DHARAM PALversusSTATE OF HARYANA & ORS.

                            [2016] l S.C.R. 194


A                         DHARAM PAL
                                 v.
                   STATE OF HARYANA & ORS.
                   (Criminal Appeal No. 85 of 2016)
                        JANUARY 29, 2016
B
            [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
           Code of Criminal Procedure, 1973: s.173 - Investigation,
    transfer of - Rape of appellant's daughter and after few days murder
    of his wife - Acquittal of accused persons in rape case - Appeal
    thereagainst pending before the High Court - In murder case,
c   appellant provided with security as threats received by him -
    Recommendation for transfer of cases to CBI - Whether situation
    calls for issuance of direction for transfer of the investigation to
    the CBI - High Court declined to so direct as trial had commenced
    and some witnesses were examined - On appeal, Held: Constitutional
D   Courts can direct for farther investigation or investigation by some
    other investigating agency - The power to order fresh, de-novo or
    re-investigation being vested with the Constitutional Courts, the
    commencement of a trial and examination of some witnesses cannot
    be an absolute impediment for exercising the said constitutional
    power which is meant to ensure a fair and just investigation - Order
E   of High Court set aside and CBI directed to conduct the
    investigation.
          Allowing the appeal, the Court
          HELD: 1. As the facts would reveal there was a request by
F   the Additional Chief Secretary for handing over the investigation
    to the CBI; that departmental action was taken against the
    investigating authorities for negligent investigation; that the
    concerned ASI was reverted to the post of Head Constable; and
    that apart, certain material witnesses were not examined by the
    investigating agency without any rhyme or reason. The reasoning
G   of the High Court was as the trial has commenced, there cannot
    be a transfer of the case to another investigating agency. [Para
    16] [204-B-C]
          2. Section 173 Cr.P.C. empowers the Police Officer
    conducting investigation to file a report on completion of the
H   investigation with the Magistrate empowered to take cognizance
                                  194
             DHARAM PAL v. STATE OF HARYANA                               195



  of the offence. Section 173(8) Cr.P.C. empowers the office-in-          A
  charge to conduct further investigation even after filing of a report
  under Section 173(2) Cr.P.C. if he obtains further evidence, oral
  or documentary. Thus, the power of the Police Officer under
  Section 173(8) Cr.P.C. is unrestricted. The Magistrate has no
. power to interfere but it would be appropriate on the part of the
                                                                          B
  investigating officer to inform the Court. [Para 17] [204-D-E]
       3. The constitutional courts can direct for further
 investigation or investigation by some other investigating agency.
 The purpose is, there has to be a fair investigation and a fair trial.
 The fair trial may be quite difficult unless there is a fair
 investigation. The direction for further investigation by another C
 agency has to be very sparingly issued but in the facts of the
 instant case, the said power needs to be exercised. The 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 D
 cannot be the governing factor. [Para 20] [205-F-G]
       4. It is the bounden duty of a Court of law to uphold the
 trnth and truth means absence of deceit, absence of fraud and in
 a criminal investigation a real and fair investigation, not an
 investigation that reveals itself as a sham one. It is not acceptable.   E
 It has to be kept uppermost in mind that impartial and truthful
 investigation is imperative. The order of the High Court is set
 aside, and it is directed that the CBI shall conduct the
 investigation and file the report before the trial judge. The said
 investigation report shall be considered by the trial judge as per
 law. Till the report by the CBI is filed, the trial judge shall not      F
 proceed with the trial. [Paras 21, 22] [206-C-D, G]
       State of West Bengal & others v. Committee for
       Protection of Democratic Rights, West Bengal and
       Others (2010) 3 SCC 571 :2010 (2) SCR 979 -
       distinguished.                                                     G

       Narmada Bai v. State of Gujarat and Others (2011) 5
       SCC 79: 2011 (5) SCR 729; K. V. Rajendran v.
       Superintendent of Police, CBCID South Zone, Chennai
       and Others (2013) 12 SCC 480: 2013 (9) SCR 199;
       Rama Chaudhary v. State of Bihar (2009) 6 SCC                      H
196               SUPREME COURT REPORTS                         [2016] 1 S.C.R.


A           346: 2009 (5) SCR 482; Vinay Tyagi v. Irshad Ali
            (2013) 5 SCC 762: 2012 (13) SCR 1005; Bhagwant Singh
            v. Commr. Of Police (1985} 2 SCC 537:1985 (3) SCR
            942 - referred to.
                                Case Law Reference
B           2010 (2) SCR 979            distinguished.             Paras
            2011 (5) SCR 729            referred to.               Para 14
            2013 (9) SCR 199            referred to.               Para 15
            2009 (5) SCR 482            referred to.               Para 17
c           2012 (13) SCR 1005          referred to.               Para 18
            1985 (3) SCR 942            referred to.               Para 18
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 85 of2016
D           From the Judgment and Order dated 26.02.2015 of the High Court
      of Punjab & Haryana at Chandigarh in CRMM No. 24527 of 2013.
            Colin Gonsalves, Kamlesh Kumar Mishra, Satya Mitra for the
      Appellant.
E           Tushar Mehta, ASG; P. K. Dey, Kumar Parimal, B. V. Bairam,
      Sanjay Kumar Visen for the Respondents.
            The Judgment of the Court was delivered by
            DIPAK MISRA, J. I. Leave granted.
             2. Cry for fair trial by the accused as well as by the victim
F
      sometimes remains in the singular and individualistic realm, may be due
      to the perception gatherable from the facts that there is an attempt to
      contest on the plinth of fairness being provoked by some kind of vengeance
      or singularity of "affected purpose"; but, irrefutably a pronounced and
      pregnant one, there are occasions when the individual cry is not guided
G     by any kind of revengeful attitude or anger or venom, but by the distressing
      disappointment faced by the grieved person in getting his voice heard in
      proper perspective by the authorities who are in charge of conducting
      investigation and the frustration of a victim gets more aggravated when
      he is impecunious, and mentally shattered owing to the situation he is in
      and thereby knows not where to go, the anguish takes the character of
H
             DHARAM PAL v. STATE OF HARYANA                                    197
                    [DIPAK MISRA, J.]

collective agony. When the investigation, as perceived by him, is nothing      A
but an apology for the same and mirrors before him the world of
disillusionment that gives rise to the scuffle between the majesty and
sanctity of Jaw on one hand and its abuses on the other, he is constrained
to seek intervention of the superior courts putting forth a case that his
cry is not motivated but an expression of collective mortification and the
                                                                               B
intention is that justice should not be attenuated.
         3. Justice, which is "truth in action" and "the firm and continuous
desire to render to everyone which in his due" becomes a mirage for the
victim and being perturbed he knocks at the doors of the High Court
under Article 226 of the Constitution alleging that principle of fair and
proper investigation has been comatosed by the investigating agency, c
for the said agency has crucified the concept of faith in the investigation
which is expected to maintain loyalty to Jaw and sustain fidelity to its
purpose. In the case at hand, the assertions made with immense anguish·
gave rise to the question before the High Court whether some progress
in trial would act as a remora in the dispensation of justice and the situation D
should be allowed to remain as it is so that an organic disorder is allowed
to creep in and corrode and create a cul-de-sac in administration of
justice. The further question posed whether the non-approach to the
court prior to the stage of commencement of trial would be a peccadillo
so as to usher in an absolutely indifferent, unconcerned and, in a way,
biased investigation to rule and in the ultimate eventuate lead to guillotining E
of justice. The High Court having negatived the stand put forth by the
appellant, the husband of the deceased, he has approached this Court by
way of special leave.
      4. With the aforesaid prefatory note and a short prelude to the
grievance of the appellant, we proceed to narrate the facts.                   F

       5. The minor daughter of the appellant who was raped by the
accused persons was threatened with dire consequences in case she
disclosed the incident. The incident, as alleged, occurred on 06.08.2012.
Despite the threat, the daughter disclosed the incident to her parents.
Keeping in view the future of the girl and the social repercussions, they      G
chose to suffer in silence rather than set the criminal law in motion.
When the family stood reconciled to the situation, something extremely
untoward happened. On 02.09.2012, Karnlesh Devi, wife of the appellant,
had gone to village Nilikhen for taking medicine for her teeth and gums
problem but did not return home on that day. The appellant searched for        H
198               SUPREME COURT REPORTS                         [2016] l S.C.R.


A     his wife along with his relatives and eventually a bag containing vegetables
      and medicines and some other articles belonging to the wife was found
      underneath the bridge Manak Majra on the lower side of Sarsa Branch
      river. The appellant suspected that Kusurn, wife of Sukh Ram, resident
      of Kalsi and Aman alias Virender had abducted his wife or had thrown
      her into the river. In such a situation, the appellant lodged an FIR, on
B
      05.09.2012 at P.S. Butana. The investigating agency registered the FIR
      No. 354 for the offences under Section 363, 366-A, 506, 365 and 34 of
      the Indian Penal Code (for short "IPC"). During the investigation, on
      05.09.2012, the dead body of Karnlesh Devi was found near the Sarsa
      Branch canal bridge. Thereafter, the appellant and his daughter were
c     examined and on that basis, offence under Section 376 !PC was added.
      Eventually, the allegations were segregated and FIR No. 394 dated
      20.09.2012 under Sections 363, 365, 376(2)G, 506, 201and120-B !PC
      and Section 3 of the Scheduled Castes and the Scheduled Tribes
      (Prevention of Atrocities) Act, 1989 was registered and after the
      investigation, a charge-sheet was filed. Be it stated, the accused persons
D
      in FIR No. 394 dated 20.09.2012 have been acquitted by the judgment
      dated 12.03.2014 by the learned Sessions Judge. Against the judgment
      of acquittal, the appellant has filed a criminal appeal which is pending
      before the High Court of Punjab and Haryana. Therefore, we shall refrain
      from referring to the facts of the said case.
E            6. Corning to the subject matter of FIR No. 354 which relates to
      the murder of the wife of the appellant, as is evident, the report would
      show that the cause of death was due to strangulation coupled with
      head injury which is antiemortern in nature and sufficient to cause death
      in ordinary course. Apart from the accused persons named in the FIR,
F     another person, namely, Krishan Kumar, was also implicated who was
      arrested on 19.10.2012. The other two accused persons, namely, Aman
      and Kusurn were taken into custody on 30. l 0.2012. It is a matter of
      record that the appellant was provided security personnel as threats
      were received by the appellant for entering into a compromise in the
      rape case, and for change of his version in the murder case of his wife.
G
             7. It has been asserted and not denied by the respondents that
      on 28.01.2013, the Superintendent of Police, Kamal vide Office Memo
      No. 3961 recommended to the Director General of Police, Haryana that
      the case bearing FIR No. 354 along with the rape case and the unsolved
      case of murder of the sister-in-law of the appellant be transferred to the
H     Central Bureau of Investigation (CBI), New Delhi. Based on the said
              DHARAM PAL v. STATE OF HARYANA                                      199
                     [DIPAK MISRA, J.]

recommendation, the Additionally Chief Secretary, Government of A
Haryana vide Office Memo No. 20/2/2013-3HG 1 requested the
Secretary to the Government of India, Ministry of Personnel, Public
Grievances & Pensions, Department of Personnel & Training, New Delhi
for handing over the investigation to the CBI. It has also been asserted
that a departmental action has been taken against ASI Ram Prakash
                                                                         B
and SHO Sanjeev Malik on the basis of the complaints made by the
appellant. On information being sought by the appellant under the Right
to Information Act, 2005, he has been informed vide communication
dated 17.11.2014 that departmental inquiry had already been initiated
against ASI Ram Prakash and SHO Sanjeev Malik on charges of
dereliction and negligence of duty. It was also mentioned in the reply c
that as a result of departmental inquiry, Ram Prakash had been reverted
from the post of ASI to Head Constable, and with respect to Sanjeev
Malik, the proceedings had been sent to the Deputy Commissioner of
Police, Ambala for being transferred.
       8. The issue that arises for consideration is whether such a               D
situation calls for issuance of direction for transfer of the investigation to
the CBI. The High Court has declined to so direct as trial has commenced
and some witnesses have been examined. The High Court has gone by
the principle of "stage". When the matter was listed on 18.09.2015, this
Court had directed a copy of the petition to be served on Mr. P.K. Dey,
learned counsel who ordinarily appears for the CBI. The stand of the              E
CBI is that the case does not fall within the guidelines laid down by this
Court in State of West Bengal & others v. Committee for Protection
of Democratic Rights, West Bengal and others'.
       9. Learned counsel for the State has supported the order passed
by the High Court and also emphasized that regard being had to the                F
stage of the trial, there is no need for directing for investigation by another
agency.
        10. First, we intend to deal with the stand of the CBI and the
principles laid down in Committee for Protection ofDemocratic Rights
(supra). In the said case, the Constitution Bench, after examining the            G
rival contentions in the context of the constitutional scheme, recorded
the following conclusions:-
       "(i) The fundamental rights, enshrined in Part III of the Constitution,
       are inherent and cannot be extinguished by any constitutional or
1 c2010J 3 sec s11                                                                H
200         SUPREME COURT REPORTS                         [2016] 1 S.C.R.



A     statutory provision. Any law that abrogates or abridges such rights
      would be violative of the basic structure doctrine. The actual effect
      and impact of the law on the rights guaranteed under Part III has
      to be taken into account in determining whether or not it destroys
      the basic structure.
B     (ii) Article 21 of the Constitution in its broad perspective seeks to
      protect the persons of their lives and personal liberties except
      according to the procedure established by law. The said article in
      its broad application not only takes within its fold enforcement of
      the rights of an accused but also the rights of the victim. The
      State has a duty to enforce the human rights of a citizen providing
c     for fair and impartial investigation against any person accused of
      commission of a cognizable offence. which may include its own
      officers. In certain situations even a witness to the crime may
      seek for and shall be granted protection by the State.
      (iii) In view of the constitutional scheme and the jurisdiction
D     conferred on thls Court under Article 32 and on the High Courts
      under Article 226 of the Constitution the power of judicial review
      being an integral part of the basic structure of the Constitution, no
      Act of Parliament can exclude or curtail the powers of the
      constitutional courts with regard to the enforcement of fundamental
      rights. As a matter of fact, such a power is essential to give
E     practicable content to the objectives of the Constitution embodied
      in Part Ill and other parts of the Constitution. Moreover, in a
      federal constitution, the distribution oflegislative powers between
      Parliament and the State Legislature involve~ limitation on
      legislative powers and, therefore, this requires an authority other
F     than Parliament to ascertain whether such limitations are
      transgressed. Judicial review acts as the final arbiter not only to
      give effect to the distribution of legislative powers between
      Parliament and the State Legislatures, it is also necessary to show
      any transgression by each entity. Therefore, to borrow the words
      of Lord Steyn, judicial review is justified by combination of "the
G     principles of separation of powers, rule of law, the principle of
      constitutionality and the reach of judicial review".
      (iv) If the federal structure is violated by any legislative action,
      the Constitution takes care to protect the federal structure by
      ensuring that the Courts act as guardians and interpreters of the
H     Constitution and provide remedy under Articles 32 and 226,
            DHARAM PAL v. STATE OF HARYANA                                     201
                   [DIPAK MISRA, J.]

      whenever there is an attempted violation. In the circumstances,          A
      any direction by the Supreme Court or the High Court in exercise
      of power under Article 32 or 226 to uphold the Constitution and
      maintain the rule of law cannot be termed as violating the federal
      structure.
      (v) Restriction on Parliament by the Constitution and restriction        B
      on the executive by Parliament under an enactment, do not amount
      to restriction on the power of the Judiciary under Articles 32 and
      226 of the Constitution.
      (vi) If in terms of Entry 2 of List II of the Seventh Schedule on
      the one hand and Entry 2-A and Entry 80 of List I on the other, an
      investigation by another agency is permissible subject to grant of       C
      consent by the State concerned, there is no reason as to why, in
      an exceptional situation, the Court would be precluded from
      exercising the same power which the Union could exercise in
      terms of the provisions of the statute. In our opinion, exercise of
      such power by the constitutional courts would not violate the            D
      doctrine of separation of powers. In fact, if in such a situation the
      Court fails to grant relief, it would be failing in its constitutional
      duty.
      (vii) When the Special Police Act itself provides that subject to
      the consent by the State, CBI can take up investigation in relation
                                                                               E
      to the crime which was otherwise within the jurisdiction of the
      State police, the Court can also exercise its constitutional power
      of judicial review and direct CBI to take up the investigation within
      the jurisdiction of the State. The power of the High Court under
      Article 226 of the Constitution cannot be taken away. curtailed or
      diluted by Section 6 of the Special Police Act. Irrespective of          F
      there being any statutory provision acting as a restriction on the
      powers of the Courts, the restriction imposed by Section 6 of the
      Special Police Act on the powers of the Union, cannot be read as
      restriction on the powers of the constitutional courts. Therefore,
      exercise of power of judicial review by the High Court, in our           G
      opinion, would not amount to infringement of either the doctrine
      of separation of power or the federal structure."
                                                        [emphasis added]
       11. After recording the co11clusions, the Constitution Bench added
a note of caution which we may profitably reproduce:-
                                                                               H
202               SUPREME COURT REPORTS                          [2016] 1 S.C.R.



A           "Before parting with the case, we deem it necessary to emphasise
            that despite wide powers conferred by Articles 32 and 226 of the
            Constitution, while passing any order, the Courts must bear in
            mind certain self-imposed limitations on the exercise of these
            constitutional powers. The very plenitude of the power under the
            said articles requires great caution in its exercise. Insofar as the
B
            question of issuing a direction to CBI to conduct investigation in a
            case is concerned, although no inflexible guidelines can be laid
            down to decide whether or not such power should be exercised
            but time and again it has been reiterated that such an order is not
            to be passed as a matter of routine or merely because a party has
c           levelled some allegations against the local police. This extraordinary
            power must be exercised sparingly. cautiously and in exceptional
            situations where it becomes necessary to provide credibility and
            instil confidence in investigations or where the incident may have
            national and international ramifications or where such an order
            may be necessaiy for doing complete justice and enforcing the
D
            fundamental rights. Otherwise CBI would be flooded with a large
            number of cases and with limited resources, may find it difficult
            to properly investigate even serious cases and in the process lose
            its credibility and purpose with unsatisfactory investigations."
                                                             [underlying is ours]
E
              12. In the said case, a contention was raised that a detailed charge-
      sheet had been filed and subsequent to the filing of the said detailed
      charge-sheet, a supplementary charge-sheet had also been filed to
      complete the evidence, both oral and documentary, to bring home the
      guilt of the accused before the competent court and in accordance with
 F    the direction given by the Court further investigation had been carried
      out in accordance with Section l 73(8) of the Code of Criminal Procedure
      and, therefore, the jurisdiction of this Court under Article 32 of the
      Constitution had come to an end. In essence, the submission was that
      when a charge-sheet was filed after conducting the investigation under
      the supervision and monitoring of the Court, there was no need to transfer
G
      the case to another agency. Repelling the said submission, the larger
      Bench opined, regard being had to the nature of the crime and the persons
      involved, the investigation could not be said to be satisfactorily held.
      That apart, the Constitution Bench also ruled that in the circumstances it
      was not sufficient to instill confidence in the minds of the victims as well
H     as the public at large that State should be allowed to continue the
             DHARAM PAL v. STATE OF HARYANA                                      203
                    [DIPAK MISRA, J.]

investigation when the alleged offences were against its officials. Under        A
these circumstances, the Court directed the CBI to take up the
investigation and submit a report.
        13. On a perusal of the said authority, we really do not find any
aspect which would support the stand put forth hy the learned counsel
for the CBI. On the contrary, as we perceive, the Constitution Bench             B
has laid great emphasis on instilling of faith of the victim and the public
at large in the investigating agency. True it is, the facts in the said case
were different and related to alleged crimes committed by certain State
officials, but the base of confidence in investigation has been significantly
highlighted.
                                                                                 c
       14. In the context, we may profitably refer to a two-Judge Bench
decision in Narmada Bai v. State of Gujarat and others'. The Court,
in the factual matrix of the case, has emphasized that if the majesty of
the rule of law is to be upheld and if it is to be ensured that the guilty are
punished in accordance with law notwithstanding their status and authority
which they might have enjoyed, it is desirable to entrust the investigation      D
to CBI.
      15. A three-Judge Bench in K. V. Rajendran v. Superintendent
of Police, CBCID South Zone, Chennai and others 3 reiterating the
said principle stated that the power of transferring such investigation
must be in rare and exceptional cases where the court finds it necessary         E
in order to do justice between the parties and to instill confidence in the
public mind, or where investigation by the State police lacks credibility
and it is necessary for having "a fair, honest and complete investigation",
and particularly, when it is imperative to retain public confidence in the
impartial working of the State agencies. The Court, after referring to           F
earlier decisions, has laid down as follows:-
       "In view of the above, the law can be summarised to the effect
       that the Court could exercise its constitutional powers for
       transferring an investigation from the State investigating agency
       to any other independent investigating agency like CBI only in
                                                                                 G
       rare and exceptional cases. Such as where high officials of State
       authorities are involved, or the accusation itself is against the top
       officials of the investigating agency thereby allowing them to
       influence the investigation, and further that it is so necessary to
2 (2011) s sec 79
3 (2013) 12 sec 480                                                              H
204                SUPREME COURT REPORTS                         [2016] l S.C.R.


A            do justice and to instil confidence in the investigation or where the
             investigation is prima facie found to be tainted/biased."
              16. The factual scenario in the present case has to be appreciated
      on the touchstone of the aforesaid authorities. As the facts would reveal
      there was a request by the Additional Chief Secretary for handing over
B     the investigation to the CBI; that departmental action was taken against
      the investigating authorities for negligent investigation; that the concerned
      AS! has been reverted to the post of Head Constable; and that apart,
      certain material witnesses have not been examined by the investigating
      agency without any rhyme or reason. The reasoning of the High Court
      is as the trial has commenced, there cannot be a transfer of the case to
c     another investigating agency.
              17. In this context, we may notice the statutory scheme pertaining
      to investigation. Section 173 Cr.P.C. empowers the Police Officer
      conducting investigation to file a report on completion of the investigation
      with the Magistrate empowered to take cognizance of the offence.
D     Section 173(8) Cr.P.C. empowers the office-in-charge to conduct further
      investigation even after filing of a report under Section 173(2) Cr.P.C. if
      he obtains further evidence, oral or documentary. Thus, the power of
      the Police Officer under Section 173(8) Cr.P.C. is unrestricted. Needless
      to say, the Magistrate has no power to interfere but it would be appropriate
E     on the part of the investigating officer to inform the Court. It has been so
      stated in Rama Chaudhary v. State of Bihar'.
              18. In Vinay Tyagi v. lrshad Ali', wherein a two-Judge Bench,
      after referring to the decision in Bhagwant Singh v. Commr. Of Police'
      has held thus:-
F           "However, having given our considered thought to the principles
            stated in these judgments, we are of the view that the Magistrate
            before whom a report under Section 173(2) of the Code is filed, is
            empowered in law to direct "further investigation" and require
            the police to submit a further or a supplementary report. A three-
            Judge Bench of this Court in Bhagwant Singh has, in no uncertain
G
            terms, stated that principle, as aforenoticed."
            19. In the said case, the question had arisen whether a Magistrate
      can direct for re-investigation. While dealing with the said issue, the
      4 (2009 l 6 sec 346
      5 (2013) 5 sec 762
H
      6 (1985) 2 sec 537
             DHARAM PAL v. STATE OF HARYANA                                    205
                    [DIPAK MISRA, J.]

Court has observed:-                                                           A
      " At this stage, we may also state another well-settled canon of
      the criminal jurisprudence that the superior courts have the
      jurisdiction under Section 482 of the Code or even Article 226 of
      the Constitution of India to direct "further investigation", "fresh"
      or "de novo" and even "reinvestigation". "Fresh", "de novo" and          B
      "reinvestigation" are synonymous expressions and their result in
      law would be the same. The superior courts are even vested with
      the power of transferring investigation from one agency to another.
      provided the ends of justice so demand such action. Of course. it
      is also a settled principle that this power has to be exercised by
      the superior courts very sparingly and with great circumspection."
                                                                               c
                                                      [Emphasis supplied]
      Andagain:-
      "Whether the Magistrate should direct "further investigation" or
      not is again a matter which will depend upon the facts of a given        D
      case. The learned Magistrate or the higher court of competent
      jurisdiction would direct "further investigation" or "reinvestigation"
      as the case may be, on the facts of a given case. Where the
      Magistrate can only direct further investigation, the courts of higher
      jurisdiction can direct further, reinvestigation or even investigation   E
      de novo depending on the facts of a given case. It will be the
      specific order of the court that would determine the nature of
      investigation."
        20. Be it noted here that the constitutional courts can direct for
further investigation or investigation by some other investigating agency.
                                                                               F
The purpose is, there has to be a fair investigation and a fair trial. The
fair trial may be quite difficult unless there is a fair investigation. We
are absolutely conscious that direction for further investigation by another
agency has to be very sparingly issued but the facts depicted in this case
compel us to exercise the said power. We are disposed to think that
purpose of justice commands that the cause of the victim, the husband          G
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.
      21. We may further elucidate. The power to order fresh, de-
novo or re-investigation being vested with the Constitutional Courts, the      H
206                   SUPREME COURT REPORTS                      [2016] 1 S.C.R.


A     commencement of a trial and examination of some witnesses cannot be
      an absolute impediment for exercising the said constitutional power which
      is meant to ensure a fair and just investigation. It can never be forgotten
      that as the great ocean has only one test, the test of salt, so does justice
      has one flavour, the flavour of answering to the distress of the people
      without any discrimination. We may hasten to add that the democratic
B
      setup has the potentiality of ruination if a citizen feels, the truth uttered
      by a poor man is seldom listened to. Not for nothing it has been said that
      Sun rises and Sun sets, light and darkness, winter and spring come and
      go, even the course of time is playful but truth remains and sparkles
      when justice is done. It is the bounden duty of a Court of law to uphold
c     the truth and truth means absence of deceit, absence of fraud and in a
      criminal investigation a real and fair investigation, not an investigation
      that reveals itself as a sham one. It is not acceptable. It has to be kept
      uppermost in mind that impartial and truthful investigation is imperative.
      If there is indentation or concavity in the investigation, can the 'faith' in
      investigation be regarded as the gospel truth' Will it have the sanctity or
D
      the purity of a genuine investigation? If a grave suspicion arises with
      regard to the investigation, should a Constitutional Court close its hands
      and accept the proposition that as t he trial has commenced, the matter
      is beyond it? That is the "tour de force" of the prosecution and if we
      allow ourselves to say so it has become '"id' ee fixe" but in our view the
E     imperium of the Constitutional Courts cannot be stifled or smothered by
      bon mot or polemic. Of course, the suspicion must have some sort of
      base and foundation and not a figment of one's wild imagination. One
      may think an impartial investigation would be a nostrum but not doing so
      would be like playing possum. As has been stated earlier facts are self-
      evident and the grieved protagonist, a person belonging to the lower
F
      strata. He should not harbor the feeling that he is an "orphan under
      law".
            22. In view of the aforesaid analysis, the appeal is allowed, the
      order of the High Court is set aside, and it is directed that the CBI shall
      conduct the investigation and file the report before the learned trial judge.
G     The said investigation report shall be considered by the trial judge as per
      law. Till the report by the CBI is filed, the learned trial judge shall not
      proceed with the trial. A copy of the order be handed over to Mr. P.K.
      Dey, learned counsel for the CBI to do the needful.
      Devika Gujral                                                 Appeal allowed.
H