[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

Transfer Petition (Crl.) No.225 of 2020

Rhea Chakraborty Petitioner

Versus

State of Bihar & Ors. Respondent(s)

JUDGMENT

Hrishikesh Roy, J.

1.This Transfer Petition is filed under section 406

of the Code of Criminal Procedure, 1973 (for short

“CrPC”) read with Order XXXIX of the Supreme

Court Rules, 2013 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

Page 1 of 36

Magistrate III, Patna Sadar, to the Additional Chief

Metropolitan Magistrate, Bandra Mumbai. The matter

relates to the unnatural death of the actor Sushant

Singh Rajput on 14.6.2020, at his Bandra residence at

Mumbai. The deceased resided within Bandra Police

Station jurisdiction and there itself, the unnatural

death under section 174 of CrPC was reported.

2. The petitioner is a friend of the deceased, and

she too is in the acting field since last many years.

As regards the allegations against the petitioner in

the FIR, the petitioner claims that she has been

falsely implicated in the Patna FIR, filed by Krishan

Kishor Singh (respondent no. 2) – the father of

the deceased actor. The petitioner and the deceased

were in a live-in relationship but on 8.6.2020, a few

days prior to the death of the actor, she had shifted

to her own residence at Mumbai. According to the

petitioner, the Mumbai Police is competent to

undertake the investigation, even for the FIR lodged

at Patna.

Page 2 of 36

3. Heard Mr. Shyam Divan, learned Senior Counsel

appearing for the petitioner, Mr. Maninder Singh,

learned Senior Counsel appearing on behalf of

Respondent No. 1 (State of Bihar), Mr. Vikas Singh,

learned Senior Counsel appearing on behalf of

respondent No. 2 (Complainant), Dr. A.M. Singhvi and

Mr. R. Basant, learned Senior Counsel appearing on

behalf of respondent No. 3 (State of Maharashtra) and

Mr. Tushar Mehta, learned Solicitor General of India

appearing on behalf of respondent No. 4 (Union of

India)

4. The petitioner contends that the incidents alleged

in the Complaint lodged by the father of the

deceased, 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. However,

despite want of jurisdiction, the Complaint was

registered at Patna only because of political

pressure brought upon the Bihar Police authorities.

Mr Shyam Divan, the learned Senior Counsel for the

Page 3 of 36

Petitioner argues that the courts in Bihar do not

exercise lawful jurisdiction in the subject matter of

the Complaint and since the acts alleged in the

Complaint are relatable to Mumbai jurisdiction, the

mere factum of Complainant being a resident of Patna,

does not confer jurisdiction on the Bihar police to

conduct the investigation. Adverting to the

subsequent transfer of the investigation to the CBI,

Mr. Divan argues 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 Establishment

Act, 1946 (for short “DSPE Act”). The FIR according

to the petitioner is contradictory and the Complaint

fails to disclose how the alleged actions of the

petitioner, led to the suicidal death of the actor.

The petitioner projects that she has fully co-

operated with the Mumbai Police in their inquiry but

will have no objection if the investigation is

conducted by the CBI. Mr. Shyam Divan the learned

Page 4 of 36

Senior Counsel submits that justice needs to be done

in this case and powers under Article 142 of the

Constitution can be invoked by the Court.

5. Representing the State of Bihar, Mr. Maninder

Singh, the learned Senior Counsel submits that the

Complaint disclosed a cognizable offence and

therefore, it was incumbent for the Patna Police to

register the FIR and proceed with the investigation.

Since allegations of criminal breach of trust,

Cheating and defalcation of money from the account of

the deceased are alleged, the consequences of the

offence are projected to be within the jurisdiction

of the State of Bihar. The Senior Counsel highlights

that the Mumbai Police was conducting the enquiry

into the unnatural death of the actor u/s 174, 175

CrPC and such proceeding being limited to

ascertaining the cause of death, does not empower

Mumbai Police to undertake any investigation, on the

allegations in the Complaint of the Respondent No 2,

without registration of an FIR at Mumbai. Referring

to the non-cooperation and obstruction of the

Maharashtra authorities to the SIT of Bihar Police

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which reached Mumbai on 27.07.2020 and the

quarantined detention of the Superintendent of

Police, Patna who had reached Mumbai on 02.08.2020,

senior counsel argues that the Mumbai Police was

trying to suppress the real facts and were not

conducting a fair and professional inquiry. Since no

investigation relatable to the allegations in the

complaint was being conducted and FIR was not

registered by the Mumbai Police, the action of the

Bihar Police in registering the Complaint, is

contended to be legally justified. On that basis, the

Bihar Government’s consent for entrustment of the

investigation to the CBI is submitted to satisfy the

requirement of Section 6 of the DSPE Act. Besides,

as the petitioner herself has called for a CBI

investigation and as the CBI has since registered a

case and commenced their investigation, (on the

request of the State of Bihar), the Senior Counsel

submits that this transfer petition is infructuous.

6. Projecting the agony of the deceased’s father, Mr.

Vikas Singh, the learned Senior Counsel submits that

the Complainant has lost his only son under

Page 6 of 36

suspicious circumstances and was naturally interested

in a fair investigation to unravel the truth. The

inquiry by the Mumbai Police under section 174 of the

CrPC is not an investigation of the complainant’s

allegations and therefore the registration of the

case and investigation into those allegations by the

Bihar Police is contended to be justified. Since

only an investigation (not a case or appeal) is

pending at Patna, and a legally competent

investigation has commenced, invocation of Section

406 power by this Court to transfer the

investigation, is projected to be not merited. When

misappropriation and criminal breach of trust is

alleged in respect of the assets of the deceased

actor and the concerned property relatable to the

alleged offence, will have to be accounted eventually

to the Complainant (as a Class I legal heir of the

deceased), the action of the Patna Police is

contended to be within jurisdiction, under Section

179 read with Section 181(4) of the CrPC which speaks

of consequences ensuing at another place, as a result

of the alleged crime.

Page 7 of 36

7. Representing the State of Maharashtra, Dr.

Abhishek Manu Singhvi, the learned Senior Counsel

submits that following the unnatural death of Sushant

Singh Rajput on 14.06.2020 at his Bandra residence,

the Mumbai Police registered an Accidental Death

Report(ADR) and commenced inquiry under Section 174

of the CrPC to ascertain the cause of death and also

to determine whether the death was the result of some

criminal act committed by some other persons. In

course of the inquiry, the statements of 56 persons

were recorded and other evidence such as the Post

Mortem report, Forensic report etc have been

collected. If the inquiry discloses commission of a

cognizable offence, the Mumbai police will register a

FIR. According to Dr. Singhvi, there can be no outer

time limit for conclusion of Section 174 or Section

175 CrPC proceedings. The State of Maharashtra

Counsel argues that every offence shall ordinarily be

inquired into and tried by a Court within whose local

jurisdiction, the offence was committed and on that

basis, Dr Singhvi submits, that the Bihar police

should have transferred the Complaint to the Mumbai

Page 8 of 36

Police authorities. Alternately, they could have

registered a “zero FIR” and then should have

transferred the case for investigation to Mumbai

police. Pointing towards potential misuse, Dr.

Singhvi submits that if registration of Complaint in

another state is permitted, it will enable a person

to choose the investigating authority and will

obstruct exercise of lawful jurisdiction by the local

police. This will impact the country’s federal

structure. The Senior Counsel refers to media

reports to project that the Bihar Police were

hesitant to register the Complaint of Respondent No 2

but they were prevailed upon by political pressure.

The Maharashtra counsel submits that the father and

other family members of the deceased in their

statements to the Mumbai Police, never mentioned

about the allegations in the Complaint and those are

projected to be afterthoughts and improvements. Under

the constitutional scheme, the States have exclusive

power to investigate a crime and the Senior Counsel

accordingly argues that crime investigation cannot be

routinely transferred to the Central Agency.

Page 9 of 36

Referring to the reasons (a) sensitivity and (b)

Inter-state ramifications , given by the Bihar Police

for entrusting the investigation to the CBI, Dr.

Singhvi argues that the reasons are neither germane

nor bona fide. He submits that 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, but here consent was given by Bihar

government, for political exigencies.

8. Mr Tushar Mehta, the learned Solicitor General

of India, appears for the Union of India and the CBI.

He projects that the Maharashtra Police is yet to

register any FIR but is conducting only a limited

inquiry under section 174 of the CrPC, into the

unnatural death of the actor. In the absence of any

FIR by the Mumbai Police following the death of the

actor on 14.06.2020, the FIR registered at Patna at

the instance of the deceased’s father is projected to

be the only one pending. He therefore contends that

the present matter does not relate to two cases

pending in two different states. Referring to the

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contradictory stand and the parallel allegation of

state’s Police being influenced by external factors

in both states, Mr. Mehta submits that this itself

justifies entrustment of the investigation to an

independent Central Agency. The learned Solicitor

General then points out that by acceding to the

request made by the State of Bihar, the CBI has

registered the FIR and commenced investigation.

Besides the Directorate of Enforcement, a central

agency, is also acting under the Prevention of Money

Laundering Act, 2002. He therefore argues that a fair

and impartial inquiry can be ensured if the police of

either state are kept away from investigating the

alleged crime, relating to the suspicious death of

the film actor. Adverting to the affidavit of the

Maharashtra Police that they have recorded the

statements of 56 persons in the section 174

proceedings, the Solicitor General submits that since

FIR is not yet registered and the Mumbai Police is

discharging limited functions under section 174 of

the CrPC, the investigation of any alleged crime

following registration of FIR is yet to legally

Page 11 of 36

commence in Mumbai and as such, there is no case

pending in the State of Maharashtra which can justify

the invocation of powers under section 406 of the

CrPC.

9.Under the federal design envisaged by the

Constitution, Police is a state subject under List II

of Seventh Schedule of the Constitution. Therefore,

investigation of a crime should normally be

undertaken by the concerned state’s police, where the

case is registered. There can be situations where a

particular crime by virtue of its nature and

ramification, is legally capable of being

investigated by police from different states or even

by other agencies. The entrustment of investigation

to the CBI is permitted either with consent of the

concerned state or on orders of the constitutional

court. However, investigation of a crime by multiple

authorities transgressing into the others domain, is

avoidable.

10.In the instant case, the petitioner repose

confidence on Mumbai police. The records of the case

Page 12 of 36

produced before this Court, does not prima facie

suggest any wrong doing by the Mumbai Police.

However, their obstruction to the Bihar police team

at Mumbai could have been avoided since it gave rise

to suspicion on the bonafide of their inquiry. The

Police at Mumbai were conducting only a limited

inquiry into the cause of unnatural death, under

Section 174 CrPC and therefore, it cannot be said

with certainty at this stage that they will not

undertake an investigation on the other aspects of

the unnatural death, by registering a FIR.

11.Uncertain about the future contingency at Mumbai,

the father of the deceased has filed the Complaint at

Patna, levelling serious allegations against the

petitioner following which, the FIR is registered and

the Bihar Police has started their investigation.

The case is now taken over by the CBI at the request

of the Bihar government. The petitioner has no

objection for investigation by the CBI, but is

sceptical about the bonafide of the steps taken by

the Bihar government and the Patna police.

Page 13 of 36

12.On the other hand, the projection from the side

of the Complainant and the Bihar government is that

the Mumbai Police even during the limited inquiry

under Section 174 CrPC, are attempting to shield the

real culprits under political pressure. This is

however, stoutly refuted by the State of Maharashtra

whose stand is that the Bihar police has no

jurisdiction to investigate the crime where, the

incident and criminal acts if any, have occurred

within the State of Maharashtra.

13.Transfer of investigation to the CBI cannot be a

routine occurrence but should be in exceptional

circumstances. One factor which however is

considered relevant for induction of the Central

Agency is to retain “public confidence in the

impartial working of the State agencies”, as was

recently reiterated for the Bench by Justice

Dhananjaya Y Chandrachud, in Arnab Ranjan Goswami vs.

Union of India 2020 SCC Online SC 462. It is also

the consistent view of the Court that it is not for

the accused to choose the investigating agency. In

the instant case, political interference against both

Page 14 of 36

states is alleged which has the potential of

discrediting the investigation. The legal process

must therefore be focused upon revelation of the

correct facts through credible and legally acceptable

investigation. It must be determined whether the

unnatural death was the result of some criminal acts.

In order to lend credibility to the investigation and

its conclusion, it would be desirable in my view, to

specify the authority, which should conduct the

investigation in this matter.

14. At this stage, having regard to the respective

stand of the parties, following core issues arise for

consideration in this case:

(a) Whether this Court has power to transfer

investigation (not case or appeal) under Section 406

of the CrPC;

(b) Whether the proceeding under Section 174 CrPC

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

Page 15 of 36

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) What is the scope of the power of a single

judge exercising jurisdiction under section 406 of

the CrPC and whether this Court can issue direction

for doing complete justice, in exercise of plenary

power.

TRANSFER POWER UNDER SECTION 406 CRPC

15. 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, (1978) 2 SCC 35 . Writing the

judgment Justice V R Krishna Iyer, declared that:-

Page 16 of 36

“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 for

warded to a Court. The application before us

stems from a misconception about the scope of

Section 406. There is as yet no case pending

before any Court as has been made clear in the

counter affidavit of the State of Tamil Nadu. In

the light of this counter affidavit, nothing can

be done except to dismiss this petition.

“ 2. If the petitioners are being directed to

appear in a far-off court during investigatory

stage it is for them to move that court for

appropriate orders so that they may not be

tormented by long travel or otherwise teased by

judicial process. 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. We are sure that if the second

petitioner is ailing, as is represented, and this

fact is brought to the notice of the Court which

has directed her appearance, just orders will be

passed in case there is veracity behind the

representation. We need hardly say courts should

use their processes to the purpose of advancing

justice, not to harass parties. Anyway, so far as

the petition for transfer is concerned. there is

no merit we can see and so we dismiss it.”

Page 17 of 36

16. The contrary references cited by the Petitioner

where transfer of investigation was allowed, do not

in any manner, refer to a determination on the

question of competence to transfer investigation

under Section 406. In the cited cases, relief was

granted without any discussion of the law, ignoring

the long standing ratio laid down in Ram Chander

Singh Sagar (Supra).

17. Having considered the contour of the power under

section 406 CrPC, it must be concluded that only

cases and appeals (not investigation) can be

transferred. The ratio in Ram Chander Singh Sagar and

Anr. (Supra) in my view, is clearly applicable in the

present matter.

SCOPE OF SECTION 174 CRPC PROCEEDING

18. 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. In the instant

case, in Mumbai, no FIR has been registered as yet.

Page 18 of 36

The Mumbai Police has neither considered the matter

under Section 175 (2) CrPC, suspecting commission of

a cognizable offence nor proceeded for registration

of FIR under Section 154 or referred the matter under

Section 157 CrPC, to the nearest magistrate having

jurisdiction.

19.On the above aspect, the ratio in Manoj K Sharma

vs. State of Chhatisgarh (2016) 9 SCC 1 will bear

scrutiny. This was a case of suicide by hanging and

Justice M B Lokur, speaking for the Bench held as

follows:-

“19. The 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 was it 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

Page 19 of 36

Section 174 is for the purpose of

discovering the cause of death, and the

evidence taken was very short……

20. …… 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…..

**** **** **** **** ****

22. In view of the above, we are 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…..”

20.In the present case, the Mumbai Police has

attempted to stretch the purview of Section 174

without drawing up any FIR and therefore, as it

appears, no investigation pursuant to commission of a

cognizable offence is being carried out by the Mumbai

police. They are yet to register a FIR. Nor they

have made a suitable determination, in terms of

Section 175(2) CrPC. Therefore, it is pre-emptive and

premature to hold that a parallel investigation is

being carried out by the Mumbai Police. In case of a

Page 20 of 36

future possibility of cognizance being taken by two

courts in different jurisdictions, the issue could be

resolved under Section 186 CrPC and other applicable

laws. No opinion is therefore expressed on a future

contingency and the issue is left open to be decided,

if needed, in accordance with law.

21.Following the above, it is declared that the

inquiry conducted under Section 174 CrPC by the

Mumbai police is limited for a definite purpose but

is not an investigation of a crime under Section 157

of the CrPC.

JURISDICTION OF PATNA POLICE TO REGISTER COMPLAINT

22. The Respondent no 2 in his Complaint alleged

commission of a cognizable offence and therefore, it

was incumbent for the police to register the FIR and

commence the investigation. According to the

Complainant, his attempt from Patna to talk to his

son on telephone was thwarted by the accused persons

and the possibility of saving the life of his son

through father son engagement, was missed out. In

consequence, the Complainant lost his only son who at

Page 21 of 36

the appropriate time, as the learned counsel has

vividly submitted, was expected to light the funeral

pyre of the father.

23.Registration of FIR is mandated when information

on cognizable offence is received by the police.

Precedents 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. On this aspect the ratio in

Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1 is

relevant where on behalf of the Constitution Bench,

Chief Justice P Sathasivam, pronounced as under:-

“120.1. The registration of FIR is mandatory

under Section 154 of the Code, if the information

discloses commission of a cognizable offence and

no preliminary inquiry is permissible in such a

situation.

120.2. If the information received does not

disclose a cognizable offence but indicates the

necessity for an inquiry, a preliminary inquiry

may be conducted only to ascertain whether

cognizable offence is disclosed or not.”

24.The interpretation of Sections 177 and 178 of the

CrPC would be relevant on the issue. In Satvinder

Kaur Vs. State (Govt of NCT of Delhi) (1999) 8 SCC

Page 22 of 36

728 for the Division Bench, Justice M B Shah wrote as

under:-

“12. A reading of the aforesaid sections would

make it clear that Section 177 provides for

“ordinary” place of enquiry or trial. 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.”

25.Likewise, Justice Arijit Pasayat, in Y Abraham

Ajith vs. Inspector of Police, Chennai & Anr. (2004)

8 SCC 100, writing for the Division Bench pronounced

as follows:-

“12. The crucial question is whether any part

of the cause of action arose within the

jurisdiction of the court concerned. In terms

of Section 177 of the Code, it is the place

where the offence was committed. In essence

it is the cause of action for initiation of

the proceedings against the accused.

13. While in civil cases, normally the

expression “cause of action” is used, in

criminal cases as stated in Section 177 of

the Code, reference is to the local

jurisdiction where the offence is committed.

These variations in etymological expression

do not really make the position different.

Page 23 of 36

The expression “cause of action” is,

therefore, not a stranger to criminal cases.

14. It is settled law that cause of action

consists of a bundle of facts, which give

cause to enforce the legal inquiry for

redress in a court of law. In other words, it

is a bundle of facts, which taken with the

law applicable to them, gives the allegedly

affected party a right to claim relief

against the opponent. It must include some

act done by the latter since in the absence

of such an act no cause of action would

possibly accrue or would arise.”

26.When allegation of Criminal Breach of Trust and

Misappropriation is made, on the jurisdictional

aspect, this Court in Asit Bhattacharjee Vs. Hanuman

Prasad Ojha (2007) 5 SCC 786, in the judgment written

by Justice S B Sinha, observed as under:-

“21. Section 181 provides for place of trial in

case of certain offences. Sub-section (4) of

Section 181 was introduced in the Code of

Criminal Procedure in 1973 as there existed

conflict in the decisions of various High Courts

as regards commission of offence of criminal

misappropriation and criminal breach of trust and

with that end in view, it was provided 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.

22. 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

Page 24 of 36

empowered to take cognizance under Section 190(1)

of the Code of Criminal Procedure will have the

jurisdiction to make investigation.”

27.In the later judgment of Naresh Kavarchand Khatri

Vs. State of Gujarat (2008)8 SCC 300 , this Court

reiterated the ratio in Satvinder Kaur(supra) and

Asit Bhattacharjee (Supra).

28.Once again, in Rasiklala Dalpatram Thakkar Vs.

State of Gujarat (2010) 1 SCC 1 , while approving the

earlier decisions in Satvinder Kaur(supra) in the

judgment rendered by Justice Altamas Kabir as he was

then, 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. It was

thus held:-

“27. In our view, both the trial court as well as

the Bombay High Court had correctly interpreted

the provisions of Section 156 CrPC to hold that

it was not within the jurisdiction of the

investigating agency to refrain itself from

holding a proper and complete investigation

merely upon arriving at a conclusion that the

offences had been committed beyond its

territorial jurisdiction.”

Page 25 of 36

29.Moreover, the allegation relating to criminal

breach of trust and misappropriation of money which

were to be eventually accounted for in Patna (where

the Complainant resides), could prima facie indicate

the lawful jurisdiction of the Patna police. This

aspect was dealt succinctly by Justice J S Khehar, as

a member of the Division Bench in Lee Kun Hee,

President, Samsung Corporation, South Korea and

Others Vs. State of Uttar Pradesh and Ors. (2012) 3

SCC 132 and it was held as under:-

“38 ******

181. Place of trial in case of certain

offences.—(1)-(3)* * *

(4) Any offence of criminal

misappropriation or of criminal breach of

trust may be inquired into or tried by a

court within whose local jurisdiction the

offence was committed or any part of the

property which is the subject of the

offence was received or retained, or was

required to be returned or accounted for,

by the accused person.”

A perusal of the aforesaid provision

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

Page 26 of 36

consideration “… were required to be

returned or accounted for.…” would have

jurisdiction in the matter.”

30.Having regard to the law enunciated by this Court

as noted above, it must be held that the Patna police

committed no illegality in registering the Complaint.

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 appears to be in order. At the stage of

investigation, they were not required to transfer the

FIR to Mumbai police. 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 is held to be

lawful.

OPTIONS BEFORE MUMBAI POLICE

31. The Patna police although found to be competent

to investigate the allegation in the Complaint, the

FIR suggests that most of the transactions/incidents

alleged in the Complaint occurred within the

territorial jurisdiction of the State of Maharashtra.

Page 27 of 36

The Mumbai Police was inquiring into the unnatural

death of the complainant’s son under section 174 of

the CrPC. So far, their inquiry has not resulted in

any FIR suggesting commencement of investigation on

the criminal aspects, if any. However, the incidents

referred to in the Complaint does indicate that the

Mumbai police also possess the jurisdiction to

undertake investigation on those circumstances.

Therefore, in the event of a case being registered

also at Mumbai, the consent for the investigation by

the CBI under Section 6 of the DSPE Act can be

competently given by Maharashtra Government.

INVESTIGATION ENTRUSTMENT TO CBI

32. While the CBI cannot conduct any investigation

without the consent of the concerned state as

mandated under section 6, the powers of the

Constitutional Courts are not fettered by the

statutory restriction of the DSPE Act. For this

proposition, one can usefully refer to State of West

Bengal Vs. Sampat Lal (1985) 1 SCC 317 where Justice

Ranganath Mishra in his judgment for the 3 judges

Bench, held that:-

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“13. ……….It is certainly not for this Court at

the present stage to examine and come to a

conclusion as to whether this was a case of

suicide or murder. If as a result of

investigation, evidence is gathered and a trial

takes place the Sessions Judge will decide that

controversy and it may be that in due course such

controversy may be canvassed before this Court in

some form or the other. It would, therefore, be

wholly inappropriate at this stage to enter into

such a question.…………In our considered opinion,

Section 6 of the Act does not apply when the

Court gives a direction to the CBI to conduct an

investigation and counsel for the parties rightly

did not dispute this position……………”

33.Similarly, the Constitution Bench in the judgment

authored by Justice D K Jain in State of W B Vs.

Committee for Protection of Democratic Rights (2010)

3 SCC 571 pronounced as follows:-

“68. Thus, having examined the rival contentions

in the context of the constitutional scheme, we

conclude as follows:

(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,

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exercise of such power by the constitutional

courts would not violate the 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.”

34.As noted earlier, the FIR at Patna was

subsequently transferred to the CBI with consent of

the Bihar government during pendency of this Transfer

Petition. However, in future, if commission of

cognizable offence under section 175(2) CrPC is

determined, the possibility of parallel investigation

by the Mumbai Police cannot be ruled out. Section 6

of the DSPE Act, 1946 read with Section 5 prescribe

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the requirement of consent from the State government,

before entrustment of investigation to the CBI. As

the CBI has already registered a case and commenced

investigation at the instance of the Bihar

government, uncertainty and confusion must be avoided

in the event of Mumbai Police also deciding to

simultaneously investigate the cognizable offence,

based on their finding in the inquiry proceeding.

Therefore, it would be appropriate to decide at this

stage itself as to who should conduct the

investigation on all the attending circumstances

relating to the death of the actor Sushant Singh

Rajput. This issue becomes relevant only if another

FIR is registered on the same issue, at Mumbai. A

decision by this Court on the point would confer

legitimacy to the investigation.

DIRECTION ON INVESTIGATION

35.The conflict between the two State governments

on, who amongst the two is competent to investigate

the case, is apparent here. In K.V. Rajendran Vs.

Superintendent of Police, CBCID, Chennai & Ors.

(2013) 12 SCC 480, the 3 judges Bench in the judgment

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authored by Justice Dr B S Chauhan 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. While the steps taken by the Mumbai

police in the limited inquiry under Section 174 CrPC

may not be faulted on the material available before

this Court, considering the apprehension voiced by

the stakeholders of unfair investigation, this Court

must strive to ensure that search for the truth is

undertaken by an independent agency, not controlled

by either of the two state governments. Most

importantly, the credibility of the investigation and

the investigating authority, must be protected.

36.The ongoing investigation by the CBI is held to

be lawful. In the event a new case is registered at

Mumbai on the same issue, in the fitness of things,

it would be appropriate if the latter case too gets

investigated by the same agency, on the strength of

this Court’s order. Such enabling order will make it

possible for the CBI to investigate the new case,

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avoiding the rigors of Section 6 of the DSPE Act,

requiring consent from the State of Maharashtra.

37.In Monica Kumar (Dr.) and Anr. Vs. State of Uttar

Pradesh and Others (2008) 8 SCC 781 , Justice L.S.

Panta in his judgment, referred to the inherent power

conferred on this Court and stated the following:-

“45. Under Article 142 of the

Constitution this Court in exercise of

its jurisdiction may pass such decree or

make such order as is necessary for

doing complete justice in any “cause” or

“matter” pending before it. The

expression “cause” or “matter” would

include any proceeding pending in court

and it would cover almost every kind of

proceeding in court including civil or

criminal. ………………………..This Court's power

under Article 142(1) to do “complete

justice” is entirely of different level

and of a different quality. What would

be the need of “complete justice” in a

cause or matter would depend upon the

facts and circumstances of each case and

while exercising that power the Court

would take into consideration the

express provisions of a substantive

statute. Any prohibition or restriction

contained in ordinary laws cannot act as

a limitation on the constitutional power

of this Court. Once this Court has

seisin of a cause or matter before it,

it has power to issue any order or

direction to do “complete justice” in

the matter.”

Page 33 of 36

38.The above ratio makes it amply clear that the

Supreme Court in a deserving case, can invoke Article

142 powers to render justice. The peculiar

circumstances in this case require that complete

justice is done in this matter. How this is to be

achieved must now be decided.

39.As noted earlier, as because both states are

making acrimonious allegations of political

interference against each other, the legitimacy of

the investigation has come under a cloud. Accusing

fingers are being pointed and people have taken the

liberty to put out their own conjectures and

theories. Such comments, responsible or otherwise,

have led to speculative public discourse which have

hogged media limelight. These developments

unfortunately have the propensity to delay and

misdirect the investigation. In such situation, there

is reasonable apprehension of truth being a casualty

and justice becoming a victim.

40.The actor Sushant Singh Rajput was a talented

actor in the Mumbai film world and died well before

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his full potential could be realised. His family,

friends and admirers are keenly waiting the outcome

of the investigation so that all the speculations

floating around can be put to rest. Therefore a

fair, competent and impartial investigation is the

need of the hour. The expected outcome then would be,

a measure of justice for the Complainant, who lost

his only son. For the petitioner too, it will be the

desired justice as she herself called for a CBI

investigation. The dissemination of the real facts

through unbiased investigation would certainly result

in justice for the innocents, who might be the target

of vilification campaign. Equally importantly, when

integrity and credibility of the investigation is

discernible, the trust, faith and confidence of the

common man in the judicial process will resonate.

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.

41.In such backdrop, to ensure public confidence in

the investigation and to do complete justice in the

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matter, this Court considers it appropriate to invoke

the powers conferred by Article 142 of the

Constitution. As a Court exercising lawful

jurisdiction for the assigned roster, no impediment

is seen for exercise of plenary power in the present

matter. Therefore while according approval for the

ongoing CBI investigation, if any other case is

registered on the death of the actor Sushant Singh

Rajput and the surrounding circumstances of his

unnatural death, the CBI is directed to investigate

the new case as well. It is ordered accordingly.

42.Before parting, it is made clear that the

conclusion and observations in this order is only for

disposal of this petition and should have no bearing

for any other purpose.

43.The Transfer Petition is disposed of with the

above order.

…………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

AUGUST 19, 2020

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