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Rajendra Vs. State of Maharashtra and Ors. - (High Court of Bombay) (24 Aug 2017)

Power to transfer investigation from one agency to another has to be exercised sparingly

MANU/MH/1913/2017

Criminal

By present writ petition, the Petitioner has, prayed for handing over of investigation of his complaint submitted before the Respondent No. 1 to the Central Bureau of Investigation (CBI) or to any other independent investigating agency, with a further prayer for direction for registration of First Information Report (FIR) on the basis of the said complaint. It is the contention of Petitioner that, the Petitioner has no faith in the Respondent No. 1, the investigating agency in the present case. Further, it is submitted that, the actions of the Respondent No. 1 have led to an apprehension in the mind of the Petitioner that, the entire investigation has been unfair and that, therefore, it is necessary that the case needs to be transferred to an independent investigating agency.

The Supreme Court in case of Dharam Pal v. State of Haryana, has held in the context of power of Constitutional Courts to transfer and/or to order fresh investigation or re-investigation, when fair trial may be quite difficult unless there is a fair investigation. Although, Supreme Court in said decision has cautioned that the power to transfer investigation from one agency to another has to be exercised sparingly, it has been emphasized that the sanctity and purity of genuine investigation has to be ensured. In said decision, the Supreme Court transferred the investigation to CBI even when the trial had commenced and some witnesses had been examined.

In the criminal justice system, fair and impartial and truthful investigation is of greatest significance so that, faith of the citizen in the system is reinforced. A fair trial also depends on the manner of investigation. If there is any indication of either callousness or highhandedness in functioning of the Investigating Agency, the very root of the criminal justice system is adversely affected. To set the criminal law in motion to facilitate the settlement of private scores or civil disputes, would amount to abuse of power by the competent authority. Similarly, failure to set the criminal law in motion in genuine cases to facilitate the settlement of private scores or civil disputes, amounts to abdication of function by the competent authority. The Police Station cannot be a place to be used where the private disputes between the parties can be settled by the Police Officers by their acts of commission or omission and under the threat of putting into motion criminal law on the basis of the complaint made by either party to the dispute.

In the present case, right from the first instance, when Respondent Nos. 4 and 7 submitted three complaints, making more and more grave allegations against the Petitioner till the stage of inordinate delay in registering FIR on the complaint of the Petitioner against the said Respondents, the Respondent No. 1 - Investigating Authority has not acted in a fair, truthful and impartial manner. The Investigating Authority is expected to professionally conduct investigation with promptitude and without taking sides. In the face of such conduct of Respondent No. 1, the investigation does not inspire confidence and the entire process is vitiated.

The investigation in respect of both the first information reports in the present case wherein Respondent No. 4 is the complainant and FIR wherein the Petitioner is the complainant ought to be transferred to an independent investigating agency. Ends of justice would be met, if the said two FIRs and consequent investigation are transferred to the Criminal Investigation Department (CID) to be investigated by an Officer not less than the rank of Deputy Superintendent of Police. Accordingly, said two FIRs are directed to be transferred to the CID. The officer of the CID so deputed shall conduct further investigation into both the matters and file a report before the trial Court at the earliest, so as to ensure fair trial for both sets of complaints in the present matter.

Relevant : Dharam Pal vs. State of Haryana and Ors. MANU/SC/0118/2016; Afak Shabbir Khan vs. The State of Maharashtra & Anr. MANU/MH/1467/2012

Tags : CASE   INVESTIGATION   TRANSFER  

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