State Of Punjab vs Cbi & Ors

State of Punjab ...... Petitioner

Versus

Central Bureau of Investigation

& Ors. ...... Respondents

J U D G M E N T

A.K. PATNAIK, J.

This petition under Article 136 of the Constitution has

been filed by the State of Punjab praying for special leave to

appeal against the order dated 11.12.2007 of the High

Court of Punjab and Haryana in Criminal Miscellaneous No.

51620 of 2007 (for short "the impugned order").

2. The facts very briefly are that on 18.04.2007

respondent no.3 lodged FIR No. 82 at Police Station City-I,

Moga against Simran Kaur @ Indu and her husband Ajay

Kumar alleging offences under Sections 366, 376, 406, 420,

2

506, 344 read with Section 34 of the Indian Penal Code,

1860 (for short `the IPC'). Pursuant to the FIR, Simran Kaur

and Ajay Kumar were arrested on 19.04.2007, but Ajay

Kumar managed to escape from the custody of police and

FIR No. 83, Police Station City-I, Moga dated 19.04.2007

under Section 224 of the IPC was registered against him. In

course of investigation of the case, respondent no.3 made a

statement before the police under Section 161 of the Code of

Criminal Procedure, 1973 (for short `the Cr.P.C.') on

23.04.2007 naming 14 other persons who had sex with her

against her will and some of these persons were arrested by

Sub-Inspector Raman Kumar. The statement of respondent

no.3 was recorded on 25.04.2007 under Section 164 of the

Cr.P.C. by the Chief Judicial Magistrate, Moga. On

08.05.2007, the investigation of the case was entrusted to

Inspector Amarjit Singh, S.H.O. PS City-I, Moga. Some of

the persons named by respondent no.3 in her statements

were found to be innocent and were released. After

completing the investigation, Inspector Amarjit Singh

submitted a charge sheet on 01.06.2007 in Court under

Section 173 of the Cr.P.C naming Simran Kaur @ Indu, Ajay

3

Kumar, Vimal Kumar, Subhash Chander, Ramesh Kumar,

Randhir Singh, Iqbal Singh, Bharat Bhushan and Inderjit

Singh as accused persons.

3. On 04.06.2007 FIR No. 160 was registered under

Sections 342, 323 and 506 read with Section 34 of the IPC

at PS Baghapuran against several accused persons. One of

the accused persons Ranjit Singh, however, made a

complaint to the Additional Director General of Police (Law

and Order) that he has been falsely implicated by Inspector

Amarjit Singh in connivance with Manjeet Kaur because he

had recorded a conversation by Inspector Amarjit Singh

with him in the mobile that he would be arrested if he did

not pay a certain amount to him and a compact disc

containing the recorded conversation was prepared and

attached with the complaint. Investigation into this case

was entrusted to Inspector Bhupinder Singh, Deputy

Superintendent of Police, Bhaga Pura, District Moga. On

completion of the enquiry it was found that the allegations

against the accused persons were false. Accordingly, on

24.10.2007 FIR No. 198 was registered at PS City -I, Moga

under Sections 7 and 13(2) of the Prevention of Corruption

4

Act, 1988 read with Sections 384, 211 and 120-B of the IPC

against Inspector Amarjit Singh and Manjeet Kaur and

respondent no.3 and Inspector Amarjit Singh were arrested.

During investigation it also came to light that Sub-Inspector

Raman Singh, the then S.H.O., PS Badhnikalan was helping

Manjeet Kaur and respondent no.3 and that Sub-Inspector

Raman Singh had accepted illegal gratification.

Accordingly, offences under Sections 195, 201, 202, 218,

219, 221, 465, 468 and 471 of the IPC were added in the

case registered as FIR no. 198 of 2007 and Sub-Inspector

Raman Singh was also named as an accused alongwith

Inspector Amarjit Singh. Sub-Inspector Raman Kumar was

also dismissed from service by the Senior Superintendent of

Police.

4. On 11.11.2007, Manjeet Kaur and respondent no.3

were arrested and during interrogation respondent no.3

alleged that on 04.11.2007, Sub-Inspector Raman Kumar

took her and Bhupinder Kumar @ Rocky Sharma to a place

at Karnal in Haryana, where Bhupinder Kumar @ Rocky

Sharma raped her during the night of 04/05.11.2007. On

13.11.2007, a news item was published in the Hindustan

5

Times headlined `Moga Sex Scandal' and two ladies, namely,

respondent no.3 of Village Varsaal and her relative Manjeet

Kaur of Village Badduwal had been arrested. This news was

also published in the Tribune dated 12.11.2007.

5. The High Court took suo motu notice of the news items

and issued notices to the State of Punjab, Senior

Superintendent of Police, Moga and Deputy Inspector

General of Police, Ferozpur Range and directed the Deputy

Superintendent of Police, Bhupinder Singh, who was

investigating into the case, to file the status report of the

investigation on the next date of hearing. On 15.11.2007,

Bhupinder Kumar was arrested and FIR No. 225 was

registered at Police Station Tarawari, Distt. Karnal under

Sections 376, 342 and 34 of the IPC against him. On

19.11.2007, status report was submitted before the High

Court by Deputy Superintendent of Police, Bhupinder Singh

stating that the investigation is still in progress. On

19.11.2007, a Criminal Miscellaneous Application was

moved by an advocate on behalf of Bhushan Garg and

Inderjit Singh, two Municipal Councilors of Moga, alleging

that at the instance of local influential political persons and

6

senior police officers, many innocent persons, including

Bhushan Garg and Inderjit Singh were implicated in FIR

No.82 dated 18.04.2007 registered with Police Station City-

I, Moga. The applicants apprehended that the investigation

may not be fair and proper because senior police officers

and highly influential persons were involved in the case.

6. When the case was taken up before the High Court on

20.11.2007, the Additional Advocate General placed before

the High Court a copy of the order of the Additional Director

General of Police (Crime), Punjab dated 19.11.2007

entrusting the investigation into FIR No. 82 dated

18.04.2007, FIR No. 83 dated 19.04.2007, FIR No. 160

dated 04.06.2007 and FIR No. 198 dated 24.10.2007 to a

special investigation team (for short `the SIT'). On

20.11.2007, the High Court observed that the SIT had been

constituted without the permission of the Court and issued

notice to the CBI for the purpose of entrusting the

investigation of the case to the CBI.

7. Pursuant to the notice, the CBI appeared and stated in

its reply that the CBI was over burdened with investigation

of the cases referred to by this Court, the High Court and

7

the Union of India and that it was facing acute shortage of

man power and resources and therefore the case should not

be entrusted to the CBI particularly when it does not have

any interstate and international ramifications. The High

Court, after hearing the learned counsel for the parties and

after considering various status reports filed by the state

police passed the impugned order on 11.12.2007 directing

that the investigation of the cases be entrusted to the CBI.

On 12.12.2007, the High Court passed an order clarifying

that the CBI has been directed by the order dated

11.12.2007 to investigate into FIR No.82, FIR No.83 and FIR

No.198 of P.S. City I, Moga, FIR No.160 of P.S. Baghapurana

and FIR No.225 of P.S. Tarawari, District Karnal (Haryana).

By the order dated 12.12.2007, the High Court also stayed

further proceedings before the Trial Court in the case

arising out of FIR No.82 of P.S. City I, Moga, till further

orders.

8. Dr. Rajeev Dhawan, appearing for the petitioner (State

of Punjab) submitted that the High Court had failed to

appreciate that on 01.06.2007 charge sheet had already

been filed against nine accused persons after investigation

8

into FIR No. 82 of Police Station City-I, Moga, and,

therefore, no direction could be given to the CBI to conduct

the investigation into the case. He cited the observations of

this Court in Vineet Narain v. Union of India [(1998) 1 SCC

226] that the task of the monitoring Court would end the

moment charge sheet was filed in respect of a particular

investigation and thereafter the ordinary procedure of law

would then take over. He submitted that after the charge

sheet is filed, the Court has powers under sub-section (8) of

Section 173 of the Cr.P.C. to direct further investigation by

the police, but the Court has no power to direct a fresh

investigation or reinvestigation into the case by the police.

He submitted that the High Court, therefore, could not have

directed the CBI to start a fresh investigation or

reinvestigation of the case after the police had filed charge

sheet under sub-section (2) of Section 173 of the Cr.P.C. In

support of this submission, he cited the decision of this

Court in Mithabhai Pashabhai Patel v. State of Gujarat

[(2009) 6 SCC 332] in which this Court made a distinction

between further investigation and reinvestigation and held

that under sub-section (8) of Section 173 of the Cr.P.C., the

9

Court can grant permission for further investigation and not

for reinvestigation.

9. Mr. Anoop G. Chaudhari, learned counsel for

respondent no.3, argued that once challan is filed and

charges are framed, the High Court cannot direct

reinvestigation by the CBI. He submitted that in the

present case, the challan had been filed on 01.06.2007 in

respect of FIR No.82, Police Station City-I, Moga dated

18.04.2007 and the Court had also framed charges on

08.11.2007 and therefore the High Court could not have

passed the impugned order on 11.12.2007 directing the CBI

to carryout a fresh investigation or reinvestigation into the

case. He submitted that the High Court was conscious of

this limitation on the power of the Court to direct further

investigation and mentioned in the impugned order dated

11.12.2007 that if the challan had been presented to the

Court, the Miscellaneous Petition will stand as having

become infructuous. He submitted that the impugned order

passed by the High Court that the investigation of the case

will be taken up by the CBI was, therefore, bad in law and

should be set aside by this Court.

10 10. Mr. H.P. Raval, learned Additional Solicitor General for

Respondent No.1 (the CBI), on the other hand, submitted

that this Court has held in Ram Lal Narang v. State (Delhi

Administration [(1979) 2 SCC 322] that even where a

Magistrate has taken cognizance of an offence upon a police

report submitted under Section 173 of the Cr.P.C., the right

of the police to further investigate was not exhausted and

the police can exercise such right as often as necessary

when fresh information came to light. He also relied on a

recent decision of this Court in Nirmal Singh Kahlon v. State

of Punjab & Ors. [(2009) 1 SCC 441] wherein this Court has

sustained the order of the High Court directing investigation

by the CBI even after the charge sheet had been filed by the

State police on completion of the investigation. He

submitted that in Nirmal Singh Kahlon (supra) this Court

has clarified that the observations in Vineet Narain (supra)

cited by Dr. Dhawan are applicable to cases where the

investigation was being monitored and in such cases the

monitoring of the High Court will come to an end after the

charge sheet is filed. He submitted that in the present case,

the High Court found that the state police is not a position

11

to carry out a fair and truthful investigation and has

directed the investigation by the CBI in the interest of

justice in exercise of its powers under Section 482 of the

Cr.P.C.

11. Mr. Raval further submitted that pursuant to

impugned order of the High Court the CBI has carried out

the investigation into the cases and the status report of the

cases is as follows:

S.No. CBI Case No. Local Police Case No. Status of the case

1. RCCHG2007S0031 FIR No. 82, 1) Investigation completed,

dated 18.04.2007 of which revealed that a false

P.S. City I, Moga. rape case was registered

by the Moga Police.

2) Charge sheet has been

filed under Sections 366-A

and 406 of the IPC and

Sections 4 & 5 of the

Immoral Traffic

(Prevention) Act, 1956

against two persons,

namely, Simran Kaur @

Indu and Ajay Kumar on

10.11.2008.

2. RCCHG2007A0030 FIR No.198, Investigation completed

dated 24.10.2007 of and charge sheet has been

P.S. City I, Moga. filed in Court on

09.11.2009 in which the

senior police officers of the

rank of SSP and SP are

sought to be prosecuted

after sanction from the

Central Government.

3. RCCHG2008S0003 FIR No.83, 1) Investigation completed

dated 19.04.2007 of and charge sheet has been

P.S. City I, Moga. filed in the Court on

10.11.2008 against Ajay

Kumar and the Court

12

convicted the accused on

30.09.2009.

2) Accused has filed an

appeal in the Court of Ld.

Special Judge, Punjab,

Patiala and the appeal has

been dismissed on

09.02.2011. Accused has

filed CRR No. 460 of 2011

in the High Court, which

is pending.

4. RCCHG2008S0001 FIR No.160, Investigation completed

dated 04.06.2007 of and closure report has

P.S. Baghapurana, been filed in Court on

District Moga 10.11.2008 and the Court

has accepted the closure

report on 12.12.2008.

5. RCCHG2008S0002 FIR No.225, Investigation completed

dated 15.11.2007 of and closure report filed in

P. S. Tarawari, the Court and the same

District Karnal has been accepted on

(Haryana) 03.06.2009.

12. Sub-sections (1), (2) and (8) of Section 173 and Section

482 of the Cr.P.C. which are relevant for deciding this case

are quoted herein below:

"Section 173. Report of police officer on

completion of investigation -

(1) Every investigation under this Chapter shall

be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in

charge of the police station shall forward to a

Magistrate empowered to take cognizance of the

offence on a police report, a report in the form

prescribed by the State Government, stating -

(a) the names of the parties;

(b) the nature of the information;

13

(c) the names of the persons who appear to

be acquainted with the circumstances of

the case;

(d) whether any offence appears to have been

committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his

bond and, if so, whether with or without

sureties;

(g) whether he has been forwarded in

custody under Section 170;

(h) whether the report of medical

examination of the woman has been

attached where investigation relates to an

offence under Section 376, 376A, 376B,

376C or 376D of the Indian Penal Code.

(ii) The officer shall also communicate, in

such manner as may be prescribed by the

State Government, the action taken by

him, to the person, if any, by whom the

information relating to the commission of

the offence was first given.

x x x x x x x x x x x x x x x x x x x

(8) Nothing in this Section shall be deemed to

preclude further investigation in respect of an

offence after a report under Sub-Section (2) has

been forwarded to the Magistrate and, where

upon such an investigation, the officer in charge

of the police station obtains further evidence, oral

or documentary, he shall forward to the

Magistrate a further report or reports regarding

such evidence in the form prescribed; and the

provisions of sub-sections (2) to (6) shall, as far

as may be, apply in relation to such report or

14

reports as they apply in relation to a report

forwarded under sub-section (2)".

"Section 482. Saving of inherent power of

High Court - Nothing in this Code shall be

deemed to limit or affect the inherent powers of

the High Court to make such orders as may be

necessary to give effect to any order under this

Code, or to prevent abuse of the process of any

Court or otherwise to secure the ends of justice".

13. Sub-section (1) of Section 173 of the Cr.P.C. provides

that every investigation by the police shall be completed

without unnecessary delay and sub-section (2) of Section

173 provides that as soon as such investigation is

completed, the officer in charge of the police station shall

forward to a Magistrate empowered to take cognizance of the

offence on a police report, a report in the form prescribed by

the State Government. Under sub-section (2) of Section

173, a police report (charge sheet or challan) is filed by the

police after investigation is complete. Sub-section (8) of

Section 173 states that nothing in the Section shall be

deemed to preclude any further investigation in respect of

an offence after a report under sub-section (2) has been

forwarded to the Magistrate. Thus, even where charge sheet

or challan has been filed by the police under sub-section (2)

15

of Section 173, the police can undertake further

investigation but not fresh investigation or re-investigation

in respect of an offence under sub-section (8) of Section 173

of the Cr.P.C.

14. Section 482 of the Cr.P.C., however, states that

nothing in the Cr.P.C. shall be deemed to limit or affect the

inherent powers of the High Court to make such orders as is

necessary to give effect to any order under the Cr.P.C. or to

prevent the abuse of the process of any Court or otherwise

to secure the ends of justice. Thus, the provisions of the

Cr.P.C. do not limit or affect the inherent powers of the

High Court to make such orders as may be necessary to give

effect to any order under the Court or to prevent the abuse

of any process of the Court or otherwise to secure the ends

of justice. The language of sub-section (8) of Section 173 of

the Cr.P.C., therefore, cannot limit or affect the inherent

powers of the High Court to pass an order under Section

482 of the Cr.P.C. for fresh investigation or re-investigation

if the High Court is satisfied that such fresh investigation or

re-investigation is necessary to secure the ends of justice.

16 15. We find support for this conclusion in the following

observations of this Court in Mithabhai Pashabhai Patel v.

State of Gujarat (supra) cited by Mr. Dhawan:

"13. It is, however, beyond any cavil that

"further investigation" and "reinvestigation"

stand on different footing. It may be that in a

given situation a superior court in exercise of

its constitutional power, namely, under

Articles 226 and 32 of the Constitution of

India could direct a "State" to get an offence

investigated and/or further investigated by a

different agency. Direction of a

reinvestigation, however, being forbidden in

law, no superior court would ordinarily issue

such a direction. Pasayat, J. in

Ramachandran v. R. Udhayakumar [(2008) 5

SCC 413] opined as under: (SCC p. 415, para

7)

"7. At this juncture it would be

necessary to take note of Section 173

of the Code. From a plain reading of

the above section it is evident that

even after completion of investigation

under sub-section (2) of Section 173 of

the Code, the police has right to

further investigate under sub-section

(8), but not fresh investigation or

reinvestigation."

A distinction, therefore, exists between a

reinvestigation and further investigation."

"15. The investigating agency and/or a court

exercise their jurisdiction conferred on them

only in terms of the provisions of the Code.

The Courts subordinate to the High Court

even do not have any inherent power under

Section 482 of the Code of Criminal

17

Procedure or otherwise. The pre-cognizance

jurisdiction to remand vested in the

subordinate courts, therefore, must be

exercised within the four corners of the

Code."

It is clear from the aforesaid observations of this Court that

the investigating agency or the Court subordinate to the

High Court exercising powers under Cr.P.C. have to exercise

the powers within the four corners of the Cr.P.C. and this

would mean that the investigating agency may undertake

further investigation and the subordinate court may direct

further investigation into the case where charge sheet has

been filed under sub-section (2) of Section 173 of the

Cr.P.C. and such further investigation will not mean fresh

investigation or re-investigation. But these limitations in

sub-section (8) of Section 173 of the Cr.P.C. in a case where

charge sheet has been filed will not apply to the exercise of

inherent powers of the High Court under Section 482 of the

Cr.P.C. for securing the ends of justice.

16. This position of law will also be clear from the

decision of this Court in Nirmal Singh Kahlon v. State of

Punjab & Ors. (supra) cited by Mr. Raval. The facts of that

case are that the State police had investigated into the

18

allegations of irregularities in selection of a large number of

candidates for the post of Panchayat Secretaries and had

filed a charge sheet against Nirmal Singh Kahlon. Yet the

High Court in a PIL under Article 226 of the Constitution

passed orders on 07.05.2003 directing investigation by the

CBI into the case as it thought that such investigation by

the CBI was "not only just and proper but a necessity".

Nirmal Singh Kahlon challenged the decision of the High

Court before this Court contending inter alia that sub-

section (8) of Section 173 of the Cr.P.C. did not envisage an

investigation by the CBI after filing of a charge sheet and

the Court of Magistrate alone has the jurisdiction to issue

any further direction for investigation before this Court.

Amongst the authorities cited on behalf of Nirmal Singh

Kahlon was the decision of this Court in Vineet Narain case

that once the investigation is over and charge sheet is filed

the task of the monitoring Court comes to an end. Yet this

Court sustained the order of the High Court with inter alia

the following reasons:

"63. The High Court in this case was not

monitoring any investigation. It only desired

that the investigation should be carried out by

an independent agency. Its anxiety, as is

19

evident from the order dated 3-4-2002, was to

see that the officers of the State do not get

away. If that be so, the submission of Mr. Rao

that the monitoring of an investigation comes to

an end after the charge-sheet is filed, as has

been held by this Court in Vineet Narain and

M.C. Mehta (Taj Corridor Scam) v. Union of India

[(2007) 1 SCC 110], loses all significance".

Though the decision of this Court in Nirmal Singh Kahlon v.

State of Punjab & Ors. (supra) is in the context of the power

of the High Court under Article 226 of the Constitution, the

above observations will equally apply to a case where the

power of the High Court under Section 482 of the Cr.P.C. is

exercised to direct investigation of a case by an independent

agency to secure the ends of justice.

17. This leads us to the next question whether the High

Court in the facts of the present case passed the order for

investigation by the CBI to secure the ends of justice. The

reasons given by the High Court in the impugned order

dated 11.12.2007 for directing investigation by the CBI are

extracted herein below:

"The Investigating Officer, who is a D.S.P. in

rank, will not be in a position to investigate

the case fairly and truthfully, as senior

functionaries of the State in the Police

Department and political leaders are being

named. By this we are not casting any

doubts on the investigating team, but it

20

seems that political and administrative

compulsions are making it difficult for the

investigating team to go any further to bring

home the truth. Apart from revolving

around a few persons who have been named

in the status report, nothing worthwhile is

coming out regarding the interrogation of

the police officers, political leaders and

others. The investigation seems to have

slowed down because of political

considerations.

Not less than eight police officials, political

leaders, Advocates, Municipal Councilors

and number of persons from the general

public have been named in the status

report. We feel that justice would not be

done to the case, if it stays in the hands of

the Punjab Police. Having said this, we

want to make one thing very clear that the

team comprising of Shri Ishwar Chander,

D.I.G, Shri L.K. Yadav, S.S.P. Moga and Shri

Bhupinder Singh, D.S.P. have done a

commendable job in unearthing the scam.

We feel it a fit case to be handed over to the

C.B.I."

On a reading of the reasons given by the High Court, we find

that the High Court was of the view that the investigating

officer even of the rank of DSP was not in a position to

investigate the case fairly and truthfully because senior

functionaries of the State police and political leaders were to

be named and political and administrative compulsions

were making it difficult for the investigating team to go any

21

further to bring home the truth. It further observed that not

less than eight police officials, political leaders, advocates,

municipal councilors besides a number of persons

belonging to general public had been named in the status

report of the State local police. In the peculiar facts and

circumstances of the case, the High Court felt that justice

would not be done to the case if the investigation stays in

the hands of the local police and for these reasons directed

that the investigation of the case be handed over to the CBI.

The narration of the facts and circumstances in paragraph

2, 3, 4 and 5 of this judgment also support the conclusion

of the High Court that investigation by an independent

agency such as the CBI was absolutely necessary in the

interests of justice. Moreover, even though the High Court

in the impugned order dated 11.12.2007 did make a

mention that in case challan has been filed, then the

petition will stand as having become infructuous in the

order dated 12.12.2007, the High Court has stayed further

proceedings before the trial court in the case arising out of

FIR No.82 of P.S. City I, Moga, till further orders. Thus, the

High Court was of the view that even though investigation is

22

complete in one case and charge sheet has been filed by the

Police, it was necessary in the ends of justice that the CBI

should carry out an investigation into the case.

18. In the recent case of State of West Bengal and Others

v. Committee for Protection of Democratic Rights, West Bengal

and Others [(2010) 2 SCC 571] a Constitution Bench of this

Court, while holding that no Act of Parliament can exclude

or curtail the powers of the High Court under Article 226 of

the Constitution, has cautioned that the extra-ordinary

powers of the High Court under Article 226 of the

Constitution must be exercised sparingly, cautiously and in

exceptional situations where it becomes necessary to

provide credibility and confidence in investigation or where

the incident may have national or international

ramifications or where such an order may be necessary for

doing complete justice and enforcing fundamental rights.

This caution equally applies to the cases where the High

Court exercises inherent powers under Section 482 of the

Cr.P.C. to direct investigation by the CBI for securing the

ends of justice. In the facts and circumstances of this case,

however, the High Court has held that the state local police

23

was unable to carry out investigation into the cases and for

securing the ends of justice the investigation has to be

handed over to the CBI. In other words, this was one of

those extra-ordinary cases where the direction of the High

Court for investigation by the CBI was justified.

19. This is, therefore, not a fit case in which we should

exercise our powers under Article 136 of the Constitution

and grant leave to appeal. The Special Leave Petition is

dismissed.

..........................J.

(R.V. Raveendran)

..........................J.

(A. K. Patnaik)

New Delhi,

September 02, 2011.