Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 792 OF 2008
State of Punjab ...... Petitioner
Versus
Central Bureau of Investigation
& Ors. ...... Respondents
J U D G M E N T
A.K. PATNAIK, J.
This petition under Article 136 of the Constitution has
been filed by the State of Punjab praying for special leave to
appeal against the order dated 11.12.2007 of the High
Court of Punjab and Haryana in Criminal Miscellaneous No.
51620 of 2007 (for short "the impugned order").
2. The facts very briefly are that on 18.04.2007
respondent no.3 lodged FIR No. 82 at Police Station City-I,
Moga against Simran Kaur @ Indu and her husband Ajay
Kumar alleging offences under Sections 366, 376, 406, 420,
2
506, 344 read with Section 34 of the Indian Penal Code,
1860 (for short `the IPC'). Pursuant to the FIR, Simran Kaur
and Ajay Kumar were arrested on 19.04.2007, but Ajay
Kumar managed to escape from the custody of police and
FIR No. 83, Police Station City-I, Moga dated 19.04.2007
under Section 224 of the IPC was registered against him. In
course of investigation of the case, respondent no.3 made a
statement before the police under Section 161 of the Code of
Criminal Procedure, 1973 (for short `the Cr.P.C.') on
23.04.2007 naming 14 other persons who had sex with her
against her will and some of these persons were arrested by
Sub-Inspector Raman Kumar. The statement of respondent
no.3 was recorded on 25.04.2007 under Section 164 of the
Cr.P.C. by the Chief Judicial Magistrate, Moga. On
08.05.2007, the investigation of the case was entrusted to
Inspector Amarjit Singh, S.H.O. PS City-I, Moga. Some of
the persons named by respondent no.3 in her statements
were found to be innocent and were released. After
completing the investigation, Inspector Amarjit Singh
submitted a charge sheet on 01.06.2007 in Court under
Section 173 of the Cr.P.C naming Simran Kaur @ Indu, Ajay
3
Kumar, Vimal Kumar, Subhash Chander, Ramesh Kumar,
Randhir Singh, Iqbal Singh, Bharat Bhushan and Inderjit
Singh as accused persons.
3. On 04.06.2007 FIR No. 160 was registered under
Sections 342, 323 and 506 read with Section 34 of the IPC
at PS Baghapuran against several accused persons. One of
the accused persons Ranjit Singh, however, made a
complaint to the Additional Director General of Police (Law
and Order) that he has been falsely implicated by Inspector
Amarjit Singh in connivance with Manjeet Kaur because he
had recorded a conversation by Inspector Amarjit Singh
with him in the mobile that he would be arrested if he did
not pay a certain amount to him and a compact disc
containing the recorded conversation was prepared and
attached with the complaint. Investigation into this case
was entrusted to Inspector Bhupinder Singh, Deputy
Superintendent of Police, Bhaga Pura, District Moga. On
completion of the enquiry it was found that the allegations
against the accused persons were false. Accordingly, on
24.10.2007 FIR No. 198 was registered at PS City -I, Moga
under Sections 7 and 13(2) of the Prevention of Corruption
4
Act, 1988 read with Sections 384, 211 and 120-B of the IPC
against Inspector Amarjit Singh and Manjeet Kaur and
respondent no.3 and Inspector Amarjit Singh were arrested.
During investigation it also came to light that Sub-Inspector
Raman Singh, the then S.H.O., PS Badhnikalan was helping
Manjeet Kaur and respondent no.3 and that Sub-Inspector
Raman Singh had accepted illegal gratification.
Accordingly, offences under Sections 195, 201, 202, 218,
219, 221, 465, 468 and 471 of the IPC were added in the
case registered as FIR no. 198 of 2007 and Sub-Inspector
Raman Singh was also named as an accused alongwith
Inspector Amarjit Singh. Sub-Inspector Raman Kumar was
also dismissed from service by the Senior Superintendent of
Police.
4. On 11.11.2007, Manjeet Kaur and respondent no.3
were arrested and during interrogation respondent no.3
alleged that on 04.11.2007, Sub-Inspector Raman Kumar
took her and Bhupinder Kumar @ Rocky Sharma to a place
at Karnal in Haryana, where Bhupinder Kumar @ Rocky
Sharma raped her during the night of 04/05.11.2007. On
13.11.2007, a news item was published in the Hindustan
5
Times headlined `Moga Sex Scandal' and two ladies, namely,
respondent no.3 of Village Varsaal and her relative Manjeet
Kaur of Village Badduwal had been arrested. This news was
also published in the Tribune dated 12.11.2007.
5. The High Court took suo motu notice of the news items
and issued notices to the State of Punjab, Senior
Superintendent of Police, Moga and Deputy Inspector
General of Police, Ferozpur Range and directed the Deputy
Superintendent of Police, Bhupinder Singh, who was
investigating into the case, to file the status report of the
investigation on the next date of hearing. On 15.11.2007,
Bhupinder Kumar was arrested and FIR No. 225 was
registered at Police Station Tarawari, Distt. Karnal under
Sections 376, 342 and 34 of the IPC against him. On
19.11.2007, status report was submitted before the High
Court by Deputy Superintendent of Police, Bhupinder Singh
stating that the investigation is still in progress. On
19.11.2007, a Criminal Miscellaneous Application was
moved by an advocate on behalf of Bhushan Garg and
Inderjit Singh, two Municipal Councilors of Moga, alleging
that at the instance of local influential political persons and
6
senior police officers, many innocent persons, including
Bhushan Garg and Inderjit Singh were implicated in FIR
No.82 dated 18.04.2007 registered with Police Station City-
I, Moga. The applicants apprehended that the investigation
may not be fair and proper because senior police officers
and highly influential persons were involved in the case.
6. When the case was taken up before the High Court on
20.11.2007, the Additional Advocate General placed before
the High Court a copy of the order of the Additional Director
General of Police (Crime), Punjab dated 19.11.2007
entrusting the investigation into FIR No. 82 dated
18.04.2007, FIR No. 83 dated 19.04.2007, FIR No. 160
dated 04.06.2007 and FIR No. 198 dated 24.10.2007 to a
special investigation team (for short `the SIT'). On
20.11.2007, the High Court observed that the SIT had been
constituted without the permission of the Court and issued
notice to the CBI for the purpose of entrusting the
investigation of the case to the CBI.
7. Pursuant to the notice, the CBI appeared and stated in
its reply that the CBI was over burdened with investigation
of the cases referred to by this Court, the High Court and
7
the Union of India and that it was facing acute shortage of
man power and resources and therefore the case should not
be entrusted to the CBI particularly when it does not have
any interstate and international ramifications. The High
Court, after hearing the learned counsel for the parties and
after considering various status reports filed by the state
police passed the impugned order on 11.12.2007 directing
that the investigation of the cases be entrusted to the CBI.
On 12.12.2007, the High Court passed an order clarifying
that the CBI has been directed by the order dated
11.12.2007 to investigate into FIR No.82, FIR No.83 and FIR
No.198 of P.S. City I, Moga, FIR No.160 of P.S. Baghapurana
and FIR No.225 of P.S. Tarawari, District Karnal (Haryana).
By the order dated 12.12.2007, the High Court also stayed
further proceedings before the Trial Court in the case
arising out of FIR No.82 of P.S. City I, Moga, till further
orders.
8. Dr. Rajeev Dhawan, appearing for the petitioner (State
of Punjab) submitted that the High Court had failed to
appreciate that on 01.06.2007 charge sheet had already
been filed against nine accused persons after investigation
8
into FIR No. 82 of Police Station City-I, Moga, and,
therefore, no direction could be given to the CBI to conduct
the investigation into the case. He cited the observations of
this Court in Vineet Narain v. Union of India [(1998) 1 SCC
226] that the task of the monitoring Court would end the
moment charge sheet was filed in respect of a particular
investigation and thereafter the ordinary procedure of law
would then take over. He submitted that after the charge
sheet is filed, the Court has powers under sub-section (8) of
Section 173 of the Cr.P.C. to direct further investigation by
the police, but the Court has no power to direct a fresh
investigation or reinvestigation into the case by the police.
He submitted that the High Court, therefore, could not have
directed the CBI to start a fresh investigation or
reinvestigation of the case after the police had filed charge
sheet under sub-section (2) of Section 173 of the Cr.P.C. In
support of this submission, he cited the decision of this
Court in Mithabhai Pashabhai Patel v. State of Gujarat
[(2009) 6 SCC 332] in which this Court made a distinction
between further investigation and reinvestigation and held
that under sub-section (8) of Section 173 of the Cr.P.C., the
9
Court can grant permission for further investigation and not
for reinvestigation.
9. Mr. Anoop G. Chaudhari, learned counsel for
respondent no.3, argued that once challan is filed and
charges are framed, the High Court cannot direct
reinvestigation by the CBI. He submitted that in the
present case, the challan had been filed on 01.06.2007 in
respect of FIR No.82, Police Station City-I, Moga dated
18.04.2007 and the Court had also framed charges on
08.11.2007 and therefore the High Court could not have
passed the impugned order on 11.12.2007 directing the CBI
to carryout a fresh investigation or reinvestigation into the
case. He submitted that the High Court was conscious of
this limitation on the power of the Court to direct further
investigation and mentioned in the impugned order dated
11.12.2007 that if the challan had been presented to the
Court, the Miscellaneous Petition will stand as having
become infructuous. He submitted that the impugned order
passed by the High Court that the investigation of the case
will be taken up by the CBI was, therefore, bad in law and
should be set aside by this Court.
10
10. Mr. H.P. Raval, learned Additional Solicitor General for
Respondent No.1 (the CBI), on the other hand, submitted
that this Court has held in Ram Lal Narang v. State (Delhi
Administration [(1979) 2 SCC 322] that even where a
Magistrate has taken cognizance of an offence upon a police
report submitted under Section 173 of the Cr.P.C., the right
of the police to further investigate was not exhausted and
the police can exercise such right as often as necessary
when fresh information came to light. He also relied on a
recent decision of this Court in Nirmal Singh Kahlon v. State
of Punjab & Ors. [(2009) 1 SCC 441] wherein this Court has
sustained the order of the High Court directing investigation
by the CBI even after the charge sheet had been filed by the
State police on completion of the investigation. He
submitted that in Nirmal Singh Kahlon (supra) this Court
has clarified that the observations in Vineet Narain (supra)
cited by Dr. Dhawan are applicable to cases where the
investigation was being monitored and in such cases the
monitoring of the High Court will come to an end after the
charge sheet is filed. He submitted that in the present case,
the High Court found that the state police is not a position
11
to carry out a fair and truthful investigation and has
directed the investigation by the CBI in the interest of
justice in exercise of its powers under Section 482 of the
Cr.P.C.
11. Mr. Raval further submitted that pursuant to
impugned order of the High Court the CBI has carried out
the investigation into the cases and the status report of the
cases is as follows:
S.No. CBI Case No. Local Police Case No. Status of the case
1. RCCHG2007S0031 FIR No. 82, 1) Investigation completed,
dated 18.04.2007 of which revealed that a false
P.S. City I, Moga. rape case was registered
by the Moga Police.
2) Charge sheet has been
filed under Sections 366-A
and 406 of the IPC and
Sections 4 & 5 of the
Immoral Traffic
(Prevention) Act, 1956
against two persons,
namely, Simran Kaur @
Indu and Ajay Kumar on
10.11.2008.
2. RCCHG2007A0030 FIR No.198, Investigation completed
dated 24.10.2007 of and charge sheet has been
P.S. City I, Moga. filed in Court on
09.11.2009 in which the
senior police officers of the
rank of SSP and SP are
sought to be prosecuted
after sanction from the
Central Government.
3. RCCHG2008S0003 FIR No.83, 1) Investigation completed
dated 19.04.2007 of and charge sheet has been
P.S. City I, Moga. filed in the Court on
10.11.2008 against Ajay
Kumar and the Court
12
convicted the accused on
30.09.2009.
2) Accused has filed an
appeal in the Court of Ld.
Special Judge, Punjab,
Patiala and the appeal has
been dismissed on
09.02.2011. Accused has
filed CRR No. 460 of 2011
in the High Court, which
is pending.
4. RCCHG2008S0001 FIR No.160, Investigation completed
dated 04.06.2007 of and closure report has
P.S. Baghapurana, been filed in Court on
District Moga 10.11.2008 and the Court
has accepted the closure
report on 12.12.2008.
5. RCCHG2008S0002 FIR No.225, Investigation completed
dated 15.11.2007 of and closure report filed in
P. S. Tarawari, the Court and the same
District Karnal has been accepted on
(Haryana) 03.06.2009.
12. Sub-sections (1), (2) and (8) of Section 173 and Section
482 of the Cr.P.C. which are relevant for deciding this case
are quoted herein below:
"Section 173. Report of police officer on
completion of investigation -
(1) Every investigation under this Chapter shall
be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of the
offence on a police report, a report in the form
prescribed by the State Government, stating -
(a) the names of the parties;
(b) the nature of the information;
13
(c) the names of the persons who appear to
be acquainted with the circumstances of
the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his
bond and, if so, whether with or without
sureties;
(g) whether he has been forwarded in
custody under Section 170;
(h) whether the report of medical
examination of the woman has been
attached where investigation relates to an
offence under Section 376, 376A, 376B,
376C or 376D of the Indian Penal Code.
(ii) The officer shall also communicate, in
such manner as may be prescribed by the
State Government, the action taken by
him, to the person, if any, by whom the
information relating to the commission of
the offence was first given.
x x x x x x x x x x x x x x x x x x x
(8) Nothing in this Section shall be deemed to
preclude further investigation in respect of an
offence after a report under Sub-Section (2) has
been forwarded to the Magistrate and, where
upon such an investigation, the officer in charge
of the police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports regarding
such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far
as may be, apply in relation to such report or
14
reports as they apply in relation to a report
forwarded under sub-section (2)".
"Section 482. Saving of inherent power of
High Court - Nothing in this Code shall be
deemed to limit or affect the inherent powers of
the High Court to make such orders as may be
necessary to give effect to any order under this
Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice".
13. Sub-section (1) of Section 173 of the Cr.P.C. provides
that every investigation by the police shall be completed
without unnecessary delay and sub-section (2) of Section
173 provides that as soon as such investigation is
completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by
the State Government. Under sub-section (2) of Section
173, a police report (charge sheet or challan) is filed by the
police after investigation is complete. Sub-section (8) of
Section 173 states that nothing in the Section shall be
deemed to preclude any further investigation in respect of
an offence after a report under sub-section (2) has been
forwarded to the Magistrate. Thus, even where charge sheet
or challan has been filed by the police under sub-section (2)
15
of Section 173, the police can undertake further
investigation but not fresh investigation or re-investigation
in respect of an offence under sub-section (8) of Section 173
of the Cr.P.C.
14. Section 482 of the Cr.P.C., however, states that
nothing in the Cr.P.C. shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as is
necessary to give effect to any order under the Cr.P.C. or to
prevent the abuse of the process of any Court or otherwise
to secure the ends of justice. Thus, the provisions of the
Cr.P.C. do not limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give
effect to any order under the Court or to prevent the abuse
of any process of the Court or otherwise to secure the ends
of justice. The language of sub-section (8) of Section 173 of
the Cr.P.C., therefore, cannot limit or affect the inherent
powers of the High Court to pass an order under Section
482 of the Cr.P.C. for fresh investigation or re-investigation
if the High Court is satisfied that such fresh investigation or
re-investigation is necessary to secure the ends of justice.
16
15. We find support for this conclusion in the following
observations of this Court in Mithabhai Pashabhai Patel v.
State of Gujarat (supra) cited by Mr. Dhawan:
"13. It is, however, beyond any cavil that
"further investigation" and "reinvestigation"
stand on different footing. It may be that in a
given situation a superior court in exercise of
its constitutional power, namely, under
Articles 226 and 32 of the Constitution of
India could direct a "State" to get an offence
investigated and/or further investigated by a
different agency. Direction of a
reinvestigation, however, being forbidden in
law, no superior court would ordinarily issue
such a direction. Pasayat, J. in
Ramachandran v. R. Udhayakumar [(2008) 5
SCC 413] opined as under: (SCC p. 415, para
7)
"7. At this juncture it would be
necessary to take note of Section 173
of the Code. From a plain reading of
the above section it is evident that
even after completion of investigation
under sub-section (2) of Section 173 of
the Code, the police has right to
further investigate under sub-section
(8), but not fresh investigation or
reinvestigation."
A distinction, therefore, exists between a
reinvestigation and further investigation."
"15. The investigating agency and/or a court
exercise their jurisdiction conferred on them
only in terms of the provisions of the Code.
The Courts subordinate to the High Court
even do not have any inherent power under
Section 482 of the Code of Criminal
17
Procedure or otherwise. The pre-cognizance
jurisdiction to remand vested in the
subordinate courts, therefore, must be
exercised within the four corners of the
Code."
It is clear from the aforesaid observations of this Court that
the investigating agency or the Court subordinate to the
High Court exercising powers under Cr.P.C. have to exercise
the powers within the four corners of the Cr.P.C. and this
would mean that the investigating agency may undertake
further investigation and the subordinate court may direct
further investigation into the case where charge sheet has
been filed under sub-section (2) of Section 173 of the
Cr.P.C. and such further investigation will not mean fresh
investigation or re-investigation. But these limitations in
sub-section (8) of Section 173 of the Cr.P.C. in a case where
charge sheet has been filed will not apply to the exercise of
inherent powers of the High Court under Section 482 of the
Cr.P.C. for securing the ends of justice.
16. This position of law will also be clear from the
decision of this Court in Nirmal Singh Kahlon v. State of
Punjab & Ors. (supra) cited by Mr. Raval. The facts of that
case are that the State police had investigated into the
18
allegations of irregularities in selection of a large number of
candidates for the post of Panchayat Secretaries and had
filed a charge sheet against Nirmal Singh Kahlon. Yet the
High Court in a PIL under Article 226 of the Constitution
passed orders on 07.05.2003 directing investigation by the
CBI into the case as it thought that such investigation by
the CBI was "not only just and proper but a necessity".
Nirmal Singh Kahlon challenged the decision of the High
Court before this Court contending inter alia that sub-
section (8) of Section 173 of the Cr.P.C. did not envisage an
investigation by the CBI after filing of a charge sheet and
the Court of Magistrate alone has the jurisdiction to issue
any further direction for investigation before this Court.
Amongst the authorities cited on behalf of Nirmal Singh
Kahlon was the decision of this Court in Vineet Narain case
that once the investigation is over and charge sheet is filed
the task of the monitoring Court comes to an end. Yet this
Court sustained the order of the High Court with inter alia
the following reasons:
"63. The High Court in this case was not
monitoring any investigation. It only desired
that the investigation should be carried out by
an independent agency. Its anxiety, as is
19
evident from the order dated 3-4-2002, was to
see that the officers of the State do not get
away. If that be so, the submission of Mr. Rao
that the monitoring of an investigation comes to
an end after the charge-sheet is filed, as has
been held by this Court in Vineet Narain and
M.C. Mehta (Taj Corridor Scam) v. Union of India
[(2007) 1 SCC 110], loses all significance".
Though the decision of this Court in Nirmal Singh Kahlon v.
State of Punjab & Ors. (supra) is in the context of the power
of the High Court under Article 226 of the Constitution, the
above observations will equally apply to a case where the
power of the High Court under Section 482 of the Cr.P.C. is
exercised to direct investigation of a case by an independent
agency to secure the ends of justice.
17. This leads us to the next question whether the High
Court in the facts of the present case passed the order for
investigation by the CBI to secure the ends of justice. The
reasons given by the High Court in the impugned order
dated 11.12.2007 for directing investigation by the CBI are
extracted herein below:
"The Investigating Officer, who is a D.S.P. in
rank, will not be in a position to investigate
the case fairly and truthfully, as senior
functionaries of the State in the Police
Department and political leaders are being
named. By this we are not casting any
doubts on the investigating team, but it
20
seems that political and administrative
compulsions are making it difficult for the
investigating team to go any further to bring
home the truth. Apart from revolving
around a few persons who have been named
in the status report, nothing worthwhile is
coming out regarding the interrogation of
the police officers, political leaders and
others. The investigation seems to have
slowed down because of political
considerations.
Not less than eight police officials, political
leaders, Advocates, Municipal Councilors
and number of persons from the general
public have been named in the status
report. We feel that justice would not be
done to the case, if it stays in the hands of
the Punjab Police. Having said this, we
want to make one thing very clear that the
team comprising of Shri Ishwar Chander,
D.I.G, Shri L.K. Yadav, S.S.P. Moga and Shri
Bhupinder Singh, D.S.P. have done a
commendable job in unearthing the scam.
We feel it a fit case to be handed over to the
C.B.I."
On a reading of the reasons given by the High Court, we find
that the High Court was of the view that the investigating
officer even of the rank of DSP was not in a position to
investigate the case fairly and truthfully because senior
functionaries of the State police and political leaders were to
be named and political and administrative compulsions
were making it difficult for the investigating team to go any
21
further to bring home the truth. It further observed that not
less than eight police officials, political leaders, advocates,
municipal councilors besides a number of persons
belonging to general public had been named in the status
report of the State local police. In the peculiar facts and
circumstances of the case, the High Court felt that justice
would not be done to the case if the investigation stays in
the hands of the local police and for these reasons directed
that the investigation of the case be handed over to the CBI.
The narration of the facts and circumstances in paragraph
2, 3, 4 and 5 of this judgment also support the conclusion
of the High Court that investigation by an independent
agency such as the CBI was absolutely necessary in the
interests of justice. Moreover, even though the High Court
in the impugned order dated 11.12.2007 did make a
mention that in case challan has been filed, then the
petition will stand as having become infructuous in the
order dated 12.12.2007, the High Court has stayed further
proceedings before the trial court in the case arising out of
FIR No.82 of P.S. City I, Moga, till further orders. Thus, the
High Court was of the view that even though investigation is
22
complete in one case and charge sheet has been filed by the
Police, it was necessary in the ends of justice that the CBI
should carry out an investigation into the case.
18. In the recent case of State of West Bengal and Others
v. Committee for Protection of Democratic Rights, West Bengal
and Others [(2010) 2 SCC 571] a Constitution Bench of this
Court, while holding that no Act of Parliament can exclude
or curtail the powers of the High Court under Article 226 of
the Constitution, has cautioned that the extra-ordinary
powers of the High Court under Article 226 of the
Constitution must be exercised sparingly, cautiously and in
exceptional situations where it becomes necessary to
provide credibility and confidence in investigation or where
the incident may have national or international
ramifications or where such an order may be necessary for
doing complete justice and enforcing fundamental rights.
This caution equally applies to the cases where the High
Court exercises inherent powers under Section 482 of the
Cr.P.C. to direct investigation by the CBI for securing the
ends of justice. In the facts and circumstances of this case,
however, the High Court has held that the state local police
23
was unable to carry out investigation into the cases and for
securing the ends of justice the investigation has to be
handed over to the CBI. In other words, this was one of
those extra-ordinary cases where the direction of the High
Court for investigation by the CBI was justified.
19. This is, therefore, not a fit case in which we should
exercise our powers under Article 136 of the Constitution
and grant leave to appeal. The Special Leave Petition is
dismissed.
..........................J.
(R.V. Raveendran)
..........................J.
(A. K. Patnaik)
New Delhi,
September 02, 2011.
