REPORTABLE

IN THE SUPREME COURT OF INDIA   

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.   3918-3919 OF 2019 (arising out of S.L.P. (C) Nos. 32344-32345/2018)

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

Vs.

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

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. The  State  of  Tamil  Nadu  alongwith  its

functionaries  have  filed  these  appeals  against  the

common judgment dated 30.11.2018 passed by the High

Court of Madras in Writ Petition Nos. 20392 and 20963

of  2018  filed  by  the  respondents  as  PIL  (Public

Interest Litigation).    

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

majestic  temples,  its  rich  culture  and  heritage.

Idols consecrated in its various temples have their

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own significance, rich heritage and some of the idols

dates back to 1500 to 2000 years back. There have

been several instances for theft of precious idols

and  artefacts  in  the  State  of  Tamil  Nadu,  which

alarmed the State Government.  The State Government

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

dated  07.10.1983  formed  an  Idol  Wing  of  Crime

Investigation Department (CID).  The temples in Tamil

Nadu  are  administered  under  the  enactment  namely,

Tamil Nadu Hindu Religious and Charitable Endowments

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

Hindu Religious and Charitable Endowments Department

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

the State controls and administers various temples in

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

a direct control and management of the temples, its

properties, idols and artefacts etc.  

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

herein,  who  shall  hereinafter  be  referred  to  as

“respondent No.2” was appointed as Deputy Inspector

General of Police, Idol Wing, Chennai on 11.02.2012,

which was part of Economic Offences Wing of the Tamil

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Nadu Police. The role of the wing is basically for

efficient investigation, detection and follow up of

the  Idol  theft  cases  and  follow  the  Court  cases

concerning them.  Respondent No.2 was continued in

the Idol Services Wing since then.   

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

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

herein,  filed  petitions  before  the  High  Court  of

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

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

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

transferring the investigation regarding theft of 06

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

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

2017,  the  prayer  was  made  to  transfer  an  FIR

pertaining to an Idol theft from the Idol Theft Wing,

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

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

8960 of 2017 was with regard to Sri Pasupatheeswarar

Temple in Thanjavur District, which was built during

the Chola Reign about 1500 to 2000 years ago, which

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according to petitioner houses several ancient idols

of  temples.   Allegation  was  made  that  06  of  such

idols were missing belonging to a temple with regard

to which complaints were made to police officers and

officials of HR & CE Department.  Despite several

complaints to police officers and officials of HR &

CE Department, no FIR has been lodged and no action

has been taken to punish the erring officials of the

HR  &  CE  Department.   It  was  further  pleaded  that

officials of HR & CE Department are not appropriate

authority to investigate the offence of theft, hence

appropriate direction was sought for.  

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

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

making allegation that a police official came into

possession of six Idols during the course of their

investigation  had  sold  the  Idols  for  Rs.6  Crores.

Despite the fact that FIR had been lodged against the

accused,  they  have  been  promoted  and  no  further

action  was  taken.   Further  allegation  was  that

investigation by a subordinate officer of the same

wing cannot be handled effectively.  Allegations were

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also made that Idols worth several crores of rupees

were sold by the trustees in collusion with the HR &

CE authorities.   

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

petitions by its judgment dated 21.07.2017.  the High

Court during the hearing had summoned the Inspector

General of Idol Wing, who at that time was second

respondent.  Inspector General of Idol Wing appeared

before the Court and brought to the notice of the

Court, various difficulties and shortcomings faced by

the Idol Wing due to which steps for detection of

Idol thefts and bringing the culprits before law is

being  hampered.   During  the  course  of  hearing  on

30.06.2017, it was brought before the knowledge of

Madras  High  Court  that  respondent  No.2,  who  was

working as Inspector General of Police, Idol Wing has

been transferred.  Court observed that officer, the

respondent No.2 has been supervising the cases and

has  efficiently  traced  and  recovered  several  Idols

worth several crores.  Court further observed that it

is not that the succeeding officer is less efficient,

but  considering  that  Respondent  No.2  and  his  team

have extensively travelled throughout the country and

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are aware of the modus operandi of the culprits, for

the  sake  of  continuity,  speedy  completion  of  the

investigation  and  completion  of  the  pending  cases,

respondent  No.2  must  continue  despite  the  work

assigned  presently.   The  Madras  High  Court  on

21.07.2017 issued 20 directions to the State of Tamil

Nadu,  out  of  which  first  04  directions  are  as

follows:-

“(i) The Chief Secretary of the State of Tamil  Nadu  must  issue  appropriate orders within a week for the creation of a special camp at Tiruchirappalli headed by Mr. A.G. Ponn Manickavel, IPS, Inspector General of Police with other  members  of  Idol  wing,  who associated  him  earlier  for  the completion  of  trial  in  the  pending cases in the State and needless to say  that  necessary  infrastructure, staff  and  transportation,  vehicle, fuel etc. from time to time are to be provided. The said officer can place his  representation  immediately intimating  required  assistance  and the team members required by him to the  Chief  Secretary  and  on  such representation,  the  same  shall  be provided forthwith.

(ii) The  cases  pending  on  the  file  of various courts in the State of Tamil Nadu prosecuted by the Idol wing are hereby transferred to the file of the learned  Additional  Chief  Judicial Magistrate, Kumbakonam for effective and speedy disposal of the cases, on day to day basis.

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(iii) The Inspector General of Police Mr. A.G. Ponn Manickavel, IPS and all the officers of the cases connected with Idol  wing,  CID  are  directed  to continue to investigate and follow up all  the  cases  under  investigation, pending trial, till the disposal by the learned Additional Chief Judicial Magistrate, Kumbakonam.

(iv) The team as now ordered by this Court headed  by  the  Inspector  General  of Police Mr. A.G. Ponn Manickavel, IPS, shall  continue  to  follow  up  those cases  in  addition  to  their  present and future assignments, wherever they are posted.

............”

9. The Director General of Police aggrieved by the

order  dated  21.07.2017  passed  by  the  Madras  High

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

which  was  disposed  of  by  this  Court  by  its  order

dated 01.09.2017 in following manner:-

“Having heard Mr. Mukul Rohatgi, learned Senior Counsel for the petitioners and Mr. J. Sai Deepak Iyer, learned counsel for the respondents and upon perusal of the record, we  consider  it  appropriate  to  delete  the findings pertaining to the mala fide nature of  the  transfer  of  Inspector  General  of Police Mr. A.G. Ponn Manickavel. We order accordingly.  

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Nonetheless,  the  order  regarding  the transfer of Inspector General of Police Mr. A.G. Ponn Manickavel, shall remain intact.  

With  the  aforesaid  observations,  the special leave petitions stand disposed of.  

As  a  sequel  to  the  above,  pending interlocutory  applications,  if  any,  stand disposed of.”     

10. This Court did not interfere with the directions

of Madras High Court dated 21.07.2017 directing the

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

the  CID.    The  High  Court  vide  its  order  dated

21.07.2017  had  not  disposed  of  the  matter  finally

rather  it  postponed  the  matter  for  reporting

compliance.  It appears that before the High Court,

it  was  brought  to  the  notice  that  State  has  not

complied with various directions issued on 21.07.2017

and  there  are  obstacles  created  in  carrying  out

various functions of the Idol Wing.  It is further to

be noticed that several FIRs were registered leading

to arrest of several culprits including some officers

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

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

2017, High Court made certain observations about not

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providing  proper  infrastructure  to  the  Court

appointed idol Wing.   

11. On 31.07.2018, Commissioner, HR & CE Department

wrote  a  letter  to  Director  General  of  Police,

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

that  Idol  Wing  of  the  Police  is  harassing  the

officials of HR & CE Department and they are being

threatened with filing of the FIRs.  Reference to

certain  complaints  made  by  officers  of  HR  &  CE

Department brought to the notice of the Commissioner

were also narrated.  The Commissioner requested the

State to take necessary action to ensure a fair and

confidential investigation and bring the culprits to

book,  without  damaging  the  reputation  of  honest

officials  and  the  Department.   Commissioner  also

requested  that  early  charge  sheets  be  filed  and

prosecution be undertaken to enable disposal of the

cases,  early  apprehension  of  criminals  and

restoration of the Idols to the respective temples.   

12. On the said letter, Additional Director General

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

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the Director General of Police mentioning that during

investigation of cases, several senior officers and

other staff belonging to HR & CE Department were also

arrested.  The  Additional  Director  of  Police

recommended that all cases under investigation by the

special team constituted for Idol theft cases and all

such future cases may be transferred to the Central

Bureau of investigation.  Director General of Police

on 01.08.2018 wrote to Additional Chief Secretary to

the  Government  concurring  with  the  views  of

Additional Director General of Police to transfer the

cases  to  Central  Bureau  of  Investigation.   On

01.08.2018,  the  Additional  Chief  Secretary  to  the

Government  wrote  to  Additional  Advocate  General  of

the High Court of Madras bringing into notice the

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

by Additional Chief Secretary to the Government that

High  Court  be  apprised  about  the  decision  of  the

Government and when the above cases are taken up for

hearing and whether any orders from the Court are

required.  On  01.08.2018  itself,  the  Additional

Advocate General of Tamil Nadu brought to the notice

of  Additional  Chief  Secretary  that  he  has  brought

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into the notice of the Madras High Court about the

communication dated 01.08.2018 on which the Bench has

observed that the communication, decisions or orders,

as the case may be placed before the Court on its

next hearing on 08.08.2018.  On 01.08.2018 itself,

the State Government issued an order according its

consent to transfer all cases being investigated by

the Special Team constituted for the Idol cases and

all  such  future  cases  to  the  Central  Bureau  of

Investigation.   

13. Two Writ Petitions being Writ Petition No.20392

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

Nadu and Writ Petition No. 20963 of 2018 – Traffic

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

filed in the Madras High Court praying for quashing

the Government Order dated 01.08.2018, transferring

the  investigation  to  the  Central  Bureau  of

Investigation.  The above writ petitions were heard

by the Division Bench and the Division Bench of the

High Court vide its judgment dated 30.11.2018 allowed

both the above writ petitions quashing the Government

Order dated 01.08.2018 and issued several directions.

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The conclusion of the Court is recorded in paragraph

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

High Court has held:-

“45. This Court is empowered under Article 226 of the Constitution to pass any orders to  secure  the  ends  of  justice.  We  have already  expressed  our  anguish  over  the conduct of the State in handling the matter insensitively.  The  directions  issued  by this  Court  and  confirmed  by  the  Hon’ble Supreme  Court  have  not  been  complied  in full. We have also expressed that we are satisfied  with  the  credentials  of  the Mr.A.G.Pon  Manickavel,  I.P.S,  Inspector General of Police and the steps taken by him in the process of investigation. Hence, the following directions are given, which shall  be  implemented  by  the  State forthwith:

(1)Mr.A.G.Pon  Manickavel,  I.P.S, Inspector General of Police is hereby appointed  as  a  Special  Officer  to head Idol Wing~CID, Chennai to deal with the cases of theft of idols and  antiques  in  all  stages,  for  a period of one year, who shall assume charge  on  his  superannuation  on 30.11.2018  forthwith  and  function from  the  same  camp  with  the  same facilities. The Government shall pass orders  to  that  effect.  It  is  made clear  that  any  delay  by  the Government  in  passing  appropriate orders, shall not curtail the powers of Mr.A.G.Pon Manickavel, I.P.S. to head  the  team  and  investigate  the cases and take appropriate action as per law.

(2)The members of the Special team constituted  on  the  basis  of  the orders  of  this  Court  on  21.07.2017

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shall continue to be  part   of the team and any such member as requested by                    Mr.A.G.Pon Manickavel, I.P.S., shall be spared by the Government from the Tamil Nadu Police Force.

(3)Mr.A.G.Pon  Manickavel,  I.P.S., Inspector  General  of  Police,  shall draw the same pay and benefits that were available to him at the time of his retirement for the entire tenure of his term as Special officer.

(4)The  Special  Officer,  hereby appointed shall investigate the cases thoroughly  and  periodically  submit all  the  reports  before  the appropriate Court as per law and also before this Court in a sealed cover to enable this Court to monitor the investigation.

(5)The Special Officer and his team shall  continue  to  not  only investigate  and  file  charge  Sheets and  prosecute  in  the  pending  cases but shall also continue to do so in the  cases  arising  in  future  during his  tenure  or  until  further  orders from this Court.

(6)The  CBI  and  other  agencies  of Central Government shall continue to give  appropriate  support  to  the Special officer and his team.

(7)No action or enquiry against the Special officer or any member of his team shall be initiated except with the concurrence of this Court. If any materials are there to rely upon for necessary action, the same be placed before  this  court  for  further directions.

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(8)The  State  shall  forthwith  issue appropriate  communications  to concerned  Departments  of  the  State including the HR & CE Department to extend  their  fullest co~operation to the Special Team and furnish necessary particulars and documents sought by them.

(9)  The  State  shall  create  a separate  Division  to  handle  the financial aspects of the functioning of the team so as to ensure that no action  is  delayed  for  paucity  of funds and separate account is to be created  for  this  purpose  and reasonable amount must be available to meet out the daily overheads.

(10)All  the  directions  issued  by this  Court  shall  be  implemented without  any  delay  or  demur  and  a report shall be submitted regarding the action taken.  

46.With  the  above  directions,  the  writ petitions are allowed. Consequently, other connected  petitions  in  W.M.P.Nos.23975, 23976, 24609 and 26868 of 2018 are closed. No costs.  

47.When  we  are  about  to  pronounce  this order,  the  petitioner  in  WP.No.20392  of 2018  produced  a  copy  of  the  proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating  that  one  Thiru.Abhay  Kumar Singh, IPS, Additional Director General of Police/Chief  Vigilance  Officer, Tamil  Nadu  Newsprint  and  Papers  Limited, Karur  has  been  transferred  and  posted  as Additional Director General of Police, Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID.

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48.We are of the view that the State all along, is not inclined to continue with the investigation  of  idol  theft  cases  as  the same  were  transferred  to  CBI  despite pendency of the stay order of this Court. It is also pertinent to note that after the orders  were  reserved,  they  have  upgraded the post of the Additional Director General of  Police  and  appointed  an  officer,  by order  dated  29.11.2018,  which  action  is inappropriate and it would amply prove the transfer of cases in a most hurried manner within  a  single  day  i.e.,  on  01.08.2018. Similarly, the manner in which the present order  dated  29.11.2018  has  been  passed, will  speak  for  itself.  Hence, notwithstanding the order dated 29.11.2018 passed by the Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve the idols as well as recovery of the stolen idols  to  uphold  the  cultural  heritage  of this land.”

14. State  of  Tamil  Nadu  aggrieved  by  the  said

judgment has filed these appeals.   

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

appeared for the State of Tamil Nadu.  Shri Mukul

Rohatgi,  learned  senior  counsel  has  appeared  for

Director  General  of  Police,  Tamil  Nadu.   We  have

heard  Shri  R.  Basant,  learned  senior  counsel

appearing for the respondent No.1 and we have also

heard learned counsel, who has appeared for the PIL

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

heard, learned counsel, who appeared for intervenor.

Shri  Mohan  Parasaran,  Senior  Advocate  has  appeared

for respondent No.9.

16. Learned Attorney General submits that High Court

exceeded  its  jurisdiction  under  Article  226  in

appointing respondent NO.2 as a Special Officer to

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

be superannuated on 30.11.2018 itself.  In the writ

petition, challenge was to the Government order dated

01.08.2018 for transferring the investigation, which

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

CBI.   Without their being any prayer, the respondent

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

Wing even after his superannuation.  The respondent

No.2  after  superannuation  could  not  have  exercised

any power of police officer as entrusted on a police

officer  under  the  Code  of  Criminal  Procedure.

Retired police officer is not a police officer for

purposes of registering a FIR or carrying out the

investigation  or  submitting  a  charge  sheet,  nor  a

retired police officer can present a case in Court.

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The  State  Government  was  fully  justified  in

transferring the investigation of Idol theft cases to

CBI for fair investigation.  Even the learned Single

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

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

in  event  appropriate  infrastructure  and  facilities

are not provided to Idol Wing, the Court may direct

for investigation to be carried out by CBI.   

17. High Court, exercising jurisdiction under Article

226 cannot take over the power of Superintendent of

Police  conferred  on  the  State  Government  under

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

within the scope of Article 226 so as to direct by

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

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

Executive.  The direction to appoint respondent NO.2

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

passed without affording an opportunity to the State.

The  State  has  already  appointed  one  Abhay  Kumar

Singh,  by  Government  Order  dated  29.11.2018,  as

Additional  Director  General  of  Police,  Idol  Wing,

CID, Chennai, which order has been erroneously held

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by the High Court to be redundant.  When respondent

No.2  was  going  to  be  superannuated  on  30.11.2018,

State was fully justified in making an arrangement to

head the Idol Wing of the CID.  The directions issued

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

the  judgment  are  all  beyond  the  scope  of  the

jurisdiction  of  the  High  Court  under  Article  226.

Although, this Court as well as the High Courts in

several  judgments  has  directed  for  carrying  on

investigations by retired personnel but in none of

the cases, the question was decided as to whether it

is competent on behalf of the High Court to direct

for carrying out investigation by retired personnel.

The power given to this Court to pass orders under

Article 142 are not available to the High Court under

Article  226.   The  High  Court,  while  exercising

jurisdiction  under  Article  226  has  virtually

exercised the jurisdiction given to this Court under

Article 142 of the Constitution.  The respondent No.2

has provided the details of cases so as to transfer

it to the CBI as per its request.  

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18. Shri  Mukul  Rohatgi,  learned  senior  counsel

appearing for the Director General of Police submits

that impugned judgment of the High Court is beyond

the scope of Article 226.  It is submitted that High

Court  erred  in  directing  for  continuation  of

respondent  No.2  even  after  superannuation.   There

have been several complaints against respondent No.2

relating to his functioning and respondent NO.2 was

not a person who could have been allowed to head the

Idol  Wing  even  after  his  superannuation.   It  is

submitted that in the writ petitions, respondent No.2

has  filed  certain  self-serving  documents  on

27.11.2018 to which no opportunity was there to the

appellants to rebut the claim of respondent No.2 that

he has done much good work pertaining to theft and

recovery  of  Idols.  Shri  Rohtagi  has  referred  to

extradition  of  one  person,  namely,  Subhash  Chandra

Kapoor,  who  was  extradited  from  Germany.  It  is

submitted that several cases of further extradition

are  not  being  processed  on  account  of  unwarranted

delay with regard to case of Subhash Chandra Kapoor.

It is submitted that due to inaction on the part of

the  Idol  Wing  with  regard  prosecution  of  Subhash

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Chandra  Kapoor,  other  cases  of  other  accused  for

extradition  are  not  being  even  processed.   It  is

submitted that impugned judgment of the High Court

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

not answerable to anyone.  It is submitted that there

was no challenge to the order dated 29.11.2018 by

which the Additional Director General of Police was

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

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

cannot  be  allowed  to  head  the  Idol  Wing,  when

Additional  Director  General  is  a  superior  Officer.

It is submitted by Shri Rohtagi that PIL petitioner –

Elephant  G.  Rajendran  even  before  30.11.2018  has

written  to  the  Government  that  respondent  No.2  be

allowed to continue to head the Idol Wing.  There is

no  bonafide  in  filing  the  Public  Interest

Litigations. PIL petitioner and respondent No.2 are

hands in gloves.   

19. Learned counsel appearing for the applicant in

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

has  constantly  tried  to  malign  and  defame  the

officers  of  HR  &  CE  Department.  Several  senior

20

officers of HR & CE Department were arrested without

any cogent grounds.  The Commissioner in its letter

dated 31.07.2018 written to the Director General of

Police has highlighted several misdeeds of the Idol

Wing.  The learned counsel for the applicant submits

that  officers  of  HR  &  CE  Department  have  been

unnecessarily castigated by the Idol Wing.  it is

submitted that applicant be permitted to intervene in

the matter so that this Court may be apprised of the

correct facts.     

20. Shri  Mohan  Parasaran,  learned  senior  counsel

appearing  for  the  respondent  No.9  submits  that

respondent No.9 is neither appropriate nor necessary

party, who has been unnecessarily impleaded in the

writ petition before the High Court. It is submitted

that respondent No.9 is a respected person and an

incorrect  allegation  has  been  made  against  him.

Respondent No.9 is respectable person of the Society,

who has unnecessarily been dragged.  

21. Shri R.Basant, learned senior counsel appearing

for Elephant G. Rajendran, PIL petitioner, refuting

the  submission  of  learned  Attorney  General  submits

21

that judgment of the High Court is well within the

scope and ambit of Article 226.  Shri Basant submits

that  submission  raised  questioning  the  bonafide  of

PIL  petitioner  is  an  afterthought  and  has  no

substance.  The PIL petitioner has done commendable

public work. Elephant G. Rajendran had filed a PIL

petition in the year 2001 with regard to an injured

Elephant  in  which  High  Court  permitted  the  PIL

petitioner to bring doctors from foreign countries.

The  PIL  petitioner  brought  doctors  from  foreign

countries and got the Elephant cured.  Several Public

Interest Litigations have been filed by Elephant G.

Rajendran  in  public  interest.   It  is  specifically

noted by the High Court in the impugned judgment that

Additional  Advocate  General  himself  has  submitted

that there are no question on the bonafide of the

petitioner.  It is submitted that various complaints

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

the  record  are  complaints,  which  have  been

deliberately obtained after the judgment of the High

Court.   Most  of  the  complaints  against  respondent

No.2 have been obtained by obliging Police Officials

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

22

the complaints brought on the record alongwith I.A.

No. 10291 of 2018.

22. It is submitted by Shri Basant that High Court

has  jurisdiction  under  Article  226  to  direct  for

constituting a Special Investigation Team headed by

respondent No.2.  He submits that conferring of the

police power on non-police officer is not an anathema

to  law.   Extraordinary  situation  calls  for

extraordinary remedy.  The jurisdiction of the High

Court under Article 226 is wide and plenary. There

have been several orders of different High Courts as

well as this Court where Special Investigation Team

were  constituted  consisting  of  retired  personnel.

The transfer of the investigation of the Idol cases

before the Idol Wing to the CBI was nothing but a

ruse to remove respondent No.2 from not carrying out

the  investigation.   Several  officers  of  HR  &  CE

Department  were  involved  and  were  accused  in

different First Information Reports. The Government

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

Shri Basant submits that the present is not a case

where  High  Court  exercised  any  jurisdiction  under

23

Article 142 of the Constitution of India as contended

by  the  appellant.   He  further  submits  that  the

present is a case where this Court need not exercise

its jurisdiction under Article 136.  The High Court

having exercised jurisdiction well within its powers,

there is no extraordinary situation, where this Court

may grant special leave in the present case.  High

Court has exercised its jurisdiction to ensure fair

and  proper  investigation  and  prosecution  in  Idol

theft cases.  Replying to lapses as alleged on the

part  of  respondent  No.2  with  regard  to  Subhash

Chandra  Kapoor,  it  is  submitted  that  prosecution

agency to prosecute cases is State.  It is State,

which is prosecuting extradited accused Shri Subhash

Chandra Kapoor and no blame can be put on respondent

No.2 in the above regard.  

23. Learned  counsel  appearing  for  the  second  PIL

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

that free and fair trial is fundamental right.  He

submits that when the Director General of Police can

be given 02 years extension in the year 2017, why

such  extension  could  not  have  been  granted  to

24

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

Special Officer in Idol Wing in 2012 and since then

he has been efficiently carrying on his duties.  It

is  submitted  that  order  of  the  High  Court  dated

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

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

directed to continue as head of the Idol Wing.  The

Director  General  of  Police  aggrieved  by  the  said

order has filed a special leave petition before this

Court, which was dismissed on 01.09.2017.  

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

letter dated 31.07.2018 written by the Commissioner,

HR & CE Department to the Director General of Police

that  hurriedly  decision  was  taken  to  transfer  the

cases  to  CBI.   The  letter  of  Commissioner  dated

31.07.2018 and within 24 hours, a decision was taken

by the State Government to transfer the cases to the

CBI  in  hurried  manner.   The  Commissioner  in  his

letter dated 31.07.2018 made allegations against Idol

Wing, on which allegations, without there being any

investigation or inquiry, the decision was taken to

transfer the cases to CBI, which was done with intent

25

to take away the investigation from respondent No.2,

who  was  unearthing  several  unholy  cases  and  was

taking  action  against  the  officers  of  HR  &  CE

Department and some police officers.  The decision of

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

is further submitted that CBI itself in its letter

dated  20.09.2018,  which  was  filed  before  the  High

Court,  submitted  that  CBI  will  extend  its  full

cooperation and support in the matters of extradition

of  accused,  issue  of  Red  Corner  Notices  and

coordinating with Interpol and it shall extend all

its  cooperation  to  SIT,  which  is  already

investigating  the  Idol  theft  cases.   CBI  has

expressed its unwillingness to take up large number

of Idol theft cases under its fold.  As regards not

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

that it was produced on the eve of the judgment and

there was time to challenge it.    

25. Learned  Attorney  General  in  his  rejoinder

submission contends that High Court cannot pass any

order in violation of law.  It is submitted that the

officers of Indian Police Services are governed by

26

the All India Services Act, 1951 and the Rules made

thereunder.   The  State  has  no  power  to  grant

extension  of  service  of  IPS  Officers.   It  is

submitted that under the All India Services (Death-

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

incumbents of the posts can be given extension in

services by the Central Government, which rule does

not  include  extension  for  Inspector  General  of

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

Attorney General submits that even though there was

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

employment of Central Government servants beyond the

age of superannuation, it is now no longer available

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

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

granted beyond the age of superannuation of 60 years.

Learned  Attorney  General  again  referring  to  the

various  directions  in  the  impugned  order  contends

that the directions are contrary to the provisions of

Code of Criminal Procedure and fall outside the law.

He submits that each and every direction given in the

impugned judgment is contrary to some or other law.  

27

26. We have considered the submissions of the learned

counsel for the parties and have perused the records.

27. Following are the main issues, which arise for

consideration in the present appeals:-

(i) Whether  the  State  of  Tamil  Nadu  was

justified  in  transferring  all  the  under

investigation cases being investigated by

the Special Team constituted for Idol theft

cases  and  all  such  future  cases  to  the

Central Bureau of Investigation vide its

G.O. dated 01.08.2018?  

(ii) Whether the impugned judgment of the High

Court  dated  30.11.2018  quashing  the

Government  Order  dated  01.08.2018  is

sustainable?

(iii) Whether  the  High  Court,  in  exercise  of

jurisdiction  under  Article  226  of  the

Constitution of India can appoint a police

officer after his superannuation to head a

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

carry  out  investigations  and  other

functions,  which  can  be  exercised  by  a

28

police officer under the Code of Criminal

Procedure?

(iv) Whether the impugned judgment of the High

Court dated 30.11.2018 directing respondent

No.2 to continue to head the Idol Wing of

C.I.D.  after  his  superannuation  on

30.11.2018 is sustainable?

(v) Whether  the  10  directions  issued  by  the

High  Court  in  Paragraph  No.45  of  the

impugned judgment are contrary to law and

are unsustainable being beyond the scope of

Article 226 of the Constitution of India?

(vi) Whether the High Court could have declared

the  Government  Order  dated  29.11.2018

appointing Thiru. Abhay Kumar Singh, IPS,

Additional Director General of Police, Idol

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

there  being  any  challenge  to  the  said

Government Order before the High Court in

the Writ Petitions, in question?   

Issue Nos. 1 and 2

28. Both the above issues being inter-connected are

29

being  taken  together.  Few  background  facts  before

issuance of Government order dated 01.08.2018 need to

be noted. The Idol Wing of the Criminal Investigation

Department(CID)  is  a  special  feature  pertaining  to

State  of  Tamil  Nadu.  The  State  of  Tamil  Nadu  is

blessed with most ancient temples in the country. As

noted above under the Tamil Nadu Hindu Religious and

Charitable  Endowments  Act,  1959  there  are  various

authorities  to  ensure  proper  administration  and

governance  of  Hindu  religious  and  charitable

endowments Tamil Nadu. The HR & CE Department has

obligation  and  responsibilities  of  managing  and

maintaining temples' properties including the Idols.

There  being  large  number  of  cases  pertaining  to

theft, missing and misappropriation of Idols valuing

in  several  crores,  the  State  of  Tamil  Nadu  had

constituted  the  Idol  Wing  by  the  Government  Order

issued in the year 1983. The Madras High Court while

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

its  order  dated  21.07.2017  has  made  following

observation in paragraph 12:

“12. The  HR  &  CE  department  is  the custodian of most of the temples and the

30

properties including the idols belonging to them. It is their primary duty to protect the  temples  and  safeguard  the  valuable idols/antiques,  which,  this  Court  with great  anguish,  expresses  that  the department  has  failed  to  do.  It  is startling  to  find  that  the  HR  &  CE department with all its income from major temples,  has  not  been  able  to  maintain historical temples and safeguard the Idols, which in market, have antique value based on  their  age.  Some  temples  in  the  State have also been recognised by the UNESCO as heritage sites. Many temples constructed at least  1500  years  ago  or  much  before  the temples recognised by UNESCO, are in ruins. Even the daily rituals are not performed. Some temples remain closed throughout the day with no one to even lighten the lamps. Neither the Archaeology Department nor the HR & CE Department has shown interest to identify  and  protect  them.  This  has  also come  to  the  advantage  of  the  miscreants, who have laid their hands on the Idols.”

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

transferring all investigations regarding theft of 6

Idols from the Commissioner, HR & CE, Nungambakkam

District, Chennai to Additional Director General of

Police,  Economic  Offences  Wing,  CID,  Chennai.  The

High  Court  while  deciding  Criminal  O.Ps  in  its

judgment dated 21.07.2017 has observed that various

complaints  given  to  Joint  Commissioner  were  not

addressed. In paragraph 16 the High Court made the

following observation: 31

“16. In  the  cases  on  hand,  the  erring officials have had a free hand in handling the  idols  as  if  it  was  their  private property. It is clear from the documents produced by the petitioner that the various complaints  of  the  petitioner  in Crl.O.P.No.8690/2017  have  not  been addressed. Curiously, there is no denial about  the  existence  of  the  tunnel  and stocking the PWD guest house. Despite the fact that the 6th respondent found that the idols were missing, no complaint has been lodged till date. It appears that the ball is passed on from one office to another, to protect the officials. The learned counsel for  the  petitioner  has  sought  for  a transfer of the investigation from the 6th respondent to the Idol Wing, CID, Chennai. However,  considering  the  nature  of  the offence that 6 Idols under the custody of the department has gone missing, not only does the matter require investigation by the idol wing, CID, but also departmental action  must  be  initiated  against  the relevant officials. This Court is also not in consonance with the reply given by the Deputy  Superintendent  of  Police  of  Idol wing that a complaint should only be lodged with  the  local  police  station  as  per Section 154 Cr.P.C.”

30. The  High  Court  observed  that  considering  the

nature of the offences, 6 Idols under the custody of

the Department had gone missing, not only the matter

required  investigation  by  the  Idol  Wing,  CID

departmental action was also required to be taken by

the  relevant  officials.  While  the  Criminal

32

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

brought  to  the  notice  of  the  High  Court  that

respondent No.2 who was heading Idol Wing has been

transferred. The High Court noticed that respondent

No.2  has  been  supervising  the  cases  and  has

efficiently traced and recovered several Idols worth

several crores, hence, for the sake of continuity and

speedy  completion  of  the  investigation,  respondent

No.2  must  continue  despite  the  work  assigned

presently. In paragraph 19 following observation has

been made:

“19. After much dejection from this Court as to why no action has been taken, an order of suspension dated 29.06.2017 was passed and a copy of the same was produced to the Court on 30.06.2017,  while  at  the  same  time,  it  was brought to the knowledge of this Court that Mr.A.G.Ponn  Manickavel,  Inspector  General  of Police, Idol Wing was transferred. Though it could be claimed as a routine transfer, this Court  feels,  it  is  otherwise.  Also,  the officer has been supervising the cases and has efficiently traced and recovered several Idols worth  several  crores.  It  is  not  that  the succeeding  officer  is  less  efficient,  but considering  that  Mr.A.G.Ponn  Manickavel  and his team have extensively travelled throughout the  country  and  are  aware  of  the  modus operandii of the culpritis. For the sake of continuity,  speedy  completion  of  the investigation  and  completion  of  the  pending cases,  this  Court  is  of  the  view  that Mr.A.G.Ponn  Manickavel,  Inspector  General  of Police and his team must continue despite the

33

work assigned presently.”

31. As  noted  above  against  the  order  of  the  High

Court  dated  21.07.2017,  the  Director  General  of

Police filed an SLP in this Court which was disposed

of on 01.09.2017 but the order directing respondent

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

interfered  with  by  this  Court.  Consequently,

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

It is further to be noted that the High Court vide

its order dated 21.07.2017 has specifically directed

that  departmental  proceedings  must  be  initiated

against the officials of the HR and CE Department.

FIRs were registered in which Officers of HR & CE

Department  were  also  made  accused  and  several

officers  were  arrested.  It  was  on  31.07.2018  that

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

Director General of Police. The letter begins with

the words:

“This is to inform you of the increasing ways in which the Idol Wing of the Police is harassing officials of this Department threatening  them  with  filing  of  FIRs  in case they do not agree to carry out its wishes  filing  FIRs  on  the  basis  of

34

complaints  by  Public  without  even  a preliminary enquiry, refusing to file FIR on  the  basis  of  complaints  by  the Department/Temple  authorities,  undermining the  authority  of  the  temple/  Department authorities  including  the  Commissioner, humiliating and hurting the reputation of officials  through  public  investigation  of cases and their depiction in the social and conventional media and interfering in the legitimate functioning of this Department.”

32. In the letter dated 31.07.2018 the Commissioner

pointed out various complaints of his officers which

were  received  by  him  in  writing  and  orally.  The

Commissioner  stated  that  HR  and  CE  Department  is

facing  a  crisis.  The  Commissioner  wrote  to  the

Director General to ensure a fair and confidential

investigation and bring the culprits to book, without

damaging the reputation of honest officials and the

Department.  By  a  letter  of  31.07.2018  itself

Additional  Director  General  of  Police  made

recommendation to the Director General of Police to

transfer  all  cases  under  investigation  being

investigated by the Special Team constituted for the

Idol Theft cases to the CBI. The Director General on

the  next  day  i.e.  01.08.2018  recommended  for

transferring the cases to the CBI, on the same day

the  GO  dated  01.08.2018  was  issued.  The  entire 35

process  for  transferring  cases  to  the  CBI  was

completed within one day on complaints submitted by

the Commissioner. We have already noted that the High

Court order dated 21.07.2018 has directed for holding

departmental inquiry against certain officers of HR &

CE. It is already noticed that FIRs were registered

against the officers of the HR & CE Department and

other accused. Thus, it was known fact that there

were allegations and FIRs against the few officers

and complaints submitted by the Commissioner against

the Idol Wing of the Police ought not to have been

accepted outrightly without conducting any enquiry.

Even if there was some truth in the complaints made

by  the  Commissioner,  the  same  ought  to  have  been

enquired and informed decision ought to be taken by

the Government. The Idol Wing had been carrying out

its  work  for  the  last  more  than  three  decades,

several Idols were recovered and cases launched and

prosecutions were accomplished. On a single letter of

the Commissioner suddenly no opinion could have been

formed that Idol Wing of the Department is not doing

its job. The Higher Police authorities and State was

fully competent to take action against any officer of

36

the  Idol  Wing,  if  any  excess  or  misdeeds  were

reported against any officer of the Idol Wing. The

letter of the Commissioner dated 31.07.2018 does not

refer to any written complaint by HR & CE Department

to Police, higher authorities or the Government in

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

decision to transfer the cases to CBI was hurriedly

taken within one day on a complaint received by the

Commissioner  without  making  any  inquiry  and  the

decision of the Government cannot be said to be an

informed decision.  

33. Another aspect of the matter in the above context

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

the under investigation cases being investigated by

the Special Team constituted for Idol Theft cases and

all such future cases to the CBI. There were more

than 100 cases under investigation with the Idol Wing

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

relevant to notice the letter dated 19/20.09.2018 of

the Central Bureau of Investigation which was brought

before  the  High  Court  by  memo  and  is  filed  as

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

37

effect:

“Sub: Writ Petition NO.20392/2018 filed by    Shri Elephant G.Rajendran – reg.

Please refer to the subject cited above.

In this connection, it is requested that when the matter comes up for hearing, it may  be  stated  that  Considering  the  large number  of  Idol  Theft  Cases  pending  in various  stages  and  also  the  future  idol theft  cases  likely  to  come  up,  and considering  the  severe  shortage  of manpower,  CBI  will  extend  its  full cooperation and support in the matters of Extradition of accused, issue of Red Corner Notices  and  coordinating  with  Interpol, etc.,  to  the  Special  Investigation  Team, which  is  already  investigating  the  Idol Theft Cases.

HoB, CBI, SCB, Chennai.”

34. The CBI by its communication dated 20.09.2018 in

reference to subject matter in the writ petition has

expressed  its  opinion  that  considering  the  large

number of Idol Theft Cases pending in various stages

and also the future Idol Theft Cases likely to come

up, and considering the severe shortage of manpower,

CBI will extend its full cooperation and support in

the matters of Extradition of accused, issue of Red

Corner Notices and coordinating with Interpol, etc.,

to the Special Investigation Team, which is already

38

investigating the Idol Theft Cases. The said letter

is  politely  expressing  inability  of  the  CBI  to

undertake such large number of cases.  

35. The High Court in paragraph 32 of the impugned

judgment has given detail of reasons for quashing the

order dated 01.08.2018. It is relevant to notice that

the  High  Court  in  its  order  dated  21.07.2017  has

already directed to constitute a SIT of the Officers

of the Idol Wing to carry on the investigation and

follow  up  pending  trial.  The  compliance  of  the

aforesaid  order  was  under  consideration  before  the

Court.  The  Additional  Chief  Secretary  to  the

Government,  after  receiving  letter  from  Additional

Director  General  of  Police,  wrote  a  letter  dated

01.08.2018  to  the  Additional  Advocate  General  in

which following request was made:

“9. I  am  therefore,  to  request  you  to appraise the Hon’ble High Court of Madras about the decision of the Government when the above cases are taken up for hearing and whether any orders from the Court are required.”

36. The Advocate General also brought to the notice

of the Bench of the letter dated 01.08.2018 and wrote

39

back  to  the  Additional  Chief  Secretary  to  the

Government that Division Bench of the High Court has

observed that communication, decisions or orders be

placed before the Court in the next hearing to be

held on 08.08.2018. When the matters pertaining to

Idol Thefts were already under investigation by SIT

constituted under the order of the High Court, it was

appropriate that the State Government ought to have

apprised  the  Court  before  issuing  any  Government

order for transferring the cases. In any view of the

matter looking to the large number of cases of Idol

Thefts cases and cases to come in future regarding

Idol  Thefts,  the  CBI  was  not  appropriate

investigating agency to be requested by the State.

The  CBI  itself  has  expressed  its  inability  to

undertake such huge exercise, the High Court did not

commit  any  error  in  quashing  the  Government  order

dated 01.08.2018.

Issue No.3 and 4

37. The submission which has been much pressed by the

learned Attorney General before us is the lack of the

jurisdiction of the High Court under Article 226 to

40

direct for appointment of retired Police Officer to

head  a  SIT  after  his  superannuation.  Three-fold

submissions have been made by the learned Attorney

General in the above regard. Firstly, he High Court

exercising jurisdiction under Article 226 cannot take

over  the  power  of  the  Superintendent  of  Police

conferred on the State Government under Sections 3

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

Code of Criminal Procedure, it is the Police Officer

who  is  entitled  to  carry  investigation,  arrest,

submit charge sheet and do all other acts as a Police

Officer.  Thirdly,  the  Respondent  No.2  after

superannuation no longer continued as Police Officer

and  could  not  have  exercised  any  power  or

jurisdiction as conferred on Police officer under the

Cr.P.C.  

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

constitutional  courts  exercising  the  jurisdiction

under Article 226 needs to be looked into. The High

Courts in India were created by Indian High Courts

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

Courts Act, 1861 provided for jurisdiction and power

41

of the High Court. Section 106 of the Government of

India Act, 1915 and Section 223 of the Government of

India  Act,  1935  provided  for  jurisdiction  of  the

existing High Courts. Article 226 of the Constitution

of India confers to the High Courts vide powers in

the matter of issuing writs which they never possess

before. Article 226 of the Constitution is couched in

very wide words, power given to the High Court are

both plenary and inherent. The power under Article

226 is not confined only to issue specified writs but

power  conferred  to  the  High  Court  is  to  issue

directions, orders or writs including writs in the

nature of habeas corpus, mandamus, prohibition, quo

warranto  and  certiorari  or  any  of  the  rights

conferred by Part III and for any other purpose.

39. The  scope  and  ambit  of  Article  226  came  for

consideration before this Court in  Dwaraka Nath vs.

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

Rao speaking for the Court held:

“(4)………This  article  is  couched  in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution  designedly  used  a  wide

42

language in describing the nature of the power, the purpose for which and the person or  authority  against  whom  it  can  be exercised. It can issue writs in the nature of  prerogative  writs  as  understood  in England; but the scope of those writs also is  widened  by  the  use  of  the  expression “nature”, for the said expression does not equate  the  writs  that  can  be  issued  in India with those in England, but only draws an  analogy  from  them.  That  apart,  High Courts can also issue directions, orders or writs other than the prerogative writs. It enables  the  High  Courts  to  mould  the reliefs  to  meet  the  peculiar  and complicated  requirements  of  this  country. Any  attempt  to  equate  the  scope  of  the power of the High Court under Article 226 of  the  Constitution  with  that  of  the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions  grown  over  the  years  in  a comparatively  small  country  like  England with a unitary form of government to a vast country  like  India  functioning  under  a federal  structure.  Such  a  construction defeats  the  purpose  of  the  article itself……”

40. Justice Krishna Iyer speaking for this Court in

Rohtas  Industries  Ltd.  And  another  vs.  Rohtas

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

held that the extended power of the High Court under

Article  226  is  as  wide  as  the  amplitude  of  the

language used. In paragraph 9 following was held:

43

“9. The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect  any person — even  a  private  individual  —  and  be available  for  any (other)  purpose —  even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1-A) reiterates the targets of the writ power as inclusive of any person by  the  expressive  reference  to  ‘the residence of such person’. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise  and  clear  restraints  on  the  use  of this extraordinary remedy and High Courts will  not  go  beyond  those  wholesome inhibitions except where the monstrosity of the  situation  or  other  exceptional circumstances  cry  for  timely  judicial interdict or mandate. The mentor of law is justice  and  a  potent  drug  should  be judiciously  administered.  Speaking  in critical  retrospect  and  portentous prospect, the writ power has, by and large, been the people’s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights……”  

41. Again,  this  Court  in  Air  India  Statutory

Corporation and others vs. United Labour Union and

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

fathers placed no limitation or fetters under Article

226  of  the  Constitution  except  self-imposed

limitations. This Court held that ‘The arm of the

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Court is long enough to reach injustice wherever it

is  found’.  In  paragraph  59  following  has  been

observed:

“59. The  Founding  Fathers  placed  no limitation or fetters on the power of the High  Court  under  Article  226  of  the Constitution  except  self-imposed limitations. The arm of the Court is long enough  to  reach  injustice  wherever  it  is found.  The  Court  as  sentinel  on  the  qui vive is  to  mete  out  justice  in  given facts……”  

42. The above authorities of this Court clearly lay

down that power given to the High Court under Article

226  is  power  of  very  vide  nature  which  does  not

contain any fetter except self-imposed restrictions.

It  is  well  settled  that  the  High  Court  while

exercising jurisdiction under Article 226 shall not

issue any direction which is contrary to law.  

43. The  challenge  raised  before  us  by  the  learned

Attorney  General  is  that  after  superannuation  of

Police Officer he cannot be entrusted the power of

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

entrustment runs contrary to the statutory scheme and

cannot be held to be available under Article 226. We

45

may notice few decisions of the High Courts and this

Court  which  may  be  relevant  for  the  issue  under

consideration.  

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

of  criminal  investigation  has  laid  down  that  in

appropriate cases this Court can monitor the Criminal

Investigation especially when persons occupying high

position in society are accused. This Court in Vineet

Narain and others vs. Union of India and another,

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

CBI  had  not  carried  out  their  public  duty  to

investigate the offences disclosed; this Court would

monitor  the  investigations.  This  Court  laid  down

following in paragraphs 8 and 9:

“8. The sum and substance of these orders is  that  the  CBI  and  other  governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the  investigations  progressed  while  yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made

46

it clear that the task of the monitoring court would end the moment a charge-sheet was  filed  in  respect  of  a  particular investigation  and  that  the  ordinary processes of the law would then take over. Having regard to the direction in which the investigations  were  leading,  we  found  it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political  executive;  this  was  done  to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility  of  the  investigations.  In short,  the  procedure  adopted  was  of “continuing mandamus”.

9. Even after this matter was brought to the Court complaining of the inertia of CBI and the other agencies to investigate into the  offences  because  of  the  alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed  with  the  investigation  was apparent. The accusation, if true, revealed a  nexus  between  high-ranking  politicians and bureaucrats who were alleged to have been  funded  by  a  source  linked  with  the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to  be  connected.  This  revealed  a  grave situation posing a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could  not  but  be  countenanced.  The continuing inertia of the agencies to even commence a proper investigation could not

47

be  tolerated  any  longer.  In  view  of  the persistence  of  that  situation,  it  became necessary as the proceedings progressed to make some orders which would activate the CBI  and  the  other  agencies  to  at  least commence  a  fruitful  investigation.  Merely issuance  of  a  mandamus  directing  the agencies  to  perform  their  task  would  be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. It was, therefore, decided to direct the CBI and other  agencies  to  complete  the investigation  expeditiously,  keeping  the court  informed  from  time  to  time  of  the progress of the investigation so that the court retained seisin of the matter till the  investigation  was  completed  and  the charge-sheets were filed in the competent court for being dealt with, thereafter, in accordance with law.”

45. When the Government Agencies failed in unearthing

offences  of  magnitude  the  doors  of  constitutional

courts have been knocked by citizens to come to their

rescue. One of the tools of this Court to advance

justice and fulfil the constitutional objectives is

recognizing a special category of litigation, namely,

PIL. Durga Das Basu in Commentary on the Constitution

of  India  Vol.6  8th Edition  2010  while  delineating

scope and object of such litigation states:

48

“1. The  grievance  in  a  public  interest action is about the content and conduct of Government  action  in  relation  to  the constitutional  or  statutory  rights  of segments  of  society  and  in  certain circumstances  the  conduct  of  Government policy. The relief to be granted looks to the  future  and  is,  generally,  corrective rather than compensatory which, sometimes, it also is. The Court has a more dynamic and positive role. It often does seek the assistance of expert panels, commissioners, advisory committees etc. The relief implies affirmative  action.  The  remedy  is  both imposed, negotiated or quasi-negotiated.”

46. A  Constitution  Bench  of  this  Court  speaking

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

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

considering the nature of PIL and power under Article

32 held that under Article 32 this Court is free to

devise  any  procedure  appropriate  for  particular

purpose  of  the  proceeding.  In  paragraphs  6  and  7

following was stated:

“6. So far as the power of the court under Article  32  to  gather  relevant  material bearing on the issues arising in this kind of litigation, which we may for the sake of convenience call social action litigation, and to appoint Commissions for this purpose is concerned, we endorse what one of us, namely, Bhagwati, J. as he then was, has said  in  his  judgment  in  Bandhua  Mukti Morcha case. We need not repeat what has

49

been stated in that judgment. It has our full approval.

7. We are also of the view that this Court under Article 32(1) is free to devise any procedure  appropriate  for  the  particular purpose  of  the  proceeding,  namely, enforcement  of  a  fundamental  right  and under  Article  32(2)  the  court  has  the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary  to  secure  enforcement  of  the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing  the  infringement  of  a fundamental right, but it is also remedial in  scope  and  provides  relief  against  a breach  of  the  fundamental  right  already committed vide  Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental  right  has  already  been violated, Article 32 would be robbed of all its  efficacy,  because  then  the  situation would  be  that  if  a  fundamental  right  is threatened  to  be  violated,  the  court  can inject such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large  extent,  emasculate  the  fundamental right  guaranteed  under  Article  32  and render  it  impotent  and  futile.  We  must, therefore,  hold  that  Article  32  is  not powerless to assist a person when he finds that  his  fundamental  right  has  been violated.  He  can  in  that  event  seek remedial assistance under Article 32. The power of the court to grant such remedial relief  may  include  the  power  to  award

50

compensation in appropriate cases. We are deliberately  using  the  words  “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that  is,  incontrovertible  and  ex  facie glaring and either such infringement should be  on  a  large  scale  affecting  the fundamental  rights  of  a  large  number  of persons,  or  it  should  appear  unjust  or unduly  harsh  or  oppressive  on  account  of their poverty or disability or socially or economically  disadvantaged  position  to require the person or persons affected by such  infringement  to  initiate  and  pursue action in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of  the  right  to  claim  compensation  for infringement of a fundamental right through the ordinary process of civil court. It is only  in  exceptional  cases  of  the  nature indicated  by  us  above,  that  compensation may be awarded in a petition under Article 32.  This  is  the  principle  on  which  this Court awarded compensation in Rudul Shah v.

State  of  Bihar5.  So  also,  this  Court awarded compensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and

Kashmir6. If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and  incontrovertible,  the  violation  was gross  and  its  magnitude  was  such  as  to shock the conscience of the court and it would  have  been  gravely  unjust  to  the

51

person  whose  fundamental  right  was violated, to require him to go to the civil court for claiming compensation.”

What is said about Article 32 of the Constitution

is also true for jurisdiction of High Courts under

Article 226.

47. This Court time and again forged and fashioned

new  designs  to  enforce  fundamental  rights  and  to

redress other grievance of the people.  There are

several  instances  of  this  Court  and  High  Courts

issuing directions for carrying out investigation by

Special  Investigation  Team  which  consisted  even

retired officers. This Court in  Guruvayoor Devaswom

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

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

scope  of  Public  Interest  Litigation  and  has

catalogued the principles evolved by this Court in

paragraph 50 of the judgment. Eleven principles have

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

“50.(i) XXX XXX

(ix)  The  Court  in  special  situations  may appoint a Commission, or other bodies for the  purpose  of  investigating  into  the

52

allegations and finding out facts. It may also  direct  management  of  a  public institution taken over by such Committee. (See  Bandhua Mukti Morcha,  Rakesh Chandra Narayan v.  State  of  Bihar and  A.P. Pollution  Control  Board v.  Prof.  M.V. Nayudu.)”

48. Different High Courts and this Court have passed

several  orders  constituting  Special  Investigation

Team to carry out investigations in cases where such

requirement  was  found  necessary.  Before  Division

Bench  of  Bombay  High  Court  in  Ranjitsing

Brahmajeetsing  Sharma  and  Ors.  Vs.  Kisan  Baburao

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

SIT  was  constituted  which  consisted  of  retired

Director  General  of  Police.  Initially  order  was

passed on 04.09.2003 by consent of the parties with

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

Director General of Police. When a subsequent order

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

Puri will exercise all powers exercisable by Director

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

Government Resolution was issued on 26.09.2003 to the

said effect, an application was filed for recalling

the  subsequent  direction  dated  24.09.2003.  The

53

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

Puri  being  not  in  service  and  as  a  result  of

direction issued by the Court there were two Director

Generals of Police in the State of Maharashtra which

was  contrary  to  the  provisions  of  the  All  India

Services  Act,  1951  read  with  the  Indian  Police

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

Cadre Strength) Regulations, 1955. The submission was

also  made  that  in  exercise  of  jurisdiction  under

Article  226  the  High  Court  cannot  overstep  limits

prescribed by statute. It was contended that order of

the Court trenches upon the statutory machinery which

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

of offences. The Division bench of Bombay High Court

repelled the submission it held that the order of the

High  Court  does  not  supplant  the  provisions  of

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

that has been designed under the Code. The Division

Bench in paragraph 27 observed:

“27. Good governance in a civil society is inextricably  woven  with  the  fabric  of ordered  liberty.  Enforcement  of  law,  the investigation of crimes and the prosecution of  offenders  constitute  important components of a system which is guided by the ideals of the Rule of Law. Ideals in

54

the distant horizon they seem to be when the conscience of a society is aroused by wrongdoing which is of a systemic nature. The  evolution  of  a  society  from  market control  to  market  reform  is  an  important milestone in development. The dominance of market forces furnishes new avenues for the generation  of  wealth.  On  the  other  hand, the sanctity of the economic system and its stability  can  be  destroyed  by  systemic franks  of  the  kind  that  contemporary economics have had to confront. Effective investigation  and  prosecution  are  the hallmarks  of  a  legal  system  committed  to the protection of human rights as they are of a legal regime that protects legitimate forms of economic activity. Courts must and do  have  a  healthy  respect  for  the demarcation  of  powers  between  the executive,  the  legislature  and  the judiciary.  Equally,  nothing  can  be  as destructive of the rule of law as the lack of  independence  and  impartiality  of  the investigation  and  prosecutorial  processes. When systemic issues of the kind involved here arise before the Court, the obligation of the court as expounder of constitutional precept  warrants  flexible  and  effective remedies. The evolution of legal doctrine is  not  stratified  in  a  frozen  dialogue. Courts  must  and  do  respond  to  felt necessities  of  the  time  ensuring  that  in the  process  they  do  not  offend  the constitutional  distribution  of  powers  or statutory  prohibitions.  Doctrinal immutability  should  not  stultify  a democratic  society  in  its  effort  to  find effective measures for unheralded wrongs.”

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

Sankarasubbu vs. The Commissioner of Police, Egmore,

55

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

Raghavan, former Director of CBI. In this context in

paragraph 76(i) following has been stated:

“76.(i)  We  hereby  appoint  Mr.  R.K. Raghavan, former Director of Central Bureau of Investigation, as Investigating Officer of Special Investigation Team(SIT), to be assisted by Dr. M. Narayana Reddy, former Professor  and  Head  of  the  Department  of Forensic  Medicine,  Osmania  University, Hyderabad,  Andhra  Pradesh  to  investigate this case.”

50. This  Court  in  Advocates  Association,  Bangalore

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

noticed  that  the  High  Court  of  Karnataka  has

constituted  SIT  which  was  headed  by  a  retired

Director of CBI. Paragraph 7 of the judgment is as

follows:

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

20121, constituted a Special Investigation Team (SIT) headed by Dr R.K. Raghavan, a retired Director of CBI as Chairman and Mr R.K.  Dutta,  Director  General  of  Police, CID, Bangalore as Convenor along with other police  officials  to  investigate  into  the incident with reference to the complaints lodged by the police, advocates as well as media against each other and to conclude the same within 3 months from the date of the  government  notification.  In  pursuance of the same, the State Government issued a series  of  notifications  constituting  and reconstituting  SIT  for  reasons  of  non-

56

availability  of  officers  to  be  its members.”

51. Although  this  Court  ultimately  entrusted  the

investigation to CBI but the fact we notice that the

High  Court  had  appointed  SIT  which  was  headed  by

retired CBI Director General. Recently this Court in

SUNITA  DEVI  AND  ANOTHER  VS.  UNION  OF  INDIA  AND

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

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

Sharma, IPS (retired), former Special      Director,

CBI,  was  appointed  as  Chairman  of  the  SIT.  In

paragraph 10 following was directed:

“10. Having examined the entire materials placed  on  record,  we  deem  it  proper  to constitute  a  Special  Investigating  Team (SIT) to reinvestigate FIR No. 221 of 2001 titled “State v.  Manvir Singh” registered at  Police  Station  Pilakhua,  District Ghaziabad,  U.P.  Shri  M.L.  Sharma,  IPS (retired), former Special Director, CBI, is appointed as the Chairman of the SIT. Shri M.L. Sharma is permitted to take assistance of two officers of his choice of CBI as its members. We direct the SIT to proceed as regards further investigation in respect of FIR  No.  221  of  2001  and  to  submit  its report within a period of three months from today.  Needless  to  say  that  appropriate secretarial assistance and logistic support shall be made available to the SIT by the

57

Government of Uttar Pradesh. The Government of  Uttar  Pradesh  is  also  directed  to provide to the Chairman and the members of the  SIT  all   travelling,  boarding  and lodging  expenses  while  discharging  their responsibility entrusted to them.”

52. Learned counsel for the appellants relied on a

judgment  of  this  Court  in  Board  of  Control  for

Cricket in India vs. Cricket Association of Bihar and

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

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

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

included.

53. The judgments as noted above indicate that the

High Courts and this Court in their several judgments

have      included retired Police Officers to be part

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

submitted  that  these  are  those  cases  where  the

appointment  of  retired  officers  was  made  but  the

Court had no occasion to consider the legality of

such  appointment  in  exercise  of  jurisdiction  under

Article  226  or  Article  32.  We  having  noticed  the

expansive  nature  of  jurisdiction  under  Article  226

and the exposition of law of this Court extracted

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above,  the  jurisdiction  of  constitutional  courts

under  Article 226 and Article 32 can be used to

forge new   methodology to achieve the constitutional

objectives. No fetter can be read in the jurisdiction

under Article 32 or 226 as contended by the learned

Attorney General. For sufficient reason investigation

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

longer in employment. The functions which are to be

performed  by  that  person  is  under  authority  of

Court’s  order.  There  may  be  varied  situations  and

circumstances  where  a  former  officer  is  entrusted

with  an  investigation  or  any  other  function  to

achieve an object or purpose. When the constitutional

courts direct particular officer to carry on specific

job  that  order  cannot  be  treated  to  be  put  that

person  in  office  of  that  post  with  all  necessary

consequences. The particular object is entrusted or

only a specific job is entrusted to the officer which

he has to carry. The Court in issuing such direction

neither creates any ex-cadre post nor  affects the

post of officer by giving any kind of   appointment

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

1951 or Rules framed thereunder cannot be read in

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entrustment  of  specific  job  to  a  retired  officer.

Learned Attorney General has submitted that in view

of subsequent Government Order dated 09.12.2002 which

has  been  placed  before  us  now  re-employment  of

Government servants beyond the age of superannuation

of 60 years is not permissible. He has also referred

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

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

provision  of  giving  extension  in  service  to  the

incumbents  of  the  posts  of  the  Cabinet  Secretary,

Defence  Secretary,  Home  Secretary,  Director,

Intelligence Bureau, Secretary, Research and Analysis

Wing  and  Director,  Central  Bureau  of  Investigation

for such period as it may deem proper. There cannot

be  any  quarrel  to  the  above  provision  nor

applicability of the above provision in facts of the

present case. Present is not a case where Government

has  decided  to  extend  the  services  of  respondent

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

issued  direction  in  paragraph  45(1)  appointing

respondent No.2 as a Special Officer to head Idol

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

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

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

Court further directed “the Government to pass orders

to that effect”.  The Court clearly intended that in

the  above  regard  Government  may  pass  appropriate

orders. It is open for the Government to issue orders

enabling respondent No.2 to carry on functions as per

the  direction.   Learned    Attorney  has  taken

exception to direction No.3 by which  is directed

that  respondent  No.2  shall  draw  the  same  pay  and

benefits that were available to him at the time of

his retirement as Special Officer. On objection being

raised  to  the  said  direction,  learned  counsel  for

respondent No.2 has fairly submitted before us that

respondent No.2 is ready to carry on and discharge

his  duties  as  per  orders  of  this  Court  without

drawing any pay and benefits as directed by the High

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

of issuing direction No.3 ought to have given option

to the State Government either to continue/re-employ

respondent No.2 or in alternative fix some honorarium

for  the  duties  entrusted  on  respondent  No.2.  The

State  Government  having  not  passed  any  order  in

consequence of which respondent No.2 may continue in

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the office of Inspector General of Police, justice

would be served when the State Government is directed

to pay some honorarium during the period respondent

No.2  performed  his  duties  under  the  order  of  the

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

it clear that any pay and benefits which have already

been  extended  to  respondent  No.2  shall  neither  be

recovered nor adjusted.

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

exercise of jurisdiction under Article 226 can very

well direct           respondent No.2 to head the

Special Investigation Team to carry out investigation

and  other  functions  after  attaining  the  age  of

superannuation. We, further, hold that directions of

the  High  Court  dated  30.11.2018  to  continue

respondent  No.2  in  Idol  Wing  of  CID  after  his

superannuation is sustainable.

55. Learned Attorney General as well as Shri Mukul

Rohtagi further submitted that there are allegations

against   respondent  No.2,  several  complaints  were

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

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is the competent officer to continue as head of the

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

the writ petition has filed affidavit on 27.11.2018

with regard to which there was no opportunity given

to the appellant to file reply. Alongwith affidavit

dated 27.11.2018 several self-serving documents were

brought  on  record  by  respondent  No.2  which  were

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

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

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

complaints were brought on record before this Court.

On the basis of which it is clear that respondent

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

and officer having no complaints.  

56. Learned counsel appearing for the PIL refuting

the above submission submitted that before the High

Court no grievance was raised against respondent No.2

regarding his competence or complaints against him,

it is only after the orders have been passed by the

High Court on 30.11.2018 that certain complaints were

obtained against respondent No.2 which are sought to

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

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submitted that complaints which have been brought on

record  are  complaints  which  were  obtained  in  the

third and fourth week of December, 2018. The High

Court  in  the  impugned  judgment  before  issuing  a

direction  to  continue  respondent  No.2  in  the  Idol

Wing  has  thoroughly  examined  the  credential  of

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

the  judgment  has  noticed  the  statement  of  learned

Additional  Advocate  General  that  there  are  no

allegations  against  respondent  No.2  except  that  he

has not submitted the report to Additional Director

General of Police. Following observation was made by

the High Court in paragraph 34:

“34.  Even earlier, during the earliest of hearings, when it was mentioned before this Court about such conduct of the Police Department, the learned Additional Advocate General  fairly  submitted  that  the  only blemish on the part of the officer is that he  has  not  submitted  the  reports  to  the Additional Director General of Police and that apart there are no allegations against him.”

57.  The  reasons  for  directing  respondent  No.2  to

continue  have  been  set  out  by  the  High  Court  in

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

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note  of  the  fact  that  the  Government  order  dated

01.08.2018 transferring the cases to CBI having been

quashed, it has become just and necessary for the

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

parens  patriae  to  exercise  its  jurisdiction  to

formulate a solution. Following has been stated in

paragraph 35:  

“35. Now, considering that the Government order has been quashed and that the State is not inclined to continue the cases, the CBI has    categorically refused to take up the cases and expressed its intention to assist the existing team; that the Central Government has so far remained silent, an extraordinary  situation  has  arisen,  by which, a vacuum has been created and this Court  has  to  take  a  timely  decision  to protect  the  idols  and  treasures  of  the temples.  Hence  it  has  become  just  and necessary for this Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution to bring about a       continuity in the investigation and to safe guard the idols,  which  are  valuable  properties  of this country. It has come to the knowledge of this Court that Mr.A.G.Pon Manickavel, I.P.S in the rank of Inspector General of Police is       attaining superannuation in the forenoon of 30.11.2018. The credibility of the officer is evident from the fact he has been fair and       impartial in his actions. This Court is also satisfied with the procedure followed by him in securing the  accused.  It  was  also  brought  to  the knowledge  of  this  Court,  that  even

65

recently,  more  than  250  idols  were unearthed by him based on the information received from credible sources. Some idols were also recovered during transit. He has been able to keep the informants intact and show tremendous progress.”

58. In paragraph 36 the Court has noticed the details

of the work accomplished by Idol Wing and the Idols

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

paragraph 40 of the judgment, the High Court also

noticed  the  Performance  Appraisal  Report  of

respondent No.2 and it noticed that respondent was

assessed  by  28  officers  and  he  has  been  given

excellent grading by 27 officers, except one officer

who made adverse remarks which had been set aside by

the Central Administrative Tribunal. We, thus, are of

the  view  that  the  High  Court  had  after  due

examination  of  all  relevant  documents  taken  a

decision to continue respondent No.2 to head the Idol

Wing.  The  High  Court  has  referred  to  various

judgments of the High Court and this Court where work

and conduct of respondent No.2 was appreciated which

observations  were  extracted  by  the  High  Court  in

support of its conclusion.  

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59. The  statement  of  Additional  Advocate  General

noted  by  the  High  Court  in  paragraph  34  clearly

indicates that     before the High Court there were

no allegations against respondent No.2 as to come to

the conclusion that he was not a fit person to be

directed to continue in the Idol Wing. The complaints

which have been now referred to and relied by the

appellant  are  the  complaints  which  have  been

submitted  after  the  judgment  of  the  High  Court.

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

referred  to  certain  complaints  in  paragraph  6  in

tabular  chart.  The  said  chart  indicates  that

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

They  are  the  complaints  which  were  submitted  even

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

required to enter into correctness or otherwise of

the allegations in the complaints. The High Court in

its  direction  has  observed  that  if  there  are

materials  against  respondent  No.2  the  same  can  be

placed before the High Court for further direction.

On  the  strength  of  the  complaints  which  are

subsequently submitted after the judgment of the High

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Court, we are not persuaded to accept the submission

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

person  to  be  allowed  to  head  the  Idol  Wing  after

30.11.2018.  In  so  far  as  submission  of  learned

counsel for the appellant that after filing of the

affidavit  on  27.11.2018  by  the  respondent  No.2  no

opportunity was given to the appellant, it is useful

to extract paragraph 34 of the judgment where High

Court  observes  “As  an  affidavit  was  filed  on

27.11.2018, again a direction in similar lives was

issued by us on 27.11.2018 to place any materials if

available before this Court. However, till date no

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

are  of  the  view  that  the  High  Court  had  given

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

are of the view that the High Court did not commit

any error in directing respondent No.2 to continue to

head  the  Idol  Wing  after  his  superannuation  on

30.11.2018.  

Issue No.5

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

High Court in paragraph 45 of the judgement which

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have been assailed by the learned Attorney General on

the ground that each and every direction is contrary

to law. We will take up each direction separately:

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

directed to function as Special Officer to

head  Idol  Wing-CID,  Chennai  on  his

superannuation on 30.11.2018. The Government

was directed to pass orders to that effect.

We have already while considering Issue Nos.3

and 4 held that respondent No.2 could have

been directed to work as a Special Officer to

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

error in direction No.1.

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

was already constituted by the earlier order

of the High Court dated 21.07.2017 which was

directed to be continued to which direction

no exception can be taken.  

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

directed to respondent No.2 to draw the same

pay and benefits that were available to him

69

at the time of his retirement for the entire

tenure of his term as Special Officer. We are

of the view that instead of such direction,

the High Court ought to have given an option

to the State Government either to pass an

order for re-employment/re-engagement or the

liberty ought to have been given to State to

fix some honorarium in addition to pension

which  would  have  been  drawn  by  respondent

No.2. During the course of hearing learned

counsel  for  respondent  No.2  has  submitted

that respondent No.2 is ready to carry on his

duty  as  entrusted  by  the  High  Court  even

without receiving any emoluments. We are of

the view that in the facts and circumstances

of the case, direction No.3 deserves to be

modified to the   effect that the State shall

fix a honorarium to be paid to respondent

No.2 in addition to pension to be drawn by

him. We further observe that in the event any

amount has already been paid to respondent

No.2 in pursuance to the direction of the

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High Court, the same shall not be recovered

and adjusted.  

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

Special  Officer  to  investigate  the  cases

thoroughly and submit all the reports before

the Court in a sealed cover to enable the

Court to monitor the investigation. We have

noticed that an Additional Director General

of Police was appointed to head the Idol Wing

by  order  dated  29.11.2018,  it  was  not

necessary for the High Court to burden itself

with scrutinising each and every report and

requiring  each  and  every  report  to  be

submitted  before  the  Court.  There  being  a

higher  Officer  posted  in  the  Idol  Wing,

progress  and  result  of  the  investigation

ought  to  have  been  reported  to  Additional

Director General of Police and the report in

the  High  Court  was  necessary  when  certain

directions  were  required  by  the  Special

Officer.  We  modify  direction  No.4  to  the

effect  that  report  of  progress  of  the

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investigation  shall  be  submitted  to  the

Additional Director General of Police of Idol

Wing  and  report  to  the  High  Court  may  be

submitted by the Special Officer only when

any further directions are required from the

High Court.  

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

direction the Special Officer is directed to

continue  to  not  only  investigate  and  file

charge sheets and prosecute in the pending

cases but also to continue to do so in the

cases arising in future during his tenure. No

exception can be taken.  

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

other  agencies  of  Central  Government  shall

continue to give appropriate support to the

Special Officer. No exception can be taken

since CBI itself sent letter dated 19.09.2018

communicating its support.

(7) With regard to direction 7 serious objection

has  been  raised  by  the  learned  Attorney

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General. He submits that the said direction

gives  exemption  to  respondent  No.2.  The

respondent No.2 cannot be held above law. We

are  of  the  view  that  no  one  including

respondent No.2 is above the law. The High

Court has given liberty to the State or any

competent  authority  to  place  the  materials

before  the  Court  for  further  direction  if

there  are  any  materials  against  respondent

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

amply  protects  the  interest  of  the  State

which needs no interference.  

(8) Direction No.8 pertains to communications to

concerned Departments to extend co-operation

to the Special Team with which no exception

can be taken.

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

Attorney General submits that the High Court

ought not to have given any direction with

regard to financial aspects. He submits that

there  is  a  procedure  for  allocation  of

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finances  for  which  passing  of  budget  is

required. It is to be noted that Idol Wing

has been created by the State in 1983 and for

several decades Idol Wing has been continuing

without provision of any separate division to

handle the financial aspects. We are of the

view that there was no such requirement to

issue any direction to create such division

to  handle  the  financial  aspects.  The  Idol

Wing has to be run as per budget allocation

and in any case of requirement it is always

open  to  the  higher  Police  authorities  and

State Government to do the needful. Direction

No.9, thus, is to be deleted.  

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

no exception can be taken.  

Issue No.5 is decided accordingly.

Issue No.6

61. The  High  Court  while  delivering  judgment  on

30.11.2018 noticed the order dated 29.11.2018 which

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was  brought  into  the  notice  of  the  Court  by

respondent No.2 with regard to which observation has

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

the judgment.  In paragraphs 47 and 48 following has

been observed:

“47. When we are about to pronounce this order,  the  petitioner  in  WP.No.20392  of 2018  produced  a  copy  of  the  proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating  that  one  Thiru.Abhay  Kumar Singh, IPS, Additional Director General of Police/Chief Vigilance Officer,  Tamil Nadu Newsprint  and  Papers  Limited,  Karur  has been transferred and posted as Additional Director General of Police, Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID.   

48. We are of the view that the State all along, is not inclined to continue with the investigation  of  idol  theft  cases  as  the same  were  transferred  to  CBI  despite pendency of the stay order of this Court. It is also pertinent to note that after the orders  were  reserved,  they  have  upgraded the post of the Additional Director General of  Police  and  appointed  an  officer,  by order  dated  29.11.2018,  which  action  is inappropriate and it would amply prove the transfer of cases in a most hurried manner within  a  single  day  i.e.,  on  01.08.2018. Similarly, the manner in which the present order  dated  29.11.2018  has  been  passed, will  speak  for  itself.  Hence, notwithstanding the order dated 29.11.2018 passed by the Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve

75

the idols as well as recovery of the stolen idols  to  uphold  the  cultural  heritage  of this land.”

62. The above observation itself indicates that by

the  Government  order  dated  29.11.2018  the  post  of

Inspector  General  of  Police  was  upgraded  as

Additional  Director  General  of  Police  who  was

appointed by the State Government on 29.11.2018. The

order dated 29.11.2018 being not under challenge in

the writ petition, it was not necessary for the High

Court to make any observation in that regard. Without

there  being  any  challenge  to  the  order  dated

29.11.2018, the High Court was not right in observing

that order dated 29.11.2018 has become redundant. We,

thus,  disapprove  the  observation  made  by  the  High

Court in paragraphs 47 and 48 that the order dated

29.11.2018  has  become  redundant.  Order  dated

29.11.2018  was  a  Government  order  which  was  not

challenged  in  the  writ  petition,  the  same  shall

remain effective that the Idol Wing shall be headed

by  the  Additional  Director  General  of  Police

appointed  on  29.11.2018.  The  Idol  Wing  shall  be

headed by the Additional Director General of Police.

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We, however, observe that Special Officer shall take

all  appropriate  steps  along  with  his  Team  and  he

shall  submit  report  to  the  Additional  Director

General of the result of the investigations so that

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

thus, answered accordingly.

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

and notice one necessary caution with regard to what

has been said above, i.e.,

(i) Insofar as filing of the statutory reports

as per the procedure prescribed in the Code

of  Criminal  Procedure,  necessary  reports

have to be filed by the officer authorized

as per Code of Criminal Procedure.  

(ii) There might arise exceptional cases where

the  direction  for  appointment  of  retired

officers may be unavoidable to achieve the

goal  of  justice  but  the  High  Court  may

resort to the power under Article 226 only

after weighing all pros and cons and after

77

exhausting all options and as a matter of

last resort. Taking services of a retired

police  officer  or  any  other  retired

personnel is not to be normally resorted to

since  in  the  State  concerned,  there  is

always  no  dearth  of  competent  and  able

officers, hence whenever the Court finds it

necessary to take assistance of services of

the  retired  officers  or  personnel,  it

should  be  with  necessary  caution  and

resorted to only when there are very valid

and unavoidable circumstances.

64. In view of the foregoing discussions, the appeals

are partly allowed. The judgment of the High Court is

modified to the following extent:-

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

the judgment of the High Court is deleted and

directions  Nos.3  and  4  are  modified  as

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

this judgment.

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

that  the  Government  order  dated  29.11.2018

78

has become redundant is set aside.  

65. Parties shall bear their own costs.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  APRIL 12, 2019.      

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