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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.85 OF 2016 (@ S.L.P.(Criminal) No. 6298 of 2015)

Dharam Pal ... Appellant

Versus

State of Haryana & Ors.  ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

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

sometimes  remains  in  the  singular  and  individualistic  

realm, may be due to the perception gatherable from the  

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

fairness  being  provoked  by  some  kind  of  vengeance  or  

singularity  of  “affected  purpose”;  but,  irrefutably  a  

pronounced  and pregnant  one,  there  are  occasions  when

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the individual cry is not guided by any kind of revengeful  

attitude  or  anger  or  venom,  but  by  the  distressing  

disappointment faced by the grieved person in getting his  

voice heard in proper perspective by the authorities who are  

in charge of conducting investigation and the frustration of  

a victim gets more aggravated when he is impecunious, and  

mentally  shattered  owing  to  the  situation  he  is  in  and  

thereby  knows  not  where  to  go,  the  anguish  takes  the  

character  of  collective  agony.   When the investigation,  as  

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

and mirrors before  him the  world  of  disillusionment  that  

gives rise to the scuffle between the majesty and sanctity of  

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

constrained  to  seek  intervention  of  the  superior  courts  

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

expression  of  collective  mortification  and  the  intention  is  

that justice should not be attenuated.   

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

continuous desire to render to everyone which in his due”  

becomes a  mirage  for  the  victim and being  perturbed he  

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

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the Constitution alleging that  principle of  fair  and proper  

investigation  has  been  comatosed  by  the  investigating  

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

in the investigation which is expected to maintain loyalty to  

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

the assertions made with immense anguish gave rise to the  

question before the High Court whether some progress in  

trial would act as a remora in the dispensation of justice  

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

that an organic disorder is allowed to creep in and corrode  

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

further  question  posed  whether  the  non-approach  to  the  

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

peccadillo  so  as  to  usher  in  an  absolutely  indifferent,  

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

in the ultimate eventuate lead to guillotining of justice.  The  

High  Court  having  negatived  the  stand  put  forth  by  the  

appellant, the husband of the deceased, he has approached  

this Court by way of special leave.

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4. With the aforesaid prefatory note and a short prelude  

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

facts.  

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

the accused persons was threatened with dire consequences  

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

occurred on 06.08.2012. Despite the threat,  the daughter  

disclosed the incident to her parents. Keeping in view the  

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

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

When  the  family  stood  reconciled  to  the  situation,  

something extremely untoward happened.  On 02.09.2012,  

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

Nilikhen  for  taking  medicine  for  her  teeth  and  gums  

problem  but  did  not  return  home  on  that  day.   The  

appellant searched for his wife along with his relatives and  

eventually a bag containing vegetables and medicines and  

some  other  articles  belonging  to  the  wife  was  found  

underneath the bridge Manak Majra on the lower side of  

Sarsa Branch river. The appellant suspected that Kusum,  

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

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

such  a  situation,  the  appellant  lodged  an  FIR,  on  

05.09.2012  at  P.S.  Butana.  The  investigating  agency  

registered the FIR No. 354 for the offences under Section  

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

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

dead  body  of  Kamlesh  Devi  was  found  near  the  Sarsa  

Branch  canal  bridge.  Thereafter,  the  appellant  and  his  

daughter were examined and on that basis, offence under  

Section  376  IPC  was  added.   Eventually,  the  allegations  

were segregated and FIR No. 394 dated 20.09.2012 under  

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

Section 3 of the Scheduled Castes and the Scheduled Tribes  

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

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

accused persons in FIR No. 394 dated 20.09.2012 have been  

acquitted by the judgment dated 12.03.2014 by the learned  

Sessions  Judge.   Against  the  judgment  of  acquittal,  the  

appellant  has  filed  a  criminal  appeal  which  is  pending  

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

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

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

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

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

due  to  strangulation  coupled  with  head  injury  which  is  

antiemortem  in  nature  and  sufficient  to  cause  death  in  

ordinary course.   Apart from the accused persons named in  

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

implicated who was arrested on 19.10.2012. The other two  

accused  persons,  namely,  Aman  and  Kusum  were  taken  

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

appellant was provided security personnel as threats were  

received by the appellant for entering into a compromise in  

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

case of his wife.  

7. It  has  been  asserted  and  not  denied  by  the  

respondents  that  on  28.01.2013,  the  Superintendent  of  

Police, Karnal vide Office Memo No. 3961 recommended to  

the  Director  General  of  Police,  Haryana  that  the  case  

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

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

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

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New  Delhi.  Based  on  the  said  recommendation,  the  

Additionally  Chief  Secretary,  Government of  Haryana vide  

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

to the Government of  India,  Ministry of  Personnel,  Public  

Grievances  &  Pensions,  Department  of  Personnel  &  

Training, New Delhi for handing over the investigation to the  

CBI. It has also been asserted that a departmental action  

has been taken against ASI Ram Prakash and SHO Sanjeev  

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

On information  being  sought  by  the  appellant  under  the  

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

communication dated 17.11.2014 that departmental inquiry  

had already been initiated against  ASI  Ram Prakash and  

SHO Sanjeev Malik on charges of dereliction and negligence  

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

of  departmental  inquiry,  Ram Prakash had been reverted  

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

Sanjeev Malik, the proceedings had been sent to the Deputy  

Commissioner of Police, Ambala for being transferred.  

8. The issue that arises for consideration is whether such  

a situation calls for issuance of direction for transfer of the  

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

direct  as  trial  has  commenced  and  some witnesses  have  

been examined.  The High Court has gone by the principle  

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

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

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

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

within the guidelines laid down by this Court in  State of  

West Bengal & others v.  Committee for Protection of   

Democratic Rights, West Bengal and others1.   

9. Learned counsel for the State has supported the order  

passed by the High Court and also emphasized that regard  

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

directing for investigation by another agency.

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

the principles laid down in  Committee for Protection of  

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

Constitution Bench, after examining the rival contentions in  

the  context  of  the  constitutional  scheme,  recorded  the  

following conclusions:-  

1 (2010) 3 SCC 571

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“(i) The fundamental rights, enshrined in Part III  of the Constitution, are inherent and cannot be  extinguished  by  any  constitutional  or  statutory  provision.  Any  law  that  abrogates  or  abridges  such  rights  would  be  violative  of  the  basic  structure doctrine. The actual effect and impact  of the law on the rights guaranteed under Part III  has  to  be  taken  into  account  in  determining  whether or not it destroys the basic structure.

(ii)  Article  21  of  the  Constitution  in  its  broad  perspective seeks to protect the persons of their  lives  and personal  liberties  except  according  to  the procedure established by law. The said article  in its broad application not only takes within its  fold enforcement of the rights of an accused but  also the rights of the victim. The State has a duty  to enforce the human rights of a citizen providing  for  fair  and  impartial  investigation  against  any  person  accused  of  commission  of  a  cognizable  offence,  which may include its  own officers. In  certain  situations  even  a  witness  to  the  crime  may seek for and shall be granted protection by  the State.

(iii) In view of the constitutional scheme and the  jurisdiction conferred on this Court under Article  32 and on the High Courts under Article 226 of  the  Constitution  the  power  of  judicial  review  being an integral part  of  the basic structure of  the  Constitution,  no  Act  of  Parliament  can  exclude or curtail the powers of the constitutional  courts  with  regard  to  the  enforcement  of  fundamental rights. As a matter of fact, such a  power is essential to give practicable content to  the  objectives  of  the  Constitution  embodied  in  Part  III  and  other  parts  of  the  Constitution.  Moreover,  in  a  federal  constitution,  the  distribution  of  legislative  powers  between  Parliament  and  the  State  Legislature  involves  limitation  on  legislative  powers  and,  therefore,  

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this requires an authority other than Parliament  to  ascertain  whether  such  limitations  are  transgressed.  Judicial  review  acts  as  the  final  arbiter not only to give effect to the distribution of  legislative  powers  between  Parliament  and  the  State  Legislatures,  it  is  also  necessary to  show  any  transgression  by  each  entity.  Therefore,  to  borrow the words of Lord Steyn, judicial review is  justified  by  combination  of  “the  principles  of  separation of powers, rule of law, the principle of  constitutionality and the reach of judicial review”.

(iv)  If  the  federal  structure  is  violated  by  any  legislative action, the Constitution takes care to  protect the federal structure by ensuring that the  Courts act as guardians and interpreters of the  Constitution and provide remedy under Articles  32  and  226,  whenever  there  is  an  attempted  violation. In the circumstances, any direction by  the Supreme Court or the High Court in exercise  of power under Article 32 or 226 to uphold the  Constitution and maintain the rule of law cannot  be termed as violating the federal structure.

(v) Restriction on Parliament by the Constitution  and  restriction  on  the  executive  by  Parliament  under  an  enactment,  do  not  amount  to  restriction on the power of  the Judiciary under  Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh  Schedule  on  the  one  hand  and  Entry  2-A and  Entry 80 of List I on the other, an investigation  by another agency is permissible subject to grant  of  consent  by  the  State  concerned,  there  is  no  reason as to why, in an exceptional situation, the  Court  would  be  precluded  from  exercising  the  same power which the Union could exercise  in  terms  of  the  provisions  of  the  statute.  In  our  opinion,  exercise  of  such  power  by  the  constitutional  courts  would  not  violate  the  

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doctrine  of  separation  of  powers.  In  fact,  if  in  such a situation the Court fails to grant relief, it  would be failing in its constitutional duty.

(vii)  When the  Special  Police  Act  itself  provides  that subject to the consent by the State, CBI can  take  up  investigation  in  relation  to  the  crime  which was otherwise within the jurisdiction of the  State  police,  the  Court  can  also  exercise  its  constitutional power of judicial review and direct  CBI  to  take  up  the  investigation  within  the  jurisdiction of the State.  The power of the High  Court  under  Article  226  of  the  Constitution  cannot  be  taken  away,  curtailed  or  diluted  by  Section 6 of the Special Police Act. Irrespective of  there being any statutory provision acting as a  restriction  on  the  powers  of  the  Courts,  the  restriction  imposed by  Section 6 of  the  Special  Police Act on the powers of the Union, cannot be  read  as  restriction  on  the  powers  of  the  constitutional  courts.  Therefore,  exercise  of  power of judicial review by the High Court, in our  opinion,  would  not  amount  to  infringement  of  either the doctrine of separation of power or the  federal structure.”

[emphasis added]

11. After  recording  the  conclusions,  the  Constitution  

Bench added a  note  of  caution  which  we  may  profitably  

reproduce:-  

“Before  parting  with  the  case,  we  deem  it  necessary to emphasise that despite wide powers  conferred  by  Articles  32  and  226  of  the  Constitution, while passing any order, the Courts  must  bear  in  mind  certain  self-imposed  limitations on the exercise of these constitutional  powers.  The very plenitude of  the power under  

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the  said  articles  requires  great  caution  in  its  exercise.  Insofar  as  the  question  of  issuing  a  direction to CBI to conduct investigation in a case  is  concerned,  although  no  inflexible  guidelines  can be laid down to decide whether or not such  power should be exercised but time and again it  has been reiterated that such an order is not to  be  passed  as  a  matter  of  routine  or  merely  because  a  party  has  levelled  some  allegations  against the local police. This extraordinary power  must  be  exercised  sparingly,  cautiously  and in  exceptional  situations  where  it  becomes  necessary  to  provide  credibility  and  instil  confidence in investigations or where the incident  may  have  national  and  international  ramifications  or  where  such  an  order  may  be  necessary  for  doing  complete  justice  and  enforcing the fundamental rights. Otherwise CBI  would be flooded with a large number of  cases  and with limited resources, may find it difficult to  properly investigate even serious cases and in the  process  lose  its  credibility  and  purpose  with  unsatisfactory investigations.”

[underlying is ours]

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

detailed charge-sheet had been filed and subsequent to the  

filing  of  the  said  detailed  charge-sheet,  a  supplementary  

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

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

accused before the competent court and in accordance with  

the direction given by the Court further investigation had  

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

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Code of Criminal Procedure and, therefore, the jurisdiction  

of this Court under Article 32 of the Constitution had come  

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

charge-sheet  was  filed  after  conducting  the  investigation  

under the supervision and monitoring of the Court, there  

was  no  need  to  transfer  the  case  to  another  agency.  

Repelling  the  said  submission,  the  larger  Bench  opined,  

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

involved,  the  investigation  could  not  be  said  to  be  

satisfactorily held.  That apart, the Constitution Bench also  

ruled  that  in  the  circumstances  it  was  not  sufficient  to  

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

public at large that State should be allowed to continue the  

investigation  when  the  alleged  offences  were  against  its  

officials.  Under these circumstances, the Court directed the  

CBI to take up the investigation and submit a report.

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

find any aspect which would support the stand put forth by  

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

perceive, the Constitution Bench has laid great emphasis on  

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

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

were different and related to alleged crimes committed by  

certain  State  officials,  but  the  base  of  confidence  in  

investigation has been significantly highlighted.    

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

Bench decision in Narmada Bai v. State of Gujarat and  

others2.  The Court, in the factual matrix of the case, has  

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

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

punished  in  accordance  with  law  notwithstanding  their  

status and authority which they might have enjoyed, it is  

desirable to entrust the investigation to CBI.

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

Superintendent of Police, CBCID South Zone, Chennai  

and others3 reiterating the said principle stated that  the  

power of transferring such investigation must be in rare and  

exceptional cases where the court finds it necessary in order  

to do justice between the parties and to instill confidence in  

the public mind, or where investigation by the State police  

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

2 (2011) 5 SCC 79 3 (2013) 12 SCC 480

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and  complete  investigation”,  and  particularly,  when  it  is  

imperative  to  retain  public  confidence  in  the  impartial  

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

earlier decisions, has laid down as follows:-

“In view of the above, the law can be summarised  to  the  effect  that  the  Court  could  exercise  its  constitutional  powers  for  transferring  an  investigation from the State investigating agency  to  any  other  independent  investigating  agency  like CBI only in rare and exceptional cases. Such  as  where  high  officials  of  State  authorities  are  involved,  or  the accusation itself  is  against  the  top  officials  of  the  investigating  agency  thereby  allowing them to influence the investigation, and  further that it is so necessary to do justice and to  instil confidence in the investigation or where the  investigation  is  prima  facie  found  to  be  tainted/biased.”

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

appreciated on the touchstone of the aforesaid authorities.  

As  the  facts  would  reveal  there  was  a  request  by  the  

Additional Chief Secretary for handing over the investigation  

to the CBI; that departmental action was taken against the  

investigating authorities for negligent investigation; that the  

concerned  ASI  has  been  reverted  to  the  post  of  Head  

Constable; and that apart, certain material witnesses have  

not been examined by the investigating agency without any  

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

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

to another investigating agency.  

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

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

the Police Officer conducting investigation to file a report on  

completion  of  the  investigation  with  the  Magistrate  

empowered  to  take  cognizance  of  the  offence.   Section  

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

further  investigation  even  after  filing  of  a  report  under  

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

documentary.  Thus, the power of the Police Officer under  

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

Magistrate  has  no  power  to  interfere  but  it  would  be  

appropriate on the part of the investigating officer to inform  

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

State of Bihar4.   

4 (2009) 6 SCC 346

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18. In  Vinay Tyagi v. Irshad Ali5, wherein a two-Judge  

Bench, after referring to the decision in  Bhagwant Singh  

v. Commr. Of Police6 has held thus:-

“However, having given our considered thought to  the principles stated in these judgments, we are  of  the  view that  the  Magistrate  before  whom a  report under Section 173(2) of the Code is filed, is  empowered in law to direct “further investigation”  and require the police to submit a further or a  supplementary  report.  A  three-Judge  Bench  of  this  Court  in  Bhagwant  Singh  has,  in  no  uncertain  terms,  stated  that  principle,  as  aforenoticed.”

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

Magistrate can direct for re-investigation. While dealing with  

the said issue, the Court has observed:-

“At  this stage,  we may also state another  well- settled canon of the criminal jurisprudence that  the superior  courts have the jurisdiction under  Section 482 of the Code or even Article 226 of the  Constitution  of  India  to  direct  “further  investigation”,  “fresh”  or  “de  novo”  and  even  “reinvestigation”.  “Fresh”,  “de  novo”  and  “reinvestigation”  are  synonymous  expressions  and their result in law would be the same.  The  superior courts are even vested with the power of transferring  investigation  from  one  agency  to  another, provided the ends of justice so demand such  action.  Of  course,  it  is  also  a  settled  principle that this power has to be exercised by  the superior courts very sparingly and with great circumspection.”

[Emphasis supplied]

5 (2013) 5 SCC 762 6 (1985) 2 SCC 537

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And again:-

“Whether  the  Magistrate  should  direct  “further  investigation” or not is again a matter which will depend  upon  the  facts  of  a  given  case.  The  learned  Magistrate  or  the  higher  court  of  competent  jurisdiction  would  direct  “further  investigation” or “reinvestigation” as the case may be,  on  the  facts  of  a  given  case.  Where  the  Magistrate can only direct further investigation,  the  courts  of  higher  jurisdiction  can  direct  further,  reinvestigation  or  even investigation de  novo depending on the facts of  a given case. It  will be the specific order of the court that would  determine the nature of investigation.”

20. Be  it  noted  here  that  the  constitutional  courts  can  

direct  for  further  investigation  or  investigation  by  some  

other investigating agency.  The purpose is, there has to be  

a fair  investigation and a fair  trial.  The fair  trial  may be  

quite difficult unless there is a fair investigation.  We are  

absolutely conscious that direction for further investigation  

by another agency has to be very sparingly issued but the  

facts depicted in this case compel us to exercise the said  

power.   We are disposed to think that  purpose of  justice  

commands that the cause of the victim, the husband of the  

deceased,  deserves to be answered so that  miscarriage of  

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

case cannot be the governing factor.

21. We may further elucidate.  The power to order fresh,  

de-novo or  re-investigation  being  vested  with  the  

Constitutional  Courts,  the  commencement  of  a  trial  and  

examination  of  some  witnesses  cannot  be  an  absolute  

impediment  for  exercising  the  said  constitutional  power  

which is meant to ensure a fair and just investigation.  It  

can never be forgotten that as the great ocean has only one  

test,  the test of  salt,  so does justice has one flavour, the  

flavour of  answering to the distress of  the people without  

any  discrimination.   We  may  hasten  to  add  that  the  

democratic setup has the potentiality of ruination if a citizen  

feels, the truth uttered by a poor man is seldom listened to.  

Not for nothing it  has been said that  Sun rises and Sun  

sets, light and darkness, winter and spring come and go,  

even the course of  time is playful  but truth remains and  

sparkles when justice is done.  It is the bounden duty of a  

Court of law to uphold the truth and truth means absence  

of deceit, absence of fraud and in a criminal investigation a  

real and fair investigation, not an investigation that reveals  

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itself as a sham one.  It is not acceptable.  It has to be kept  

uppermost in mind that impartial and truthful investigation  

is  imperative.   If  there is  indentation or  concavity  in  the  

investigation,  can the ‘faith’  in investigation be regarded as  

the gospel truth? Will it have the sanctity or the purity of a  

genuine  investigation?   If  a  grave  suspicion  arises  with  

regard to the investigation,  should a Constitutional  Court  

close its hands and accept the proposition that as the trial  

has commenced, the matter is beyond it?  That is the “tour  

de force” of the prosecution and if we allow ourselves to say  

so it has become “‘id’ee fixe” but in our view the imperium of  

the Constitutional Courts cannot be stifled or smothered by  

bon mot or polemic.  Of course, the suspicion must have  

some sort of base and foundation and not a figment of one’s  

wild imagination.  One may think an impartial investigation  

would be a nostrum but not doing so would be like playing  

possum.  As  has  been stated  earlier  facts  are  self-evident  

and the grieved protagonist, a person belonging to the lower  

strata.   He  should  not  harbor  the  feeling  that  he  is  an  

“orphan under law”.   

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

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

that  the  CBI  shall  conduct  the  investigation  and file  the  

report before the learned trial judge.  The said investigation  

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

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

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

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

needful.  

...............................J.    [Dipak Misra]

...............................J.         [Prafulla C. Pant]

New Delhi, January 29, 2016

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