TMI Blog2011 (7) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Patil, who is an advocate practising in this court. He is appearing in person. PIL Petition No.29 of 2011 is filed by Mr. S. Balakrishnan, who is also a journalist. Writ Petition No. 1629 of 2011 is filed by one Mr. Ketan Tirodkar in public interest. In PIL Petition No.28 of 2011, intervention application was filed by the Press Club, Mumbai and Marathi Patrakar Parishad, Mumbai. The applicants have been permitted to intervene by us. 2. Mr. Patil, who is petitioner in PIL Petition No.28 of 2011 has submitted that the investigation needs to be transferred to CBI because though more than about a month has elapsed after the murder, the police have not been able to collect any credible evidence. While the so-called investigation is on, the investigating officers are leaking out information to the public. Contradictory statements are issued to the Press which create doubt about the honesty and integrity of the investigating agency. In support of his submissions, Mr. Patil relied on the judgment of the Supreme Court in Narmada Bai v. State of Gujarat Ors. 2011 All SCR 1339 and judgment of this court in Shamin @ Chintu Jamaluddin Shaikh v. The Senior Inspector of Police, Khar Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of investigation is made out. Counsel submitted that the Mumbai Police are leaking out information allegedly gathered by them, everyday. Various contradictory statements are issued to the Press. It is clear that there is no real investigation. The police are just trying to hoodwink the people. They are trying to traumatize the family members of J. Dey by issuing scandalous statements. Counsel has drawn our attention to the intervention application and to the affidavit of Mr. Sunil Shivdasani, the Secretary of the Intervenors - the Press Club. Counsel also drew our attention to the averments made in PIL Petition No.29 of 2011. Counsel submitted that it is specifically alleged in the intervention application, in the affidavit of Mr. Shivdasani and in PIL Petition No.29 of 2011 that there is nexus between the Mumbai Police and the underworld. No affidavit is filed by the Mumbai Police. Counsel submitted that the Mumbai police have chosen not to file affidavit in reply because they have no explanation to offer. Counsel submitted that the underworld connection involved in this case will have to be unearthed. This can only be done by an impartial investigating agency and not by tainted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich has resulted in the arrest of eight accused. Counsel submitted that in Criminal Application No.13 of 2011 and in the affidavit of Mr. Shivdasani also, general allegations are made against Mumbai Police but no particulars have been given. It is stated in the affidavit of Mr. Shivdasani that Mr. Dey had lodged complaints in respect of ACP Anil Mahabole with the Home Minister, State of Maharashtra. It is suggested that it is because of this that Mr. Dey was murdered. Counsel submitted that in paragraph 6(vi) of his affidavit, Mr. Shivdasani has admitted that ACP Anil Mahabole was questioned by Mumbai Police approximately for six hours and his statement came to be recorded. Therefore, it is clear that the Mumbai Police have impartially conducted the investigation. The general allegation that they would not conduct proper investigation because of underworld connection is baseless. So far as the Vohra Committee Report is concerned, counsel submitted that the Vohra Committee report has not gone into the specifics of any case. Suggestions were made by heads of different departments of Government and investigating agencies and general conclusions were drawn. Those conclusions, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive investigation and, therefore, this case needs to be transferred to the CBI. Counsel submitted that assuming that this case has international ramifications, Mumbai Police are capable of investigating it. He submitted that the case relating to terrorist attack on Mumbai on 26/11/2008 in which accused Ajmal Kasab has been sentenced to death was successfully investigated by the Crime Branch of Mumbai Police. Counsel submitted that in the circumstances of the case, looking to the progress made by the Mumbai Police in the investigation and the fact that they have arrested eight accused, the only conclusion which can be drawn is that they are on the right track. Counsel submitted that this court should, therefore, dismiss the petition. 8. Seriousness of the crime in question obviously cannot be debated upon. The investigation of the case is on. It is, therefore, not possible for us, at this stage, to say what led to the murder. We cannot express any opinion on this aspect and nothing said by us in this order may be interpreted to mean our expression of opinion on this aspect. The reasons for murder would come to light only when the investigation is complete, charge-sheet is fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt concluded 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, shall be valid in law. In paragraph 70, the Supreme Court added a caveat. It is necessary to quote it. 70. Before parting with the case, we deem it necessary to emphasis 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous and most tragic abduction and murder of the lawyer and his family. Noting that charge-sheet was filed, the Supreme Court went on to observe that in the facts and circumstances of the case, to do complete justice in the matter and to instill confidence in the public mind, it is necessary to have fresh investigation through a specialized agency like the CBI. The Supreme Court directed the CBI to take up the investigation of the case. 13. In Mohammed Anis, the police were accused of causing encounter deaths. A writ petition was filed by an advocate in the Supreme Court under Article 32 of the Constitution alleging infringement of Article 21 of the Constitution. The Supreme Court observed that since the allegations were mainly directed against the local police and doubts were expressed regarding the fairness of the investigation as the police were accused of murder, without expressing any opinion, in public interest, it had directed that the investigation be conducted by local police. Thereafter, a petition came to be filed by a police inspector claiming that it was in public interest. It was contended that the transfer of investigation to CBI was destructive of the exclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction to consider whether the material on record was sufficient to direct inquiry by CBI. While remanding the matter, the Supreme Court observed that while none can dispute the power of the High Court under Article 226 of the Constitution to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need for such inquiry. The Supreme Court further observed that it is not sufficient to have such material in the pleadings. On the contrary, there is need for the High Court on consideration of such material to come to a prima facie conclusion that there is need for such inquiry by CBI. The Supreme Court further observed that transfer of investigation to CBI or other agency cannot be done as a matter of routine or merely because a party makes such allegations. It is pertinent to note that in Committee for Protection of Democratic Rights, West Bengal, the Constitution Bench has approved the view taken by it in this case. 16. In Sakiri Vasu, the dead body of Major Ravishankar, son of the appellant was found at Mathura Railway Station. The court of inquiry held that Major Ravishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Crime Branch has taken over the investigation from the stage it was left by Khar Police Station and has toed the same line on account of the record already created in that regard. The quintessence is not only to do free, fair and impartial investigation of a criminal case, but it should also be seen to be so done. 18. The following principles can be deduced from the above judgments. (a) The State has a duty to provide fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Victim's rights also need to be protected. Fair and independent investigation by an independent agency not involved in the controversy is the demand of public interest. (b) An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. Only in exceptional cases he can invoke extraordinary powers of the High Court under Article 226 of the Constitution and seek a transfer of investigation to CBI or other agencies. (c) Being protector of civil liberties of the citizens, the High Court can, in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dey was reporting on an alleged nexus between the underworld and Mumbai Police and the oil mafia in the larger public interest, the investigation should be done by CBI. No particulars about the alleged underworld connection are disclosed. In the affidavit of Mr. Shivdasani again there is a reference to the alleged nexus between Mumbai Police and the underworld on which Mr. Dey was reporting. There is a reference to ACP Mahabole in respect of whom Mr. Dey is stated to have made a complaint to the Home Minister Mr. Patil. It is stated that Mr. Dey had worked on stories that suggested that ACP Mahabole was close to D Company. It is stated that Mr. Dey was unearthing links between the Mumbai Police and the underworld. It is suggested that ACP Mahabole was responsible for the murder of Mr. Dey. We find it difficult to come to a conclusion on the basis of these general averments that the nexus between the Mumbai Police and the underworld is established; that therefore, they would not investigate this case properly and, hence, it should be transferred to CBI. It is pertinent to note that in paragraph 6(vi) of the affidavit, Mr. Shivdasani has admitted that Mumbai Crime Branch qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly cited example of the case involving terrorist attack on Mumbai on 26/11/2008 in which Ajmal Kasab, a Pakistani national was involved. The said case was successfully investigated by the Mumbai Police. 22. So far as the cases cited by Mr. Seervai are concerned, we find force in the submission of learned Advocate General that in all those cases, local police officers were directly involved. They were the main culprits. Impartial investigation was found to be not possible in the peculiar facts of those cases. In this case, there are no direct allegations against local police officers. None of them are accused of murder. Undoubtedly, transfer to CBI can be ordered even in a case where police are not the accused. But, a very strong case based on material brought on record must be made out for such a transfer. Transfer to CBI cannot be ordered in a routine manner. 23. In any case, the police have cracked the case and arrested eight accused. Provisions of MCOCA have been applied to them. We must note that one of the petitioners, Mr. Tirodkar has expressed great confidence in the Commissioner of Police, Mumbai and Joint Commissioner of Police, Mumbai. His only fear was that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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