Royden Harold Buthello vs State Of Chhattisgarh

1) Petitioner No. 1 is the accused and petitioner No. 2 is father of petitioner No. 1. They have filed present petition under Article 226 of the

Constitution of India and Section 482 of the Code of Criminal Procedure seeking direction for transfer of FIR No. 0232/2020 registered at Azad

Chowk Police Station, Raipur, FIR No. 0255/2020 registered at Kotwali Police Station, Raipur, Online complaint No. 3334104012000003 dated

27.10.2020 made before the Superintendent of Police, Raipur and Online complaint No. 24488049072000014 dated 06.11.2020 made before Talchar

Police Station to the Central Bureau of Investigation. Petitioners also seek quashment of FIR No. 0232/2020 registered at Azad Chowk Police Station,

Raipur and FIR No. 0255/2020 registered at Kotwali Police Station, Raipur.

2) The brief facts as reflected from the averments made in the petition are that petitioner No. 1 is a resident of Mumbai, a qualified automobile

engineer and regular income tax payee. Petitioner No. 2 is a businessman carrying out business of logistics, transportation, renting out vehicles etc. for

the last 36 years in the name and style of M/s Buthello Travels at R/3, Mathur Estate, Premier Road, Kurla (W), Mumbai. Petitioner No. 1 through his

father’s business was working in the state of Odisha as well as State of Chhattisgarh. They have received various works of transportation of

minerals. Copy of the contracts is also annexed with petition.

3) Petitioner No. 1, in view of the business, has acquired 25 heavy motor vehicles which have been registered with RTO offices in State of

Chhattisgarh for transportation of fly ash from NTPC, Khania Nagar to various parts of Odisha. In connection with the business activity, he booked

Room No. 220 in his name in Hotel Green Park, Talcher, District â€" Angul, Odisha from 15.10.2020 to 20.10.2020. On 20.10.2020 at 13:00 hours, 4

unknown persons visited the Hotel Green Park, in a white Innova Car with a broken front bumper impersonating themselves as police officers. The

said four unknown persons contacted Shri Vijaya who was working as a receptionist and said that they are desirous to meet him. Therefore, they

were allowed to enter into the room No. 220 where the petitioner No. 1 was staying.

4) It is further contended that the said four persons entered room No. 220 and introduced themselves as police officers to the petitioner No. 1 and

without assigning any reason, directed the petitioner No. 1 to come with his belongings and accompany them in his vehicle upto Raipur. Nothing was

disclosed to petitioner No. 1 and it was told that he would know everything once they reach Raipur. To substantiate his contention that he has stayed

at Hotel Green Park, Talcher he has annexed invoices issued by the hotel. To substantiate that he has been abducted from Talcher he has referred to

many things in his pleading contending that four persons drove the vehicle towards Raipur and while taking dinner at Dhaba between Sambalpur and

Sonipat, he heard that name of the four persons were Pramod Behra, Sultan, Santosh and Ali from their talks. It has been further contended that by

the petitioner No. 1 that he had kept mobile phone in his pocket by which he has made four phone calls to this supervisor, on his cell No. 82495 18758.

After reaching Raipur at about 12:30 am on 21.10.2020 said four persons took the petitioner No. 1 to respondent No. 5 where he was detained for

some time and his cell phone and laptop were taken into custody. Then he was taken to respondent No. 4, where he was put up in lockup throughout

night without informing him about his involvement in any cognizable offence. On 21.10.2020, at about 19:15 hours, police Sub-inspector Shri Priyesh

Mathew John lodged FIR against him bearing No. 0232/2020 for the alleged offence under 22(b) of the Narcotic Drugs and Psychotropic Substances

Act which is false and concocted FIR. Relevant portion of the FIR is extracted below :-

5) The petitioner No. 1 has also referred to about the 'myactivity.com' account to substantiate that he was forcibly abducted from Talcher to Raipur

and he contended that he has been falsely implicated in Crime No. 0232/2020 whereas the four persons have committed offence under Sections 419,

362 and 346 read with Section 114 of the IPC. The brother of petitioner No. 1 tried to lodge FIR on 26.10.2020, however, respondent No. 6 refused to

take his complaint. Thereafter, petitioner No. 2 filed an online complaint dated 2710.2020 on the web portal of Chhattisgarh police as registration No.

3334104012000003. On 06.11.2020 he again lodged online complaint against the four persons in the web portal of Odisha Police bearing registration

No. 24488049072000014. Since no action has been taken on the complaints, he made an online e-grievance with the Director General of Police,

Odisha on 13.11.2020 bearing registration No. DGIG1/E/2020/00438 and also sent copy of that grievance letter to the Director General of Police, at

Cuttack and the Superintendent of Police, Angul, Odisha by speed post but no action has been taken. Only it was informed by the Odisha police that

enquiry report of the complainant is approved on the basis of enquiry done, no copy of enquiry report has been communicated to the petitioners. In the

meantime, respondent No. 3 on 26.10.2020 sought police custody of petitioner No. 1 which was granted by the Learned Special Judge, Raipur on

27.10.2020 till 28.10.2020 4:00 pm and again on 28.10.2020 till 29.10.2020 without any fruitful purpose. The petitioner No. 1 filed an application for

grant of bail before the Special Judge, Raipur on 28.10.2020. Before, hearing of the bail application finally, his arrest was sought by respondent No. 5

in another FIR No. 255/2020 filed against one Shreyansh Zabak and Vikas Surendra Banchor by respondent No. 5 on 30.10.2020 which was granted

by the learned Special Judge on 02.11.2020 and he was arrested. Thereafter, a remand application dated 02.11.2020 was filed by respondent No. 5

alleging for the first time that one Ashish Joshi and Nikita Panchal had given their statements under Section 161 of Cr.P.C. wherein they had alleged

that petitioner No.1 brought contraband from Mumbai and supplied to them. The relevant paragraphs of FIR No. 255/2020 registered at police Station

Kotwali Raipur is extracted below :-

6) It is contended that the learned Special Judge, Raipur vide its order dated 19.10.2020 and 21.10.2020 rejected the bail application of Ashish Joshi

and Nikita Panchal. Since the petitioner had made online complaint No. 3334104012000003, respondent No. 5 by abusing his power, appears to have

come out with a false story and got up so called statements of said Nikita Panchal and Ashhish Joshi under Section 161 of Cr.P.C. with a malafide

intention to take vengeance by implicating him falsely in FIR No. 255/2020. On 3.11.2020, the learned Special Judge heard the bail application of the

petitioner No. 1 in FIR No. 0232/2020 and posted the matter on the next day for others. Respondent No. 3 filed only a formal reply to the said

application without dealing with the story and contentions raised by the petitioner No. 1. The bail application was rejected on 04.11.2020. Thereafter,

he filed bail application before this Court in M.C.R.C. No. 9035 of 2020. The bail application was decided on 29.01.2021, the operative part thereof is

extracted below :-

“12. It is also to be seen that the Delhi High Court in Joyce Karoung v Narcotics Control Bureau (bail application No. 1086 of 2018 decided on

02.06.2018) has held that for all those persons who are major link in the entire operation have to be treated in the same manner as if they have taken

part in trading and trafficking of drugs, therefore, their act is no less serious and they are also not entitled to be released on bail.

Considering entire facts situation of the case and particularly considering the seriousness of the offence and the nature of evidence available on

record, this Court is not inclined to grant bail to the applicants.

Accordingly, all the bail applications are rejected.â€​

7) It is further contended that against the rejection of bail application SLP (Criminal) has also been filed before the Hon'ble Supreme Court which has

been dismissed. The petitioners on the basis of above factual matrix would submit that investigation was not conducted in fair manner and has been

conducted on biased manner. Registration of FIR No. 255/2020 is nothing but abuse of power by respondents No. 5. The complaints made by the

petitioners have not been taken care of by the State authority. He would submit that petitioner No. 1 was abducted from Hotel Green Park, Talcher,

Odisha as evident from his gmail account, CCTV installed in various toll plazas from Talcher to Raipur. On the basis of above factual matrix, he would

pray for quashment of FIR No. 232/2020 as well as FIR No. 255/2020 and also subsequent filing of challan in Special Case No. 87/2020 and Special

Case No. 98/2020 pending before the learned Special Judge under NDPS Act, Raipur.

8) Learned counsel for the State has filed their return denying the contentions made in the petition that the FIR is merely first information report

lodged by the concerning police station and this information does not regulate or contain the scope of investigation, correctness of allegation made in

the FIR. It is further contended that allegation can be examined only after collection of evidence during the investigation. Therefore, present petition at

this juncture is not tenable and liable to be dismissed. It has been further submitted that quahsing of the FIR or framing of charge exercising

extraordinary and inherent power by this Court can be used to prevent abuse of process of Court or otherwise to meet the ends of justice, which is not

in the present one, therefore, the petition is liable to be rejected.

9) The petitioners have filed rejoinder on 10.03.2021 and would submit that from the reasons and grounds taken by the prosecution in the challan

would itself demonstrate that alleged offence against petitioner No. 1 is not made out. He would further submit that the entire investigation is

concocted and biased and on the evidence which never occurred otherwise also there is violation under Sections 42, 50 and 57 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (in short “NDPS Actâ€). They would refer to the judgment of the Hon'ble Supreme Court in case of

Anand Kumar Mohatta vs. State (Govt. of NCT of Delhi) (2019) 11 SCC 706 and would pray that writ petition be allowed and the FIR be quashed.

10) The petitioners have also filed interim application as I.A. No. 2/2020 for grant of interim relief wherein they have prayed for that C.B.I. be kindly

directed for submission of periodical progress report of the investigation to this Court and same may be monitored by this Court. On 27.12.2020 the

application was pending and the case was finally heard, therefore, the interim application lost its significance.

11)Learned counsel for the State would submit that against crime No. 255/2020 Special Crime No. 98/2020 has been registered before the Special

Judge, NDPS Act, Raipur. The learned Special Judge NDPS vide order dated 14.07.2021 has framed the charges under Section 29 read with Sections

22(b), 22(c), 25 and 27 of the NDPS Act. The petitioners have assailed framing of charges by filing Criminal Revision No. 468/2021. The coordinate

bench of this Court vide its judgment dated 15.09.2021 considered submission of the leaned counsel for the petitioners that whether Sections 42, 50

and 57 have been complied with or not. The relevant para of the judgment is reproduced below:-

“(21) So far as non-compliance of mandatory provisions of Sections 42 & 50 of the NDPS Act is concerned, copy of charge -sheet prima facie

shows that mandatory provision of NDPS Act has been complied with, not only this but compliance of mandatory provisions of the NDPS Act are the

matter of facts because whether it has been complied with or not as per provisions of the NDPS Act can be considered/decided only after affording

due opportunity of hearing to the parties concerned by adducing evidence, before that it could not be considered/decided conclusively.

(22) This is a case of illicit trade and trafficking including sell, transportation and possession as also consumption of cocaine and MDMA in drug

parties by fetching conspiracy by drug cartel from Mumbai & Goa to Raipur. Alleged contraband articles seized in this case from the possession of

accused persons are more than the commercial quantity i.e. 110.610 gms. Material collected by the Police prima facie shows involvement of the

petitioner â€" with drug cartel/mafia, who are engaged in the illicit trade and trafficking of cocaine and MDMA throughout the country including in

several districts of Chhattisgarh State. Thus, I do not find any infirmity or illegality in the impugned order framing the alleged charges against the

petitioner.â€​

12) The petitioners have also filed Criminal Revision No. 593 of 2021 assailing framing of charges by the Special Judge, NDPS Raipur under crime

No. 232/2020 in Special Case No. 87/2020. The said criminal revision was dismissed as withdrawn on 27.09.2021.

13) After closing of the argument, learned counsel for the petitioners has submitted written synopsis highlighting the discrepancies in the procedure in

noncompliance of Sections 42, 50 and 57 of NDPS Act reiterating that he has been abducted from Talcher Odisha and illegally detained by

respondents No. 3 to 5 at Raipur from 20.10.2020 to 21.10.2020. The petitioners in their written submission have again highlighted that the stand which

may be their defence is 'myactivity.com' which is his google account and would submit that from that document it is clear that he was in Hotel Green

Park, Talcher from 16.10.2020 to 20.10.2020 and also submitted that receptionist Mr. Vijaya is an eye witness who has seen that four unknown

persons visited Hotel Green Park on 20.10.2020 impersonating themselves as police officers.

14) Learned counsel for the petitioners would further submit that this court vide order dated 23.06.2021 has issued notice to Talcher Police Station,

respondent No. 6 also also humdust notice but they do not file their response to it. Even on his online complaint, no action has been taken. This shows

the malafide on part of the police authorities. The petitioners have raised grounds for quashing of the FIR and subsequent trial for non compliance of

various provisions of NDPS Act and also cited judgments to substantiate their stand with regard to non-compliance of the provisions of NDPS Act in

case of Sasi Thomas versus State & Others (2006) 12 SCC 421, Nirmal Singh Kehlon versus State of Punjab (2009) 1 SCC 441 State of West Bengal

& Others versus Committee for Protection, Democratic Rights, West Bengal & Others (2010) 3 SCC 571, Vinay Tyagi versus Irshad Ali (2013) 5

SCC 762, K.V. Rajendra versus Superintendent of Police (2013) 12 SCC 480, Bharti Tamang versus Union of India (2013) 15 SCC 578, Mithilesh

Kumar Singh versus State of Rajasthan & Others (2015) 9 SCC 795, Pooja Pal versus Union of India (2016) 3 SCC 135, E. Sivakumar versus Union

of India & Others (2018) 7 SCC 365, Dr. Naresh Kumar Mangla versus Anita Agarwal & Others (2020) SCC Online SC 1031, Jamuna Chaudhary

& Others versus State of Bihar (1974) 3 SCC 774, Sasi Thomas versus State & Others (2006) 12 SCC 421, Nirmal Singh Kehlon versus State of

Punjab (2009) 1 SCC 441, Babubhai versus State of Gujarat & Others (2010) 12 SCC 254, Vinay Tyagi versus Irshad Ali (2013) 5 SCC 762 and

Manohar Lal Sharma versus Principal Secretary & Others (2014) SCC 532.

15) Learned counsel for the petitioners would submit that since there is no fair investigation, this Court, pending the petition, may issue a direction to

the CBI to submit a preliminary report considering the allegations regarding illegal detention and false implication of petitioner No. 1 in offence related

with NDPS Act and would rely upon the judgment passed by the Hon'ble High Court of Madras in Crl. O.P. Nos. 26847 and 26948 of 2014 in case of

Prof. T.V. Velliyangiri, M.E. (Ph.D.) vs. Shri V. Devi dated 13.11.2014 in which investigation in criminal case was withdrawn from a particular

inspector of police and it was entrusted to Superintendent of Police. In light of the judgment passed by the Hon’ble High Court of Madras, he

would pray that all the complaints with regard to illegal detention be enquired by CBI who inturn shall submit status report before the Court. He would

further submit that though Talcher, Odisha is not within the territorial limits of this High Court, but Hon'ble Court has jurisdiction to issue writ under

Article 226(2) of Constitution of India as part of the cause of action arises within the territorial limits of this Court as online complaint dated

27.10.2020 made by the petitioners for which investigation has to be conducted at Raipur. In support of his submissions, the petitioners would rely on

the judgments of Hon'ble Supreme Court in Navinchandra N. Majithia vs. State of Maharashtra and Others (2000) 7 SCC 640 and Om Prakash

Srivastava Vs. Union of India and Another (2006) 6 SCC 207.

16) Learned counsel for the petitioners would further submit that from perusal of charge sheet of FIR No. 0232 of 2020, it is clear that Sections 42, 50

and 57 of the NDPS Act have not been complied with and all the requirements of these sections which are mandatory in nature have been prepared

at the Police Station, Raipur without physical presence on the spot as complainant Priyesh John has stated in his statement that he entered confidential

information at 15:15 hrs on 21.10.2020 in rojnamcha where as C.P. Tiwari (Sub Inspector) and another guards have stated that Priyesh John has

received information at 14:00 hours on 21.10.2020 and the panchnama recording confidential information was prepared at 15:15 hrs which does not

disclose the place at which the crime was committed. There are lot of contradictions and omissions. The rojnamcha information was recorded

regarding ‘cocaine’ whereas panchnama of confidential information ‘brown sugar’ has been recorded. The panchnama dated 21.10.2020

at 15:50 hours is not able to get search warrant signed by the witnesses, it means panchnama was created subsequently. Similar, other omissions and

contradictions have been mentioned and they would further submit that Section 42 of the NDPS Act is a mandatory provision which has to be

complied strictly as held by the constitution Bench of Hon'ble Supreme Court in case of Karnail Singh v State of Haryana (2009) 8 SCC 539 and also

in Kishan Chand vs State of Haryana (2013)2 SCC 503.

17) The learned counsel for the petitioners with regard to violation of Section 50 of the NDPS Act would submit that notice dated 21.10.2020 is

prepared at 16:15 hours, the distance between the Azad Chowk police Station and Ashram Tiraha is 500 mtrs and the team consisting of six people

left by vehicle at 16:05 hours as per Rojnamcha and would submit that from bare perusal of the Rojnamcha it is apparent that the team reached at the

place and within 10 minutes all the proceedings have been concluded, which is impossible and is unbelievable thus all the documents prepared in

compliance with Section 50 of the NDPS Act do not inspire confidence that they are made in natural course and there is clear violence of NDPS Act.

Thus, the alleged recovery of articles from petitioner No. 1 is illicit and vitiates the trial. In support of his contention he has referred to the judgment of

Hon’ble Supreme Court in case of State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysingh Chandubha Jadeja vs State Of Gujarat

(2011) 1 SCC 609.

18) The learned counsel for the petitioners would further submit that with regard to violation of Section 57 of the NDPS Act that report was

acknowledged by CSP Azad Chowk at 11:20 hours whereas the record of the facts of goods given in custody to Mohrir (Malkhana) at 11:50 hours,

how can complainant record the fact at 11:50 hours in report under Section 57 of the NDPS Act which is acknowledged at 11:20 hours, therefore,

report under Section 57 of NDPS Act in respect of fact has never occurred. As such, there is no compliance of Section 57 of the NDPS Act.

19) It has been further contended that search of police, witness and vehicle was never done, which is also violation of NDPS Act. It has been further

contended that no other documents and articles were found from the petitioner No. 1, except alleged recovery of Cocaine of 9.24 gm when the

petitioner No. 1 is not a local resident, therefore, it cannot be believed that petitioner No. 1 was not carrying wallet, identity proof and any amount of

money. The search dated 21.10.2020 does not disclose the place where it was done, therefore, it can be very well presumed that it has been prepared

in the police station.

20) It has been further contended that there is violation of section 42, 50 and 57 of the NDPS Act with regard to FIR No. 255/2020 which also

reiterates his submission which has been taken while highlighting the violations of these provisions with regard to FIR No. 232/2020 and he would also

refer to the judgment of Hon'ble Supreme Court in case of State of Rajasthan vs. Parmanand and another (2014) 5 SCC 345.

21) Learned counsel for the petitioners’ next limb of argument to demonstrate that the case is concocted and forged one, is that the police never

went to Bilaspur on 30.09.2020 as it takes 2½ hours to reach Bilaspur, therefore, it will take more than 5 hours to come back to Raipur. The

documents filed with the charge sheet would show that O.P. Sahu, Sub Inspector took consent of Abhishek Shukla on 08.10.2020 at 16:20 hours at

Bilaspur and he searched house at 17:10 hours on same day, prepared seizure panchanama at 17:15 hours, contraband identification panchanama at

17:20 hours, Samras panchanama at 17:35 hours and sample seal panchanama at 17:50 hours which is not possible, it also clearly establishes that the

police has never gone to Bilaspur and a bogus case has been made at police station. It has been further contended that there is no material against the

petitioner No. 1 and in FIR No. 255/2020 he has been falsely implicated. It is nothing but abuse of process of law. To substantiate his contention he

would refer to the judgment of Hon'ble Supreme Court in case of Tufan Singh vs State of Tamilnadu (2021) 4 SCC 1.

22) It has been further contended that the statement of coaccused Patrick Igwebuike alleged to have been taken on 29.10.2020 in FIR No. 232/2020

is inadmissible in evidence and does not lead to discovery of any fact and is not corroborated by any other material on evidence. There is no material

on record in FIR. He would further refer to the judgment of Hon'ble Supreme Court in case of Dipakbhai Jagdishchandra Patel vs The State Of

Gujarat (2019) 16 SCC 547. He would further submit that from the above sets of incidents, it is quite clear that investigation has been done in violation

of provisions of the NDPS Act and it is fit case where the case should be transferred to the CBI and he would refer to the judgment of Hon'ble

Supreme Court in case of Mithilesh Kumar Singh vs State of Rajasthan and Others (2015) 9 SCC 795 wherein the Hon'ble Supreme Court has held

that if there is no fair and proper investigation, then the case can be transferred to the CBI. He would refer to the judgment of Hon'ble Supreme Court

in case of Pooja Pal vs. Union of India (2016) 3 SCC 135. He has also referred the judgment of Hon'ble Supreme Court in case of Shivkumar vs

Union of India (2018) 7 SCC 365 to substantiate his submission that even after filing of the charge sheet the matter can be transferred to CBI as held

by the Hon'ble Supreme Court in case of Dr. Naresh Kumar Mangla vs. Anita Agarwal (2020) SC online 1031. He would further submit that criminal

jurisprudence casts duty on the investigating officer to conduct fair and impartial effective investigation and even the fundamental rights of the

accused under Article 21 of the Constitution of India have been violated in the present case and in support of his contention he would refer to the

judgment of the Hon'ble Supreme Court in case of Jamuna Choudhary vs The State Of Bihar (1974) 3 SCC 774. Similarly he refers to judgment of the

Hon'ble Supreme Court in case of Shashi Thomas vs State (2006) 12 SCC 421, Nirmal Singh vs. State of Punjab (2009) 1 SCC 441 Babubhai vs.

State of Gujrat (2010) 12 SCC 254 and lastly would refer to the judgment of Hon'ble Supreme Court in case of Manohar Lal Sharma vs Principal

Secretary (2004) 2 SCC 532 and he would submit that the writ petition be allowed and the charge-sheet in both the crime numbers and subsequent

criminal proceedings be quashed.

23) On the other hand, the State has filed their written submission mainly contending that as regards the prayer of the petitioners to transfer the case

to CBI, averment of the petitioner No. 1 that he was forcefully brought from Talcher to Raipur on 20.10.2020 is his defence, whereas the case of the

prosecution in Crime No. 232/2020 is that on 21.10.2020 when the petitioner No. 1 was arrested he was trying to sell psychotropic substance. The

police after investigation framed the charges and submitted the challan before the competent Court and competent Court on the basis of charge sheet

has framed charges and the trial is pending before the trial Court. It has been further contended that framing of charge by the trial Court was

challenged in Criminal Revision No. 593 of 2021 which was dismissed and it is also submitted that in Crime No. 232/2020 there is recovery of 9.24 gm

cocaine on the memorandum of the petitioner No. 1 and one Nigerian drug peddler named Patrick Igwebuike who has admitted in his own

memorandum that he has sold to the petitioner No. 1 at Mumbai in collusion with his Nigerian friend Patrick Chisom. It has been further contended by

the Additional Advocate General that there are statements of witnesses recorded under Section 161 Cr.P.C. and Section 164 of Cr.P.C. where the

involvement of the present petitioner No. 1 stands proved. It has been further contended that the bail application of the petitioner No. 1 has also been

dismissed by this High Court as well as by the Hon'ble Supreme Court. It has been further contended that during course of argument it has been

vehementally argued on behalf of the petitioners that there are violations of mandatory provisions of Sections 42, 50 and 57 of the NDPS Act by the

investigating agency. In this regard the answering respondent would submit that the discrepancies and violations can be pointed out and considered at

the time of trial only and defence taken by the petitioners is the matter of inquiry which cannot be adjudicated upon while deciding writ petition

(criminal) under Article 226 of the Constitution of India. He would further submit that framing of charges in Crime No. 232/2020 has been challenged

before this Court by filing Criminal Revision No. 593/2020 which has already been dismissed as withdrawn.

24) It has been further contended that the main ground raised by the petitioners for transfer of investigation to the CBI can be tested by recording of

the evidence and therefore, there is no such ground available to the petitioners for transfer of the case. It has been further contended that from bare

perusal of the charge-sheets in both the crime numbers, it is crystal clear that there is sufficient material against the petitioners for continuing with the

criminal trial. He would submit that the petitioners are mainly focusing their defence that petitioner No.1 was forcefully brought from Talcher to

Raipur before making him accused in Crime No. 232/2020. It is submitted that this is the defence of the petitioners whose correctness and authenticity

can be examined by thread bearing analysis of the evidence and its marshaling by the concerning Court only. Therefore, defence taken by the

petitioners for transferring the case to CBI is not permissible. It has been further contended that the Hon'ble Supreme Court has very recently

examined the facts and circumstances of the case where investigation can be transferred to CBI and he would refer to the judgment of Hon'ble

Supreme Court in case of in case of Arnab Ranjan Goswami v. Union of India (2020) 14 SCC 12 wherein it has been mentioned that accused cannot

chose the investigating agency and would submit that the writ petition (criminal) may kindly be dismissed. He would submit with regard to the power

and scope of this Court while quashing the FIR and charge sheet and would refer to the judgment passed by the Hon'ble Supreme Court in case of

Kaptan Singh vs State of UP and Others (2020) SCC Online 580 as such, the present writ petition filed by the petitioners is liable to be dismissed by

this Court.

25) From the above discussion, the following points are to be determined by this Court :-

Whether on non-compliance of Sections 42, 50 and 57 of the NDPS Act the whole trial can be vitiated while hearing the petition under Article 226

of the Constitution of India?

Whether any case is made out for transfer of the case to CBI for further investigation?

26) Since both the points required to be determined by this Court are interconnected, therefore they are being decided simultaneously. For better

understanding the issue raised in this petition by the learned counsel for the petitioners that there is violation of Section 42, 50 and 57 of NDPS Act, it

is necessary for this Court to extract them for ready reference:-

“42. Power of entry, search, seizure and arrest without warrant or authorisation.â€

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue

intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by

general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the

revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the

State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic

drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any

document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other

article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of

this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,â€

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has

reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of

the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or

freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this

Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the

concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time

between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall

within seventy-two hours send a copy thereof to his immediate official superior.]

Conditions under which search of persons shall be conducted.â€

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he

shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in

section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in

sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith

discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is

not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched

parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such

person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure,

1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within

seventy-two hours send a copy thereof to his immediate official superior.]

Report of arrest and seizure.â€"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after

such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

27) Learned counsel for the petitioners has highlighted the discrepancies while conducting the investigation and procedure lapses while complying

provisions of Sections 42, 50 and 57 of the NDPS Act. The petitioners have referred to judgment in Karnail Singh (supra) for violation of Section 42 of

the NDPS Act, wherein Hon'ble Supreme Court has held that total non-compliance of Sub Section 1 and 2 of Section 42 of the Act is impermissible,

delayed compliance with satisfactory explanation about delay will be acceptable compliance. Whether there is total non-compliance of Section 42 of

the Act or there is delay in compliance of Section 42 of the Act is to be seen by the trial Court at the time of recording of evidence which cannot be

adjudicated upon by this Court while deciding the writ petition under Article 226 of the Constitution of India.

28) The learned counsel to substantiate that there is non compliance of Section 50 of NDPS Act has referred to the judgment in Vijaysinh Chandubha

Jadeja (supra) wherein the Hon’ble Supreme Court has held that whether Section 50 of the Act has been complied with or not is a matter of trial

and no absolute formula can be laid down. Thus, from above stated legal positions held by the Hon’ble Supreme Court, it is crystal clear that this

Court cannot examine whether there is compliance of Section 50 of the Act or not, this can be very well agitated before the trial Court who will

decide the same after appreciating the evidence or material on record. The learned counsel has also referred to the judgment passed by the

Hon’ble Supreme Court in case Arif Khan vs State of Uttarakhand (2018) 18 SCC 380. This is arising out of conviction passed by the learned trial

Court after full fledged trial therefore the issue decided by the Hon’ble Supreme Court can be ascertained by the trial Court after appreciating the

evidence and material on record, as such, the petitioners cannot take advantage of this judgment at this juncture.

29) Similarly, with regard to violation of Sections 52, 55 and 57, the learned counsel for the petitioners has referred to the judgment of Hon’ble

Supreme Court in case of Gurbax Singh vs State of Haryana (2001) 3 SCC 28. This judgment is arising out of the conviction passed by the trial court.

Therefore, this judgment cannot provide any assistance to the petitioners at this juncture.

30) Similarly, the learned counsel for the petitioners to substantiate that confessional statement cannot be taken in to account in order to convict

accused has referred to judgment of Hon’ble Supreme Court in case of Tufan Singh (supra) wherein it is held that statement recorded under

Section 67 of the Act cannot be used as confessional statement in the trial of an offence under NDPS Act. The Hon’ble Supreme Court has

further held that any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act and cannot be

taken into account in order to convict an accused under the NDPS Act. This is not the situation, at this juncture trial is going on and whether as per

Section 53 of NDPS Act any confessional statement has been recorded and can be used against the petitioners is matter of evidence, therefore, at this

juncture the petitioners cannot take such plea. Therefore, this judgment is also of no help to the petitioners.

31) Similarly, petitioners have referred to the judgment in case of Deepakbhai Jagdishchandra Patel vs. State of Gujrat and Another (2019) 16 SCC

547 to substantiate that confession of coaccused is not corroborated by any other material then accused has to be discharged. The trial Court has

already framed charges against petitioner No. 1 and against the framing of charges revision petitions have been dismissed by this Court by detailed

order and in one case the revision has been withdrawn, therefore, this aspect of the matter can very well be examined by the trial Court who after

appreciating the evidence, materials on record, may pass the order.

32) The petitioner No.1 has also taken stand regarding the manner he was abducted from Talcher, Odisha to Raipur, Chhattisgarh and highlighted the

evidences ; receptionist’s name, CCTV installed in hotel, Camera installed in various toll plazas and some google account ‘myactivity.com’

to substantiate that he was abducted. These all are his defence which cannot be considered until and unless thread bearing analysis of the evidence is

done. This thread bearing analysis can be done only by trial Court where the trial is going on, therefore, his these defence cannot be examined by this

Court while hearing writ petition under Article 226 of Constitution of India as held in Kaptan Singh (supra) by the Hon’ble Supreme Court India

which reads as under :-

“9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed

the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in

exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of

the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent

witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147,

148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the

High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the

statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are

required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements

are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and

the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in

catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is

exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to

examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can

exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of

FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences

from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in

such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-

sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that

exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction

under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests

specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in

exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet

(Supra) and in the case of XYZ (Supra), referred to hereinabove.

9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has

exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.

10 The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone

into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation.

The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta â€" Accused No.2 and

Munni Devi under which according to Accused no.2 - Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was transferred to her itself is

seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs.25 lakhs

and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized

affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and

there is a reference to transfer of possession to Accused No.2. Whether Rs.25 lakhs has been paid or not the accused have to establish during the

trial, because the accused are relying upon the said document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated

27.10.2010. It is also required to be considered that the first agreement to sell in which Rs.25 lakhs is stated to be sale consideration and there is

reference to the payment of Rs.10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to

be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.â€​

33) Learned Counsel for the petitioners has nowhere stated that neither in the writ petition nor in the written submission or the rejoinder that from bare

perusal of FIR it does not disclose any commission of offence but made an attempt for quashing of the FIR by referring to alleged non-compliance of

provisions of NDPS Act. It is well settled legal position that while entertaining writ petition under Article 226 of the Constitution of India for quashing

of FIR, the High Court cannot go beyond the FIR and cannot take into consideration the materials which have been placed to substantiate their

defence. The Hon’ble Supreme Court in very recent judgment in Criminal Appeal Nos. 1455-1456/2021 in case of State of Odisha vs. Pratima

Mohanti decided on 11th December, 2021 has held as under:-

“9. While quashing the criminal proceedings the High Court has not at all adverted to itself the aforesaid aspects and has embarked upon an

enquiry as to the reliability and genuineness of the evidence collected during the investigation as if the High Court was conducting the mini trial.

Therefore, as such the impugned judgment and order passed by the High Court quashing the criminal proceedings against the respondents herein

original accused Nos. 4, 5 and 3 â€" Smt. Pratima Mohanty, Shri Prakash Chandra Patra and Shri Rajendra Kumar Samal is unsustainable, both, in

law and/or facts and the same deserves to be quashed and set aside.

In view of the above and for the reasons stated above present appeals succeed. Impugned common judgment and order passed by the High Court

dated 04.09.2019 passed in Criminal Miscellaneous Application No.3177 of 2017 and Criminal Miscellaneous Application No.4804 of 2015 are hereby

quashed and set aside in so far as quashing the criminal proceedings against original Accused Nos.4, 5 & 3 is concerned.

Respondent Nos.4, 5 & 3 to face trial along with other co-accused.

Present Appeals are accordingly allowed.â€​

34) This Court cannot lose sight of the facts and circumstances of the case that the bail application filed by the petitioner No. 1 has been dismissed by

this Court by giving detail and reasoned order. The SLP (Criminal) challenging the rejection of bail has also been dismissed by the Hon'ble Supreme

Court. It is pertinent to mention here that on the same set of facts the petitioners have also assailed the framing of charges by the Special Judge,

Raipur in Crime No. 87/2020 and 98/2020 which have been dismissed by the coordinate Bench of this Court by giving detail and reasoned order vide

order dated 15.09.2021 and one of the revision petitions has been dismissed as withdrawn on 27.09.2021 as mentioned above. Therefore, once framing

of charges has been upheld by this Court, this Court cannot exercise its power under Article 226 of Constitution of India for quashing of the FIR. Even

otherwise, from the facts available on record, it is crystal clear that no action initiated by the State authority falls within the ambit of abuse of process

of law which warrants interference by this Court while exercising power under Article 226 of Constitution of India. Even it does not fall within the

exception clause as held by the Hon'ble Supreme Court in case of State of Haryana and others -v- Choudhary Bhajan Lal and others AIR 1992 SC

604, relevant paragraph thereof is extracted below:-

“108. ….................. we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent

abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and

sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be

exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

35) Therefore, the submission of the learned counsel that trial has been conducted in violation of the provisions of NDPS Act, therefore, the FIR are

liable to be quashed, cannot be accepted and accordingly, rejected with liberty to raise all the grounds before the trial Court which will be considered

and decided by the trial Court without being influenced by any of the observations made by this Court.

36) Point No. 2 whether any case is made out for transfer of case to CBI or not? The main ground taken by the petitioners is that petitioner No. 1

was abducted forcefully from Talcher to Raipur and thereafter petitioner No. 1 was falsely implicated in the offence relating to NDPS Act, as such, it

is a fit case where the matter can be transferred to CBI for further investigation. The Hon'ble Supreme Court in case of Arnab Ranjan Goswami

(Supra) has summarized the principle where a case may be transferred to CBI for further investigation, the relevant part of the judgment is extracted

below:-

“42. The transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an “extraordinary

power†to be used “sparingly†and “in exceptional circumstancesâ€. Speaking for a Constitution Bench in State of West Bengal v Committee

for Protection of Democratic Rights, West Bengal27 (“CPDR, West Bengalâ€​), Justice DK Jain observed:

“70…despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-

imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its

exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be

laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as

a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised

sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the

incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the

fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly

investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.â€​ (Emphasis supplied).

This principle has been reiterated in K V Rajendran v Superintendent of Police, CBCID South Zone, Chennai28. Dr Justice B S Chauhan,

speaking for a three judge Bench of this Court held:

“13…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

(2010) 3 SCC 571 (2013) 12 SCC 480 exceptional cases where the court finds it necessary in order to do justice between the parties and to instill

confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having “a fair, honest and complete

investigationâ€​, and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies.â€​

Elaborating on this principle, this Court observed:

“17…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 instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased.†The Court

reiterated that an investigation may be transferred to the CBI only in “rare and exceptional casesâ€. One factor that courts may consider is that

such transfer is “imperative†to retain “public confidence in the impartial working of the State agencies.†This observation must be read with

the observations by the Constitution Bench in CPDR, West Bengal that mere allegations against the police do not constitute a sufficient basis to

transfer the investigation.

In Romila Thapar v Union of India29, Justice AM Khanwilkar speaking for a three judge Bench of this Court (one of us, Dr Justice DY

Chandrachud, dissenting) noted the dictum in a line of precedents laying down the principle that the accused (2018) 10 SCC 753 “does not have a

say in the matter of appointment of investigating agencyâ€. In reiterating this principle, this Court relied upon its earlier decisions in Narmada Bai v

State of Gujarat30, Sanjiv Rajendra Bhatt v Union of India31, E Sivakumar v Union of India32 and Divine Retreat Centre v State of Kerala33. This

Court observed:

“30…the consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular

manner including for court-monitored investigation.â€​

The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used “sparinglyâ€​ and

only “in exceptional circumstancesâ€. In assessing the plea urged by the petitioner that the investigation must be transferred to the CBI, we are

guided by the parameters laid down by this Court for the exercise of that extraordinary power. It is necessary to address the grounds on which the

petitioner seeks a transfer of the investigation. The grounds urged for transfer are:

(i) The length of the interrogation which took place on 27 April 2020;

(ii) The nature of the inquiries which were addressed to the Petitioner and the CFO and the questions addressed during interrogation;

(iii) The allegations leveled by the petitioner against the failure of the State government to adequately probe the incident at Palghar involving an (2011)

5 SCC 79 (2016) 1 SCC 1 (2018) 7 SCC 365 (2008) 3 SCC 542 alleged lynching of two persons in the presence of police and forest department

personnel;

(iv) Allegations which have been made by the petitioner on 28 April 2020 in regard to CP, Mumbai; and

(v) Tweets on the social media by activists of the INC and the interview by the complainant to a representative of R Bharat.

As we have observed earlier, the petitioner requested for and consented to the transfer of the investigation of the FIR from the Police Station

Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was

under investigation. The petitioner now seeks to preempt an investigation by the Mumbai police. The basis on which the petitioner seeks to achieve

this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in

regard to the investigating agency. The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under

investigation/interrogation. In P Chidambaram v Directorate of Enforcement34, Justice R Banumathi speaking for a two judge Bench of this Court

held that:

“66…there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court

to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the

investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation

of the accused, it would affect the normal (2019) 9 SCC 24 course of investigation. It must be left to the investigating agency to proceed in its own

manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused.â€​ (Emphasis supplied)

This Court held that so long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing

the course of investigation, which includes determining the nature of the questions and the manner of interrogation. In adopting this view, this Court

relied upon its earlier decisions in State of Bihar v P P Sharma35 and Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v

Arun Kumar Bajoria36 in which it was held that the investigating agency is entitled to decide “the venue, the timings and the questions and the

manner of putting such questionsâ€​ during the course of the investigation.

In Director, Central Bureau of Investigation v Niyamavedi represented by its Member K Nandini, Advocate37, Justice Sujata V Manohar,

speaking for a three judge Bench of this Court held that the High Court should have:

“4…refrained from making any comments on the manner in which investigation was being conducted by the CBI, looking to the fact that the

investigation was far from complete.â€​ 1992 Supp. (1) SCC 222 (1998) 1 SCC 52 (1995) 3 SCC 601 This Court observed that:

“4…Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from

interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to

interfere in the investigation is on the increase and courts should be wary of its possible consequences.â€​

This Court adopted the position that courts must refrain from passing comments on an ongoing investigation to extend to the investigating agencies the

requisite liberty and protection in conducting a fair, transparent and just investigation.

The contention of the petitioner that the length of the investigation or the nature of the questions addressed to him and the CFO during the

interrogation must weigh in transferring the investigation cannot be accepted. The investigating agency is entitled to determine the nature of the

questions and the period of questioning. The Petitioner was summoned for investigation on one day. Furthermore, the allegation of the Petitioner that

there is a conflict of interest arising out of the criticism by him of the alleged failure of the State government to adequately probe the incident at

Palghar is not valid. The investigation of the Palghar incident is beyond the territorial jurisdiction of the Mumbai police.

The petitioner has then sought to rely upon the allegations which he has leveled against the CP, Mumbai. The petitioner was interrogated on 27

April 2020. The allegations which he leveled against the CP, Mumbai were in the course of a television programme on 28 April 2020 (“Poochta hai

Bharatâ€) relayed on R Bharat at 1900 hrs. As we have noted earlier, this Court has, in CPDR, West Bengal held that no transfer of investigation can

be ordered “merely because a party has levelled some allegations against the local police.†Accordingly, we do not find that leveling such

allegations would by and itself constitute a sufficient ground for the transfer of the investigationâ€​

37) From the above stated legal position held by the Hon'ble Supreme Court and the facts in the present case to be examined, it is crystal clear that no

such circumstances are available for which the case may be transferred to CBI. The charges have already been leveled long back and investigation is

going on, therefore, for this reason also there is no justification or circumstances which warrants transfer of the matter to the CBI. The petitioners can

very well take all their defence which they have raised in the writ petition and any other defence which is available to them in trial and even very well

cross examine the investigating authority to elicit the truth and criticise the prosecution story. Since, lot of remedial steps are available, therefore there

is no case for transferring the matter to the CBI for further investigation made out.

38) The further contention that on their online complaints no action has been taken, therefore, on this count also the matter may be transferred to CBI

for further investigation.

39) It is well settled legal position as held by the Hon'ble Supreme Court that if on complaint made to the police officers no action has been taken, the

petitioners have remedy of filing the complaint under Section 200/ 156(3) of the Cr.P.C. before the concerned Magistrate. The Hon'ble Supreme

Court in case of Sakiri Vasu Vs. State of Uttar Pradesh & others (2008) 2 SCC 409, has examined the issue in paragraphs 27 and 28, which are as

under:-

“27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper

investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate

himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a

grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this

grievance, the remedy lies under Section 36 and 154 (3) before the concerned police officers, and if that is of no avail, under Section 156 (3) Cr.P.C.

before the Magistrate or by filing a criminal complaint under Section 2000 Cr.P.C. and not by filing a writ petition or a petition under Section Cr.P.C.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High

Court should not ordinarily interfere.â€​

40) The judgment passed by Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges bench in case

of M. Subramaniam & another Vs. S. Janaki & another (2020) 16 SCC 728. The Supreme Court after considering the same judgment has held at

para 7 & 9 which are as under:-

“7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, in which it is observed: (SCC p. 278, paras 2-4)

“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having

been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the

Constitution of India, but to approach the Magistrate concerned under Section 156 (3) CrPC. If such an application under Section 156 (3) CrPC is

made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper

investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper

investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have

been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to

do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach

the Magistrate concerned under Section 156 (3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the

first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.

In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The

Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156 (3) CrPC and if he deems it necessary, he

can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also

monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish

before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.â€​

In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation

into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers

with the police pursuant to the complaint dated 18-09-2008 and the police on being satisfied that a criminal offence is made out would have liberty to

register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary.

Equally, it will be open to the appellants and others to take steps to protect their interest.â€​

41) The Hon'ble Surpeme Court deprecated filing of writ petition if no action has been taken on the complaint filed by any citizen to the police

authorities. He can very well file complaint under Section 200/156(3) of the Cr.P.C. before the concerning Judical Magistrate First Class having

jurisdiction over the matter. Therefore, the petitioners have also remedy to file complaint as held by the Hon'ble Supreme Court in case of no action by

police, as such on this count also the contention that the matter may be transferred to CBI and petition has been filed for issuance of direction to the

authorities to take action on the complaint is not tenable and deserves to be rejected.

42) From the above discussion, it is quite clear that no case is made out for interference by this Court. Accordingly the writ petition deserves to be and

is hereby dismissed.

43) It is made clear that this Court has not expressed anything on the merits of the case. The facts have been considered for adjudication of the

present Writ Petition. The petitioners are at liberty to raise all their grounds which have been taken in this writ petition or any other grounds

permissible under the law before the trial Court and in turn the trial Court shall decide the case in accordance with law, without being influenced by

any of the observations made by this Court while deciding this Writ Petition (Criminal).