R. Banumathi, J.— Transfer Petitions (Crl.) Nos. 351 and 384 of 2013 have been filed to transfer the petitions filed under Section 482 CrPC being Criminal MC No. 2551 of 2013 and Criminal MC No. 2424 of 2013 pending before the High Court of Kerala at Ernakulam to the High Court of Delhi.
2. The petitioner got married to Lt. Ravi Kiran Kabdaula on 9-3-2012 as per Hindu rites and customs. The petitioner's husband Lt. Ravi Kiran Kabdaula is a naval officer who was then posted at Kochi, Kerala. After marriage, the petitioner was residing with her husband at Kochi. As brought on record, the relationship between the petitioner and her husband was not very cordial. On 22-2-2013, the petitioner gave an oral complaint that her husband was withholding her identity card, laptop, mobile phone, original marriage certificate, etc. The respondent was called to the police station and directed to handover the belongings to the petitioner. On 4-4-2013, the petitioner lodged a complaint against her husband, her parents-in-law and sister-in-law alleging that they have subjected her to physical and mental cruelty. The petitioner had also levelled charge of sexual abuse against five naval officers and wife of one of the naval officers. Based on her complaint, a case was registered in FIR No. 260 of 2013 for the offences punishable under Sections 498-A, 354, 506 Part I IPC read with Section 34 IPC against the petitioner's husband Lt. Ravi Kiran Kabdaula, her parents-in-law, sister-in-law and the said five naval officers and wife of one of them. In the complaint lodged subsequently, the petitioner had made allegations of wife-swapping and also implicated new names. Investigation in the said case is pending with Harbour Police Station, Kochi, Kerala.
3. The petitioner's husband had moved an anticipatory bail application before the High Court of Kerala, which was rejected vide order dated 10-6-2013 2013 SCC OnLine Ker 24139. While declining anticipatory bail, the High Court has directed that a thorough investigation must be conducted by the police. Pursuant to the said order of the Court, the Deputy Commissioner of Police vide order dated 12-6-2013 constituted a special team headed by the Assistant Commissioner of Police, Kochi.
4. Navy officers shown as accused in FIR No. 260 of 2013 and private respondents in these transfer petitions, namely, Capt. Ashok K. Aukta, Preena Aukta, Lt. Ishwar Chand Vidyasagar, Anand Balakrishnan and Ajay Jaykrishnan have filed petitions under Section 482 CrPC in Criminal MC No. 2551 of 2013, and Criminal MC No. 2424 of 2013 before the High Court of Kerala, which the petitioner now seeks to transfer. The petitioner claims transfer of the said two petitions contending that she has no means or a male member in her family to support her to pursue the case at Kerala. The petitioner also alleges that she faces threat to her life on account of the private respondents. When these transfer petitions came up for hearing, by an order dated 16-9-2013 2013 SCC OnLine SC 1297, this Court granted interim stay of further proceedings in the said quashment petitions.
5. We have heard the counsel appearing for the parties at considerable length and perused the impugned order 2013 SCC OnLine Ker 24139 and material on record.
6. As noticed earlier, investigation in FIR No. 260 of 2013 registered at Harbour Police Station, Kochi, is pending in the State of Kerala and stated infra, we have directed further investigation in the said case by a special team of State police officers. When the investigation is pending in the State of Kerala, it is desirable that the quashment petitions filed under Section 482 CrPC are heard in the High Court of Kerala, as the High Court will be in a better position to take note of further progress in the investigation and also consider the evidence recorded. The Supreme Court will transfer a case from one State to another State only if there is a reasonable apprehension on the part of a party to a case that justice will not be done. The petitioner has pleaded that “the atmosphere in Kerala is not conducive for the case to progress and reach its judicious end”. The petitioner has only alleged that the accused are naval officers and are influential. Mere apprehension that the accused are influential may not be sufficient to transfer the case. Since a special team of State police officers is constituted for further investigation, we are not inclined to order the transfer of the criminal miscellaneous petitions from the High Court of Kerala to the High Court of Delhi. As the petitioner has expressed difficulties in travelling to Kerala and pursuing the matter, we request the Kerala State Legal Services Authority to nominate a Senior Counsel to represent the petitioner in the matters before the High Court.
7. In Writ Petition (Crl.) No. 164 of 2013, the petitioner has prayed for issuance of writ, directing investigation of FIR No. 260 of 2013, to be entrusted to an independent investigating agency or Central Bureau of Investigation (CBI) to ensure fair and impartial investigation. The petitioner has alleged lackadaisical approach by the State police to defeat the petitioner's case. In the writ petition on 20-9-2013 2013 SCC OnLine SC 1298, dated 4-4-2013, this Court passed an interim order staying of the investigation in connection with FIR No. 260 of 2013 and also proceedings before the Board of Enquiry, INS Vendurthy, Naval Base, Kochi.
8. The State of Kerala has filed a counter-affidavit denying the petitioner's allegation of inaction and lackadaisical approach by the State police. In the counter-affidavit filed by the State, it is stated that after taking over the investigation by the special team on 14-6-2013, the petitioner was examined on 10-7-2013 and subjected to medical examination at Safdarjung Hospital, New Delhi on 11-7-2013. It is further stated that as many as seventy-one witnesses, including the petitioner, friends of the petitioner, doctors and other witnesses have been examined and investigation is continuing. It is further stated that in the anticipatory bail application filed by the husband in BA No. 2719 of 2013, the High Court of Kerala on 10-6-2013 2013 SCC OnLine Ker 24139 passed certain remarks about the investigation of the case and directed a thorough investigation by the police. Pursuant to that, vide order dated 12-6-2013, the Deputy Commissioner of Police, Kochi City had constituted a special team headed by the Assistant Commissioner of Police, Crime Detachment, Kochi City and investigation of the case was taken over by them on 14-6-2013. Pursuant to the order of the High Court, the State police did proceed with the further investigation.
9. It is well settled that the extraordinary power of the constitutional courts in directing CBI to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the investigating agency or in the national interest and for doing complete justice in the matter. A Constitution Bench of this Court in State of W.B. v. Committee for Protection of Democratic Rights (2010) 3 SCC 571 held as under:
“69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
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. 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.
71. In Minor Irrigation & Rural Engg. Services 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.”
10. Taking into account the law laid down by this Court in Committee for Protection of Democratic Rights (2010) 3 SCC 571, direction for investigation by CBI was declined by this Court in K. Saravanan Karuppasamy v. State of T.N. (2014) 10 SCC 406 and Sudipta Lenka v. State of Odisha (2014) 11 SCC 527.
11. Considering the facts and circumstances of the case in hand, in the light of the above principles, we are of the view that the case in hand does not entail a direction for transferring the investigation from the State police/special team of State police officers to CBI. The facts and circumstances in which the offence is alleged to have been committed can be better investigated into by the State police. However, having regard to the nature of allegations levelled by the petitioner, we deem it appropriate to direct the State of Kerala to constitute a special team of police officers headed by an officer not below the rank of Deputy Inspector General of Police to investigate the matter.
12. In the result, Writ Petition (Criminal) No. 164 of 2013 is disposed of with direction to the Director General of Police, Kerala to constitute a special investigation team headed by a police officer not below the rank of Deputy Inspector General of Police to take up further investigation in FIR No. 260 of 2013. The special investigation team shall take up further investigation in accordance with law and complete the investigation at an early date preferably within a period of three months from today. We request the High Court to take up Criminal MCs Nos. 2551 and 2424 of 2013 after the special investigation team completes the investigation.
13. Transfer Petitions (Criminal) Nos. 351 and 384 of 2013 are dismissed. This order, however, shall not prevent the petitioner from seeking transfer of divorce petition filed by the husband if she is so advised. We make it clear that we have not expressed any opinion on the merits of the matter.