REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4003 OF 2019
(Arising out of SLP (C) No. 24177 of 2017)
SHREE SHREE RAM JANKI JI …….APPELLANTS
ASTHAN TAPOVAN MANDIR & ANR.
VERSUS
THE STATE OF JHARKHAND & ORS. ….…RESPONDENTS
J U D G M E N T
Hemant Gupta, J.
The present appeal is directed against an order passed by the High Court
of Jharkhand at Ranchi on 07.06.2017 directing the Central Bureau of
Investigation to investigate and to take appropriate action at the earliest and
conclude the investigations preferably within six months. The High Court held as
under:-
“……This Court is of prima facie view that land of the
deity could not have been transferred in any case. This
large scale illegality needs to be enquired into. Now the
question is, who will do so? The land and trust which is
involved in this case is of Ranchi. Allegation is against the
Government and the Board. Board consists of
1
Government functionaries. In this case, another issue is
illegally sanctioning of map by Government Officials.
We find, as submitted by the petitioner that in one Public
Interest Litigation being WP(PIL) No. 1531 of 2011 (Har
Narain Lakhotia Vs. State of Jharkhand and Others) this
Court directed the CBI to enquire/investigate the
criminality part in giving such sanction in respect of many
buildings of Ranchi. The said order has been upheld by
the Hon'ble Supreme Court. This is also one of such case,
which needs investigation.
16. On this background, this Court feels that this matter
be also entrusted to the Central Bureau of Investigation
for investigating the criminality part. This would also
include the aspects and the intent involved in creation of
Trust Deed dated 20.9.2005, transfer/conversion of land,
permission of maps and all other incidental issues
involved.”
2. The said directions were issued finding that the property of Deity Shree
Shree Ram Janki Ji Asthan Tapowan Mandir1
at Ranchi has been transferred
against the mandate of the Trust Deed created by the author of the Trust to
establish Shree Ram Janki Tapowan Mandir Trust2
on 25.02.1948. The said Trust
was reconstituted on 12.05.1987 by virtue of registered deed. Still further, by
another deed dated 20.09.2005, there was again reconstitution of the Trust.
3. The High Court entertained the Public Interest Litigation preferred by
Respondent No. 8, and held that there is no provision in the original Trust Deed to
transfer/sale of the property of the Deity but with ulterior motive, new Trust Deed
was prepared in the year 2005 to usurp the property of the Deity and to facilitate
illegal transfer of land of the Deity.
4. The directions issued by the High Court are subject matter of challenge
before this Court by the Trust and by Pujari of the Mandir. The argument is that
there is provision to develop and transfer the property of the Deity. Some of the
1 Mandir
2 Trust
2
properties of the Trust were being illegally encroached by local inhabitants and for
better return and to increase the funds, the properties were transferred. The
appropriate approvals have been obtained from Bihar State Board of Religious
Trust and that the learned Judicial Commissioner has granted approval of transfer
of immovable property.
5. The High Court found that properties were endowed to the Deity by the
Trust Deed of 1948 and that the Trustees became custodian of the same. The
subsequent Trust Deed of 1987 again prohibits the Trustees from selling or
transferring or settling a land of the Mandir or Deity. The Trust Deed of 1948 and
that of 1987 were authored by Mahant Shri Janki Jiwan Sharan but subsequently
on 20.09.2005 a new Trust Deed has been created. Mahant Shri Ram Sharan
Dass registered the said Trust Deed though the founder was Late Janki Jiwan
Sharan. The said Trust Deed has a clause by which landed property can be sold.
6. The High Court found that the permission of Jharkhand State Hindu
Religious Trust Board granted in the year 2006 was based upon permission
granted by Bihar State Board of Religious Trust in the year 1994 which was
obtained by misrepresentation and fraud.
7. The writ petitioner has invoked the Public Interest Jurisdiction of the High
Court, inter-alia claiming the following reliefs:-
“(i) For issuance of an appropriate writ(s)/order (s)/
direction(s) or a writ in nature of mandamus commanding
upon the respondents to conduct an inquiry preferably by
an Agency other than the Agency of the State in the
matter of illegal transfer of property belonging to Sri Ram
Janki Tapowan Mandir Trust since the substantial
properties of the trust has been misappropriated by the
members of the Trust in connivance with the government
officials for sale of land belonging to the Trust as well as
for construction of building over the land considering the
fact that the valuable property of the Trust has been
3
illegally transferred to the private persons who have the
support of the most of the higher authorities of the State.”
8. The Public Interest Litigation was filed by Respondent No. 8 projecting
himself as a responsible and vigilant citizen of the Country and being a Hindu by
faith, therefore, as under pious responsibility to protect the interest of the Deity as
per his faith. The Respondent No. 8 has not lodged any report before the
concerned police station making grievance of any one of the facts stated in the writ
petition so as to initiate the process of investigations under the Code of Criminal
Procedure, 19733
. The writ petitioner has not made any grievance to any public
authority in respect of the alleged transfers by the Trustees as well.
9. The High Court has passed an order directing investigation by Central
Bureau of Investigation by casually returning a finding that permission was
obtained by the Trust by misrepresentation and fraud. The High Court was again
not careful to return findings on the disputed questions of fact and that too in a
public interest writ petition.
10. The vesting of the property in Deity is a religious endowment but has no
public element in it, the grievance of which can be made in a writ petition filed in
the public interest. We do not say any more than the fact that the High Court
should have refrained from entertaining such Public Interest Litigation in respect of
alleged wrongful sale of property of the religious bodies.
11. Section 44 of the Bihar Hindu Religious Trust Act, 19504
gives power of
transfer of immovable property of a religious trust after taking previous sanction
from the Board. Such permission is to convert any property of the Trust after
approval of the District Judge as provided by Section 28 (j) of the Act. The stand
3 Code
4 Act
4
of the appellants is that they have obtained approval as contemplated by the Act
and such approval has been sought as an act of prudent management. Therefore,
the High Court was not justified in creating a suspicion on an act of transferring the
land of the Deity.
12. The question as to whether the High Court could direct CBI to take over
investigation in the facts of the present case needs to be examined. The
Constitution Bench in its judgment reported as State of West Bengal and Others
v. Committee for Protection of Democratic Rights, West Bengal and Others5
has examined the question as to the rights of CBI to investigate a criminal offence
in a State without its consent. This Court examined Entry 2 of List II of VII
Schedule of the Constitution. It was held that the legislative power of the Union to
provide for the regular police force of one State to exercise power and jurisdiction
in any area outside the State can only be exercised with the consent of the
Government of that particular State in which such area is situated. The Court held
that though the Court had wide powers conferred by Articles 32 and 226 of the
Constitution, but it must bear in mind certain self-imposed limitations on the
exercise of these constitutional powers. This extraordinary power 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 or international ramifications or where such an order is
necessary for doing complete justice and enforcing fundamental rights. The
relevant extract from the judgment reads as under:-
“70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
Articles 32 and 226 of the Constitution, while passing any
order, the Courts must bear in mind certain self-imposed
5 (2010) 3 SCC 571
5
limitations on the exercise of these constitutional powers.
The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a
matter of routine or merely because a party has levelled
some allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise CBI would be
flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
13. The Court approved earlier two Judge Bench Judgment reported as
Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v.
Sahngoo Ram Arya and Another6 wherein it was held that the High Court under
Article 226 of the Constitution can direct inquiry to be conducted by CBI but such
power can be exercised only in cases where there is sufficient material to come to
a prima facie conclusion that there is need for such inquiry. It was held that it is not
sufficient to have such material in the pleadings. The Court also held that the right
to live under Article 21 include the right of a person to live without being hounded
by the police or CBI to find out whether he has committed any offence or is living
as a law-abiding citizen. The relevant extracts from the judgment read as under:-
“5. While none can dispute the power of the High Court
under Article 226 to direct an inquiry by CBI, the said
power can be exercised only in cases where there is
sufficient material to come to a prima facie conclusion that
there is a need for such inquiry. It is not sufficient to have
6 (2002) 5 SCC 521
6
such material in the pleadings. On the contrary, there is a
need for the High Court on consideration of such
pleadings to come to the conclusion that the material
before it is sufficient to direct such an inquiry by CBI. This
is a requirement which is clearly deducible from the
judgment of this Court in the case of Common Cause7
.
This Court in the said judgment at paragraph 174 of the
Report has held thus: (SCC p. 750, para 174)
“174. The other direction, namely, the direction to
CBI to investigate ‘any other offence’ is wholly
erroneous and cannot be sustained. Obviously,
direction for investigation can be given only if an
offence is, prima facie, found to have been
committed or a person's involvement is prima facie
established, but a direction to CBI to investigate
whether any person has committed an offence or
not cannot be legally given. Such a direction would
be contrary to the concept and philosophy of ‘LIFE’
and ‘LIBERTY’ guaranteed to a person under Article
21 of the Constitution. This direction is in complete
negation of various decisions of this Court in which
the concept of ‘LIFE’ has been explained in a
manner which has infused ‘LIFE’ into the letters of
Article 21.”
6. It is seen from the above decision of this Court that the
right to life under Article 21 includes the right of a person
to live without being hounded by the police or CBI to find
out whether he has committed any offence or is living as a
law-abiding citizen. Therefore, it is clear that a decision to
direct an inquiry by CBI against a person can only be
done if the High Court after considering the material on
record comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency, and the same cannot be
done as a matter of routine or merely because a party
makes some such allegations. In the instant case, we see
that the High Court without coming to a definite
conclusion that there is a prima facie case established to
direct an inquiry has proceeded on the basis of “ifs” and
“buts” and thought it appropriate that the inquiry should be
made by CBI. With respect, we think that this is not what
is required by the law as laid down by this Court in the
case of Common Cause.”
7 (1999) 6 SCC 667
7
14. It is the said findings, which were approved specifically by the Constitution
Bench in State of West Bengal (supra) holding as under:-
“71. In Minor Irrigation & Rural Engg. Services,
U.P. v. Sahngoo Ram Arya this Court had said that an
order directing an enquiry by CBI should be passed only
when the High Court, after considering the material on
record, comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency. We respectfully concur
with these observations.”
15. A three Judge Bench Judgment reported as Sujatha Ravi Kiran v. State of
Kerala and Others8 held that the extraordinary power of the Constitutional Courts
in directing CBI to conduct investigation in a case must be exercised rarely in
exceptional circumstances, especially, when there is lack of confidence in the
investigating agency or in the national interest. This Court held as under:-
“10. Taking into account the law laid down by this Court
in Committee for Protection of Democratic Rights 9
,
direction for investigation by CBI was declined by this
Court in K. Saravanan Karuppasamy v. State of
T.N.10 and Sudipta Lenka v. State of Odisha11
.
11. Considering the facts and circumstances of the case
in hand, in the light of the above principles, we are of the
view that the case in hand does not entail a direction for
transferring the investigation from the State police/special
team of State police officers to CBI. The facts and
circumstances in which the offence is alleged to have
been committed can be better investigated into by the
State police. However, having regard to the nature of
allegations levelled by the petitioner, we deem it
appropriate to direct the State of Kerala to constitute a
special team of police officers headed by an officer not
below the rank of Deputy Inspector General of Police to
investigate the matter.”
8 (2016) 7 SCC 597
9 State of W.B. v. Committee for Protection of Democratic Rights (supra)
10 (2014) 10 SCC 406
11 (2014) 11 SCC 527
8
16. In another three Judge Bench Judgment reported as K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai and Others12, it was
held that the Court could exercise its constitutional powers for transferring an
investigation from the State investigating agency to any other independent
investigating agency only in rare and exceptional circumstances. The Court gave
instances 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 to instil confidence in the
investigation.
17. In another two Judge Bench Judgment reported as Bimal Gurung v. Union
of India13 , this Court 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. It was held
as under:-
“29. The law is thus well settled that power of transferring
investigation to other investigating agency must be
exercised in rare and exceptional cases where the court
finds it necessary in order to do justice between the
parties to instil confidence in the public mind, or where
investigation by the State Police lacks credibility. Such
power has to be exercised in rare and exceptional cases.
In K.V. Rajendran v. Supt. of Police, this Court has noted
few circumstances where the Court could exercise its
constitutional power to transfer of investigation from State
Police to CBI such as: (i) where high officials of State
authorities are involved, or (ii) where the accusation itself
is against the top officials of the investigating agency
thereby allowing them to influence the investigation, or (iii)
where investigation prima facie is found to be
tainted/biased.”
12 (2013) 12 SCC 480
13 (2018) 15 SCC 480
9
18. In an earlier two Judge Bench Judgment reported as T.C. Thangaraj v. V.
Engammal and Others14, this Court found that merely because complaint was
against the police officer, the investigations should not be entrusted to Central
Bureau of Investigation. The Court held as under:-
“8. The learned counsel for the complainant, on the other
hand, cited a decision of two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi)15 in which this
Court directed CBI to register a case and investigate into
the complaint of the appellant because the complaint was
against the police officer and the Court was of the view
that the interest of justice would be better served if the
case is registered and investigated by an independent
agency like CBI.
9. The decision of the two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi) will have to be
now read in the light of the principles laid down by the
Constitution Bench of this Court in State of
W.B. v. Committee for Protection of Democratic Rights.
The Constitution Bench has considered at length the
power of the High Court to direct investigation by CBI into
a cognizable offence alleged to have been committed
within the territorial jurisdiction of a State and while taking
the view that the High Court has wide powers under
Article 226 of the Constitution cautioned that the courts
must bear in mind certain self-imposed limitations.
*** *** ***
11. In the impugned order, the High Court has not
exercised its constitutional powers under Article 226 of the
Constitution and directed CBI to investigate into the
complaint with a view to protect the complainant's
personal liberty under Article 21 of the Constitution or to
enforce her fundamental rights guaranteed by Part III of
the Constitution. The High Court has exercised its power
under Section 482 CrPC on a grievance made by the
complainant that her complaint that she was cheated in a
loan transaction of Rs 3 lakhs by the three accused
persons, was not being investigated properly because
one of the accused persons is an Inspector of Police. In
our considered view, this was not one of those
exceptional situations calling for exercise of extraordinary
14 (2011) 12 SCC 328
15 (2006) 2 SCC 677
10
power of the High Court to direct investigation into the
complaint by CBI. If the High Court found that the
investigation was not being completed because P.
Kalaikathiravan, an Inspector of Police, was one of the
accused persons, the High Court should have directed the
Superintendent of Police to entrust the investigation to an
officer senior in rank to the Inspector of Police under
Section 154(3) CrPC and not to CBI.
12. It should also be noted that Section 156(3) of the
Code of Criminal Procedure provides for a check by the
Magistrate on the police performing their duties and
where the Magistrate finds that the police have not done
their duty or not investigated satisfactorily, he can direct
the police to carry out the investigation properly, and can
monitor the same. (See Sakiri Vasu v. State of U.P.16)”
19. We find that the finding recorded by the High Court that the Deity could not
transfer its land in any case is not tenable. The appellant relies upon statutory
provisions in support of its stand to transfer of land. The sweeping remarks that
the allegations are against the Government and the Board which consist of
Government functionaries; therefore, the matter requires to be investigated by CBI
are wholly untenable and such sweeping remarks against the Government and/or
the Board should not have been made. The functioning in the Government is by
different Officers and the working of the Executive has inbuilt checks and
balances. Therefore, merely because, permission has been granted by a
functionary of the State Government will not disclose a criminal offence. The High
Court has thus travelled much beyond its jurisdiction in directing investigations by
CBI in a matter of sale of property of the Deity. Still further, the High Court has
issued directions without their being any complaint to the local police in respect of
the property of the religious Trust.
16 (2008) 2 SCC 409
11
20. It may be kept in mind that the public order (Entry 1) and the police (Entry
2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a
primary responsibility of the investigating agency of the State Police to investigate
all offences which are committed within its jurisdiction. The investigations can be
entrusted to Central Bureau of Investigation on satisfaction of the conditions as
specified therein only in exceptional circumstances as laid down in State of West
Bengal (supra) case. Such power cannot and should not be exercised in a routine
manner without examining the complexities, nature of offence and some time the
tardy progress in the investigations involving high officials of the State investigating
agency itself.
21. We find that the High Court has completely misdirected itself in directing the
Central Bureau of Investigation to take over investigation in a matter which relates
to the rights of the trustees to sell property of a religious Trust or Deity, giving rise
to civil dispute.
22. In view of the above, the appeal is allowed. The order of the High Court is
set aside and the writ petition is thus dismissed.
..….…………………………………….J.
[Dr. Dhananjaya Y. Chandrachud]
.…………………………………………J.
[Hemant Gupta]
New Delhi
May 1, 2019.
12
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4003 OF 2019
(Arising out of SLP (C) No. 24177 of 2017)
SHREE SHREE RAM JANKI JI …….APPELLANTS
ASTHAN TAPOVAN MANDIR & ANR.
VERSUS
THE STATE OF JHARKHAND & ORS. ….…RESPONDENTS
J U D G M E N T
Hemant Gupta, J.
The present appeal is directed against an order passed by the High Court
of Jharkhand at Ranchi on 07.06.2017 directing the Central Bureau of
Investigation to investigate and to take appropriate action at the earliest and
conclude the investigations preferably within six months. The High Court held as
under:-
“……This Court is of prima facie view that land of the
deity could not have been transferred in any case. This
large scale illegality needs to be enquired into. Now the
question is, who will do so? The land and trust which is
involved in this case is of Ranchi. Allegation is against the
Government and the Board. Board consists of
1
Government functionaries. In this case, another issue is
illegally sanctioning of map by Government Officials.
We find, as submitted by the petitioner that in one Public
Interest Litigation being WP(PIL) No. 1531 of 2011 (Har
Narain Lakhotia Vs. State of Jharkhand and Others) this
Court directed the CBI to enquire/investigate the
criminality part in giving such sanction in respect of many
buildings of Ranchi. The said order has been upheld by
the Hon'ble Supreme Court. This is also one of such case,
which needs investigation.
16. On this background, this Court feels that this matter
be also entrusted to the Central Bureau of Investigation
for investigating the criminality part. This would also
include the aspects and the intent involved in creation of
Trust Deed dated 20.9.2005, transfer/conversion of land,
permission of maps and all other incidental issues
involved.”
2. The said directions were issued finding that the property of Deity Shree
Shree Ram Janki Ji Asthan Tapowan Mandir1
at Ranchi has been transferred
against the mandate of the Trust Deed created by the author of the Trust to
establish Shree Ram Janki Tapowan Mandir Trust2
on 25.02.1948. The said Trust
was reconstituted on 12.05.1987 by virtue of registered deed. Still further, by
another deed dated 20.09.2005, there was again reconstitution of the Trust.
3. The High Court entertained the Public Interest Litigation preferred by
Respondent No. 8, and held that there is no provision in the original Trust Deed to
transfer/sale of the property of the Deity but with ulterior motive, new Trust Deed
was prepared in the year 2005 to usurp the property of the Deity and to facilitate
illegal transfer of land of the Deity.
4. The directions issued by the High Court are subject matter of challenge
before this Court by the Trust and by Pujari of the Mandir. The argument is that
there is provision to develop and transfer the property of the Deity. Some of the
1 Mandir
2 Trust
2
properties of the Trust were being illegally encroached by local inhabitants and for
better return and to increase the funds, the properties were transferred. The
appropriate approvals have been obtained from Bihar State Board of Religious
Trust and that the learned Judicial Commissioner has granted approval of transfer
of immovable property.
5. The High Court found that properties were endowed to the Deity by the
Trust Deed of 1948 and that the Trustees became custodian of the same. The
subsequent Trust Deed of 1987 again prohibits the Trustees from selling or
transferring or settling a land of the Mandir or Deity. The Trust Deed of 1948 and
that of 1987 were authored by Mahant Shri Janki Jiwan Sharan but subsequently
on 20.09.2005 a new Trust Deed has been created. Mahant Shri Ram Sharan
Dass registered the said Trust Deed though the founder was Late Janki Jiwan
Sharan. The said Trust Deed has a clause by which landed property can be sold.
6. The High Court found that the permission of Jharkhand State Hindu
Religious Trust Board granted in the year 2006 was based upon permission
granted by Bihar State Board of Religious Trust in the year 1994 which was
obtained by misrepresentation and fraud.
7. The writ petitioner has invoked the Public Interest Jurisdiction of the High
Court, inter-alia claiming the following reliefs:-
“(i) For issuance of an appropriate writ(s)/order (s)/
direction(s) or a writ in nature of mandamus commanding
upon the respondents to conduct an inquiry preferably by
an Agency other than the Agency of the State in the
matter of illegal transfer of property belonging to Sri Ram
Janki Tapowan Mandir Trust since the substantial
properties of the trust has been misappropriated by the
members of the Trust in connivance with the government
officials for sale of land belonging to the Trust as well as
for construction of building over the land considering the
fact that the valuable property of the Trust has been
3
illegally transferred to the private persons who have the
support of the most of the higher authorities of the State.”
8. The Public Interest Litigation was filed by Respondent No. 8 projecting
himself as a responsible and vigilant citizen of the Country and being a Hindu by
faith, therefore, as under pious responsibility to protect the interest of the Deity as
per his faith. The Respondent No. 8 has not lodged any report before the
concerned police station making grievance of any one of the facts stated in the writ
petition so as to initiate the process of investigations under the Code of Criminal
Procedure, 19733
. The writ petitioner has not made any grievance to any public
authority in respect of the alleged transfers by the Trustees as well.
9. The High Court has passed an order directing investigation by Central
Bureau of Investigation by casually returning a finding that permission was
obtained by the Trust by misrepresentation and fraud. The High Court was again
not careful to return findings on the disputed questions of fact and that too in a
public interest writ petition.
10. The vesting of the property in Deity is a religious endowment but has no
public element in it, the grievance of which can be made in a writ petition filed in
the public interest. We do not say any more than the fact that the High Court
should have refrained from entertaining such Public Interest Litigation in respect of
alleged wrongful sale of property of the religious bodies.
11. Section 44 of the Bihar Hindu Religious Trust Act, 19504
gives power of
transfer of immovable property of a religious trust after taking previous sanction
from the Board. Such permission is to convert any property of the Trust after
approval of the District Judge as provided by Section 28 (j) of the Act. The stand
3 Code
4 Act
4
of the appellants is that they have obtained approval as contemplated by the Act
and such approval has been sought as an act of prudent management. Therefore,
the High Court was not justified in creating a suspicion on an act of transferring the
land of the Deity.
12. The question as to whether the High Court could direct CBI to take over
investigation in the facts of the present case needs to be examined. The
Constitution Bench in its judgment reported as State of West Bengal and Others
v. Committee for Protection of Democratic Rights, West Bengal and Others5
has examined the question as to the rights of CBI to investigate a criminal offence
in a State without its consent. This Court examined Entry 2 of List II of VII
Schedule of the Constitution. It was held that the legislative power of the Union to
provide for the regular police force of one State to exercise power and jurisdiction
in any area outside the State can only be exercised with the consent of the
Government of that particular State in which such area is situated. The Court held
that though the Court had wide powers conferred by Articles 32 and 226 of the
Constitution, but it must bear in mind certain self-imposed limitations on the
exercise of these constitutional powers. This extraordinary power 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 or international ramifications or where such an order is
necessary for doing complete justice and enforcing fundamental rights. The
relevant extract from the judgment reads as under:-
“70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
Articles 32 and 226 of the Constitution, while passing any
order, the Courts must bear in mind certain self-imposed
5 (2010) 3 SCC 571
5
limitations on the exercise of these constitutional powers.
The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a
matter of routine or merely because a party has levelled
some allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise CBI would be
flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
13. The Court approved earlier two Judge Bench Judgment reported as
Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v.
Sahngoo Ram Arya and Another6 wherein it was held that the High Court under
Article 226 of the Constitution can direct inquiry to be conducted by CBI but such
power can be exercised only in cases where there is sufficient material to come to
a prima facie conclusion that there is need for such inquiry. It was held that it is not
sufficient to have such material in the pleadings. The Court also held that the right
to live under Article 21 include the right of a person to live without being hounded
by the police or CBI to find out whether he has committed any offence or is living
as a law-abiding citizen. The relevant extracts from the judgment read as under:-
“5. While none can dispute the power of the High Court
under Article 226 to direct an inquiry by CBI, the said
power can be exercised only in cases where there is
sufficient material to come to a prima facie conclusion that
there is a need for such inquiry. It is not sufficient to have
6 (2002) 5 SCC 521
6
such material in the pleadings. On the contrary, there is a
need for the High Court on consideration of such
pleadings to come to the conclusion that the material
before it is sufficient to direct such an inquiry by CBI. This
is a requirement which is clearly deducible from the
judgment of this Court in the case of Common Cause7
.
This Court in the said judgment at paragraph 174 of the
Report has held thus: (SCC p. 750, para 174)
“174. The other direction, namely, the direction to
CBI to investigate ‘any other offence’ is wholly
erroneous and cannot be sustained. Obviously,
direction for investigation can be given only if an
offence is, prima facie, found to have been
committed or a person's involvement is prima facie
established, but a direction to CBI to investigate
whether any person has committed an offence or
not cannot be legally given. Such a direction would
be contrary to the concept and philosophy of ‘LIFE’
and ‘LIBERTY’ guaranteed to a person under Article
21 of the Constitution. This direction is in complete
negation of various decisions of this Court in which
the concept of ‘LIFE’ has been explained in a
manner which has infused ‘LIFE’ into the letters of
Article 21.”
6. It is seen from the above decision of this Court that the
right to life under Article 21 includes the right of a person
to live without being hounded by the police or CBI to find
out whether he has committed any offence or is living as a
law-abiding citizen. Therefore, it is clear that a decision to
direct an inquiry by CBI against a person can only be
done if the High Court after considering the material on
record comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency, and the same cannot be
done as a matter of routine or merely because a party
makes some such allegations. In the instant case, we see
that the High Court without coming to a definite
conclusion that there is a prima facie case established to
direct an inquiry has proceeded on the basis of “ifs” and
“buts” and thought it appropriate that the inquiry should be
made by CBI. With respect, we think that this is not what
is required by the law as laid down by this Court in the
case of Common Cause.”
7 (1999) 6 SCC 667
7
14. It is the said findings, which were approved specifically by the Constitution
Bench in State of West Bengal (supra) holding as under:-
“71. In Minor Irrigation & Rural Engg. Services,
U.P. v. Sahngoo Ram Arya this Court had said that an
order directing an enquiry by CBI should be passed only
when the High Court, after considering the material on
record, comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency. We respectfully concur
with these observations.”
15. A three Judge Bench Judgment reported as Sujatha Ravi Kiran v. State of
Kerala and Others8 held that the extraordinary power of the Constitutional Courts
in directing CBI to conduct investigation in a case must be exercised rarely in
exceptional circumstances, especially, when there is lack of confidence in the
investigating agency or in the national interest. This Court held as under:-
“10. Taking into account the law laid down by this Court
in Committee for Protection of Democratic Rights 9
,
direction for investigation by CBI was declined by this
Court in K. Saravanan Karuppasamy v. State of
T.N.10 and Sudipta Lenka v. State of Odisha11
.
11. Considering the facts and circumstances of the case
in hand, in the light of the above principles, we are of the
view that the case in hand does not entail a direction for
transferring the investigation from the State police/special
team of State police officers to CBI. The facts and
circumstances in which the offence is alleged to have
been committed can be better investigated into by the
State police. However, having regard to the nature of
allegations levelled by the petitioner, we deem it
appropriate to direct the State of Kerala to constitute a
special team of police officers headed by an officer not
below the rank of Deputy Inspector General of Police to
investigate the matter.”
8 (2016) 7 SCC 597
9 State of W.B. v. Committee for Protection of Democratic Rights (supra)
10 (2014) 10 SCC 406
11 (2014) 11 SCC 527
8
16. In another three Judge Bench Judgment reported as K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai and Others12, it was
held that the Court could exercise its constitutional powers for transferring an
investigation from the State investigating agency to any other independent
investigating agency only in rare and exceptional circumstances. The Court gave
instances 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 to instil confidence in the
investigation.
17. In another two Judge Bench Judgment reported as Bimal Gurung v. Union
of India13 , this Court 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. It was held
as under:-
“29. The law is thus well settled that power of transferring
investigation to other investigating agency must be
exercised in rare and exceptional cases where the court
finds it necessary in order to do justice between the
parties to instil confidence in the public mind, or where
investigation by the State Police lacks credibility. Such
power has to be exercised in rare and exceptional cases.
In K.V. Rajendran v. Supt. of Police, this Court has noted
few circumstances where the Court could exercise its
constitutional power to transfer of investigation from State
Police to CBI such as: (i) where high officials of State
authorities are involved, or (ii) where the accusation itself
is against the top officials of the investigating agency
thereby allowing them to influence the investigation, or (iii)
where investigation prima facie is found to be
tainted/biased.”
12 (2013) 12 SCC 480
13 (2018) 15 SCC 480
9
18. In an earlier two Judge Bench Judgment reported as T.C. Thangaraj v. V.
Engammal and Others14, this Court found that merely because complaint was
against the police officer, the investigations should not be entrusted to Central
Bureau of Investigation. The Court held as under:-
“8. The learned counsel for the complainant, on the other
hand, cited a decision of two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi)15 in which this
Court directed CBI to register a case and investigate into
the complaint of the appellant because the complaint was
against the police officer and the Court was of the view
that the interest of justice would be better served if the
case is registered and investigated by an independent
agency like CBI.
9. The decision of the two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi) will have to be
now read in the light of the principles laid down by the
Constitution Bench of this Court in State of
W.B. v. Committee for Protection of Democratic Rights.
The Constitution Bench has considered at length the
power of the High Court to direct investigation by CBI into
a cognizable offence alleged to have been committed
within the territorial jurisdiction of a State and while taking
the view that the High Court has wide powers under
Article 226 of the Constitution cautioned that the courts
must bear in mind certain self-imposed limitations.
*** *** ***
11. In the impugned order, the High Court has not
exercised its constitutional powers under Article 226 of the
Constitution and directed CBI to investigate into the
complaint with a view to protect the complainant's
personal liberty under Article 21 of the Constitution or to
enforce her fundamental rights guaranteed by Part III of
the Constitution. The High Court has exercised its power
under Section 482 CrPC on a grievance made by the
complainant that her complaint that she was cheated in a
loan transaction of Rs 3 lakhs by the three accused
persons, was not being investigated properly because
one of the accused persons is an Inspector of Police. In
our considered view, this was not one of those
exceptional situations calling for exercise of extraordinary
14 (2011) 12 SCC 328
15 (2006) 2 SCC 677
10
power of the High Court to direct investigation into the
complaint by CBI. If the High Court found that the
investigation was not being completed because P.
Kalaikathiravan, an Inspector of Police, was one of the
accused persons, the High Court should have directed the
Superintendent of Police to entrust the investigation to an
officer senior in rank to the Inspector of Police under
Section 154(3) CrPC and not to CBI.
12. It should also be noted that Section 156(3) of the
Code of Criminal Procedure provides for a check by the
Magistrate on the police performing their duties and
where the Magistrate finds that the police have not done
their duty or not investigated satisfactorily, he can direct
the police to carry out the investigation properly, and can
monitor the same. (See Sakiri Vasu v. State of U.P.16)”
19. We find that the finding recorded by the High Court that the Deity could not
transfer its land in any case is not tenable. The appellant relies upon statutory
provisions in support of its stand to transfer of land. The sweeping remarks that
the allegations are against the Government and the Board which consist of
Government functionaries; therefore, the matter requires to be investigated by CBI
are wholly untenable and such sweeping remarks against the Government and/or
the Board should not have been made. The functioning in the Government is by
different Officers and the working of the Executive has inbuilt checks and
balances. Therefore, merely because, permission has been granted by a
functionary of the State Government will not disclose a criminal offence. The High
Court has thus travelled much beyond its jurisdiction in directing investigations by
CBI in a matter of sale of property of the Deity. Still further, the High Court has
issued directions without their being any complaint to the local police in respect of
the property of the religious Trust.
16 (2008) 2 SCC 409
11
20. It may be kept in mind that the public order (Entry 1) and the police (Entry
2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a
primary responsibility of the investigating agency of the State Police to investigate
all offences which are committed within its jurisdiction. The investigations can be
entrusted to Central Bureau of Investigation on satisfaction of the conditions as
specified therein only in exceptional circumstances as laid down in State of West
Bengal (supra) case. Such power cannot and should not be exercised in a routine
manner without examining the complexities, nature of offence and some time the
tardy progress in the investigations involving high officials of the State investigating
agency itself.
21. We find that the High Court has completely misdirected itself in directing the
Central Bureau of Investigation to take over investigation in a matter which relates
to the rights of the trustees to sell property of a religious Trust or Deity, giving rise
to civil dispute.
22. In view of the above, the appeal is allowed. The order of the High Court is
set aside and the writ petition is thus dismissed.
..….…………………………………….J.
[Dr. Dhananjaya Y. Chandrachud]
.…………………………………………J.
[Hemant Gupta]
New Delhi
May 1, 2019.
12
