Court on Its Own Motion Vs. the Government of Himachal Pradesh Through Secretary (Home) and Others - Court Judgment

Rajiv Sharma, J.

oral:

1. The Court has taken cognizance of the letter addressed by Satvir Kaur dated 7.9.2011. The gist of the letter is that though the F.I.R. has been registered after the directions issued by this Court in Cr.W.P. No. 22/2010, however, investigation has not been carried out in the case in objective and fair manner. Notice was issued to the respondents on 22.9.2011. Thereafter, detailed orders were passed by this Court on 19.10.2011 and 24.11.2011. The matter was taken up today.

2. Petitioner’s husband has not come home after 6.6.2010. Initially, even an F.I.R. was not registered by the police. The petitioner approached this Court by way of Cr.W.P. No. 22/2010 seeking direction to the police to register F.I.R. Cr.W.P. No. 22/2010 was disposed of by this Court on 24.2.2011 directing the police to register the F.I.R. Petitioner was also awarded special compensation of ` one lakh. The F.I.R. though has been registered on 24.2.2011, but it is evident from the affidavits filed by the respondents that they have treated this case as a simple case of missing person.

3. Mr. J.K. Verma, learned Deputy Advocate General submits that special team was constituted on 20.7.2011 and the same was reconstituted on 12.10.2011 to investigate the matter. The F.I.R. though registered on 24.2.2011, but till date the investigation carried out by the police department is not satisfactory. The investigation teams have only recorded the statements of the family members and they have reiterated that they want the matter to be investigated by the Central Bureau of Investigation. Petitioner has also highlighted in her application dated 7.9.2011 that since the police officers/officials have been directed to pay compensation, they are not investigating the matter in a just and fair manner. It was necessary for the investigating team to interrogate all those persons, who according to the petitioner and her family members are suspect. The investigating team has only made inquiries from few persons, who have seen the husband of the petitioner on 6.6.2011. We are not satisfied with the investigation carried out by the police till date. Thus, it is a prima facie case calling for the investigation by the Central Bureau of Investigation.

4. Their Lordships of the Hon’ble Supreme Court in Central Bureau of Investigation though S.P. Jaipur versus State of Rajasthan and another, (2001) 3 SCC 333 have held that the powers of the High Court under Article 226 of the Constitution of India or the Supreme Court under Article 32 or Article 142 (1) of the Constitution can be invoked, though sparingly, for giving such direction to Central Bureau of Investigation in certain cases. Their Lordships have held as under:

“14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to the CBI to investigate in certain cases, [vide Kashmeri Devi vs. Delhi Administration and anr. {1988 (Supple.) SCC 482} and Maniyeri Madhavan vs. Sub-Inspector of Police and ors. {1994 (1) SCC 536}]. A two Judge Bench of this Court has by an order dated 10.3.1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

15. In Mohammed Anis vs. Union of India and ors. {1994 Supple (1) SCC 145} Ahmadi, J. (as his Lordship then was) has observed thus (SCC pp. 148-49, para 6):

“6. True it is, that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a larger Bench everything does not grind to a halt. The reference to the expression court in that order cannot in the context mean the Apex Court for the reason that the Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or matter pending before it.

16. As the present discussion is restricted to the question whether a magistrate can direct the CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.”

5. Their Lordships of the Hon’ble Supreme Court in Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others versus Sahngoo Ram Arya and another, (2002) 5 SCC 521 have held that the High Court under Article 226 of the Constitution of India can direct an inquiry by the Central Bureau of Investigation against a person only if the High Court after considering the material on record comes to a conclusion that such material does discloses a prima facie calling for an investigation by Central Bureau of Investigation or any other similar agency. Their Lordships have held as under:

“5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by the 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 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 the CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause (supra). This Court in the said judgment at paragraph 174 of the report has held thus : (SCC p.750, para 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 the CBI to find out whether he has committed any offence or is living as a lawabiding citizen. Therefore, it is clear that a decision to direct an inquiry by the 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 the 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 the 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.”

6. Their Lordships of the Hon’ble Supreme Court in Bhavesh Jayanti Lakhani versus State of Maharashtra and others (2009) 9 SCC 551 have reiterated that superior courts have power to issue direction to Central Bureau of Investigation to investigate a matter. Their Lordships have held as under:

“99. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by CBI by the superior courts of the country is permissible. As the law stands, we place on record such directions by the superior courts are permissible.”

7. Their Lordships of the Hon’ble Supreme Court in Rubabbuddin Sheikh versus State of Gujarat and others, (2010) 2 SCC 200 have held that the case can be transferred to C.B.I. for investigation even if the State Police had completed the investigation and charge-sheet had been submitted. Their Lordships have further held that in an appropriate case, the court is empowered to hand over investigation to an independent agency like CBI. Their Lordships have held as under:

“53. It is an admitted position in the present case that the accusations are directed against the local police personnel in which High Police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility, however, faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody.

54. It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI authorities would be an appropriate authority to investigate the case.

56. In Kashmeri Devi vs. Delhi Administration, (supra), this court held that in a case where the police had not acted fairly and in fact acted in partisan manner to shield real culprits, it would be proper and interest of justice will be served if such investigation is handed over to the CBI authorities or an independent agency for proper investigation of the case. In this case, taking into consideration the grave allegations made against the high police officials of the State in respect of which some of them have already been in custody, we feel it proper and appropriate and in the interest of justice even at this stage, that is, when the charge sheet has already been submitted, the investigation shall be transferred to the CBI Authorities for proper and thorough investigation of the case.

57. In Kashmeri Devi (supra), this Court also observed as follows: -

"Since according to the respondent charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law."

60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi learned senior counsel appearing for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.”

8. Their Lordships of the Hon’ble Supreme Court in State of West Bengal and others versus Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 have held that in so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such 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. Their Lordships have further held that this extraordinary power must be exercised sparingly, cautiously and in exception situations where it becomes necessary to provide credibility and instill 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. Their Lordships have held 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 limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the 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 extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill 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 the 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.

71. In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. Vs. Sahngoo Ram Arya and Anr.31, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations.

9. On perusing the records and after having watched the progress of investigation and after having heard the counsel on both sides, we find that the investigation is conducted in an absolutely lackadaisical manner. The same prima facie is not in conformity with the provisions of section 173 of the Code of Criminal Procedure. It is an exceptional case necessitating handing over the investigation to Central Bureau of Investigation. The investigation is required to proceed expeditiously. It is required to be done in most independent and objective manner. It should be done in fair and unbiased manner.

10. On the oral request of Mr. Sanjeev Sood, Central Bureau of Investigation is added as respondent No.6. The Registry is directed to carry out necessary corrections in the memo of parties.

11. Consequently, the petition is allowed. The investigation of F.I.R. No. 39/2011 is handed over to the Central Bureau of Investigation. The investigating Officer is directed to handover the complete records to the Central Bureau of Investigation, Shimla within a period of 7 days from today. Thereafter, the Superintendent of Police, C.B.I. shall depute an Officer not below the rank of Deputy Superintendent of Police to carry out investigation. The investigation shall be carried out and completed within a period of two months thereafter. The final report under section 173 (2) of the Code of Criminal Procedure shall be filed within another three weeks before the Court of competent jurisdiction. No costs.