Rhea Chakraborty vs The State Of Bihar

Transfer Petition (Crl.) No.225 of 2020

Rhea Chakraborty Petitioner

Versus

State of Bihar & Ors. Respondent(s)

JUDGMENT

Hrishikesh Roy, J.

1. This Transfer Petition is filed under section 406

of the Code of Criminal Procedure, 1973 (for short

“CrPC”) read with Order XXXIX of the Supreme Court

Rules, 2013 with prayer for transfer of the FIR

No. 241 of 2020 (dated 25.7.2020) under Sections 341,

342, 380, 406, 420, 306, 506 and 120B of the Indian

Penal Code, 1860 (for short “IPC”) registered at the

Rajeev Nagar Police Station, Patna and all Signature Not Verified

consequential proceedings, from the jurisdiction of the Digitally signed by INDU MARWAH Date: 2020.08.19 17:57:44 IST Reason:

Additional Chief Judicial Magistrate III, Patna Sadar,

Page 1 of 35 to the Additional Chief Metropolitan Magistrate, Bandra

Mumbai. The matter relates to the unnatural death of

the actor Sushant Singh Rajput on 14.6.2020, at his

Bandra residence at Mumbai. The deceased resided

within Bandra Police Station jurisdiction and there

itself, the unnatural death under section 174 of CrPC

was reported.

2. The petitioner is a friend of the deceased, and she

too is in the acting field since last many years. As

regards the allegations against the petitioner in the

FIR, the petitioner claims that she has been falsely

implicated in the Patna FIR, filed by Krishan Kishor

Singh (respondent no. 2) – the father of the deceased

actor. The petitioner and the deceased were in a live-

in relationship but on 8.6.2020, a few days prior to

the death of the actor, she had shifted to her own

residence at Mumbai. According to the petitioner, the

Mumbai Police is competent to undertake the

investigation, even for the FIR lodged at Patna.

3. Heard Mr. Shyam Divan, learned Senior Counsel

appearing for the petitioner, Mr. Maninder Singh,

Page 2 of 35 learned Senior Counsel appearing on behalf of

Respondent No. 1 (State of Bihar), Mr. Vikas Singh,

learned Senior Counsel appearing on behalf of

respondent No. 2 (Complainant), Dr. A.M. Singhvi and

Mr. R. Basant, learned Senior Counsel appearing on

behalf of respondent No. 3 (State of Maharashtra) and

Mr. Tushar Mehta, learned Solicitor General of India

appearing on behalf of respondent No. 4 (Union of

India)

4. The petitioner contends that the incidents alleged

in the Complaint lodged by the father of the deceased,

have taken place entirely within the jurisdiction of

State of Maharashtra and therefore, the Complaint as

received, should have been forwarded to the

jurisdictional police station at Bandra, Mumbai for

conducting the investigation. However, despite want of

jurisdiction, the Complaint was registered at Patna

only because of political pressure brought upon the

Bihar Police authorities. Mr Shyam Divan, the learned

Senior Counsel for the Petitioner argues that the

courts in Bihar do not exercise lawful jurisdiction in

the subject matter of the Complaint and since the acts Page 3 of 35 alleged in the Complaint are relatable to Mumbai

jurisdiction, the mere factum of Complainant being a

resident of Patna, does not confer jurisdiction on the

Bihar police to conduct the investigation. Adverting

to the subsequent transfer of the investigation to the

CBI, Mr. Divan argues that since the Bihar police

lacked jurisdiction to investigate the allegations in

the Complaint, the transfer of the investigation to the

CBI on Bihar Government’s consent, would not amount to

a lawful consent of the State government, under Section

6 of the Delhi Special Police Act, 1946 (for short

“DSPE Act”). The FIR according to the petitioner is

contradictory and the Complaint fails to disclose how

the alleged actions of the petitioner, led to the

suicidal death of the actor. The petitioner projects

that she has fully co-operated with the Mumbai Police

in their inquiry but will have no objection if the

investigation is conducted by the CBI. Mr. Shyam Divan

the learned Senior Counsel submits that justice needs

to be done in this case and powers under Article 142

of the Constitution can be invoked by the Court.

Page 4 of 35

5. Representing the State of Bihar, Mr. Maninder Singh,

the learned Senior Counsel submits that the Complaint

disclosed a cognizable offence and therefore, it was

incumbent for the Patna Police to register the FIR and

proceed with the investigation. Since allegations of

criminal breach of trust, Cheating and defalcation of

money from the account of the deceased are alleged, the

consequences of the offence are projected to be within

the jurisdiction of the State of Bihar. The Senior

Counsel highlights that the Mumbai Police was

conducting the enquiry into the unnatural death of the

actor u/s 174, 175 CrPC and such proceeding being

limited to ascertaining the cause of death, does not

empower Mumbai Police to undertake any investigation,

on the allegations in the Complaint of the Respondent

No 2, without registration of an FIR at Mumbai.

Referring to the non-cooperation and obstruction of the

Maharashtra authorities to the SIT of Bihar Police

which reached Mumbai on 27.07.2020 and the quarantined

detention of the Superintendent of Police, Patna who

had reached Mumbai on 02.08.2020, senior counsel argues

that the Mumbai Police was trying to suppress the real

Page 5 of 35 facts and were not conducting a fair and professional

inquiry. Since no investigation relatable to the

allegations in the complaint was being conducted and

FIR was not registered by the Mumbai Police, the action

of the Bihar Police in registering the Complaint, is

contended to be legally justified. On that basis, the

Bihar Government’s consent for entrustment of the

investigation to the CBI is submitted to satisfy the

requirement of Section 6 of the DSPE Act. Besides, as

the petitioner herself has called for a CBI

investigation and as the CBI has since registered a

case and commenced their investigation, (on the request

of the State of Bihar), the Senior Counsel submits that

this transfer petition is infructuous.

6. Projecting the agony of the deceased’s father, Mr.

Vikas Singh, the learned Senior Counsel submits that

the Complainant has lost his only son under suspicious

circumstances and was naturally interested in a fair

investigation to unravel the truth. The inquiry by

the Mumbai Police under section 174 of the CrPC is not

an investigation of the complainant’s allegations and

therefore the registration of the case and Page 6 of 35 investigation into those allegations by the Bihar

Police is contended to be justified. Since only an

investigation (not a case or appeal) is pending at

Patna, and a legally competent investigation has

commenced, invocation of Section 406 power by this

Court to transfer the investigation, is projected to

be not merited. When misappropriation and criminal

breach of trust is alleged in respect of the assets of

the deceased actor and the concerned property relatable

to the alleged offence, will have to be accounted

eventually to the Complainant (as a Class I legal heir

of the deceased), the action of the Patna Police is

contended to be within jurisdiction, under Section 179

read with Section 181(4) of the CrPC which speaks of

consequences ensuing at another place, as a result of

the alleged crime.

7. Representing the State of Maharashtra, Dr. Abhishek

Manu Singhvi, the learned Senior Counsel submits that

following the unnatural death of Sushant Singh Rajput

on 14.06.2020 at his Bandra residence, the Mumbai

Police registered an Accidental Death Report(ADR) and

commenced inquiry under Section 174 of the CrPC to Page 7 of 35 ascertain the cause of death and also to determine

whether the death was the result of some criminal act

committed by some other persons. In course of the

inquiry, the statements of 56 persons were recorded and

other evidence such as the Post Mortem report, Forensic

report etc have been collected. If the inquiry

discloses commission of a cognizable offence, the

Mumbai police will register a FIR. According to Dr.

Singhvi, there can be no outer time limit for

conclusion of Section 174 or Section 175 CrPC

proceedings. The State of Maharashtra Counsel argues

that every offence shall ordinarily be inquired into

and tried by a Court within whose local jurisdiction,

the offence was committed and on that basis, Dr Singhvi

submits, that the Bihar police should have transferred

the Complaint to the Mumbai Police authorities.

Alternately, they could have registered a “zero FIR”

and then should have transferred the case for

investigation to Mumbai police. Pointing towards

potential misuse, Dr. Singhvi submits that if

registration of Complaint in another state is

permitted, it will enable a person to choose the

Page 8 of 35 investigating authority and will obstruct exercise of

lawful jurisdiction by the local police. This will

impact the country’s federal structure. The Senior

Counsel refers to media reports to project that the

Bihar Police were hesitant to register the Complaint

of Respondent No 2 but they were prevailed upon by

political pressure. The Maharashtra counsel submits

that the father and other family members of the

deceased in their statements to the Mumbai Police,

never mentioned about the allegations in the Complaint

and those are projected to be afterthoughts and

improvements. Under the constitutional scheme, the

States have exclusive power to investigate a crime and

the Senior Counsel accordingly argues that crime

investigation cannot be routinely transferred to the

Central Agency. Referring to the reasons (a)

sensitivity and (b) Inter-state ramifications, given

by the Bihar Police for entrusting the investigation

to the CBI, Dr. Singhvi argues that the reasons are

neither germane nor bona fide. He submits that

ordinarily, the local police should conduct

investigation into any reported crime and entrustment

Page 9 of 35 of the investigation to the CBI must be an exception

to meet extraordinary exigencies, but here consent was

given by Bihar government, for political exigencies.

8. Mr Tushar Mehta, the learned Solicitor General of

India, appears for the Union of India and the CBI. He

projects that the Maharashtra Police is yet to register

any FIR but is conducting only a limited inquiry under

section 174 of the CrPC, into the unnatural death of

the actor. In the absence of any FIR by the Mumbai

Police following the death of the actor on 14.06.2020,

the FIR registered at Patna at the instance of the

deceased’s father is projected to be the only one

pending. He therefore contends that the present matter

does not relate to two cases pending in two different

states. Referring to the contradictory stand and the

parallel allegation of state’s Police being influenced

by external factors in both states, Mr. Mehta submits

that this itself justifies entrustment of the

investigation to an independent Central Agency. The

learned Solicitor General then points out that by

acceding to the request made by the State of Bihar, the

CBI has registered the FIR and commenced investigation. Page 10 of 35 Besides the Directorate of Enforcement, a central

agency, is also acting under the Prevention of Money

Laundering Act, 2002. He therefore argues that a fair

and impartial inquiry can be ensured if the police of

either state are kept away from investigating the

alleged crime, relating to the suspicious death of the

film actor. Adverting to the affidavit of the

Maharashtra Police that they have recorded the

statements of 56 persons in the section 174

proceedings, the Solicitor General submits that since

FIR is not yet registered and the Mumbai Police is

discharging limited functions under section 174 of the

CrPC, the investigation of any alleged crime following

registration of FIR is yet to legally commence in

Mumbai and as such, there is no case pending in the

State of Maharashtra which can justify the invocation

of powers under section 406 of the CrPC.

9. Under the federal design envisaged by the

Constitution, Police is a state subject under List II

of Seventh Schedule of the Constitution. Therefore,

investigation of a crime should normally be undertaken

by the concerned state’s police, where the case is Page 11 of 35 registered. There can be situations where a particular

crime by virtue of its nature and ramification, is

legally capable of being investigated by police from

different states or even by other agencies. The

entrustment of investigation to the CBI is permitted

either with consent of the concerned state or on orders

of the constitutional court. However, investigation

of a crime by multiple authorities transgressing into

the others domain, is avoidable.

10. In the instant case, the petitioner repose

confidence on Mumbai police. The records of the case

produced before this Court, does not prima facie

suggest any wrong doing by the Mumbai Police. However,

their obstruction to the Bihar police team at Mumbai

could have been avoided since it gave rise to suspicion

on the bonafide of their inquiry. The Police at Mumbai

were conducting only a limited inquiry into the cause

of unnatural death, under Section 174 CrPC and

therefore, it cannot be said with certainty at this

stage that they will not undertake an investigation on

the other aspects of the unnatural death, by

registering a FIR.

Page 12 of 35

11. Uncertain about the future contingency at Mumbai,

the father of the deceased has filed the Complaint at

Patna, levelling serious allegations against the

petitioner following which, the FIR is registered and

the Bihar Police has started their investigation. The

case is now taken over by the CBI at the request of the

Bihar government. The petitioner has no objection for

investigation by the CBI, but is sceptical about the

bonafide of the steps taken by the Bihar government and

the Patna police.

12. On the other hand, the projection from the side of

the Complainant and the Bihar government is that the

Mumbai Police even during the limited inquiry under

Section 174 CrPC, are attempting to shield the real

culprits under political pressure. This is however,

stoutly refuted by the State of Maharashtra whose stand

is that the Bihar police has no jurisdiction to

investigate the crime where, the incident and criminal

acts if any, have occurred within the State of

Maharashtra.

Page 13 of 35

13. Transfer of investigation to the CBI cannot be a

routine occurrence but should be in exceptional

circumstances. One factor which however is considered

relevant for induction of the Central Agency is to

retain “public confidence in the impartial working of

the State agencies”, as was recently reiterated for

the Bench by Justice Dhananjaya Y Chandrachud, in Arnab

Ranjan Goswami vs. Union of India 2020 SCC Online SC

462. It is also the consistent view of the Court that

it is not for the accused to choose the investigating

agency. In the instant case, political interference

against both states is alleged which has the potential

of discrediting the investigation. The legal process

must therefore be focused upon revelation of the

correct facts through credible and legally acceptable

investigation. It must be determined whether the

unnatural death was the result of some criminal acts.

In order to lend credibility to the investigation and

its conclusion, it would be desirable in my view, to

specify the authority, which should conduct the

investigation in this matter.

Page 14 of 35

14. At this stage, having regard to the respective

stand of the parties, following core issues arise for

consideration in this case:

(a) Whether this Court has power to transfer

investigation (not case or appeal) under Section 406

of the CrPC;

(b) Whether the proceeding under Section 174 CrPC

conducted by the Mumbai Police to inquire into the

unnatural death, can be termed as an investigation;

(c) Whether it was within the jurisdiction of the

Patna Police to register the FIR and commence

investigation of the alleged incidents which took place

in Mumbai? As a corollary, what is the status of the

investigation by the CBI on the consent given by the

Bihar government; and

(d) What is the scope of the power of a single

judge exercising jurisdiction under section 406 of the

CrPC and whether this Court can issue direction for

doing complete justice, in exercise of plenary power.

TRANSFER POWER UNDER SECTION 406 CRPC

15. Section 406 CrPC empowers the Supreme Court to

transfer cases and appeals. The scope of exercise of Page 15 of 35 this power is for securing the ends of justice. The

precedents suggest that transfer plea under Section 406

CrPC were granted in cases where the Court believed

that the trial may be prejudiced and fair and impartial

proceedings cannot be carried on, if the trial

continues. However, transfer of investigation on the

other hand was negated by this Court in the case of Ram

Chander Singh Sagar and Anr. vs. State of Tamil Nadu,

(1978) 2 SCC 35. Writing the judgment Justice V R

Krishna Iyer, declared that:-

“The Code of Criminal Procedure clothes this Court with power under Section 406 to transfer a case or appeal from one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. But, it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is for warded to a Court. The application before us stems from a misconception about the scope of Section 406. There is as yet no case pending before any Court as has been made clear in the counter affidavit of the State of Tamil Nadu. In the light of this counter affidavit, nothing can be done except to dismiss this petition.

“ 2. If the petitioners are being directed to appear in a far-off court during investigatory stage it is for them to move that court for appropriate orders so that they may not be tormented by long travel or otherwise teased by judicial process. If justice is denied there are other redresses, not under Section 406, though it Page 16 of 35 is unfortunate that the petitioners have not chosen to move that court to be absolved from appearance until necessitated by the circumstances or the progress of the investigation. To come to this Court directly seeking an order of transfer is travelling along the wrong street. We are sure that if the second petitioner is ailing, as is represented, and this fact is brought to the notice of the Court which has directed her appearance, just orders will be passed in case there is veracity behind the representation. We need hardly say courts should use their processes to the purpose of advancing justice, not to harass parties. Anyway, so far as the petition for transfer is concerned. there is no merit we can see and so we dismiss it.”

16. The contrary references cited by the Petitioner

where transfer of investigation was allowed, do not in

any manner, refer to a determination on the question

of competence to transfer investigation under Section

406. In the cited cases, relief was granted without any

discussion of the law, ignoring the long standing ratio

laid down in Ram Chander Singh Sagar (Supra).

17. Having considered the contour of the power under

section 406 CrPC, it must be concluded that only cases

and appeals (not investigation) can be transferred. The

ratio in Ram Chander Singh Sagar and Anr. (Supra) in

my view, is clearly applicable in the present matter.

Page 17 of 35 SCOPE OF SECTION 174 CRPC PROCEEDING

18. The proceeding under Section 174 CrPC is limited

to the inquiry carried out by the police to find out

the apparent cause of unnatural death. These are not

in the nature of investigation, undertaken after filing

of FIR under Section 154 CrPC. In the instant case, in

Mumbai, no FIR has been registered as yet. The Mumbai

Police has neither considered the matter under Section

175 (2) CrPC, suspecting commission of a cognizable

offence nor proceeded for registration of FIR under

Section 154 or referred the matter under Section 157

CrPC, to the nearest magistrate having jurisdiction.

19. On the above aspect, the ratio in Manoj K Sharma

vs. State of Chhatisgarh (2016) 9 SCC 1 will bear

scrutiny. This was a case of suicide by hanging and

Justice M B Lokur, speaking for the Bench held as

follows:-

“19. The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the Page 18 of 35 deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. The procedure under Section 174 is for the purpose of discovering the cause of death, and the evidence taken was very short……

20. …… Sections 174 and 175 of the Code afford a complete Code in itself for the purpose of “inquiries” in cases of accidental or suspicious deaths and are entirely distinct from the “investigation” under Section 157 of the Code…..

**** **** **** **** ****

22. In view of the above, we are of the opinion that the investigation on an inquiry under Section 174 of the Code is distinct from the investigation as contemplated under Section 154 of the Code relating to commission of a cognizable offence…..”

20. In the present case, the Mumbai Police has

attempted to stretch the purview of Section 174 without

drawing up any FIR and therefore, as it appears, no

investigation pursuant to commission of a cognizable

offence is being carried out by the Mumbai police.

Page 19 of 35 They are yet to register a FIR. Nor they have made a

suitable determination, in terms of Section 175(2)

CrPC. Therefore, it is pre-emptive and premature to

hold that a parallel investigation is being carried out

by the Mumbai Police. In case of a future possibility

of cognizance being taken by two courts in different

jurisdictions, the issue could be resolved under

Section 186 CrPC and other applicable laws. No opinion

is therefore expressed on a future contingency and the

issue is left open to be decided, if needed, in

accordance with law.

21. Following the above, it is declared that the

inquiry conducted under Section 174 CrPC by the Mumbai

police is limited for a definite purpose but is not an

investigation of a crime under Section 157 of the CrPC.

JURISDICTION OF PATNA POLICE TO REGISTER COMPLAINT

22. The Respondent no 2 in his Complaint alleged

commission of a cognizable offence and therefore, it

was incumbent for the police to register the FIR and

commence the investigation. According to the

Complainant, his attempt from Patna to talk to his son

Page 20 of 35 on telephone was thwarted by the accused persons and

the possibility of saving the life of his son through

father son engagement, was missed out. In consequence,

the Complainant lost his only son who at the

appropriate time, as the learned counsel has vividly

submitted, was expected to light the funeral pyre of

the father.

23. Registration of FIR is mandated when information

on cognizable offence is received by the police.

Precedents suggest that at the stage of investigation,

it cannot be said that the concerned police station

does not have territorial jurisdiction to investigate

the case. On this aspect the ratio in Lalita Kumari Vs.

Govt. of UP (2014) 2 SCC 1 is relevant where on behalf

of the Constitution Bench, Chief Justice P Sathasivam,

pronounced as under:-

“120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.” Page 21 of 35

24. The interpretation of Sections 177 and 178 of the

CrPC would be relevant on the issue. In Satvinder Kaur

Vs. State (Govt of NCT of Delhi) (1999) 8 SCC 728 for

the Division Bench, Justice M B Shah wrote as under:-

“12. A reading of the aforesaid sections would make it clear that Section 177 provides for “ordinary” place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime.”

25. Likewise, Justice Arijit Pasayat, in Y Abraham

Ajith vs. Inspector of Police, Chennai & Anr. (2004) 8

SCC 100, writing for the Division Bench pronounced as

follows:-

“12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

Page 22 of 35 13. While in civil cases, normally the expression “cause of action” is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression “cause of action” is, therefore, not a stranger to criminal cases.

14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.”

26. When allegation of Criminal Breach of Trust and

Misappropriation is made, on the jurisdictional aspect,

this Court in Asit Bhattacharjee Vs. Hanuman Prasad

Ojha (2007) 5 SCC 786, in the judgment written by

Justice S B Sinha, observed as under:-

“21. Section 181 provides for place of trial in case of certain offences. Sub-section (4) of Section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commission of offence of criminal misappropriation and criminal breach of trust and with that end in view, it was provided that such an offence may be inquired into or tried by the court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation.

Page 23 of 35 22. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure will have the jurisdiction to make investigation.”

27. In the later judgment of Naresh Kavarchand Khatri

Vs. State of Gujarat (2008)8 SCC 300, this Court

reiterated the ratio in Satvinder Kaur(supra) and Asit

Bhattacharjee (Supra).

28. Once again, in Rasiklala Dalpatram Thakkar Vs.

State of Gujarat (2010) 1 SCC 1, while approving the

earlier decisions in Satvinder Kaur(supra) in the

judgment rendered by Justice Altamas Kabir as he was

then, the Supreme Court made it very clear that a police

officer cannot refrain from investigating a matter on

territorial ground and the issue can be decided after

conclusion of the investigation. It was thus held:-

“27. In our view, both the trial court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 CrPC to hold that it was not within the jurisdiction of the investigating agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction.”

Page 24 of 35

29. Moreover, the allegation relating to criminal

breach of trust and misappropriation of money which

were to be eventually accounted for in Patna (where the

Complainant resides), could prima facie indicate the

lawful jurisdiction of the Patna police. This aspect

was dealt succinctly by Justice J S Khehar, as a member

of the Division Bench in Lee Kun Hee, President,

Samsung Corporation, South Korea and Others Vs. State

of Uttar Pradesh and Ors. (2012) 3 SCC 132 and it was

held as under:-

“38 ******

181. Place of trial in case of certain offences.—(1)-(3)* * *

(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.”

A perusal of the aforesaid provision leaves no room for any doubt, that in offences of the nature as are subject-matter of consideration in the present controversy, the court within whose local jurisdiction, the whole or a part of the consideration Page 25 of 35 “… were required to be returned or accounted for.…” would have jurisdiction in the matter.”

30. Having regard to the law enunciated by this Court

as noted above, it must be held that the Patna police

committed no illegality in registering the Complaint.

Looking at the nature of the allegations in the

Complaint which also relate to misappropriation and

breach of trust, the exercise of jurisdiction by the

Bihar Police appears to be in order. At the stage of

investigation, they were not required to transfer the

FIR to Mumbai police. For the same reason, the Bihar

government was competent to give consent for

entrustment of investigation to the CBI and as such the

ongoing investigation by the CBI is held to be lawful.

OPTIONS BEFORE MUMBAI POLICE

31. The Patna police although found to be competent to

investigate the allegation in the Complaint, the FIR

suggests that most of the transactions/incidents

alleged in the Complaint occurred within the

territorial jurisdiction of the State of Maharashtra.

The Mumbai Police was inquiring into the unnatural

Page 26 of 35 death of the complainant’s son under section 174 of the

CrPC. So far, their inquiry has not resulted in any FIR

suggesting commencement of investigation on the

criminal aspects, if any. However, the incidents

referred to in the Complaint does indicate that the

Mumbai police also possess the jurisdiction to

undertake investigation on those circumstances.

Therefore, in the event of a case being registered also

at Mumbai, the consent for the investigation by the CBI

under Section 6 of the DSPE Act can be competently

given by Maharashtra Government.

INVESTIGATION ENTRUSTMENT TO CBI

32. While the CBI cannot conduct any investigation

without the consent of the concerned state as mandated

under section 6, the powers of the Constitutional

Courts are not fettered by the statutory restriction

of the DSPE Act. For this proposition, one can usefully

refer to State of West Bengal Vs. Sampat Lal (1985) 1

SCC 317 where Justice Ranganath Mishra in his judgment

for the 3 judges Bench, held that:-

“13. ……….It is certainly not for this Court at the present stage to examine and come to a conclusion as to whether this was a case of suicide or murder. If as a result of investigation, evidence is Page 27 of 35 gathered and a trial takes place the Sessions Judge will decide that controversy and it may be that in due course such controversy may be canvassed before this Court in some form or the other. It would, therefore, be wholly inappropriate at this stage to enter into such a question.…………In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position……………”

33. Similarly, the Constitution Bench in the judgment

authored by Justice D K Jain in State of W B Vs.

Committee for Protection of Democratic Rights (2010) 3

SCC 571 pronounced as follows:-

“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:

(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.

Page 28 of 35 (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.”

34. As noted earlier, the FIR at Patna was subsequently

transferred to the CBI with consent of the Bihar

government during pendency of this Transfer Petition.

However, in future, if commission of cognizable offence

under section 175(2) CrPC is determined, the

possibility of parallel investigation by the Mumbai

Police cannot be ruled out. Section 6 of the DSPE Act,

1946 read with Section 5 prescribe the requirement of

consent from the State government, before entrustment

of investigation to the CBI. As the CBI has already

registered a case and commenced investigation at the Page 29 of 35 instance of the Bihar government, uncertainty and

confusion must be avoided in the event of Mumbai Police

also deciding to simultaneously investigate the

cognizable offence, based on their finding in the

inquiry proceeding. Therefore, it would be appropriate

to decide at this stage itself as to who should conduct

the investigation on all the attending circumstances

relating to the death of the actor Sushant Singh

Rajput. This issue becomes relevant only if another FIR

is registered on the same issue, at Mumbai. A decision

by this Court on the point would confer legitimacy to

the investigation.

DIRECTION ON INVESTIGATION

35. The conflict between the two State governments on,

who amongst the two is competent to investigate the

case, is apparent here. In K.V. Rajendran Vs.

Superintendent of Police, CBCID, Chennai & Ors. (2013)

12 SCC 480, the 3 judges Bench in the judgment authored

by Justice Dr B S Chauhan held that transfer of

investigation must be in rare and exceptional cases in

order to do complete justice between the parties and

to instil straight confidence in the public mind. Page 30 of 35 While the steps taken by the Mumbai police in the

limited inquiry under Section 174 CrPC may not be

faulted on the material available before this Court,

considering the apprehension voiced by the stakeholders

of unfair investigation, this Court must strive to

ensure that search for the truth is undertaken by an

independent agency, not controlled by either of the two

state governments. Most importantly, the credibility

of the investigation and the investigating authority,

must be protected.

36. The ongoing investigation by the CBI is held to be

lawful. In the event a new case is registered at Mumbai

on the same issue, in the fitness of things, it would

be appropriate if the latter case too gets investigated

by the same agency, on the strength of this Court’s

order. Such enabling order will make it possible for

the CBI to investigate the new case, avoiding the

rigors of Section 6 of the DSPE Act, requiring consent

from the State of Maharashtra.

37. In Monica Kumar (Dr.) and Anr. Vs. State of Uttar

Pradesh and Others (2008) 8 SCC 781, Justice L.S. Panta

Page 31 of 35 in his judgment, referred to the inherent power

conferred on this Court and stated the following:-

“45. Under Article 142 of the Constitution this Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any “cause” or “matter” pending before it. The expression “cause” or “matter” would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. ………………………..This Court's power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter.”

38. The above ratio makes it amply clear that the

Supreme Court in a deserving case, can invoke Article

142 powers to render justice. The peculiar

circumstances in this case require that complete

justice is done in this matter. How this is to be

achieved must now be decided.

Page 32 of 35

39. As noted earlier, as because both states are making

acrimonious allegations of political interference

against each other, the legitimacy of the investigation

has come under a cloud. Accusing fingers are being

pointed and people have taken the liberty to put out

their own conjectures and theories. Such comments,

responsible or otherwise, have led to speculative

public discourse which have hogged media limelight.

These developments unfortunately have the propensity

to delay and misdirect the investigation. In such

situation, there is reasonable apprehension of truth

being a casualty and justice becoming a victim.

40. The actor Sushant Singh Rajput was a talented actor

in the Mumbai film world and died well before his full

potential could be realised. His family, friends and

admirers are keenly waiting the outcome of the

investigation so that all the speculations floating

around can be put to rest. Therefore a fair, competent

and impartial investigation is the need of the hour.

The expected outcome then would be, a measure of

justice for the Complainant, who lost his only son.

Page 33 of 35 For the petitioner too, it will be the desired justice

as she herself called for a CBI investigation. The

dissemination of the real facts through unbiased

investigation would certainly result in justice for the

innocents, who might be the target of vilification

campaign. Equally importantly, when integrity and

credibility of the investigation is discernible, the

trust, faith and confidence of the common man in the

judicial process will resonate. When truth meets

sunshine, justice will not prevail on the living alone

but after Life’s fitful fever, now the departed will

also sleep well. Satyameva Jayate.

41. In such backdrop, to ensure public confidence in

the investigation and to do complete justice in the

matter, this Court considers it appropriate to invoke

the powers conferred by Article 142 of the

Constitution. As a Court exercising lawful jurisdiction

for the assigned roster, no impediment is seen for

exercise of plenary power in the present matter.

Therefore while according approval for the ongoing CBI

investigation, if any other case is registered on the

death of the actor Sushant Singh Rajput and the Page 34 of 35 surrounding circumstances of his unnatural death, the

CBI is directed to investigate the new case as well.

It is ordered accordingly.

42. Before parting, it is made clear that the

conclusion and observations in this order is only for

disposal of this petition and should have no bearing

for any other purpose.

43. The Transfer Petition is disposed of with the above

order.

…………………………………………J. [HRISHIKESH ROY] NEW DELHI AUGUST 19, 2020

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