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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1167 of 2013

Prof. K.V. Rajendran                                 …Appellant

Versus

Superintendent of Police, CBCID South        …Respondents Zone, Chennai & Ors.

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 8.12.2011 passed by the High Court of Judicature at Madras in  

Crl.O.P.  No.  9639 of  2011,  by  way of  which the  High Court  has  

rejected the prayer of the appellant to transfer the investigation of his  

case/complaint to Central Bureau of Investigation (hereinafter referred  

to as the `CBI’).  

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2. The case has a chequered history as the matter has moved from  

the court of the Magistrate to this Court time and again. Facts and  

circumstances necessary to adjudicate upon the controversy involved  

herein are that:

A. The appellant, who is an Associate Professor in Physics in the  

Presidency College,  Chennai,  went  to  his  village on 26.8.1998.  At  

about  11.00  P.M.,  approximately  ten  people  headed  by  the  then  

Revenue  Divisional  Officer  (hereinafter  referred  to  as  the  `RDO’),  

forcibly took him in a government jeep and brought him to the Taluk  

office  and  enquired  about  why  he  had  given  a  false  complaint  

regarding the smuggling of teakwood in that area.  The then RDO and  

other  officials  treated  him  with  utmost  cruelty  and  caused  severe  

injuries all over his body and then obtained his signatures on blank  

papers which were filled up as directed by the then RDO. On the next  

day, he was handed over to the local Police Inspector along with the  

statement purported to have been written by the officials concerned.   

B. The appellant was produced before the Magistrate on 27.8.1998  

at 10.30 A.M. and he was remanded to judicial custody.  His request  

to  the Judicial  Magistrate  in  regard to  medical  examination  of  the  

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injuries which had been caused to him was rejected.  The appellant  

was  kept  in  Sub Jail,  Poraiyar,  wherein  he was treated  by the jail  

doctor  on 28.8.1998.  On being released on bail,  the appellant  got  

treatment of his injuries in a private hospital.

C. The appellant filed a complaint against the said RDO and other  

officials.  The said complaint was also sent to the office of Hon’ble  

Chief Minister of the State, the Director General of Police and other  

officials, alleging the brutal torture caused to him by the then RDO.  

The case was entrusted for investigation to Deputy Superintendent of  

Police, SBCID, Nagapattinam. A confidential report was forwarded to  

higher officials by the said DSP in this regard.  However, no progress  

could  be  made  in  the  investigation  and  no  case  was  registered  in  

respect of  the complaint of the appellant.    

D. The appellant approached the High Court of Madras by filing  

Crl. O.P. No. 19352/1998 with the prayer to direct the registration of  

First Information Report (FIR) based on his complaint.  In view of the  

fact  that  a  confidential  report  of  Deputy  Superintendent  of  Police,  

SBCID  revealed  that  the  preliminary  enquiry  was  conducted  in  a  

proper manner, the High Court did not transfer the investigation to  

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CBI,  however,  the  petition  was allowed  vide  order  dated  1.3.2001  

issuing the direction to register a case.   

E. The  DSP,  SBCID  filed  an  application  i.e.  Crl.M.P.  No.  

3713/2001 before the High Court in the disposed of case i.e. Crl.O.P.  

No. 19352/1998 stating that there was no post of DSP, SBCID on the  

date of the order as the same had been abolished, so proper directions  

needed to be issued. In the meanwhile, the appellant also filed another  

petition to transfer the case to CBI. Both the said applications were  

heard together and the order dated 1.10.2004 was passed modifying  

the earlier order dated 1.3.2001 for transferring the investigation to  

CBI.

F. Aggrieved,  the DSP,  SBCID, preferred Criminal  Appeal  No.  

1389  of  2008  before  this  Court.   The  said  criminal  appeal  was  

disposed of by this Court vide a detailed judgment and order dated  

2.9.2008.  It was observed that by the first order dated 1.3.2001, the  

High  Court  had  declined  to  handover  the  investigation  to  CBI,  

therefore, it was not proper for the High Court to pass a fresh order in  

a petition that had been disposed of, directing again the investigation  

to be made by the CBI. This view was taken in view of the provisions  

of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter  

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referred to as the `Cr.P.C.’).  This Court also took note of the fact that  

it was not the application by the appellant to transfer the case to CBI.  

Thus, the said order dated 1.10.2004 transferring the investigation to  

CBI by the High Court was set aside.  However, this Court kept it  

open that the appellant could prefer a fresh criminal  petition under  

Section 482 Cr.P.C. for transferring the investigation from the State  

police authorities  to CBI, depending  upon subsequent events. In such  

an  eventuality,  it  would  be  open  to  High  Court  to  entertain  such  

application and decide the same in accordance with law.   

G. The appellant was summoned by the DSP, SBCID on 7.7.2010  

and again on 25.10.2010 and his statements were recorded.  Being un-  

satisfied with the investigation conducted by the SBCID, the appellant  

filed Crl. O.P. No. 9639 of 2011 in April 2011 before the High Court,  

seeking transfer of the investigation to CBI.  The said application has  

been dismissed vide impugned judgment and order dated 8.12.2011.  

Hence, this appeal.   

3. Ms. Kamini Jaiswal, learned counsel appearing on behalf of the  

appellant, has submitted that there was no justification for the High  

Court  to  reject  the application seeking transfer  of  the investigation  

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from the State investigating agency to CBI as the State investigating  

agency did not conduct the investigation properly as its investigation  

has been tainted and biased,  favouring the then RDO. The SBCID  

threatened the witnesses and recorded their version under coercion.  

Moreover,  inordinate  delay  had  been  there  in  concluding  the  

investigation.  The High Court could not be justified in making such  

an observation that even if a shabby investigation had been made, it  

could not be a ground to change the investigating agency.  Further,  

there was no material to show as observed by the High Court, that the  

appellant  had  improved  his  case  stage  by  stage.   Even  if  the  

investigation  was  at  the  verge  of  conclusion  or  already  stood  

concluded, it is permissible in law to change the investigating agency.  

Thus, the appeal deserves to be allowed.

4. On the contrary, Shri K. Ramamurthy and Shri Nagendra Rai  

learned senior counsel appearing on behalf of the State and respondent  

no. 3, the then RDO, have opposed the appeal contending that there  

was no subsequent development on the basis of which the transfer of  

investigation could be sought to CBI.  Moreover, it is not a fit case to  

transfer to CBI.  The appellant is pursuing a trivial issue since 1998  

and had been moving from one court to another for the last 15 years.  

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The liberty was given to the appellant by this Court vide order dated  

2.9.2008 to move the High Court for transfer of investigation to CBI  

only on the basis of subsequent events, if any. In fact there has been  

no  such  subsequent  event,  which  could  warrant  such  a  course  of  

action. This Court has laid down certain parameters for transferring  

the case to CBI and the present case does not fall within the ambit  

thereof. The State police has already investigated the matter and filed  

the  final  report  under  Section  173(2)  Cr.P.C.  before  the  court  

concerned. The appellant has already filed the protest petition and it is  

for the learned Magistrate to decide the case in accordance with law.  

The Magistrate is not bound to accept the report so submitted by the  

investigating agency, he may take cognizance and also direct further  

investigation  under  Section  173(8)  Cr.P.C.  Thus,  there  is  no  

justification to transfer the case to CBI and the appeal is liable to be  

rejected.   

Shri Mukul Gupta, learned senior counsel appearing on behalf  

of  the  CBI,  supported  the  case  of  the  respondents  and  further  

submitted that the CBI has a shortage of manpower and is already  

overburdened.  More  so,  the  present  case  does  not  present  special  

features warranting transfer to CBI for investigation.   

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5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

6. The issue involved herein, is no more  res integra. This Court  

has time and again dealt with the issue under what circumstances the  

investigation can be transferred from the State investigating agency to  

any other independent investigating agency like CBI.  It has been held  

that  the power of transferring such investigation must be in rare and  

exceptional  cases where the court finds it  necessary in order to do  

justice between the parties and to instil confidence in the public mind,  

or where investigation by the State police lacks credibility and it is  

necessary for having “a fair, honest and complete investigation”, and  

particularly, when it is imperative to retain public confidence in the  

impartial working of the State agencies. Where the investigation has  

already been completed and charge sheet  has been filed,  ordinarily  

superior courts should not reopen the investigation and it should be  

left  open  to  the  court,  where  the  charge  sheet  has  been  filed,  to  

proceed  with  the  matter  in  accordance  with  law.  Under  no  

circumstances, should the court make any expression of its opinion on  

merit  relating  to  any  accusation  against  any  individual.   (Vide:  

Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1  

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SCC 397;  R.S. Sodhi v. State of  U.P. & Ors., AIR 1994 SC 38;  

Punjab  and  Haryana  Bar  Association,  Chandigarh through  its  

Secretary  v. State of Punjab & Ors., AIR 1994 SC 1023;  Vineet  

Narain & Ors.,  v.  Union of  India  & Anr., AIR 1996 SC 3386;  

Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997  

SC 314;  Disha v.  State of  Gujarat  & Ors., AIR 2011 SC 3168;  

Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors.,  

(2011) 13 SCC 329; and  State of  Punjab v.  Davinder Pal Singh  

Bhullar & Ors. etc., AIR 2012 SC 364).  

7. In  Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010)  

2 SCC 200, this Court dealt with a case where the accusation had been  

against high officials of the  police department of the State of Gujarat  

in respect of killing of persons in a fake encounter and the Gujarat  

police after  the conclusion of  the investigation,  submitted a charge  

sheet  before  the  competent  criminal  court.  The Court  came to  the  

conclusion  that  as  the  allegations  of  committing  murder  under  the  

garb of an encounter are not against any third party but against the top  

police personnel of the State of Gujarat, the investigation concluded  

by  the  State  investigating  agency  may  not  be  satisfactorily  held.  

Thus, in order to do justice and instil confidence in the minds of the  

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victims as well of the public, the State police authority could not be  

allowed  to  continue  with  the  investigation  when  allegations  and  

offences were mostly against top officials. Thus, the Court held that  

even if a chargesheet has been filed by the State investigating agency  

there is no prohibition for transferring the investigation to any other  

independent investigating agency.     

8. In  State  of  West  Bengal  v.  Committee  for  Protection  of  

Democratic Rights, AIR 2010 SC 1476, a Constitution Bench of this  

Court  has  clarified  that  extraordinary  power  to  transfer  the  

investigation  from  State  investigating  agency  to  any  other  

investigating agency must be exercised sparingly, cautiously and in  

exceptional  situations  where  it  becomes  necessary  to  provide  

credibility and instil confidence in investigation or where the incident  

may have national and international ramifications or where such an  

order may be necessary for doing complete justice and enforcing the  

fundamental rights.  

(See also: Ashok Kumar Todi v. Kishwar Jahan & Ors., AIR 2011  

SC 1254).

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9. This Court in the case of Sakiri Vasu v. State of UP, AIR 2008  

SC 907 held:

“This Court or the High Court has power under Article   136  or  Article  226 to  order  investigation  by  the  CBI.   That,  however should be done  only in some rare and  exceptional case, otherwise, the  CBI would be flooded  with  a  large  number  of  cases and  would  find  it   impossible to properly investigate all of them.”

(Emphasis added)

10. In view of the above, the law can be summarised to the effect  

that the Court could exercise its Constitutional powers for transferring  

an  investigation  from  the  State  investigating  agency  to  any  other  

independent  investigating  agency  like  CBI  only  in  rare  and  

exceptional cases.  Such as where high officials of State authorities  

are involved, or the accusation itself is against the top officials of the  

investigating  agency  thereby  allowing  them  to  influence  the  

investigation, and further that it is so necessary to do justice and to  

instil  confidence  in  the  investigation  or  where  the  investigation  is  

prima facie found to be tainted/biased.   

11. The case is required to be examined in view of aforesaid settled  

legal propositions.   

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The matter originated in September 1998 and a period of 15  

years has already been lapsed. During this period, respondent no. 3,  

the then RDO, against  whom the allegations are made,  might have  

been transferred to various districts of the State.  The allegations of  

malafide  had  been  made  against  the  police  in  general  without  

impleading  any  person  by  name.   During  the  period  of  15  years,  

investigation could have been carried out by many police officers.  It  

cannot  be presumed that  each of  them could be influenced by the  

respondent  no.  3.   This  Court  had  also  given  the  liberty  to  the  

appellant to approach the High Court for transferring the investigation  

to CBI provided there is sufficient material available subsequent to the  

earlier orders passed by the High Court.   Even if  the investigating  

agency did not proceed promptly and was in deep slumber for a long  

time, the appellant also did not make any attempt to move the court  

for issuance of appropriate direction to transfer the case to the CBI. It  

was at a belated stage when the High Court was approached.  In the  

meanwhile,  the  High  Court  came  to  the  conclusion  that  the  

investigation of the case has already been concluded and, therefore,  

did not  transfer  the case  to  CBI.   Admittedly,  the final  report  has  

already been filed and the appellant is fully aware of those facts. If he  

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has  not  already  taken  the  appropriate  steps  to  meet  the  present  

situation, he can still do so as the learned Magistrate concerned, as we  

are informed, has not yet passed any final order.  It is always open to  

the Magistrate to accept the final report or reject the same and has the  

power to direct further investigation under Section 173(8) Cr.P.C.   

12. The  High  Court  while  passing  the  impugned  judgment  and  

order had, in fact,  taken note of the earlier judgment of this Court  

dated  2.9.2008  and  rejected  the  application  observing  that  the  

subsequent  development  would  not  warrant  the  transfer  of  

investigation. The High Court has further taken note of the fact that  

the  investigation  had  been  properly  conducted  by  the  State  

investigating  agency,  46 witnesses  had been examined and a  large  

number of documents had been filed and the investigating agency had  

concluded the investigation in respect of allegations labelled by the  

appellant against the alleged accused.  

13. The High Court has further taken note of the earlier judgment  

of this Court dated 2.9.2008 wherein this Court had given liberty to  

the appellant to move a fresh application under Section 482 Cr.P.C., if  

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it is so required in view of the “subsequent events having been taken  

place”. The relevant part of the order of this Court reads as under:

“We make it  clear once again that if  a fresh criminal   petition under Section 482 of  the Code is  filed by the   respondent for transferring the investigation from State   Police  authorities  to  CBI  after  bringing  certain  subsequent  events  that  had  taken  place  after  the   disposal of the original criminal petition if there be any,   it  would be open for the High Court  to entertain such   application  if  it  is  warranted  and  decide  the  same  in   accordance with law for which we express no opinion on   merit.”

                                                                         (Emphasis added)

14. In sum and substance, firstly, the facts and circumstances of the  

instant  case  do  not  present  special  features  warranting  transfer  of  

investigation to CBI, and that too, at such a belated stage where the  

final report under Section 173(2) Cr.P.C. has already been submitted  

before the competent criminal court. The allegations are only against  

the then RDO who might have been transferred to various districts  

during these past 15 years.  Similarly various other police officials  

might  have  investigated  the  case  and it  is  difficult  to  assume  that  

every  police official was under his influence and all of them acted  

with malafide intention.  In view of the earlier order of this Court  

dated 2.9.2008, no subsequent development has been brought to the  

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notice of the court which could warrant interference by superior courts  

and transfer the investigation to CBI.

 15. In  view  of  the  above,  we  do  not  see  any  cogent  reason  to  

interfere with the impugned judgment and order of the High Court.  

The appeal lacks merit and is, accordingly, dismissed.  

…………………………………………..........J.  (DR. B.S. CHAUHAN)  

                                                                          …………………………..................................J.                                               (SUDHANSU JYOTI MUKHOPADHAYA)  

                                           …………………………..................................J.                                                (KURIAN JOSEPH)  

NEW DELHI;  August 21, 2013       

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