Investigations Under Scrutiny: The Court’s Power to Transfer

Transfer of investigation is a judicially crafted remedy invoked in exceptional circumstances to preserve the integrity of the criminal justice process. It allows courts to shift a probe, usually from state police to the CBI, when bias, mala fides, or institutional failure compromises the original investigation. Though rooted in the need for justice, this power also serves as a constitutional check on executive inaction or misuse of authority, especially in cases involving influential accused or political interference.

However, such interventions walk a tightrope between ensuring accountability and respecting federal boundaries. Under the DPSE Act, the CBI requires state consent to operate within a state’s jurisdiction, but constitutional courts have overridden this requirement in compelling cases under Articles 226 and 32. This judicial balancing act reflects both the strength and strain of India’s quasi-federal structure.

Importantly, jurisprudence in cases like K.V. Rajendran, Naresh Kumar Mangla, and Arnab Goswami demonstrates a shift from acting on mere apprehensions of bias to requiring concrete evidence of investigative failure or systemic collapse. This evolution underscores the courts’ growing emphasis on public confidence, procedural fairness, and constitutional values, revealing that the transfer of investigation is not just a procedural correction but a vital institutional safeguard.

Judicial Safeguards to Ensure Fairness in Investigation

Recognising the foundational role of a fair and impartial investigation in upholding the rule of law, constitutional courts in India have consistently asserted their powers to intervene in exceptional cases where the investigative process is vitiated by bias, illegality, or procedural impropriety. Such intervention is based on multiple overlapping legal provisions and doctrines:

• Article 21 of the Constitution
  Guarantees the right to life and personal liberty, which includes the right to a fair investigation and trial. Courts have interpreted this to include protection from arbitrary arrest, selective targeting, and biased investigation (Maneka Gandhi v. Union of India, (1978) [1]1 SCC 248; Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158).[2]
• Article 32 (Supreme Court) and Article 226 (High Courts)
  Empower constitutional courts to issue writs for the enforcement of fundamental rights, allowing intervention where investigative actions threaten or violate rights under Article 21.
• Section 482 of the Criminal Procedure Code (CrPC)
  Preserves the inherent powers of the High Court to act when there is abuse of the process of the court or when intervention is necessary to secure the ends of justice. Courts have quashed FIRs or directed action when mala fide, political motivation, or apparent misuse of law is evident (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335).[3]
• Section 173(8) CrPC
  Enables further investigation, even after the filing of a charge sheet, when new facts emerge or when the initial investigation is found to be lacking or manipulated (Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762).[4]

• Delhi Special Police Establishment Act, 1946 (DPSE Act)
  Allows transfer of the investigation to the Central Bureau of Investigation (CBI). Constitutional courts have invoked this statute, especially in politically sensitive cases or where the state police are seen as compromised (State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571).[5]

Limited but Vital Judicial Role in PMLA Investigations

Courts act as constitutional sentinels, not investigative bodies, stepping in only where there is clear bias, procedural irregularity, or abuse of power that threatens the right to a fair trial under Article 21. While PMLA investigations by the Enforcement Directorate (ED) are rarely transferred owing to the Act’s self-contained nature and the ED’s exclusive mandate (meaning that under the PMLA, only the ED has the statutory authority to investigate offences of money laundering, to the exclusion of other agencies) courts can still intervene under Articles 21 and 226. Relief may be reframed to seek a fair and lawful investigation, supported by analogous precedents from general criminal law. Procedural lapses, such as the non-disclosure of arrest grounds or the absence of a predicate offence, can also be judicially scrutinized. In exceptional cases, constitutional oversight may still be exercised to ensure due process is safeguarded.

Transfer vs. Further Investigation

The powers relating to criminal investigations are derived from distinct legal provisions, depending on the nature of the intervention sought.

• Section 173(8) CrPC permits further investigation after the filing of a chargesheet, but only by the same investigating agency, and with the leave of the court. This is a procedural continuation under the original investigative setup.
• In contrast, the transfer of investigation typically involves a change in the investigating agency (e.g., from state police to CBI), which derives from broader powers such as:

• Section 482 CrPC, which empowers High Courts to issue directions to secure the ends of justice; and

• The Delhi Special Police Establishment Act, 1946, under which the CBI may be entrusted with a case either with the consent of the state (Section 6) or through judicial directive in exceptional cases.

The jurisdiction of constitutional courts to intervene in investigations arises under Article 226 (High Courts) and Article 32 (Supreme Court) of the Constitution. In addition, the High Courts’ inherent powers under Section 482 CrPC allow them to ensure that the process of law is not abused and that justice is not derailed due to administrative or investigative lapses.

However, the power is not automatic. The courts are careful to exercise it sparingly and with great caution. Intervention usually becomes necessary when there are allegations of:

• Bias or partiality in the investigation.
• Political interference or undue influence.
• Procedural irregularities or tampering with evidence.
• Gross delay or negligence by the investigating agency.
• The need to protect the fundamental rights of the accused or the victim.
• Serious public interest in the case, which warrants oversight by an independent agency.

Courts have emphasised that mere dissatisfaction with the investigation is not a ground for its transfer. There must be substantial material showing a failure of justice or the potential for such failure.

How Courts Have Defined the Boundaries for Investigation Transfer

The Supreme Court has, through several landmark cases, clarified the situations in which the transfer of an investigation or further probe is justified and where courts must refrain from intervention.

1. Tainted Investigations Justify Judicial Intervention – Dr. Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031[6]

This judgment, delivered by Justices D.Y. Chandrachud, Indu Malhotra, and Indira Banerjee, addresses the question of whether courts can intervene after a chargesheet has been filed. The chargesheet in this case was submitted on 5 November 2020, yet the appellant alleged that the investigation was fundamentally tainted.

The Court held in para 27 that:

“The submission of the chargesheet does not oust the jurisdiction of the superior court when the investigation is tainted and there is a real likelihood of justice being deflected.”

It relied on Vinay Tyagi v. Irshad Ali to affirm that terms like ‘further investigation,’ ‘fresh investigation,’ and ‘de novo investigation’ are functionally synonymous[RC1] . The Court reiterated that such powers must be exercised “sparingly and with great circumspection.”

This judgment underscores the principle that judicial power to direct a fresh or further investigation continues even after a chargesheet is filed, if fairness is compromised.

2. Further Investigation Without Hearing the Accused – Sri Bhagwan Samardha v. State of A.P., (1999) 5 SCC 740

The issue before the Court was whether the accused had a right to be heard when the court directed a further investigation under Section 173(8) of the CrPC.

In para 11, the Court held:

“There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before such direction is made.”

Justices K.T. Thomas and M.B. Shah clarified that the investigative stage is the domain of the prosecution, and accused persons gain participatory rights only at the trial stage.

The ruling prevents courts from being bogged down in procedural delays and confirms that judicial directions for further investigation do not constitute a right to a hearing for accused persons.

3. Transfer Only in Exceptional Cases – K.V. Rajendran v. SP, CBCID, (2013) 12 SCC 480[7]

This judgment sets the outer limits of judicial power in ordering transfers. The complainant, an academic, sought the transfer of the investigation to the CBI due to alleged police mala fides and delay.

Justice B.S. Chauhan, writing for the bench, held:

“Transfer of investigation to the CBI should only be in rare and exceptional cases where justice between the parties demands it, or when the State agency lacks credibility.”

In this case, the Court found no credible or current evidence suggesting that the accused influenced the investigation. The final report was already before the Magistrate under Section 173(2), and the earlier request for a CBI inquiry had been rejected by the Supreme Court in 2008.

Conclusion

The power of courts to transfer investigations stands as one of the most delicate yet indispensable tools in India’s criminal justice system. While it serves as a safeguard against bias, political interference, and investigative failure, it is exercised only in rare and compelling circumstances. Judicial precedents make it clear that mere dissatisfaction with the pace or outcome of a probe does not justify intervention; what is required is demonstrable evidence of mala fides, institutional collapse, or denial of constitutional guarantees under Article 21.

By balancing the need for impartial investigations with respect for federal principles and statutory frameworks, constitutional courts have reinforced that such powers are corrective, not supervisory. They protect public confidence in the rule of law without displacing the primary role of investigative agencies. Ultimately, the jurisprudence reflects a cautious but firm judicial stance: intervention in investigations is not routine, but when fairness and justice are at stake, courts will not hesitate to act as constitutional sentinels.

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[1] https://indiankanoon.org/doc/1766147/

[2] https://indiankanoon.org/doc/1067991/

[3] https://indiankanoon.org/doc/1033637/

[4] https://indiankanoon.org/doc/84627277/

[5] https://indiankanoon.org/doc/1061334/

^[6] https://indiankanoon.org/doc/176371351/

[7] https://indiankanoon.org/doc/125751941/