West Bengal and Ors. Vs. Committee for Protectionof Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571,the power to transfer investigation must be exercised sparingly, cautiouslyand in exceptional situations. It is submitted that in the present case ason 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, sotaken 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 haddefended the investigation throughout. It is submitted that just becausethe political dispensation in the State has changed, now, the State hasfiled an affidavit before this Hon’ble Court seeking further investigationin the matter without any substantial evidence and as such the same isimpermissible in law. It is submitted that this Hon’ble Court has time andagain held that the Governments change but the State remains the same.Reliance is placed upon the decisions of this Court in the case of Stateof Karnataka and Anr. Vs. All India Manufacturers Organisationand Ors., (2006) 4 SCC 683 (para 57); State of Tamil Nadu andOrs. 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 Statewherein, the State has mentioned previous cases registered againstaccused No. 13 is concerned, it is submitted that the State is trying toprejudice this Hon’ble court as the correct status of those cases havenot been presented before this Court by the State. It is submitted thatout of the said 24 cases, 18 cases have either been withdrawn by theState or disposed of by the respective learned Courts. It is furthersubmitted that in case filed by lady, accused No. 13 has been grantedanticipatory bail by the learned Court and the lady who registered theFIR against accused No. 13 is herself facing an FIR under IPC andPOCSO Act. It is submitted that therefore the allegations made in thecounter filed by the State mentioning the previous cases registered against

Aaccused No. 13 is nothing but political vendetta and it is requested notto consider the same while considering the issue in the present case.

5.11 Making above submissions, it is prayed to dismiss the presentappeal.

6. Heard the learned counsel appearing for the respective partiesBat length.

7. By the impugned judgment and order, the High Court has refusedthe prayer made on behalf of the appellant to transfer the investigationto CBI and also refused the prayer for further investigation /re-investigation of FIR No. 120 of 2020 on merits as well as mainly on theCground that once the chargesheet is filed after investigation and thecharges are framed, the Magistrate has no jurisdiction to order furtherinvestigation / re-investigation / de novo investigation.

7.1 Therefore, the short question, which is posed for theconsideration of this Court is:D

“Whether in the facts and circumstances of the case, the HighCourt is justified in denying the relief of transfer of the investigationto CBI and refusing to order further investigation / re-investigation/ de novo investigation?”

7.2 While considering the aforesaid issue and appreciating theEabove submissions made on behalf of the respective parties, few decisionsof this Court on the power of the Courts to transfer the investigation toanother agency like CBI and the powers of the constitutional courts toorder further investigation / re-investigation / de novo investigation arerequired to be referred to.F

7.3 In the case of Himanshu Kumar and Ors. (supra), thisCourt had occasion to consider the power of the Court to transferinvestigation to any other independent agency. After taking intoconsideration the catena of judgments on the point, it is reiterated thatinvestigation may be transferred to the CBI only in “rare and exceptionalGcases”. In paragraphs 44 to 53, it is observed and held as under:-

“44. It is now settled law that if citizen, who is de factocomplainant in criminal case alleging commission of cognizableoffence affecting violation of his legal or fundamental rights againsthigh Government officials or influential persons, prays before aHCourt for direction of investigation of the said alleged offence

by the CBI, such prayer should not be granted on mere asking. AConstitution Bench of this Court, in the case of the State of WestBengal v. Committee for Protection of Democratic Rights, WestBengal, reported in (2010) 3 SCC 571, has made the followingobservations pointing out the situations where the prayer forinvestigation by the CBI should be allowed:

“70.… In so far as the question of issuing direction toCBI to conduct investigation in case is concerned,although no inflexible guidelines can be laid down todecide whether or not such powers should be exercised,but time and again it has been reiterated that such an orderis not to be passed as matter of routine or merely becausea party has levelled some allegations against the localpolice. This extraordinary power must be exercisedsparingly, cautiously and in exceptional situations whereit becomes necessary to provide credibility and instilconfidence in investigations or where the incident may havenational and international ramifications or where such anorder may be necessary for doing complete justice andenforcing the fundamental rights. Otherwise CBI wouldbe flooded with large number of cases and with limitedresources, may find it difficult to properly investigate evenserious cases and in the process lose its credibility andpurpose with unsatisfactory investigations.”

(emphasis supplied)

45. In the above decision, it was also pointed out that thesame court in Secretary, Minor Irrigation & Rural EngineeringServices, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, hadsaid that an order directing an enquiry by the CBI should be passedonly when the High Court, after considering the material on record,comes to the conclusion that such material does disclose primafacie case calling for an investigation by the CBI or any othersimilar agency.

46. In an appropriate case when the Court feels that theinvestigation by the police authorities is not in proper direction,and in order to do complete justice in the case and if high policeofficials are involved in the alleged crime, the Court may be justifiedin such circumstances to handover the investigation to an

independent agency like the CBI. By now it is well-settled thateven after the filing of the charge sheet the court is empoweredin an appropriate case to handover the investigation to anindependent agency like the CBI.

47. The extraordinary power of the Constitutional Courtsunder Articles 32 and 226 respectively of the Constitution of Indiaqua the issuance of directions to the CBI to conduct investigationmust be exercised with great caution as underlined by this Courtin the case of Committee for Protection of Democratic Rights,West Bengal (supra) as adverted to herein above, observing thatalthough no inflexible guidelines can be laid down in this regard,yet it was highlighted that such an order cannot be passed as amatter of routine or merely because the parties have levelled someallegations against the local police and can be invoked in exceptionalsituations where it becomes necessary to provide credibility andinstill confidence in the investigation or where the incident mayhave national or international ramifications or where such an ordermay be necessary for doing complete justice and for enforcingthe fundamental rights. We are conscious of the fact that thougha satisfaction of want of proper, fair, impartial and effectiveinvestigation eroding its credence and reliability is the preconditionfor direction for further investigation or re- investigation,submission of the charge sheet ipso facto or the pendency of thetrial can, by no means, be prohibitive impediment. The contextualfacts and the attendant circumstances have to be singularlyevaluated and analyzed to decide the needfulness of furtherinvestigation or re-investigation to unravel the truth and mete out

justice to the parties. The prime concern and the endeavour ofthe court of law should be to secure justice on the basis of truefacts which ought to be unearthed through committed, resolvedand 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 fora three-Judge Bench of this Court held:

“13. …This Court has time and again dealt with the issue underwhat circumstances the investigation can be transferred fromthe State investigating agency to any other independent

investigating agency like CBI. It has been held that the powerof transferring such investigation must be in rare andexceptional cases where the court finds it necessary in orderto do justice between the parties and to instil confidence in thepublic mind, or where investigation by the State police lackscredibility and it is necessary for having “a fair, honest andcomplete investigation”, and particularly, when it is imperativeto retain public confidence in the impartial working of the Stateagencies. …”

49. Elaborating on this principle, this Court further observed:

“17. … the Court could exercise its constitutional powers fortransferring an investigation from the State investigating agencyto any other independent investigating agency like CBI only inrare and exceptional cases. Such as where high officials ofState authorities are involved, or the accusation itself is againstthe top officials of the investigating agency thereby allowingthem to influence the investigation, and further that it is sonecessary to do justice and to instil confidence in theinvestigation or where the investigation is prima facie found tobe tainted/biased.”

50. The Court reiterated that an investigation may be transferredto the CBI only in “rare and exceptional cases”. One factor thatcourts 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 theConstitution Bench in the case of Committee for Protection ofDemocratic Rights, West Bengal (supra), that mere allegationsagainst the police do not constitute sufficient basis to transferthe investigation.

51. In Romila Thapar v. Union of India, (2018) 10 SCC 753,one of us, A.M. Khanwilkar, J., speaking for three-Judge Benchof this Court (Dr. D.Y. Chandrachud, J. dissenting) noted thedictum in line of precedents laying down the principle that theaccused “does not have say in the matter of appointment ofinvestigating agency”. In reiterating this principle, this Court reliedupon 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

A365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC542. This Court observed:

“30…the consistent view of this Court is that the accusedcannot ask for changing the investigating agency or to doinvestigation in particular manner including for court-monitoredBinvestigation.”

52. It has been held by this Court in CBI v. Rajesh Gandhi, 1997Cri LJ 63, that no one can insist that an offence be investigated bya particular agency. We fully agree with the view in the aforesaiddecision. An aggrieved person can only claim that the offence heCalleges be investigated properly, but he has no right to claim that itbe investigated by any particular agency of his choice.

53. The principle of law that emerges from the precedents of thisCourt is that the power to transfer an investigation must be used“sparingly” and only “in exceptional circumstances”. In assessingDthe plea urged by the petitioner that the investigation must betransferred to the CBI, we are guided by the parameters laiddown by this Court for the exercise of that extraordinary power.”

7.4 Bearing in mind the position of law as discussed above and, inthe facts, and circumstances of the case, we are of the opinion that theEHigh Court has not committed any error in refusing to transfer theinvestigation to CBI. Even the learned counsel appearing on behalf ofthe appellant has not vehemently pressed such prayer. We are incomplete agreement with the view taken by the High Court insofar asrefusing to transfer the investigation to CBI is concerned.

F8. Now, so far as the power of the Constitutional Courts to orderfurther investigation / re-investigation / de novo investigation even afterthe chargesheet is filed and charges are framed is concerned, the followingdecisions are required to be referred to:-

8.1 In the case of Bharati Tamang (supra), after taking intoconsideration the decisions of this Court in the case of Babubhai Vs.GState of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and thesubsequent decision of this Court in the case of Ram Jethmalani Vs.Union of India (2011) 8 SCC 1 and other decision on the point, ultimatelythe principles, which are culled out are as under:-

“41. From the various decisions relied upon by the petitionercounsel as well as by respondents’ counsel, the following principlescan be culled out.

41.1. The test of admissibility of evidence lies in itsrelevancy.

41.2. Unless there is an express or implied constitutionalprohibition or other law, evidence placed as result of even anillegal search or seizure is not liable to be shut out.

41.3. If deficiency in investigation or prosecution is visibleor can be perceived by lifting the veil which try to hide the realitiesor covering the obvious deficiency, Courts have to deal with thesame with an iron hand appropriately within the framework oflaw.

41.4. It is as much the duty of the prosecutor as of theCourt to ensure that full and material facts are brought on recordso that there might not be miscarriage of justice.

41.5. In order to ensure that the criminal prosecution iscarried on without any deficiency, in appropriate cases this Courtcan even constitute Special Investigation Team and also giveappropriate directions to the Central and State Governments andother authorities to give all required assistance to such speciallyconstituted investigating team in order to book the real culpritsand for effective conduct of the prosecution.

41.6. While entrusting the criminal prosecution with otherinstrumentalities of State or by constituting Special InvestigationTeam, the High Court or this Court can also monitor suchinvestigation in order to ensure proper conduct of the prosecution.

41.7. In appropriate cases even if the charge-sheet is filedit is open for this Court or even for the High Court to directinvestigation of the case to be handed over to CBI or to any otherindependent agency in order to do complete justice.

41.8. In exceptional circumstances the Court in order toprevent miscarriage of criminal justice and if considers necessarymay direct for investigation de novo.”

8.2 In the case of Dharam Pal (supra), after taking intoconsideration the catena of decisions on the point, it is observed and held

Athat the constitutional courts can direct for further investigation orinvestigation by some other investigating agency. It is observed that thepurpose is, there has to be fair investigation and fair trial. It is observedthat the fair trial may be quite difficult unless there is fair investigation.It is further observed and held that the power to order fresh, de novo orre- investigation being vested with the constitutional courts, theBcommencement of trial and examination of some witnesses cannot bean absolute impediment for exercising the said constitutional power whichis meant to ensure fair and just investigation. While observing andholding so, in paragraphs 24 and 25, it is observed and held s under:-

“24. Be it noted here that the constitutional courts can directCfor further investigation or investigation by some other investigatingagency. The purpose is, there has to be fair investigation and afair trial. The fair trial may be quite difficult unless there is fairinvestigation. We are absolutely conscious that direction for furtherinvestigation by another agency has to be very sparingly issuedDbut the facts depicted in this case compel us to exercise the said

power. We are disposed to think that purpose of justice commandsthat the cause of the victim, the husband of the deceased, deservesto be answered so that miscarriage of justice is avoided. Therefore,in this case the stage of the case cannot be the governing factor.

E25. We may further elucidate. The power to order fresh,de novo or reinvestigation being vested with the constitutionalcourts, the commencement of trial and examination of somewitnesses cannot be an absolute impediment for exercising thesaid constitutional power which is meant to ensure fair and justinvestigation. It can never be forgotten that as the great oceanFhas only one test, the test of salt, so does justice has one flavour,the flavour of answering to the distress of the people without anydiscrimination. We may hasten to add that the democratic set-uphas the potentiality of ruination if citizen feels, the truth utteredby poor man is seldom listened to. Not for nothing it has beenGsaid that sun rises and sun sets, light and darkness, winter andspring come and go, even the course of time is playful but truthremains and sparkles when justice is done. It is the bounden dutyof court of law to uphold the truth and truth means absence ofdeceit, absence of fraud and in criminal investigation real andfair investigation, not an investigation that reveals itself as sham

one. It is not acceptable. It has to be kept uppermost in mind thatimpartial and truthful investigation is imperative. If there isindentation or concavity in the investigation, can the “faith” ininvestigation be regarded as the gospel truth? Will it have thesanctity or the purity of genuine investigation? If grave suspicionarises with regard to the investigation, should constitutional courtclose its hands and accept the proposition that as the trial hascommenced, the matter is beyond it? That is the “tour de force”of the prosecution and if we allow ourselves to say so it has become“idée fixe” but in our view the imperium of the constitutional courtscannot be stifled or smothered by bon mot or polemic. Of course,the suspicion must have some sort of base and foundation and nota figment of one’s wild imagination. One may think an impartialinvestigation would be nostrum but not doing so would be likeplaying possum. As has been stated earlier, facts are self-evidentand the grieved protagonist, person belonging to the lower strata.He should not harbour the feeling that he is an “orphan underlaw”.”

9. Now, so far as the reliance placed upon the decision of thisCourt in the case of Vinubhai Haribhai Malviya and Ors. (supra),relied upon on behalf of the respondent – accused is concerned, it isrequired to be noted that in the said decision, this Court was consideringthe powers of the Magistrate. Even in the said decision, it is observedand held that there is no good reason given by the Court as to why aMagistrate’s powers to order further investigation would suddenly ceaseupon process being issued. It is further observed that power of the policeto further investigate the offence continues right till the stage the trialcommences. It is further observed that Article 21 of the Constitutiondemands no less than fair and just investigation. In paragraph 42 assuch, it is observed and held as under:-

“42. There is no good reason given by the Court in thesedecisions as to why Magistrate’s powers to order furtherinvestigation would suddenly cease upon process being issued,and an accused appearing before the Magistrate, whileconcomitantly, the power of the police to further investigate theoffence continues right till the stage the trial commences. Such aview would not accord with the earlier judgments of this Court, inparticular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC

409], Samaj Parivartan Samudaya [Samaj ParivartanSamudaya v. State of Karnataka, (2012) 7 SCC 407], VinayTyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762], andHardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3SCC 92]; Hardeep Singh [Hardeep Singh v. State of Punjab,(2014) 3 SCC 92] having clearly held that criminal trial does notbegin after cognizance is taken, but only after charges are framed.What is not given any importance at all in the recent judgments ofthis Court is Article 21 of the Constitution and the fact that theArticle demands no less than fair and just investigation. To saythat fair and just investigation would lead to the conclusion thatthe police retain the power, subject, of course, to the Magistrate’snod under Section 173(8) to further investigate an offence tillcharges are framed, but that the supervisory jurisdiction of theMagistrate suddenly ceases midway through the pre-trialproceedings, would amount to travesty of justice, as certaincases may cry out for further investigation so that an innocentperson is not wrongly arraigned as an accused or that primafacie guilty person is not so left out. There is no warrant for sucha narrow and restrictive view of the powers of the Magistrate,particularly when such powers are traceable to Section 156(3)read with Section 156(1), Section 2(h) and Section 173(8) CrPC,as has been noticed hereinabove, and would be available at allstages of the progress of criminal case before the trial actuallycommences. It would also be in the interest of justice that thispower be exercised suo motu by the Magistrate himself, dependingon the facts of each case. Whether further investigation should orshould not be ordered is within the discretion of the learnedMagistrate who will exercise such discretion on the facts of eachcase and in accordance with law. If, for example, fresh factscome to light which would lead to inculpating or exculpating certainpersons, arriving at the truth and doing substantial justice in acriminal case are more important than avoiding further delay beingcaused in concluding the criminal proceeding, as was held inHasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v.State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extentthat the judgments in Amrutbhai Shambhubhai Patel [AmrutbhaiShambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4SCC 177], Athul Rao [Athul Rao v. State of Karnataka, (2018)

14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v.State (NCT of Delhi), (2019) 5 SCC 542] have held to the contrary,they stand overruled. Needless to add, Randhir Singh Rana v.State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. Stateof W.B. [(2009) 9 SCC 129] also stand overruled.”

10. Now, so far as the reliance placed upon the decision of thisCourt in the case of Rama Chaudhary (supra) relied upon on behalf ofthe respondent – accused is concerned, it is required to be noted that inthe said decision, this Court was considering the scope of Sections 173(8)and 173(8)(2) Cr.P.C. and the right of the police to “further investigation”.It is observed that the police has no right for “fresh investigation” or “re-investigation”. However, this Court had no occasion to consider thepowers of the constitutional courts , which are dealt with and consideredin the case of Bharati Tamang (supra) and Dharam Pal (supra).11. Applying the law laid down by this Court in the case of DharamPal (supra) and Bharati Tamang (supra) and to do the complete justiceand in furtherance of fair investigation and fair trial, the constitutionalcourts may order further investigation / re-investigation / de novoinvestigation even after the charge sheet is filed and the charges areframed. If the submission on behalf of the accused and even as observedby the High Court that once the chargesheet is filed and the charges areframed, there may not be any order for further investigation / re-investigation / de novo investigation is accepted, in that case, the accusedmay see to it that the charges are framed to avoid any fair investigation/ fair trial. It would lead to travesty of justice.

12. Applying the law laid down by this Court in the aforesaiddecisions and the principle of law laid down hereinabove, it is required tobe considered whether case is made out for further investigation /fresh investigation /re-investigation / de novo investigation or not.

12.1 It is required to be noted that in the present case, theallegations in the FIR, right from very beginning, were against the accusedNo. 13, who at the relevant time was the sitting Cabinet Ministeroccupying the high position. Even at the relevant time, when the StatePolice investigated the FIR bearing No. 120 of 2020, in the firstchargesheet and the second chargesheet did not name the accused No.13. Even the investigation was also conducted in perfunctory manner.The real investigation started only after the intervention of the High

ACourt and after passing various orders in the present proceedings by theHigh Court. The allegations in the FIR were very serious including themisuse of powers by the sitting Cabinet Minister and of abducting,kidnapping and beating the complainant. The appellant – original writpetitioner filed the Criminal Writ Petition before the Bombay High Courton 17.04.2020 praying the investigation in FIR Nos. 119 of 2020 and 120Bof 2020 to be transferred to an independent investigating agency and forsanction under Section 197 Cr.P.C. for investigation and prosecution ofpublic servants. On 23.04.2020, the High Court passed interim orderthat the CCTV footage and other evidences collected shall be protectedand kept in the safe custody of the Chief Judicial Magistrate, Thane.CDuring the period 06.04.2020 to 29.05.2020, the State police recordedthe statement of 23 witnesses including the accused No. 13. The statementof the main accused was taken as witness. The real investigationstarted thereafter. The first chargesheet came to be filed against accusedNos. 1 to 10 on 07.12.2020. The accused No. 13 – the then sitting Ministeragainst whom the serious allegations were made, even named in theDFIR, was not chargesheeted. Even the relevant material evidences werecollected in the form of CDR, mobile phones etc. after the High Courtintervened and passed various interim orders. The supplementarychargesheet came to be filed against accused Nos. 11 and 12 on28.07.2021. The accused No. 13 was not even chargesheeted in theEsupplementary chargesheet. The charges came to be framed againstaccused Nos. 1 to 12 on 28.08.2021. Only thereafter the supplementarychargesheet came to be filed against the accused No. 13 on 05.03.2022.

12.2 It can be seen from the aforesaid that there was no properinvestigation by the State investigating agency at the relevant time andFeven the material evidences were also not collected. At the cost ofrepetition, it is observed that during the pendency of the writ petitionbefore the High Court and pursuant to the various orders passed by theHigh Court, the State investigating agency were compelled to investigatein the matter and belatedly the accused No. 13 was chargesheeted in

the month of March, 2022. Even according to the State investigatingGagency, still the further investigation is required on certain aspects. Someof the illustrations / instances which required further investigation arenarrated in paragraph 4 of the counter affidavit filed on behalf of therespondent Nos. 1 to 3. Elaborate reasons and on what furtherinvestigation is required has not been stated on the apprehension that ifH

the same is disclosed at this stage, it may frustrate the very purpose ofthe investigation / further investigation.

12.3 Be that as it may, even according to the State investigatingagency, the further investigation is required. As observed and held bythis Court in the aforesaid decisions, the victim has fundamental rightof fair investigation and fair trial. Therefore, mere filing of the chargesheetand framing of the charges cannot be an impediment in ordering furtherinvestigation / re-investigation / de novo investigation, if the facts sowarrant.

13. Now, so far as the submission on behalf of the accused thatearlier the State through learned AG opposed the writ petition andsubmitted that there was fair investigation and now with the change inpower, the State agency has changed its stand is concerned, the Courtsare not concerned with the stand taken by the State at the relevant timeand now. Suffice it to say that at the relevant time when the State policeagency took particular stand, accused No. 13 was in power and sittingMinister. The facts narrated hereinabove would suggest the manner inwhich the earlier investigation was caried out and that the accused No.13 was only chargesheeted in the second supplementary charge sheet inthe month of March, 2022 and not prior to that when the first chargesheet was filed, the supplementary chargesheet was filed and even whenthe charges against the other accused were framed. The endeavor ofthe Court should be to have the fair investigation and fair trial only.Therefore, in the facts and circumstances of the case narratedhereinabove, we are of the opinion that case is made out for furtherinvestigation and the State agency may be permitted to conduct furtherinvestigation and to bring on record the further material, which may bein the furtherance of fair investigation and fair trial. The High Court hascommitted very serious error in not ordering and/or permitting theState police agency to further investigate into the FIR bearing Nos. 119and 120 of 2020. The High Court has not considered the relevant aspectsnarrated hereinabove and therefore interference of this Court iswarranted.

14. In view of the above and for the reasons stated above, presentappeal succeeds in part. The impugned judgment and order passed bythe High Court refusing to transfer the investigation of the FIR No. 120of 2020 to CBI is hereby confirmed. The impugned judgment and orderpassed by the High Court refusing to order further investigation / re-

Ainvestigation is hereby quashed and set aside and we direct / permit theState investigating agency to further investigate into the FIR bearingNo. 120 of 2020 and on what aspects the further investigation shall becaried out is left to the wisdom of the State investigating agency. Furtherinvestigation be carried out and completed as early as possible, preferablywithin period of three months from the date of receipt of the presentBorder and the further supplementary report be placed before the learnedMagistrate in the Trial/before the concerned Trial Court thereafterforthwith, which may be considered by the Trial Court in accordancewith law and on its own merits and the accused be tried accordingly andin accordance with law and on merits.CPresent appeal is partly allowed to the aforesaid extent.

Ankit Gyan

(Assisted by : Abhishek Agnihotri and Rahul Rathi, LCRAs)

Appeal partly allowed.