TMI Blog2016 (1) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... gating authorities for negligent investigation; that the concerned ASI has been reverted to the post of Head Constable; and that apart, certain material witnesses have not been examined by the investigating agency without any rhyme or reason. The reasoning of the High Court is as the trial has commenced, there cannot be a transfer of the case to another investigating agency. The power to order fresh, de-novo or re-investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination - it is directed that the CBI shall conduct the investigation and file the report before the learned trial judge. The said investigation report shall be considered by the trial judge as per law. Appeal allowed. - Criminal Appeal No. 85 of 2016 (Arising out of S.L.P. (Criminal) No. 6298 of 2015) - - - Dated:- 29-1-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remain as it is so that an organic disorder is allowed to creep in and corrode and create a cul-de-sac in administration of justice. The further question posed whether the non-approach to the court prior to the stage of commencement of trial would be a peccadillo so as to usher in an absolutely indifferent, unconcerned and, in a way, biased investigation to rule and in the ultimate eventuate lead to guillotining of justice. The High Court having negatived the stand put forth by the Appellant, the husband of the deceased, he has approached this Court by way of special leave. 4. With the aforesaid prefatory note and a short prelude to the grievance of the Appellant, we proceed to narrate the facts. 5. The minor daughter of the Appellant who was raped by the accused persons was threatened with dire consequences in case she disclosed the incident. The incident, as alleged, occurred on 06.08.2012. Despite the threat, the daughter disclosed the incident to her parents. Keeping in view the future of the girl and the social repercussions, they chose to suffer in silence rather than set the criminal law in motion. When the family stood reconciled to the situation, something extremely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for entering into a compromise in the rape case, and for change of his version in the murder case of his wife. 7. It has been asserted and not denied by the Respondents that on 28.01.2013, the Superintendent of Police, Karnal vide Office Memo No. 3961 recommended to the Director General of Police, Haryana that the case bearing FIR No. 354 along with the rape case and the unsolved case of murder of the sister-in-law of the Appellant be transferred to the Central Bureau of Investigation (CBI), New Delhi. Based on the said recommendation, the Additionally Chief Secretary, Government of Haryana vide Office Memo No. 20/2/2013-3HG1 requested the Secretary to the Government of India, Ministry of Personnel, Public Grievances Pensions, Department of Personnel Training, New Delhi for handing over the investigation to the CBI. It has also been asserted that a departmental action has been taken against ASI Ram Prakash and SHO Sanjeev Malik on the basis of the complaints made by the Appellant. On information being sought by the Appellant under the Right to Information Act, 2005, he has been informed vide communication dated 17.11.2014 that departmental inquiry had already been initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court Under Article 32 and on the High Courts Under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Emphasis added) 11. After recording the conclusions, the Constitution Bench added a note of caution which we may profitably reproduce: 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large in the investigating agency. True it is, the facts in the said case were different and related to alleged crimes committed by certain State officials, but the base of confidence in investigation has been significantly highlighted. 14. In the context, we may profitably refer to a two-Judge Bench decision in Narmada Bai v. State of Gujarat and Ors. (2011)5 SCC 79. The Court, in the factual matrix of the case, has emphasized that if the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI. 15. A three-Judge Bench in K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and Ors. (2013) 12 SCC 480 reiterating the said principle stated that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having a fair, honest and complete invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Tyagi v. Irshad Ali (2013) 5 SCC 762, wherein a two-Judge Bench, after referring to the decision in Bhagwant Singh v. Commr. of Police (1985) 2 SCC 537 has held thus: However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report Under Section 173(2) of the Code is filed, is empowered in law to direct further investigation and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed. 19. In the said case, the question had arisen whether a Magistrate can direct for re-investigation. While dealing with the said issue, the Court has observed: At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction Under Section 482 of the Code or even Article 226 of the Constitution of India to direct further investigation , fresh or de novo and even reinvestigation . Fresh , de novo and reinvestigation are synonymous expressions and their result in law would be the same. The superior c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the tour de force of the prosecution and if we allow ourselves to say so it has become idee fixe but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. of course, the suspicion must have some sort of base and fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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