ANANT THANUR KARMUSEversusTHE STATE OF MAHARASHTRA & ORS

56                       [2023]
              SUPREME COURT     3 S.C.R. 56
                             REPORTS                       [2023] 3 S.C.R.


A                      ANANT THANUR KARMUSE
                                       v.
                 THE STATE OF MAHARASHTRA & ORS.
                        (Criminal Appeal No.13 of 2023)
B                            FEBRUARY 24, 2023
               [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
            Code of Criminal Procedure, 1973 – s.173(8) –Further
     Investigation – Transfer of Investigation to CBI –Appellant shared
     a viral picture of then Cabinet Minister on facebook–As per him,
C
     appellant was forcibly took from his residence by police officers
     and beaten up and threatened by the police – FIR lodged by
     appellant, however, name of the Cabinet Minister not named in FIR
     – Writ Petition was filed in the High Court seeking transfer of
     investigation to CBI or to any other agency–During the pendency
D    of the writ petition, the trial Court framed the charges against the
     accused on the basis of the chargesheets filed –The High Court
     refused to transfer the investigation –High Court while dismissing
     the petition observed that once the charges have been framed by
     the Magistrate/Trial Court and therefore, it can be said that the
     trial has begun and therefore, thereafter, re- investigation/further
E
     investigation is not permissible– On appeal, held : Investigation
     may be transferred to the CBI only in “rare and exceptional cases”
     –High Court has not committed any error in refusing to transfer the
     investigation to CBI –The real investigation started only after the
     intervention of the High Court and after passing various orders in
F    the present proceedings by the High Court – Even according to the
     State investigating agency, still the further investigation is required
     on certain aspects – The victim has a fundamental right of fair
     investigation and fair trial –Therefore, mere filing of the chargesheet
     and framing of the charges cannot be an impediment in ordering
     further investigation / re-investigation / de novo investigation, if
G
     the facts so warrant – No proper investigation by the State
     investigating agency at the relevant time and even the material
     evidences were also not collected – High Court has committed a
     very serious error in not ordering and/or permitting the State police
     agency to further investigate into the FIR.
H
                                       56
       ANANT THANUR KARMUSE v. THE STATE OF                             57
               MAHARASHTRA & ORS.

      Partly allowing the appeal, the Court                             A
      HELD :1.Bearing in mind the position of law, in the facts,
and circumstances of the case, this Court is of the opinion that
the High Court has not committed any error in refusing to transfer
the investigation to CBI. Even the appellant has not vehemently
pressed such a prayer. The Court is in complete agreement with          B
the view taken by the High Court insofar as refusing to transfer
the investigation to CBI is concerned. Applying the law laid down
by this Court in the case of Dharam Pal and Bharati Tamang and
to do the complete justice and in furtherance of fair investigation
and fair trial, the constitutional courts may order further
investigation / re-investigation / de novo investigation even after     C
the charge sheet is filed and the charges are framed.[Paras 7.4
and 11][70-E-F; 75-D]
      3. It is required to be noted that in the present case, the
allegations in the FIR, right from very beginning, were against
the accused No. 13, who at the relevant time was the sitting            D
Cabinet Minister occupying the high position. Even at the
relevant time, when the State Police investigated the FIR bearing
No. 120 of 2020, in the first chargesheet and the second
chargesheet did not name the accused No. 13. Even the
investigation was also conducted in a perfunctory manner. The           E
real investigation started only after the intervention of the High
Court and after passing various orders in the present proceedings
by the High Court. The allegations in the FIR were very serious
including the misuse of powers by the sitting Cabinet Minister
and of abducting, kidnapping and beating the complainant.[Para
12.1][75-G-H; 76-A-B]                                                   F

      4. Be that as it may,even according to the State investigating
agency, the further investigation is required. As observed and
held by this Court in its various decisions, the victim has a
fundamental right of fair investigation and fair trial. Therefore,
mere filing of the chargesheet and framing of the charges cannot        G
be an impediment in ordering further investigation / re-
investigation / de novo investigation, if the facts so warrant. [Para
12.3][77-B]
      5. The endeavour of the Court should be to have the fair
investigation and fair trial only. Therefore, in the facts and          H
58            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A    circumstances of the case narrated hereinabove, this Court is of
     the opinion that a case is made out for further investigation and
     the State agency may be permitted to conduct a further
     investigation and to bring on record the further material, which
     may be in the furtherance of fair investigation and fair trial. The
     High Court has committed a very serious error in not ordering
B
     and/or permitting the State police agency to further investigate
     into the FIR bearing Nos. 119 and 120 of 2020. The High Court
     has not considered the relevant aspects narrated hereinabove
     and therefore interference of this Court is warranted. [Para 13][77-
     E-G]
C          Himanshu Kumar and Ors. Vs. State of Chhattisgarh
           and Ors., 2022 SCC Online SC 884; Bharati Tamang
           Vs. Union of India and Ors., (2013) 15 SCC 578:[2013]
           14 SCR 525; Dharam Pal Vs. State of Haryana and
           Ors., (2016) 4 SCC 160 : [2016] 1 SCR 194 – relied
D          on.
           Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 :
           [2010] 10 SCR 651; Ram Jethmalani Vs. Union of India
           (2011) 8 SCC 1 : [2011] 8 SCR 725; Vinubhai Haribhai
           Malviya and Ors. Vs. State of Gujarat and Anr., (2019)
E          17 SCC 1 : [2019] 15 SCR 936; Rama Chaudhary Vs.
           State of Bihar, (2009) 6 SCC 346 : [2009] 5 SCR 482–
           referred to.
                           Case Law Reference
     [2013] 14 SCR 525              relied on         Para 8.1,11
F
     [2010] 10 SCR 651              referred to       Para 8.1
     [2011] 8 SCR 725               referred to       Para 8.1
     [2016] 1 SCR 194               relied on         Para 3.4, 8.2,11
     [2019] 15 SCR 936              referred to       Para 5.6, 9
G
     [2009] 5 SCR 482               referred to       Para 5.7, 10
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No.13 of 2023.
           From the Judgment and Order dated 26.04.2022 of the High Court
H    of Judicature at Bombay in WP No.411 of 2021.
        ANANT THANUR KARMUSE v. THE STATE OF                                  59
                MAHARASHTRA & ORS.

      Mahesh Jhethmalani, Siddharth Dave, Sr. Advs., Chirag Shah,             A
Utsav Trivedi, Anirudh Ganu, Ms. Manini Roy, Himanshu Sachdeva,
Ms. Shivani Bhushan, Piyush Tiwari, Ms. Kanjani Sharma, Prastut Dalvi,
Ms. Mugdha Pande, Ms. Astha Prasad, Advs. for the Appellant.
      Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Dr. Abhishek Manu
Singhvi, Shekhar Naphade, Sr. Advs., Ms. Diksha Rai, Tushar Sonawane,         B
Ms. Ragini Pandey, Ms. Atiga Singh, Rahul Chitnis, Siddharth
Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Ms. Kirti
Dadheech, Rajat Nair, Pratyush Srivastava, Madhav Sinhal, A K Sharma,
Advs. for the Respondents.
      The Judgment of the Court was delivered by                              C
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Bombay dated
26.04.2022 passed in Writ Petition No. 411 of 2021 by which the High
Court has dismissed the said writ petition preferred by the appellant         D
herein – the victim seeking transfer of the investigation to Central Bureau
of Investigation or to any other agency to investigate / re-investigate the
FIR Nos. 119 of 2020 and 120 of 2020 registered at Vartak Nagar Police
Station, Thane, the original writ petitioner – the victim has preferred the
present appeal.                                                               E
      2. The facts leading to the present appeal and as per the case on
behalf of the appellant in nutshell are as under:-
       2.1 That the appellant is a Civil Engineer, working as a consultant,
shared on his Facebook account on 05.04.2020, a viral picture of one
Mr. Jitendra Awhad, the then sitting Cabinet Minister of the State of         F
Maharashtra (who is subsequently arrayed as accused No. 13 after the
High Court intervened), criticizing his act of ridiculing the Hon’ble Prime
Minister of India. According to the appellant, at around 11.50 pm at night
on 05.04.2020, four Policemen, two dressed in Civilian Dress and other
two in uniform came to his residence and forcibly took him to the
                                                                              G
Bungalow of the said Minister. According to the appellant, thereafter,
the Minister instructed his men to beat him and make him apologies for
circulating the said viral picture of the Minister. The Minister threatened
him to delete the post immediately. Thereafter, an ally of the Minister
called the appellant on his number as he left his phone in his house and
told his wife to delete the controversial post. According to the appellant,   H
60             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A    he was mercilessly and ruthlessly beaten up by the police personnel
     present at the premises of the Minister.
            2.2 That the appellant went to the Police Station and he got the
     information that an FIR bearing No. 119 of 2020 under Section 292 of
     the Indian Penal Code (IPC) and Section 66(E) of the Information and
B    Technology Act has been registered against him by the Police on the
     complaint of one Mr. Hitesh Wani, accused No. 3 in the present case
     and close ally of the Minister with sole purpose to threaten him if in case
     he decides to file a complaint about the said incident. It is the case on
     behalf of the appellant that thereafter the appellant without fear narrated
     the entire incident along with the specific allegations against the Minister
C    and the other police officials and registered a complaint against the
     Minister and his men. However, the names of the Minister, against whom
     the specific allegations were made and his men were not mentioned in
     the FIR bearing No. 120 of 2020 dated 06.04.2020 for the offences
     under Sections 365, 143, 144, 147, 149, 324 and 506(2) in the Vartak
D    Nagar Police Station, Thane. It is the case on behalf of the appellant
     that the concerned Minister was not named in the FIR as he was the
     sitting Cabinet Minister in the government of the State.
            2.3 That thereafter apprehending and alleging the bias and alleging
     that the entire investigation has been conducted in sham and casual
E    manner, and nothing significant was done by the Police, the appellant
     approached the High Court by way of present writ petition praying for
     transfer of the investigation of the aforesaid FIRs to the Central Bureau
     of Investigation (CBI), Mumbai or any other agency.
            It appears that thereafter various interim orders came to be passed
F    by the High Court in the writ petition and the investigating agency of the
     State was compelled to carry out the investigation. The Police filed the
     chargesheet initially without naming the concerned Minister namely, Mr.
     Jitendra Awhad as accused. However, thereafter and during the pendency
     of the writ petition before the High Court and in view of the constant
     monitoring of the investigation by the High Court, the Minister Mr. Jitendra
G    Awhad was added as accused two years after the said incident. That
     thereafter during the pendency of the writ petition, the learned Trial
     Court framed the charges against the accused on the basis of the
     chargesheets already filed, which according to the appellant was for the
     lesser offences than the actually committed, like, Kidnapping, abducting
H    and causing grievous hurt. That thereafter by the impugned judgment
        ANANT THANUR KARMUSE v. THE STATE OF                                      61
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

and order, the High Court has dismissed the said writ petition seeking            A
transfer of the investigation to the CBI and/or any other agency by
observing that after the investigation, the chargesheet is filed and the
High Court prima facie opined that by filing the chargesheet /
supplementary chargesheet, the investigating agency has conducted the
investigation from all angles and after considering the medical report
                                                                                  B
and even after collecting the CRD of the Mobile Phone and that once
the charges have been framed by the Magistrate / Trial Court and
therefore, it can be said that the trial has begun and therefore, thereafter,
re- investigation/further investigation is not permissible. By the impugned
judgment and order, the High Court has dismissed the said writ petition.
      2.4 Feeling aggrieved and dissatisfied with the impugned judgment           C
and order, the original writ petitioner – the victim has preferred the present
appeal.
       3. Shri Mahesh Jethmalani, learned senior counsel appearing on
behalf of the appellant has vehemently submitted that the entire
investigation was conducted by the investigating agency of the State in a         D
sham and casual manner because one of the accused was the influential
Minister of the State.
        3.1 It is submitted that despite the fact that the name of Mr. Jitendra
Awhad, Minister and his other men were disclosed in the FIR and a
clear case of kidnapping and causing grievous hurt was alleged, no FIR            E
was lodged against the Minister, Mr. Jitendra Awhad and his other men.
It is submitted that only after various orders were passed by the High
Court in the pending writ petition and the Hon’ble High Court was
monitoring the investigation, chargesheet / supplementary chargesheet
came to be filed and Mr. Jitendra Awhad was arrayed as an accused in              F
the supplementary chargesheet after a period of two years of the incident.
       3.2 It is further submitted that even the chargesheet is filed with
the lesser offences, like for the offences under Sections 324 and 365
and other lesser offences only. It is submitted that despite a clear case is
made out for the offence under Section 326 (grievous hurt), which is              G
established from the photographs and a clear case of kidnapping for the
offence under Section 367, the chargesheet has not been filed for the
offences under Section 326 read with Section 367 IPC.
     3.3 It is further submitted that even the relevant evidence in the
form of CDR of the mobile of the appellant as well as that of the
                                                                                  H
62             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A    concerned accused have not been collected. It is submitted that even
     the CCTV footage has also not been collected, which goes to the root of
     the investigation and the allegations against the accused persons.
            3.4 It is further submitted that as observed and held by this Court
     in the case of Dharam Pal Vs. State of Haryana and Ors., (2016) 4
B    SCC 160 (para 25), the Constitutional Courts are envisaged with the
     power to order fresh, de novo or re-investigation and as observed and
     held the commencement of a trial and examination of some witnesses
     cannot be an absolute impediment for exercising the said constitutional
     power, which is meant to ensure a fair and just investigation.
C           3.5 It is further submitted by Shri Jethmalani, learned senior
     counsel appearing on behalf of the appellant that as observed and held
     by this Court in the case of Bharati Tamang Vs. Union of India and
     Ors., (2013) 15 SCC 578, in case of deficient / unsatisfactory
     investigation, it is the duty of the Courts to ensure effective conduct of
     prosecution and the Courts have powers to direct re-investigation in
D    exceptional circumstances in case it warrants due to deficient /
     unsatisfactory investigation.
             3.6 It is submitted that as observed and held in the said decision if
     deficiency in investigation or prosecution is visible or can be perceived
     by lifting the veil which try to hide the realities or covering the obvious
E    deficiency, Courts have to deal with the same with an iron hand
     appropriately within the framework of law. It is submitted that it is further
     observed that it is the duty of the Court to ensure that full and material
     facts are brought on record so that there might not be miscarriage of
     justice. He has relied upon the observations made by this Court in
F    paragraph 41 of the said decision.
            3.7 It is further submitted by Shri Jethmalani, learned senior
     counsel appearing on behalf of the appellant that even the State has now
     in the counter affidavit specifically admitted that some further
     investigation is necessary/required on certain relevant and material
G    aspects, in the interest of justice under Section 173(8) Cr.P.C. It is
     submitted that now the State has specifically admitted the lapse in the
     investigation on certain material aspects and according to the State now,
     further investigation is needed on the relevant aspects mentioned in
     paragraph 4 of the counter affidavit before this Court. It is submitted
     that therefore also now the State / investigating agency of the State may
H    be permitted to conduct the further investigation in exercise of the
        ANANT THANUR KARMUSE v. THE STATE OF                                   63
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

constitutional powers to do the complete justice to the victim in              A
furtherance of the administration of criminal justice.
       4. Shri Tushar Mehta, learned Solicitor General appearing on
behalf of the State has pointed out certain lapses / lacunae in the
investigation earlier conducted by the State / investigating agency and
highlighted the lacunae from paragraph 4 of the counter affidavit and          B
has fairly conceded and even so stated in the counter affidavit that a
further investigation in exercise of powers under Section 173(8) Cr.P.C.
is needed / required.
      5. Shri Shekhar Naphade and Dr. Abhishek Manu Singhvi, learned
Senior Advocates have appeared on behalf of the respondent Nos. 3              C
and 5 and opposed the present appeal.
       5.1 It is vehemently submitted by the learned senior counsel
appearing on behalf of the respective contesting respondent Nos. 3 and
5 that as such no case is made out for transfer of the investigation to the
CBI, more particularly, when, now, not only the investigation is concluded     D
and the chargesheets have been filed but even thereafter the charges
have also been framed by the Trial Court. It is submitted that therefore
on framing of the charges, it can be said that the trial has begun and
therefore, the case may not be transferred to the CBI as prayed.
       5.2 It is further submitted that even otherwise the allegation of       E
grievous injuries is raised for the first time. It is submitted that as such
the allegation of grievous injuries alleged to have been caused to the
appellant has not been supported by any record or document. It is
submitted that the appellant never alleged that he suffered a fracture
due to injuries caused upon him.
                                                                               F
       5.3 It is submitted that the FIR registered by the appellant on
06.04.2020 is completely silent about the injuries being grievous and any
fracture being caused. It is submitted that the chargesheet filed by the
Police also states that the appellant was examined at Shivaji Hospital
and the medical report was received intimating that the injuries caused
are simple in nature. It is submitted that even the additional statement       G
given by the appellant to the Police on 10.04.2020 is also silent on the
aspect of any fracture being caused or the injuries being grievous in
nature.
      5.4 It is further submitted that even the Hon’ble High Court in
paras 16, 17 and 20 has categorically noted the fact that the appellant        H
64             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A    failed to produce any medical certificate or document evidencing any
     fracture or injuries being grievous in nature and ruled that the injuries
     are simple in nature, which is evident from the medical report filed with
     the charge sheet. It is submitted that, therefore, there is no substance in
     the allegation that there are any lacunae on the part of the investing
     agency in indicating a higher offence of grievous hurt / injuries.
B
           5.5 It is further submitted that even so far as the recovery of
     CCTV footage is concerned, the same has already been recovered,
     ceased and in the custody of the learned Magistrate.
             5.6 It is vehemently submitted by the learned senior counsel
C    appearing on behalf of the respective private respondent Nos. 3 and 5 –
     original accused that once the chargesheet has been filed, charges are
     framed and the trial has commenced, further investigation cannot be
     permitted. It is submitted that in the present case, the first chargesheet
     has been filed on 07.12.2020 and thereafter supplementary chargesheets
     have been filed on 28.7.2021 and 14.10.2021 in FIR No. 120/2020. It is
D    submitted that even the chargesheet in FIR No. 119/2020 has also been
     submitted to the concerned Magistrate on 13.09.2022. It is submitted
     that in the present case, the charges have been framed by the concerned
     Court in FIR No. 120/2020 against the accused Nos. 1 to 12 on 20.08.2021
     and on 28.11.2022 against accused No. 13 and, thus, the trial has
E    commenced. It is submitted that since the investigation is complete,
     chargesheets have been filed and charges have been framed, seeking
     re-investigation by the appellant is wholly impermissible under the law.
     It is submitted that upon framing of charges, the operation of Section
     173(8) ceases to operate since the trial has commenced as observed
     and held by this Court in Vinubhai Haribhai Malviya and Ors. Vs.
F    State of Gujarat and Anr., (2019) 17 SCC 1 (para 42).
             5.7 It is submitted that even as observed and held by this Court in
     the case of Rama Chaudhary Vs. State of Bihar, (2009) 6 SCC 346
     that from a plain reading of sub-section (2) and sub-section (8) of Section
     173, it is evident that even after submission of Police report under sub-
G    section (2) on completion of investigation, the Police has a right to
     “further” investigation under sub-section (8) of Section 173 but not “fresh
     investigation” or “re-investigation”.
            5.8 It is further submitted that so far as the prayer of the appellant
     to transfer the investigation to CBI is concerned, as observed and held
H    by this Court in catena of decisions, transfer of investigation to C.B.I. is
        ANANT THANUR KARMUSE v. THE STATE OF                                   65
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

to be done only in rarest of rare cases. Reliance is placed upon the           A
decision of this Court in the case of Himanshu Kumar and Ors. Vs.
State of Chhattisgarh and Ors., 2022 SCC Online SC 884 (para 44
onwards). It is submitted that as observed and held by this Court in the
case of State of West Bengal and Ors. Vs. Committee for Protection
of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571,
                                                                               B
the power to transfer investigation must be exercised sparingly, cautiously
and in exceptional situations. It is submitted that in the present case as
on the basis of the chargesheet, the Trial Court has framed the charges,
no exceptional case is made out to transfer the investigation to the C.B.I.
now.
        5.9 Now, so far as the change in its stand by the State, now, so       C
taken in the counter affidavit filed before this Hon’ble Court is concerned,
it is submitted that as such before the Hon’ble High Court, the State had
defended the investigation throughout. It is submitted that just because
the political dispensation in the State has changed, now, the State has
filed an affidavit before this Hon’ble Court seeking further investigation     D
in the matter without any substantial evidence and as such the same is
impermissible in law. It is submitted that this Hon’ble Court has time and
again held that the Governments change but the State remains the same.
Reliance is placed upon the decisions of this Court in the case of State
of Karnataka and Anr. Vs. All India Manufacturers Organisation
and Ors., (2006) 4 SCC 683 (para 57); State of Tamil Nadu and                  E
Ors. Vs. K. Shyam Sunder and Ors., (2011) 8 SCC 737 (para 35)
and Jal Mahal Resorts Private Limited Vs. K.P. Sharma and Ors.,
(2014) 8 SCC 804 (para 89).
       5.10 Now, so far as the chart filed in the affidavit of the State
wherein, the State has mentioned previous cases registered against             F
accused No. 13 is concerned, it is submitted that the State is trying to
prejudice this Hon’ble court as the correct status of those cases have
not been presented before this Court by the State. It is submitted that
out of the said 24 cases, 18 cases have either been withdrawn by the
State or disposed of by the respective learned Courts. It is further           G
submitted that in a case filed by a lady, accused No. 13 has been granted
anticipatory bail by the learned Court and the lady who registered the
FIR against accused No. 13 is herself facing an FIR under IPC and
POCSO Act. It is submitted that therefore the allegations made in the
counter filed by the State mentioning the previous cases registered against
                                                                               H
66            SUPREME COURT REPORTS                              [2023] 3 S.C.R.


A    accused No. 13 is nothing but a political vendetta and it is requested not
     to consider the same while considering the issue in the present case.
           5.11 Making above submissions, it is prayed to dismiss the present
     appeal.
            6. Heard the learned counsel appearing for the respective parties
B    at length.
            7. By the impugned judgment and order, the High Court has refused
     the prayer made on behalf of the appellant to transfer the investigation
     to CBI and also refused the prayer for further investigation /re-
     investigation of FIR No. 120 of 2020 on merits as well as mainly on the
C    ground that once the chargesheet is filed after investigation and the
     charges are framed, the Magistrate has no jurisdiction to order further
     investigation / re-investigation / de novo investigation.
           7.1 Therefore, the short question, which is posed for the
     consideration of this Court is:
D
           “Whether in the facts and circumstances of the case, the High
           Court is justified in denying the relief of transfer of the investigation
           to CBI and refusing to order further investigation / re-investigation
           / de novo investigation?”
            7.2 While considering the aforesaid issue and appreciating the
E
     above submissions made on behalf of the respective parties, few decisions
     of this Court on the power of the Courts to transfer the investigation to
     another agency like CBI and the powers of the constitutional courts to
     order further investigation / re-investigation / de novo investigation are
     required to be referred to.
F
            7.3 In the case of Himanshu Kumar and Ors. (supra), this
     Court had occasion to consider the power of the Court to transfer
     investigation to any other independent agency. After taking into
     consideration the catena of judgments on the point, it is reiterated that
     investigation may be transferred to the CBI only in “rare and exceptional
G    cases”. In paragraphs 44 to 53, it is observed and held as under:-
                 “44. It is now settled law that if a citizen, who is a de facto
           complainant in a criminal case alleging commission of cognizable
           offence affecting violation of his legal or fundamental rights against
           high Government officials or influential persons, prays before a
H          Court for a direction of investigation of the said alleged offence
 ANANT THANUR KARMUSE v. THE STATE OF                                     67
   MAHARASHTRA & ORS. [M. R. SHAH, J.]

by the CBI, such prayer should not be granted on mere asking. A           A
Constitution Bench of this Court, in the case of the State of West
Bengal v. Committee for Protection of Democratic Rights, West
Bengal, reported in (2010) 3 SCC 571, has made the following
observations pointing out the situations where the prayer for
investigation by the CBI should be allowed:
                                                                          B
   “70.… In so far as the question of issuing a direction to
   CBI to conduct investigation in a case is concerned,
   although no inflexible guidelines can be laid down to
   decide whether or not such powers should be exercised,
   but time and again it has been reiterated that such an order
   is not to be passed as a matter of routine or merely because           C
   a party has levelled some allegations against the local
   police. This extraordinary power must be exercised
   sparingly, cautiously and in exceptional situations where
   it becomes necessary to provide credibility and instil
   confidence in investigations or where the incident may have            D
   national and international ramifications or where such an
   order may be necessary for doing complete justice and
   enforcing the fundamental rights. Otherwise CBI would
   be flooded with a large number of cases and with limited
   resources, may find it difficult to properly investigate even
   serious cases and in the process lose its credibility and              E
   purpose with unsatisfactory investigations.”
                                                 (emphasis supplied)
       45. In the above decision, it was also pointed out that the
same court in Secretary, Minor Irrigation & Rural Engineering             F
Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, had
said that an order directing an enquiry by the CBI should be passed
only when the High Court, after considering the material on record,
comes to the conclusion that such material does disclose a prima
facie case calling for an investigation by the CBI or any other
similar agency.                                                           G
       46. In an appropriate case when the Court feels that the
investigation by the police authorities is not in a proper direction,
and in order to do complete justice in the case and if high police
officials are involved in the alleged crime, the Court may be justified
in such circumstances to handover the investigation to an                 H
68      SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A    independent agency like the CBI. By now it is well-settled that
     even after the filing of the charge sheet the court is empowered
     in an appropriate case to handover the investigation to an
     independent agency like the CBI.
             47. The extraordinary power of the Constitutional Courts
B    under Articles 32 and 226 respectively of the Constitution of India
     qua the issuance of directions to the CBI to conduct investigation
     must be exercised with great caution as underlined by this Court
     in the case of Committee for Protection of Democratic Rights,
     West Bengal (supra) as adverted to herein above, observing that
     although no inflexible guidelines can be laid down in this regard,
C    yet it was highlighted that such an order cannot be passed as a
     matter of routine or merely because the parties have levelled some
     allegations against the local police and can be invoked in exceptional
     situations where it becomes necessary to provide credibility and
     instill confidence in the investigation or where the incident may
D    have national or international ramifications or where such an order
     may be necessary for doing complete justice and for enforcing
     the fundamental rights. We are conscious of the fact that though
     a satisfaction of want of proper, fair, impartial and effective
     investigation eroding its credence and reliability is the precondition
     for a direction for further investigation or re- investigation,
E    submission of the charge sheet ipso facto or the pendency of the
     trial can, by no means, be a prohibitive impediment. The contextual
     facts and the attendant circumstances have to be singularly
     evaluated and analyzed to decide the needfulness of further
     investigation or re-investigation to unravel the truth and mete out
F    justice to the parties. The prime concern and the endeavour of
     the court of law should be to secure justice on the basis of true
     facts which ought to be unearthed through a committed, resolved
     and a competent investigating agency.
            48. The above principle has been reiterated in K.V.
G    Rajendran v. Superintendent of Police, CBCID South Zone,
     Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for
     a three-Judge Bench of this Court held:
        “13. …This Court has time and again dealt with the issue under
        what circumstances the investigation can be transferred from
H       the State investigating agency to any other independent
 ANANT THANUR KARMUSE v. THE STATE OF                                     69
   MAHARASHTRA & ORS. [M. R. SHAH, J.]

   investigating agency like CBI. It has been held that the power         A
   of transferring such investigation must be in rare and
   exceptional cases where the court finds it necessary in order
   to do justice between the parties and to instil confidence in the
   public mind, or where investigation by the State police lacks
   credibility and it is necessary for having “a fair, honest and
                                                                          B
   complete investigation”, and particularly, when it is imperative
   to retain public confidence in the impartial working of the State
   agencies. …”
49. Elaborating on this principle, this Court further observed:
   “17. … the Court could exercise its constitutional powers for          C
   transferring an investigation from the State investigating agency
   to any other independent investigating agency like CBI only in
   rare and exceptional cases. Such as where high officials of
   State authorities are involved, or the accusation itself is against
   the top officials of the investigating agency thereby allowing
   them to influence the investigation, and further that it is so         D
   necessary to do justice and to instil confidence in the
   investigation or where the investigation is prima facie found to
   be tainted/biased.”
50. The Court reiterated that an investigation may be transferred
to the CBI only in “rare and exceptional cases”. One factor that          E
courts may consider is that such transfer is “imperative” to retain
“public confidence in the impartial working of the State agencies.”
This observation must be read with the observations made by the
Constitution Bench in the case of Committee for Protection of
Democratic Rights, West Bengal (supra), that mere allegations             F
against the police do not constitute a sufficient basis to transfer
the investigation.
51. In Romila Thapar v. Union of India, (2018) 10 SCC 753,
one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench
of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the             G
dictum in a line of precedents laying down the principle that the
accused “does not have a say in the matter of appointment of
investigating agency”. In reiterating this principle, this Court relied
upon its earlier decisions in Narmada Bai v. State of Gujarat,
(2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India,
(2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC              H
70            SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A          365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC
           542. This Court observed:
               “30…the consistent view of this Court is that the accused
               cannot ask for changing the investigating agency or to do
               investigation in a particular manner including for court-monitored
B              investigation.”
           52. It has been held by this Court in CBI v. Rajesh Gandhi, 1997
           Cri LJ 63, that no one can insist that an offence be investigated by
           a particular agency. We fully agree with the view in the aforesaid
           decision. An aggrieved person can only claim that the offence he
C          alleges be investigated properly, but he has no right to claim that it
           be investigated by any particular agency of his choice.
           53. The principle of law that emerges from the precedents of this
           Court is that the power to transfer an investigation must be used
           “sparingly” and only “in exceptional circumstances”. In assessing
D          the plea urged by the petitioner that the investigation must be
           transferred to the CBI, we are guided by the parameters laid
           down by this Court for the exercise of that extraordinary power.”
            7.4 Bearing in mind the position of law as discussed above and, in
     the facts, and circumstances of the case, we are of the opinion that the
E    High Court has not committed any error in refusing to transfer the
     investigation to CBI. Even the learned counsel appearing on behalf of
     the appellant has not vehemently pressed such a prayer. We are in
     complete agreement with the view taken by the High Court insofar as
     refusing to transfer the investigation to CBI is concerned.

F           8. Now, so far as the power of the Constitutional Courts to order
     further investigation / re-investigation / de novo investigation even after
     the chargesheet is filed and charges are framed is concerned, the following
     decisions are required to be referred to:-
            8.1 In the case of Bharati Tamang (supra), after taking into
     consideration the decisions of this Court in the case of Babubhai Vs.
G
     State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the
     subsequent decision of this Court in the case of Ram Jethmalani Vs.
     Union of India (2011) 8 SCC 1 and other decision on the point, ultimately
     the principles, which are culled out are as under:-

H
        ANANT THANUR KARMUSE v. THE STATE OF                                    71
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

            “41. From the various decisions relied upon by the petitioner       A
      counsel as well as by respondents’ counsel, the following principles
      can be culled out.
            41.1. The test of admissibility of evidence lies in its
      relevancy.
             41.2. Unless there is an express or implied constitutional         B
      prohibition or other law, evidence placed as a result of even an
      illegal search or seizure is not liable to be shut out.
             41.3. If deficiency in investigation or prosecution is visible
      or can be perceived by lifting the veil which try to hide the realities
      or covering the obvious deficiency, Courts have to deal with the          C
      same with an iron hand appropriately within the framework of
      law.
             41.4. It is as much the duty of the prosecutor as of the
      Court to ensure that full and material facts are brought on record
      so that there might not be miscarriage of justice.                        D
             41.5. In order to ensure that the criminal prosecution is
      carried on without any deficiency, in appropriate cases this Court
      can even constitute Special Investigation Team and also give
      appropriate directions to the Central and State Governments and
      other authorities to give all required assistance to such specially       E
      constituted investigating team in order to book the real culprits
      and for effective conduct of the prosecution.
             41.6. While entrusting the criminal prosecution with other
      instrumentalities of State or by constituting a Special Investigation
      Team, the High Court or this Court can also monitor such                  F
      investigation in order to ensure proper conduct of the prosecution.
             41.7. In appropriate cases even if the charge-sheet is filed
      it is open for this Court or even for the High Court to direct
      investigation of the case to be handed over to CBI or to any other
      independent agency in order to do complete justice.                       G
            41.8. In exceptional circumstances the Court in order to
      prevent miscarriage of criminal justice and if considers necessary
      may direct for investigation de novo.”
      8.2 In the case of Dharam Pal (supra), after taking into
consideration the catena of decisions on the point, it is observed and held     H
72             SUPREME COURT REPORTS                               [2023] 3 S.C.R.


A    that the constitutional courts can direct for further investigation or
     investigation by some other investigating agency. It is observed that the
     purpose is, there has to be a fair investigation and a fair trial. It is observed
     that the fair trial may be quite difficult unless there is a fair investigation.
     It is further observed and held that the power to order fresh, de novo or
     re- investigation being vested with the constitutional courts, the
B
     commencement of a trial and examination of some witnesses cannot be
     an absolute impediment for exercising the said constitutional power which
     is meant to ensure a fair and just investigation. While observing and
     holding so, in paragraphs 24 and 25, it is observed and held s under:-
                    “24. Be it noted here that the constitutional courts can direct
C           for further investigation or investigation by some other investigating
            agency. The purpose is, there has to be a fair investigation and a
            fair trial. The fair trial may be quite difficult unless there is a fair
            investigation. We are absolutely conscious that direction for further
            investigation by another agency has to be very sparingly issued
D           but the facts depicted in this case compel us to exercise the said
            power. We are disposed to think that purpose of justice commands
            that the cause of the victim, the husband of the deceased, deserves
            to be answered so that miscarriage of justice is avoided. Therefore,
            in this case the stage of the case cannot be the governing factor.
E                  25. We may further elucidate. The power to order fresh,
            de novo or reinvestigation being vested with the constitutional
            courts, the commencement of a trial and examination of some
            witnesses cannot be an absolute impediment for exercising the
            said constitutional power which is meant to ensure a fair and just
            investigation. It can never be forgotten that as the great ocean
F           has only one test, the test of salt, so does justice has one flavour,
            the flavour of answering to the distress of the people without any
            discrimination. We may hasten to add that the democratic set-up
            has the potentiality of ruination if a citizen feels, the truth uttered
            by a poor man is seldom listened to. Not for nothing it has been
G           said that sun rises and sun sets, light and darkness, winter and
            spring come and go, even the course of time is playful but truth
            remains and sparkles when justice is done. It is the bounden duty
            of a court of law to uphold the truth and truth means absence of
            deceit, absence of fraud and in a criminal investigation a real and
            fair investigation, not an investigation that reveals itself as a sham
H
        ANANT THANUR KARMUSE v. THE STATE OF                                    73
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

      one. It is not acceptable. It has to be kept uppermost in mind that       A
      impartial and truthful investigation is imperative. If there is
      indentation or concavity in the investigation, can the “faith” in
      investigation be regarded as the gospel truth? Will it have the
      sanctity or the purity of a genuine investigation? If a grave suspicion
      arises with regard to the investigation, should a constitutional court
                                                                                B
      close its hands and accept the proposition that as the trial has
      commenced, the matter is beyond it? That is the “tour de force”
      of the prosecution and if we allow ourselves to say so it has become
      “idée fixe” but in our view the imperium of the constitutional courts
      cannot be stifled or smothered by bon mot or polemic. Of course,
      the suspicion must have some sort of base and foundation and not          C
      a figment of one’s wild imagination. One may think an impartial
      investigation would be a nostrum but not doing so would be like
      playing possum. As has been stated earlier, facts are self-evident
      and the grieved protagonist, a person belonging to the lower strata.
      He should not harbour the feeling that he is an “orphan under
                                                                                D
      law”.”
       9. Now, so far as the reliance placed upon the decision of this
Court in the case of Vinubhai Haribhai Malviya and Ors. (supra),
relied upon on behalf of the respondent – accused is concerned, it is
required to be noted that in the said decision, this Court was considering
the powers of the Magistrate. Even in the said decision, it is observed         E
and held that there is no good reason given by the Court as to why a
Magistrate’s powers to order further investigation would suddenly cease
upon process being issued. It is further observed that power of the police
to further investigate the offence continues right till the stage the trial
commences. It is further observed that Article 21 of the Constitution           F
demands no less than a fair and just investigation. In paragraph 42 as
such, it is observed and held as under:-
             “42. There is no good reason given by the Court in these
      decisions as to why a Magistrate’s powers to order further
      investigation would suddenly cease upon process being issued,             G
      and an accused appearing before the Magistrate, while
      concomitantly, the power of the police to further investigate the
      offence continues right till the stage the trial commences. Such a
      view would not accord with the earlier judgments of this Court, in
      particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC
                                                                                H
74      SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A    409], Samaj Parivartan Samudaya [Samaj Parivartan
     Samudaya v. State of Karnataka, (2012) 7 SCC 407], Vinay
     Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762], and
     Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3
     SCC 92]; Hardeep Singh [Hardeep Singh v. State of Punjab,
     (2014) 3 SCC 92] having clearly held that a criminal trial does not
B
     begin after cognizance is taken, but only after charges are framed.
     What is not given any importance at all in the recent judgments of
     this Court is Article 21 of the Constitution and the fact that the
     Article demands no less than a fair and just investigation. To say
     that a fair and just investigation would lead to the conclusion that
C    the police retain the power, subject, of course, to the Magistrate’s
     nod under Section 173(8) to further investigate an offence till
     charges are framed, but that the supervisory jurisdiction of the
     Magistrate suddenly ceases midway through the pre-trial
     proceedings, would amount to a travesty of justice, as certain
     cases may cry out for further investigation so that an innocent
D
     person is not wrongly arraigned as an accused or that a prima
     facie guilty person is not so left out. There is no warrant for such
     a narrow and restrictive view of the powers of the Magistrate,
     particularly when such powers are traceable to Section 156(3)
     read with Section 156(1), Section 2(h) and Section 173(8) CrPC,
E    as has been noticed hereinabove, and would be available at all
     stages of the progress of a criminal case before the trial actually
     commences. It would also be in the interest of justice that this
     power be exercised suo motu by the Magistrate himself, depending
     on the facts of each case. Whether further investigation should or
     should not be ordered is within the discretion of the learned
F
     Magistrate who will exercise such discretion on the facts of each
     case and in accordance with law. If, for example, fresh facts
     come to light which would lead to inculpating or exculpating certain
     persons, arriving at the truth and doing substantial justice in a
     criminal case are more important than avoiding further delay being
G    caused in concluding the criminal proceeding, as was held in
     Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v.
     State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent
     that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai
     Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4
     SCC 177], Athul Rao [Athul Rao v. State of Karnataka, (2018)
H
        ANANT THANUR KARMUSE v. THE STATE OF                                    75
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

      14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v.                 A
      State (NCT of Delhi), (2019) 5 SCC 542] have held to the contrary,
      they stand overruled. Needless to add, Randhir Singh Rana v.
      State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State
      of W.B. [(2009) 9 SCC 129] also stand overruled.”
        10. Now, so far as the reliance placed upon the decision of this        B
Court in the case of Rama Chaudhary (supra) relied upon on behalf of
the respondent – accused is concerned, it is required to be noted that in
the said decision, this Court was considering the scope of Sections 173(8)
and 173(8)(2) Cr.P.C. and the right of the police to “further investigation”.
It is observed that the police has no right for “fresh investigation” or “re-
investigation”. However, this Court had no occasion to consider the             C
powers of the constitutional courts , which are dealt with and considered
in the case of Bharati Tamang (supra) and Dharam Pal (supra).
        11. Applying the law laid down by this Court in the case of Dharam
Pal (supra) and Bharati Tamang (supra) and to do the complete justice
and in furtherance of fair investigation and fair trial, the constitutional     D
courts may order further investigation / re-investigation / de novo
investigation even after the charge sheet is filed and the charges are
framed. If the submission on behalf of the accused and even as observed
by the High Court that once the chargesheet is filed and the charges are
framed, there may not be any order for further investigation / re-              E
investigation / de novo investigation is accepted, in that case, the accused
may see to it that the charges are framed to avoid any fair investigation
/ fair trial. It would lead to travesty of justice.
       12. Applying the law laid down by this Court in the aforesaid
decisions and the principle of law laid down hereinabove, it is required to     F
be considered whether a case is made out for further investigation /
fresh investigation /re-investigation / de novo investigation or not.
       12.1 It is required to be noted that in the present case, the
allegations in the FIR, right from very beginning, were against the accused
No. 13, who at the relevant time was the sitting Cabinet Minister               G
occupying the high position. Even at the relevant time, when the State
Police investigated the FIR bearing No. 120 of 2020, in the first
chargesheet and the second chargesheet did not name the accused No.
13. Even the investigation was also conducted in a perfunctory manner.
The real investigation started only after the intervention of the High
                                                                                H
76             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A    Court and after passing various orders in the present proceedings by the
     High Court. The allegations in the FIR were very serious including the
     misuse of powers by the sitting Cabinet Minister and of abducting,
     kidnapping and beating the complainant. The appellant – original writ
     petitioner filed the Criminal Writ Petition before the Bombay High Court
     on 17.04.2020 praying the investigation in FIR Nos. 119 of 2020 and 120
B
     of 2020 to be transferred to an independent investigating agency and for
     sanction under Section 197 Cr.P.C. for investigation and prosecution of
     public servants. On 23.04.2020, the High Court passed interim order
     that the CCTV footage and other evidences collected shall be protected
     and kept in the safe custody of the Chief Judicial Magistrate, Thane.
C    During the period 06.04.2020 to 29.05.2020, the State police recorded
     the statement of 23 witnesses including the accused No. 13. The statement
     of the main accused was taken as a witness. The real investigation
     started thereafter. The first chargesheet came to be filed against accused
     Nos. 1 to 10 on 07.12.2020. The accused No. 13 – the then sitting Minister
     against whom the serious allegations were made, even named in the
D
     FIR, was not chargesheeted. Even the relevant material evidences were
     collected in the form of CDR, mobile phones etc. after the High Court
     intervened and passed various interim orders. The supplementary
     chargesheet came to be filed against accused Nos. 11 and 12 on
     28.07.2021. The accused No. 13 was not even chargesheeted in the
E    supplementary chargesheet. The charges came to be framed against
     accused Nos. 1 to 12 on 28.08.2021. Only thereafter the supplementary
     chargesheet came to be filed against the accused No. 13 on 05.03.2022.
            12.2 It can be seen from the aforesaid that there was no proper
     investigation by the State investigating agency at the relevant time and
F    even the material evidences were also not collected. At the cost of
     repetition, it is observed that during the pendency of the writ petition
     before the High Court and pursuant to the various orders passed by the
     High Court, the State investigating agency were compelled to investigate
     in the matter and belatedly the accused No. 13 was chargesheeted in
     the month of March, 2022. Even according to the State investigating
G    agency, still the further investigation is required on certain aspects. Some
     of the illustrations / instances which required further investigation are
     narrated in paragraph 4 of the counter affidavit filed on behalf of the
     respondent Nos. 1 to 3. Elaborate reasons and on what further
     investigation is required has not been stated on the apprehension that if
H
        ANANT THANUR KARMUSE v. THE STATE OF                                      77
          MAHARASHTRA & ORS. [M. R. SHAH, J.]

the same is disclosed at this stage, it may frustrate the very purpose of         A
the investigation / further investigation.
        12.3 Be that as it may, even according to the State investigating
agency, the further investigation is required. As observed and held by
this Court in the aforesaid decisions, the victim has a fundamental right
of fair investigation and fair trial. Therefore, mere filing of the chargesheet   B
and framing of the charges cannot be an impediment in ordering further
investigation / re-investigation / de novo investigation, if the facts so
warrant.
        13. Now, so far as the submission on behalf of the accused that
earlier the State through learned AG opposed the writ petition and                C
submitted that there was a fair investigation and now with the change in
power, the State agency has changed its stand is concerned, the Courts
are not concerned with the stand taken by the State at the relevant time
and now. Suffice it to say that at the relevant time when the State police
agency took a particular stand, accused No. 13 was in power and sitting
Minister. The facts narrated hereinabove would suggest the manner in              D
which the earlier investigation was caried out and that the accused No.
13 was only chargesheeted in the second supplementary charge sheet in
the month of March, 2022 and not prior to that when the first charge
sheet was filed, the supplementary chargesheet was filed and even when
the charges against the other accused were framed. The endeavor of                E
the Court should be to have the fair investigation and fair trial only.
Therefore, in the facts and circumstances of the case narrated
hereinabove, we are of the opinion that a case is made out for further
investigation and the State agency may be permitted to conduct a further
investigation and to bring on record the further material, which may be
in the furtherance of fair investigation and fair trial. The High Court has       F
committed a very serious error in not ordering and/or permitting the
State police agency to further investigate into the FIR bearing Nos. 119
and 120 of 2020. The High Court has not considered the relevant aspects
narrated hereinabove and therefore interference of this Court is
warranted.                                                                        G
      14. In view of the above and for the reasons stated above, present
appeal succeeds in part. The impugned judgment and order passed by
the High Court refusing to transfer the investigation of the FIR No. 120
of 2020 to CBI is hereby confirmed. The impugned judgment and order
passed by the High Court refusing to order further investigation / re-            H
78              SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A    investigation is hereby quashed and set aside and we direct / permit the
     State investigating agency to further investigate into the FIR bearing
     No. 120 of 2020 and on what aspects the further investigation shall be
     caried out is left to the wisdom of the State investigating agency. Further
     investigation be carried out and completed as early as possible, preferably
     within a period of three months from the date of receipt of the present
B
     order and the further supplementary report be placed before the learned
     Magistrate in the Trial/before the concerned Trial Court thereafter
     forthwith, which may be considered by the Trial Court in accordance
     with law and on its own merits and the accused be tried accordingly and
     in accordance with law and on merits.
C           Present appeal is partly allowed to the aforesaid extent.

     Ankit Gyan                                                  Appeal partly allowed.
     (Assisted by : Abhishek Agnihotri and Rahul Rathi, LCRAs)


D




E




F




G




H