Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.85 OF 2016

(@ S.L.P.(Criminal) No. 6298 of 2015)

Dharam Pal ...Appellant

Versus

State of Haryana & Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.Cry for fair trial by the accused as well as by the victim

sometimes remains in the singular and individualistic

realm, may be due to the perception gatherable from the

facts that there is an attempt to contest on the plinth of

fairness being provoked by some kind of vengeance or

singularity of “affected purpose”; but, irrefutably a

pronounced and pregnant one, there are occasions when

Page 2 the individual cry is not guided by any kind of revengeful

attitude or anger or venom, but by the distressing

disappointment faced by the grieved person in getting his

voice heard in proper perspective by the authorities who are

in charge of conducting investigation and the frustration of

a victim gets more aggravated when he is impecunious, and

mentally shattered owing to the situation he is in and

thereby knows not where to go, the anguish takes the

character of collective agony. When the investigation, as

perceived by him, is nothing but an apology for the same

and mirrors before him the world of disillusionment that

gives rise to the scuffle between the majesty and sanctity of

law on one hand and its abuses on the other, he is

constrained to seek intervention of the superior courts

putting forth a case that his cry is not motivated but an

expression of collective mortification and the intention is

that justice should not be attenuated.

3.Justice, which is “truth in action” and “the firm and

continuous desire to render to everyone which in his due”

becomes a mirage for the victim and being perturbed he

knocks at the doors of the High Court under Article 226 of

2

Page 3 the Constitution alleging that principle of fair and proper

investigation has been comatosed by the investigating

agency, for the said agency has crucified the concept of faith

in the investigation which is expected to maintain loyalty to

law and sustain fidelity to its purpose. In the case at hand,

the assertions made with immense anguish gave rise to the

question before the High Court whether some progress in

trial would act as a remora in the dispensation of justice

and the situation should be allowed to remain as it is so

that an organic disorder is allowed to creep in and corrode

and create a cul-de-sac in administration of justice. The

further question posed whether the non-approach to the

court prior to the stage of commencement of trial would be a

peccadillo so as to usher in an absolutely indifferent,

unconcerned and, in a way, biased investigation to rule and

in the ultimate eventuate lead to guillotining of justice. The

High Court having negatived the stand put forth by the

appellant, the husband of the deceased, he has approached

this Court by way of special leave.

3

Page 4 4.With the aforesaid prefatory note and a short prelude

to the grievance of the appellant, we proceed to narrate the

facts.

5.The minor daughter of the appellant who was raped by

the accused persons was threatened with dire consequences

in case she disclosed the incident. The incident, as alleged,

occurred on 06.08.2012. Despite the threat, the daughter

disclosed the incident to her parents. Keeping in view the

future of the girl and the social repercussions, they chose to

suffer in silence rather than set the criminal law in motion.

When the family stood reconciled to the situation,

something extremely untoward happened. On 02.09.2012,

Kamlesh Devi, wife of the appellant, had gone to village

Nilikhen for taking medicine for her teeth and gums

problem but did not return home on that day. The

appellant searched for his wife along with his relatives and

eventually a bag containing vegetables and medicines and

some other articles belonging to the wife was found

underneath the bridge Manak Majra on the lower side of

Sarsa Branch river. The appellant suspected that Kusum,

wife of Sukh Ram, resident of Kalsi and Aman alias Virender

4

Page 5 had abducted his wife or had thrown her into the river. In

such a situation, the appellant lodged an FIR, on

05.09.2012 at P.S. Butana. The investigating agency

registered the FIR No. 354 for the offences under Section

363, 366-A, 506, 365 and 34 of the Indian Penal Code (for

short “IPC”). During the investigation, on 05.09.2012, the

dead body of Kamlesh Devi was found near the Sarsa

Branch canal bridge. Thereafter, the appellant and his

daughter were examined and on that basis, offence under

Section 376 IPC was added. Eventually, the allegations

were segregated and FIR No. 394 dated 20.09.2012 under

Sections 363, 365, 376(2)G, 506, 201 and 120-B IPC and

Section 3 of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 was registered and after

the investigation, a charge-sheet was filed. Be it stated, the

accused persons in FIR No. 394 dated 20.09.2012 have been

acquitted by the judgment dated 12.03.2014 by the learned

Sessions Judge. Against the judgment of acquittal, the

appellant has filed a criminal appeal which is pending

before the High Court of Punjab and Haryana. Therefore, we

shall refrain from referring to the facts of the said case.

5

Page 6 6.Coming to the subject matter of FIR No. 354 which

relates to the murder of the wife of the appellant, as is

evident, the report would show that the cause of death was

due to strangulation coupled with head injury which is

antiemortem in nature and sufficient to cause death in

ordinary course. Apart from the accused persons named in

the FIR, another person, namely, Krishan Kumar, was also

implicated who was arrested on 19.10.2012. The other two

accused persons, namely, Aman and Kusum were taken

into custody on 30.10.2012. It is a matter of record that the

appellant was provided security personnel as threats were

received by the appellant for entering into a compromise in

the rape case, and for change of his version in the murder

case of his wife.

7.It has been asserted and not denied by the

respondents that on 28.01.2013, the Superintendent of

Police, Karnal vide Office Memo No. 3961 recommended to

the Director General of Police, Haryana that the case

bearing FIR No. 354 along with the rape case and the

unsolved case of murder of the sister-in-law of the appellant

be transferred to the Central Bureau of Investigation (CBI),

6

Page 7 New Delhi. Based on the said recommendation, the

Additionally Chief Secretary, Government of Haryana vide

Office Memo No. 20/2/2013-3HG1 requested the Secretary

to the Government of India, Ministry of Personnel, Public

Grievances & Pensions, Department of Personnel &

Training, New Delhi for handing over the investigation to the

CBI. It has also been asserted that a departmental action

has been taken against ASI Ram Prakash and SHO Sanjeev

Malik on the basis of the complaints made by the appellant.

On information being sought by the appellant under the

Right to Information Act, 2005, he has been informed vide

communication dated 17.11.2014 that departmental inquiry

had already been initiated against ASI Ram Prakash and

SHO Sanjeev Malik on charges of dereliction and negligence

of duty. It was also mentioned in the reply that as a result

of departmental inquiry, Ram Prakash had been reverted

from the post of ASI to Head Constable, and with respect to

Sanjeev Malik, the proceedings had been sent to the Deputy

Commissioner of Police, Ambala for being transferred.

8.The issue that arises for consideration is whether such

a situation calls for issuance of direction for transfer of the

7

Page 8 investigation to the CBI. The High Court has declined to so

direct as trial has commenced and some witnesses have

been examined. The High Court has gone by the principle

of “stage”. When the matter was listed on 18.09.2015, this

Court had directed a copy of the petition to be served on Mr.

P.K. Dey, learned counsel who ordinarily appears for the

CBI. The stand of the CBI is that the case does not fall

within the guidelines laid down by this Court in State of

West Bengal & others v. Committee for Protection of

Democratic Rights, West Bengal and others

1

.

9.Learned counsel for the State has supported the order

passed by the High Court and also emphasized that regard

being had to the stage of the trial, there is no need for

directing for investigation by another agency.

10.First, we intend to deal with the stand of the CBI and

the principles laid down in Committee for Protection of

Democratic Rights (supra). In the said case, the

Constitution Bench, after examining the rival contentions in

the context of the constitutional scheme, recorded the

following conclusions:-

1

(2010) 3 SCC 571

8

Page 9 “(i) The fundamental rights, enshrined in Part III

of the Constitution, are inherent and cannot be

extinguished by any constitutional or statutory

provision. Any law that abrogates or abridges

such rights would be violative of the basic

structure doctrine. The actual effect and impact

of the law on the rights guaranteed under Part III

has to be taken into account in determining

whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad

perspective seeks to protect the persons of their

lives and personal liberties except according to

the procedure established by law. The said article

in its broad application not only takes within its

fold enforcement of the rights of an accused but

also the rights of the victim. The State has a duty

to enforce the human rights of a citizen providing

for fair and impartial investigation against any

person accused of commission of a cognizable

offence, which may include its own officers. In

certain situations even a witness to the crime

may seek for and shall be granted protection by

the State.

(iii) In view of the constitutional scheme and the

jurisdiction conferred on this Court under Article

32 and on the High Courts under Article 226 of

the Constitution the power of judicial review

being an integral part of the basic structure of

the Constitution, no Act of Parliament can

exclude or curtail the powers of the constitutional

courts with regard to the enforcement of

fundamental rights. As a matter of fact, such a

power is essential to give practicable content to

the objectives of the Constitution embodied in

Part III and other parts of the Constitution.

Moreover, in a federal constitution, the

distribution of legislative powers between

Parliament and the State Legislature involves

limitation on legislative powers and, therefore,

9

Page 10 this requires an authority other than Parliament

to ascertain whether such limitations are

transgressed. Judicial review acts as the final

arbiter not only to give effect to the distribution of

legislative powers between Parliament and the

State Legislatures, it is also necessary to show

any transgression by each entity. Therefore, to

borrow the words of Lord Steyn, judicial review is

justified by combination of “the principles of

separation of powers, rule of law, the principle of

constitutionality and the reach of judicial review”.

(iv) If the federal structure is violated by any

legislative action, the Constitution takes care to

protect the federal structure by ensuring that the

Courts act as guardians and interpreters of the

Constitution and provide remedy under Articles

32 and 226, whenever there is an attempted

violation. In the circumstances, any direction by

the Supreme Court or the High Court in exercise

of power under Article 32 or 226 to uphold the

Constitution and maintain the rule of law cannot

be termed as violating the federal structure.

(v) Restriction on Parliament by the Constitution

and restriction on the executive by Parliament

under an enactment, do not amount to

restriction on the power of the Judiciary under

Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh

Schedule on the one hand and Entry 2-A and

Entry 80 of List I on the other, an investigation

by another agency is permissible subject to grant

of consent by the State concerned, there is no

reason as to why, in an exceptional situation, the

Court would be precluded from exercising the

same power which the Union could exercise in

terms of the provisions of the statute. In our

opinion, exercise of such power by the

constitutional courts would not violate the

1

Page 11 doctrine of separation of powers. In fact, if in

such a situation the Court fails to grant relief, it

would be failing in its constitutional duty.

(vii) When the Special Police Act itself provides

that subject to the consent by the State, CBI can

take up investigation in relation to the crime

which was otherwise within the jurisdiction of the

State police, the Court can also exercise its

constitutional power of judicial review and direct

CBI to take up the investigation within the

jurisdiction of the State. The power of the High

Court under Article 226 of the Constitution

cannot be taken away, curtailed or diluted by

Section 6 of the Special Police Act. Irrespective of

there being any statutory provision acting as a

restriction on the powers of the Courts, the

restriction imposed by Section 6 of the Special

Police Act on the powers of the Union, cannot be

read as restriction on the powers of the

constitutional courts. Therefore, exercise of

power of judicial review by the High Court, in our

opinion, would not amount to infringement of

either the doctrine of separation of power or the

federal structure.”

[emphasis added]

11.After recording the conclusions, the Constitution

Bench added a note of caution which we may profitably

reproduce:-

“Before parting with the case, we deem it

necessary to emphasise that despite wide powers

conferred by Articles 32 and 226 of the

Constitution, while passing any order, the Courts

must bear in mind certain self-imposed

limitations on the exercise of these constitutional

powers. The very plenitude of the power under

1

Page 12 the said articles requires great caution in its

exercise. Insofar 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

power 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 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.”

[underlying is ours]

12.In the said case, a contention was raised that a

detailed charge-sheet had been filed and subsequent to the

filing of the said detailed charge-sheet, a supplementary

charge-sheet had also been filed to complete the evidence,

both oral and documentary, to bring home the guilt of the

accused before the competent court and in accordance with

the direction given by the Court further investigation had

been carried out in accordance with Section 173(8) of the

1

Page 13 Code of Criminal Procedure and, therefore, the jurisdiction

of this Court under Article 32 of the Constitution had come

to an end. In essence, the submission was that when a

charge-sheet was filed after conducting the investigation

under the supervision and monitoring of the Court, there

was no need to transfer the case to another agency.

Repelling the said submission, the larger Bench opined,

regard being had to the nature of the crime and the persons

involved, the investigation could not be said to be

satisfactorily held. That apart, the Constitution Bench also

ruled that in the circumstances it was not sufficient to

instill confidence in the minds of the victims as well as the

public at large that State should be allowed to continue the

investigation when the alleged offences were against its

officials. Under these circumstances, the Court directed the

CBI to take up the investigation and submit a report.

13.On a perusal of the said authority, we really do not

find any aspect which would support the stand put forth by

the learned counsel for the CBI. On the contrary, as we

perceive, the Constitution Bench has laid great emphasis on

instilling of faith of the victim and the public at large in the

1

Page 14 investigating agency. True it is, the facts in the said case

were different and related to alleged crimes committed by

certain State officials, but the base of confidence in

investigation has been significantly highlighted.

14.In the context, we may profitably refer to a two-Judge

Bench decision in Narmada Bai v. State of Gujarat and

others

2

. The Court, in the factual matrix of the case, has

emphasized that if the majesty of the rule of law is to be

upheld and if it is to be ensured that the guilty are

punished in accordance with law notwithstanding their

status and authority which they might have enjoyed, it is

desirable to entrust the investigation to CBI.

15.A three-Judge Bench in K.V. Rajendran v.

Superintendent of Police, CBCID South Zone, Chennai

and others

3

reiterating the said principle stated 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 instill confidence in

the public mind, or where investigation by the State police

lacks credibility and it is necessary for having “a fair, honest

2

(2011) 5 SCC 79

3

(2013) 12 SCC 480

1

Page 15 and complete investigation”, and particularly, when it is

imperative to retain public confidence in the impartial

working of the State agencies. The Court, after referring to

earlier decisions, has laid down as follows:-

“In view of the above, the law can be summarised

to the effect that the Court could exercise its

constitutional powers for transferring an

investigation from the State investigating agency

to any other independent 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.”

16.The factual scenario in the present case has to be

appreciated on the touchstone of the aforesaid authorities.

As the facts would reveal there was a request by the

Additional Chief Secretary for handing over the investigation

to the CBI; that departmental action was taken against the

investigating authorities for negligent investigation; that the

concerned ASI has been reverted to the post of Head

Constable; and that apart, certain material witnesses have

not been examined by the investigating agency without any

1

Page 16 rhyme or reason. The reasoning of the High Court is as the

trial has commenced, there cannot be a transfer of the case

to another investigating agency.

17. In this context, we may notice the statutory scheme

pertaining to investigation. Section 173 Cr.P.C. empowers

the Police Officer conducting investigation to file a report on

completion of the investigation with the Magistrate

empowered to take cognizance of the offence. Section

173(8) Cr.P.C. empowers the office-in-charge to conduct

further investigation even after filing of a report under

Section 173(2) Cr.P.C. if he obtains further evidence, oral or

documentary. Thus, the power of the Police Officer under

Section 173(8) Cr.P.C. is unrestricted. Needless to say, the

Magistrate has no power to interfere but it would be

appropriate on the part of the investigating officer to inform

the Court. It has been so stated in Rama Chaudhary v.

State of Bihar

4

.

4

(2009) 6 SCC 346

1

Page 17 18.In Vinay Tyagi v. Irshad Ali

5

, wherein a two-Judge

Bench, after referring to the decision in Bhagwant Singh

v. Commr. Of Police

6

has held thus:-

“However, having given our considered thought to

the principles stated in these judgments, we are

of the view that the Magistrate before whom a

report under Section 173(2) of the Code is filed, is

empowered in law to direct “further investigation”

and require the police to submit a further or a

supplementary report. A three-Judge Bench of

this Court in Bhagwant Singh has, in no

uncertain terms, stated that principle, as

aforenoticed.”

19. In the said case, the question had arisen whether a

Magistrate can direct for re-investigation. While dealing with

the said issue, the Court has observed:-

“At this stage, we may also state another well-

settled canon of the criminal jurisprudence that

the superior courts have the jurisdiction under

Section 482 of the Code or even Article 226 of the

Constitution of India to direct “further

investigation”, “fresh” or “de novo” and even

“reinvestigation”. “Fresh”, “de novo” and

“reinvestigation” are synonymous expressions

and their result in law would be the same. The

superior courts are even vested with the power of

transferring investigation from one agency to

another, provided the ends of justice so demand

such action. Of course, it is also a settled

principle that this power has to be exercised by

the superior courts very sparingly and with great

circumspection.”

[Emphasis supplied]

5

(2013) 5 SCC 762

6

(1985) 2 SCC 537

1

Page 18 And again:-

“Whether the Magistrate should direct “further

investigation” or not is again a matter which will

depend upon the facts of a given case. The

learned Magistrate or the higher court of

competent jurisdiction would direct “further

investigation” or “reinvestigation” as the case may

be, on the facts of a given case. Where the

Magistrate can only direct further investigation,

the courts of higher jurisdiction can direct

further, reinvestigation or even investigation de

novo depending on the facts of a given case. It

will be the specific order of the court that would

determine the nature of investigation.”

20.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

1

Page 19 justice is avoided. Therefore, in this case the stage of the

case cannot be the governing factor.

21.We may further elucidate. 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. 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 setup 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 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

1

Page 20 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 “‘id’ee 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 harbor the feeling that he is an

“orphan under law”.

2

Page 21 22.In view of the aforesaid analysis, the appeal is allowed,

the order of the High Court is set aside, and it is directed

that the CBI shall conduct the investigation and file the

report before the learned trial judge. The said investigation

report shall be considered by the trial judge as per law. Till

the report by the CBI is filed, the learned trial judge shall

not proceed with the trial. A copy of the order be handed

over to Mr. P.K. Dey, learned counsel for the CBI to do the

needful.

...............................J.

[Dipak Misra]

...............................J.

[Prafulla C. Pant]

New Delhi,

January 29, 2016

2