REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 13 OF 2023

Anant Thanur Karmuse …Appellant(s)

Versus

The State of Maharashtra & Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1.Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Judicature at Bombay dated

26.04.2022 passed in Writ Petition No. 411 of 2021 by which the High

Court has dismissed the said writ petition preferred by the appellant

herein – the victim seeking transfer of the investigation to Central Bureau

of Investigation or to any other agency to investigate / re-investigate the

FIR Nos. 119 of 2020 and 120 of 2020 registered at Vartak Nagar Police

Station, Thane, the original writ petitioner – the victim has preferred the

present appeal.

2.The facts leading to the present appeal and as per the case on

behalf of the appellant in nutshell are as under:-

1 2023 INSC 168

2.1That the appellant is a Civil Engineer, working as a consultant,

shared on his Facebook account on 05.04.2020, a viral picture of one

Mr. Jitendra Awhad, the then sitting Cabinet Minister of the State of

Maharashtra (who is subsequently arrayed as accused No. 13 after the

High Court intervened), criticizing his act of ridiculing the Hon’ble Prime

Minister of India. According to the appellant, at around 11.50 pm at night

on 05.04.2020, four Policemen, two dressed in Civilian Dress and other

two in uniform came to his residence and forcibly took him to the

Bungalow of the said Minister. According to the appellant, thereafter, the

Minister instructed his men to beat him and make him apologies for

circulating the said viral picture of the Minister. The Minister threatened

him to delete the post immediately. Thereafter, an ally of the Minister

called the appellant on his number as he left his phone in his house and

told his wife to delete the controversial post. According to the appellant,

he was mercilessly and ruthlessly beaten up by the police personnel

present at the premises of the Minister.

2.2That the appellant went to the Police Station and he got the

information that an FIR bearing No. 119 of 2020 under Section 292 of

the Indian Penal Code (IPC) and Section 66(E) of the Information and

Technology Act has been registered against him by the Police on the

complaint of one Mr. Hitesh Wani, accused No. 3 in the present case

and close ally of the Minister with sole purpose to threaten him if in case

he decides to file a complaint about the said incident. It is the case on

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behalf of the appellant that thereafter the appellant without fear narrated

the entire incident along with the specific allegations against the Minister

and the other police officials and registered a complaint against the

Minister and his men. However, the names of the Minister, against whom

the specific allegations were made and his men were not mentioned in

the FIR bearing No. 120 of 2020 dated 06.04.2020 for the offences

under Sections 365, 143, 144, 147, 149, 324 and 506(2) in the Vartak

Nagar Police Station, Thane. It is the case on behalf of the appellant

that the concerned Minister was not named in the FIR as he was the

sitting Cabinet Minister in the government of the State.

2.3That thereafter apprehending and alleging the bias and alleging

that the entire investigation has been conducted in sham and casual

manner, and nothing significant was done by the Police, the appellant

approached the High Court by way of present writ petition praying for

transfer of the investigation of the aforesaid FIRs to the Central Bureau

of Investigation (CBI), Mumbai or any other agency.

It appears that thereafter various interim orders came to be passed

by the High Court in the writ petition and the investigating agency of the

State was compelled to carry out the investigation. The Police filed the

chargesheet initially without naming the concerned Minister namely,

Mr. Jitendra Awhad as accused. However, thereafter and during the

pendency of the writ petition before the High Court and in view of the

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constant monitoring of the investigation by the High Court, the Minister

Mr. Jitendra Awhad was added as accused two years after the said

incident. That thereafter during the pendency of the writ petition, the

learned Trial Court framed the charges against the accused on the basis

of the chargesheets already filed, which according to the appellant was

for the lesser offences than the actually committed, like, Kidnapping,

abducting and causing grievous hurt. That thereafter by the impugned

judgment and order, the High Court has dismissed the said writ petition

seeking transfer of the investigation to the CBI and/or any other agency

by observing that after the investigation, the chargesheet is filed and the

High Court prima facie opined that by filing the chargesheet /

supplementary chargesheet, the investigating agency has conducted the

investigation from all angles and after considering the medical report and

even after collecting the CRD of the Mobile Phone and that once the

charges have been framed by the Magistrate / Trial Court and therefore,

it can be said that the trial has begun and therefore, thereafter, re-

investigation/further investigation is not permissible. By the impugned

judgment and order, the High Court has dismissed the said writ petition.

2.4Feeling aggrieved and dissatisfied with the impugned judgment

and order, the original writ petitioner – the victim has preferred the

present appeal.

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3.Shri Mahesh Jethmalani, learned senior counsel appearing on

behalf of the appellant has vehemently submitted that the entire

investigation was conducted by the investigating agency of the State in a

sham and casual manner because one of the accused was the

influential Minister of the State.

3.1It is submitted that despite the fact that the name of Mr. Jitendra

Awhad, Minister and his other men were disclosed in the FIR and a clear

case of kidnapping and causing grievous hurt was alleged, no FIR was

lodged against the Minister, Mr. Jitendra Awhad and his other men. It is

submitted that only after various orders were passed by the High Court

in the pending writ petition and the Hon’ble High Court was monitoring

the investigation, chargesheet / supplementary chargesheet came to be

filed and Mr. Jitendra Awhad was arrayed as an accused in the

supplementary chargesheet after a period of two years of the incident.

3.2It is further submitted that even the chargesheet is filed with the

lesser offences, like for the offences under Sections 324 and 365 and

other lesser offences only. It is submitted that despite a clear case is

made out for the offence under Section 326 (grievous hurt), which is

established from the photographs and a clear case of kidnapping for the

offence under Section 367, the chargesheet has not been filed for the

offences under Section 326 read with Section 367 IPC.

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3.3It is further submitted that even the relevant evidence in the form of

CDR of the mobile of the appellant as well as that of the concerned

accused have not been collected. It is submitted that even the CCTV

footage has also not been collected, which goes to the root of the

investigation and the allegations against the accused persons.

3.4It is further submitted that as observed and held by this Court in

the case of Dharam Pal Vs. State of Haryana and Ors., (2016) 4 SCC

160 (para 25), the Constitutional Courts are envisaged with the power to

order fresh, de novo or re-investigation and as observed and held the

commencement of a trial and examination of some witnesses cannot be

an absolute impediment for exercising the said constitutional power,

which is meant to ensure a fair and just investigation.

3.5It is further submitted by Shri Jethmalani, learned senior counsel

appearing on behalf of the appellant that as observed and held by this

Court in the case of Bharati Tamang Vs. Union of India and Ors.,

(2013) 15 SCC 578, in case of deficient / unsatisfactory investigation, it

is the duty of the Courts to ensure effective conduct of prosecution and

the Courts have powers to direct re-investigation in exceptional

circumstances in case it warrants due to deficient / unsatisfactory

investigation.

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3.6It is submitted that as observed and held in the said decision if

deficiency in investigation or prosecution is visible or can be perceived

by lifting the veil which try to hide the realities or covering the obvious

deficiency, Courts have to deal with the same with an iron hand

appropriately within the framework of law. It is submitted that it is further

observed that it is the duty of the Court to ensure that full and material

facts are brought on record so that there might not be miscarriage of

justice. He has relied upon the observations made by this Court in

paragraph 41 of the said decision.

3.7It is further submitted by Shri Jethmalani, learned senior counsel

appearing on behalf of the appellant that even the State has now in the

counter affidavit specifically admitted that some further investigation is

necessary/required on certain relevant and material aspects, in the

interest of justice under Section 173(8) Cr.P.C. It is submitted that now

the State has specifically admitted the lapse in the investigation on

certain material aspects and according to the State now, further

investigation is needed on the relevant aspects mentioned in paragraph

4 of the counter affidavit before this Court. It is submitted that therefore

also now the State / investigating agency of the State may be permitted

to conduct the further investigation in exercise of the constitutional

powers to do the complete justice to the victim in furtherance of the

administration of criminal justice.

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4.Shri Tushar Mehta, learned Solicitor General appearing on behalf

of the State has pointed out certain lapses / lacunae in the investigation

earlier conducted by the State / investigating agency and highlighted the

lacunae from paragraph 4 of the counter affidavit and has fairly

conceded and even so stated in the counter affidavit that a further

investigation in exercise of powers under Section 173(8) Cr.P.C. is

needed / required.

5.Shri Shekhar Naphade and Dr. Abhishek Manu Singhvi, learned

Senior Advocates have appeared on behalf of the respondent Nos. 3

and 5 and opposed the present appeal.

5.1It is vehemently submitted by the learned senior counsel appearing

on behalf of the respective contesting respondent Nos. 3 and 5 that as

such no case is made out for transfer of the investigation to the CBI,

more particularly, when, now, not only the investigation is concluded and

the chargesheets have been filed but even thereafter the charges have

also been framed by the Trial Court. It is submitted that therefore on

framing of the charges, it can be said that the trial has begun and

therefore, the case may not be transferred to the CBI as prayed.

5.2It is further submitted that even otherwise the allegation of

grievous injuries is raised for the first time. It is submitted that as such

the allegation of grievous injuries alleged to have been caused to the

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appellant has not been supported by any record or document. It is

submitted that the appellant never alleged that he suffered a fracture due

to injuries caused upon him.

5.3It is submitted that the FIR registered by the appellant on

06.04.2020 is completely silent about the injuries being grievous and any

fracture being caused. It is submitted that the chargesheet filed by the

Police also states that the appellant was examined at Shivaji Hospital

and the medical report was received intimating that the injuries caused

are simple in nature. It is submitted that even the additional statement

given by the appellant to the Police on 10.04.2020 is also silent on the

aspect of any fracture being caused or the injuries being grievous in

nature.

5.4It is further submitted that even the Hon’ble High Court in paras 16,

17 and 20 has categorically noted the fact that the appellant failed to

produce any medical certificate or document evidencing any fracture or

injuries being grievous in nature and ruled that the injuries are simple in

nature, which is evident from the medical report filed with the charge

sheet. It is submitted that, therefore, there is no substance in the

allegation that there are any lacunae on the part of the investing agency

in indicating a higher offence of grievous hurt / injuries.

5.5It is further submitted that even so far as the recovery of CCTV

footage is concerned, the same has already been recovered, ceased

and in the custody of the learned Magistrate.

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5.6It is vehemently submitted by the learned senior counsel appearing

on behalf of the respective private respondent Nos. 3 and 5 – original

accused that once the chargesheet has been filed, charges are framed

and the trial has commenced, further investigation cannot be permitted.

It is submitted that in the present case, the first chargesheet has been

filed on 07.12.2020 and thereafter supplementary chargesheets have

been filed on 28.7.2021 and 14.10.2021 in FIR No. 120/2020. It is

submitted that even the chargesheet in FIR No. 119/2020 has also been

submitted to the concerned Magistrate on 13.09.2022. It is submitted

that in the present case, the charges have been framed by the

concerned Court in FIR No. 120/2020 against the accused Nos. 1 to 12

on 20.08.2021 and on 28.11.2022 against accused No. 13 and, thus, the

trial has commenced. It is submitted that since the investigation is

complete, chargesheets have been filed and charges have been framed,

seeking re-investigation by the appellant is wholly impermissible under

the law. It is submitted that upon framing of charges, the operation of

Section 173(8) ceases to operate since the trial has commenced as

observed and held by this Court in Vinubhai Haribhai Malviya and Ors.

Vs. State of Gujarat and Anr., (2019) 17 SCC 1 (para 42).

5.7It is submitted that even as observed and held by this Court in the

case of Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346 that

from a plain reading of sub-section (2) and sub-section (8) of Section

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173, it is evident that even after submission of Police report under sub-

section (2) on completion of investigation, the Police has a right to

“further” investigation under sub-section (8) of Section 173 but not “fresh

investigation” or “re-investigation”.

5.8It is further submitted that so far as the prayer of the appellant to

transfer the investigation to CBI is concerned, as observed and held by

this Court in catena of decisions, transfer of investigation to C.B.I. is to

be done only in rarest of rare cases. Reliance is placed upon the

decision of this Court in the case of Himanshu Kumar and Ors. Vs.

State of Chhattisgarh and Ors., 2022 SCC Online SC 884 (para 44

onwards). It is submitted that as observed and held by this Court in the

case of State of West Bengal and Ors. Vs. Committee for Protection

of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571, the

power to transfer investigation must be exercised sparingly, cautiously

and in exceptional situations. It is submitted that in the present case as

on the basis of the chargesheet, the Trial Court has framed the charges,

no exceptional case is made out to transfer the investigation to the C.B.I.

now.

5.9Now, so far as the change in its stand by the State, now, so taken

in the counter affidavit filed before this Hon’ble Court is concerned, it is

submitted that as such before the Hon’ble High Court, the State had

defended the investigation throughout. It is submitted that just because

the political dispensation in the State has changed, now, the State has

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filed an affidavit before this Hon’ble Court seeking further investigation in

the matter without any substantial evidence and as such the same is

impermissible in law. It is submitted that this Hon’ble Court has time and

again held that the Governments change but the State remains the

same. Reliance is placed upon the decisions of this Court in the case of

State of Karnataka and Anr. Vs. All India Manufacturers

Organisation and Ors., (2006) 4 SCC 683 (para 57); State of Tamil

Nadu and Ors. Vs. K. Shyam Sunder and Ors., (2011) 8 SCC 737

(para 35) and Jal Mahal Resorts Private Limited Vs. K.P. Sharma and

Ors., (2014) 8 SCC 804 (para 89).

5.10Now, so far as the chart filed in the affidavit of the State wherein,

the State has mentioned previous cases registered against accused No.

13 is concerned, it is submitted that the State is trying to prejudice this

Hon’ble court as the correct status of those cases have not been

presented before this Court by the State. It is submitted that out of the

said 24 cases, 18 cases have either been withdrawn by the State or

disposed of by the respective learned Courts. It is further submitted that

in a case filed by a lady, accused No. 13 has been granted anticipatory

bail by the learned Court and the lady who registered the FIR against

accused No. 13 is herself facing an FIR under IPC and POCSO Act. It is

submitted that therefore the allegations made in the counter filed by the

State mentioning the previous cases registered against accused No. 13

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is nothing but a political vendetta and it is requested not to consider the

same while considering the issue in the present case.

5.11Making above submissions, it is prayed to dismiss the present

appeal.

6.Heard the learned counsel appearing for the respective parties at

length.

7.By the impugned judgment and order, the High Court has refused

the prayer made on behalf of the appellant to transfer the investigation to

CBI and also refused the prayer for further investigation /re-investigation

of FIR No. 120 of 2020 on merits as well as mainly on the ground that

once the chargesheet is filed after investigation and the charges are

framed, the Magistrate has no jurisdiction to order further investigation /

re-investigation / de novo investigation.

7.1Therefore, the short question, which is posed for the consideration

of this Court is:

“Whether in the facts and circumstances of the case, the High

Court is justified in denying the relief of transfer of the investigation

to CBI and refusing to order further investigation / re-investigation /

de novo investigation?”

7.2While considering the aforesaid issue and appreciating the above

submissions made on behalf of the respective parties, few decisions of

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this Court on the power of the Courts to transfer the investigation to

another agency like CBI and the powers of the constitutional courts to

order further investigation / re-investigation / de novo investigation are

required to be referred to.

7.3In the case of Himanshu Kumar and Ors. (supra), this Court had

occasion to consider the power of the Court to transfer investigation to

any other independent agency. After taking into consideration the

catena of judgments on the point, it is reiterated that investigation may

be transferred to the CBI only in “rare and exceptional cases”. In

paragraphs 44 to 53, it is observed and held as under:-

“44. It is now settled law that if a citizen, who is a de

facto complainant in a criminal case alleging commission of

cognizable offence affecting violation of his legal or fundamental

rights against high Government officials or influential persons,

prays before a Court for a direction of investigation of the said

alleged offence by the CBI, such prayer should not be granted on

mere asking. A Constitution Bench of this Court, in the case of

the State of West Bengal v. Committee for Protection of Democratic

Rights, West Bengal, reported in (2010) 3 SCC 571, has made the

following observations pointing out the situations where the prayer

for investigation by the CBI should be allowed:

“70.… In so far as the question of issuing a direction

to CBI to conduct investigation in a case is

concerned, although no inflexible guidelines can be

laid down to decide whether or not such powers

should be exercised, but time and again it has been

reiterated that such an order is not to be passed as a

matter of routine or merely because a party has

levelled some allegations against the local

police. This extraordinary power must be

exercised sparingly, cautiously and in exceptional

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situations where it becomes necessary to provide

credibility and instil confidence in investigations

or where the incident may have national and

international ramifications 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.”

(emphasis supplied)

45. In the above decision, it was also pointed out that the

same court in Secretary, Minor Irrigation & Rural Engineering

Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, had said

that an order directing an enquiry by the CBI should be passed only

when the High Court, after considering the material on record,

comes to the conclusion that such material does disclose a prima

facie case calling for an investigation by the CBI or any other

similar agency.

46. In an appropriate case when the Court feels that the

investigation by the police authorities is not in a proper direction,

and in order to do complete justice in the case and if high police

officials are involved in the alleged crime, the Court may be justified

in such circumstances to handover the investigation to an

independent agency like the CBI. By now it is well-settled that even

after the filing of the charge sheet the court is empowered in an

appropriate case to handover the investigation to an independent

agency like the CBI.

47. The extraordinary power of the Constitutional Courts

under Articles 32 and 226 respectively of the Constitution of

India qua the issuance of directions to the CBI to conduct

investigation must be exercised with great caution as underlined by

this Court in the case of Committee for Protection of Democratic

Rights, West Bengal (supra) as adverted to herein above,

observing that although no inflexible guidelines can be laid down in

this regard, yet it was highlighted that such an order cannot be

passed as a matter of routine or merely because the parties have

levelled some allegations against the local police and can be

15

invoked in exceptional situations where it becomes necessary to

provide credibility and instill confidence in the investigation or

where the incident may have national or international ramifications

or where such an order may be necessary for doing complete

justice and for enforcing the fundamental rights. We are conscious

of the fact that though a satisfaction of want of proper, fair, impartial

and effective investigation eroding its credence and reliability is the

precondition for a direction for further investigation or re-

investigation, submission of the charge sheet ipso facto or the

pendency of the trial can, by no means, be a prohibitive

impediment. The contextual facts and the attendant circumstances

have to be singularly evaluated and analyzed to decide the

needfulness of further investigation or re-investigation to unravel

the truth and mete out justice to the parties. The prime concern and

the endeavour of the court of law should be to secure justice on the

basis of true facts which ought to be unearthed through a

committed, resolved and a competent investigating agency.

48. The above principle has been reiterated in K.V.

Rajendran v. Superintendent of Police, CBCID South Zone,

Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for a

three-Judge Bench of this Court held:

“13. …This Court has time and again dealt with the

issue under what circumstances the investigation can

be transferred from the State investigating agency to

any other independent investigating agency like CBI.

It has been held that the power of transferring such

investigation must be in rare and exceptional cases

where the court finds it necessary in order to do

justice between the parties and to instil confidence in

the public mind, or where investigation by the State

police lacks credibility and it is necessary for having

“a fair, honest and complete investigation”, and

particularly, when it is imperative to retain public

confidence in the impartial working of the State

agencies. …”

49. Elaborating on this principle, this Court further observed:

“17. … the Court could exercise its constitutional

powers for transferring an investigation from the State

investigating agency to any other independent

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investigating agency like CBI only in rare and

exceptional cases. Such as where high officials of

State authorities are involved, or the accusation itself

is against the top officials of the investigating agency

thereby allowing them to influence the investigation,

and further that it is so necessary to do justice and to

instil confidence in the investigation or where the

investigation is prima facie found to be

tainted/biased.”

50. The Court reiterated that an investigation may be transferred to

the CBI only in “rare and exceptional cases”. One factor that courts

may consider is that such transfer is “imperative” to retain “public

confidence in the impartial working of the State agencies.” This

observation must be read with the observations made by the

Constitution Bench in the case of Committee for Protection of

Democratic Rights, West Bengal (supra), that mere allegations

against the police do not constitute a sufficient basis to transfer the

investigation.

51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of

us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this

Court (Dr. D.Y. Chandrachud, J. dissenting) noted the dictum in a

line of precedents laying down the principle that the accused “does

not have a say in the matter of appointment of investigating

agency”. In reiterating this principle, this Court relied upon its earlier

decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC

79, Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1, E.

Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat

Centre v. State of Kerala, (2008) 3 SCC 542. This Court observed:

“30…the consistent view of this Court is that the

accused cannot ask for changing the investigating

agency or to do investigation in a particular manner

including for court-monitored investigation.”

52. It has been held by this Court in CBI v. Rajesh Gandhi,

1997 Cri LJ 63, that no one can insist that an offence be

investigated by a particular agency. We fully agree with the view in

the aforesaid decision. An aggrieved person can only claim that the

offence he alleges be investigated properly, but he has no right to

claim that it be investigated by any particular agency of his choice.

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53. The principle of law that emerges from the precedents of

this Court is that the power to transfer an investigation must be

used “sparingly” and only “in exceptional circumstances”. In

assessing the plea urged by the petitioner that the investigation

must be transferred to the CBI, we are guided by the parameters

laid down by this Court for the exercise of that extraordinary power.”

7.4Bearing in mind the position of law as discussed above and, in the

facts, and circumstances of the case, we are of the opinion that the High

Court has not committed any error in refusing to transfer the

investigation to CBI. Even the learned counsel appearing on behalf of

the appellant has not vehemently pressed such a prayer. We are in

complete agreement with the view taken by the High Court insofar as

refusing to transfer the investigation to CBI is concerned.

8.Now, so far as the power of the Constitutional Courts to order

further investigation / re-investigation / de novo investigation even after

the chargesheet is filed and charges are framed is concerned, the

following decisions are required to be referred to:-

8.1In the case of Bharati Tamang (supra), after taking into

consideration the decisions of this Court in the case of Babubhai Vs.

State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the

subsequent decision of this Court in the case of Ram Jethmalani Vs.

Union of India (2011) 8 SCC 1 and other decision on the point,

ultimately the principles, which are culled out are as under:-

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“41. From the various decisions relied upon by the petitioner

counsel as well as by respondents' counsel, the following principles

can be culled out.

41.1. The test of admissibility of evidence lies in its

relevancy.

41.2. Unless there is an express or implied constitutional

prohibition or other law, evidence placed as a result of even an

illegal search or seizure is not liable to be shut out.

41.3. If deficiency in investigation or prosecution is visible or

can be perceived by lifting the veil which try to hide the realities or

covering the obvious deficiency, Courts have to deal with the same

with an iron hand appropriately within the framework of law.

41.4. It is as much the duty of the prosecutor as of the Court

to ensure that full and material facts are brought on record so that

there might not be miscarriage of justice.

41.5. In order to ensure that the criminal prosecution is

carried on without any deficiency, in appropriate cases this Court

can even constitute Special Investigation Team and also give

appropriate directions to the Central and State Governments and

other authorities to give all required assistance to such specially

constituted investigating team in order to book the real culprits and

for effective conduct of the prosecution.

41.6. While entrusting the criminal prosecution with other

instrumentalities of State or by constituting a Special Investigation

Team, the High Court or this Court can also monitor such

investigation in order to ensure proper conduct of the prosecution.

41.7. In appropriate cases even if the charge-sheet is filed it

is open for this Court or even for the High Court to direct

investigation of the case to be handed over to CBI or to any other

independent agency in order to do complete justice.

41.8. In exceptional circumstances the Court in order to

prevent miscarriage of criminal justice and if considers necessary

may direct for investigation de novo.”

8.2In the case of Dharam Pal (supra), after taking into consideration

the catena of decisions on the point, it is observed and held that the

constitutional courts can direct for further investigation or investigation by

some other investigating agency. It is observed that the purpose is, there

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has to be a fair investigation and a fair trial. It is observed that the fair

trial may be quite difficult unless there is a fair investigation. It is further

observed and held that the power to order fresh, de novo or re-

investigation being vested with the constitutional courts, the

commencement of a trial and examination of some witnesses cannot be

an absolute impediment for exercising the said constitutional power

which is meant to ensure a fair and just investigation. While observing

and holding so, in paragraphs 24 and 25, it is observed and held s

under:-

“24. Be it noted here that the constitutional courts can direct

for further investigation or investigation by some other investigating

agency. The purpose is, there has to be a fair investigation and a

fair trial. The fair trial may be quite difficult unless there is a fair

investigation. We are absolutely conscious that direction for further

investigation by another agency has to be very sparingly issued but

the facts depicted in this case compel us to exercise the said

power. We are disposed to think that purpose of justice commands

that the cause of the victim, the husband of the deceased, deserves

to be answered so that miscarriage of justice is avoided. Therefore,

in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de

novo or reinvestigation being vested with the constitutional courts,

the commencement of a trial and examination of some witnesses

cannot be an absolute impediment for exercising the said

constitutional power which is meant to ensure a fair and just

investigation. It can never be forgotten that as the great ocean has

only one test, the test of salt, so does justice has one flavour, the

flavour of answering to the distress of the people without any

discrimination. We may hasten to add that the democratic set-up

has the potentiality of ruination if a citizen feels, the truth uttered by

a poor man is seldom listened to. Not for nothing it has been said

that sun rises and sun sets, light and darkness, winter and spring

come and go, even the course of time is playful but truth remains

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and sparkles when justice is done. It is the bounden duty of a court

of law to uphold the truth and truth means absence of deceit,

absence of fraud and in a criminal investigation a real and fair

investigation, not an investigation that reveals itself as a sham one.

It is not acceptable. It has to be kept uppermost in mind that

impartial and truthful investigation is imperative. If there is

indentation or concavity in the investigation, can the “faith” in

investigation be regarded as the gospel truth? Will it have the

sanctity or the purity of a genuine investigation? If a grave

suspicion arises with regard to the investigation, should a

constitutional court close its hands and accept the proposition that

as the trial has commenced, the matter is beyond it? That is the

“tour de force” of the prosecution and if we allow ourselves to say

so it has become “idée fixe” but in our view the imperium of the

constitutional courts cannot be stifled or smothered by bon mot or

polemic. Of course, the suspicion must have some sort of base and

foundation and not a figment of one's wild imagination. One may

think an impartial investigation would be a nostrum but not doing so

would be like playing possum. As has been stated earlier, facts are

self-evident and the grieved protagonist, a person belonging to the

lower strata. He should not harbour the feeling that he is an “orphan

under law”.”

9.Now, so far as the reliance placed upon the decision of this Court

in the case of Vinubhai Haribhai Malviya and Ors. (supra), relied upon

on behalf of the respondent – accused is concerned, it is required to be

noted that in the said decision, this Court was considering the powers of

the Magistrate. Even in the said decision, it is observed and held that

there is no good reason given by the Court as to why a Magistrate's

powers to order further investigation would suddenly cease upon

process being issued. It is further observed that power of the police to

further investigate the offence continues right till the stage the trial

commences. It is further observed that Article 21 of the Constitution

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demands no less than a fair and just investigation. In paragraph 42 as

such, it is observed and held as under:-

“42. There is no good reason given by the Court in these

decisions as to why a Magistrate's powers to order further

investigation would suddenly cease upon process being issued,

and an accused appearing before the Magistrate, while

concomitantly, the power of the police to further investigate the

offence continues right till the stage the trial commences. Such a

view would not accord with the earlier judgments of this Court, in

particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC

409], Samaj Parivartan Samudaya [Samaj Parivartan

Samudaya v. State of Karnataka, (2012) 7 SCC 407], Vinay

Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762], and Hardeep

Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC

92]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3

SCC 92] having clearly held that a criminal trial does not begin after

cognizance is taken, but only after charges are framed. What is not

given any importance at all in the recent judgments of this Court is

Article 21 of the Constitution and the fact that the Article demands

no less than a fair and just investigation. To say that a fair and just

investigation would lead to the conclusion that the police retain the

power, subject, of course, to the Magistrate's nod under Section

173(8) to further investigate an offence till charges are framed, but

that the supervisory jurisdiction of the Magistrate suddenly ceases

midway through the pre-trial proceedings, would amount to a

travesty of justice, as certain cases may cry out for further

investigation so that an innocent person is not wrongly arraigned as

an accused or that a prima facie guilty person is not so left out.

There is no warrant for such a narrow and restrictive view of the

powers of the Magistrate, particularly when such powers are

traceable to Section 156(3) read with Section 156(1), Section 2(h)

and Section 173(8) CrPC, as has been noticed hereinabove, and

would be available at all stages of the progress of a criminal case

before the trial actually commences. It would also be in the interest

of justice that this power be exercised suo motu by the Magistrate

himself, depending on the facts of each case. Whether further

investigation should or should not be ordered is within the

discretion of the learned Magistrate who will exercise such

discretion on the facts of each case and in accordance with law. If,

for example, fresh facts come to light which would lead to

inculpating or exculpating certain persons, arriving at the truth and

doing substantial justice in a criminal case are more important than

avoiding further delay being caused in concluding the criminal

proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai

Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347]. Therefore,

to the extent that the judgments in Amrutbhai Shambhubhai

Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai

Patel, (2017) 4 SCC 177], Athul Rao [Athul Rao v. State of

Karnataka, (2018) 14 SCC 298] and Bikash Ranjan Rout [Bikash

Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542] have held

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to the contrary, they stand overruled. Needless to add, Randhir

Singh Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta

Nag v. State of W.B. [(2009) 9 SCC 129] also stand overruled.”

10.Now, so far as the reliance placed upon the decision of this Court

in the case of Rama Chaudhary (supra) relied upon on behalf of the

respondent – accused is concerned, it is required to be noted that in the

said decision, this Court was considering the scope of Sections 173(8)

and 173(8)(2) Cr.P.C. and the right of the police to “further investigation”.

It is observed that the police has no right for “fresh investigation” or “re-

investigation”. However, this Court had no occasion to consider the

powers of the constitutional courts , which are dealt with and considered

in the case of Bharati Tamang (supra) and Dharam Pal (supra).

11.Applying the law laid down by this Court in the case of Dharam

Pal (supra) and Bharati Tamang (supra) and to do the complete justice

and in furtherance of fair investigation and fair trial, the constitutional

courts may order further investigation / re-investigation / de novo

investigation even after the charge sheet is filed and the charges are

framed. If the submission on behalf of the accused and even as

observed by the High Court that once the chargesheet is filed and the

charges are framed, there may not be any order for further investigation /

re-investigation / de novo investigation is accepted, in that case, the

accused may see to it that the charges are framed to avoid any fair

investigation / fair trial. It would lead to travesty of justice.

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12.Applying the law laid down by this Court in the aforesaid decisions

and the principle of law laid down hereinabove, it is required to be

considered whether a case is made out for further investigation / fresh

investigation /re-investigation / de novo investigation or not.

12.1It is required to be noted that in the present case, the allegations in

the FIR, right from very beginning, were against the accused No. 13,

who at the relevant time was the sitting Cabinet Minister occupying the

high position. Even at the relevant time, when the State Police

investigated the FIR bearing No. 120 of 2020, in the first chargesheet

and the second chargesheet did not name the accused No. 13. Even

the investigation was also conducted in a perfunctory manner. The real

investigation started only after the intervention of the High Court and

after passing various orders in the present proceedings by the High

Court. The allegations in the FIR were very serious including the misuse

of powers by the sitting Cabinet Minister and of abducting, kidnapping

and beating the complainant. The appellant – original writ petitioner filed

the Criminal Writ Petition before the Bombay High Court on 17.04.2020

praying the investigation in FIR Nos. 119 of 2020 and 120 of 2020 to be

transferred to an independent investigating agency and for sanction

under Section 197 Cr.P.C. for investigation and prosecution of public

servants. On 23.04.2020, the High Court passed interim order that the

CCTV footage and other evidences collected shall be protected and kept

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in the safe custody of the Chief Judicial Magistrate, Thane. During the

period 06.04.2020 to 29.05.2020, the State police recorded the

statement of 23 witnesses including the accused No. 13. The statement

of the main accused was taken as a witness. The real investigation

started thereafter. The first chargesheet came to be filed against

accused Nos. 1 to 10 on 07.12.2020. The accused No. 13 – the then

sitting Minister against whom the serious allegations were made, even

named in the FIR, was not chargesheeted. Even the relevant material

evidences were collected in the form of CDR, mobile phones etc. after

the High Court intervened and passed various interim orders. The

supplementary chargesheet came to be filed against accused Nos. 11

and 12 on 28.07.2021. The accused No. 13 was not even

chargesheeted in the supplementary chargesheet. The charges came to

be framed against accused Nos. 1 to 12 on 28.08.2021. Only thereafter

the supplementary chargesheet came to be filed against the accused

No. 13 on 05.03.2022.

12.2It can be seen from the aforesaid that there was no proper

investigation by the State investigating agency at the relevant time and

even the material evidences were also not collected. At the cost of

repetition, it is observed that during the pendency of the writ petition

before the High Court and pursuant to the various orders passed by the

High Court, the State investigating agency were compelled to investigate

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in the matter and belatedly the accused No. 13 was chargesheeted in

the month of March, 2022. Even according to the State investigating

agency, still the further investigation is required on certain aspects.

Some of the illustrations / instances which required further investigation

are narrated in paragraph 4 of the counter affidavit filed on behalf of the

respondent Nos. 1 to 3. Elaborate reasons and on what further

investigation is required has not been stated on the apprehension that if

the same is disclosed at this stage, it may frustrate the very purpose of

the investigation / further investigation.

12.3Be that as it may, even according to the State investigating agency,

the further investigation is required. As observed and held by this Court

in the aforesaid decisions, the victim has a fundamental right of fair

investigation and fair trial. Therefore, mere filing of the chargesheet and

framing of the charges cannot be an impediment in ordering further

investigation / re-investigation / de novo investigation, if the facts so

warrant.

13.Now, so far as the submission on behalf of the accused that earlier

the State through learned AG opposed the writ petition and submitted

that there was a fair investigation and now with the change in power, the

State agency has changed its stand is concerned, the Courts are not

concerned with the stand taken by the State at the relevant time and

now. Suffice it to say that at the relevant time when the State police

26

agency took a particular stand, accused No. 13 was in power and sitting

Minister. The facts narrated hereinabove would suggest the manner in

which the earlier investigation was caried out and that the accused No.

13 was only chargesheeted in the second supplementary charge sheet

in the month of March, 2022 and not prior to that when the first charge

sheet was filed, the supplementary chargesheet was filed and even

when the charges against the other accused were framed. The

endeavor of the Court should be to have the fair investigation and fair

trial only. Therefore, in the facts and circumstances of the case narrated

hereinabove, we are of the opinion that a case is made out for further

investigation and the State agency may be permitted to conduct a further

investigation and to bring on record the further material, which may be in

the furtherance of fair investigation and fair trial. The High Court has

committed a very serious error in not ordering and/or permitting the State

police agency to further investigate into the FIR bearing Nos. 119 and

120 of 2020. The High Court has not considered the relevant aspects

narrated hereinabove and therefore interference of this Court is

warranted.

14.In view of the above and for the reasons stated above, present

appeal succeeds in part. The impugned judgment and order

passed by the High Court refusing to transfer the investigation of

the FIR No. 120 of 2020 to CBI is hereby confirmed. The

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impugned judgment and order passed by the High Court refusing

to order further investigation / re-investigation is hereby quashed

and set aside and we direct / permit the State investigating agency

to further investigate into the FIR bearing No. 120 of 2020 and on

what aspects the further investigation shall be caried out is left to

the wisdom of the State investigating agency. Further investigation

be carried out and completed as early as possible, preferably

within a period of three months from the date of receipt of the

present order and the further supplementary report be placed

before the learned Magistrate in the Trial/before the concerned

Trial Court thereafter forthwith, which may be considered by the

Trial Court in accordance with law and on its own merits and the

accused be tried accordingly and in accordance with law and on

merits.

Present appeal is partly allowed to the aforesaid extent.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

FEBRUARY 24, 2023. [C.T. RAVIKUMAR]

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