TMI Blog2023 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... have been committed by him inasmuch as he had been abducted from a different State and was already in the illegal detention of the police on 20.10.2020 itself. This essentially would be the defence in the criminal trial. As already noted, the charges have been framed and the evidence is being tendered. Even though it is contended that the CCTV footage would be relevant to establish the presence of the said four persons in the hotel at Odisha and the same has not been seized by the police, the fact remains that even from the same what is sought to be established is that the said four persons had abducted the appellant No.1. In the course of trial the five persons specified by the appellants would now be available to be crossexamined and any other orders in that regard can be sought in the pending proceedings. That apart, on the other aspects also since the trial is under progress, the appellant No.1 would be entitled to put forth his case when the statement under Section 313 of CrPC is recorded and also he would be entitled to tender evidence if necessary. The case of the appellant is clear as to the reason why he contends that the appellant No.1 cannot be held to have committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice Station, Raipur, (iii) Online complaint No. 3334104012000003 dated 27.10.2020 made before the Superintendent of Police, Raipur and (iv) Online complaint No. 24488049072000014 dated 06.11.2020 made before the Talcher Police Station, Angul, Odisha. The appellant had also prayed to quash the charge sheet in Special Case No.87/2020 and Special Case No.98/2020 filed by the respondent Azad Chowk Police, Raipur and Kotwali Police, Raipur filed pursuant to the said FIRs No.232/2020 and 255/2020, pending before the learned Special Judge under NDPS Act, Raipur. The further direction which was prayed is for the CBI to submit a periodical progress report of the investigation to the Court and to monitor the same. 4. In the connected appeal, the challenge is to the order dated 15.09.2021 whereby the Criminal Revision Petition filed by the appellant herein, before the High Court assailing the legality and correctness of the order dated 14.07.2021 passed by the Special Judge under NDPS Act at Raipur in Special Case No.98/2020 whereby the appellants application filed under Section 227 of the Code of Criminal Procedure, 1973 (for short, CrPC ) was dismissed and charges were framed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No.5 where he was detained for some time and his cell phone as also laptop were taken. It is claimed that the appellant No.1 was thereafter kept in the lockup throughout the night without disclosing the reasons for such action and on 21.10.2020 about 19:15 hours, police Subinspector Shri Priyesh Mathew John lodged FIR against him, bearing No.232/2020 for an alleged offence under Section 22(b) of the NDPS Act. Thereafter his name was also included in the earlier registered FIR No.255/2020 which is noted above. 8. In that background, the grievance put forth on behalf of the appellants is that the appellant No.1 though being a qualified citizen, who was travelling with regard to his business has been illegally abducted, detained and a case under NDPS has been foisted on him due to which online complaints were lodged by his fatherappellant No.2. It is in that light, the appellants are seeking for the directions as prayed and noted above. 9. The respondents have filed their objection statement denying the allegations and also contending with regard to the involvement of the appellant for which he has been apprehended and is proceeded against in accordance with law. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjustified. Pursuant to the registration of the FIR, an investigation has been conducted and the charge sheet has been filed. The contentions urged by the appellants are available to be put forth in defence, in the proceedings before the trial court where the charges have been framed and the trial is proceeding. Insofar as the allegation that he was abducted and taken away from the hotel, it is denied and contended that even though the police had gone to Odisha in connection with the earlier F.I.R., they were unable to trace the appellant No.1 there, but he was subsequently found to be indulging in the illegal activity in Raipur itself when he was apprehended and proceedings have been initiated. It is contended that the claim for investigation by the CBI is without basis and the well laid down guidelines of this Court does not permit referring the investigation to CBI in every case where the accused makes an allegation against the law enforcing authorities. 14. Having noted the rival contentions, we have also perused the impugned order passed by the High Court while taking note of the plea put forth by the parties. In fact, the High Court having framed two points for its consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on affidavits. 16. However, the limited aspect which we propose to note is that the affidavit filed by the respondent No.6State of Odisha is essentially to explain the manner of consideration made by them in relation to FIR No.0027 dated 22.01.2021 lodged at Talcher Police Station, Angul District, Odisha which is pursuant to the complaint on behalf of the appellants. The said affidavit also refers to the investigation made relating to the online complaint. In the course of the said affidavit, reference has been made to the process of investigation during which they had visited the Green Park Hotel and recorded statements relating to the four persons having come to the hotel and having introduced themselves as Chhattisgarh Police and asked them about the room number of the appellant No.1. The staff of the hotel had indicated that the appellant No.1 himself had stated that there is no problem and he had checked out after paying the bill. In reply to the said affidavit, the respondent Nos. 1 to 5 have sought to indicate that even as per the said affidavit, appellant No.1 himself had indicated that everything was alright and it is contended that even so far as the Police Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. Also Mithilesh Kumar Singh vs. State of Rajasthan Ors. (2015) 9 SCC 795 wherein it is held hereunder: 12. Even so the availability of power and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court's satisfaction whether the facts and circumstances of a given case demand such an order. No hardandfast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that an independent agency was looking into the matter . 14. Reference may also be made to the decision of this Court in State of Punjab v. CBI wherein this Court upheld the order transferring investigation from the State Police to CBI in connection with a sex scandal even when the High Court had commended the investigation conducted by the DIG and his team of officers. In Subrata Chattoraj v. Union of India, this Court directed transfer of the Chit Fund Scam in the States of West Bengal and Orissa from the State Police to CBI keeping in view the involvement of several influential persons holding high positions of power and influence or political clout. 15. Suffice it to say that transfers have been ordered in varied situations but while doing so the test applied by the Court has always been whether a direction for transfer, was keeping in view the nature of allegations, necessary with a view to making the process of discovery of truth credible. What is important is that this Court has rarely, if ever, viewed at the threshold the prayer for transfer of investigation to CBI with suspicion. There is no reluctance on the part of the Court to grant relief to the victims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests enunciated in the precedents of this Court has been established for the transfer of the investigation. 19. Hence it is clear that though there is no inflexible guideline or a straightjacket formula laid down, the power to transfer the investigation is an extraordinary power. It is to be used very sparingly and in an exceptional circumstance where the Court on appreciating the facts and circumstance arrives at the conclusion that there is no other option of securing a fair trial without the intervention and investigation by the CBI or such other specialized investigating agency which has the expertise. 20. In that background, even if the rival contentions are taken note, we do not find that there is any issue of public importance which requires to be unearthed by an investigation to be conducted by the CBI. Even from the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been lodged by the appellant No.2, from the affidavit as filed by the respondent No.6, the nature of investigation carried out by them has been stated. In that regard also the appellant No.2 would have the legal remedy in accordance with law. 22. In addition, in the said process of the judicial proceedings if the appellants bring out the fact that the appellant No.1 who was not involved, had been framed up and a case was foisted, the appellants would still have the legal remedy to take action for malicious prosecution, loss of reputation, action against involved persons, compensation and for such other relief in that regard. Therefore, when the issue raised is only a matter of evidence to be considered in the judicial proceedings to arrive at a conclusion, we are not convinced that in a case of the present nature, a direction to the CBI to hold an investigation would be justified nor is it required at this juncture when the trial in the judicial proceedings has progressed unhindered. Hence to that extent, all contentions of the appellants are kept open. For the very reason, at this stage either quashing or discharge would also not arise. All contentions are left open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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