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Wednesday, August 21, 2013

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

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

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1167 of 2013


      Prof. K.V. Rajendran
      …Appellant




                                   Versus




      Superintendent of Police, CBCID South              …Respondents
      Zone, Chennai & Ors.


                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.




      1.    This appeal has been preferred against the  judgment  and  order
      dated 8.12.2011 passed by the High Court of Judicature  at  Madras  in
      Crl.O.P. No. 9639 of 2011, by way of which the High Court has rejected
      the prayer of the appellant  to  transfer  the  investigation  of  his
      case/complaint  to  Central  Bureau  of   Investigation   (hereinafter
      referred to as the `CBI’).


      2.    The case has a chequered history as the matter  has  moved  from
      the court of the Magistrate to this Court time and  again.  Facts  and
      circumstances necessary to adjudicate upon  the  controversy  involved
      herein are that:


      A.    The appellant, who is an Associate Professor in Physics  in  the
      Presidency College, Chennai, went to  his  village  on  26.8.1998.  At
      about 11.00 P.M., approximately ten people headed by the then  Revenue
      Divisional Officer (hereinafter referred to as  the  `RDO’),  forcibly
      took him in a government jeep and brought him to the Taluk office  and
      enquired about why he  had  given  a  false  complaint  regarding  the
      smuggling of teakwood in that area.  The then RDO and other  officials
      treated him with utmost cruelty and caused severe  injuries  all  over
      his body and then obtained his signatures on blank papers  which  were
      filled up as directed by the then RDO. On the next day, he was  handed
      over to the local Police Inspector along with the statement  purported
      to have been written by the officials concerned.


      B.    The appellant was produced before the Magistrate on 27.8.1998 at
      10.30 A.M. and he was remanded to judicial custody.   His  request  to
      the Judicial Magistrate  in  regard  to  medical  examination  of  the
      injuries which had been caused to him was rejected. The appellant  was
      kept in Sub Jail, Poraiyar, wherein he was treated by the jail  doctor
      on 28.8.1998.  On being released on bail, the appellant got  treatment
      of his injuries in a private hospital.


      C.    The appellant filed a complaint against the said RDO  and  other
      officials.  The said complaint was also sent to the office of  Hon’ble
      Chief Minister of the State, the Director General of Police and  other
      officials, alleging the brutal torture caused to him by the then  RDO.
      The case was entrusted for investigation to Deputy  Superintendent  of
      Police, SBCID, Nagapattinam. A confidential report  was  forwarded  to
      higher officials by the said DSP in this regard.  However, no progress
      could be made in the investigation  and  no  case  was  registered  in
      respect of  the complaint of the appellant.


      D.    The appellant approached the High Court of Madras by filing Crl.
      O.P. No. 19352/1998 with the prayer  to  direct  the  registration  of
      First Information Report (FIR) based on his complaint.  In view of the
      fact that a confidential report of Deputy  Superintendent  of  Police,
      SBCID revealed that the preliminary enquiry was conducted in a  proper
      manner, the High Court did not  transfer  the  investigation  to  CBI,
      however, the petition was allowed vide order  dated  1.3.2001  issuing
      the direction to register a case.
      E.    The DSP, SBCID filed an application i.e. Crl.M.P. No.  3713/2001
      before the High Court in  the  disposed  of  case  i.e.  Crl.O.P.  No.
      19352/1998 stating that there was no post of DSP, SBCID on the date of
      the order as the same had been abolished, so proper directions  needed
      to be issued. In the  meanwhile,  the  appellant  also  filed  another
      petition to transfer the case to CBI. Both the said applications  were
      heard together and the order dated 1.10.2004 was passed modifying  the
      earlier order dated 1.3.2001 for  transferring  the  investigation  to
      CBI.


      F.    Aggrieved, the DSP, SBCID, preferred Criminal Appeal No. 1389 of
      2008 before this Court.  The said criminal appeal was disposed  of  by
      this Court vide a detailed judgment and order dated 2.9.2008.  It  was
      observed that by the first order dated 1.3.2001, the  High  Court  had
      declined to handover the investigation to CBI, therefore, it  was  not
      proper for the High Court to pass a fresh order in a petition that had
      been disposed of, directing again the investigation to be made by  the
      CBI. This view was taken in view of the provisions of Section  362  of
      the Code of Criminal Procedure, 1973 (hereinafter referred to  as  the
      `Cr.P.C.’).  This Court also took note of the fact that it was not the
      application by the appellant to transfer the case to CBI.   Thus,  the
      said order dated 1.10.2004 transferring the investigation  to  CBI  by
      the High Court was set aside.  However, this Court kept it  open  that
      the appellant could prefer a fresh criminal petition under Section 482
      Cr.P.C. for transferring  the  investigation  from  the  State  police
      authorities  to CBI, depending  upon subsequent  events.  In  such  an
      eventuality, it  would  be  open  to  High  Court  to  entertain  such
      application and decide the same in accordance with law.


      G.    The appellant was summoned by the DSP,  SBCID  on  7.7.2010  and
      again on 25.10.2010 and  his  statements  were  recorded.   Being  un-
      satisfied with the investigation conducted by the SBCID, the appellant
      filed Crl. O.P. No. 9639 of 2011 in April 2011 before the High  Court,
      seeking transfer of the investigation to CBI.   The  said  application
      has been dismissed vide impugned judgment and order dated 8.12.2011.
           Hence, this appeal.


      3.    Ms. Kamini Jaiswal, learned counsel appearing on behalf  of  the
      appellant, has submitted that there was no justification for the  High
      Court to reject the application seeking transfer of the  investigation
      from the State investigating agency to CBI as the State  investigating
      agency did not conduct the investigation properly as its investigation
      has been tainted  and  biased,  favouring  the  then  RDO.  The  SBCID
      threatened the witnesses and recorded their  version  under  coercion.
      Moreover,  inordinate  delay  had  been  there   in   concluding   the
      investigation.  The High Court could not be justified in  making  such
      an observation that even if a shabby investigation had been  made,  it
      could not be a ground to change the  investigating  agency.   Further,
      there was no material to show as observed by the High Court, that  the
      appellant  had  improved  his  case  stage  by  stage.   Even  if  the
      investigation  was  at  the  verge  of  conclusion  or  already  stood
      concluded, it is  permissible  in  law  to  change  the  investigating
      agency. Thus, the appeal deserves to be allowed.


      4.    On the contrary,  Shri  K.  Ramamurthy  and  Shri  Nagendra  Rai
      learned senior counsel appearing on behalf of the State and respondent
      no. 3, the then RDO, have opposed the appeal contending that there was
      no subsequent development on  the  basis  of  which  the  transfer  of
      investigation could be sought to CBI.  Moreover, it is not a fit  case
      to transfer to CBI.  The appellant is pursuing a trivial  issue  since
      1998 and had been moving from one court to another  for  the  last  15
      years.  The liberty was given to the  appellant  by  this  Court  vide
      order  dated  2.9.2008  to  move  the  High  Court  for  transfer   of
      investigation to CBI only on the basis of subsequent events,  if  any.
      In fact there has been no such subsequent event, which  could  warrant
      such a course of action. This Court has laid down  certain  parameters
      for transferring the case to CBI and the present case  does  not  fall
      within the ambit thereof. The State police  has  already  investigated
      the matter and filed the final report  under  Section  173(2)  Cr.P.C.
      before the court  concerned.  The  appellant  has  already  filed  the
      protest petition and it is for the learned Magistrate  to  decide  the
      case in accordance with law. The Magistrate is not bound to accept the
      report  so  submitted  by  the  investigating  agency,  he  may   take
      cognizance and also direct further investigation under Section  173(8)
      Cr.P.C. Thus, there is no justification to transfer the  case  to  CBI
      and the appeal is liable to be rejected.


           Shri Mukul Gupta, learned senior counsel appearing on behalf  of
      the CBI, supported the case of the respondents and  further  submitted
      that the CBI has a shortage of manpower and is  already  overburdened.
      More so, the present case does not present special features warranting
      transfer to CBI for investigation.


      5.    We have considered the rival submissions  made  by  the  learned
      counsel for the parties and perused the records.
      6.    The issue involved herein, is no more res  integra.  This  Court
      has time and again dealt with the issue under what  circumstances  the
      investigation can be transferred from the State  investigating  agency
      to any other independent investigating agency like CBI.  It  has  been
      held that  the power of transferring such  investigation  must  be  in
      rare and exceptional cases where the court finds it necessary in order
      to do justice between the parties and  to  instil  confidence  in  the
      public  mind,  or  where  investigation  by  the  State  police  lacks
      credibility and it  is  necessary  for  having  “a  fair,  honest  and
      complete investigation”, and particularly, when it  is  imperative  to
      retain public  confidence  in  the  impartial  working  of  the  State
      agencies. Where the  investigation  has  already  been  completed  and
      charge sheet has been filed, ordinarily  superior  courts  should  not
      reopen the investigation and it should be  left  open  to  the  court,
      where the charge sheet has been filed, to proceed with the  matter  in
      accordance with law. Under no circumstances, should the court make any
      expression of its opinion on merit relating to any accusation  against
      any individual.  (Vide:  Gudalure M.J. Cherian  &  Ors.  v.  Union  of
      India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of  U.P.  &  Ors.,
      AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through
      its Secretary v. State of Punjab & Ors.,  AIR  1994  SC  1023;  Vineet
      Narain & Ors., v. Union of India & Anr., AIR 1996 SC  3386;  Union  of
      India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC  314;  Disha  v.
      State of Gujarat & Ors., AIR 2011 SC 3168; Rajender Singh  Pathania  &
      Ors. v. State (NCT of Delhi) & Ors., (2011) 13 SCC 329; and  State  of
      Punjab v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364).


      7.    In  Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010) 2  SCC
      200, this Court dealt with  a  case  where  the  accusation  had  been
      against high officials of the   police  department  of  the  State  of
      Gujarat in respect of killing of persons in a fake encounter  and  the
      Gujarat police after the conclusion of the investigation, submitted  a
      charge sheet before the competent criminal court. The  Court  came  to
      the conclusion that as the allegations of committing murder under  the
      garb of an encounter are not against any third party but  against  the
      top police personnel  of  the  State  of  Gujarat,  the  investigation
      concluded by the State investigating agency may not be  satisfactorily
      held.  Thus, in order to do justice and instil confidence in the minds
      of the victims as well of the public, the State police authority could
      not be allowed to continue with the investigation when allegations and
      offences were mostly against top officials. Thus, the Court held  that
      even if a chargesheet has been filed by the State investigating agency
      there is no prohibition for  transferring  the  investigation  to  any
      other independent investigating agency.


      8.     In  State  of  West  Bengal  v.  Committee  for  Protection  of
      Democratic Rights, AIR 2010 SC 1476,  a  Constitution  Bench  of  this
      Court  has  clarified  that  extraordinary  power  to   transfer   the
      investigation  from  State   investigating   agency   to   any   other
      investigating agency must be exercised sparingly,  cautiously  and  in
      exceptional  situations  where  it  becomes   necessary   to   provide
      credibility and  instil  confidence  in  investigation  or  where  the
      incident may have national and international  ramifications  or  where
      such an  order  may  be  necessary  for  doing  complete  justice  and
      enforcing the fundamental rights.
      (See also: Ashok Kumar Todi v. Kishwar  Jahan  &  Ors.,  AIR  2011  SC
      1254).


      9.    This Court in the case of Sakiri Vasu v. State of UP,  AIR  2008
      SC 907 held:


           “This Court or the High Court has power  under  Article  136  or
           Article 226 to order investigation by  the  CBI.  That,  however
           should  be  done  only  in  some  rare  and  exceptional   case,
           otherwise, the CBI would be flooded with a large number of cases
           and would find it impossible  to  properly  investigate  all  of
           them.”
                                              (Emphasis added)


      10.   In view of the above, the law can be summarised  to  the  effect
      that  the  Court  could  exercise  its   Constitutional   powers   for
      transferring an investigation from the State investigating  agency  to
      any other independent investigating agency like CBI only in  rare  and
      exceptional cases.  Such as where high officials of State  authorities
      are involved, or the accusation itself is against the top officials of
      the investigating  agency  thereby  allowing  them  to  influence  the
      investigation, and further that it is so necessary to do  justice  and
      to instil confidence in the investigation or where  the  investigation
      is prima facie found to be tainted/biased.


      11.   The case is required to be examined in view of aforesaid settled
      legal propositions.
            The matter originated in September 1998 and a period of 15 years
      has already been lapsed. During this period,  respondent  no.  3,  the
      then RDO, against whom the  allegations  are  made,  might  have  been
      transferred to various districts of the  State.   The  allegations  of
      malafide  had  been  made  against  the  police  in  general   without
      impleading any person  by  name.   During  the  period  of  15  years,
      investigation could have been carried out by many police officers.  It
      cannot be presumed that each  of  them  could  be  influenced  by  the
      respondent no. 3.  This Court  had  also  given  the  liberty  to  the
      appellant  to  approach  the   High   Court   for   transferring   the
      investigation to CBI provided there is sufficient  material  available
      subsequent to the earlier orders passed by the High  Court.   Even  if
      the investigating agency did not proceed  promptly  and  was  in  deep
      slumber for a long time, the appellant also did not make  any  attempt
      to move the court for issuance of appropriate  direction  to  transfer
      the case to the CBI. It was at a belated stage when the High Court was
      approached.  In the meanwhile, the High Court came to  the  conclusion
      that the investigation of the case has  already  been  concluded  and,
      therefore, did not transfer the case to CBI.   Admittedly,  the  final
      report has already been filed and the  appellant  is  fully  aware  of
      those facts. If he has not already taken the appropriate steps to meet
      the present situation, he can still do so as  the  learned  Magistrate
      concerned, as we are informed, has not yet passed any final order.  It
      is always open to the Magistrate to accept the final report or  reject
      the same and has the  power  to  direct  further  investigation  under
      Section 173(8) Cr.P.C.


      12.   The High Court while passing the  impugned  judgment  and  order
      had, in fact, taken note of the earlier judgment of this  Court  dated
      2.9.2008 and rejected the application observing  that  the  subsequent
      development would not warrant the transfer of investigation. The  High
      Court has further taken note of the fact that  the  investigation  had
      been  properly  conducted  by  the  State  investigating  agency,   46
      witnesses had been examined and a large number of documents  had  been
      filed and the investigating agency had concluded the investigation  in
      respect of allegations labelled by the appellant against  the  alleged
      accused.


      13.   The High Court has further taken note of the earlier judgment of
      this Court dated 2.9.2008 wherein this Court had given liberty to  the
      appellant to move a fresh application under Section 482 Cr.P.C., if it
      is so required in view of the “subsequent  events  having  been  taken
      place”. The relevant part of the order of this Court reads as under:


           “We make it clear once again that if a fresh  criminal  petition
           under Section 482 of the Code is filed  by  the  respondent  for
           transferring the investigation from State Police authorities  to
           CBI after bringing certain  subsequent  events  that  had  taken
           place after the disposal of the original  criminal  petition  if
           there be any, it would be open for the High Court  to  entertain
           such application if it is  warranted  and  decide  the  same  in
           accordance with law for which we express no opinion  on  merit.”



         (Emphasis added)


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


      15.   In view of the above,  we  do  not  see  any  cogent  reason  to
      interfere with the impugned judgment and order of the High Court.  The
      appeal lacks merit and is, accordingly, dismissed.




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



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





…………………………..................................J.
                                                  (KURIAN JOSEPH)


      NEW DELHI;
      August 21, 2013






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