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

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 issuance of directions to the CBI to conduct investigation must be exercised with great caution although no inflexible guidelines can be laid down in this regard, yet it was highlighted that such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights - mere allegations against the police do not constitute a sufficient basis to transfer the investigation [Paragraph 44, 47, 50] - Referred Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521- an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. [Paragraph 45] - Referred  Romila Thapar v. Union of India (2018) 10 SCC 753,- the accused "does not have a say in the matter of appointment of investigating agency". [Paragraph 51, 52]

Indian Penal Code 1860 - Section 221 - essential ingredients for invoking Section 211, I.P.C. are that the complaint must have falsely charged a person with having committed an offence; the complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person, this complaint must have been given with an intention to cause injury to a person. [Paragraph 90]

Indian Penal Code 1860 Section 221 - "charge" not defined under Cr.P.C. - a false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning - would include a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion - the expression "falsely charges" in this section, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial - "to falsely charge" must refer to the original or initial accusation putting or seeking to put in motion - the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial - the false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings - in other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against whom the allegations are made - the statement in order to constitute the "charges" should be made with the intention and object of setting criminal law in motion. [Paragraph 91 and 94]

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