The Punjab and Haryana High Court has clarified that the High Court holds the authority to transfer a probe to the Central Bureau of Investigation (CBI), even in cases where an FIR has not been lodged. Importantly, the consent of the state government is not a prerequisite for such an order, the Court emphasised.
Justice Sumeet Goel, presiding over the matter, clarified that "The High Court is well empowered to direct a CBI investigation of a cognisable offence, alleged to have been committed within the territory of a State/Union Territory. To clarify, such directions can be issued by the High Court without an FIR earlier having been registered by the State/Union Territory." He further stressed that "for such direction by the High Court pertaining to investigation by the CBI, the consent of the concerned State/Union Territory is not required."
The ruling came in response to a plea seeking a transfer of the investigation in a gang rape case to an independent agency. The Court elaborated that such powers can be exercised under its writ jurisdiction as per Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code (CrPC) or Section 528 of the BNSS 2023. However, the Court cautioned that this power should be used "sparingly, cautiously and in exceptional situations only where it becomes imperative to provide credibility as also instil confidence in the investigation or where the incident has national/international ramifications or when such exercise of power is required for doing complete justice."
The case before the Court involved allegations of gang rape and extortion, with the prosecutrix claiming that the accused demanded a large sum of money under the false pretext of securing her husband's bail. Despite specific charges of rape and extortion against the accused, the police had only filed a charge sheet against one individual, citing offences under Sections 420 (cheating), 406 (criminal breach of trust), and 201 (causing disappearance of evidence) of the Indian Penal Code. The petitioner’s counsel contended that the police had failed to conduct an impartial investigation due to the influence of a Haryana cadre IPS officer, who was closely related to one of the accused.
In its ruling, the Court highlighted the importance of a fair and impartial investigation, stating that "the discovery, vindication and upholding of the truth is the cardinal purpose for the existence of the Courts of Justice & for garnering these objects, which are indubitably invaluable and important, proper and fair investigation is absolutely vital."
The Court also referred to multiple Supreme Court judgments, reinforcing that Section 528 of BNSS, 2023 grants the High Court unparalleled powers to ensure justice is served. Justice Goel remarked, "Section 528 of BNSS, 2023 reflects peerless powers, which a High Court may draw upon, as necessary, whenever it is just and equitable to do so; in particular, to ensure observance of the due process of law, to prevent vexation or oppression, to do justice nay substantial justice, between the parties and to secure the ends of justice."
However, the Court also considered the practical constraints of the CBI, noting that "there are operational/infrastructural challenges for the CBI, owing to limited resources, primarily the man-power related restrictions, due to which it is not pragmatic to saddle the CBI with an excessive volume of cases."
The judgment further clarified that the High Court could order a CBI investigation even after a charge sheet has been filed by the local police. "The High Court's power to direct for investigation/further investigation when the investigation by local Police etc. is concluded and charge-sheet has been filed; is not denuded even when proceedings in such a trial (emanating from charge-sheet filed by local Police) has commenced and even some/substantial prosecution evidence has been recorded before such trial Court," the Court stated.
The Court ultimately rejected the plea for transferring the investigation to the CBI, reasoning that there was insufficient ground to suggest a failure in the investigation process. "The factum of material not having been found against the charge-sheeted accused in respect of offences under Sections 376-D/506/509 of IPC and the other FIR-named accused not having been charge-sheeted cannot be taken to be a good ground for transfer of the investigation of the FIR, in question, to CBI."
The petitioner was advised to seek further investigation or request the trial court to consider summoning additional accused, but the plea for a CBI probe was denied.
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