Transfer of Investigation

The availability of power and its exercise in its truest form are two distinct matters. When ruling on a matter for direct transfer of investigation, the law courts do not do so solely to appease the ego or defend the prestige of a party involved in the investigation. Rather, the Court's decision is based on whether the facts and circumstances of a particular case warrant such an order. There is no such thing as a hard-and-fast rule that can be applied universally to all situations. Each case's judgement is based on its own set of facts and circumstances. What matters is that the Court, in exercising its authority to order such a transfer, is mindful of the principle that transfers are not made simply because a party wishes to lead the investigator to a specific conclusion. Only when there is a genuine fear that justice may be jeopardised as a result of shoddy or political investigation will the Court intervene and employ its extraordinary powers. In such cases, the sensibility of the crime victims or their relatives is not entirely irrelevant. After all, transfer of investigation to a third party does not indicate that the transferee agency will inevitably, much less falsely, incriminate anyone in the commission of the crime. This is especially true when a transfer is ordered to an outside agency that is seen to be free of the influences, pressures, and pulls that are frequent when State Police investigates significant situations. In such instances, the party seeking transfer's trust in the outside agency is based on that agency's independence from such or similar other considerations. As a result, unless the Court detects any malice in the prayer for transfer, it must be regarded as an attempt solely to ensure that the truth is revealed. More than any other factor, the perceived independence of the transferee is the defining feature of a transfer. The ultimate goal of any investigation is to find the truth, and who better to achieve than an independent agency?

Provisions and Procedure for Transfer of Investigation:
There is no cast iron formula for directing a transfer of investigation to the Central Bureau of Investigation (“CBI”) or another competent authority. The Court makes a decision after considering the facts and circumstances of the case, such as prima facie evidence of an offence, the gravity of the offence, and the impact of the offence on society. Surreptitious manufacture, import distribution, and sale of prohibited items such as gutkha and other forms of chewable tobacco that affects people's health, particularly the young, and has inter-State ramifications is certainly a case that should be referred to a centralised agency like the CBI for investigation, especially when serious allegations of connivance are made.

The Hon'ble Apex Court has the power to transfer "any particular case or appeal" from one High Court to another, or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court, under Section 406 of the Code of Criminal Procedure, 1973 (“CrPC”). Despite the fact that the term "case" is not defined in the CrPC, it has been judicially defined as a judicial proceeding pending before a court of law for the purpose of determining an issue. The investigating officer can produce a final report, which could be a charge sheet or a closure report, once the investigation is completed. Once a report is submitted under Section 173 of the CrPC, a court of law has jurisdiction to take cognizance under Section 190(1)(b), among other things.

Latest Judgement:

For a more concrete understanding, let us now study the following case:

In the very recent Param Bir Singh S/o Hoshiyar Singh v. State of Maharashtra & Ors.1, the Hon’ble Apex Court while deciding a matter for investigation laid that after considering the materials on record, if the Court finds that such materials disclose a prima facie case, then the Court may make an order for calling for investigation by the CBI.

Facts of the case:
Former Mumbai Police Chief Param Bir Singh has filed to the Bombay High Court once more, claiming to be an informant "who has attempted to expose corruption in the most elevated public office" and seeking insurance at standard with an informant. Singh's appeal challenges two primary investigations launched by the Maharashtra government against him. According to the appeal, the orders dated April 1, 2021 and April 20, 2021, given by the State Home Ministry, were meant to target and bug him, and such acts by the State can act as a barrier for public servants to "make disclosures of corruption and other criminal acts by the high functionaries of the State machinery."

These investigations, according to the petitioner, Param Bir Singh, are a breach of Article 14 (equality before the law), Article 19 (1)(a) (right to freedom of speech and expression), and Article 21 (right to live with dignity) of the Indian Constitution. After that, Mumbai cops lodged a FIR against Singh and a number of other officers.

After hearing a slew of PILs, including one filed by Singh, the Bombay High Court, on April 5, granted directives for the CBI to conduct a preliminary investigation into the accusations levelled by Singh in his letter.

The question of law:
The complaint of Dr. Jaishri Laxmanrao Patil (“Dr. Patil”) was investigated to see if it appeared to be a case of cognizable offence. At this point, evaluating the authenticity and also correctness of the statements included in that isn't our job. Dr. Patil included a copy of Shri Param Bir Singh's letter to the Hon'ble Chief Minister with her complaint. The information provided therein reveals Shri Anil Deshmukh's commission of cognizable offences, which, in our opinion, should have been dealt with in the manner required by the CrPC. Whether or not an FIR should be registered immediately on the basis of it, or whether a preliminary investigation should be conducted first, is a question we want to explore after determining whether the current case deserves to be forwarded to the CBI.

The High Court, under Article 226 of the Constitution, and the Supreme Court, under Article 32 of the Constitution, have the authority to order the CBI to investigate any specific case or conduct an inquiry against a person. It can only do so if the Court has enough evidence to reach a prima facie conclusion that such an investigation is necessary. Certainly, such an investigation cannot be undertaken on a routine basis or simply because a party makes an allegation. If the Court determines, after reviewing the evidence on file, that such evidence reveal a prima facie case warranting CBI investigation, the Court can issue the requisite order.

In the current case, Dr. Patil had certainly presented her complaint to the Senior Police Inspector of the Malabar Hill Police Station on March21,2021; in any case, no action was taken, as the law would require, except than putting a section in the Internal Register. The Court has successfully underlined that the claims levelled by Shri Param Bir in his letter dated March 20,2021, which prompted Dr. Patil to file an objection with the Malabar Hill Police Station in Mumbai, are of legitimate nature and are directed at the most prominent functionary of the Maharashtra government in terms of police department operations. In fact, the problems have gotten to the point where locals' trust in the police department's operations is in jeopardy. If any of the claims are true, it will undoubtedly have a negative influence on citizens' trust in the state's police force. As a result, such complaints cannot be ignored and must be investigated in accordance with the law when they appear to show the commission of a cognizable offence. As a result, it is unquestionably a matter of the State machinery's legitimacy, which will be scrutinised when confronted with legal assumptions and when such grievances are lodged against high-ranking public officials. In these circumstances, the Court cannot just stand by and watch. There is undeniably a genuine public expectation of a free, reasonable, fair, and impartial request and investigation of such claims that have surfaced in public space. The need for an independent office to investigate such claims would undoubtedly be a matter of law and order. It is critical that an inquiry and probe be guided by an independent agency in order to instil public trust and defend citizens' Fundamental Rights, and for these reasons, the court believes that an autonomous test would achieve the goals of justice in the current circumstances.

Other judgements:
Other judgements in this regard would include the following:

  1. The Hon’ble Supreme Court on 19th August, 2020, in Rhea Chakraborty v. State of Bihar & Ors.2, illuminated on various crucial elementary concepts of criminal law including power to transfer investigation under Section 406 of CrPC, nature and scope of inquiry under Section 174 CrPC, territorial jurisdiction of police to investigate and power of a single Judge under Section 406 CrPC for the purpose of justice. The decision also shed light on the CBI's investigation authority.
  2. Below are the key takeaways from the decision:
    1. Section 406 CrPC pertains to transfer of cases or appeals only and not investigations;
    2. The scope of Section 174 CrPC is limited and is in the nature of an "inquiry" and not an "investigation";
    3. Registration of FIR is mandatory when information of a cognizable offence in received. Police cannot refrain from conducting investigation on a territorial ground. Moreover, in any offence of allegation of criminal breach of trust or misappropriation, the local court, where the offence was committed or any part of the property (involved in the offence) was received or retained or was required to be returned or accounted for, would be the place of trial; and
    4. There is no impediment for exercise of Article 142 when the Supreme Court is exercising lawful jurisdiction. Article 142 can be invoked to ensure public confidence in the investigation and for the purpose of rendering complete justice in a deserving case.
  3. Ram Chander Singh Sagar & Anr. v. State of Tamil Nadu3, wherein it was held that Section 406 CrPC pertains to a power to transfer a case or appeal from one High Court or a court subordinate to one High Court to another High Court or to a court subordinate thereto. It does not apply for transfer of investigation from one police station to another.
  4. The decision in Satvinder Kaur v. State (Govt of NCT of Delhi)4, wherein it was held that Section 178 CrPC, inter alia, provides for a place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas. As a result, it cannot be claimed that the police do not have territorial jurisdiction to investigate the crime at this stage.
  5. The court relied on K.V. Rajendran v. Superintendent of Police, CBCID, Chennai & Ors.5, wherein it was held that transfer of an investigation should only be done in rare and extraordinary circumstances in order to ensure total justice between the parties and to instil public confidence.
  6. Regarding the Hon’ble Supreme Court's power under Article 142, the court relied on Monica Kumar (Dr.) and Anr. v. State of Uttar Pradesh and Ors.6, wherein it was held that the court's power to deliver "complete justice" under Article 142 is of a completely different level and quality. The court also concluded that once it has custody of a cause or matter before it, it has the authority to issue any order or direction necessary to accomplish "complete justice" in the case.
  7. In E. Sivakumar v. Union of India7, the order dated 26.04.2018 in W.P.No.19335 of 2017 was challenged, and the investigation into the illegal manufacture and sale of Gutkha and Pan Masala containing Tobacco and/or Nicotine was transferred to the CBI. A perusal of the facts of the case would reveal that allegations have been made against the high ranking police officials of All India Service, which needs to be curbed. Investigation by a centralized agency like the CBI would be more comprehensive and cover all aspects of the illegal manufacture, import, supply, distribution and sale of banned chewable tobacco items, including the detection of all those involved in such illegal import, manufacture, supply, distribution and sale, as also the detection of corruption and complicity of public servants and/or Government servants. In this regard, the Hon’ble Supreme Court confirmed the order passed by the Division Bench of the Principal Seat of this Court for transfer of investigation to CBI. Accordingly, the investigation was transferred to the CBI.
  8. The Hon’ble Apex Court in Arnab Ranjan Goswami v. Union of India8 (W.P Crl 130 of 2020) interpreted the scope of Article 19 (1)(a) and held that it is no higher than a citizens right to speech and expression. The writ petition sought the quashing of allegations and FIRs filed against the Petitioner in various states, including Maharashtra. The Hon'ble Court stated that the Petitioner, as a citizen and a journalist, has the right to know about the affairs of government in the country, and that it is the journalist's primary responsibility to keep the public informed. As a result, his right is no higher than that of a citizen, and citizens cannot be claimed to be free if the news media is tethered to a single point of view. By citing the TT Antony case from Kerala, the Hon'ble Court ruled that exposing an individual to multiple proceedings, for the same offence, does not promote the legitimate state goal of prosecuting crime. As a result, after hearing the State's arguments, the Supreme Court decided to transfer the investigation to the CBI.
  9. Further, in Narmada Bai v. State of Gujarat , the Hon'ble Supreme Court concluded that entrusting the investigation to the CBI is preferable if the majesty of the rule of law is to be upheld and if the guilty are punished in line with the legislation given down, irrespective their status and authority which they may have enjoyed over the course of their employment.9

As the famous saying goes,
“Trial judge as the kingpin in administration of Justice..”

Because the magistrate has extensive powers, including the ability to check arbitrary arrests, police excesses, and facilitate a more incisive investigation into the discovery of truth, it is critical for a judge to never find himself in a situation where he is forced to make a grudging confession of acquitting a known criminal due to a lack of evidence. The CBI, as an anti-corruption agency, has jurisdiction over Central Government employees and Central Public Sector Undertakings. It has established separate wings to investigate traditional offences, such as the Special Crimes Wing, Economic Offenses Wing, Banks Securities & Frauds Cell, to investigate conventional offences owing to the professional manner in which it conducts investigation, its multi-layered supervision over the investigation of cases and it being a specialized agency which focuses only on investigation of crime, which is not burdened with other responsibilities like law and order, VIP security, election duty, etc.

  1. AIR 2021 BOM 516
  2. AIR 2020 SC 654
  3. AIR 1978 2 SCC 35
  4. AIR 1999 8 SCC 728
  5. AIR 2013 12 SCC 480
  6. AIR 2008 8 SCC 781
  7. AIR 2018 7 SCC 365
  8. AIR 2020 SC 450
  9. AIR 2011 5 SCC 79
Dated: June 8, 2021

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