Writ Petition Nos.21020/2019, 21478/2019, 25591/2019, 20316/2019, 23112/ 2019, 1078/2020 & 6173 of 2020 -1- HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE DIVISION BENCH : HON'BLE SHRI JUSTICE S.C. SHARMA & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA Writ Petition No.21020/2019 Shirish Mishra versus Home Department & Others Writ Petition No.21478/2019] Shekhar versus The State of Madhya Pradesh & Others Writ Petition No.25591/2019 Subodh versus The State of Madhya Pradesh & Others Writ Petition No.20316/2019 Digvijay Singh Bhandari versus Town Inspector / The State of Madhya Pradesh & Others Writ Petition No.23112/2019 Barkha Soni versus The State of Madhya Pradesh & Others
i.e., Crime No.405/2019 registered at Police Station –
Palasia and Crime No.02/2019 registered at Police Station –
C.I.D., Bhopal.
34. The progress report includes all minute detailes in
respect of evidence collected by the S.I.T. and as the trial is
going on in both the cases, this Court is of the considered
opinion that the details in respect of the progress report, in
case they reproduced in the judgment, will effect the trial,
which is going on, and therefore, the minute details in
respect of the progress report are not being reproduced.
35. In nutshell, the entire investigation was carried out
during the pendency of the present writ petitions and
charge-sheets have been filed in both the cases and it has
been stated that after receiving the report in respect of
electronic gadgets and the material which has been sent to
CFSL, Hyderabad, as investigation under Section 173(8) of
the Code of Criminal Procedure, 1973 is still in progress,
the respondents shall be taking appropriate steps in
accordance with law keeping in view the statutory
provisions as contained under the Code of Criminal
Procedure, 1973.
36. The issue before this Court is whether in light of the
progress report, which has been submitted to this Court, the
investigation of the case deserves to be handed over to the
Central Bureau of Investigation or not ?
37. The Hon'ble Supreme Court in the case of Sujatha
Ravi Kiran v/s The State of Kerela & Others reported in
(2010) 3 SCC 571 has held as under:-
“9. It is well settled that the extraordinarypower of the constitutional courts in directingC.B.I. to conduct investigation in a case must beexercised rarely in exceptional circumstances,
especially, when there is lack of confidence in theinvestigating agency or in the national interest andfor doing complete justice in the matter.11. Considering the facts and circumstancesof the case in hand, in the light of the aboveprinciples, we are of the view that the case in handdoes not entail a direction for transferring theinvestigation from the state police/special team ofState Police Officers to C.B.I. The facts andcircumstances in which the offence is alleged tohave been committed can be better investigatedinto by the state police. However, having regard tothe nature of allegations levelled by the petitioner,we deem it appropriate to direct the State ofKerala to constitute a special team of policeofficers headed by an officer not below the rank ofDeputy Inspector General of Police to investigatethe matter.”
38. The Hon'ble Supreme Court in the case of State of
West Bengal v/s Committee for Protection of Democratic
Rights reported in (2010) 3 SCC 571 has held as under:-
“Before parting with the case, we deem itnecessary to emphasise that despite wide powersconferred by Articles 32 and 226 of theConstitution, while passing any order, the Courtsmust bear in mind certain self-imposed limitationson the exercise of these Constitutional powers.The very plenitude of the power under the saidArticles requires great caution in its exercise. In sofar as the question of issuing a direction to theCBI to conduct investigation in a case isconcerned, although no inflexible guidelines canbe laid down to decide whether or not such powershould be exercised but time and again it has beenreiterated that such an order is not to be passed asa matter of routine or merely because a party haslevelled some allegations against the local police.This extra-ordinary power must be exercisedsparingly, cautiously and in exceptional situationswhere it becomes necessary to provide credibilityand instil confidence in investigations or wherethe incident may have national and internationalramifications or where such an order may benecessary for doing complete justice andenforcing the fundamental rights. Otherwise theCBI would be flooded with a large number ofcases and with limited resources, may find itdifficult to properly investigate even serious casesand in the process lose its credibility and purpose
informed the Investigating Agency about their intimacy
with certain persons, however, as informed by the Head of
the S.I.T., there is no criminality involved in the matter.
This Court has also gone through the entire material /
evidence collected by the S.I.T. in camera proceedings and
is of the considered opinion that a fair and prpoer
investigation has been carried out in the matter.
42. During the pendency of the writ petitions, a hard
disc was also submitted to this Court and the same has also
been forwarded to the CFSL, Hyderabad and again after
receiving a report from CFSL, Hyderabad, as investigation
under Section 173(8) of the Code of Criminal Procedure,
1973 is still in progress, the S.I.T. shall be taking
appropriate steps in the matter. The present case is certainly
not a case, which requires investigation by Central Bureau
of Investigation in light of the judgments referred above.
43. In the case of T.C. Thangarai v/s V. Enagammal &
Others reported in (2011) 12 SCC 328, the Hon'ble
Supreme Court in paragraph – 9 and 10 has held as under:-
“9. The decision of the two-Judge Bench ofthis Court in Ramesh Kumari v. State (NCT ofDelhi)will have to be now read in the light of theprinciples laid down by the Constitution Bench ofthis Court in State of W.B. v. Committee forProtection of Democratic Rights. The ConstitutionBench has considered at length the power of theHigh Court to direct investigation by CBI into acognizable offence alleged to have beencommitted within the territorial jurisdiction of aState and while taking the view that the HighCourt has wide powers under Article 226 of theConstitution cautioned that the courts must bear inmind certain self-imposed limitations.10. Para 70 of the opinion of the ConstitutionBench in State of W.B. v. Committee forProtection of Democratic Rights is extractedhereinbelow: (SCC p. 602)
we deem it necessary to emphasisethat despite wide powers conferred byArticles 32 and 226 of theConstitution, while passing any order,the courts must bear in mind certainself-imposed limitations on theexercise of these constitutionalpowers. The very plenitude of thepower under the said articles requiresgreat caution in its exercise. Insofar asthe question of issuing a direction toCBI to conduct investigation in a caseis concerned, although no inflexibleguidelines can be laid down to decidewhether or not such power should beexercised but time and again it hasbeen reiterated that such an order isnot to be passed as a matter of routineor merely because a party has levelledsome allegations against the localpolice. This extraordinary power mustbe exercised sparingly, cautiously andin exceptional situations where itbecomes necessary to providecredibility and instil confidence ininvestigations or where the incidentmay have national and internationalramifications or where such an ordermay be necessary for doing completejustice and enforcing the fundamentalrights. Otherwise CBI would beflooded with a large number of casesand with limited resources, may find itdifficult to properly investigate evenserious cases and in the process loseits credibility and purpose withunsatisfactory investigations.”
(emphasis supplied)It will be clear from the opinion of the
Constitution Bench quoted above that the powerof the High Courtunder Article 226 of theConstitution to direct investigation by CBI is to beexercised only sparingly, cautiously and inexceptional situations and an order directing CBI(sic to conduct investigation) is not to be passed asa matter of routine or merely because a party haslevelled some allegations against the local police.”
In light of the aforesaid judgment, it is crystal clear
that the power of the High Court under Article 226 of the
Constitution of India to direct investigation by the Central
Bureau of Investigation has to be exercised only sparingly,
cautiously in exceptional situation and an order directing
the Central Bureau of Investigation to conduct investigation
is not to be passed as a matter of routine or merely because
the parties have levelled some allegations against the local
police.
44. The Hon'ble Supreme Court in the case of Sakiri
Vasu v/s The State of U.P. & Others reported in (2008) 2
SCC 409 has dealt with the transfer of case Central Bureau
of Investigation. Paragraph – 33 of the aforesaid judgment
reads as under:-
“33. In Secretary, Minor Irrigation & RuralEngineering Services U.P. and others vs. SahngooRam Arya and another 2002 (5) SCC 521 (videpara 6) , this Court observed that although theHigh Court has power to order a CBI inquiry, thatpower should only be exercised if the High Courtafter considering the material on record comes toa conclusion that such material discloses primafacie a case calling for investigation by the CBI orby any other similar agency. A CBI inquiry cannotbe ordered as a matter of routine or merelybecause the party makes some allegation.”
In light of the aforesaid judgment, this Court is of
the considered opinion that a C.B.I. inquiry cannot be
ordered as a matter of routine or merely because the parties
have made some allegation.
45. The Hon'ble Supreme Court in the case of K.V.
Rajendran v/s Superintendent of Police, CBCID South
Zone, Chennai & Others reported in (2013) 12 SCC 480
has again dealt with issue of transfer of case from the State
Investigating Agency to some other independent agency
like Central Bureau of Investigation. Paragraphs – 13 and
Ors., (2010) 2 SCC 200, this Court dealt with acase where the accusation had been against highofficials of the police department of the State ofGujarat in respect of killing of persons in a fakeencounter and the Gujarat police after theconclusion of the investigation, submitted acharge sheet before the competent criminal court.The Court came to the conclusion that as theallegations of committing murder under the garbof an encounter are not against any third party butagainst the top police personnel of the State ofGujarat, the investigation concluded by the Stateinvestigating agency may not be satisfactorilyheld. Thus, in order to do justice and instilconfidence in the minds of the victims as well ofthe public, the State police authority could not beallowed to continue with the investigation whenallegations and offences were mostly against topofficials. Thus, the Court held that even if achargesheet has been filed by the Stateinvestigating agency there is no prohibition fortransferring the investigation to any otherindependent investigating agency. 14. In State of West Bengal v. Committee forProtection of Democratic Rights, AIR 2010 SC1476, a Constitution Bench of this Court hasclarified that extraordinary power to transfer theinvestigation from State investigating agency toany other investigating agency must be exercisedsparingly, cautiously and in exceptional situationswhere it becomes necessary to provide credibilityand instil confidence in investigation or where theincident may have national and internationalramifications or where such an order may benecessary for doing complete justice andenforcing the fundamental rights.”
In the present case, a fair and impartial investigation
has been carried out by the Madhya Pradesh Police. This
Court has seen the entire material while holding the
proceedings in camera and did not find any reason for
transferring the investigation to Central Bureau of
Investigation on any count.
46. The Hon'ble Supreme Court again in the case of
19.08.2020 in paragraphs – 34, 40 and 41 has held as
under:- [MANU/SC/0597/2020]
“34. As noted earlier, the FIR at Patna wassubsequently transferred to the CBI with consentof the Bihar government during pendency of thisTransfer Petition. However, in future, ifcommission of cognizable offence under section175(2) CrPC is determined, the possibility ofparallel investigation by the Mumbai Policecannot be ruled out. Section 6 of the DSPE Act,1946 read with Section 5 prescribe therequirement of consent from the Stategovernment, before entrustment of investigationto the CBI. As the CBI has already registered acase and commenced investigation at the instanceof the Bihar government, uncertainty andconfusion must be avoided in the event ofMumbai Police also deciding to simultaneouslyinvestigate the cognizable offence, based on theirfinding in the inquiry proceeding. Therefore, itwould be appropriate to decide at this stage itselfas to who should conduct the investigation on allthe attending circumstances relating to the deathof the actor Sushant Singh Rajput. This issuebecomes relevant only if another FIR is registeredon the same issue, at Mumbai. A decision by thisCourt on the point would confer legitimacy to theinvestigation.”40. The actor Sushant Singh Rajput was atalented actor in the Mumbai film world and diedwell before his full potential could be realised. Hisfamily, friends and admirers are keenly waitingthe outcome of the investigation so that all thespeculations floating around can be put to rest.Therefore a fair, competent and impartialinvestigation is the need of the hour. The expectedoutcome then would be, a measure of justice forthe Complainant, who lost his only son. For thepetitioner too, it will be the desired justice as sheherself called for a CBI investigation. Thedissemination of the real facts through unbiasedinvestigation would certainly result in justice forthe innocents, who might be the target ofvilification campaign. Equally importantly, whenintegrity and credibility of the investigation isdiscernible, the trust, faith and confidence of thecommon man in the judicial process will resonate.When truth meets sunshine, justice will notprevail on the living alone but after Life’s fitfulfever, now the departed will also sleep well.Satyameva Jayate.
41. In such backdrop, to ensure publicconfidence in the investigation and to do completejustice in the matter, this Court considers itappropriate to invoke the powers conferred byArticle 142 of the Constitution. As a Courtexercising lawful jurisdiction for the assignedroster, no impediment is seen for exercise ofplenary power in the present matter. Thereforewhile according approval for the ongoing CBIinvestigation, if any other case is registered onthe death of the actor Sushant Singh Rajput andthe surrounding circumstances of his unnaturaldeath, the CBI is directed to investigate the newcase as well. It is ordered accordingly.”
In the aforesaid case, a First Information Report was
lodged in the State of Bihar and in the State of Maharashtra
also and the State of Bihar has handed over the
investigation to Central Bureau of Investigation. The
Hon'ble Supreme Court, keeping in view the peculiar facts
and circumstances of the case, as a request was already
made by the State of Bihar to the C.B.I. to investigate the
case and C.B.I. has already registered a case and
commenced its investigation, has directed the C.B.I. to
investigate the matter and to investigate any other case
registered on the death of the actor Sushant Singh Rajput.
47. In the present case, no request of any kind was
made by the State of Madhya Pradesh to the Central Bureau
of Investigation. The State of Madhya Pradesh has carried
out the investigation in a fair and impartial manner keeping
in view the provisions as contained under the Code of
Criminal Procedure, 1973, and therefore, no case is made
out for issuance of an appropriate writ, order or direction,
directing the Central Bureau of Investigation to investigate
the matter.
48. The Hon'ble Supreme Court in the case of Arnab
Ranjan Goswami v/s Union of India & Others in Writ
Petition No.130/2020 decided on 19.05.2020 has dealt with
the issue of investigation by the Central Bureau of
Investigation. Paragraphs – 36, 37, 38 and 43 of the
aforesaid judgment reads as under:- [MANU/SC/0448/2020]
“36. The transfer of an investigation to theCBI is not a matter of routine. The precedents ofthis Court emphasise that this is an “extraordinarypower” to be used “sparingly” and “in exceptionalcircumstances”. Speaking for a ConstitutionBench in State of West Bengal v Committee forProtection of Democratic Rights, West Bengal27(“CPDR, West Bengal”), Justice DK Jainobserved:
“70…despite wide powers conferred byArticles 32 and 226 of the Constitution,while passing any order, the Courts mustbear in mind certain self-imposedlimitations on the exercise of theseconstitutional powers. The very plenitudeof the power under the said articlesrequires great caution in its exercise.Insofar as the question of issuing adirection to CBI to conduct investigationin a case is concerned, although noinflexible guidelines can be laid down todecide whether or not such power shouldbe exercised but time and again it hasbeen reiterated that such an order is not tobe passed as a matter of routine or merelybecause a party has levelled someallegations against the local police. Thisextraordinary power must be exercisedsparingly, cautiously and in exceptionalsituations where it becomes necessary toprovide credibility and instill confidencein investigations or where the incidentmay have national and internationalramifications or where such an order maybe necessary for doing complete justiceand enforcing the fundamental rights.Otherwise CBI would be flooded with alarge number of cases and with limitedresources, may find it difficult to properlyinvestigate even serious cases and in theprocess lose its credibility and purposewith unsatisfactory investigations.”(Emphasis supplied) This principle hasbeen reiterated in K V Rajendran vSuperintendent of Police, CBCID SouthZone, Chennai28. Dr Justice B SChauhan, speaking for a three judgeBench of this Court held:
“13…This Court has time and again dealtwith the issue under what circumstancesthe investigation can be transferred fromthe State investigating agency to anyother independent investigating agencylike CBI. It has been held that the powerof transferring such investigation must bein rare and (2010) 3 SCC 571 (2013) 12SCC 480 exceptional cases where thecourt finds it necessary in order to dojustice between the parties and to instillconfidence in the public mind, or whereinvestigation by the State police lackscredibility and it is necessary for having“a fair, honest and completeinvestigation”, and particularly, when it isimperative to retain public confidence inthe impartial working of the Stateagencies.” Elaborating on this principle,this Court observed:“17…the Court could exercise itsconstitutional powers for transferring aninvestigation from the State investigatingagency to any other independentinvestigating agency like CBI only in rareand exceptional cases. Such as wherehigh officials of State authorities areinvolved, or the accusation itself isagainst the top officials of theinvestigating agency thereby allowingthem to influence the investigation, andfurther that it is so necessary to do justiceand to instill confidence in theinvestigation or where the investigation isprima facie found to be tainted/biased.”
The Court reiterated that an investigation may betransferred to the CBI only in “rare andexceptional cases”. One factor that courts mayconsider is that such transfer is “imperative” toretain “public confidence in the impartial workingof the State agencies.” This observation must beread with the observations by the ConstitutionBench in CPDR, West Bengal that mereallegations against the police do not constitute asufficient basis to transfer the investigation. 37. In Romila Thapar v Union of India 29,Justice AM Khanwilkar speaking for a three judgeBench of this Court (one of us, Dr Justice DYChandrachud, dissenting) noted the dictum in aline of precedents laying down the principle thatthe accused (2018) 10 SCC 753“does not have asay in the matter of appointment of investigatingagency”. In reiterating this principle, this Courtrelied upon its earlier decisions in Narmada Bai vState of Gujarat30, Sanjiv Rajendra Bhatt v Union
of India31, E Sivakumar v Union of India32 andDivine Retreat Centre v State of Kerala33. ThisCourt observed:
“30…the consistent view of this Court isthat the accused cannot ask for changingthe investigating agency or to doinvestigation in a particular mannerincluding for court- monitoredinvestigation.”
38. The principle of law that emerges fromthe precedents of this Court is that the power totransfer an investigation must be used “sparingly”and only “in exceptional circumstances”. Inassessing the plea urged by the petitioner that theinvestigation must be transferred to the CBI, weare guided by the parameters laid down by thisCourt for the exercise of that extraordinary power.It is necessary to address the grounds on which thepetitioner seeks a transfer of the investigation. Thegrounds urged for transfer are:
(i) The length of the interrogationwhich took place on 27 April 2020; (ii) The nature of the inquirieswhich were addressed to the Petitionerand the CFO and the questions addressedduring interrogation;(iii) The allegations leveled by thepetitioner against the failure of the Stategovernment to adequately probe theincident at Palghar involving an (2011) 5SCC 79 (2016) 1 SCC 1 (2018) 7 SCC365 (2008) 3 SCC 542 alleged lynchingof two persons in the presence of policeand forest department personnel; (iv) Allegations which have beenmade by the petitioner on 28 April 2020in regard to CP, Mumbai; and (v) Tweets on the social media byactivists of the INC and the interview bythe complainant to a representative of RBharat.”
43. The interview given by the complainantto a representative of R Bharat does not furnish avalid basis in law for an inference that theinvestigation is tainted or as warranting a transferof investigation to the CBI. The Government ofMaharashtra has moved an application before thisCourt (affirmed by the DCP, Zone-3) seekingappropriate directions to insulate the investigatingagency “from any pressure, threat or coercionfrom the petitioner” and to enable it to dischargeits lawful duties in a fair and transparent manner.Based on the views tweeted by R Bharat on socialmedia, it is the Maharashtra police which is now
claiming a restraining order against the petitioner.We are unable to accede to the submission of theSolicitor General that the contents of the IA filedby the State would make it necessary to transferthe investigation to the CBI. The investigatingagency has placed on the record what it believes isan attempt by the petitioner to discredit theinvestigation by taking recourse to the socialmedia and by utilizing the news channels whichhe operates. Social media has become anoverarching presence in society. To accept thetweets by the petitioner and the interview by thecomplainant as a justification to displace alawfully constituted investigation agency of itsjurisdiction and duty to investigate would havefar-reaching consequences for the federalstructure. We are disinclined to do so.”
In the aforesaid case, the Hon'ble Supreme Court
has once again held that the principle of law that emerges
from the precedents is that the power to transfer an
investigation must be used sparingly and only in
exceptional circumstances.
49. This Court has carefully gone through the entire
cases referred by learned counsel for the parties, heard
learned counsel for the parties at length and no material was
brought before this Court on the basis of which it could
have been held that the investigation has not been done
properly by the State of Madhya Pradesh. In light of the
aforesaid, this Court does not find any reason to to transfer
the investigation to the Central Bureau of Investigation.
50. The present case is certainly not a case which
warrants investigation by the Central Bureau of
Investigation. The S.I.T., constituted in the matter, has
carried out investigation under the supervision of this Court
by submitting progress report from time to time and as
already stated earlier, this Court has recorded its satisfaction
in respect of the investigation carried out by the S.I.T., and
