IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ WRIT PETITION No.8201 OF 2019
% Delivered on: -06-2021
Between:
# Mr. B. Sailesh Saxena .. Petitioner
Vs.
$ The Union of India, rep.by its Secretary of
Ministry of Home Affairs, New Delhi & Others .. Respondents
! For Petitioner : Mr. P.S.P. Suresh Kumar
^ For Respondent Nos.1 & 2 : Mr. N. Rajeshwar Rao,
learned Asst. Solicitor General
For Respondent No.3 : Mr. K. Surender,
learned Spl.P.P. for CBI
For Respondent Nos.4,5,6&7 : Govt. Pleader for Home
< Gist :
> Head Note :
? Cases Referred :
1. (2008) 2 SCC 409
2. AIR 2020 SC (Criminal) 948
3. AIR 2013 SC (SUPP) 508
4. (2010) 3 SCC 571
5. (2014) 8 SCC 768
6. (2015) 9 SCC 795
7. (2017) 12 SC 775
8. 2020 Law Suit (AP) 119
9. (2018) 7 SCC 365
10. 1994 (Supp) (1) SCC 143
11. (1994) 6 SCC 275
12. (2013) 10 SCC 611
KL,J
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HONOURABLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.8201 of 2019
ORDER:
Heard Sri P.S.P.Suresh Kumar, learned counsel representing Mr. Abu Akram, learned counsel for the petitioner, Sri N. Rajeshwar Rao, learned Assistant Solicitor General appearing on behalf of respondent Nos.1 and 2, Sri K. Surender, learned Special Public Prosecutor for CBI appearing on behalf of respondent No.3 and learned Government Pleader for Home appearing on behalf of respondent Nos.4, 5, 6 and 7.
2. The petitioner herein filed the present writ petition seeking following reliefs:
i) To transfer the Investigation in Crime No.103/19 from Respondent No.7 (SHO Nampally) to Respondent No.3 (Central Bureau of Investigation because the Respondent No.7 (SHO Nampally) is biased to perform proper and fair investigation due to involvement of Higher Police officials in the present Crime along with politicians and this Hon'ble Court has to curtail such type of illegal investigation by handover the investigation to other independent investigation agency like Central Bureau of Investigation as described by the Hon'ble Supreme Court in State of Pubnjab vs CBI. As the Hon'ble Apex Court in State of Punjab versus CBI reported in (2011) 9 SCC 182 has rightly observed that in cases where the senior functionaries of the State police and KL,J wp_8201_2019 3 political leaders were to be named and political and administrative compulsions then to bring home the truth then in such cases it was only just to meet the ends of the justice to refer the investigation in such matters to the Central Bureau of Investigation and pass such other order or orders as this Hon'ble Court deems fit and proper in the interest of justice.
ii) To declare the inaction on the part of Respondent No.7 to record the statement of the petitioner in respect of crime No.103/19 of Nampally P.S. in respect of involvement of Respondent No.8 to 11 along with Respondent No.12 in consonance of political land grabbers for executing the present heinous Crime of murder of the petitioner along with his brother-in-law as illegal, arbitrary and unconstitutional and consequently direct the Respondent No. 7 to record the statement of the petitioners fairly without under the pressure/influence of Respondent 8-11 and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice.
iii) To declare the action of Respondent No.7 for performing biased and tainted investigation in Crime No.103/19, Nampally P.S. under pressure/influence of Respondent No.8 to 11 from the criminal prosecution initiated by the petitioner due to involvement of Respondent No.8 to 11 along with Respondent No.12 in consonance of political land grabbers for executing the present heinous crime of murder of the petitioner along with his brother-in-
KL,J wp_8201_2019 4 law as illegal, arbitrary and unconstitutional pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice.
iv) To declare the action of Respondent No.7 for not arraying the name of Respondent No. 8 to 11, 13 to 15, 17-22 along with Respondent No.12 as accused in crime No.103/19 of Nampally P.S. despite of statement given by the petitioner along with evidence as illegal, arbitrary and unconstitutional pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice.
v) To direct the Respondent No.1 and 2 to make tne enquiry in all thee illegal activities of police officials of Central Crime Station for highhandedly foisting false case against the petitioners in civil disputes and causing illegal custodial death of the petitioners father by doing custodial violence on 21-05-2017 and also made attempt to murder of petitioner on 10-04-2019 under political influence of political land grabbers and pass such other order or orders may deem fit and proper in the circumstances of the case pending disposal of the above writ petition. FACTS:
3. On 10.04.2019 at about 7 pm the petitioner herein along with his brother-in-law i.e. Bhupender Rathod went to More Supermarket, Shanti Nagar, Hyderabad for the purpose of purchase of vegetables. When they were coming out of said super market, KL,J wp_8201_2019 5 they were attacked with deadly weapons by one R. Srinivas and others and they injured the petitioner on his throat, palm and right arm and severe injury has been inflicted on his throat and they injured the brother-in-law of the petitioner at his elbow, stomach and leg and they threw acid. When the brother-in-law of the petitioner tried to save him and two police men were standing nearby. While injuring the petitioner and his brother-in-law, R. Srinivas shouted that even if he kills the petitioner, he will be saved by K.N. Vijay Kumar, ACP and his boss and they fled in white colour, Range Rover S.U.V. On the basis of the complaint lodged by brother-in-law of the petitioner on 10.04.2019, police Nampally have registered a case in crime No.103 of 2019 against R. Srinivas and others for the offence under Section 307 read with Section 34 IPC. According to petitioner, despite registration of crime on 10.04.2019 police had not completed the investigation so far. CONTENTIONS OF THE PETITIONER:
4. The petitioner being a practicing Advocate filed several cases questioning the various Government Orders issued by the Government and also tried to save the Government land from land grabbers. He has obtained interim orders on Government Order in respect of land admeasuring Acs.78-00 guntas in survey No.294 to 299 of Gudimalkapur Village. He has filed various writ petitions on behalf of his client Mr. Deepak Reddy and others questioning the various Government Orders issued by the Government KL,J wp_8201_2019 6 in respect of land admeasuring Acs.12-05 guntas in Road No.12 of Banjara Hills, Hyderabad. Several cases wherein the petitioner appeared on behalf of his clients are pending in various courts. Political leaders and officials have bore grudge against the petitioner herein for filing the above said cases and attempt to kill the petitioner was made and therefore, he has submitted representations to the Commissioner of Police to give security to him. He has also filed WP.No.20011 of 2009 seeking police protection. He has obtained several prohibitory orders against political leaders and land grabbers from various courts as a counsel in respect of properties involved hundreds of crores. He has also filed cases against leaders belong to various political parties. The leaders of political parties bore grudge against the petitioner herein. In an attack with iron rods, the petitioner's spinal cord got damaged. He was admitted in hospital for a long time. Several false cases were foisted against him at the instance of political leaders and land grabbers. Petitioner herein filed several writ petitions and criminal petitions to quash the said proceedings pending against him. There is a big conspiracy in which many politicians of ruling party including respondent Nos.8, 9, 10, 11 and 22 were involved. Since the police have not registered the complaints lodged by his clients, the petitioner has filed several private complaints under Section 200 Cr.P.C. before the learned Magistrates, who in turn referred the same for the purpose of investigation under Section 156 (3) Cr.P.C. The police officials KL,J wp_8201_2019 7 have bore grudge against the petitioner for the same. Police have also harassed the father of the petitioner who is 75 years old man. He was taken into police custody on 25.01.2017 by respondent Nos.8 to 11 and 22 and father of the petitioner died while he was in custody. Since no action is taken on the custodial death of his father, the petitioner has filed WP.No.12297 of 2018 for registration of crime and for referring the matter to C.B.I. and it is pending before this Court. The mother of the petitioner has also filed writ petition under Article 32 of the Constitution before the Hon'ble Supreme Court and the Hon'ble Supreme directed the mother of the petitioner to approach this Court and directed this Court to hear the WP.No.12297 of 2018 as expeditiously as possible. Due to filing of the said case, the police officials have developed grudge against the petitioner herein. Respondent No.8 on the instructions of his boss with the help of his business partner R. Srinivas made a plan to eliminate the petitioner and in the said course of action, attempt was made on 10.04.2019 to kill him. Though the crime was registered on 10.04.2019 under Section 307 IPC read with Section 34 IPC, the police have not completed the investigation so far. Since there are allegations against K.N. Vijaykumar, ACP CCS DD, Hyderabad and G. Jogaiah, Addl. Deputy Commissioner of Police, Mr. Avinash Mohanthy, the Deputy Commissioner of Police, the Investigating Officer in Cr.No.103 of 2019 did not complete the investigation so far. The police have not been conducting impartial investigation in KL,J wp_8201_2019 8 the said crime. The name of said K.N. Vijayakumar, ACP is also specifically mentioned in the complaint itself and higher police officials were also involved in the said crime. The petitioner is having apprehension that State Police may not conduct fair and impartial investigation in crime No.103 of 2019 and therefore, he sought that investigation has to be entrusted to an independent agency like Central Bureau of Investigation (C.B.I.). He has filed a detailed writ affidavit reiterating the said facts. Learned counsel for the petitioner relied upon the principles laid down by the Apex Court and this Court in several judgments in support of his contention.
5. The petitioner has filed additional affidavit vide USR No.11303 dated 23.02.2021 stating that he made respondent Nos.8 to 22 as parties. He made certain allegations against them. But said respondent Nos.8 to 22 including respondent No.12 are not necessary parties to the present writ petition, since the relief sought in the writ petition is only for transfer of investigation and they have no say at the stage of investigation or at the stage of transfer of investigation. Hence, he is not pressing the writ petition against respondent Nos.8 to 22 and he is reserving his right to agitate his grievance about their involvement in the offence before the Investigating Agency concerned. With the said contentions, petitioner sought to dismiss the present writ petition against respondent Nos.8 to 22 as not pressed.
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6. With the said contentions, learned senior Counsel for the petitioner sought to entrust the investigation to C.B.I. CONTENTIONS OF RESPONDENTS:
7. Respondent Nos.6 and 7 i.e. the Commissioner of Police, Hyderabad City and the Station House Officer, Nampally Police Station filed their respective counter affidavits. The petitioner herein filed reply affidavit to the said counter affidavits. Respondent No.7 also filed written instructions.
8. On receipt of the complaint from Sri Bhupender Rathod, brother-in-law of the petitioner herein, police Nampally registered a case in Crime No.103 of 2019 against R.Srinivas for the offence under Section 307 read with Section 34 IPC and they have commenced the investigation in the said crime. Even before issuance of the F.I.R., the petitioner was shifted to Care Hospital, Nampally by the defacto complainant himself. He was treated as in- patient. The Statement of complainant was recorded. The police have arrested A-1and A-2 i.e. R.Srinivas and Datta on 15.04.2019. They have recorded the confessional statements of said accused also in the presence of mediators. During the course of investigation, the police found that the petitioner was admitted in Care hospital, Nampally. Therefore, the petitioner was not in a position to give his statement and as such, his statement was not recorded. After discharge from the hospital, the petitioner did not turn-up to the police station to give his statement. As his statement is crucial to go KL,J wp_8201_2019 10 ahead with the investigation, despite making several efforts, the petitioner is not cooperating with the Investigating Officer in concluding the investigation in crime No.103 of 2019. His statement was recorded in partial consisting of 16 pages with great difficulty. Since the petitioner is not responding to the phone calls made to him, the Investigating Officer has sent several notices to the residential address of petitioner through registered post. Despite receiving and acknowledging the same, the petitioner did not turn- up and did not cooperate with the Investigating Officer in concluding the investigation. After registration of the crime, the Investigating Officer, the SI of police who registered the case made phone calls to the complainant and visited the scene of offence and examined the same in the presence of mediators. Rough sketch was also drawn. No incriminating material was found at the scene of offence. The Investigating Officer has searched for the CCTV Footage which did not yield any result as there were no CCTV Cameras covering the scene of crime. The Investigating Officer has secured the presence of eye-witnesses. Enquiries made with regard to the attack on the petitioner would reveal that there are property disputes between the petitioner and alleged accused and investigation is under progress.
9. The petitioner herein is an accused in the following cases:
1) Crime No.235 of 2016, under Sections 420, 468, 471 IPC of CCS, Hyderabad.
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2) Crime No.27 of 2017 under Sections 447, 420, 468, 471, 120b, 506 r/w.34 IPC of CCS, Hyderabad.
3) Crime No.35 of 2017 under Sections 420, 468, 471 IPC of CCS, Hyderabad.
4) Crime No.49 of 2017 U/s.468, 471, 420 IPC of CCS, Hyderabad.
10. In the said cases, the police have arrested the petitioner herein. Sri K.N.Vijay Kumar, ACP, CCS was the Investigating Officer. Therefore, the petitioner herein falsely made certain false allegations against said Vijay Kumar and other officials of CCS. With great difficulty the Investigating Officer could secure the presence of petitioner on 09.10.2019, 10.10.2019, 11.10.2019, 12.10.2019 and the petitioner deposed his partial statement in Part-II consisting of 16 pages. The above said recording of statement of the petitioner under Section 161 Cr.P.C. was videographed. In spite of sincere efforts made by the Investigating Officer to record the pending part-II statement of the petitioner under Section 161 Cr.P.C., he did not cooperate with the Investigating Officer due to lack of diligence shown by him. Investigation is pending only due to non-cooperation by the petitioner by furnishing information to record the statement under Section 161 Cr.P.C. in concluding the investigation. The petitioner has made false allegations against the officials of CCS including respondent Nos.8, 9, 10, 11 and 22 with mala fide intention to defame them and dilute the investigation in the above said crimes, in which the petitioner is an accused.
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11. The investigation done so far reveals that the attack was made by A-1 in association with A2 due to previous enmity in connection with monetary transaction. Respondent Nos.8 to 11 are the Investigating Officers of the cases registered against the petitioner at the Central Crime Station, Detective Department, Hyderabad pertaining to land disputes arising out of forgery of documents etc., The petitioner is an Advocate and A1 herein have been previously arrested and remanded to judicial custody by the police of CCS of Detective Department. To take revenge against those officials, the petitioner is trying to implicate them and those police officers are not at all concerned in the present case of Attempt to Murder on the petitioner. The allegations made against them are false and far from truth. The petitioner wantedly took the plea of impleading respondent Nos.8 to 11 to weaken their moral strength and not to conduct fair and proper investigation of the cases registered against him at the CCS.
12. Respondent No.7 has been conducting proper and thorough investigation in a transparent manner. He has arrested A1 and A-2 in the case. The investigation of the case is under progress and the charge sheet will be filed as expeditiously as possible, provided the petitioner cooperates with the Investigating Officer. The petitioner being a legal professional, misusing and abusing the process of law to create confusion and divert the issue, made certain false allegations against the police officials of CCS, Hyderabad, KL,J wp_8201_2019 13 who are investigating officers in the above said crimes registered against the petitioner herein.
13. With the said contentions, learned Government Pleader for Home sought to dismiss the present writ petition.
14. Sri K. Surender, learned Special Public Prosecutor for CBI would submit that entrustment of investigation to CBI is not in a routine manner, in rarest of rare cases only, investigation has to be entrusted to CBI. There will be reasonable apprehension and documentary evidence to substantiate the said case. He would further submit that, if petitioner is having any grievance against the Investigating Officer in crime No.103 of 2019 that he is not conducting fair investigation and that there is delay in completion of investigation, he has to avail the other remedies available to him in Chapter XII of the Code of Criminal Procedure (Cr.P.C.). Instead of doing so, the petitioner herein filed the present writ petition seeking to entrust the investigation to CBI. In support of his contentions, he placed reliance on the judgment of Hon'ble Apex Court in Sakiri Vasu v. State of Uttarpradesh1. He has relied on the judgments of the Hon'ble Apex Court in Arnab Ranjan Goswami v. Union of India2 and Prof. K.V.Rajendran v. Superintendent of Police, CBCID South Zone, Chennai3.
1 . (2008) 2 SCC 409 2 . AIR 2020 SC (Criminal) 948 3 . AIR 2013 SC (SUPP) 508 KL,J wp_8201_2019 14
15. The petitioner also filed reply affidavit to the counter affidavit filed by respondent Nos.6 and 7. Even in the said reply affidavit, it is the main contention of the petitioner that there are allegations against respondent Nos.8 to 11, who are the Assistant Commissioner of Police (ACP) and above the ACP level police officers, the investigating officer, who is his subordinate, cannot conduct investigation in a fair and transparent manner. According to him when the higher police officials and political leaders are having grudge against the petitioner herein and therefore, the police officials may not be in a position to conduct fair and transparent investigation in the present crime. Therefore, he sought to entrust investigation to CBI.
LEGAL POSITION
16. In view of the above rival submissions, the issue that falls for consideration by this Court is whether it is a fit case to entrust the investigation to CBI as sought by the petitioner herein?
17. To decide the said issue and the lis in the present writ petition, this Court thought it proper to refer the formation of C.B.I and its powers etc., The Central Bureau of Investigation traces its origin to the Special Police Establishment, Central Government Force was set up in the year 1941 by the Government of India to investigate bribery and corruption in transactions relating to the War and Supply Department of India as the State Police found inadequate to cope up KL,J wp_8201_2019 15 with such offences. Special Establishment was established by an executive order. Later the Delhi Special Police Establishment Act (DSPE) was enacted on 19.11.1946. The said Act makes provision for the constitution of special police in Delhi for investigation in Union Territories, offences which are notified by the Central Government under Section 3 of the said Act. The said establishment acquired its popular current name, Centre Bureau of Investigation (CBI) through a Home Ministry, Government of India vide resolution dated 01.04.1963. Under Section 5 of the Act, the Central Government may by order extend to any area (including Railway areas) in a State not being a Union Territory, the powers of jurisdiction on members of DSPE for the investigation of any offences or class of offences specified in Notification under Section
3. When such powers are conferred on the member of DSPE, he shall discharge the functions of a police officer in that area and shall, while so discharging some functions, be deemed to be a member of Police Force of that area and be vested with powers, functions and privileges and be subject to the liabilities of a Police Officer belonging to that Police Force and such member shall exercise powers of the Officer in charge of a Police Station within the limits of such Station.
Section 6 of the Act operates as provisio to Section 5. It says nothing contained in Section 5 shall be deemed to enable any member of the DSPE to exercise powers and jurisdiction in any area KL,J wp_8201_2019 16 in a State, without the consent of the Government of that State. Therefore, for CBI to investigate into any crime pertaining to a State, the prior consent of that State Government is essential. However, the crucial point germane for consideration is, whether Constitutional Courts can direct CBI investigation in a State crime without the consent of the State Government and if so under what governing parameters.
18. The Hon'ble Apex Court in State of West Bengal v. Committee of Protection of Democratic rights, West Bengal4 gave certain conclusions, which are relevant and the same are extracted below:
(i) Fundamental Rights are inherent and cannot be extinguished by any constitutional or statutory provisions and any law that abrogates or abridges such rights would be violative of the basic structure doctrine.
(ii) Article 21 takes with its fold enforcement of rights of not only the accused, but also the rights of victim. The State has duty to enforce human rights of a citizen providing for fair and impartial investigation against any accused person which may include its own officers.
(emphasis supplied).
(iii) The power of judicial review conferred under Article 32 on Apex Court and under Article 226 on the High Courts, which being an integral part of basic structure, no act of parliament can exclude or curtail the powers of the 4 . (2010) 3 SCC 571 KL,J wp_8201_2019 17 constitutional Courts regarding the enforcement of fundamental rights.
(iv) Restriction on Parliament by the Constitution and restriction on the Executive by Parliament under an enactment do not amount to the restriction on the powers of Judiciary under Articles 32 and 226 of the Constitution.
(v) When Special Police Act itself provides that the CBI, subject to the consent of the State can take up investigation relating to the crime which is within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up investigation within the jurisdiction of the State. Such a power under Article 226 cannot be taken away, curtailed or diluted by Section 6 of Special Police Act. The restriction imposed by Section 6 on the powers of Union cannot be read as restriction on the powers of the constitutional Courts. (emphasis supplied).
(vi) 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 order may be necessary for doing complete justice and enforcing the fundamental rights.
19. In Subrata Chattoraj v. Union of India5 which relates to Sarada Chit Fund Multi State Investment Scam, the Apex Court while referring to Committee of Protection of Democratic rights (4 supra) and other cases, having observed that apart from the sensitivity of the issues involved, especially interstate ramifications 5 . (2014) 8 SCC 768 KL,J wp_8201_2019 18 of the scam under investigation, CBI investigation is essential to ensure credibility of investigation in the public perception. The following observation of Apex Court is most important which is extracted as under:
"The State Police Agency has done the cases and filing charge- sheets and bringing those who are responsible to book. The question, however, is not whether the State Police has faltered. The question is who are aggrieved. While we do not consider it necessary to go into the question whether the State Police have done all that it ought to have done, we need to point out that money trail has not yet been traced (emphasis supplied). The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-state ramifications, which the Investigating Agencies need to examine but are handicapped in examining."
20. In Mithilesh Kumar Singh Kumar v. State of Rajasthan6 which relates to death of a fresher due to college ragging in suspicious circumstances, while ordering transfer of investigation from State police to CBI, the Apex Court observed that the decision to transfer rests on Court's satisfaction that the circumstances of a given case demand such an order. No hard and fast rule can possibly be prescribed for universal application to all cases. The Court must be sensitive to the principle that transfers are not ordered just 6 . (2015) 9 SCC 795 KL,J wp_8201_2019 19 because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court step in to exercise its extraordinary powers.
21. In Neelam Mishra v. Union of India7, which relates to death of a young girl aged 22 in suspicious circumstances, which was tried to be projected as an accident, on the petition of the mother contending that the photographs of the deceased revealed there has been assault with immense brutality which could not be caused by an accident and even the post mortem report did not rule out homicidal assault and there was no proper investigation by the Delhi police, the Apex Court ordered CBI enquiry in spite of the argument of CBI that the Delhi police has taken extreme pains to solve the issue and hence it cannot be found fault. In this context, the Apex Court observed thus:
"4. At this juncture, we make it clear that we do not think that there has been any kind of laxity in the investigation carried out by the Delhi Police, but there can be no doubt that CBI is more equipped and the citizens of this country have faith in its investigating abilities" (emphasis supplied).
22. In Prof. K.V. Rajendran (3 Supra) a Three-Judge Bench of the Apex Court held as under:
7 . (2017) 12 SC 775 KL,J wp_8201_2019 20 "CBI investigation could be ordered, but such power must be exercised 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 the 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". It has further observed that where the investigation was already completed and charge sheet was filed, ordinarily superior Courts should not reopen the investigation and leave it to the Court concerned, 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."
23. In Y.S. Sowbhagya, w/o. Late Y.S. Vivekananda Reddy v. State of Andhra Pradesh8 wherein petitioner sought for CBI enquiry to probe the death of Late Y.S. Vivekananda Reddy, brother of late Dr.Y.S. Rajasekhara Reddy (former Chief Minister of united Andhra Pradesh) and uncle of Sri Y.S. Jaganmohan Reddy, present Chief Minister and former opposition leader of Andhra Pradesh and the learned Judge of Andhra Pradesh High Court at Amaravati entrusted the investigation to CBI.
24. Learned Judge has also relied upon the principle laid down by the Hon'ble Apex Court in E. Siva Kumar v. Union of India9. 8 . 2020 Law Suit (AP) 119 9 . (2018) 7 SCC 365 KL,J wp_8201_2019 21
25. In Arnab Ranjan Goswami (2 Supra), the Hon'ble Supreme Court after referring to various judgments at paragraph No.36 held as under:
" The transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an "extraordinary power" to be used "sparingly" and "in exceptional circumstances". Speaking for a Constitution Bench in State of West Bengal v Committee for Protection of Democratic Rights, West Bengal ("CPDR, West Bengal"), Justice DK Jain observed:
"70...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. 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 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 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." (Emphasis supplied)
26. This principle has been reiterated in K.V. Rajendran (3 Supra). Dr Justice B S Chauhan, speaking for a Three-Judge Bench of this Court held:
KL,J wp_8201_2019 22 "13...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 instill 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."
Elaborating on this principle, this Court observed: "17...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 instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased."
The Court reiterated that an investigation may be transferred to the CBI only in "rare and exceptional cases". One factor that courts may consider is that such transfer is "imperative" to retain "public confidence in the impartial working of the State agencies." This observation must be read with the observations by the Constitution Bench in CPDR, West Bengal that mere allegations against the police do not constitute a sufficient basis to transfer the investigation.
KL,J wp_8201_2019 23 With the said observations, the Hon'ble Apex Court declined to entrust the investigation to CBI and it is the case of Editor-in-Chief of News Channel, Arnab Ranjan Goswami.
27. In Rhea Chakraborty v. State of Bihar, where certain accusations were made against Rhea Chakraborty, a girl friend of Hindi movie Actor Sushant Singh Rajput, who died on 14.06.2020 in suspicious circumstances, the Hon'ble Supreme Court held that the investigation has to be entrusted to CBI only in the circumstances mentioned therein.
28. In R.S. Sodhi, Advocate v. State of U.P.10, the Hon'ble Apex Court while dealing with fake encounter case where ten persons were died, in view of the serious allegations made against State Police and also considering that ten persons were died in fake encounter, entrusted the investigation to CBI.
29. In Indersingh v. State of Punjab11, where on the allegation of abduction of seven persons by Deputy Superintendent of Police and considering the seriousness of allegations made in the said case, the Hon'ble Supreme Court entrusted the investigation to CBI.
30. In Advocates Association, Bangalore v. Union of India12 while dealing with question of transfer of an investigation from the State Police to the CBI in the context of an ugly incident involving 10 . 1994 (Supp) (1) SCC 143 11 . (1994) 6 SCC 275 12 . (2013) 10 SCC 611 KL,J wp_8201_2019 24 advocates, police and media persons within the Bangalore City Civil Court Complex, where the State has appointed DIG, CID to look into the matter and High Court has constituted Special Investigation Team, the Hon'ble Supreme Court considering the seriousness of incident and allegations leveled against the officials of State Police entrusted the investigation to CBI on the ground that the delay in setting up of SIT was sufficient to warrant such transfer of investigation to CBI.
FINDING AND ANALYSIS:
31. In view of the law laid down by the Hon'ble Apex Court and this Court in the above cited judgments, coming to the facts of the case on hand, the petitioner herein, legal professional, sought entrustment of investigation to CBI on the ground that there are specific allegations against the higher officials of police including respondent Nos.8 to 11 i.e. ACP, DCP and Additional Deputy Commissioner of Police, Sub-Inspector of Police of CCS, Hyderabad. According to the petitioner, though the crime was registered on 10.04.2019, the police have not completed the investigation so far. Several political leaders of ruling party including other political parties and higher police officials are having personal grudge against the petitioner for filing civil complaints under Section 200 Cr.P.C. and writ petitions which involves the land issue of crores of rupees. He has narrated several KL,J wp_8201_2019 25 facts with regard to the same at length in the affidavit filed in support of the present writ petition. According to him, attack was made on him earlier and his father was also died during custodial interrogation. With the said contentions, he sought entrustment of investigation to CBI.
32. It is the contention of respondents that the petitioner herein is an accused in four cases stated supra and all the said cases are pending with CCS, Hyderabad. Respondent Nos.8 to 11 are the Investigating Officers in the said cases. The police have already arrested the petitioner and others in the above said cases and therefore, the petitioner to take revenge against them and to divert the investigation, made certain false allegations against the said officials i.e. respondent Nos.8 to 11. The petitioner herein is not cooperating with the Investigating Officer in concluding the investigation. In the counter affidavit filed by respondent Nos.6 and 7, they have specifically mentioned with regard to the efforts made by them in conducting investigation by making calls, sending notices under section 91 and 160 Cr.P.C. to the petitioner herein with request him to appear before the Investigating Officer for the purpose of recording statement under Section 161 Cr.P.C. The petitioner herein is not cooperating with the Investigating Officer in concluding the investigation. They have also filed copies of said notices, postal receipts, photographs etc. The respondents have also filed panchanama to show that in the presence of two mediators KL,J wp_8201_2019 26 they have affixed notice under Section 91/160 Cr.P.C. on the house of the petitioner. Thus, there are allegations and counter allegations against the petitioner and respondent Nos. 8 to 11.
33. As stated above, the petitioner himself filed the above stated additional affidavit vide USR No.11303 praying this Court to dismiss the present writ petition against respondent Nos.8 to 22 as not pressed. Considering the said affidavit, granting liberty as sought by the petitioner this Writ Petition is dismissed against respondent Nos.8 to 22 as not pressed.
34. There is no dispute that this Court under Article 226 of Constitution is having power to entrust the investigation to any independent agency including CBI. The said principle was also laid down by the Apex Court in the judgments referred supra. As held by the Hon'ble Apex Court in Arab Ranjan Goswami's Case that transfer of investigation to CBI is not a matter of routine, in extraordinary circumstances by using powers of this Court sparingly in exceptional circumstances, the investigation has to be entrusted to CBI.
35. As per the counter affidavit of respondent No.6, despite best efforts and also serving notice under Section 160 Cr.P.C. on 23.04.2019, 23.04.2019 and 03.05.2019 and pasting notice on the house of the petitioner on 09.08.2019, he is not cooperating with the Investigating Officer to record his statement. With great difficulty, KL,J wp_8201_2019 27 they have recorded the statement of the petitioner consisting 16 pages and entire recording of statement of the petitioner under Section 161 Cr.P.C. was videographed. They have also filed CD of the same before this Court along with memo vide USR No.11558, dated 23.02.2021. They have also filed copies of notice dated 03.04.2019, 23.04.2019, 29.04.2019, 08.12.2020 and copy of letter addressed to the learned Magistrate dated 19.08.2019.
36. In this case, it is also relevant to refer Chapter XII of Cr.P.C. which deals with information to the police and their powers to investigate. Section 156 Cr.P.C. deals with police powers to investigate the cognizable cases. The Hon'ble Apex Court in Sakiri Vasu (1 Supra) dealt with said powers of police officer in Chapter XII of Cr.P.C. and also entrustment of investigation to CBI and held as under:
"28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned KL,J wp_8201_2019 28 police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).
30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna
31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but 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.
32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another KL,J wp_8201_2019 29 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide."
37. In view of the same, it is relevant to note that the Investigating Officer in crime No.103 of 2019 filed letter addressed to learned XII Additional Chief Metropolitan Magistrate, Nampally narrating the entire facts and also fact that the petitioner is not cooperating with the Investigating Officer in completing the investigation by recording his statement under Section 161 Cr.P.C. requested the learned Magistrate to give instructions to victim/injured, the petitioner herein to cooperate with the investigation and direct him to depose his statement under Section 161 Cr.P.C. The petitioner herein did not avail the procedure laid down in Chapter XII of Cr.P.C. He has not filed any memo or petition before the concerned Magistrate complaining about the KL,J wp_8201_2019 30 action of Investigating Officer in not completing the investigation and in not conducting the investigation in a fair and transparent manner. He has not availed said recourse.
38. It is relevant to mention that the petitioner herein is a legal professional. It is also stated that he has filed several complaints under Section 200 Cr.P.C. complaining that the police refused to register the complaints lodged by his clients for various offences and that he has filed several petitions before criminal Courts, this Court and the Hon'ble Apex Court. Surprisingly, he has not availed the procedure laid down under Section 156 (3) Cr.P.C. in his own case, ventilating his grievance of non-conducting of investigation in a fair and transparent manner.
39. As stated supra, the petitioner herein has involved in the following cases:
1. Crime No.235 of 2016, under Sections 420, 468, 471 IPC of CCS, Hyderabad.
2. Crime No.27 of 2017 under Sections 447, 420, 468, 471, 120B, 506 r/w.34 IPC of CCS, Hyderabad.
3. Crime No.35 of 2017 under Sections 420, 468, 471 IPC of CCS, Hyderabad.
4. Crime No.49 of 2017 U/s.468, 471, 420 IPC of CCS, Hyderabad.
40. In view of the antecedents of the petitioner, and that he has not availed the procedure laid down under Chapter XII of Cr.P.C., he cannot seek entrustment of investigation to CBI. Investigation KL,J wp_8201_2019 31 cannot be entrusted to CBI in a routine manner. In rarest of rate cases, investigation can be entrusted to CBI. The respondent police have filed sufficient material to show that they have made efforts to conclude the investigation in Crime No.103 of 2019 by serving notices etc., on the petitioner with a request to co-operate with the Investigating Officer by giving his statement under section - 161 of Cr.P.C. It is also relevant to note that just because, the petitioner made certain allegations against respondent Nos.8 to 11, police officials of CCS, Hyderabad, who are Investigating Officers in the above said crime registered against the petitioner, investigation cannot be entrusted to CBI.
41. Though this Court is having power to entrust investigation to CBI by invoking its extraordinary power under Article - 226 of the Constitution of India, it has to be used sparingly in exceptional circumstances. But, it is not a case where such exceptional circumstance that exists, to entrust the investigation to CBI.
42. There are allegations and counter allegations against each other by the petitioner and respondent-police. Considering the said facts and also fact that in the complaint itself the name of Mr. K.N. Vijay Kumar, A.C.P., CCS, Hyderabad, has been mentioned by brother-in-law of the petitioner, conducting of investigation in crime No.103 of 2019 by an Officer of the rank of S.I. or Inspector of Police of the State Police is not justified. Photographs filed by the KL,J wp_8201_2019 32 petitioner would show that he has received grievous injuries. In view of the said facts and circumstances of the case, it is not a rarest of rare case, to order entrustment of investigation to CBI and the petitioner herein failed to make out any circumstances or ground to entrust the investigation to CBI. Therefore, this Court feels it necessary that investigation has to be conducted by the Officer above rank of A.C.P. Therefore, investigation has to be entrusted to Deputy Commissioner of Police (D.C.P.) concerned i.e. Deputy Commissioner of Police, Central Zone, Hyderabad.
43. Accordingly, the writ petition is disposed of entrusting the investigation in crime No.103 of 2019 pending on the file of Nampally Police Station to the Deputy Commissioner of Police (D.C.P.), Central Zone, Hyderabad, who shall conduct fair and transparent investigation in the said crime. The petitioner shall cooperate with the Investigating Officer by furnishing information and documents as sought by him in concluding the investigation. The petitioner shall cooperate with the D.C.P. Central Zone by giving his statement under Section 161 Cr.P.C. which was incomplete. The Sub-Inspector of Police, the Investigating Officer in Cr.No.103 of 2019 is directed to handover the file to the D.C.P. Central Zone, Hyderabad forthwith. Considering the fact that crime was registered on 10.04.2019 and allegation of attempt to murder, offence under Section 307 read with Section 34 IPC, the D.C.P. Central Zone is directed to complete the investigation in a fair and KL,J wp_8201_2019 33 transparent manner as expeditiously as possible. Liberty is granted to the D.C.P. Central Zone to bring to the notice of this Court if the petitioner (LW.2) or other witnesses fails to co-operate with him in concluding the investigation in the said crime.
44. Further, this Writ Petition is dismissed against respondent Nos.8 to 22 as not pressed. However, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
__________________ K. LAKSHMAN, J Date: -06-2021 Note:
L.R. Copy to be marked (B/o) Nvl KL,J wp_8201_2019 34 HONOURABLE SRI JUSTICE K.LAKSHMAN WRIT PETITION No.8201 OF 2019 DATED: 06.2021 Nvl