REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3918-3919 OF 2019

(arising out of S.L.P. (C) Nos. 32344-32345/2018)

THE STATE OF TAMIL NADU & ORS. ...APPELLANTS

Vs.

ELEPHANT G. RAJENDRAN & ORS. ETC. ...RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2.The State of Tamil Nadu alongwith its

functionaries have filed these appeals against the

common judgment dated 30.11.2018 passed by the High

Court of Madras in Writ Petition Nos. 20392 and 20963

of 2018 filed by the respondents as PIL (Public

Interest Litigation).

3.Tamil Nadu is a State, which is known for its

majestic temples, its rich culture and heritage.

Idols consecrated in its various temples have their

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own significance, rich heritage and some of the idols

dates back to 1500 to 2000 years back. There have

been several instances for theft of precious idols

and artefacts in the State of Tamil Nadu, which

alarmed the State Government. The State Government

vide its G.O.Ms. No. 2098, Home(Pol-IV) Department

dated 07.10.1983 formed an Idol Wing of Crime

Investigation Department (CID). The temples in Tamil

Nadu are administered under the enactment namely,

Tamil Nadu Hindu Religious and Charitable Endowments

Act, 1959 (hereinafter referred to as “Act, 1959”).

Hindu Religious and Charitable Endowments Department

(hereinafter referred to as “HR & CE Department”) of

the State controls and administers various temples in

the State. The HR & CE Department of the State keeps

a direct control and management of the temples, its

properties, idols and artefacts etc.

4. One Mr.A.G. Ponn Manickavel, the respondent No.2

herein, who shall hereinafter be referred to as

“respondent No.2” was appointed as Deputy Inspector

General of Police, Idol Wing, Chennai on 11.02.2012,

which was part of Economic Offences Wing of the Tamil

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Nadu Police. The role of the wing is basically for

efficient investigation, detection and follow up of

the Idol theft cases and follow the Court cases

concerning them. Respondent No.2 was continued in

the Idol Services Wing since then.

5.The two individuals namely, Mr. R. Venkataraman

and Mr. Elephant G. Rajendran, the respondent No.1

herein, filed petitions before the High Court of

Madras under Section 482 Cr.P.C. being Crl.O.P. No.

8960 of 2017 and Crl.O.P. No. 12060 of 2017. In

Crl.O.P. No.8960 of 2017, it was prayed for

transferring the investigation regarding theft of 06

idols from the HR & CE Department to the Idol Wing of

the Tamil Nadu Police and in Crl.O.P. No.12060 of

2017, the prayer was made to transfer an FIR

pertaining to an Idol theft from the Idol Theft Wing,

CID, Chennai to the Crime Branch, CID, Chennai.

6.The case filed by the petitioner in Crl.O.P. No.

8960 of 2017 was with regard to Sri Pasupatheeswarar

Temple in Thanjavur District, which was built during

the Chola Reign about 1500 to 2000 years ago, which

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according to petitioner houses several ancient idols

of temples. Allegation was made that 06 of such

idols were missing belonging to a temple with regard

to which complaints were made to police officers and

officials of HR & CE Department. Despite several

complaints to police officers and officials of HR &

CE Department, no FIR has been lodged and no action

has been taken to punish the erring officials of the

HR & CE Department. It was further pleaded that

officials of HR & CE Department are not appropriate

authority to investigate the offence of theft, hence

appropriate direction was sought for.

7.Mr. Elephant G. Rajendran, who is respondent No.1

in this appeal, had filed Crl.O.P. No. 12060 of 2017

making allegation that a police official came into

possession of six Idols during the course of their

investigation had sold the Idols for Rs.6 Crores.

Despite the fact that FIR had been lodged against the

accused, they have been promoted and no further

action was taken. Further allegation was that

investigation by a subordinate officer of the same

wing cannot be handled effectively. Allegations were

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also made that Idols worth several crores of rupees

were sold by the trustees in collusion with the HR &

CE authorities.

8.Madras High Court disposed of both the Crl.O.P.

petitions by its judgment dated 21.07.2017. the High

Court during the hearing had summoned the Inspector

General of Idol Wing, who at that time was second

respondent. Inspector General of Idol Wing appeared

before the Court and brought to the notice of the

Court, various difficulties and shortcomings faced by

the Idol Wing due to which steps for detection of

Idol thefts and bringing the culprits before law is

being hampered. During the course of hearing on

30.06.2017, it was brought before the knowledge of

Madras High Court that respondent No.2, who was

working as Inspector General of Police, Idol Wing has

been transferred. Court observed that officer, the

respondent No.2 has been supervising the cases and

has efficiently traced and recovered several Idols

worth several crores. Court further observed that it

is not that the succeeding officer is less efficient,

but considering that Respondent No.2 and his team

have extensively travelled throughout the country and

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are aware of the modus operandi of the culprits, for

the sake of continuity, speedy completion of the

investigation and completion of the pending cases,

respondent No.2 must continue despite the work

assigned presently. The Madras High Court on

21.07.2017 issued 20 directions to the State of Tamil

Nadu, out of which first 04 directions are as

follows:-

“(i) The Chief Secretary of the State of

Tamil Nadu must issue appropriate

orders within a week for the creation

of a special camp at Tiruchirappalli

headed by Mr. A.G. Ponn Manickavel,

IPS, Inspector General of Police with

other members of Idol wing, who

associated him earlier for the

completion of trial in the pending

cases in the State and needless to

say that necessary infrastructure,

staff and transportation, vehicle,

fuel etc. from time to time are to be

provided. The said officer can place

his representation immediately

intimating required assistance and

the team members required by him to

the Chief Secretary and on such

representation, the same shall be

provided forthwith.

(ii) The cases pending on the file of

various courts in the State of Tamil

Nadu prosecuted by the Idol wing are

hereby transferred to the file of the

learned Additional Chief Judicial

Magistrate, Kumbakonam for effective

and speedy disposal of the cases, on

day to day basis.

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(iii)The Inspector General of Police Mr.

A.G. Ponn Manickavel, IPS and all the

officers of the cases connected with

Idol wing, CID are directed to

continue to investigate and follow up

all the cases under investigation,

pending trial, till the disposal by

the learned Additional Chief Judicial

Magistrate, Kumbakonam.

(iv) The team as now ordered by this Court

headed by the Inspector General of

Police Mr. A.G. Ponn Manickavel, IPS,

shall continue to follow up those

cases in addition to their present

and future assignments, wherever they

are posted.

............”

9.The Director General of Police aggrieved by the

order dated 21.07.2017 passed by the Madras High

Court filed a SLP (Crl.) Nos. 6139-6140 of 2017,

which was disposed of by this Court by its order

dated 01.09.2017 in following manner:-

“Having heard Mr. Mukul Rohatgi, learned

Senior Counsel for the petitioners and Mr.

J. Sai Deepak Iyer, learned counsel for the

respondents and upon perusal of the record,

we consider it appropriate to delete the

findings pertaining to the mala fide nature

of the transfer of Inspector General of

Police Mr. A.G. Ponn Manickavel. We order

accordingly.

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Nonetheless, the order regarding the

transfer of Inspector General of Police Mr.

A.G. Ponn Manickavel, shall remain intact.

With the aforesaid observations, the

special leave petitions stand disposed of.

As a sequel to the above, pending

interlocutory applications, if any, stand

disposed of.”

10.This Court did not interfere with the directions

of Madras High Court dated 21.07.2017 directing the

respondent No.2 to continue to head the Idol Wing of

the CID. The High Court vide its order dated

21.07.2017 had not disposed of the matter finally

rather it postponed the matter for reporting

compliance. It appears that before the High Court,

it was brought to the notice that State has not

complied with various directions issued on 21.07.2017

and there are obstacles created in carrying out

various functions of the Idol Wing. It is further to

be noticed that several FIRs were registered leading

to arrest of several culprits including some officers

of HR & CE Department. In order dated 21.07.2017, in

Crl.O.P. No. 8690 of 2017 and Crl.O.P. No. 12060 of

2017, High Court made certain observations about not

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providing proper infrastructure to the Court

appointed idol Wing.

11.On 31.07.2018, Commissioner, HR & CE Department

wrote a letter to Director General of Police,

Chennai. In the D.O. letter, Commissioner stated

that Idol Wing of the Police is harassing the

officials of HR & CE Department and they are being

threatened with filing of the FIRs. Reference to

certain complaints made by officers of HR & CE

Department brought to the notice of the Commissioner

were also narrated. The Commissioner requested the

State to take necessary action to ensure a fair and

confidential investigation and bring the culprits to

book, without damaging the reputation of honest

officials and the Department. Commissioner also

requested that early charge sheets be filed and

prosecution be undertaken to enable disposal of the

cases, early apprehension of criminals and

restoration of the Idols to the respective temples.

12.On the said letter, Additional Director General

of Police on same date, i.e., on 31.07.2018 wrote to

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the Director General of Police mentioning that during

investigation of cases, several senior officers and

other staff belonging to HR & CE Department were also

arrested. The Additional Director of Police

recommended that all cases under investigation by the

special team constituted for Idol theft cases and all

such future cases may be transferred to the Central

Bureau of investigation. Director General of Police

on 01.08.2018 wrote to Additional Chief Secretary to

the Government concurring with the views of

Additional Director General of Police to transfer the

cases to Central Bureau of Investigation. On

01.08.2018, the Additional Chief Secretary to the

Government wrote to Additional Advocate General of

the High Court of Madras bringing into notice the

development. In the end of the letter, it was stated

by Additional Chief Secretary to the Government that

High Court be apprised about the decision of the

Government and when the above cases are taken up for

hearing and whether any orders from the Court are

required. On 01.08.2018 itself, the Additional

Advocate General of Tamil Nadu brought to the notice

of Additional Chief Secretary that he has brought

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into the notice of the Madras High Court about the

communication dated 01.08.2018 on which the Bench has

observed that the communication, decisions or orders,

as the case may be placed before the Court on its

next hearing on 08.08.2018. On 01.08.2018 itself,

the State Government issued an order according its

consent to transfer all cases being investigated by

the Special Team constituted for the Idol cases and

all such future cases to the Central Bureau of

Investigation.

13.Two Writ Petitions being Writ Petition No.20392

of 2018 – Elephant G.Rajendran Vs. The State of Tamil

Nadu and Writ Petition No. 20963 of 2018 – Traffic

Dr. K.R.Ramaswamy Vs. State and Others, has been

filed in the Madras High Court praying for quashing

the Government Order dated 01.08.2018, transferring

the investigation to the Central Bureau of

Investigation. The above writ petitions were heard

by the Division Bench and the Division Bench of the

High Court vide its judgment dated 30.11.2018 allowed

both the above writ petitions quashing the Government

Order dated 01.08.2018 and issued several directions.

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The conclusion of the Court is recorded in paragraph

No.45. In paragraph Nos.45 to 48 of the judgment, the

High Court has held:-

“45. This Court is empowered under Article

226 of the Constitution to pass any orders

to secure the ends of justice. We have

already expressed our anguish over the

conduct of the State in handling the matter

insensitively. The directions issued by

this Court and confirmed by the Hon’ble

Supreme Court have not been complied in

full. We have also expressed that we are

satisfied with the credentials of the

Mr.A.G.Pon Manickavel, I.P.S, Inspector

General of Police and the steps taken by

him in the process of investigation. Hence,

the following directions are given, which

shall be implemented by the State

forthwith:

(1)Mr.A.G.Pon Manickavel, I.P.S,

Inspector General of Police is hereby

appointed as a Special Officer to

head Idol Wing~CID, Chennai to

deal with the cases of theft of idols

and antiques in all stages, for a

period of one year, who shall assume

charge on his superannuation on

30.11.2018 forthwith and function

from the same camp with the same

facilities. The Government shall pass

orders to that effect. It is made

clear that any delay by the

Government in passing appropriate

orders, shall not curtail the powers

of Mr.A.G.Pon Manickavel, I.P.S. to

head the team and investigate the

cases and take appropriate action as

per law.

(2)The members of the Special team

constituted on the basis of the

orders of this Court on 21.07.2017

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shall continue to be part of the

team and any such member as requested

by Mr.A.G.Pon

Manickavel, I.P.S., shall be spared

by the Government from the Tamil Nadu

Police Force.

(3)Mr.A.G.Pon Manickavel, I.P.S.,

Inspector General of Police, shall

draw the same pay and benefits that

were available to him at the time of

his retirement for the entire tenure

of his term as Special officer.

(4)The Special Officer, hereby

appointed shall investigate the cases

thoroughly and periodically submit

all the reports before the

appropriate Court as per law and also

before this Court in a sealed cover

to enable this Court to monitor the

investigation.

(5)The Special Officer and his team

shall continue to not only

investigate and file charge Sheets

and prosecute in the pending cases

but shall also continue to do so in

the cases arising in future during

his tenure or until further orders

from this Court.

(6)The CBI and other agencies of

Central Government shall continue to

give appropriate support to the

Special officer and his team.

(7)No action or enquiry against the

Special officer or any member of his

team shall be initiated except with

the concurrence of this Court. If any

materials are there to rely upon for

necessary action, the same be placed

before this court for further

directions.

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(8)The State shall forthwith issue

appropriate communications to

concerned Departments of the State

including the HR & CE Department to

extend their fullest

co~operation to the Special Team

and furnish necessary particulars and

documents sought by them.

(9) The State shall create a

separate Division to handle the

financial aspects of the functioning

of the team so as to ensure that no

action is delayed for paucity of

funds and separate account is to be

created for this purpose and

reasonable amount must be available

to meet out the daily overheads.

(10)All the directions issued by

this Court shall be implemented

without any delay or demur and a

report shall be submitted regarding

the action taken.

46.With the above directions, the writ

petitions are allowed. Consequently, other

connected petitions in W.M.P.Nos.23975,

23976, 24609 and 26868 of 2018 are closed.

No costs.

47.When we are about to pronounce this

order, the petitioner in WP.No.20392 of

2018 produced a copy of the proceedings

issued by the Government of Tamil Nadu in

Police Note No.SC/19/2018 dated 29.11.2018

indicating that one Thiru.Abhay Kumar

Singh, IPS, Additional Director General of

Police/Chief Vigilance Officer,

Tamil Nadu Newsprint and Papers Limited,

Karur has been transferred and posted as

Additional Director General of Police, Idol

Wing, CID, Chennai by upgrading the post of

Inspector General of Police, Idol Wing CID.

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48.We are of the view that the State all

along, is not inclined to continue with the

investigation of idol theft cases as the

same were transferred to CBI despite

pendency of the stay order of this Court.

It is also pertinent to note that after the

orders were reserved, they have upgraded

the post of the Additional Director General

of Police and appointed an officer, by

order dated 29.11.2018, which action is

inappropriate and it would amply prove the

transfer of cases in a most hurried manner

within a single day i.e., on 01.08.2018.

Similarly, the manner in which the present

order dated 29.11.2018 has been passed,

will speak for itself. Hence,

notwithstanding the order dated 29.11.2018

passed by the Government, which has become

redundant, Tr.A.G.Pon Manickavel shall take

charge as Special Officer to head the Idol

Wing as ordered by us, in order to preserve

the idols as well as recovery of the stolen

idols to uphold the cultural heritage of

this land.”

14.State of Tamil Nadu aggrieved by the said

judgment has filed these appeals.

15.Shri K.K. Venugopal, learned Attorney General has

appeared for the State of Tamil Nadu. Shri Mukul

Rohatgi, learned senior counsel has appeared for

Director General of Police, Tamil Nadu. We have

heard Shri R. Basant, learned senior counsel

appearing for the respondent No.1 and we have also

heard learned counsel, who has appeared for the PIL

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petitioner– Traffic Dr. K.R. Ramaswamy. We have also

heard, learned counsel, who appeared for intervenor.

Shri Mohan Parasaran, Senior Advocate has appeared

for respondent No.9.

16.Learned Attorney General submits that High Court

exceeded its jurisdiction under Article 226 in

appointing respondent NO.2 as a Special Officer to

head Idol Wing, whereas respondent No.2 was going to

be superannuated on 30.11.2018 itself. In the writ

petition, challenge was to the Government order dated

01.08.2018 for transferring the investigation, which

was being carried on by Idol Wing of the CID to the

CBI. Without their being any prayer, the respondent

No.2 has been directed to continue to head the Idol

Wing even after his superannuation. The respondent

No.2 after superannuation could not have exercised

any power of police officer as entrusted on a police

officer under the Code of Criminal Procedure.

Retired police officer is not a police officer for

purposes of registering a FIR or carrying out the

investigation or submitting a charge sheet, nor a

retired police officer can present a case in Court.

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The State Government was fully justified in

transferring the investigation of Idol theft cases to

CBI for fair investigation. Even the learned Single

Judge while hearing Crl.O.P. No. 8960 of 2017 and

Crl.O.P. No. 12060 of 2017 had made observation that

in event appropriate infrastructure and facilities

are not provided to Idol Wing, the Court may direct

for investigation to be carried out by CBI.

17.High Court, exercising jurisdiction under Article

226 cannot take over the power of Superintendent of

Police conferred on the State Government under

Sections 3 and 4 of the Police Act, 1861. It was not

within the scope of Article 226 so as to direct by

the High Court to take over a full-fledged wing of

the Executive (Idol Wing-CID) from the control of the

Executive. The direction to appoint respondent NO.2

as Special Officer to head the Idol Wing-CID has been

passed without affording an opportunity to the State.

The State has already appointed one Abhay Kumar

Singh, by Government Order dated 29.11.2018, as

Additional Director General of Police, Idol Wing,

CID, Chennai, which order has been erroneously held

17

by the High Court to be redundant. When respondent

No.2 was going to be superannuated on 30.11.2018,

State was fully justified in making an arrangement to

head the Idol Wing of the CID. The directions issued

by the High Court, as noticed in paragraph No.45 of

the judgment are all beyond the scope of the

jurisdiction of the High Court under Article 226.

Although, this Court as well as the High Courts in

several judgments has directed for carrying on

investigations by retired personnel but in none of

the cases, the question was decided as to whether it

is competent on behalf of the High Court to direct

for carrying out investigation by retired personnel.

The power given to this Court to pass orders under

Article 142 are not available to the High Court under

Article 226. The High Court, while exercising

jurisdiction under Article 226 has virtually

exercised the jurisdiction given to this Court under

Article 142 of the Constitution. The respondent No.2

has provided the details of cases so as to transfer

it to the CBI as per its request.

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18.Shri Mukul Rohatgi, learned senior counsel

appearing for the Director General of Police submits

that impugned judgment of the High Court is beyond

the scope of Article 226. It is submitted that High

Court erred in directing for continuation of

respondent No.2 even after superannuation. There

have been several complaints against respondent No.2

relating to his functioning and respondent NO.2 was

not a person who could have been allowed to head the

Idol Wing even after his superannuation. It is

submitted that in the writ petitions, respondent No.2

has filed certain self-serving documents on

27.11.2018 to which no opportunity was there to the

appellants to rebut the claim of respondent No.2 that

he has done much good work pertaining to theft and

recovery of Idols. Shri Rohtagi has referred to

extradition of one person, namely, Subhash Chandra

Kapoor, who was extradited from Germany. It is

submitted that several cases of further extradition

are not being processed on account of unwarranted

delay with regard to case of Subhash Chandra Kapoor.

It is submitted that due to inaction on the part of

the Idol Wing with regard prosecution of Subhash

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Chandra Kapoor, other cases of other accused for

extradition are not being even processed. It is

submitted that impugned judgment of the High Court

has created a shield to respondent No.2 so that he is

not answerable to anyone. It is submitted that there

was no challenge to the order dated 29.11.2018 by

which the Additional Director General of Police was

posted in the Idol Wing to head it. The order having

not been challenged or set aside, the respondent No.2

cannot be allowed to head the Idol Wing, when

Additional Director General is a superior Officer.

It is submitted by Shri Rohtagi that PIL petitioner –

Elephant G. Rajendran even before 30.11.2018 has

written to the Government that respondent No.2 be

allowed to continue to head the Idol Wing. There is

no bonafide in filing the Public Interest

Litigations. PIL petitioner and respondent No.2 are

hands in gloves.

19.Learned counsel appearing for the applicant in

I.A. No. 24724 of 2019 submits that respondent No.2

has constantly tried to malign and defame the

officers of HR & CE Department. Several senior

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officers of HR & CE Department were arrested without

any cogent grounds. The Commissioner in its letter

dated 31.07.2018 written to the Director General of

Police has highlighted several misdeeds of the Idol

Wing. The learned counsel for the applicant submits

that officers of HR & CE Department have been

unnecessarily castigated by the Idol Wing. it is

submitted that applicant be permitted to intervene in

the matter so that this Court may be apprised of the

correct facts.

20.Shri Mohan Parasaran, learned senior counsel

appearing for the respondent No.9 submits that

respondent No.9 is neither appropriate nor necessary

party, who has been unnecessarily impleaded in the

writ petition before the High Court. It is submitted

that respondent No.9 is a respected person and an

incorrect allegation has been made against him.

Respondent No.9 is respectable person of the Society,

who has unnecessarily been dragged.

21.Shri R.Basant, learned senior counsel appearing

for Elephant G. Rajendran, PIL petitioner, refuting

the submission of learned Attorney General submits

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that judgment of the High Court is well within the

scope and ambit of Article 226. Shri Basant submits

that submission raised questioning the bonafide of

PIL petitioner is an afterthought and has no

substance. The PIL petitioner has done commendable

public work. Elephant G. Rajendran had filed a PIL

petition in the year 2001 with regard to an injured

Elephant in which High Court permitted the PIL

petitioner to bring doctors from foreign countries.

The PIL petitioner brought doctors from foreign

countries and got the Elephant cured. Several Public

Interest Litigations have been filed by Elephant G.

Rajendran in public interest. It is specifically

noted by the High Court in the impugned judgment that

Additional Advocate General himself has submitted

that there are no question on the bonafide of the

petitioner. It is submitted that various complaints

in respect of respondent No.2, which are brought on

the record are complaints, which have been

deliberately obtained after the judgment of the High

Court. Most of the complaints against respondent

No.2 have been obtained by obliging Police Officials

on one day, i.e., on 18.12.2018, which is clear from

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the complaints brought on the record alongwith I.A.

No. 10291 of 2018.

22.It is submitted by Shri Basant that High Court

has jurisdiction under Article 226 to direct for

constituting a Special Investigation Team headed by

respondent No.2. He submits that conferring of the

police power on non-police officer is not an anathema

to law. Extraordinary situation calls for

extraordinary remedy. The jurisdiction of the High

Court under Article 226 is wide and plenary. There

have been several orders of different High Courts as

well as this Court where Special Investigation Team

were constituted consisting of retired personnel.

The transfer of the investigation of the Idol cases

before the Idol Wing to the CBI was nothing but a

ruse to remove respondent No.2 from not carrying out

the investigation. Several officers of HR & CE

Department were involved and were accused in

different First Information Reports. The Government

has acted on to save officers of HR & CE Department.

Shri Basant submits that the present is not a case

where High Court exercised any jurisdiction under

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Article 142 of the Constitution of India as contended

by the appellant. He further submits that the

present is a case where this Court need not exercise

its jurisdiction under Article 136. The High Court

having exercised jurisdiction well within its powers,

there is no extraordinary situation, where this Court

may grant special leave in the present case. High

Court has exercised its jurisdiction to ensure fair

and proper investigation and prosecution in Idol

theft cases. Replying to lapses as alleged on the

part of respondent No.2 with regard to Subhash

Chandra Kapoor, it is submitted that prosecution

agency to prosecute cases is State. It is State,

which is prosecuting extradited accused Shri Subhash

Chandra Kapoor and no blame can be put on respondent

No.2 in the above regard.

23.Learned counsel appearing for the second PIL

petitioner, i.e., Traffic Dr. K.R. Ramaswamy submits

that free and fair trial is fundamental right. He

submits that when the Director General of Police can

be given 02 years extension in the year 2017, why

such extension could not have been granted to

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respondent No.2. Respondent No.2 was appointed as

Special Officer in Idol Wing in 2012 and since then

he has been efficiently carrying on his duties. It

is submitted that order of the High Court dated

21.07.2017 passed in Crl.O.P. No. 8960 of 2017 and

Crl.O.P. No. 12060 of 2017, respondent No.2 was

directed to continue as head of the Idol Wing. The

Director General of Police aggrieved by the said

order has filed a special leave petition before this

Court, which was dismissed on 01.09.2017.

24.It is submitted that it is on account of the

letter dated 31.07.2018 written by the Commissioner,

HR & CE Department to the Director General of Police

that hurriedly decision was taken to transfer the

cases to CBI. The letter of Commissioner dated

31.07.2018 and within 24 hours, a decision was taken

by the State Government to transfer the cases to the

CBI in hurried manner. The Commissioner in his

letter dated 31.07.2018 made allegations against Idol

Wing, on which allegations, without there being any

investigation or inquiry, the decision was taken to

transfer the cases to CBI, which was done with intent

25

to take away the investigation from respondent No.2,

who was unearthing several unholy cases and was

taking action against the officers of HR & CE

Department and some police officers. The decision of

the State to transfer it to CBI was not bonafide. It

is further submitted that CBI itself in its letter

dated 20.09.2018, which was filed before the High

Court, submitted that CBI will extend its full

cooperation and support in the matters of extradition

of accused, issue of Red Corner Notices and

coordinating with Interpol and it shall extend all

its cooperation to SIT, which is already

investigating the Idol theft cases. CBI has

expressed its unwillingness to take up large number

of Idol theft cases under its fold. As regards not

challenging G.O. dated 29.11.2018, it is pointed out

that it was produced on the eve of the judgment and

there was time to challenge it.

25.Learned Attorney General in his rejoinder

submission contends that High Court cannot pass any

order in violation of law. It is submitted that the

officers of Indian Police Services are governed by

26

the All India Services Act, 1951 and the Rules made

thereunder. The State has no power to grant

extension of service of IPS Officers. It is

submitted that under the All India Services (Death-

cum-Retirement Benefits) Rules, 1958, only few of the

incumbents of the posts can be given extension in

services by the Central Government, which rule does

not include extension for Inspector General of

Police, the post held by respondent No.2. Learned

Attorney General submits that even though there was

O.M. dated 18.05.1977 issued for extension/re-

employment of Central Government servants beyond the

age of superannuation, it is now no longer available

in view of issuance of O.M. dated 09.12.2002. After

the O.M. dated 09.12.2002, no re-employment can be

granted beyond the age of superannuation of 60 years.

Learned Attorney General again referring to the

various directions in the impugned order contends

that the directions are contrary to the provisions of

Code of Criminal Procedure and fall outside the law.

He submits that each and every direction given in the

impugned judgment is contrary to some or other law.

27

26.We have considered the submissions of the learned

counsel for the parties and have perused the records.

27.Following are the main issues, which arise for

consideration in the present appeals:-

(i) Whether the State of Tamil Nadu was

justified in transferring all the under

investigation cases being investigated by

the Special Team constituted for Idol theft

cases and all such future cases to the

Central Bureau of Investigation vide its

G.O. dated 01.08.2018?

(ii)Whether the impugned judgment of the High

Court dated 30.11.2018 quashing the

Government Order dated 01.08.2018 is

sustainable?

(iii)Whether the High Court, in exercise of

jurisdiction under Article 226 of the

Constitution of India can appoint a police

officer after his superannuation to head a

Special Investigation Team (S.I.T.) to

carry out investigations and other

functions, which can be exercised by a

28

police officer under the Code of Criminal

Procedure?

(iv)Whether the impugned judgment of the High

Court dated 30.11.2018 directing respondent

No.2 to continue to head the Idol Wing of

C.I.D. after his superannuation on

30.11.2018 is sustainable?

(v) Whether the 10 directions issued by the

High Court in Paragraph No.45 of the

impugned judgment are contrary to law and

are unsustainable being beyond the scope of

Article 226 of the Constitution of India?

(vi)Whether the High Court could have declared

the Government Order dated 29.11.2018

appointing Thiru. Abhay Kumar Singh, IPS,

Additional Director General of Police, Idol

Wing – C.I.D., Chennai as redundant without

there being any challenge to the said

Government Order before the High Court in

the Writ Petitions, in question?

Issue Nos. 1 and 2

28. Both the above issues being inter-connected are

29

being taken together. Few background facts before

issuance of Government order dated 01.08.2018 need to

be noted. The Idol Wing of the Criminal Investigation

Department(CID) is a special feature pertaining to

State of Tamil Nadu. The State of Tamil Nadu is

blessed with most ancient temples in the country. As

noted above under the Tamil Nadu Hindu Religious and

Charitable Endowments Act, 1959 there are various

authorities to ensure proper administration and

governance of Hindu religious and charitable

endowments Tamil Nadu. The HR & CE Department has

obligation and responsibilities of managing and

maintaining temples' properties including the Idols.

There being large number of cases pertaining to

theft, missing and misappropriation of Idols valuing

in several crores, the State of Tamil Nadu had

constituted the Idol Wing by the Government Order

issued in the year 1983. The Madras High Court while

deciding Criminal O.P. Nos.8690 and 12060 of 2017 in

its order dated 21.07.2017 has made following

observation in paragraph 12:

“12. The HR & CE department is the

custodian of most of the temples and the

30

properties including the idols belonging to

them. It is their primary duty to protect

the temples and safeguard the valuable

idols/antiques, which, this Court with

great anguish, expresses that the

department has failed to do. It is

startling to find that the HR & CE

department with all its income from major

temples, has not been able to maintain

historical temples and safeguard the Idols,

which in market, have antique value based

on their age. Some temples in the State

have also been recognised by the UNESCO as

heritage sites. Many temples constructed at

least 1500 years ago or much before the

temples recognised by UNESCO, are in ruins.

Even the daily rituals are not performed.

Some temples remain closed throughout the

day with no one to even lighten the lamps.

Neither the Archaeology Department nor the

HR & CE Department has shown interest to

identify and protect them. This has also

come to the advantage of the miscreants,

who have laid their hands on the Idols.”

29. The above Criminal O.P. were filed for

transferring all investigations regarding theft of 6

Idols from the Commissioner, HR & CE, Nungambakkam

District, Chennai to Additional Director General of

Police, Economic Offences Wing, CID, Chennai. The

High Court while deciding Criminal O.Ps in its

judgment dated 21.07.2017 has observed that various

complaints given to Joint Commissioner were not

addressed. In paragraph 16 the High Court made the

following observation:

31

“16. In the cases on hand, the erring

officials have had a free hand in handling

the idols as if it was their private

property. It is clear from the documents

produced by the petitioner that the various

complaints of the petitioner in

Crl.O.P.No.8690/2017 have not been

addressed. Curiously, there is no denial

about the existence of the tunnel and

stocking the PWD guest house. Despite the

fact that the 6th respondent found that the

idols were missing, no complaint has been

lodged till date. It appears that the ball

is passed on from one office to another, to

protect the officials. The learned counsel

for the petitioner has sought for a

transfer of the investigation from the 6th

respondent to the Idol Wing, CID, Chennai.

However, considering the nature of the

offence that 6 Idols under the custody of

the department has gone missing, not only

does the matter require investigation by

the idol wing, CID, but also departmental

action must be initiated against the

relevant officials. This Court is also not

in consonance with the reply given by the

Deputy Superintendent of Police of Idol

wing that a complaint should only be lodged

with the local police station as per

Section 154 Cr.P.C.”

30.The High Court observed that considering the

nature of the offences, 6 Idols under the custody of

the Department had gone missing, not only the matter

required investigation by the Idol Wing, CID

departmental action was also required to be taken by

the relevant officials. While the Criminal

32

O.P.Nos.8690 and 12060 of 2017 were heard, it was

brought to the notice of the High Court that

respondent No.2 who was heading Idol Wing has been

transferred. The High Court noticed that respondent

No.2 has been supervising the cases and has

efficiently traced and recovered several Idols worth

several crores, hence, for the sake of continuity and

speedy completion of the investigation, respondent

No.2 must continue despite the work assigned

presently. In paragraph 19 following observation has

been made:

“19. After much dejection from this Court as

to why no action has been taken, an order of

suspension dated 29.06.2017 was passed and a

copy of the same was produced to the Court on

30.06.2017, while at the same time, it was

brought to the knowledge of this Court that

Mr.A.G.Ponn Manickavel, Inspector General of

Police, Idol Wing was transferred. Though it

could be claimed as a routine transfer, this

Court feels, it is otherwise. Also, the

officer has been supervising the cases and has

efficiently traced and recovered several Idols

worth several crores. It is not that the

succeeding officer is less efficient, but

considering that Mr.A.G.Ponn Manickavel and

his team have extensively travelled throughout

the country and are aware of the modus

operandii of the culpritis. For the sake of

continuity, speedy completion of the

investigation and completion of the pending

cases, this Court is of the view that

Mr.A.G.Ponn Manickavel, Inspector General of

Police and his team must continue despite the

33

work assigned presently.”

31.As noted above against the order of the High

Court dated 21.07.2017, the Director General of

Police filed an SLP in this Court which was disposed

of on 01.09.2017 but the order directing respondent

No.2 to be continued as head of the Idol Wing was not

interfered with by this Court. Consequently,

respondent No.2 was continuing to head the Idol Wing.

It is further to be noted that the High Court vide

its order dated 21.07.2017 has specifically directed

that departmental proceedings must be initiated

against the officials of the HR and CE Department.

FIRs were registered in which Officers of HR & CE

Department were also made accused and several

officers were arrested. It was on 31.07.2018 that

D.O. letter was written by Commissioner, HR & CE to

Director General of Police. The letter begins with

the words:

“This is to inform you of the increasing

ways in which the Idol Wing of the Police

is harassing officials of this Department

threatening them with filing of FIRs in

case they do not agree to carry out its

wishes filing FIRs on the basis of

34

complaints by Public without even a

preliminary enquiry, refusing to file FIR

on the basis of complaints by the

Department/Temple authorities, undermining

the authority of the temple/ Department

authorities including the Commissioner,

humiliating and hurting the reputation of

officials through public investigation of

cases and their depiction in the social and

conventional media and interfering in the

legitimate functioning of this Department.”

32.In the letter dated 31.07.2018 the Commissioner

pointed out various complaints of his officers which

were received by him in writing and orally. The

Commissioner stated that HR and CE Department is

facing a crisis. The Commissioner wrote to the

Director General to ensure a fair and confidential

investigation and bring the culprits to book, without

damaging the reputation of honest officials and the

Department. By a letter of 31.07.2018 itself

Additional Director General of Police made

recommendation to the Director General of Police to

transfer all cases under investigation being

investigated by the Special Team constituted for the

Idol Theft cases to the CBI. The Director General on

the next day i.e. 01.08.2018 recommended for

transferring the cases to the CBI, on the same day

the GO dated 01.08.2018 was issued. The entire

35

process for transferring cases to the CBI was

completed within one day on complaints submitted by

the Commissioner. We have already noted that the High

Court order dated 21.07.2018 has directed for holding

departmental inquiry against certain officers of HR &

CE. It is already noticed that FIRs were registered

against the officers of the HR & CE Department and

other accused. Thus, it was known fact that there

were allegations and FIRs against the few officers

and complaints submitted by the Commissioner against

the Idol Wing of the Police ought not to have been

accepted outrightly without conducting any enquiry.

Even if there was some truth in the complaints made

by the Commissioner, the same ought to have been

enquired and informed decision ought to be taken by

the Government. The Idol Wing had been carrying out

its work for the last more than three decades,

several Idols were recovered and cases launched and

prosecutions were accomplished. On a single letter of

the Commissioner suddenly no opinion could have been

formed that Idol Wing of the Department is not doing

its job. The Higher Police authorities and State was

fully competent to take action against any officer of

36

the Idol Wing, if any excess or misdeeds were

reported against any officer of the Idol Wing. The

letter of the Commissioner dated 31.07.2018 does not

refer to any written complaint by HR & CE Department

to Police, higher authorities or the Government in

the above regard. We, thus, are of the view that the

decision to transfer the cases to CBI was hurriedly

taken within one day on a complaint received by the

Commissioner without making any inquiry and the

decision of the Government cannot be said to be an

informed decision.

33.Another aspect of the matter in the above context

needs to be noted. That the transfer was made of all

the under investigation cases being investigated by

the Special Team constituted for Idol Theft cases and

all such future cases to the CBI. There were more

than 100 cases under investigation with the Idol Wing

at the relevant time. In the above context, it is

relevant to notice the letter dated 19/20.09.2018 of

the Central Bureau of Investigation which was brought

before the High Court by memo and is filed as

Annexure P/18 to the appeal which is to the following

37

effect:

“Sub: Writ Petition NO.20392/2018 filed by

Shri Elephant G.Rajendran – reg.

Please refer to the subject cited above.

In this connection, it is requested that

when the matter comes up for hearing, it

may be stated that Considering the large

number of Idol Theft Cases pending in

various stages and also the future idol

theft cases likely to come up, and

considering the severe shortage of

manpower, CBI will extend its full

cooperation and support in the matters of

Extradition of accused, issue of Red Corner

Notices and coordinating with Interpol,

etc., to the Special Investigation Team,

which is already investigating the Idol

Theft Cases.

HoB, CBI, SCB, Chennai.”

34.The CBI by its communication dated 20.09.2018 in

reference to subject matter in the writ petition has

expressed its opinion that considering the large

number of Idol Theft Cases pending in various stages

and also the future Idol Theft Cases likely to come

up, and considering the severe shortage of manpower,

CBI will extend its full cooperation and support in

the matters of Extradition of accused, issue of Red

Corner Notices and coordinating with Interpol, etc.,

to the Special Investigation Team, which is already

38

investigating the Idol Theft Cases. The said letter

is politely expressing inability of the CBI to

undertake such large number of cases.

35.The High Court in paragraph 32 of the impugned

judgment has given detail of reasons for quashing the

order dated 01.08.2018. It is relevant to notice that

the High Court in its order dated 21.07.2017 has

already directed to constitute a SIT of the Officers

of the Idol Wing to carry on the investigation and

follow up pending trial. The compliance of the

aforesaid order was under consideration before the

Court. The Additional Chief Secretary to the

Government, after receiving letter from Additional

Director General of Police, wrote a letter dated

01.08.2018 to the Additional Advocate General in

which following request was made:

“9. I am therefore, to request you to

appraise the Hon’ble High Court of Madras

about the decision of the Government when

the above cases are taken up for hearing

and whether any orders from the Court are

required.”

36.The Advocate General also brought to the notice

of the Bench of the letter dated 01.08.2018 and wrote

39

back to the Additional Chief Secretary to the

Government that Division Bench of the High Court has

observed that communication, decisions or orders be

placed before the Court in the next hearing to be

held on 08.08.2018. When the matters pertaining to

Idol Thefts were already under investigation by SIT

constituted under the order of the High Court, it was

appropriate that the State Government ought to have

apprised the Court before issuing any Government

order for transferring the cases. In any view of the

matter looking to the large number of cases of Idol

Thefts cases and cases to come in future regarding

Idol Thefts, the CBI was not appropriate

investigating agency to be requested by the State.

The CBI itself has expressed its inability to

undertake such huge exercise, the High Court did not

commit any error in quashing the Government order

dated 01.08.2018.

Issue No.3 and 4

37.The submission which has been much pressed by the

learned Attorney General before us is the lack of the

jurisdiction of the High Court under Article 226 to

40

direct for appointment of retired Police Officer to

head a SIT after his superannuation. Three-fold

submissions have been made by the learned Attorney

General in the above regard. Firstly, he High Court

exercising jurisdiction under Article 226 cannot take

over the power of the Superintendent of Police

conferred on the State Government under Sections 3

and 4 of the Police Act, 1861. Secondly, Under the

Code of Criminal Procedure, it is the Police Officer

who is entitled to carry investigation, arrest,

submit charge sheet and do all other acts as a Police

Officer. Thirdly, the Respondent No.2 after

superannuation no longer continued as Police Officer

and could not have exercised any power or

jurisdiction as conferred on Police officer under the

Cr.P.C.

38.What is the ambit and scope of powers of the

constitutional courts exercising the jurisdiction

under Article 226 needs to be looked into. The High

Courts in India were created by Indian High Courts

Act, 1861. Sections 9 and 10 of the Indian High

Courts Act, 1861 provided for jurisdiction and power

41

of the High Court. Section 106 of the Government of

India Act, 1915 and Section 223 of the Government of

India Act, 1935 provided for jurisdiction of the

existing High Courts. Article 226 of the Constitution

of India confers to the High Courts vide powers in

the matter of issuing writs which they never possess

before. Article 226 of the Constitution is couched in

very wide words, power given to the High Court are

both plenary and inherent. The power under Article

226 is not confined only to issue specified writs but

power conferred to the High Court is to issue

directions, orders or writs including writs in the

nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari or any of the rights

conferred by Part III and for any other purpose.

39.The scope and ambit of Article 226 came for

consideration before this Court in Dwaraka Nath vs.

Income-tax Officer, AIR 1966 SC 81. Justice K. Subba

Rao speaking for the Court held:

“(4)………This article is couched in

comprehensive phraseology and it ex facie

confers a wide power on the High Courts to

reach injustice wherever it is found. The

Constitution designedly used a wide

42

language in describing the nature of the

power, the purpose for which and the person

or authority against whom it can be

exercised. It can issue writs in the nature

of prerogative writs as understood in

England; but the scope of those writs also

is widened by the use of the expression

“nature”, for the said expression does not

equate the writs that can be issued in

India with those in England, but only draws

an analogy from them. That apart, High

Courts can also issue directions, orders or

writs other than the prerogative writs. It

enables the High Courts to mould the

reliefs to meet the peculiar and

complicated requirements of this country.

Any attempt to equate the scope of the

power of the High Court under Article 226

of the Constitution with that of the

English Courts to issue prerogative writs

is to introduce the unnecessary procedural

restrictions grown over the years in a

comparatively small country like England

with a unitary form of government to a vast

country like India functioning under a

federal structure. Such a construction

defeats the purpose of the article

itself……”

40.Justice Krishna Iyer speaking for this Court in

Rohtas Industries Ltd. And another vs. Rohtas

Industries Staff Union and others, (1976) 2 SCC 82,

held that the extended power of the High Court under

Article 226 is as wide as the amplitude of the

language used. In paragraph 9 following was held:

43

“9. The expansive and extraordinary power

of the High Courts under Article 226 is as

wide as the amplitude of the language used

indicates and so can affect any person —

even a private individual — and be

available for any (other) purpose — even

one for which another remedy may exist. The

amendment to Article 226 in 1963 inserting

Article 226 (1-A) reiterates the targets of

the writ power as inclusive of any person

by the expressive reference to ‘the

residence of such person’. But it is one

thing to affirm the jurisdiction, another

to authorise its free exercise like a bull

in a china shop. This Court has spelt out

wise and clear restraints on the use of

this extraordinary remedy and High Courts

will not go beyond those wholesome

inhibitions except where the monstrosity of

the situation or other exceptional

circumstances cry for timely judicial

interdict or mandate. The mentor of law is

justice and a potent drug should be

judiciously administered. Speaking in

critical retrospect and portentous

prospect, the writ power has, by and large,

been the people’s sentinel on the qui vive

and to cut back on or liquidate that power

may cast a peril to human rights……”

41.Again, this Court in Air India Statutory

Corporation and others vs. United Labour Union and

others, (1997) 9 SCC 377, held that the Founding

fathers placed no limitation or fetters under Article

226 of the Constitution except self-imposed

limitations. This Court held that ‘The arm of the

44

Court is long enough to reach injustice wherever it

is found’. In paragraph 59 following has been

observed:

“59. The Founding Fathers placed no

limitation or fetters on the power of the

High Court under Article 226 of the

Constitution except self-imposed

limitations. The arm of the Court is long

enough to reach injustice wherever it is

found. The Court as sentinel on the qui

vive is to mete out justice in given

facts……”

42.The above authorities of this Court clearly lay

down that power given to the High Court under Article

226 is power of very vide nature which does not

contain any fetter except self-imposed restrictions.

It is well settled that the High Court while

exercising jurisdiction under Article 226 shall not

issue any direction which is contrary to law.

43.The challenge raised before us by the learned

Attorney General is that after superannuation of

Police Officer he cannot be entrusted the power of

investigation or other powers under Cr.P.C. which

entrustment runs contrary to the statutory scheme and

cannot be held to be available under Article 226. We

45

may notice few decisions of the High Courts and this

Court which may be relevant for the issue under

consideration.

44.A three-Judge Bench of this Court on monitoring

of criminal investigation has laid down that in

appropriate cases this Court can monitor the Criminal

Investigation especially when persons occupying high

position in society are accused. This Court in Vineet

Narain and others vs. Union of India and another,

(1998) 1 SCC 226, held that Govt. Agencies including

CBI had not carried out their public duty to

investigate the offences disclosed; this Court would

monitor the investigations. This Court laid down

following in paragraphs 8 and 9:

“8. The sum and substance of these orders

is that the CBI and other governmental

agencies had not carried out their public

duty to investigate the offences disclosed;

that none stands above the law so that an

alleged offence by him is not required to

be investigated; that we would monitor the

investigations, in the sense that we would

do what we permissibly could to see that

the investigations progressed while yet

ensuring that we did not direct or channel

those investigations or in any other manner

prejudice the right of those who might be

accused to a full and fair trial. We made

46

it clear that the task of the monitoring

court would end the moment a charge-sheet

was filed in respect of a particular

investigation and that the ordinary

processes of the law would then take over.

Having regard to the direction in which the

investigations were leading, we found it

necessary to direct the CBI not to report

the progress of the investigations to the

person occupying the highest office in the

political executive; this was done to

eliminate any impression of bias or lack of

fairness or objectivity and to maintain the

credibility of the investigations. In

short, the procedure adopted was of

“continuing mandamus”.

9. Even after this matter was brought to

the Court complaining of the inertia of CBI

and the other agencies to investigate into

the offences because of the alleged

involvement of several persons holding high

offices in the executive, for quite some

time the disinclination of the agencies to

proceed with the investigation was

apparent. The accusation, if true, revealed

a nexus between high-ranking politicians

and bureaucrats who were alleged to have

been funded by a source linked with the

source funding the terrorists. In view of

the funding also through foreign currency,

some undesirable foreign elements appeared

to be connected. This revealed a grave

situation posing a serious threat even to

the unity and integrity of the nation. The

serious threat posed to the Indian polity

could not be underscored. The obvious need

for an expeditious and thorough probe which

had already been delayed for several years

could not but be countenanced. The

continuing inertia of the agencies to even

commence a proper investigation could not

47

be tolerated any longer. In view of the

persistence of that situation, it became

necessary as the proceedings progressed to

make some orders which would activate the

CBI and the other agencies to at least

commence a fruitful investigation. Merely

issuance of a mandamus directing the

agencies to perform their task would be

futile and, therefore, it was decided to

issue directions from time to time and keep

the matter pending requiring the agencies

to report the progress of investigation so

that monitoring by the court could ensure

continuance of the investigation. It was,

therefore, decided to direct the CBI and

other agencies to complete the

investigation expeditiously, keeping the

court informed from time to time of the

progress of the investigation so that the

court retained seisin of the matter till

the investigation was completed and the

charge-sheets were filed in the competent

court for being dealt with, thereafter, in

accordance with law.”

45.When the Government Agencies failed in unearthing

offences of magnitude the doors of constitutional

courts have been knocked by citizens to come to their

rescue. One of the tools of this Court to advance

justice and fulfil the constitutional objectives is

recognizing a special category of litigation, namely,

PIL. Durga Das Basu in Commentary on the Constitution

of India Vol.6 8

th

Edition 2010 while delineating

scope and object of such litigation states:

48

“1.The grievance in a public interest

action is about the content and conduct of

Government action in relation to the

constitutional or statutory rights of

segments of society and in certain

circumstances the conduct of Government

policy. The relief to be granted looks to

the future and is, generally, corrective

rather than compensatory which, sometimes,

it also is. The Court has a more dynamic

and positive role. It often does seek the

assistance of expert panels, commissioners,

advisory committees etc. The relief implies

affirmative action. The remedy is both

imposed, negotiated or quasi-negotiated.”

46.A Constitution Bench of this Court speaking

through Bhagwati, CJ in M.C. Mehta and another vs.

Union of India and others, 1987 (1) SCC 395, while

considering the nature of PIL and power under Article

32 held that under Article 32 this Court is free to

devise any procedure appropriate for particular

purpose of the proceeding. In paragraphs 6 and 7

following was stated:

“6. So far as the power of the court under

Article 32 to gather relevant material

bearing on the issues arising in this kind

of litigation, which we may for the sake of

convenience call social action litigation,

and to appoint Commissions for this purpose

is concerned, we endorse what one of us,

namely, Bhagwati, J. as he then was, has

said in his judgment in Bandhua Mukti

Morcha case. We need not repeat what has

49

been stated in that judgment. It has our

full approval.

7. We are also of the view that this Court

under Article 32(1) is free to devise any

procedure appropriate for the particular

purpose of the proceeding, namely,

enforcement of a fundamental right and

under Article 32(2) the court has the

implicit power to issue whatever direction,

order or writ is necessary in a given case,

including all incidental or ancillary power

necessary to secure enforcement of the

fundamental right. The power of the court

is not only injunctive in ambit, that is,

preventing the infringement of a

fundamental right, but it is also remedial

in scope and provides relief against a

breach of the fundamental right already

committed vide Bandhua Mukti Morcha case .

If the court were powerless to issue any

direction, order or writ in cases where a

fundamental right has already been

violated, Article 32 would be robbed of all

its efficacy, because then the situation

would be that if a fundamental right is

threatened to be violated, the court can

inject such violation but if the violator

is quick enough to take action infringing

the fundamental right, he would escape from

the net of Article 32. That would, to a

large extent, emasculate the fundamental

right guaranteed under Article 32 and

render it impotent and futile. We must,

therefore, hold that Article 32 is not

powerless to assist a person when he finds

that his fundamental right has been

violated. He can in that event seek

remedial assistance under Article 32. The

power of the court to grant such remedial

relief may include the power to award

50

compensation in appropriate cases. We are

deliberately using the words “in

appropriate cases” because we must make it

clear that it is not in every case where

there is a breach of a fundamental right

committed by the violator that compensation

would be awarded by the court in a petition

under Article 32. The infringement of the

fundamental right must be gross and patent,

that is, incontrovertible and ex facie

glaring and either such infringement should

be on a large scale affecting the

fundamental rights of a large number of

persons, or it should appear unjust or

unduly harsh or oppressive on account of

their poverty or disability or socially or

economically disadvantaged position to

require the person or persons affected by

such infringement to initiate and pursue

action in the civil courts. Ordinarily, of

course, a petition under Article 32 should

not be used as a substitute for enforcement

of the right to claim compensation for

infringement of a fundamental right through

the ordinary process of civil court. It is

only in exceptional cases of the nature

indicated by us above, that compensation

may be awarded in a petition under Article

32. This is the principle on which this

Court awarded compensation in Rudul Shah v.

State of Bihar 5. So also, this Court

awarded compensation to Bhim Singh, whose

fundamental right to personal liberty was

grossly violated by the State of Jammu and

Kashmir6. If we make a fact analysis of the

cases where compensation has been awarded

by this Court, we will find that in all the

cases, the fact of infringement was patent

and incontrovertible, the violation was

gross and its magnitude was such as to

shock the conscience of the court and it

would have been gravely unjust to the

51

person whose fundamental right was

violated, to require him to go to the civil

court for claiming compensation.”

What is said about Article 32 of the Constitution

is also true for jurisdiction of High Courts under

Article 226.

47.This Court time and again forged and fashioned

new designs to enforce fundamental rights and to

redress other grievance of the people. There are

several instances of this Court and High Courts

issuing directions for carrying out investigation by

Special Investigation Team which consisted even

retired officers. This Court in Guruvayoor Devaswom

Managing Committee and another vs. C.K. Rajan and

others, (2003) 7 SCC 546, has elaborately noticed the

scope of Public Interest Litigation and has

catalogued the principles evolved by this Court in

paragraph 50 of the judgment. Eleven principles have

been summarized. In sub-para (ix) this Court held:

“50.(i)XXX XXX

(ix) The Court in special situations may

appoint a Commission, or other bodies for

the purpose of investigating into the

52

allegations and finding out facts. It may

also direct management of a public

institution taken over by such Committee.

(See Bandhua Mukti Morcha , Rakesh Chandra

Narayan v. State of Bihar and A.P.

Pollution Control Board v. Prof. M.V.

Nayudu.)”

48.Different High Courts and this Court have passed

several orders constituting Special Investigation

Team to carry out investigations in cases where such

requirement was found necessary. Before Division

Bench of Bombay High Court in Ranjitsing

Brahmajeetsing Sharma and Ors. Vs. Kisan Baburao

Hazare and Ors., 2004 (3) MhLJ 760, was a case where

SIT was constituted which consisted of retired

Director General of Police. Initially order was

passed on 04.09.2003 by consent of the parties with

regard to SIT to be headed by Mr. S.S. Puri, retired

Director General of Police. When a subsequent order

dated 24.09.2003 was passed providing that Mr. S.S.

Puri will exercise all powers exercisable by Director

General of Police, as if he is in service and the

Government Resolution was issued on 26.09.2003 to the

said effect, an application was filed for recalling

the subsequent direction dated 24.09.2003. The

53

submission was made before the Court that Mr. S.S.

Puri being not in service and as a result of

direction issued by the Court there were two Director

Generals of Police in the State of Maharashtra which

was contrary to the provisions of the All India

Services Act, 1951 read with the Indian Police

Service (Cadre) Rules, 1954 and I.P.S. (Fixation of

Cadre Strength) Regulations, 1955. The submission was

also made that in exercise of jurisdiction under

Article 226 the High Court cannot overstep limits

prescribed by statute. It was contended that order of

the Court trenches upon the statutory machinery which

has been envisaged in the Cr.P.C. for investigation

of offences. The Division bench of Bombay High Court

repelled the submission it held that the order of the

High Court does not supplant the provisions of

Cr.P.C. or disabled the machinery of investigation

that has been designed under the Code. The Division

Bench in paragraph 27 observed:

“27. Good governance in a civil society is

inextricably woven with the fabric of

ordered liberty. Enforcement of law, the

investigation of crimes and the prosecution

of offenders constitute important

components of a system which is guided by

the ideals of the Rule of Law. Ideals in

54

the distant horizon they seem to be when

the conscience of a society is aroused by

wrongdoing which is of a systemic nature.

The evolution of a society from market

control to market reform is an important

milestone in development. The dominance of

market forces furnishes new avenues for the

generation of wealth. On the other hand,

the sanctity of the economic system and its

stability can be destroyed by systemic

franks of the kind that contemporary

economics have had to confront. Effective

investigation and prosecution are the

hallmarks of a legal system committed to

the protection of human rights as they are

of a legal regime that protects legitimate

forms of economic activity. Courts must and

do have a healthy respect for the

demarcation of powers between the

executive, the legislature and the

judiciary. Equally, nothing can be as

destructive of the rule of law as the lack

of independence and impartiality of the

investigation and prosecutorial processes.

When systemic issues of the kind involved

here arise before the Court, the obligation

of the court as expounder of constitutional

precept warrants flexible and effective

remedies. The evolution of legal doctrine

is not stratified in a frozen dialogue.

Courts must and do respond to felt

necessities of the time ensuring that in

the process they do not offend the

constitutional distribution of powers or

statutory prohibitions. Doctrinal

immutability should not stultify a

democratic society in its effort to find

effective measures for unheralded wrongs.”

49.A Full Bench of the Madras High Court in R.

Sankarasubbu vs. The Commissioner of Police, Egmore,

55

Chennai, 2013 (1) CTC 1, appointed one Mr. R.K.

Raghavan, former Director of CBI. In this context in

paragraph 76(i) following has been stated:

“76.(i) We hereby appoint Mr. R.K.

Raghavan, former Director of Central Bureau

of Investigation, as Investigating Officer

of Special Investigation Team(SIT), to be

assisted by Dr. M. Narayana Reddy, former

Professor and Head of the Department of

Forensic Medicine, Osmania University,

Hyderabad, Andhra Pradesh to investigate

this case.”

50.This Court in Advocates Association, Bangalore

vs. Union of India and others, (2013) 10 SCC 611, has

noticed that the High Court of Karnataka has

constituted SIT which was headed by a retired

Director of CBI. Paragraph 7 of the judgment is as

follows:

“7. The High Court, by order dated 16-5-

20121, constituted a Special Investigation

Team (SIT) headed by Dr R.K. Raghavan, a

retired Director of CBI as Chairman and Mr

R.K. Dutta, Director General of Police,

CID, Bangalore as Convenor along with other

police officials to investigate into the

incident with reference to the complaints

lodged by the police, advocates as well as

media against each other and to conclude

the same within 3 months from the date of

the government notification. In pursuance

of the same, the State Government issued a

series of notifications constituting and

reconstituting SIT for reasons of non-

56

availability of officers to be its

members.”

51.Although this Court ultimately entrusted the

investigation to CBI but the fact we notice that the

High Court had appointed SIT which was headed by

retired CBI Director General. Recently this Court in

SUNITA DEVI AND ANOTHER VS. UNION OF INDIA AND

OTHERS, (2018) 3 SCC 664, has appointed a SIT to

investigate a case of murder where one Shri Shri M.L.

Sharma, IPS (retired), former Special Director,

CBI, was appointed as Chairman of the SIT. In

paragraph 10 following was directed:

“10. Having examined the entire materials

placed on record, we deem it proper to

constitute a Special Investigating Team

(SIT) to reinvestigate FIR No. 221 of 2001

titled “State v. Manvir Singh” registered

at Police Station Pilakhua, District

Ghaziabad, U.P. Shri M.L. Sharma, IPS

(retired), former Special Director, CBI, is

appointed as the Chairman of the SIT. Shri

M.L. Sharma is permitted to take assistance

of two officers of his choice of CBI as its

members. We direct the SIT to proceed as

regards further investigation in respect of

FIR No. 221 of 2001 and to submit its

report within a period of three months from

today. Needless to say that appropriate

secretarial assistance and logistic support

shall be made available to the SIT by the

57

Government of Uttar Pradesh. The Government

of Uttar Pradesh is also directed to

provide to the Chairman and the members of

the SIT all travelling, boarding and

lodging expenses while discharging their

responsibility entrusted to them.”

52.Learned counsel for the appellants relied on a

judgment of this Court in Board of Control for

Cricket in India vs. Cricket Association of Bihar and

others, 2014 (7) SCC 385, where suggestion to include

Mr. M.L. Sharma, retired IPS was not accepted. In his

place one Mr. B.B. Mishra, IPS of the 1983 Batch was

included.

53.The judgments as noted above indicate that the

High Courts and this Court in their several judgments

have included retired Police Officers to be part

of SIT or to head a SIT. Learned Attorney General has

submitted that these are those cases where the

appointment of retired officers was made but the

Court had no occasion to consider the legality of

such appointment in exercise of jurisdiction under

Article 226 or Article 32. We having noticed the

expansive nature of jurisdiction under Article 226

and the exposition of law of this Court extracted

58

above, the jurisdiction of constitutional courts

under Article 226 and Article 32 can be used to

forge new methodology to achieve the constitutional

objectives. No fetter can be read in the jurisdiction

under Article 32 or 226 as contended by the learned

Attorney General. For sufficient reason investigation

can be handed over to a person who is retired or no

longer in employment. The functions which are to be

performed by that person is under authority of

Court’s order. There may be varied situations and

circumstances where a former officer is entrusted

with an investigation or any other function to

achieve an object or purpose. When the constitutional

courts direct particular officer to carry on specific

job that order cannot be treated to be put that

person in office of that post with all necessary

consequences. The particular object is entrusted or

only a specific job is entrusted to the officer which

he has to carry. The Court in issuing such direction

neither creates any ex-cadre post nor affects the

post of officer by giving any kind of appointment

to a post. The violation of All India Services Act,

1951 or Rules framed thereunder cannot be read in

59

entrustment of specific job to a retired officer.

Learned Attorney General has submitted that in view

of subsequent Government Order dated 09.12.2002 which

has been placed before us now re-employment of

Government servants beyond the age of superannuation

of 60 years is not permissible. He has also referred

to the All India (Death-cum-Retirement Benefits)

Rules, 1958 where under Rule 16(1)A there is

provision of giving extension in service to the

incumbents of the posts of the Cabinet Secretary,

Defence Secretary, Home Secretary, Director,

Intelligence Bureau, Secretary, Research and Analysis

Wing and Director, Central Bureau of Investigation

for such period as it may deem proper. There cannot

be any quarrel to the above provision nor

applicability of the above provision in facts of the

present case. Present is not a case where Government

has decided to extend the services of respondent

No.2. It is relevant to note that the High Court

issued direction in paragraph 45(1) appointing

respondent No.2 as a Special Officer to head Idol

Wing-CID, Chennai to deal with the cases of theft of

Idols and antiques in all stages, for a period of one

60

year, after his superannuation w.e.f. 30.11.2018. The

Court further directed “the Government to pass orders

to that effect”. The Court clearly intended that in

the above regard Government may pass appropriate

orders. It is open for the Government to issue orders

enabling respondent No.2 to carry on functions as per

the direction. Learned Attorney has taken

exception to direction No.3 by which is directed

that respondent No.2 shall draw the same pay and

benefits that were available to him at the time of

his retirement as Special Officer. On objection being

raised to the said direction, learned counsel for

respondent No.2 has fairly submitted before us that

respondent No.2 is ready to carry on and discharge

his duties as per orders of this Court without

drawing any pay and benefits as directed by the High

Court. We are of the view that the High Court instead

of issuing direction No.3 ought to have given option

to the State Government either to continue/re-employ

respondent No.2 or in alternative fix some honorarium

for the duties entrusted on respondent No.2. The

State Government having not passed any order in

consequence of which respondent No.2 may continue in

61

the office of Inspector General of Police, justice

would be served when the State Government is directed

to pay some honorarium during the period respondent

No.2 performed his duties under the order of the

Court in addition to his pension. We, however, make

it clear that any pay and benefits which have already

been extended to respondent No.2 shall neither be

recovered nor adjusted.

54.We, thus, conclude that the High Court in

exercise of jurisdiction under Article 226 can very

well direct respondent No.2 to head the

Special Investigation Team to carry out investigation

and other functions after attaining the age of

superannuation. We, further, hold that directions of

the High Court dated 30.11.2018 to continue

respondent No.2 in Idol Wing of CID after his

superannuation is sustainable.

55.Learned Attorney General as well as Shri Mukul

Rohtagi further submitted that there are allegations

against respondent No.2, several complaints were

filed and it cannot be said that the respondent No.2

62

is the competent officer to continue as head of the

Idol Wing. It is submitted that respondent No.2 in

the writ petition has filed affidavit on 27.11.2018

with regard to which there was no opportunity given

to the appellant to file reply. Alongwith affidavit

dated 27.11.2018 several self-serving documents were

brought on record by respondent No.2 which were

relied by the High Court. It is, further, submitted

that alongwith I.A.No.180358 of 2018 as well as

I.A.No.30023 of 2019 details of various

complaints were brought on record before this Court.

On the basis of which it is clear that respondent

No.2 cannot claim to be an officer with clean records

and officer having no complaints.

56.Learned counsel appearing for the PIL refuting

the above submission submitted that before the High

Court no grievance was raised against respondent No.2

regarding his competence or complaints against him,

it is only after the orders have been passed by the

High Court on 30.11.2018 that certain complaints were

obtained against respondent No.2 which are sought to

be filed along with I.A.No.30023 of 2019. It is

63

submitted that complaints which have been brought on

record are complaints which were obtained in the

third and fourth week of December, 2018. The High

Court in the impugned judgment before issuing a

direction to continue respondent No.2 in the Idol

Wing has thoroughly examined the credential of

respondent No.2. The High Court in paragraph 34 of

the judgment has noticed the statement of learned

Additional Advocate General that there are no

allegations against respondent No.2 except that he

has not submitted the report to Additional Director

General of Police. Following observation was made by

the High Court in paragraph 34:

“34. Even earlier, during the earliest

of hearings, when it was mentioned before

this Court about such conduct of the Police

Department, the learned Additional Advocate

General fairly submitted that the only

blemish on the part of the officer is that

he has not submitted the reports to the

Additional Director General of Police and

that apart there are no allegations against

him.”

57. The reasons for directing respondent No.2 to

continue have been set out by the High Court in

paragraph Nos. 35 to 41. The High Court has taken

64

note of the fact that the Government order dated

01.08.2018 transferring the cases to CBI having been

quashed, it has become just and necessary for the

Court as the custodian of the Idols, in the role of

parens patriae to exercise its jurisdiction to

formulate a solution. Following has been stated in

paragraph 35:

“35. Now, considering that the Government

order has been quashed and that the State

is not inclined to continue the cases, the

CBI has categorically refused to take up

the cases and expressed its intention to

assist the existing team; that the Central

Government has so far remained silent, an

extraordinary situation has arisen, by

which, a vacuum has been created and this

Court has to take a timely decision to

protect the idols and treasures of the

temples. Hence it has become just and

necessary for this Court as the custodian

of the Idols, in the role of parens patriae

to exercise its jurisdiction to formulate a

solution to bring about a continuity

in the investigation and to safe guard the

idols, which are valuable properties of

this country. It has come to the knowledge

of this Court that Mr.A.G.Pon Manickavel,

I.P.S in the rank of Inspector General of

Police is attaining superannuation in

the forenoon of 30.11.2018. The credibility

of the officer is evident from the fact he

has been fair and impartial in his

actions. This Court is also satisfied with

the procedure followed by him in securing

the accused. It was also brought to the

knowledge of this Court, that even

65

recently, more than 250 idols were

unearthed by him based on the information

received from credible sources. Some idols

were also recovered during transit. He has

been able to keep the informants intact and

show tremendous progress.”

58.In paragraph 36 the Court has noticed the details

of the work accomplished by Idol Wing and the Idols

recovered by the SIT headed by respondent No.2. In

paragraph 40 of the judgment, the High Court also

noticed the Performance Appraisal Report of

respondent No.2 and it noticed that respondent was

assessed by 28 officers and he has been given

excellent grading by 27 officers, except one officer

who made adverse remarks which had been set aside by

the Central Administrative Tribunal. We, thus, are of

the view that the High Court had after due

examination of all relevant documents taken a

decision to continue respondent No.2 to head the Idol

Wing. The High Court has referred to various

judgments of the High Court and this Court where work

and conduct of respondent No.2 was appreciated which

observations were extracted by the High Court in

support of its conclusion.

66

59.The statement of Additional Advocate General

noted by the High Court in paragraph 34 clearly

indicates that before the High Court there were

no allegations against respondent No.2 as to come to

the conclusion that he was not a fit person to be

directed to continue in the Idol Wing. The complaints

which have been now referred to and relied by the

appellant are the complaints which have been

submitted after the judgment of the High Court.

Alongwith I.A.No.10291 of 2018 the petitioners have

referred to certain complaints in paragraph 6 in

tabular chart. The said chart indicates that

complaints are of 17, 18 and 26 December, of 2018.

They are the complaints which were submitted even

after the filing of the SLP in this Court. We are not

required to enter into correctness or otherwise of

the allegations in the complaints. The High Court in

its direction has observed that if there are

materials against respondent No.2 the same can be

placed before the High Court for further direction.

On the strength of the complaints which are

subsequently submitted after the judgment of the High

67

Court, we are not persuaded to accept the submission

of the appellant that respondent No.2 was not a fit

person to be allowed to head the Idol Wing after

30.11.2018. In so far as submission of learned

counsel for the appellant that after filing of the

affidavit on 27.11.2018 by the respondent No.2 no

opportunity was given to the appellant, it is useful

to extract paragraph 34 of the judgment where High

Court observes “As an affidavit was filed on

27.11.2018, again a direction in similar lives was

issued by us on 27.11.2018 to place any materials if

available before this Court. However, till date no

such materials have been placed before us.” We, thus,

are of the view that the High Court had given

opportunity to place the materials, if any. We, thus,

are of the view that the High Court did not commit

any error in directing respondent No.2 to continue to

head the Idol Wing after his superannuation on

30.11.2018.

Issue No.5

60.Now we come to the 10 directions issued by the

High Court in paragraph 45 of the judgement which

68

have been assailed by the learned Attorney General on

the ground that each and every direction is contrary

to law. We will take up each direction separately:

(1)By direction No.1, respondent No.2 was

directed to function as Special Officer to

head Idol Wing-CID, Chennai on his

superannuation on 30.11.2018. The Government

was directed to pass orders to that effect.

We have already while considering Issue Nos.3

and 4 held that respondent No.2 could have

been directed to work as a Special Officer to

head Idol Wing-CID, hence, we do not find any

error in direction No.1.

(2)With regard to direction No.2, Special Team

was already constituted by the earlier order

of the High Court dated 21.07.2017 which was

directed to be continued to which direction

no exception can be taken.

(3)With regard to direction No.3, it was

directed to respondent No.2 to draw the same

pay and benefits that were available to him

69

at the time of his retirement for the entire

tenure of his term as Special Officer. We are

of the view that instead of such direction,

the High Court ought to have given an option

to the State Government either to pass an

order for re-employment/re-engagement or the

liberty ought to have been given to State to

fix some honorarium in addition to pension

which would have been drawn by respondent

No.2. During the course of hearing learned

counsel for respondent No.2 has submitted

that respondent No.2 is ready to carry on his

duty as entrusted by the High Court even

without receiving any emoluments. We are of

the view that in the facts and circumstances

of the case, direction No.3 deserves to be

modified to the effect that the State shall

fix a honorarium to be paid to respondent

No.2 in addition to pension to be drawn by

him. We further observe that in the event any

amount has already been paid to respondent

No.2 in pursuance to the direction of the

70

High Court, the same shall not be recovered

and adjusted.

(4)By direction No.4 the High Court directed the

Special Officer to investigate the cases

thoroughly and submit all the reports before

the Court in a sealed cover to enable the

Court to monitor the investigation. We have

noticed that an Additional Director General

of Police was appointed to head the Idol Wing

by order dated 29.11.2018, it was not

necessary for the High Court to burden itself

with scrutinising each and every report and

requiring each and every report to be

submitted before the Court. There being a

higher Officer posted in the Idol Wing,

progress and result of the investigation

ought to have been reported to Additional

Director General of Police and the report in

the High Court was necessary when certain

directions were required by the Special

Officer. We modify direction No.4 to the

effect that report of progress of the

71

investigation shall be submitted to the

Additional Director General of Police of Idol

Wing and report to the High Court may be

submitted by the Special Officer only when

any further directions are required from the

High Court.

(5)With regard to direction No.5, by this

direction the Special Officer is directed to

continue to not only investigate and file

charge sheets and prosecute in the pending

cases but also to continue to do so in the

cases arising in future during his tenure. No

exception can be taken.

(6)The direction No.6 which requires CBI and

other agencies of Central Government shall

continue to give appropriate support to the

Special Officer. No exception can be taken

since CBI itself sent letter dated 19.09.2018

communicating its support.

(7)With regard to direction 7 serious objection

has been raised by the learned Attorney

72

General. He submits that the said direction

gives exemption to respondent No.2. The

respondent No.2 cannot be held above law. We

are of the view that no one including

respondent No.2 is above the law. The High

Court has given liberty to the State or any

competent authority to place the materials

before the Court for further direction if

there are any materials against respondent

No.2. The liberty given in direction No.7

amply protects the interest of the State

which needs no interference.

(8)Direction No.8 pertains to communications to

concerned Departments to extend co-operation

to the Special Team with which no exception

can be taken.

(9)With regard to direction No.9, learned

Attorney General submits that the High Court

ought not to have given any direction with

regard to financial aspects. He submits that

there is a procedure for allocation of

73

finances for which passing of budget is

required. It is to be noted that Idol Wing

has been created by the State in 1983 and for

several decades Idol Wing has been continuing

without provision of any separate division to

handle the financial aspects. We are of the

view that there was no such requirement to

issue any direction to create such division

to handle the financial aspects. The Idol

Wing has to be run as per budget allocation

and in any case of requirement it is always

open to the higher Police authorities and

State Government to do the needful. Direction

No.9, thus, is to be deleted.

(10)Direction No.10 is general direction to which

no exception can be taken.

Issue No.5 is decided accordingly.

Issue No.6

61.The High Court while delivering judgment on

30.11.2018 noticed the order dated 29.11.2018 which

74

was brought into the notice of the Court by

respondent No.2 with regard to which observation has

been made by the High Court in paragraphs 47 ad 48 of

the judgment. In paragraphs 47 and 48 following has

been observed:

“47. When we are about to pronounce this

order, the petitioner in WP.No.20392 of

2018 produced a copy of the proceedings

issued by the Government of Tamil Nadu in

Police Note No.SC/19/2018 dated 29.11.2018

indicating that one Thiru.Abhay Kumar

Singh, IPS, Additional Director General of

Police/Chief Vigilance Officer, Tamil Nadu

Newsprint and Papers Limited, Karur has

been transferred and posted as Additional

Director General of Police, Idol Wing, CID,

Chennai by upgrading the post of Inspector

General of Police, Idol Wing CID.

48. We are of the view that the State all

along, is not inclined to continue with the

investigation of idol theft cases as the

same were transferred to CBI despite

pendency of the stay order of this Court.

It is also pertinent to note that after the

orders were reserved, they have upgraded

the post of the Additional Director General

of Police and appointed an officer, by

order dated 29.11.2018, which action is

inappropriate and it would amply prove the

transfer of cases in a most hurried manner

within a single day i.e., on 01.08.2018.

Similarly, the manner in which the present

order dated 29.11.2018 has been passed,

will speak for itself. Hence,

notwithstanding the order dated 29.11.2018

passed by the Government, which has become

redundant, Tr.A.G.Pon Manickavel shall take

charge as Special Officer to head the Idol

Wing as ordered by us, in order to preserve

75

the idols as well as recovery of the stolen

idols to uphold the cultural heritage of

this land.”

62.The above observation itself indicates that by

the Government order dated 29.11.2018 the post of

Inspector General of Police was upgraded as

Additional Director General of Police who was

appointed by the State Government on 29.11.2018. The

order dated 29.11.2018 being not under challenge in

the writ petition, it was not necessary for the High

Court to make any observation in that regard. Without

there being any challenge to the order dated

29.11.2018, the High Court was not right in observing

that order dated 29.11.2018 has become redundant. We,

thus, disapprove the observation made by the High

Court in paragraphs 47 and 48 that the order dated

29.11.2018 has become redundant. Order dated

29.11.2018 was a Government order which was not

challenged in the writ petition, the same shall

remain effective that the Idol Wing shall be headed

by the Additional Director General of Police

appointed on 29.11.2018. The Idol Wing shall be

headed by the Additional Director General of Police.

76

We, however, observe that Special Officer shall take

all appropriate steps along with his Team and he

shall submit report to the Additional Director

General of the result of the investigations so that

appropriate further action be taken. Issue No.6 is,

thus, answered accordingly.

63.Before we close, we need to clarify one aspect

and notice one necessary caution with regard to what

has been said above, i.e.,

(i) Insofar as filing of the statutory reports

as per the procedure prescribed in the Code

of Criminal Procedure, necessary reports

have to be filed by the officer authorized

as per Code of Criminal Procedure.

(ii) There might arise exceptional cases where

the direction for appointment of retired

officers may be unavoidable to achieve the

goal of justice but the High Court may

resort to the power under Article 226 only

after weighing all pros and cons and after

77

exhausting all options and as a matter of

last resort. Taking services of a retired

police officer or any other retired

personnel is not to be normally resorted to

since in the State concerned, there is

always no dearth of competent and able

officers, hence whenever the Court finds it

necessary to take assistance of services of

the retired officers or personnel, it

should be with necessary caution and

resorted to only when there are very valid

and unavoidable circumstances.

64.In view of the foregoing discussions, the appeals

are partly allowed. The judgment of the High Court is

modified to the following extent:-

(1)The direction No.9 issued in paragraph 45 of

the judgment of the High Court is deleted and

directions Nos.3 and 4 are modified as

indicated in paragraphs 60(3) and 60(4) of

this judgment.

(2)The order of the High Court in paragraph 48

that the Government order dated 29.11.2018

78

has become redundant is set aside.

65.Parties shall bear their own costs.

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

( ASHOK BHUSHAN )

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

( K.M. JOSEPH )

New Delhi,

APRIL 12, 2019.

79