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since 1985 practicing as advocate in both civil & criminal laws

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whether the investigation has to be transferred to the CBI, it is necessary to consider the guidelines set out by the Hon’ble Supreme Court in this regard. The Hon’ble Supreme Court had held that this court has power to transfer investigation of a crime to the CBI, in Sakiri Vasu v. State of U.P

1. The investigating officer shall take immediate steps to obtain the forensic science lab reports in relation to C.C TV footage, at the earliest, and preferably within 15 days from the date of this order. 2. The investigating officer, upon identification of the persons/person in the CC TV footage, shall conduct a thorough investigation into the reasons for the presence of such persons and their role, if any, in the commission of offence or in the cover up of the said offence. 2023:APHC:163 RRR,J W.P.No.24362 of 2022 25 3. The investigating officer, upon finding any incriminating material or record in this regard shall include all such persons against whom such incriminating material is obtained as accused in the case and file a supplementary charge sheet under Section 173(8) Cr.P.C., before the Magistrate. 4. This direction is being given, as the matter is still pending before the Magistrate for committal to a Court of Sessions. In the event of the investigation being completed after the committal of the case to the Court of Sessions, the investigating officer shall file the supplementary charge sheet before the Court of Sessions itself. 5. This process of further investigation, in relation to any further material against the sole accused and in relation to the involvement of other persons in this crime, shall be completed expeditiously and preferably within a period of three months from the date of this order. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. ________


IN THE HIGH COURT OF ANDHRA PRADESH

***

W.P.No.24362 of 2022

BETWEEN:

# 1. Veedhi Nookaratnam, W/o. Satyanaratna, R/o. Sriram Bageecha

 Enclave Apartment, Near Kulayi Cheruvu, Ramaraopeta, Kakinada,

 Andhra Pradesh.

 2. Veedhi Satyanaratana, S/o. Satyam, R/o. Sriram Bageecha

 Enclave Apartment, Near Kulayi Cheruvu, Ramaraopeta, Kakinada,

 Andhra Pradesh.

….Petitioners

AND

$ 1. Union of India rep. by its Secretary, Ministry of Home Affairs, Nirman

 Bhawan, Near Undyog Bhavan, Metro Station, Maulana Azad Road,

 New Delhi, Delhi- 110011.

 2. The State of Andhra Pradesh, rep. by its Principal Secretary (Home

 Dept) Secretariat Buildings, at Amaravathi, Guntur District, A.P.

 3. The Director General of Police, Mangalagiri, A.P.-522502.

 4. The Director, Central Bureau of Investigation (CBI) Plot No.5-B, 6th

 Floor, CGO Complex Lodhi Road, Jawaharlal Nehru Stadium Marg,

 New Delhi – 110 003.

 5. The Superintendent of Police, Central Bureau of Investigation, 1-83-

 21/4, MVP Double Road, Sector 8, MVP Colony, Visakhapatnam,

 Andhra Pradesh – 530017.

 6. The Superintendent of Police, Kakinada District, A.P.,

 7. The Sub-Divisional Police Officer, Kakinada, Kakinada District.

 8. The Station House Officer, Sarpavaram Police Station, A.P.

... Respondents

Date of Judgment pronounced on : 04.01.2023

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

1. Whether Reporters of Local newspapers : Yes/No

 May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No

 to Law Reporters/Journals:

3. Whether The Lordship wishes to see the fair copy : Yes/No

 Of the Judgment?

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W.P.No.24362 of 2022

2

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ W.P.No.24362 of 2022

% Dated:04.01.2023

BETWEEN:

# 1. Veedhi Nookaratnam, W/o. Satyanaratna, R/o. Sriram Bageecha

 Enclave Apartment, Near Kulayi Cheruvu, Ramaraopeta, Kakinada,

 Andhra Pradesh.

 2. Veedhi Satyanaratana, S/o. Satyam, R/o. Sriram Bageecha

 Enclave Apartment, Near Kulayi Cheruvu, Ramaraopeta, Kakinada,

 Andhra Pradesh.

….Petitioners

AND

$ 1. Union of India rep. by its Secretary, Ministry of Home Affairs, Nirman

 Bhawan, Near Undyog Bhavan, Metro Station, Maulana Azad Road,

 New Delhi, Delhi- 110011.

 2. The State of Andhra Pradesh, rep. by its Principal Secretary (Home

 Dept) Secretariat Buildings, at Amaravathi, Guntur District, A.P.

 3. The Director General of Police, Mangalagiri, A.P.-522502.

 4. The Director, Central Bureau of Investigation (CBI) Plot No.5-B, 6th

 Floor, CGO Complex Lodhi Road, Jawaharlal Nehru Stadium Marg,

 New Delhi – 110 003.

 5. The Superintendent of Police, Central Bureau of Investigation, 1-83-

 21/4, MVP Double Road, Sector 8, MVP Colony, Visakhapatnam,

 Andhra Pradesh – 530017.

 6. The Superintendent of Police, Kakinada District, A.P.,

 7. The Sub-Divisional Police Officer, Kakinada, Kakinada District.

 8. The Station House Officer, Sarpavaram Police Station, A.P.

... Respondents

! Counsel for Petitioner : Sri Jada Sravan Kumar

^Counsel for Respondents 2, 3, 6 to 8 : G.P. for Home

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W.P.No.24362 of 2022

3

<GIST:

>HEAD NOTE:

? Cases referred:

1. 1988 (12) All Cri 716

2. 2010 (2) SCC 200

3. 1992 (1) SCC 397

4. 2010 (3) ALT 200

5. 1994 SCC SUPL (1) 143

6. (2020) 14 SCC 12

7. (2008) 2 SCC 409

8. (2013) 12 SCC 480

9. 2022 SCC Online SC 884

10. 2012 SCC OnLine All 537

11. 2020 SCC OnLine Del 740

12. (2010) 3 SCC 571

13. (2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336 : 2010 SCC OnLine SC

930

14. (2014) 8 SCC 768 : (2014) 6 SCC (Cri) 116 : 2014 SCC OnLine SC 450

15. (2002) 5 SCC 521 : 2002 SCC (L&amp;S) 775 : 2002 SCC OnLine SC

580

16. (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9 : 2008 SCC OnLine SC 484

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W.P.No.24362 of 2022

4

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

W.P.No.24362 of 2022

ORDER:

The son of the petitioners had passed away, in suspicious

circumstances, on 20.05.2022. Upon a complaint made in this regard by

the 1st petitioner, Crime No.195 of 2022 was registered on 20.05.2022 in

Sarpavaram Police Station, East Godavari District, under Section 174

Cr.P.C. Thereafter, the provision of law was altered to offences punishable

under Sections 302 and 201 read with Section 34 IPC and Section

3(1)(r)(s) and Section 3 (2)(v) of SC & ST (Prevention of Atrocities) Act,

1989 (for short ‘the Act’).

2. The sole accused in the case was arrested on 23.05.2022

and has remained in judicial custody since then. The Investigating Officer

has filed a charge sheet before the Special Court for SCs and STs

(Prevention of Atrocities) Act cum X Additional District and Sessions Judge,

Rajamahendravaram on 22.08.2022, in which the accused has been

accused of offences under Sections 302, 201 IPC and Section 3(1)(r)(s)

and Section 3 (2)(v) of the Act. About 56 witnesses have been listed along

with the charge sheet. It is also stated in the charge sheet that C.C. TV

footage of the house of the accused after the commission of offence and

the CC footage near the scene of offence prior to the commission of

offence is to be examined to ascertain the presence and involvement of

the other accused, if any, and that the other accused could be charged by

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W.P.No.24362 of 2022

5

way of an additional charge sheet if reliable evidence, either technical or

material, regarding the involvement of other persons comes out in the

case. This charge sheet is said to have been returned with some

objections and steps are being taken to resubmit the charge sheet.

3. Even while the investigation was going on in the above case,

the petitioners had submitted a representation dated 08.06.2022, to the

authorities to transfer the investigation to an independent investigating

agency like C.B.I. The petitioners contend that this representation has

been ignored by the State machinery and no response has been given in

relation to this representation. The petitioners are now before this Court,

seeking a direction from this Court to transfer the investigation of the

above case to an independent investigating agency like C.B.I.

4. It is the contention of the petitioners that the accused is a

member of the Legislative Council and is a highly influential person, who is

ensuring that the police do not conduct a proper enquiry and are trying to

exonerate other persons who were involved in the homicide of their son.

The petitioners would point out to various mistakes, which are occurring in

the manner in which the investigation is being carried out, to contend that

the said mistakes are deliberate mistakes being done to help the accused.

5. The version of the petitioners, about the manner in which

their son (hereinafter referred to as ‘the deceased’) had passed away, is

as follows:

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W.P.No.24362 of 2022

6

a) The deceased was earlier working as a driver of the accused, in

the course of his employment, had also taken a loan of Rs.50,000/-, for

his marriage expenses, from the accused and had repaid an amount of

Rs.30,000/-. After some time, he had left the employment of the accused

without repaying the remaining amount of Rs.20,000/-

b) On the intervening night of 19.05.2022 and 20.05.2022 one Sri

A. Manikanta is said to have came on his motor cycle and picked up the

deceased at 7.30 p.m.

c) Later, the accused is said to have contacted the father of the

deceased, (the 2nd petitioner herein) at around 8.30 p.m., and enquired

about the whereabouts of the deceased and demanded repayment of the

unpaid loan amount of Rs.20,000/- and threatened serious consequences,

if the money was not paid.

d) At about 0.52 a.m., the accused contacted the father of the

deceased saying that the deceased was involved in an accident with a

motor cycle and that he was going to the accident site.

e) The younger brother of the deceased is said to have

immediately caused enquiries to know if any accident had taken place or

not and came to know that no such accident had occurred.

f) However, the accused contacted the younger brother of the

deceased and asked him to come to a hospital. The younger brother,

when he arrived at the hospital, had found the deceased, in the rear seat

of a car, in an unconscious state, opposite to the hospital. The duty

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W.P.No.24362 of 2022

7

Doctor, upon examination of the deceased, had confirmed the death of

the deceased.

g) Thereafter, the accused brought the dead body of the

deceased to the apartment complex of the deceased and informed the

parents and relatives of the deceased that the deceased had passed away

in a road accident and advised them to cremate the body by taking the

deceased to their native village for which he offered an amount of

Rs.2,00,000/-.

h) When the petitioners and others questioned the accused in this

regard, there was a verbal argument and the accused left the place

threatening them with severe consequences.

i) On noticing the injuries on the dead body of the deceased, the

petitioners and his relatives, suspecting that the injuries were not received

through an accident, had filed a complaint before the Sarpavaram Police

Station and the same was registered under Section 174 Cr.P.C., despite

the petitioners and the relatives stating that the deceased had not passed

away in a road accident.

j) It was only after the postmortem report had made it clear that

the death was not on account of any road accident that the accused was

taken into custody on 23.05.2022.

6. The petitioners further contend that the investigation in the

case was deliberately botched up by the State police to help the accused.

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8

7. Sri Jada Sravan Kumar, learned counsel appearing for the

petitioners would submit the details of the deliberate mistakes, committed

in the investigation, in the following manner:

a) The police had initially registered the case under Section 174

Cr.P.C., despite the presence of numerous injuries and wounds on

the body of the deceased.

b) The accused had about 12 pending criminal cases against him and

recommendations were made by the Assistant Superintendent of

Police, Rampachodawaram, for registration of a rowdy sheet

against the accused. Despite this, the investigating officer, in the

remand report, recorded that there was no past criminal record

against the accused. This was done to facilitate the accused to get

bail.

c) The accused was remanded to custody on 23.05.2022 for a period

of 15 days till 06.06.2022. The time period within which police

custody, of the accused, could have been obtained, under Section

167 Cr.P.C., was up to 06.06.2022. The investigating officer, after

keeping quiet, had filed Crl.M.P.No.878 of 2022 on 06.06.2022 for

police custody of the accused. This petition was dismissed by the

Magistrate on the ground that the time period for seeking police

custody had expired. The delay in filing the application for police

custody was deliberately done to help the accused.

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W.P.No.24362 of 2022

9

d) The version put out by the accused was that there was an

altercation between him and the deceased in relation to nonpayment of the loan amount of Rs.20,000/- due to which he had

pushed the deceased resulting in the deceased losing his balance

and falling on a hard piece of concrete due to which the deceased

had passed away. The investigating officer did not take any steps

to verify the alleged scene of offence or take any samples of the

mud or the cement in the place where the deceased is said to have

fallen and injured his head. The said gap in the investigation was

deliberate and to help the accused.

e) The pleadings in the counter affidavit filed before this Court as well

as the statements in the charge sheet show that the police admit

and acknowledge the presence of various other persons at the

scene of offence as well as at the house of the accused before and

after the incident had occurred. However, no investigation has been

carried out in relation to the involvement of the other persons and

no other person has been named either in the charge sheet or in

the course of investigation. The statement of the investigating

officer in the charge sheet, that other persons could also be

arrayed as accused after further investigation, is only a statement

made to mislead the Court and there would be no attempt of any

nature to include, as accused, any of the other persons, who were

involved in the death of the deceased.

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W.P.No.24362 of 2022

10

f) It is the version of the accused that he had dragged the body of

the deceased from the place of offence to another place for a

distance of about 1 k.m., and the same is highly improbable in view

of the physique of the accused. However, this aspect has been

deliberately ignored by the investigating officer.

8. Sri Jada Sravan Kumar, learned counsel for the petitioner

would also submit that the above defects in the investigation clearly make

out a case of willful negligence and willful misdirection of the investigation

to help the accused and other persons who were involved in the crime. He

submits that the investigation is being carried out in this manner only on

account of the fact that the accused is a prominent politician, and a

Member of the Legislative Council, who has close proximity to the police

authorities. He submits that there is no possibility of an impartial and

proper investigation by the State police. He submits that a proper

investigation is possible only if the investigation is entrusted to a

professionally independent body such as C.B.I. He relies upon the

following judgements:

1. Kashmere Devi vs. Delhi Administration1

.

2. Rubabhuddin Sheikh vs. State of Gujarat and Ors.2

3. Gudalure M. J. Cherian vs. Union of India3

4. Koganti Lakshmi vs. State Government of Andhra Pradesh

and Ors.,4

1 1988 (12) All CriR 716

2 2010 (2) SCC 200

3 1992 (1) SCC 397

4 2010 (3) ALT 200

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5. Ramesh Kumari vs State (NCT of Delhi) 2006 (2) SCC 677

6. R. S. Sodhi, Advocate vs State of U.P.,

5

to contend that the Courts, in similar circumstances, had held that the

High Court has power of entrusting the investigation to a separate

authority, at any stage of investigation, and on similar facts various Courts

have transferred the investigation to the C.B.I., from the State police.

9. The learned Government Pleader for Home would submit

that the State police has no interest in retaining the case or in conducting

investigation in the case. However, any transfer of investigation would be

a reflection on the State police due to which the State police are opposing

the transfer of investigation to the C.B.I. The learned Government Pleader

for Home relying upon the judgment of the Hon’ble Supreme Court in

Arnab Ranjan Goswami v. Union of India6

, would contend that

transfer of investigation, is a serious matter, which has to be done only in

extreme cases and the courts should deal with such issues with great

circumspection and caution. He would submit that it is only where the

court comes to a conclusion that there can be no independent and

impartial enquiry, that the Court would intervene in the matter and

transfer the investigation to the C.B.I. He would further submit that the

investigation has been going on in a fairly regular manner and small

mistakes in the course of such investigation cannot be a ground to doubt

5 1994 SCC SUPL (1) 143

6

(2020) 14 SCC 12

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the integrity of the investigation process and to transfer the case to C.B.I.

He relies upon the following judgements:

1. Sakiri Vasu vs. State of Uttar Pradesh and Ors.,7

2. K.V. Rajendran vs. Superintendent of Police, CBCID8

3. Rhea Chakraborty vs State of Bihar [Transfer Petition (CRL)

No.225 of 2020]

4. Himanshu Kumar and Ors., vs State of Chhattisgarh and

Ors.,9

5. Mrs. Rita Bahuguna Joshi vs. State of U.P.,10 [Allahabad

High Court]

6. Deepali Aggarwal vs State of GNCT11 [Delhi High Court]

7. State of West Bengal vs. Committee for Protection of

Democratic Rights,

12

8. Arnab Ranjan Goswami v. Union of India,

10. The learned Government Pleader for Home would also point

out that in the judgments cited by Sri Jada Sravan Kumar, the Courts were

dealing with situations where the police personnel themselves were the

accused in the investigation and there was a doubt as to the reliability of

the investigation by the State police themselves. He would submit that in

the present case no such situation arises. He would further submit that in

the present case, the accused, even according to the petitioners, is one of

the main reasons for the demise of their son. The learned Government

Pleader for Home would submit that once the accused himself has been

7

(2008) 2 SCC 409

8

(2013) 12 SCC 480

9 2022 SCC Online SC 884

10 2012 SCC OnLine All 537

11 2020 SCC OnLine Del 740

12 (2010) 3 SCC 571

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W.P.No.24362 of 2022

13

arrayed as the sole/main accused, the question of shielding the main

culprit does not arise. He would further submit that the investigation is

being done in a transparent manner with all information sought by the

petitioners being given to them. He points to the fact that the entire

documentation filed by the petitioners in this writ petition was given by

the police themselves.

11. The learned government pleader would further submit that

the investigating officer is awaiting the report of the forensic science lab in

relation to the CC TV footage to determine the identities of the persons

who were there along with the accused. He submits that the CC TV

footage requires a thorough vetting by the forensic science lab, as the

footage in this case, was not clear, and the assistance of the forensic

science lab was sought for the purpose of identifying the persons in the

CC TV footage.

Consideration of the Court:

12. Before considering the question as to whether the

investigation has to be transferred to the CBI, it is necessary to consider

the guidelines set out by the Hon’ble Supreme Court in this regard. The

Hon’ble Supreme Court had held that this court has power to transfer

investigation of a crime to the CBI, in Sakiri Vasu v. State of U.P., at

page 416:

31. No doubt the Magistrate cannot order investigation

by CBI vide CBI v. State of Rajasthan [(2001) 3 SCC 333 :

2001 SCC (Cri) 524] but this Court or the High Court has

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14

power under Article 136 or Article 226 to order investigation

by CBI. That, however, should be done only in some rare

and exceptional case, otherwise, CBI would be flooded with

a large number of cases and would find it impossible to

properly investigate all of them.

13. The further guidelines for such transfer were indicated in the

following judgements:

Babubhai v. State of Gujarat13 at page 272

45. Not only fair trial but fair investigation is also part of

constitutional rights guaranteed under Articles 20 and 21 of

the Constitution of India. Therefore, investigation must be

fair, transparent and judicious as it is the minimum

requirement of rule of law. The investigating agency cannot

be permitted to conduct an investigation in a tainted and

biased manner. Where non-interference of the court would

ultimately result in failure of justice, the court must interfere.

In such a situation, it may be in the interest of justice that

independent agency chosen by the High Court makes a fresh

investigation.

Subrata Chattoraj v. Union of India14

, at page 781

9. It is unnecessary to multiply decisions on the subject,

for this Court has exercised the power to transfer

investigation from the State Police to CBI in cases where

such transfer is considered necessary to discover the truth

and to meet the ends of justice or because of the complexity

of the issues arising for examination or where the case

involves national or international ramifications or where

people holding high positions of power and influence or

13 (2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336 : 2010 SCC OnLine SC 930

14 (2014) 8 SCC 768 : (2014) 6 SCC (Cri) 116 : 2014 SCC OnLine SC 450

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political clout are involved. What is important is that while

the power to transfer is exercised sparingly and with utmost

care and circumspection this Court has more often than not

directed transfer of cases where the fact situations so

demand.

Rubabbuddin Sheikh v. State of Gujarat, at page 216

60. Therefore, in view of our discussions made

hereinabove, it is difficult to accept the contentions of Mr

Rohatgi, learned Senior Counsel appearing for the State of

Gujarat that after the charge-sheet is submitted in the court

in the criminal proceeding it was not open for this Court or

even for the High Court to direct investigation of the case to

be handed over to CBI or to any independent agency.

Therefore, it can safely be concluded that in an appropriate

case when the court feels that the investigation by the police

authorities is not in the proper direction and in order to do

complete justice in the case and as the high police officials

are involved in the said crime, it was always open to the

court to hand over the investigation to the independent

agency like CBI. It cannot be said that after the chargesheet is submitted, the court is not empowered, in an

appropriate case, to hand over the investigation to an

independent agency like CBI.

14. Another line of judgements of the Hon’ble Supreme court

sounded a note of caution, in the exercise of discretion, by this court, in

the following manner:

Minor Irrigation & Rural Engg. Services15, U.P. v. Sahngoo

Ram Arya, at page 524

15 (2002) 5 SCC 521 : 2002 SCC (L&amp;S) 775 : 2002 SCC OnLine SC 580

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5. While none can dispute the power of the High Court

under Article 226 to direct an inquiry by CBI, the said power

can be exercised only in cases where there is sufficient

material to come to a prima facie conclusion that there is a

need for such inquiry. It is not sufficient to have such

material in the pleadings. On the contrary, there is a need

for the High Court on consideration of such pleadings to

come to the conclusion that the material before it is

sufficient to direct such an inquiry by CBI. This is a

requirement which is clearly deducible from the judgment of

this Court in the case of Common Cause [(1999) 6 SCC 667 :

1999 SCC (Cri) 1196] . This Court in the said judgment at

paragraph 174 of the Report has held thus : (SCC p. 750,

para 174)

“174. The other direction, namely, the direction to CBI to

investigate ‘any other offence’ is wholly erroneous and

cannot be sustained. Obviously, direction for investigation

can be given only if an offence is, prima facie, found to have

been committed or a person's involvement is prima facie

established, but a direction to CBI to investigate whether

any person has committed an offence or not cannot be

legally given. Such a direction would be contrary to the

concept and philosophy of ‘LIFE’ and ‘LIBERTY’ guaranteed to

a person under Article 21 of the Constitution. This direction

is in complete negation of various decisions of this Court in

which the concept of ‘LIFE’ has been explained in a manner

which has infused ‘LIFE’ into the letters of Article 21.”

6. It is seen from the above decision of this Court that

the right to life under Article 21 includes the right of a

person to live without being hounded by the police or CBI to

find out whether he has committed any offence or is living

as a law-abiding citizen. Therefore, it is clear that a decision

to direct an inquiry by CBI against a person can only be

done if the High Court after considering the material on

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record comes to a conclusion that such material does

disclose a prima facie case calling for an investigation by CBI

or any other similar agency, and the same cannot be done

as a matter of routine or merely because a party makes

some such allegations. In the instant case, we see that the

High Court without coming to a definite conclusion that

there is a prima facie case established to direct an inquiry

has proceeded on the basis of “ifs” and “buts” and thought it

appropriate that the inquiry should be made by CBI. With

respect, we think that this is not what is required by the law

as laid down by this Court in the case of Common

Cause [(1999) 6 SCC 667 : 1999 SCC (Cri) 1196] .

15. This principle has been affirmed by a constitution bench

of the Hon’ble Supreme court, in the following manner:

State of W.B. v. Committee for Protection of Democratic

Rights, at page 602:

71. In Minor Irrigation & Rural Engg. Services,

U.P. v. Sahngoo Ram Arya [(2002) 5 SCC 521 : 2002 SCC

(L&S) 775] this Court had said that an order directing an

enquiry by CBI should be passed only when the High Court,

after considering the material on record, comes to a

conclusion that such material does disclose a prima facie

case calling for an investigation by CBI or any other similar

agency. We respectfully concur with these observations.

Divine Retreat Centre v. State of Kerala16

, at page 560

40. In our view, the High Court in exercise of its inherent

jurisdiction cannot change the investigating officer in the

midstream and appoint any agency of its own choice to

16 (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9 : 2008 SCC OnLine SC 484

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investigate into a crime on whatsoever basis and more

particularly on the basis of complaints or anonymous petitions

addressed to a named Judge. Such communications cannot

be converted into suo motu proceedings for setting the law in

motion. Neither are the accused nor the complainant or

informant entitled to choose their own investigating agency to

investigate a crime in which they may be interested.

41. It is altogether a different matter that the High Court

in exercise of its power under Article 226 of the Constitution

of India can always issue appropriate directions at the

instance of an aggrieved person if the High Court is convinced

that the power of investigation has been exercised by an

investigating officer mala fide. That power is to be exercised

in the rarest of the rare case where a clear case of abuse of

power and non-compliance with the provisions falling under

Chapter XII of the Code is clearly made out requiring the

interference of the High Court. But even in such cases, the

High Court cannot direct the police as to how the

investigation is to be conducted but can always insist for the

observance of process as provided for in the Code.

16. The Hon’ble Supreme Court, after a review of the law had

summed up the guidelines in, Arnab Ranjan Goswami v. Union of

India, at page 41, in the following manner:

42. The transfer of an investigation to CBI is not a

matter of routine. The precedents of this Court emphasise

that this is an “extraordinary power” to be used “sparingly”

and “in exceptional circumstances”. Speaking for a

Constitution Bench in State of W.B. v. Committee for

Protection of Democratic Rights [State of W.B. v. Committee

for Protection of Democratic Rights, (2010) 3 SCC 571 :

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(2010) 2 SCC (Cri) 401] (“CPDR, West Bengal”), D.K. Jain, J.

observed : (SCC p. 602, para 70)

“70. … despite wide powers conferred by Articles 32 and

226 of the Constitution, while passing any order, the courts

must bear in mind certain self-imposed limitations on the

exercise of these constitutional powers. The very plenitude

of the power under the said articles requires great caution in

its exercise. Insofar 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 be 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. 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.”

(emphasis supplied)

43. This principle has been reiterated in K.V.

Rajendran v. CBCID [K.V. Rajendran v. CBCID, (2013) 12

SCC 480 : (2014) 4 SCC (Cri) 578] . Dr B.S. Chauhan, J.

speaking for a three-Judge Bench of this Court held : (SCC

p. 485, para 13)

“13. … This Court has time and again dealt with the

issue under what circumstances the investigation can be

transferred from the State investigating agency to any other

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independent investigating agency like CBI. It has been held

that the power of transferring such investigation must be in

rare and exceptional cases where the court finds it

necessary in order to do justice between the parties and to

instil confidence in the public mind, or where investigation

by the State police lacks credibility and it is necessary for

having “a fair, honest and complete investigation”, and

particularly, when it is imperative to retain public confidence

in the impartial working of the State agencies.”

44. Elaborating on this principle, this Court observed :

(K.V. Rajendran case [K.V. Rajendran v. CBCID, (2013) 12

SCC 480 : (2014) 4 SCC (Cri) 578] , SCC p. 487, para 17)

“17. … the Court could exercise its constitutional powers

for transferring an investigation from the State investigating

agency to any other independent investigating agency like

CBI only in rare and exceptional cases. Such as where high

officials of State authorities are involved, or the accusation

itself is against the top officials of the investigating agency

thereby allowing them to influence the investigation, and

further that it is so necessary to do justice and to instil

confidence in the investigation or where the investigation is

prima facie found to be tainted/biased.”

The Court reiterated that an investigation may be

transferred to CBI only in “rare and exceptional cases”. 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 by the Constitution Bench

in CPDR [State of W.B. v. Committee for Protection of

Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri)

401] , that mere allegations against the police do not

constitute a sufficient basis to transfer the investigation.

46. The principle of law that emerges from the

precedents of this Court is that the power to transfer an

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W.P.No.24362 of 2022

21

investigation must be used “sparingly” and only “in

exceptional circumstances”. In assessing the plea urged by

the petitioner that the investigation must be transferred to

CBI, we are guided by the parameters laid down by this

Court for the exercise of that extraordinary power. It is

necessary to address the grounds on which the petitioner

seeks a transfer of the investigation. The grounds urged for

transfer are:

17. The principles that can be extracted from the aforesaid

guidelines laid down by the Hon’ble Supreme Court are –

a) This Court, exercising its jurisdiction under Article 226 of the

Constitution of India, has the power to transfer investigation of any

Crime from a State agency to another independent agency like the

C.B.I.

b) This power is to be exercised sparingly and in exceptional

circumstances.

c) The question of whether such exceptional circumstances exist or

not, is a question of fact which has to be determined on the facts of

each case.

18. Some of the exceptional circumstances, enumerated in the

aforesaid judgments are –

a) Involvement of higher officials of the State in the crime under

investigation;

b) Accusation against top officials of the investigation agency itself;

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W.P.No.24362 of 2022

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c) The facts show that transfer of a case is necessary to ensure

credibility and instill confidence in the investigation;

d) Whether the incident may have national and international

ramifications.

19. The present case would have to be considered on the basis

of the above guidelines which are not exhaustive and keeping in mind the

caution placed by the Hon’ble Supreme Court in the Constitution Bench

Judgment (State of West Bengal v. Committee for Protection of

Democratic Rights) that this extraordinary power must be exercised

sparingly, cautiously and in exceptional situations.

20. In the present case, the sole accused is a member of the

Legislative Council. The apprehension of the petitioners is that the State

police would not take any steps against such a person on account of his

being a public representative. The petitioners, in support of this

apprehension, have also sought to make out a case of deliberate

mishandling of investigation, by citing various incidents which raise such

doubts.

21. The learned Government Pleader, on the other hand,

submits that the investigation has been done in a transparent manner and

the Member of the Legislative Council himself has been arrayed as the

sole accused in the case. He submits that in such circumstances, the

question of shielding the said public representative does not arise. He

would further submit that the entire thrust of the argument of the

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W.P.No.24362 of 2022

23

petitioners is that other persons, who were also involved in the crime, are

not being arrayed as accused. He submits that the case of the petitioners

is that the persons, who were found to be present at the scene of offence

and at the house of the sole accused, at the relevant point of time in the

C.C TV footage, are not being included as accused even though they are

involved in the crime. The learned Government Pleader contends that the

charge sheet filed by the investigating officer specifically states that there

is every possibility of other persons being involved in the crime and the

report of the forensic science lab on the CC TV footage is awaited, any

further investigation and steps can be taken against the other persons. In

such situation, the apprehension and allegation of the petitioners that

certain persons are being shielded, is misplaced.

22. The petitioners have set out their version of the events of

19/20.05.2022 in the writ affidavit. A perusal of the charge sheet shows

that the facts alleged in the charge sheet essentially mirror the version of

the petitioners in the writ petition. The charge sheet also states that the

role of other persons is still being probed and further investigation would

be taken up after the presence of other persons is certified by the forensic

science lab. In such a situation, the conditions necessary for ordering

transfer of investigation to an independent agency like C.B.I., do not

appear to be made out.

23. The only fact, which does raise a certain amount of doubt, is

the negligence/delay in filing a complaint for police custody of the sole

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W.P.No.24362 of 2022

24

accused. A proper explanation for the said delay has not been made out

before this Court. However, a revision appears to have been filed before

this Court against the order of dismissal of the application for police

remand of the accused, passed by the Magistrate. This delay, by itself,

would not be sufficient for this Court to hold that the exceptional

circumstances set out above have been made out, unless there is

something more, justifying the order of transfer of investigation to the

C.B.I. The other contentions raised by the petitioners do not appear to

make out such exceptional circumstances.

24. One of the prime requirements of any criminal investigation

is the credibility of such investigation and the confidence it evokes in the

stake holders of the said investigation. To ensure that, such confidence is

further retained, this writ petition is being disposed of with the following

directions:

1. The investigating officer shall take immediate steps to obtain the

forensic science lab reports in relation to C.C TV footage, at the

earliest, and preferably within 15 days from the date of this

order.

2. The investigating officer, upon identification of the

persons/person in the CC TV footage, shall conduct a thorough

investigation into the reasons for the presence of such persons

and their role, if any, in the commission of offence or in the

cover up of the said offence.

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3. The investigating officer, upon finding any incriminating material

or record in this regard shall include all such persons against

whom such incriminating material is obtained as accused in the

case and file a supplementary charge sheet under Section 173(8)

Cr.P.C., before the Magistrate.

4. This direction is being given, as the matter is still pending before

the Magistrate for committal to a Court of Sessions. In the event

of the investigation being completed after the committal of the

case to the Court of Sessions, the investigating officer shall file

the supplementary charge sheet before the Court of Sessions

itself.

5. This process of further investigation, in relation to any further

material against the sole accused and in relation to the

involvement of other persons in this crime, shall be completed

expeditiously and preferably within a period of three months

from the date of this order.

There shall be no order as to costs. As a sequel, pending

miscellaneous petitions, if any, shall stand closed.

_________________________

R. RAGHUNANDAN RAO, J.

4

th January, 2023

Js.

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W.P.No.24362 of 2022

26

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

W.P.No.24362 of 2022

4

th January, 2023

Js.

2023:APHC:163

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