“When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.“
Today, we saw the much awaited Judgement in Rhea Chakraborty’s case being pronounced by the Hon’ble Supreme Court. The law was already settled through previous pronouncements but still there was some curiosity in legal minds based on the sensationlization and politicization of case.
This post is in continuation of previous post where I argued that Why Supreme Court will not help Rhea Chakraborty and why it will dismiss the transfer petition and at the same time will uphold the CBI Investigation. You can read it here: https://thelawblog.in/2020/08/17/supreme-court-unlikely-to-help-rhea-chakraborty-understanding-the-role-of-courts-during-investigation/
Brief Background of the Case
A Transfer Petition was filed by Rhea Chakraborty under Section 406 of the Code of Criminal Procedure, 1973[i] (for short “CrPC before the Supreme Court with prayer for transfer of the FIR No. 241 of 2020 (dated 25.7.2020) under Sections 341, 342, 380, 406, 420, 306, 506 and 120B of the Indian Penal Code, 1860 (for short “IPC”) registered at the Rajeev Nagar Police Station, Patna and all consequential proceedings, from the jurisdiction of the Additional Chief Judicial Magistrate III, Patna Sadar, to the Additional Chief Metropolitan Magistrate, Bandra Mumbai.
The contention of the petitioner in this transfer petition was that the incidents alleged in the Complaint lodged by the Sushant’s father have taken place entirely within the jurisdiction of State of Maharashtra and therefore, the Complaint as received, should have been forwarded to the jurisdictional Police station at Bandra, Mumbai for conducting the investigation.
Another contention was that since the Bihar police lacked jurisdiction to investigate the allegations in the Complaint, the transfer of the investigation to the CBI on Bihar Government’s consent, would not amount to a lawful consent of the State government, under Section 6 of the Delhi Special Police Act, 1946 (for short “DSPE Act”)[ii].
According to her the proper procedure for Bihar Police would be to register a “Zero FIR”[iii] and then they should have transferred it to Mumbai police for investigation. She further contended that if registration of Complaint in another state is permitted, it will enable a person to choose the investigating authority and it will obstruct exercise of lawful jurisdiction by the local police. This will impact the country’s federal structure. Under the constitutional scheme, the States have exclusive power to investigate a crime and the crime investigation cannot be routinely transferred to the Central Agency. So ordinarily, the local police should conduct investigation into any reported crime and entrustment of the investigation to the CBI must be an exception to meet extraordinary exigencies.
Issues for Consideration
(a) Whether the Apex Court has power to transfer investigation (not case or appeal) under Section 406 of the CrPC[iv];
(b) Whether the proceeding under Section 174 CrPC[v] conducted by the Mumbai Police to inquire into the unnatural death, can be termed as an investigation;
(c) Whether it was within the jurisdiction of the Patna Police to register the FIR and commence investigation of the alleged incidents which took place in Mumbai? As a corollary, what is the status of the investigation by the CBI on the consent given by the Bihar government; and
(d) Whether this Court can issue direction for doing complete justice, in exercise of plenary power under Article 142 of Constitution[vi].
Transfer Power under Section 406 CrpC
Section 406 CrPC empowers the Supreme Court to transfer cases and appeals. The scope of exercise of this power is for securing the ends of justice. The precedents suggest that transfer plea under Section 406 CrPC were granted in cases where the Court believed that the trial may be prejudiced and fair and impartial proceedings cannot be carried on, if the trial continues.
However, transfer of investigation on the other hand was negated by this Court in the case of Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu[vii], where Justice V R Krishna Iyer, declared that:-
“The Code of Criminal Procedure clothes this Court with power under Section 406 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. But, it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court. There is as yet no case pending before any Court at the stage of investigation. If justice is denied there are other redresses, not under Section 406, though it is unfortunate that the petitioners have not chosen to move that court to be absolved from appearance until necessitated by the circumstances or the progress of the investigation. To come to this Court directly seeking an order of transfer is travelling along the wrong street.
So court concluded that only cases and appeals (not investigation) can be transferred. The ratio in Ram Chander Singh Sagar and Anr. (Supra) in Court’s view, was clearly applicable in this matter.
Scope of Inquest Proceedings under Section 174 and whether they can termed as Investigation
The proceeding under Section 174 CrPC is limited to the inquiry carried out by the police to find out the apparent cause of unnatural death. These are not in the nature of investigation, undertaken after filing of FIR under Section 154 CrPC[viii].
In the instant case, in Mumbai, no FIR has been registered as yet. The Mumbai Police has neither considered the matter under Section 175(2) CrPC[ix], suspecting commission of a cognizable offence nor proceeded for registration of FIR under Section 154 or referred the matter under Section 157 CrPC[x], to the nearest magistrate having jurisdiction.
At this point decision of Apex Court in Manoj K Sharma vs. State of Chhatisgarh[xi] needs to be considered. The court held that:
Proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Neither in practice nor in law it is necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. The procedure under Section 174 is for the purpose of discovering the cause of death, and the evidence taken is very short. Sections 174 and 175 of the Code afford a complete Code in itself for the purpose of “inquiries” in cases of accidental or suspicious deaths and are entirely distinct from the “investigation” under Section 157 of the Code.
So in view of this decision, court was of the opinion that the investigation on an inquiry under Section 174 of the Code is distinct from the investigation as contemplated under Section 154 of the Code relating to commission of a cognizable offence. In the present case, the Mumbai Police has done nothing except attempting to stretch the purview of Section 174 without drawing up any FIR. They are yet to register an FIR. Nor they have made a suitable determination, in terms of Section 175(2) CrPC. So there is no question of parallel investigation being carried out by the Mumbai Police.
Validity of FIR registered by Bihar Police
Registration of FIR is mandatory when information of any cognizable offence is received by the police. Precedents as well Section 156 CrPC[xii] suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case.[xiii]
In Satvinder Kaur vs. State (Govt of NCT of Delhi)[xiv], court ruled that:
A reading of the Sections 177[xv] and 178 CrPC[xvi] would make it clear that Section 177 provides for “ordinary” place of enquiry or trial and Section 178, inter alia, provides for 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. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime.”
While specifically ruling on the point of jurisdiction in case of Criminal Breach of Trust[xvii] and Misappropriation[xviii], the Court cited case of Asit Bhattacharjee vs. Hanuman Prasad Ojha[xix], where it was observed that:
Section 181[xx] provides for place of trial in case of certain offences. Sub-section (4) of Section 181 provides that such an offence may be inquired into or tried by the court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure[xxi] will have the jurisdiction to make investigation.”
Further in Rasiklala Dalpatram Thakkar Vs. State of Gujarat[xxii], the Supreme Court made it very clear that a police officer cannot refrain from investigating a matter on territorial ground and the issue can be decided after conclusion of the investigation.
Moreover based on the ruling in Lee Kun Hee, President, Samsung Corporation, South Korea and Others Vs. State of Uttar Pradesh and Ors.[xxiii] court held that a perusal of the Section 181(4) of CrPC leaves no room for any doubt, that in offences of the nature as are subject-matter of consideration in the present controversy, the court within whose local jurisdiction, the whole or a part of the consideration “… were required to be returned or accounted for.…” would have jurisdiction in the matter.”
So the court held that allegations relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), prima facie indicates the lawful jurisdiction of the Patna police.
Investigation Entrustment to CBI
(For detailed understanding of CBI Functioning and when Courts can transfer investigation, you can read here- https://thelawblog.in/2020/07/19/cbi-at-work-how-cbi-takes-up-investigation/)
Transfer of investigation to the CBI cannot be a routine occurrence but should be in exceptional circumstances and it is also very much true that CBI cannot conduct any investigation without the consent of the concerned state as mandated under Section 6 of DPSE Act[xxiv], but at the same time it has to be kept in mind that the powers of the Constitutional Courts are not fettered by the statutory restriction of the DSPE Act. So it can be said that Section 6 of the DPSE Act does not apply when the Court gives a direction to the CBI to conduct an investigation.[xxv]
The Constitutional Bench (five Judges) judgment of the Hon’ble Supreme Court in the case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others[xxvi], held that notwithstanding the statutory restrictions in the Delhi Special Police Establishment Act, the High Court under Article 226[xxvii] and the Supreme Court under Article 32[xxviii], can direct any matter to be investigated by CBI for fair and impartial enquiry without the consent of state and central government.
In K.V. Rajendran vs. Superintendent of Police, CBCID, Chennai & Ors.[xxix], the 3 judges Bench held that transfer of investigation must be in rare and exceptional cases in order to do complete justice between the parties and to instil straight confidence in the public mind.
Recently it was reiterated by Apex Court in Arnab Ranjan Goswami vs. Union of India[xxx] that to instill “public confidence in the impartial working of the State agencies” the investigation can be given in the hands of an impartial agency.
It is also the consistent view of the Court that it is not for the accused to choose the investigating agency. So considering the apprehension voiced by the stakeholders of unfair investigation, the Court in order to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments directed CBI Investigation under its Inherent Powers for doing complete justice.
Since the investigation has been transferred to CBI by the Supreme Court and earlier by Bihar Government as well, for the purpose of avoiding uncertainty and confusion in case Mumbai Police registers an FIR after finishing inquiry under Section 175(2), the court said it would be appropriate if the latter case too gets investigated by the same agency.
Having regard to the earlier precedents and statutory provisions, Court held that the Patna Police committed no illegality in registering the Complaint. It also held that looking at the nature of the allegations in the Complaint which also relate to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appeared to be in order. At the stage of investigation, Police is not required to transfer the FIR. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI was held to be lawful.
[vii] (1978) 2 SCC 35.
[xi] (2016) 9 SCC 1.
[xiii] Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1.
[xiv] (1999) 8 SCC 728.
[xix] (2007) 5 SCC 786.
[xxii] (2010) 1 SCC 1.
[xxiii] (2012) 3 SCC 132.
[xxv] State of West Bengal Vs. Sampat Lal (1985) 1 SCC 317.
[xxvi] (2010) 3 SCC 571.
[xxix] (2013) 12 SCC 480.
[xxx] 2020 SCC Online SC 462.
ABOUT THE AUTHOR
Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at firstname.lastname@example.org.