IN THE HIGH COURT OF KARNATAKA AT BENGALURU
W.P. No. 670/2024
BETWEEN:
Central Bureau of Investigation ..PETITIONER
AND
State of Karnataka and Others. ..RESPONDENTS
LIST OF AUTHORITIES
I. It is for the State to entrust one or the other agency for the purpose of investigating
into the matter. The State for achieving the said object at any point of time may
consider handing over of investigation to any other agency.
Sr. No. Relevant Para Pg. No.
1. Nirmal Singh Kahlon v. State of Punjab and Others,
(2009) 1 SCC 441
28. An accused is entitled to a fair investigation. Fair investigation
and fair trial are concomitant to preservation of fundamental right
of an accused under Article 21 of the Constitution of India. But the
State has a larger obligation i.e. to maintain law and order, public
order and preservation of peace and harmony in the society. A
victim of a crime, thus, is equally entitled to a fair investigation.
When serious allegations were made against a former Minister
of the State, save and except the cases of political revenge
amounting to malice, it is for the State to entrust one or the other
agency for the purpose of investigating into the matter. The State
for achieving the said object at any point of time may consider
handing over of investigation to any other agency including a
central agency which has acquired specialization in such cases.
2. State of W.B. v. Committee for Protection of Democratic
Rights, (2010) 3 SCC 571 (5 Judges)
(ii) Article 21 of the Constitution in its broad perspective seeks to
protect the persons of their lives and personal liberties except
according to the procedure established by law. The said article in
its broad application not only takes within its fold enforcement of
the rights of an accused but also the rights of the victim. The State
has a duty to enforce the human rights of a citizen providing for
fair and impartial investigation against any person accused of
commission of a cognizable offence, which may include its own
officers. In certain situations even a witness to the crime may seek
for and shall be granted protection by the State.
II. The investigation into a criminal offence must be free from objectionable features or
infirmities which may legitimately lead to a grievance on the part of the accused that
investigation was unfair and carried out with an ulterior motive. The investigation
should not prima facie be indicative of a bias mind.
Sr. No. Relevant Para Pg. No.
3. Babubhai v. State of Gujarat and Ors., (2010) 12 SCC 254
32. The investigation into a criminal offence must be free from
objectionable features or infirmities which may legitimately lead
to a grievance on the part of the accused that investigation was
unfair and carried out with an ulterior motive. It is also the duty
of the Investigating Officer to conduct the investigation avoiding
any kind of mischief and harassment to any of the accused. The
Investigating Officer should be fair and conscious so as to rule
out any possibility of fabrication of evidence and his impartial
conduct must dispel any suspicion as to its genuineness. The
Investigating Officer "is not to bolster up a prosecution case with
such evidence as may enable the court to record conviction but to
bring out the real unvarnished truth". (Vide R.P. Kapur Vs. State
of Punjab AIR 1960 SC 866; Jamuna Chaudhary & Ors. Vs. State
of Bihar AIR 1974 SC 1822; and Mahmood Vs. State of U.P. AIR
1976 SC 69).
45. Not only the fair trial but fair investigation is also part of
constitutional rights guaranteed under Articles 20 and 21 of the
Constitution of India. Therefore, investigation must be fair,
transparent and judicious as it is the minimum requirement of
rule of law. Investigating agency cannot be permitted to conduct
an investigation in tainted and biased manner. Where non-
interference of the court would ultimately result in failure of
justice, the court must interfere.
4. Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
199. It is not only the responsibility of the investigating agency but
as well as that of the courts to ensure that investigation is fair and
does not in any way hamper the freedom of an individual except in
accordance with law. Equally enforceable canon of the criminal
law is that the high responsibility lies upon the investigating
agency not to conduct an investigation in tainted and unfair
manner. The investigation should not prima facie be indicative
of a biased mind and every effort should be made to bring the
guilty to law as nobody stands above law dehors his position and
influence in the society.
5. A.V. Bellarmin v. V. Santhakumaran Nair, 2015 SCC OnLine
Mad 10358 (Madras High Court)
21. A bias attributed on the part of the investigator may lead to a
deception leading to injustice. A duty is imposed upon the
investigator to give an impression that it has been done without
an element of unfairness or ulterior motive. He must dispel a
possible suspicion to the genuineness of the investigation done.
An attempt of an investigation officer is to make a genuine
endeavour to bring out the truth.
6. Mohan Lal v. State of Punjab, (2018) 17 SCC 627 (3 Judges)
17. In a criminal prosecution, there is an obligation cast on the
investigator not only to be fair, judicious and just during
investigation, but also that the investigation on the very face of it
must appear to be so, eschewing any conduct or impression
which may give rise to a real and genuine apprehension in the
mind of an accused and not mere fanciful, that the investigation
was not fair. In the circumstances, if an informant police official
in a criminal prosecution, especially when carrying a reverse
burden of proof, makes the allegations, is himself asked to
investigate, serious doubts will naturally arise with regard to his
fairness and impartiality. It is not necessary that bias must
actually be proved. It would be illogical to presume and contrary
to normal human conduct, that he would himself at the end of the
investigation submit a closure report to conclude false implication
with all its attendant consequences for the complainant himself.
The result of the investigation would therefore be a foregone
conclusion.
30. In view of the conflicting opinions expressed by different two-
Judge Benches of this Court, the importance of a fair investigation
from the point of view of an accused as a guaranteed
constitutional right under Article 21 of the Constitution of India, it
is considered necessary that the law in this regard be laid down
with certainty. To leave the matter for being determined on the
individual facts of a case, may not only lead to a possible abuse of
powers, but more importantly will leave the police, the accused,
the lawyer and the courts in a state of uncertainty and confusion
which has to be avoided. It is therefore held that a fair
investigation, which is but the very foundation of fair trial,
necessarily postulates that the informant and the investigator must
not be the same person. Justice must not only be done, but must
appear to be done also. Any possibility of bias or a predetermined
conclusion has to be excluded. This requirement is all the more
imperative in laws carrying a reverse burden of proof.
III. The law, however, frowns upon and prohibits any abdication by the State of its role in
the matter at each of the stages and, in fact, does not recognise the right of a third
party/stranger to participate or even to come to the aid of the State at any of the
stages.
Sr. No. Relevant Para Pg. No.
7. Subramanian Swamy v. Raju, (2013) 10 SCC 465 (3 Judges)
8. The administration of criminal justice in India can be divided
into two broad stages at which the machinery operates. The first
is the investigation of an alleged offence leading to prosecution
and the second is the actual prosecution of the offender in a
court of law. The jurisprudence that has evolved over the
decades has assigned the primary role and responsibility at both
stages to the State though we must hasten to add that in certain
exceptional situations there is a recognition of a limited right in
a victim or his family members to take part in the process,
particularly, at the stage of the trial. The law, however, frowns
upon and prohibits any abdication by the State of its role in the
matter at each of the stages and, in fact, does not recognise the
right of a third party/stranger to participate or even to come to
the aid of the State at any of the stages. Private funding of the
investigative process has been disapproved by this Court
in Navinchandra N. Majithia v. State of Meghalaya [(2000) 8 SCC
323 : 2000 SCC (Cri) 1510] and the following observations amply
sum up the position: (SCC p. 329, para 18)
8. The Karnataka Lokayukta v. Principal Secretary, WRIT
PETITION NO. 12733 of 2021
13. Here, the issue is at hand is the locus of the Lokayukta to
challenge the decision of the cabinet, which is not the case in the
aforesaid Division Bench. In terms of the judgments rendered by
the Apex Court as afore-quoted and the statutory frame work, it
cannot but be held that the Lokayukta has no locus to challenge
the decision of the Cabinet. If the petitioner has no locus to file a
writ petition against the decision of the Cabinet, the other
grounds urged need not be considered.
14. Wherefore, the petition by the Lokayuktha is dismissed on
account of lack of locus, as they are not, and cannot be the
person aggrieved.
9. Simranjit Singh Mann v. Union Of India And Another, AIR
1993 SC 280
8. More apposite is the view expressed by a Division Bench of this
Court in Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305. That
was a public interest litigation for quashing an FIR lodged by the
CBI on January 22, 1990 based on the core allegation that certain
named and unnamed persons had entered into a criminal
conspiracy in pursuance whereof they had secured illegal
gratification of crores of rupees from Bofors, a Swiss
Company, through their agents as a motive or reward. The CBI
had moved an application before the learned Judge, Delhi, for the
issuance of a letter rogatory to the Swiss authorities for assistance
in conducting an investigation, which request was conceded. An
advocate, Shri Harinder Singh Chowdhary, filed a criminal
revision application before the High Court of Delhi for quashing
the FIR and the letter rogatory on certain grounds. Several
questions of law and fact were raised in support of the challenge.
The High Court came to the conclusion that the said third party
litigant had no ‘locus standi’ to maintain the action and so also
the interveners had no right to seek impleadment/intervention in
the said proceeding. However, the learned Judge took suo motu
cognizance of the matter and for reasons stated in his order
directed issue of show cause notice to the CBI and the State why
the FIR should not be quashed. On appeal, this Court came to
the conclusion that the learned Judge in the High Court was
right in holding that the advocate litigant, as well as the
interveners, had no ‘locus standi'… “Even if there are million
questions of law to be deeply gone into and examined in a
criminal case of this nature registered against specified accused
persons, it is for them and them alone to raise all such questions
and challenge the proceedings initiated against them at the
appropriate time before the proper forum and not for third
parties under the garb of public interest litigants.” (emphasis
supplied) In that case, besides the advocate litigant, certain
political parties like the Janata Dal, the CPI (Marxist), the Indian
Congress (Socialist) and one Dr. P. Nalla Thampy Thera also
approached this Court questioning the High Court’s rejection of
their request for impleadment/intervention. It was in this context
that this Court was required to examine the question whether third
parties had any ‘locus standi' in criminal proceedings and
answered the same as stated above. This decision clearly
negatives the submission made by Mr. Sodhi in support of the
maintainability of this petition. We are, however, in respectful
agreement with the view expressed in the observations extracted
hereinbefore.”
IV. Withdrawal of consent to initiate an investigation is not final and it may be
granted in any specific offence in future at any point of time or can be
withdrawn.
Sr. No. Relevant Para Pg. No.
10. Kunga Nima Lepcha & Ors. v. State of Sikkim & Ors.,
SIKKIM HC, W.P. (C) No. 20 of 2015
41. In the light of the aforestated well-settled principles of law, I
have no hesitation to hold that the State Government has power
to give consent under the valid provision of law and also to
withdraw the same. Withdrawal of consent to initiate an
investigation is not final and it may be granted in any specific
offence in future at any point of time or can be withdrawn…
V. In the instant case, as FIRs had already been registered by the State police and
notifications issued in the year 2015 did not give a general power to the CBI to
register cases apart from the FIRs specified in the notifications, the question of
prospective operation of notification withdrawing consent would not arise. A
clear distinction can be drawn in this regard vis-à-vis the notifications issued
in Dorji's case. In the instant case, consent of State of Punjab was in respect of
specific FIRs and in fact amounted to transfer of investigation from one
investigating agency to another.
Sr. No. Relevant Para Pg. No.
11. Charanjit Singh and Ors. v. State of Punjab and Ors., CWP
No. 23285 of 2018, Punjab and Haryana High Court
26….In the counter affidavit filed by the Govt. of India, a stand
was taken that withdrawal of consent by State Govt. had caused
grave injustice to the investigation conducted by the CBI creating
impediment in its way for filing report under section 173 of CrPC.
Govt. of India also submitted that process once initiated ought not
to be stalled and investigation must be allowed to reach its logical
conclusion. Thus there was no scope of withdrawing the consent
once granted. In other words, Govt. of India supported the plea of
Kazi Lehndum Dorji, the petitioner therein. After consideration of
the entire issue, Hon'ble Supreme Court allowed the writ petition
holding that the notification withdrawing the consent would
operate prospectively and not apply to cases which were pending,
thus permitting the CBI to file its report under section 173 CrPC
on the basis of investigation conducted by it.
27. It appears that the facts of instant care are on different footing.
Firstly, section 6 notification issued in Dorji's case (supra) was
in respect of class of cases extending jurisdiction of CBI in
respect of certain offences all over the State of Sikkim. In view of
vesting of this power in CBI, it registered FIRs on its own under
the Prevention of Corruption Act against a former Chief
Minister. This was by virtue of the amplitude of the general
notifications issued under section 6 empowering the CBI to
investigate certain offences in relation to crimes under IPC,
Prevention of Corruption Act and some other enactments
committed anywhere in State of Sikkim. These notifications were
issued during the period from 1976 to 1984.
In the instant case, however, FIRs were registered by the State
police prior to the notification(s) handing over the investigation of
specific FIRs to CBI. In other words, consent was accorded only
in respect of investigation pertaining to FIRs….
27. During pendency of investigation pursuant to above FIRs, a
decision was taken by the State Govt. to invoke provisions
of section 6 of the DSPE Act and handover the same to CBI. As the
entrustment was made to CBI at initial stage, it was expected that
the same would proceed swiftly. However, this did not happen.
Another notification was issued in the year 2018 to hand-over the
investigation of two other FIRs to CBI. Before CBI could proceed
further, impugned decision was taken by the Vidhan Sabha to take
back investigation of all cases and two notifications of even date
i.e. 06.09.2018 were issued.
30. On the other hand in Dorji's case, it appears the investigation
was nearing culmination. For this reason, Hon'ble the Supreme
Court permitted CBI to file its report under section 173 CrPC. It
needs to be emphasized that in Dorji's case, FIRs were registered
by the CBI suo motu by virtue of general power vested in it by
various notifications….
31. As regards observations made in the aforesaid para (Para 16
of Dorji’s case) regarding withdrawal of consent to operate
prospectively, same were in context of entire class of offences
mentioned in the notifications issued from time to time; meaning
thereby, the cases which had been registered by the CBI of its
own in view of the general power vested in it over entire State of
Sikkim, investigation would continue with it. However, it would
be prevented from registering any further FIRs in view of
withdrawal of consent by notification dated 7.1.1987. It was thus
held that the said notification dated 7.1.1987 would not preclude
the CBI from submitting its report under section 173 CrPC before
the competent court. So far as prospective operation of the
notification was concerned, it remained unaffected. In view this,
the court did not feel it necessary to go into the question whether
provisions of Section 21 of General Clauses Act could be invoked
in relation to consent given under section 6 of the Act.
32. In the instant case, as FIRs had already been registered by
the State police and notifications issued in the year 2015 did not
give a general power to the CBI to register cases apart from the
FIRs specified in the notifications, the question of prospective
operation of notification withdrawing consent would not arise. A
clear distinction can be drawn in this regard vis-à-vis the
notifications issued in Dorji's case. In the instant case, consent
of State of Punjab was in respect of specific FIRs and in fact
amounted to transfer of investigation from one investigating
agency to another. Present is not a case where this Court has
been called upon to test a situation where State has granted
consent to CBI to register cases on its own in respect of a class of
offences. On the other hand, the notification withdrawing the
consent is pursuant to resolution passed by the Vidhan Sabha
which in clear terms states that the investigation of cases given
to CBI needed to be taken back. Besides, during the course of
hearing, this Court called for the case diary of the CBI and
perused the same. It was evident that investigation in the cases
had hardly made any headway. From the judgment in Dorji's case,
however, it appears that the investigation was nearing culmination
as CBI was permitted to file its final report under section
173 CrPC. Even during the course of hearing of said case, Govt.
of India took a specific stand that withdrawal of investigation had
seriously affected the case as CBI was unable to file its report
under section 173 CrPC. It is evident that the CBI had already
reached a conclusion that the accused therein had acquired assets
disproportionate to their known sources of income and that they
had by corrupt means and abusing their position, caused
pecuniary advantage to private parties and loss to the State
exchequer.
