Director General Of Police (W.B.) And Others v. Gopal Kumar Agarwal And Another

Arijit Banerjee, J.:— These two appeals are directed against the judgment and order dated February 7, 2019 whereby a Learned Single Judge disposed of W.P. No. 1208 (W) of 2019 by substituting the Central Bureau of Investigation (CBI) as the investigating authority in the place instead of Crime Investigation Department (CID) which is an organ of the State of West Bengal, in connection with Raniganj P.S. Case No. 372 of 2017.

2. The said police case was instituted in connection with the unnatural death of one Pushpa Bhalotia. The writ petitioner is the elder brother of Pushpa. He alleged that the investigation is not being conducted in a proper manner by the state police machinery. There are serious loopholes in the investigation process. He alleged that the state police machinery is conducting the investigation in a manner so as to shield the accused person viz., Manoj Bhalotia who is the husband of Pushpa. In the writ petition, the writ petitioner enumerated certain alleged loopholes in the investigation process. It was his submission before the Learned Single Judge that for the ends of justice and to preserve public confidence in the process of investigation, the investigation should be handed over to CBI or any other independent agency. By the impugned judgment and order, the Learned Single Judge accepted the submission of the writ petitioner and entrusted the investigation with CBI. Being aggrieved the present two appeals have been filed, one by the State of West Bengal through the Director General of Police, West Bengal, and the other by Manoj Bhalotia.

3. We have heard Learned Senior Counsel for the parties in extenso on various dates. Two points arise for determination by us. Firstly, whether or not these intra court appeals are maintainable? This question has been raised by Learned Senior Counsel appearing for the respondent no. 1 in MAT 318/2019 who is the private respondent in MAT 353/2019. Secondly, if we hold the appeals to be maintainable, whether or not the Learned Single Judge was justified, in the facts and circumstances of the case, in directing transfer of the investigation from State Police to CBI?

Re: Maintainability of the appeals

4. This point has been argued at great length by Learned Counsel for the parties. At first blush it may appear that the point is a simple one. However, in view of the erudite arguments advanced by Learned Senior Counsel for all the parties, the point has assumed a complex character.

5. Mr. Sengupta, Learned Senior Counsel representing the writ petitioner, drew our attention to Clause 15 of the Letters Patent, 1865, which reads as follows:—

“15. Appeal from the Courts of original jurisdiction to the High court in its appellate jurisdiction.- And we do further ordain, that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of S. 107 of the Government of India Act (or in the exercise of criminal jurisdiction) or one Judge of the said High Court or one Judge of any Division Court, pursuant to sec.108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge or any Division Court, pursuant to sec.108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty nine in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council as hereinafter provided.”

6. He submitted that although the Learned Single Judge passed the impugned order on an application under Article 226 of the Constitution of India, in essence, the Learned Judge exercised criminal jurisdiction by directing substitution of CBI in the place and stead of the State Police/CID as the investigating agency for the purpose of carrying on investigation in the matter of unnatural death of Pushpa. Hence, intra court appeal to the Division Bench under Clause 15 of the Letters Patent would not lie. To buttress his submission he relied on the following four decisions:

(i) Ram Kishan Fauji v. State of Haryana: (2017) 5 SCC 533

(ii) Jalaluddin v. State of Haryana: (2018) 190 PLR 168

(iii) Decision of a Division Bench of Delhi High Court in LPA 1194/2006 and LPA 1196/2006 (Vinod Kumar Pandey v. Sheesh Ram Saini)

(iv) Laxmi Narayan Udyog Ltd. (In Liqn) v. Omendra Kumar Chowdhury: 2017 (4) CHN (Cal) 261

7. We will revert back to these decisions later in this judgment.

8. Mr. Sengupta also submitted that the appeal filed by Manoj Kumar Bhalotia is not maintainable for the additional reason that an accused has no say in the matter of who should be the investigating agency. This point need not detain us since there is another appeal involving an identical issue filed by the State and it is nobody's case that the State does not have a say in the matter.

9. Appearing for the State, Learned Advocate General took us through various clauses of the Letters Patent and submitted that Clauses 22 to 29 thereof define what criminal jurisdiction of the High Court is. Clause 22 defines the ordinary original criminal jurisdiction of the High Court. Clause 23 empowers the High Court, in the case of its ordinary original criminal jurisdiction, to try all persons brought before it in due course of law. Clause 24 delineates the extraordinary original criminal jurisdiction of the High Court. Clause 25 provides that there shall be no appeal to the High Court of Judicature at Fort William in Bengal from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court. Clause 26 empowers the High Court to review an order passed in exercise of criminal jurisdiction on it being certified by the Advocate General. Clause 27 provides for appeals from criminal courts in the Provinces. Clause 28 pertains to hearing of referred cases and revision of criminal trials. Clause 29 empowers the High Court to direct the transfer of any case or appeal from any court to any other court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case may belong in ordinary course to the jurisdiction of some other officer or Court. Learned Advocate General also referred to Clause 41 of the Letters Patent which provides that “from any judgment, order or sentence of the High Court made in the exercise of original criminal jurisdiction… It shall be lawful for the person aggrieved by such judgment, order or sentence to Us, Our heirs or successors, in Council; provided the said High Court shall declare that the case is a fit one for such appeal, and under such conditions as the said High court may establish or require, subject always to such rules and orders as We may, with the advice of Our Privy Council, hereafter make in that behalf.”

10. Referring to the above provisions of the Letters Patent, Learned Advocate General urged that in the present case the Learned Single Judge did not exercise criminal jurisdiction within the meaning of Clauses 22 to 29 of the Letters Patent and hence the exclusion of appeal in Clause 15 would not apply. He submitted that reading Clauses 15, 22 to 29 and 41 as a whole, what merely follows is that an intra court appeal from the order of a Learned Single Judge of the High Court passed in exercise of criminal jurisdiction within the meaning of Clauses 22 to 29 of the Letters Patent, would not lie and that such an appeal would lie to a higher forum, now the Hon'ble Supreme Court.

11. Appearing for the appellant in MAT 353/2019 (the accused in the criminal case) Mr. Mitra, Learned Senior Counsel submitted that it would appear from the writ petition itself that the same is based on alleged infringement of fundamental rights of the writ petitioner under Article 21 of the Constitution of India. Article 226 of the Constitution empowers only the High Courts to enforce fundamental rights. The High Court's power to direct transfer of investigation from one agency to another is a constitutional power and not a power under criminal jurisdiction. He further submitted that the words ‘criminal jurisdiction’ in Clause 15 and Clauses 22/23 of the Letters Patent must be given the same meaning. He further submitted that the established canons of interpretation warrant that the same phrase appearing at different places of a statute must be ascribed the same meaning. The impugned order was passed in the exercise of constitutional writ jurisdiction and not in exercise of criminal jurisdiction meaning within the meaning of Clauses 15, 22 and 23 of the Letters Patent. Mr. Mitra referred to a decision of this Court in the case of Indofer Society v. Director General of Foreign Trade & Additional Secretary to the Government of India: (2004) 1 CHN 374. However, that decision pertains to whether or not a writ petition could be heard by a Division Bench of this court instead of a Learned Single Judge, which issue is not germane to the case in hand.

12. Mr. Mitra then submitted that the Chief Justice of a High court is the Master of the Roster. He assigns different classes of cases to different Judges. On the day the impugned judgment and order was passed by the Learned Single Judge, His Lordship did not have determination to hear criminal matters. The Learned Single Judge could not have exercised criminal jurisdiction. In this connection, he referred to the decision of a Division Bench of this Court in Sohan Lal Baid v. The State of West Bengal: 1989 (II) CHN 474 in support of his submission that an order passed by a Learned Judge who did not have determination to entertain the writ petition, is a nullity. He also referred to the Hon'ble Supreme Court's decisions in Asok Pande v. Supreme Court of India through its Registrars: (2018) 5 SCC 341 and in Shanti Bhushan v. Supreme Court of India through its Registrars: (2018) 8 SCC 396 in support of his submission that allocation of work to individual judges is the sole prerogative of the Chief Justice of a High Court. We refrain from dealing with these two cases since there is no dispute with the proposition in respect of which they have been cited. It may also not be necessary to deal with the decision of this Court's Division Bench in Sohan Lal Baid (supra) although we are of the view that the said decision may require to be revisited in an appropriate case.

13. Mr. Mitra finally relied on a decision of the Hon'ble Supreme court in the case of S.A.L. Narayan Row v. Ishwarlal Bhagwandas: AIR 1965 SC 1818 and in particular on Paragraph 16 of the reported judgment wherein the Hon'ble Court held that there is no ground for restricting the expression “civil proceeding” only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes.

14. We have carefully considered the submissions made by the Learned Senior Counsel for the respective parties on the point of maintainability of these two intra court appeals. The short question is whether or not the Learned Single Judge passed the impugned order in exercise of criminal jurisdiction.

15. In the present case, a criminal case was instituted on the complaint of the writ petitioner (who is the respondent no. 1 in MAT 318 of 2019 and hereinafter referred to as ‘Gopal’) against the appellant (hereinafter referred to as ‘Manoj’) in MAT 353 of 2019. Criminal investigation started. Being aggrieved by and dissatisfied with the manner in which the investigation was proceeding, Gopal approached the Learned Single Judge by filing an application under Article 226 of the Constitution of India praying for change of the investigating agency. According to him, the investigation was being done in a biased manner to protect Manoj for the reasons alleged by him in the writ petition. The Learned Single Judge was of the opinion that there was substance in Gopal's contention and accordingly directed substitution of CBI as the Investigating Authority in the place and stead of CID.

16. In his writ petition, Gopal did not pray for quashing of the criminal proceedings and naturally so because he is the de-facto complainant. Nor did Gopal pray for an order for initiation of a criminal proceeding since the criminal proceeding already stood initiated. The order of the Learned Single Judge which is impugned before us neither had the effect of causing initiation of a criminal proceeding nor had the effect of quashing or terminating a criminal proceeding. The Learned Judge was of the view that the investigation was not being conducted in a proper manner and accordingly directed change of the investigating agency. This, in our considered opinion, did not amount to exercise of criminal jurisdiction by the Learned Single Judge.

17. Criminal jurisdiction of the Calcutta High Court has been defined in Clauses 22 to 29 of the Letters Patent, 1865 which have been adverted to above. On a careful analysis and consideration of the said clauses, it cannot be said that the Learned Single Judge passed the impugned order in exercise of criminal jurisdiction. Further, on the day the Learned Judge passed the impugned order, His Lordship did not have determination to hear or decide a case in criminal jurisdiction. In our opinion, the Learned Judge exercised supervisory jurisdiction under Article 226 of the Constitution of India in directing change of the investigating agency. The criminal investigation was already in progress. The investigation was not initiated as a result of the impugned order.

18. A number of decisions of the Hon'ble Supreme Court have been cited before us, which we will refer to later in this Judgment which have laid down that undoubtedly High Courts have power to direct change of investigating authority in exercise of power under Article 226 of the Constitution of India, although such power should be sparingly exercised. We are of the view that in this case the Learned Single Judge exercised such a power. Gopal approached the Learned Single Judge with the grievance that there were loopholes in the process of investigation, deliberately created by the investigating authority to shield Manoj. His contention was that he has a constitutional or civil right to have the investigation conducted in a fair and impartial manner. The Learned Judge accepted such contention and passed the impugned order. The impugned order of the Learned Judge does not by itself have any criminal consequence, be it initiation or termination of a criminal case. Even without the order of the Learned Judge, the criminal case would have proceeded to its logical conclusion. Hence, we are unable to agree with the contention of Mr. Sengupta, Learned Senior Counsel representing Gopal, that the impugned order was passed in exercise of criminal jurisdiction and therefore, the present appeals are barred by the provisions of Clause 15 of the Letters Patent, 1865.

19. The fulcrum of Gopal's contention that the appeals are not maintainable is the decision of the Hon'ble Supreme Court in the case of Ram Kishan Fauji (supra). In that case, acting on the reference made by the Chief Secretary to the Govt. of Haryana in exercise of power under Section 8(1) of the Haryana Lokayukta Act, 2002, the Lokayukta of Haryana, after conducting requisite enquiry, recommended registration of FIR against the appellant for offences punishable under the provisions of Prevention of Corruption Act, 1988 and investigation by a senior competent officer of impeccable integrity. This recommendation was challenged by the appellant before the Haryana High Court. The Learned Single Judge quashed the recommendation and all actions taken pursuant to such recommendation. This was carried before the Division Bench by way of an intra-court appeal by the State of Haryana. The Division Bench admitted the Letters Patent Appeal, stayed the operation of the Learned Single Judge's order and with a view to ensuring absolute objectivity in the ongoing investigation and to rule out any possibility of alleged prejudice against the accused, directed the Director General of Police, Haryana to constitute a Special Investigation Team comprising three senior IPS Officers, who originally did not belong to the State of Haryana. This order of the Division Bench was assailed by the appellant before the Hon'ble Supreme Court. The only point that was urged before and considered by the Hon'ble Supreme Court was whether or not the Letters Patent appeal against the Learned Single Judge's order before the Division Bench was maintainable.

20. Before the Hon'ble Supreme Court, the State of Haryana relied on a Full Bench decision of the Andhra Pradesh High Court in the case of Gangaram Kandaram v. Sunder Chikha Amin: (2000) 2 ALT 448. The Hon'ble High Court held that issuing a writ of mandamus or certiorari by the High Court under Article 226 of the Constitution pertaining to a criminal complaint or proceeding cannot be said to be an order passed in exercise of criminal jurisdiction. Hence, an intra-court appeal from such an order would lie under Clause 15 of the Letters Patent, 1865. Learned Counsel for the appellant relied on the Division Bench Decision of the Gujarat High Court in the case of Sanjeev Rajendrabhai Bhatt v. State of Gujarat: (2000) 1 Guj LR 206 and on the Full Bench Decision of the Delhi High Court in the case of C.S Agarwal v. State & Ors.: 2011 SCC OnLine Del 3136. The Gujarat High Court held that in the facts of that case the proceeding could be said to be criminal proceeding inasmuch as, carried to its conclusion, they may result in imprisonment, fine, etc. It was held that a proceeding under Article 226 of the Constitution arising from an order passed or made by a Court in exercise of power under the Code of Criminal Procedure is still a ‘criminal proceeding’ within the meaning of Clause 15 of the Letters Patent. A proceeding seeking to avoid the consequences of a criminal proceeding initiated under the Code of Criminal Procedure will continue to remain ‘criminal proceeding’ covered by the exclusion portion of Clause 15 of the Letters Patent. In the Delhi Case, the High Court held that proceedings under Article 226 of the Constitution would be treated as original civil proceedings only when it concerns civil rights. If it concerns criminal matters, then such proceedings would be original criminal proceedings. Letters Patent appeal would lie when the Single Judge decides the writ petition in proceedings concerning civil rights. On the other hand, if the proceedings are concerned with rights in criminal law domain, then it can be said that the Single Judge was exercising ‘criminal jurisdiction’ while dealing with such a petition filed under Article 226 of the Constitution.

21. Having considered the aforesaid three decisions and several other decisions, the Hon'ble Supreme Court held that the High Courts of Gujarat and Delhi have correctly laid down the law and the view expressed by the Full Bench of the Andhra Pradesh High Court is incorrect. The Hon'ble Court also observed that: “the conception of ‘criminal jurisdiction’ as used in Clause 10 (which is in pari materia with Clause 15 in our case) of the Letters Patent is not to be construed in a narrow sense. It encompasses in its gamut the inception and the consequence.”(the emphasis is ours). The Hon'ble Supreme Court held that in the facts of that case the consequence of the order of the Learned Single Judge was of a criminal nature inasmuch as by such order the FIR stood quashed thereby leading to termination of the criminal proceeding. Hence, the order was passed in exercise of criminal jurisdiction and therefore, no Letters Patent appeal would lie therefrom. On this sole ground, the Hon'ble Supreme Court allowed the appeal and set aside the order of the Division Bench leaving it open for the State of Haryana to challenge the Learned Single Judge's order before any other appropriate forum as may be available in law.

22. The facts in the case of Ram Kishan Fauji (supra) are different from the facts in the present case. In that case the Learned Single Judge's order had a consequence which was clearly criminal in nature. The Learned Single Judge opined that the recommendation of the Lokayukta for registration of FIR against Ram Kishan Fauji deserved to be quashed and accordingly quashed the same and also quashed all actions taken pursuant to such recommendation including the FIR. This led to the termination of the criminal proceeding. In the present case, the impugned order of the Learned Single Judge does not have any such consequence. Neither the impugned order was the reason for initiation of criminal proceeding nor for termination of any criminal proceeding. In our view, the Learned Single Judge merely upheld the civil right of the writ petitioner (Gopal) to have a fair and impartial investigation conducted in connection with the alleged unnatural death of his sister, as was claimed by him. No point of criminal law was decided by the Learned Single Judge. The impugned order cannot be said to have been passed in criminal domain. We are in respectful agreement with the ratio decidendi of the decisions of the Division Bench of the Gujarat High Court and the Full Bench of the Delhi High Court which were approved by the Hon'ble Supreme Court in the case of Ram Kishan Fauji (supra), as mentioned above. Reading the Hon'ble Supreme Court's decision in the case of Ram Kishan Fauji (Supra) as a whole, we cannot accept the contention of Learned Senior Counsel representing Gopal (writ petitioner) that if the High Court in exercise of power under Article 226 of the Constitution passes an order which has even the remotest connection with a criminal case, then the order must be said to have been passed in exercise of criminal jurisdiction, notwithstanding that the order by itself does not have any criminal consequence in the sense that it neither directs initiation of a criminal proceeding which may have penal consequences for the accused person, nor it directs quashing or termination of a criminal proceeding thereby relieving the accused person of possible penal consequences. In our considered view, the decision in Ram Kishan Fauji (supra) does not advance the case of the writ petitioner on the point of maintainability of these appeals.

23. In this connection it may also be noted that the Hon'ble Supreme Court in Ram Kishan Fauji (supra) at Paragraph 42 of the Judgment observed, inter alia, that: “The tenability of intra-court appeal will depend upon the Bench adjudicating the lis as to how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straitjacket formula for the same.” In our understanding, in the facts of the present case, the Learned Single Judge was exercising civil jurisdiction under Article 226 of the Constitution and not criminal jurisdiction.

24. Learned Senior Counsel representing Gopal also relied on a decision of the Punjab & Haryana High Court in the case of Jalauddin (supra). In that case the writ petitioner had approached the Learned Single Judge praying for a direction to entrust the investigation of a criminal case with an independent agency like CBI. The Learned Single Judge dismissed the writ petition. The appeal preferred by the writ petitioner was dismissed by the Division Bench holding that no intra court appeal would be maintainable. The Division Bench observed that in the light of the prayer made in the writ petition and keeping in mind the enunciation of law by the Hon'ble Supreme Court in the case of Ram Kishan Fauji (supra), the order passed by the Learned Single Judge was in exercise of criminal jurisdiction. It was observed that investigation of a crime would fall within the criminal jurisdiction. With the greatest of respect, we are unable to agree with the decision in that case. In our respectful opinion, the said decision is not based on a proper appreciation of the ratio decidendi in the case of Ram Kishan Fauji (supra).

25. Another decision relied upon on this point by Learned Senior Counsel representing Gopal is one of this Court in the case of Laxmi Narayan Udyog Limited (In Liqn.) (supra). A Division Bench of this Court held that no appeal lies under Clause 15 of the Letters Patent from an order passed by a Single Judge of this Court under Section 340 of the Code of Criminal Procedure. We have absolutely no dispute with this proposition since an order passed by a Learned Single Judge under Section 340 of the Code of Criminal Procedure would indisputably be an order passed in exercise of criminal jurisdiction and hence not amenable to an intra court appeal under Clause 15 of the Letters Patent.

26. Learned Senior Counsel representing Gopal also relied on the decision of the Delhi High Court rendered on 13 March, 2019 in LPA No. 1194 of 2006 and LPA No. 1196 of 2006 (Vinod Kumar Pandey v. Sheesh Ram Saini). In that case, the petitioner had filed a criminal writ petition registered as WP (Crl) No. 675 of 2001 under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure seeking registration of a criminal case against the respondent no. 3. The learned Single Judge had allowed the writ petition by directing registration of FIR. The only question that arose for consideration before the Division Bench was whether an intra-court appeal under Article 10 of the Letters Patent was maintainable against the order made in a criminal writ petition. The Division Bench held that a Court which directs investigation in according with the requirement of criminal law i.e., the procedure contemplated in the Code of Criminal Procedure, exercises criminal jurisdiction and it does not make any difference if the proceedings initiated are for setting in motion a criminal proceeding or to quash a criminal proceeding already initiated. In both cases, the effect of the order would be to proceed with the matter, criminal in nature with regard to a criminal offence allegedly committed and to bring it to its logical conclusion, i.e., either conviction or acquittal of the accused person. With such reasoning, the Division Bench held that an intra-court Letters Patent Appeal was not maintainable against the order of the Learned Single Judge in that case.

27. We have no disagreement with the proposition of law propounded in the aforesaid decision. However, in the facts of the present case the order of the Learned Single Judge neither resulted in initiation of the criminal proceeding nor in quashing of a criminal proceeding. The facts of the instant case are different from the facts of the Delhi case discussed above.

28. For the aforesaid reasons we hold that the present appeals are maintainable and not barred by Clause 15 of the Letters Patent, 1865.

Re: Merits of the appeals

29. Appearing for Gopal, Mr. Sengupta, Learned Senior Counsel submitted that the investigation that was being conducted by the State Police was sham and not worthy of the name. From the very beginning, attempt was being made to dilute the case to go to the rescue of Manoj. Learned Senior Counsel took us through the documents on record and submitted that in the unnatural death (UD) case there is no mention of bullet injury. Only burn injury has been mentioned. Even after the CID took over investigation, the following matters have not been investigated:

(a) No attempt has been made to find out who informed the Raniganj Fire Station about the incident. Further, no attempt has been made to discover as to how an outsider could see a fire from nozzle of cylinder (since no mention has been made that an insider informed of the fire). No mention of investigating the call records which could throw light on who informed the police.

(b) No attempt has been made to find out the location of Manoj Bhalotia at the time of the incident. Charge-sheet completely silent on tracing of mobile phone of Manoj Bhalotia.

(c) No attempt made to interrogate the doctor of Anandalok Hospital who treated the deceased first.

(d) No attempt to take finger print from the gun, which is alleged to have been used.

(e) No attempt to find out why revolver was kept in a loaded condition with safety catch open in a place which can be accessed by others.

(f) No attempt to find out why Sandhya Bauri's (maid) statement is different from that of Ra,niganj Fire Station's.

(g) No attempt to investigate as to why no one in the house heard the sound of the gunshot.

30. It was then submitted that the charge-sheet differs from the Post Mortem (PM) Report. The PM Report states that burn injury is prior to bullet injury. This story has been completely changed in the charge-sheet. No explanation is provided. The body of the deceased was cremated as per Hindu rituals, hence, fresh examination of the body is not possible. The story has been deliberately changed to add a veneer of credibility regarding suicide and to explain as to how a burn victim (with burns on her hand) could fire a revolver.

31. According to the PM Report, the burn injuries were on the deceased's inner aspect of right arm, whole length of forearm, outer aspect of left arm, whole length of forearm, 1/3 of the right thigh and whole of the left leg. Report filed by CID on 19 February, 2018 mentions that burn injuries were to the tune of 15 to 20 per cent only. However, according to the charge-sheet, the victim suffered 48 per cent burn injuries after the bullet injury. Further, according to the CID, the victim came into contact with fire only momentarily.

32. Learned Senior Counsel also pointed out certain alleged inconsistencies between the version of the incident recorded in the charge-sheet and the version of different authorities including Raniganj Fire Brigade.

33. It was further submitted that although CID claimed in the charge-sheet that the victim shot herself, the examination report submitted by the SSO, FSL, West Bengal opined that “the presence of any firing elements or any fire arm discharge elements could be ruled out”. This rules out the possibility of suicide by the victim. He submitted that when the PM Report is clear, it is not understood as to why CID has made out a new story, more so, when the CID and the other experts have never seen the dead body of the victim

34. Mr. Sengupta submitted that Anandalok Hospital (where the deceased was first treated) in response to an application dated April 10, 2018 under RTI Act, stated that Dr. Deep Mukhopadhyay was the first Doctor who attended to the deceased. However, this Doctor finds no mention in the charge-sheet. The Doctor in his report has stated that he has seen injuries on the deceased (without specifying the nature of the injuries) and he could smell kerosene. No step has been taken by CID to question Dr. Mukhopadhyay.

35. The victim has been projected as being a patient of depression. However, there is no mention of any medicine that the victim used to take for such alleged depression. CID's submission before the Learned Judge of this Court was that they found the prescription of a Doctor who had allegedly prescribed medicine for depression. The said Doctor, when questioned, said that he never issued such prescription to the victim as asserted by Manoj. CID has not investigated as to why Manoj gave a fabricated prescription to the Police. It was further submitted that the maid in her statement has said that she entered the kitchen only to get ‘Nirma’ and then she saw the victim on the kitchen floor. She did not go to the kitchen because of sound of any gunshot. None of the documents on record mentions any person hearing any gunshot.

36. The CID in the charge-sheet has stated: “but as the contact was momentary, the wearing apparels of the victim did not catch fire.” However, the charge-sheet mentions 48 per cent burn injuries including burn injuries on right thigh. There is no explanation as to how with 48 per cent burn injury, the wearing apparels of the deceased did not catch fire. Moreover, in the report dated 19 February, 2018, the CID admitted that wearing apparels of the deceased could not be found. In such circumstances it is not understood as to how they could come to a conclusion that the wearing apparels did not catch fire.

37. It was then submitted that no attempt has been made to find out whose finger print was there on the revolver. If the victim wanted to commit suicide and she had access to a revolver, she would simply shoot herself. There can be no plausible reason as to why she should go through the process of setting herself on fire.

38. On the basis of the aforesaid submission, Mr. Sengupta submitted that the CID is conducting the investigation in a motivated manner so as to protect Manoj against a charge of murder.

39. Mr. Sengupta relied on a Division Bench decision of the Kerala High court in the case of George Muthoot v. State Of Kerala: 2010 (1) KLT 399 wherein at Paragraphs 56 to 59 of the Judgement, the Court observed as follows:

“56. Similarly, the story of object of quotation gang and their presence at the scene, their assault on deceased due to ‘sudden and grave provocation’ etc. appears to be not only unbelievable but tailor made. In fact the investigation material as per final report itself discloses that they had been hired to assault some body that even after the incident they have not carried or even attempt to carry out quotation work. There are similar many surprises emanating from prosecution story which we need not go into details. Suffice it to say all is not well in the investigation. It is not mere roving/imaginary suspicion of the petitioner but after looking into final report we too find shocking state of affairs. The investigation carried out is suspicious full of many wide gaps and self contradictory.

57. According to us, we feel that in order to assure the victims of heinous crime an assurance of fair, proper, impartial and complete investigation and to restore faith, it is just and proper to direct the CBI to conduct investigation particularly when gross allegations are made against jurisdictional investigating agency justifiable and as such interest of justice would be better served if CBI investigates the case.

58. Under these circumstances as has been held by Apex Court in the case of Rubabbuddin Sheik (supra) we find that investigation carried out is not fair, it is improper and incomplete apart from suspicious and tailor made. As such we find there is justification in petitioner's contentions to seek direction from this Court for investigation by independent agency like CBI.

59. According to us, we feel that in order to assure the victims of heinous crime an assurance of fair, proper, impartial and complete investigation and to restore faith, it is just and proper to direct the CBI to conduct investigation especially when we find gross allegations are made against jurisdictional investigating agency justifiable and as such in our view interest ofjustice would be better served if CBI investigates the case.”

40. Learned Senior Counsel then referred to a Division Bench decision of the Hyderabad High Court rendered in Writ Appeal No. 957 of 2016 wherein the Court had directed transfer of the investigation to the CBI.

41. Learned Senior Counsel then referred to the Apex Court's decision in Dharam Pal v. State of Haryana: (2016) 4 SCC 160 in support of his submission that the process of investigation should be such as would instil faith of the victim and the public at large in the investigating agency. Finally, reference was made to the Apex Court's decision in Union of India v. W.N. Chadha: AIR 1993 SC 1082 in support of the submission that the accused has no right to have any say as regards the manner and method of investigation.

42. Appearing for the State, Learned Advocate General submitted that this is not a rare or exceptional case warranting investigation by CBI. Gopal wants a charge of homicide to be added. His remedy is to approach the Learned Trial Judge who is empowered under Section 216 Cr.P.C. to alter or add any charge at any time before Judgement is pronounced. He submitted that the Cr.P.C. is a complete Code in itself and when the provisions of that Code provide an alternative efficacious remedy to an aggrieved party, the Writ Court should not interfere. In this connection, Learned Advocate General referred to the following decisions:

(i) Bimal Gurung v. Union of India: (2018) 15 SCC 480

(ii) M.C. Mehta (Taj Corridor Scam) v. Union of India: (2007) 1 SCC 110

(iii) Popular Muthiah v. State (represented by Inspector of Police): (2006) 7 SCC 296

43. Learned Advocate General submitted that Gopal's case in the writ petition is based on alleged infirmities in the investigation process and alleged loopholes in the charge-sheet - as if the charge-sheet has been designed to favour and protect Manoj. On such alleged premise, enquiry by CBI has been prayed for. He submitted that this cannot be done. The power lies with the Magistrate to alter the charge. Further in the present case, from time to time, there were five different Investigating Officers. They could not all be under the influence of Manoj.

44. Learned Advocate General then submitted that the Learned Single Judge did not give the State an opportunity to file affidavit to deal with the allegations made in the writ petition, especially those in paragraph 22 of the writ petition pertaining to alleged deficiencies in the charge-sheet. He submitted that the CCTV footage is now available with the Police and if necessary, the Learned Magistrate can order further investigation. In this connection, he relied on the decision of the Hon'ble Supreme Court in Vinubhai Haribhai Malaviya v. The State of Gujarat: (2019) 14 SCALE 1. There is no finding by the Learned Single Judge that this case falls under any of the three cases that the Supreme Court has mentioned in Bimal Gurung's Case (supra). There is also no finding that the allegations in Paragraph 22 of the writ petition are correct. Some loopholes in an investigation process do not make the investigation biased. The provisions of Cr.P.C. and in particular Sections 216 (Court may alter charge), 221 (where it is doubtful what offence has been committed) and 319 (power to proceed against other persons appearing to be guilty of offence) are sufficient to take care of Gopal's grievance.

45. Appearing for Manoj (the accused), Mr. Anindya Mitra, Learned Senior Advocate submitted that there is no allegation against the State Police or CID that they are biased or otherwise involved. This is not a case of public or national interest. There is no allegation in the writ petition that the Investigating Officers are biased or have personal malice against Gopal (de-facto complainant) or the victim. No case of wilful commission/omission on the part of the investigating agency has been made out by Gopal. At best it can be a case of error of judgment on the part of the investigating authority.

46. Mr. Mitra submitted that charges have not yet been framed though charge- sheet has been filed. A charge under Section 302 IPC can always be added by the Learned Trial Court. In the charge-sheet, the Investigating Officer stated that investigation is not complete. He reserved his right to conduct further investigation after obtaining CCTV footage, pen drive, mobile phone etc., which were under forensic examination. Supplementary charge-sheet can always be filed if found necessary by the investigating agency.

47. Learned Senior Counsel submitted that one of the Investigating Officers was the third respondent before the Learned Single Judge. The matter was disposed of by the Learned Judge at the motion stage without giving an opportunity to the respondents in the writ petition to file affidavit. The third respondent was condemned without being given a chance to deal with the allegations in the writ petition. This amounts to violation of the principles of natural justice.

48. Mr. Mitra also submitted that the relevant provisions of the Cr.P.C provide an alternative efficacious remedy to Gopal and hence, the writ petition should not have been entertained. Gopal should have approached the Learned Magistrate with his grievance. In this connection Mr. Mitra referred to the decision of the Hon'ble Supreme Court in the case of Sakiri Vasu v. State of U.P.: (2008) 2 SCC 409.

49. Mr. Mitra also referred to several decisions of the Hon'ble Supreme Court and High Courts to demonstrate as to when investigation should be transferred from a State Agency to an independent agency like CBI. Those decisions are:

(i) Disha v. State of Gujarat: (2011) 13 SCC 337

(ii) State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal: (2010) 3 SCC 571

(iii) Sakiri Vasu v. State of Uttar Pradesh: (2008) 2 SCC 409

(iv) T.C. Thangaraj v. Engammal: (2011) 12 SCC 328

(v) K.V. Rajendran v. Superintendent of Police, CBCID, South Zone, Chennai: (2013) 12 SCC 480

(vi) Sujatha Ravi Kiran alias Sujatasahu v. State of Kerala: (2016) 7 SCC 597

(vii) Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. The State of Jharkhand: 2019 (7) SCALE 215

(viii) Sajina T.V. State of Kerala: 2008 Cri LJ 2712

(ix) Smt. Namita Naskar v. State Of West Bengal & Ors.: (2014) 2 Cal LT 195

(x) Unreported decision of the Hon'ble Supreme Court dated 18 February, 2019 rendered in Criminal Appeal No. 294 of 2019 (arising out of Special Leave Petition (Criminal) No. 9561 of 2017), Director, Central Bureau of Investigation v. Krishna Kumar Mishra

Court's decision

50. We have given our anxious consideration to the rival contentions of the parties. Essentially two questions arise for determination. Firstly, was the Learned Single Judge justified in entertaining the writ petition? And secondly, in the facts and circumstances of this case, was the Learned Single Judge justified in passing the impugned order directing transfer of investigation to CBI?

51. In Popular Muthiah v. State (supra) at Paragraphs 21 and 22 of the reported Judgment, the Hon'ble Supreme Court held that the Cr.P.C. is an exhaustive Code providing a complete machinery to investigate into and try cases. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court. A Magistrate can postpone the issue of process and inquire into the case himself under Section 202(1) of the Cr.P.C. When a charge-sheet is filed, the Court can refuse to accept the same and proceed to take cognizance of the offence on the basis of materials on record. The Court can direct further investigation into the matter. The Cr.P.C., thus, provides for a corrective mechanism at each stage vis. (i) investigation; (ii) trial; (iii) appeal and (iv) revision.

52. In Sakiri Vasu v. State of U.P. (supra), the Hon'ble Supreme Court observed that the provisions of Cr.P.C. provide for several alternative remedies to a person who is aggrieved by non-registration of the FIR by the police or by the fact that a proper investigation is not being done by the Police. Hence, a writ petition should not normally be entertained at the instance of such party. At paragraphs 25 to 31 of the Judgment, the Hon'ble Apex Court observed as follows:

“25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

27. As we have alrea.dy observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.

29. In Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).

30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is a.ggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such a.ggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan (2001) 3 SCC 333 (vide para 11), R.P. Kapur v. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanna: (1980) 1 SCC 554.

31. No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State of Rajasthan (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.”

(Emphasis is ours)

53. In conclusion, the Hon'ble Court held that the materials on record in that case did not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son had been murdered because he had discovered some corruption, could not justify a CBI enquiry, particularly when enquiries were held by the Army Authorities as well as by the G.R.P. at Mathura which revealed that it was a case of suicide.

54. The decision of the Hon'ble Supreme Court in Sakiri Vasu (supra) was followed by the Kerala High Court in Sajina T. v. State Of Kerala & Ors. (supra) where the prayer for investigation by CBI was declined.

55. Similarly, a Learned Single Judge of our High Court in Namita Naskar v. State of West Bengal (supra) declined the writ petitioner's prayer for directing investigation by a superior agency like CID, following the ratio of the decision in Sakiri Vasu (supra).

56. We are conscious that availability of an efficacious alternative remedy is not a complete bar to the maintainability of a writ petition. However, when such an alternative remedy is available, the Writ Court ordinarily should not interfere. The well recognized exceptions to this principle, e.g., the impugned order or action being without jurisdiction or suffering from the vice of breach of the principles of natural justice, are not present in the instant case. The writ petitioner is aggrieved by the alleged lapses on the part of the CID in conducting the investigation. It was open to the writ petitioner to approach the Learned Magistrate under the provisions of Cr.P.C. The Learned Magistrate is sufficiently empowered to order further investigation and also to alter or add to the charge.

57. In view of the above principles of law and the ratio of the decision in Sakiri Vasu v. State of U.P. (supra), we are of the opinion that the Learned Single Judge ought not to have entertained the writ petition and should have relegated the writ petitioner to the statutory alternative remedies he has under the provisions of Cr.P.C.

58. The other issue is, even assuming for the sake of argument that the Learned Single Judge did not fall in error in exercising discretion to entertain the writ petition, do the facts and circumstances of the case justify the order passed by the Learned Single Judge?

59. In State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal (supra) the complainant along with a large number of workers of a political party had been staying in several camps of that party at Garbeta, District- Midnapore, West Bengal. On 4 January, 2001, the complainant and few others decided to return to their homes from one such camp. When they reached the complainant's house, some miscreants, numbering 50-60, attacked them with fire arms and other explosives, which resulted in a number of casualties. The complainant managed to escape, hid himself, witnessed the carnage and later lodged a written complaint with the police. On 8 January, 2001, the Director General of Police, West Bengal directed CID to take over the investigation in the case. A writ petition under Article 226 of the Constitution was filed in the Calcutta High Court by the Committee for Protection of Democratic Rights, West Bengal in public interest, alleging, inter alia, that although in the said incident 11 persons had died on 4 January, 2001 and more than three months had elapsed since the incident had taken place, yet except two persons, no other person named in FIR had been arrested; no serious attempt had been made to get the victims identified and the police had not been able to come to a definite conclusion whether the missing persons were dead or alive. It was alleged that since the police administration in the State was under the influence of the ruling party which was trying to hide the incident to save its image, the investigation in the incident may be handed over to CBI, an independent agency. The High Court felt that in the background of the case it had strong reservations about the impartiality and fairness in the investigation by the State Police because of the political fallout, and therefore, no useful purpose would be served in continuing with the investigation by the State investigating agency. It was further observed by the High Court that even if the investigation was conducted fairly and truthfully by the State Police, it would still be viewed with a suspicion because of the allegation that all the assailants were members of the ruling party. Having regard to such circumstances, the High Court directed handing over of the investigation to the CBI. On the matter being carried to the Hon'ble Supreme Court, a Two Judge Bench observed that very important points of law were involved in that case including as to whether or not the High Court in exercise of power under Article 226 of the Constitution can direct the CBI to conduct investigation into an alleged criminal incident occurring within the territorial jurisdiction of a State, without the consent of the State Government. The issue was referred to a Constitution Bench. While holding that the High Court had the power to so direct, the Constitution Bench observed as follows:

“70. Before parting with the case, we deem it necessary to emphasise that 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. In so far 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.

71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya: (2002) 5 SCC 521 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.”

60. The aforesaid decision was followed by the Hon'ble Supreme Court in T.C. Thangaraj v. V. Engammal (supra). In K.V. Rajendran v. Superintendent of Police CBCID (supra) at Paragraph 13 of the Judgment the Hon'ble Supreme Court observed as follows:

“The issue involved herein, is no more res integra. 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 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. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. (Emphasis is ours) Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian v. Union of India, (1992) 1 SCC 397; R.S. Sodhi v. State of U.P., AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab, AIR 1994 SC 1023; Vineet Narain, v. Union of India, AIR 1996 SC 3386; Union of India v. Sushil Kumar Modi, AIR 1997 SC 314; Disha v. State of Gujarat, AIR 2011 SC 3168; Rajender Singh Pathania v. State (NCT of Delhi), (2011) 13 SCC 329; and State of Punjab v. Davinder Pal Singh Bhullar etc., AIR 2012 SC 364)”

61. In Vinay Tyagi v. Irshad Ali alias Deepak: (2013) 5 SCC 762, at paragraph 43 of the reported Judgment, the Hon'ble Supreme Court observed that the superior Courts are vested with the power of transferring investigation from one agency to another, provided the ends of justice demand such action. However, it is also a settled principle that this power has to be exercised by the superior Courts very sparingly and with correct circumspection.

62. In Sujatha Ravi Kiran v. State of Kerala (supra) the Hon'ble Supreme Court took into account the law laid down by that Court by the Constitution Bench in Committee for Protection of Democratic Rights (supra) and held that the facts of that case did not call for transfer of investigation to CBI.

63. In the recent decision of the Hon'ble Supreme Court in the case of Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. The State of Jharkhand (supra) the issue involved was whether there was gross illegality in transfer of a land belonging to a deity. A Public Interest Litigation was instituted. The High Court at Jharkhand directed investigation into the matter by the CBI. The matter was carried to the Hon'ble Supreme Court. At Paragraph 20 of the Judgment, the Hon'ble Supreme Court observed as follows:

“It may be kept in mind that the public order (Entry 1) and the police (Entry 2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a primary responsibility of the investigating agency of the State Police to investigate all offences which are committed within its jurisdiction. The investigations can be entrusted to Central Bureau of Investigation on satisfaction of the conditions as specified therein only in exceptional circumstances as laid down in State of West Bengal (supra) case. Such power cannot and should not be exercised in a routine manner without examining the complexities, nature of offence and some time the tardy progress in investigations involving high officials of the State Investigating agency itself.”

64. In Director, Central Bureau of Investigation v. Krishna Kumar Mishra (supra), the High Court ordered the CBI to conduct investigation into the disappearance of a highly valuable imported technical equipment from Raja Ramanna Centre for Advanced Technology, Department of Atomic Energy, Indore. The CBI carried the matter to the Hon'ble Supreme Court. The order of the High Court was set aside. It was observed that while the jurisdiction of the High Court to order an investigation by CBI cannot be doubted, such jurisdiction is to be very sparingly exercised with great care and caution, keeping in mind that the premier investigation agency is primarily engaged in investigation of anticorruption cases and cases of vital importance for the nation. It was further observed that having regard to the nature of the work that the CBI is required to perform, the High Court was not justified in requiring the CBI to investigate into the matter and the High Court should have allowed the State Police to conduct and complete the further investigation ordered by the Learned Chief Judicial Magistrate.

65. In Bimal Gurung v. Union of India (supra) the Hon'ble Supreme Court after discussing its earlier decisions including the Constitution Bench decision in State of West Bengal v. Committee for Protection of Democratic Rights (supra) observed as follows:

“The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Of Police, (2013) 12 SCC 480, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii)where investigation prima facie is found to be tainted/biased.”

(Emphasis is ours)

66. Having noted the law laid down by the Hon'ble Supreme Court as regards transfer of a criminal investigation by the High Court in exercise of its power under Article 226 of the Constitution from a State investigating agency to a Central agency like CBI, let us see with what case the writ petitioner approached the Learned Single Judge.

67. We have gone through the writ petition carefully. The short case of the writ petitioner is that initially the State Police and subsequently the CID branch of the State Police has conducted the investigation in a slip shod manner which led to the filing of a charge-sheet against the accused person, tailor-made to favour him. There are glaring defects, infirmities and loopholes in the process of investigation and such deficiencies are intentional to protect the accused. The alleged deficiencies/defects in the investigation process have been tabulated in Paragraph 22 of the writ petition. They are substantially the same as have been submitted before us by Learned Senior Counsel for the writ petitioner and which we have noted above. Particularly speaking, such alleged defects are nonexamination of certain persons whose statements would have important bearing on the filing of the charge-sheet and also lack of explanation of inconsistencies between the statements of persons recorded under Section 164 of the Cr.P.C. The basic grievance of the writ petitioner is that his sister was murdered but the charge-sheet has been filed projecting a case of suicide.

68. The Learned Single Judge discussed several authorities on the point of transfer of an investigation to the CBI and observed in the impugned order, inter alia, as follows:

“…Applying the ratio as noted above to the facts of the present case, it appears that, the Division Bench while granting bail noted various discrepancies in the charge-sheet and noted that, further investigations are required. The charge-sheet itself notices that, further investigations are required. The charge- sheet speaks of C.C.T.V. footage which is yet to be considered. The C.C.T.V. footage ca.n ha.ve a material bearing on the inference that a person can draw on the incident.

The charge-sheet as it stands today raises more questions than answers. The charge-sheet explains the death as a suicide. It takes a view that, the gun shot was prior in point of time than the burn injuries. The charge-sheet does not explain how the victim could obtain the knowledge and expertise of firing the revolver. The revolver needs to be loaded with bullet, the safety catch cocked for it to fire. These aspects remain sketchy at best. The charge-sheet as it stands does not instil much confidence. The investigation did not proceed in a proper direction. A lot of issues remain unanswered. Going to trial with this charge-sheet will not ensure to the a,dministration of justice particularly when there are avenues still available to remedy the lacunae.

That apart, there are discrepancies which the petitioner notes in paragraph 22 of the writ petition. When the earlier writ petition was filed, the charge-sheet was not before the Writ Court. In paragraph 22 of the writ petition, the petitioner tabulates various points which according to the petitioner highlight the loose ends between the post mortem report and the charge-sheet. Therefore, the same materials were not before the Writ Court while the Writ Court was considering whether to direct the investigation to be conducted by the CBI or not. The decision of the Division Bench dated August 27, 2018 on the first writ petition of the writ petitioner has to be read and understood in such context. Such decision cannot cover the period subsequent thereto. The petitioner is also highlighting the events happening subsequent to the judgment and order dated October 27, 2018 in this writ petition.

Therefore in the facts of the present case, interest of justice would be sub-served by substituting the Investigating Authority with CBI as prayed for by the petitioner. CBI is entrusted with the investigation…. It will do so at the rank of a person higher than the rank of the last Investigating Officer. It will complete the investigation as expeditiously as possible.”

69. The Learned Single Judge disposed of the writ petition at the motion stage without inviting affidavits. Allegations of deficiency in the investigation process undertaken by the CID, which are factual in nature, were made in the writ petition and in particular at paragraph 22 thereof. In our opinion, an opportunity should have been granted to the respondents to file their response to such allegations by way of affidavit, before a final decision was taken on the writ petition. Such a course of action was also warranted by the principles of natural justice. The Learned Judge accepted the allegations made in the writ petition without affording an opportunity to the respondents to refute or deal with such allegations. On this ground alone we would have remanded the matter back to the Learned First Court for consideration afresh after calling for affidavits from the respondents. However, we refrain from doing so as we are of the view that the facts and circumstances of this case do not warrant transfer of the criminal investigation from the CID to the CBI.

70. The essence of the case of the writ petitioner is that the State Police authorities are biased in favour of the accused person and there is malice on their part against the writ petitioner/de-facto complainant. No particulars or plausible reason for the State Police to be biased in favour of the accused person has been indicated in the writ petition. A bald assertion of bias is not sufficient. It is a serious allegation and must be supported by tangible evidence. The mere allegation that defective investigation is indicative of such bias begs the question. Defective investigation, may be due to error of judgment and infirmities or loopholes in the process of investigation, per se would not unfailingly indicate any unholy entente between the investigating agency and the accused person. As many as five Investigating Officers were involved in the present case. It is highly unlikely that all five were biased against the writ petitioner and in favour of the accused person. The writ petitioner has not attributed bias to any particular Investigating Officer by identifying him. An omnibus statement that the entire State Police administration is biased in favour of the accused person and against the writ petitioner is too far a cry and not acceptable.

71. As regards the malice, the writ petitioner has not pleaded malice in fact against any particular Police Officer conducting the investigation. At best the writ petitioner's case can be that there is malice in law on the part of the police authorities against him. A mere allegation of malice in law against a public authority will not invalidate an action of such authority which is assailed before a court of law. Such malice has to be proved/demonstrated by the person making the allegation to the satisfaction of the Court on the basis of proper materials and such malice has to be egregious in nature before the Court interferes with the impugned action of the public authority on the basis of there being malice in law. On a careful consideration of the case pleaded by the writ petitioner, we are of the view that such a case of malice in law has not been established by him.

72. The writ petitioner contended before the Learned Single Judge and also before us that he has a right to justice which includes the right to have a fair and impartial investigation into the matter of his sister's unnatural death and such right is guaranteed under Article 21 of the Constitution of India. We do not for a moment suggest that the writ petitioner does not have such a right. However, we are of the view that transfer of the investigation to the CBI is not the appropriate manner of enforcement of such right in the facts and circumstances of this case. The writ petitioner has other remedial avenues available to him.

73. The writ petitioner has tabulated in the writ petition the alleged defects/infirmities in the process of investigation undertaken by the CID. Even if for the sake of argument we agree with the writ petitioner that there are such loopholes in the investigation process, would that be ground enough for transfer of the investigation from CID to CBI? In our opinion, the answer must be in the negative. The Learned Magistrate has sufficient powers under the provisions of the Cr.P.C. to order further investigation and to ensure that defects/loopholes in the investigating process are remedied. We have discussed this aspect of the matter hereinabove with reference to decisions of the Hon'ble Supreme Court including the one in the case of Sakiri Vasu (supra). It is true that the Learned Magistrate is not empowered to direct the CBI to take over the investigation. However, such a direction is not necessary in the facts of the present case since in our opinion, the writ petitioner has not been able to establish that the entire State Police administration is biased against him and is favourably disposed towards the accused person and therefore, has deliberately undertaken a defective process of investigation leading to filing of a charge-sheet designed to shield the accused person. The Learned Magistrate may, if he deems necessary, direct the Investigating Agency to conduct further investigation and he may monitor the same.

74. The Hon'ble Supreme Court has repeatedly observed in several cases adverted to above that the High Court's power under Article 226 of the Constitution to direct transfer of a criminal investigation from the State Investigating Agency to CBI should be exercised sparingly and with great caution and circumspection. Just because some allegations are made against the State Police, the investigation should not be directed to be so transferred excepting in a case of national importance or where specific substantive allegations are made against high authorities in the State Police administration, or where it is clearly demonstrated that the investigation has been carried out in such a manner as would not instil public confidence therein. The State Investigating Agency should not be substituted by an independent agency like CBI for the mere asking. Otherwise, floodgates would be opened and in a vast number of cases the de- facto complainant, whenever he/she thinks, however fancifully, that the investigation is not going his/her way, he/she would approach the High Court under Article 226 of the Constitution for directing transfer of the investigation from the State Police to the CBI. Entertaining such a prayer would be counterproductive. The CBI is the premier investigating agency of the country and has the responsibility of investigating into alleged crimes involving national interest including corruption matters. The CBI cannot be overburdened as in that event it would be unable to discharge its primary duties and functions efficiently and diligently.

75. We are, therefore, of the considered opinion that this is not a fit case where the investigation should be directed to be transferred from the State Police to the CBI. Accordingly, the order under appeal is set aside.

76. We understand that charge-sheet has been filed in the instant case. The writ petitioner contends that the charge-sheet is designed to protect the accused person. The writ petitioner has enumerated certain alleged defects/deficiencies in the process of investigation. The writ petitioner will be at liberty to approach the Learned Magistrate to bring to his notice such alleged defects/deficiencies. The Learned Magistrate may consider directing the police to conduct such further investigation in the matter as may be deemed fit and proper for unveiling the truth. If necessary, supplementary charge-sheet may be directed to be filed. Even at the stage of trial if the Learned Magistrate, on an overall consideration of the materials on record before him, finds that it is necessary to add to or alter the charge against the accused person under any other Section of the Indian Penal Code, obviously the Learned Magistrate shall be at liberty to do so. The Learned Magistrate is specifically empowered to do so under Section 216 of the Cr.P.C.

77. MAT 318 of 2019 & MAT 353 of 2019 are, accordingly disposed of.

78. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.