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REPORTABALE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

                   TRANSFER PETITION (CRIMINAL) NO. 351 OF 2013

                                                                                                                 SUJATHA RAVI KIRAN @

SUJATASAHU              …Petitioner  

VERSUS

        STATE OF KERALA & ORS.                   …Respondents    

WITH

WRIT PETITION   (CRIMINAL) NO.164 OF 2013   

  AND   

TRANSFER PETITION (CRIMINAL) NO. 384 OF 2013                

J U D G M E N T

R. BANUMATHI, J.

Transfer Petition (Crl.) Nos. 351 of 2013, 384 of 2013  

have been filed to transfer the petitions filed under Section 482 of  

the Cr.P.C. being Criminal M.C. No.2551 of 2013 and Criminal  

M.C. No.2424 of 2013 pending before the High Court of Kerala at  

Ernakulam to the High Court of Delhi.

2. The petitioner got married to Lt. Ravi Kiran Kabdula on  

09.03.2012 as per Hindu rites and customs.  Petitioner's husband  

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Lt. Ravi Kiran Kabdula is a naval officer who was then posted at  

Kochi, Kerala.  After marriage, the petitioner was residing with her  

husband  at  Kochi.   As  brought  on  record,  the  relationship  

between the petitioner and her husband was not very cordial.  On  

22.02.2013,  the  petitioner  gave  an  oral  complaint  that  her  

husband was withholding her identity card, laptop, mobile phone,  

original marriage certificate etc.   The respondent was called to the  

police  station  and  directed  to  handover  the  belongings  to  the  

petitioner.  On  04.04.2013,  the  petitioner  lodged  a  complaint  

against her husband, her parents-in-law and sister-in-law alleging  

that they have subjected her to physical and mental cruelty.  The  

petitioner  had also levelled charge of  sexual  abuse against  five  

naval officers and wife of one of the naval officers.  Based on her  

complaint, a case was registered in FIR No.260 of 2013 for the  

offences punishable under Sections 498-A, 354, 506 (Part-I) IPC  

read with Section 34 IPC against the petitioner's husband Lt. Ravi  

Kiran  Kabdula, her parents-in-law, sister-in-law and the said five  

naval officers and wife of one of them.  In the complaint lodged  

subsequently,  the  petitioner  had  made  allegations  of  wife-

swapping and also implicated new names.  Investigation in the  

said case is pending with Harbour Police Station, Kochi, Kerala.

3. Petitioner's  husband  had  moved  an  anticipatory  bail  

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application before the High Court of Kerala, which was rejected  

vide order dated 10.06.2013.  While declining anticipatory bail,  

the High Court has directed that a thorough investigation must be  

conducted by the police.  Pursuant to the said order of the court,  

Deputy  Commissioner  of  Police  vide  order  dated  12.06.2013  

constituted a special team headed by the Assistant Commissioner  

of Police, Kochi.

4. Navy officers shown as accused in FIR No.260 of 2013  

and private respondents in these transfer petitions namely, Capt.  

Ashok  K  Aukta,  Preena  Aukta,  Lt.  Ishwar  Chand  Vidyasagar,  

Anand Balakrishnan and Ajay  Jaykrishnan have  filed  petitions  

under Section 482 Cr.P.C. in Criminal M.C. No. 2551 of 2013, and  

Criminal M.C. No.2424 of 2013 before the High Court of Kerala,  

which the petitioner now seeks to transfer.   The petitioner claims  

transfer  of  the  said  two  petitions  contending  that  she  has  no  

means or a male member in her family to support her to pursue  

the  case  at  Kerala.   The  petitioner  also  alleges  that  she  faces  

threat to her life on account of the private respondents.  When  

these transfer petitions came up for hearing, by an order dated  

16.09.2013, this Court granted interim stay of further proceedings  

in the said quash petitions.

5. We have heard the counsel appearing for the parties at  

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considerable length and perused the impugned order and material  

on record.

6. As noticed earlier, investigation in FIR No. 260 of 2013  

registered at Harbour Police Station, Kochi, is pending in the State  

of Kerala and stated infra, we have directed further investigation  

in the said case by a special team of state police officers.  When  

the investigation is pending in the State of Kerala, it is desirable  

that  the  quash  petitions  filed  under  Section  482,  Cr.P.C.  are  

heard in the High Court of Kerala, as the High Court will be in a  

better position to take note of further progress in the investigation  

and also consider the evidence recorded.  The Supreme Court will  

transfer a case from one State to another State only if there is a  

reasonable  apprehension on the part  of  a  party  to  a case that  

justice  will  not  be  done.  The  petitioner  has  pleaded  that “the  

atmosphere in Kerala is not conducive for the case to progress and   

reach its judicious end”.  The petitioner has only alleged that the  

accused are naval officers and are influential. Mere apprehension  

that the accused are influential may not be sufficient to transfer  

the case. Since a special team of state police officers is constituted  

for further investigation, we are not inclined to order the transfer  

of  the criminal  miscellaneous petitions from the High Court  of  

Kerala to the High Court of Delhi.  As the petitioner has expressed  

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difficulties  in  travelling  Kerala  and  pursuing  the  matter,  we  

request the Kerala State Legal Services Authority to nominate a  

senior counsel to represent the petitioner in the matters before the  

High Court.

7. In Writ Petition (Crl.) No. 164 of 2013, the petitioner has  

prayed for issuance of writ, directing investigation of FIR No. 260  

of 2013, to be entrusted to an independent  investigating agency  

or  Central  Bureau  of  Investigation  (CBI)  to  ensure  fair  and  

impartial  investigation.  The petitioner has alleged lackadaisical  

approach by the state police to defeat petitioner's case.  In the writ  

petition  on  20.09.2013,  this  Court  passed  an  interim  order  

staying  of  the  investigation  in  connection  with  FIR  No.  260  of  

2013  and  also  proceedings  before  the  Board  of  Enquiry,  INS  

Vendurthy, Naval Base, Kochi.

8. The State of Kerala has filed counter affidavit denying  

petitioner's allegation of  inaction and lackadaisical approach by  

the state police.  In the counter affidavit filed by the State, it is  

stated that after taking over the investigation by the special team  

on 14.06.2013, the petitioner was examined on 10.07.2013 and  

subjected  to  medical  examination  at  Safdarjung  Hospital,  New  

Delhi on 11.07.2013.   It is further stated that as many as seventy  

one witnesses, including the petitioner, friends of the petitioner,  

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doctors  and  other  witnesses  have  been  examined  and  

investigation  is  continuing.   It  is  further  stated  that  in  the  

anticipatory bail application filed by the husband in B.A. No. 2719  

of 2013, the High Court of Kerala on 10.06.2013 passed certain  

remarks  about  the  investigation  of  the  case  and  directed  a  

thorough investigation  by police.   Pursuant  to  that,  vide  order  

dated 12.06.2013, Deputy Commissioner of Police, Kochi City had  

constituted a special team headed by Assistant Commissioner of  

Police,  Crime Detachment,  Kochi City   and investigation of  the  

case  was  taken over  by  them on 14.06.2013.  Pursuant  to  the  

order  of  the  High Court,  the  state  police  did  proceed with  the  

further investigation.

9. It  is  well  settled  that  the  extraordinary  power  of  the  

constitutional courts in directing C.B.I. to conduct investigation in  

a  case  must  be  exercised  rarely  in  exceptional  circumstances,  

especially,  when there is lack of  confidence in the investigating  

agency or in the national interest and for doing complete justice in  

the matter.  A Constitution Bench of this Court in  State of West  

Bengal & Ors. vs. Committee for Protection of Democratic Rights,   

West Bengal & Ors. (2010) 3 SCC 571 held as under:

“69.In the final analysis, our answer to the question referred is  that a direction by the High Court, in exercise of its jurisdiction  under  Article  226  of  the  Constitution,  to  CBI  to  investigate  a  cognizable  offence  alleged  to  have  been  committed  within  the  territory of a State without the consent of that State will neither  

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impinge upon the federal structure of the Constitution nor violate  the doctrine of  separation of  power and shall  be valid in  law.  Being the protectors of civil  liberties of the citizens, this Court  and the High Courts have not only the power and jurisdiction but  also an obligation to protect the fundamental rights, guaranteed  by Part III in general and under Article 21 of the Constitution in  particular, zealously and vigilantly.

70. 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 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 merley 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.

71. In  Minor Irrigation & Rural  Engg. Services,  U.P.  v.  Sahngoo  Ram Arya (2002) 5 SCC 521,  this Court had said that an order  directing an enquiry by CBI should be passed only when the High  Court,  after  considering  the  material  on  record,  comes  to  a  conclusion that such material  does disclose a prima facie case  calling for an investigation by CBI or any other similar agency.  We respectfully concur with these observations.”

10. Taking into account the law laid down by this Court in  

Committee for Protection of Democratic Rights (supra), direction for  

investigation by C.B.I. was declined by this Court in the case of K.  

Saravanan Karuppasamy & Anr.  v. State  of  Tamil  Nadu & Ors.  

(2014) 10 SCC 406 and Sudipta Lenka v. State of Odisha & Ors.  

2014 (11) SCC 527.

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11. Considering the facts and circumstances of the case in  

hand, in the light of the above principles, we are of the view that  

the case in hand does not entail a direction for transferring the  

investigation  from the  state  police/special  team of  State  Police  

Officers  to  C.B.I.   The  facts  and  circumstances  in  which  the  

offence  is  alleged  to  have  been  committed  can  be  better  

investigated into by the state police.  However, having regard to  

the  nature  of  allegations levelled by the petitioner,  we deem it  

appropriate to direct the State of Kerala to constitute a special  

team of police officers headed by an officer not below the rank of  

Deputy Inspector General of Police to investigate the matter.

12. In  the  result,  the  Writ  Petition  (Criminal)  No.  164 of  

2013   is  disposed  of  with  direction  to  the  Director  General  of  

Police, Kerala to constitute a special investigation team headed by  

a police officer not below the rank of Deputy Inspector General of  

Police to take up further investigation in FIR No.260 of 2013. The  

special  investigation team shall  take up further investigation in  

accordance with law and complete the investigation at an early  

date preferably within a period of three months from today.  We  

request the High Court to take up the Criminal M.C. Nos.2551 of  

2013  and  2424  of  2013  after  the  special  investigation  team  

completes the investigation.

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13. The Transfer Petitions (Criminal) Nos. 351 of 2013 and  

384 of 2013 are dismissed. This order, however, shall not prevent  

the petitioner from seeking transfer of Divorce Petition filed by the  

husband if she is so advised. We make it clear that we have not  

expressed any opinion on the merits of the matter.

                       ….……...................CJI. (T.S. THAKUR)  

                      ……….......................J. (R. BANUMATHI)

                       ………......................J.                                  (UDAY UMESH LALIT)   

New Delhi, May 12, 2016.

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