Bhuwan Chandra Kapri vs State Of Uttarakhand And Ors
2022 Latest Caselaw 3390 UK

        IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

        Criminal Writ Petition No. 1675 of 2022

Bhuwan Chandra Kapri                              ......Petitioner
                          Versus
State of Uttarakhand and Ors.                     ......Respondents


Present:
      Mr. M.S. Pal, the learned Senior Advocate assisted by Mr. Amit
      Kapri, the learned counsel for the petitioner.
      Mr. S.N. Babulkar, the learned Advocate General with Mr. J.S.
      Virk, the learned Dy. Advocate General and Ms. Manisha Rana
      Singh, the learned A.G.A. for the State.
      Mr. Lalit Sharma, the learned counsel for the CBI.

             Date of hearing: 12.10.2022
             Date of pronouncement: 19.10.2022

Sri Sanjaya Kumar Mishra, J.

Upon hearing the learned counsel for the parties, this Court made the following judgment:

By filing this criminal writ petition, the petitioner representing the Khatima Assembly Constituency in the Legislative Assembly of Uttarakhand has prayed for issuance of a writ in the nature of mandamus directing the transfer of investigation from the State Agency to the Central Bureau of Investigation (hereinafter referred to as C.B.I. for brevity) with relation to the FIR dated 19.07.2022, registered under Section 420 of the Indian Penal Code, bearing FIR No. 0289 of 2022 registered by the S.H.O. Raipur Police Station in the district of Dehradun. The scope of investigation has been widened, in the sense that, the offence under Section 467, 468, 471 read with 34 of the Penal Code and under Section 3, 4, 5, 9 and 10 U.P. Public Examination (Prevention of Unfair Means), 1998, has been added.

2. The petitioner claims that on 15.06.2022, he raised a question in the Vidhan Sabha that something is going wrong in the Uttarakhand Subordinate Staff Selection Commission (hereinafter referred to as UKSSSC for brevity). Thereafter, first information report was lodged by the Secretary of the UKSSSC, i.e., Rajan Naithani on 19.07.2022. In the meantime, the Commission has conducted an internal investigation upon the list of suspected candidates, and while verifying their records they were interviewed in person as well. Based upon the internal inquiry of the Commission on 10.06.2022, the list of the suspected candidates along with description was sent to the cyber cell/Special Task Force (hereinafter referred to as STF for brevity), seeking investigation of their mobile location and S.D.R. The STF took of the investigation of the case. The complain of the present petitioner is that since the scam has wide and far reaching consequences and similar cases in Vyapam Scam in Madhya Pradesh and the recent scam of SSC Teachers recruitment has been transferred to the specialised central agency, this case should also be transferred to C.B.I. for investigation. The petitioner, therefore, made several representations but it yielded no results. Hence, he filed this writ petition.

3. In the original petition, the petitioner does not plead that the investigating agency, i.e., Special Task Force is anyway incompetent, in terms of expertise to

investigate, to investigate the crime allegedly committed in the recruitment examination or that he does not allege that the investigating agency is not functioning independently without any influence of the State Government. Thus, while this Court was considering the application it allowed the petitioner some time to file proper application for amendment. The application for amendment has been filed wherein by way of amendment the petitioner has sought to add the following points to the writ application. Firstly, it is submitted that RMS Techno Solution has been hired by the UKSSSC for conducting examination on its behalf and the said agency was already blacklisted by the State of Madhya Pradesh. Secondly, it is also come to his knowledge that the contract of RMS Techno Solution with the State Government expired in the year 2019 and yet without any due diligence that contract of company was extended for another three years. Then he goes on to describe different malpractices allegedly committed by the UKSSSC in paragraph c, d, e, f and g. In paragraph 'h' it is contended that the investigation of the STF, so far reveals that none of the persons arrested or interrogated holding any key position in the department and are merely pawns in the entire scam. He further alleges that one Hakam Singh, Member of Zila Panchayat, Jakhola, has been arrested by the STF and he is closed to the DG of Police of Uttarakhand.

4. That the petitioner further contends that there is a possibility of involvement of political persons belonging

to ruling party and STF will not take any action against them because of the pressure of the ruling party.

5. The learned Advocate General, Mr. S.N. Babulkar, on the other hand would submit that in the meantime, the STF has taken very proactive steps and has arrested several persons holding key position in the administration and the retired officers of the rank of Chief Secretary has also been arrested and persons against whom, prima facie, case is made out have been arrested irrespective of the political affiliation.

6. The learned counsel for the petitioner would submit that it should be in the interest of justice to allow the petition and handover the investigation of the case to the CBI.

7. In the case of State of West Bengal and ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors., (2010) 3 SCC 571, the Hon'ble Supreme Court in the Constitution Bench Judgment has held that despite wide powers conferred by Article 32 and 226 of the Constitution, while passing any order, the Court must bear in mind certain self-imposed limitations on the exercise of these constitutions powers. The Hon'ble Supreme Court further held that 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 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 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. The Hon'ble Supreme Court further held that 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.

8. This Constitutional Bench judgment finds reference in the latest judgment of the Hon'ble Supreme Court in the case of Himanshu Kumar & Ors. vs. State of Chattisgarh & Ors. 2022 SCC OnLine SC 884, wherein the Hon'ble Supreme Court has held that it is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental right against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offences by the CBI, such prayer should not be granted on mere asking.

Thereafter, the Hon'ble Supreme Court has taken into consideration the observation made by it in the aforesaid Constitutional Bench judgment and further that that in an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Curt may be justified in such circumstances to handover the investigation to an independent agency like the CBI. By now it is well settled that even after the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like CBI.

9. We have perused the counter affidavit filed by the State in this case. It is specific case of the State that the STF is taking care of all allegations against the persons, even if they hold very high position. As observed earlier, in course of investigation, large number of persons in total 39 has been arrested, among the arrested persons people holding high office irrespective of their political affiliation and irrespective of the fact that they happened to be retired Chief Secretary level officer, and in the meantime charge sheet has also been filed. So this Court is of the opinion that the petitioner has not made out a prima facie case by giving supporting material that the STF is biased in his approach. In other words, there is no material on record to come to a conclusion that the STF is not acting independently and its investigation is tainted by

the influence of the said machinery. It is further borne out from the record that the petitioner has not only made any specific allegation with supporting allegation that the investigation is tainted rather he has pointed out that certain persons have not been arrested. However, the learned counsel for the petitioner would submit that those persons who were named in the writ petition are the persons who are not being arrested in spite of there being material against them, in fact, in the meantime, were arrested by the STF. This Court is also of the view that the STF is taking a proactive role in the investigation of the case and that the State Administration does not appear to be influencing the investigating agency in any manner to shield to highly placed person or blotch-up the investigation of the case. That being the case, this Court finds no reason to issue a writ of mandamus directing handing over the investigation of the case from the STF to the C.B.I.

10. Accordingly, the writ petition is dismissed.

(Sanjaya Kumar Mishra, J.) (Grant certified copy as per rules)

PV