CBI Investigation Can't Be Ordered On Mere Asking By Defacto Complainant; Mere Allegations Against Police Not Sufficient : Supreme Court

The Supreme Court, on Thursday, held that when a citizen, who is a de facto complainant, approaches the Court seeking direction to the Central Bureau of Investigation (CBI) to investigate allegations of commission of cognizable offence by high Government officials or influential persons, the same ought not to be granted on mere asking. Indicating that it is trite law, the Apex Court referred to the judgment in the State of West Bengal And Ors. v. Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571, wherein the Apex Court had held that investigation can be handed over to the CBI only in 'rare and exceptional case' - where it becomes imperative to provide credibility and to instil confidence in the investigation or in incidents having national and international ramification or for doing complete justice and for enforcing fundamental rights. A Bench comprising Justices A.M. Khanwilkar and J.B. Pardiwala passed the judgment in a plea seeking independent probe into the alleged extra-judicial killings of Adivasis in Chhattisgarh by Chhattisgarh Police, Special Police Officers (SPOs) appointed by the Chhattisgarh Government in collusion with the activist of the Salwa Judum and the Central Paramilitary Forces, CRPF and the CoBRA Battalion, in two separate attacks dated 17.09.2009 and 01.10.2009. The Bench noted that previously, in Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 521, the Supreme Court had held that only upon being satisfied that the material discloses a prime facie case calling for the investigation by the CBI, the High Court ought to pass order directing CBI inquiry. It was of the opinion that in cases where the Court feels that the investigation conducted by the State Police is lacking; it feels that the higher officials are involved in the alleged crime or in order to do complete justice, it may handover the investigation to CBI or any other independent authority. It emphasised that the extraordinary power under Article 32 and 226 of the Constitution of India should be exercised with great caution while deciding on the issue of transferring inquiry to the CBI. Though there are no guidelines as such to indicate when Courts can issue directions for a CBI inquiry, such an order cannot be passed in a routine manner and on mere allegation of the parties against the local police. The Bench was of the opinion that - "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 made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation." Citing Romila Thapar v. Union of India (2018) 10 SCC 753, the Bench asserted that the accused 'does not have a say in the matter of appointment of investigating agency'. In this regard it referred to an earlier judgment of the Supreme Court in CBI And Anr. v. Rajesh Gandhi And Anr. 1997 CrLJ 63 wherein, it had held that no one can insist that an offence be investigated by a particular agency. In view, thereof, the Bench held - "An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice." Case Name: Himanshu Kumar And Ors. v. State of Chhattisgarh And Ors. Citation: 2022 LiveLaw (SC) 598 Case No. and Date:Writ Petition (Criminal) No. 103 of 2009 | 14 July 2022 Corum: Justices AM Khanwilkar and JB Pardiwala Headnotes Constitution of India - Article 32 & 226- When CBI enquiry can be directed - CBI inquiry can be directed only in rare and exceptional cases -such prayer should not be granted on mere asking - though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or re- investigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment - the contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties - one factor that courts may consider is that such transfer is "imperative" to retain "public confidence in the impartial working of the State agencies". [Paragraph 44, 47, 50] - referred -State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571- The extraordinary power of the Constitutional Courts under Articles 32 and 226 respectively of the Constitution of India qua the...

CBI Investigation Can't Be Ordered On Mere Asking By Defacto Complainant; Mere Allegations Against Police Not Sufficient : Supreme Court

Sohini Chowdhury

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