power of high court
Querist :
Anonymous
(Querist) 09 February 2010
This query is : Resolved
Can High Court under Article 226 order for CBI inquiry in a matter? Is there any recent caselaw in this regard?
Kiran Kumar
(Expert) 09 February 2010
few High Courts entertain the matter under Ar. 226 of Constitution of India, and few would entertain under S.482 Cr.P.C
u better elaborate facts of the case, there have been few guidelines by SC and HCs in this regard.
and also read Delhi Police Establishment Act.
it will help u in coming to the conclusion.
Devajyoti Barman
(Expert) 09 February 2010
Yes the high court can definitely direct cbi to investigate in a petition filed under article 226 of the constitution of India.
Guest
(Expert) 10 February 2010
Rubabbuddin Sheikh v. State of Gujarat & Ors.
Writ Petition (Crl.) No. 6 of 2007
You can see this judgement in AIR 2007 SC OR SCC 2007........
A. Constitution of India — Art. 32 — Writ petition — Direction for investigation by `CBI into the alleged abduction and fake encounter of the brother of the writ petitioner Sohrabuddin by the Gujarat Police Authorities — There is specific remedy provided under the Code of Criminal Procedure, 1973, this Court cannot again direct the CBI to investigate into the offence alleged by allowing a writ petition under Art. 32 of the Constitution — Submission thereto — Although the charge sheet was submitted but considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, the investigation concluded in the present case cannot be said to be satisfactorily held — In order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials of the State of Gujarat — Police authorities of the State are directed to hand over the records of the present case to the CBI Authorities within a fortnight from this date and thereafter the CBI Authorities shall take up the investigation and complete the same within six months from the date of taking over the investigation from the State police authorities — CBI Authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy
B. Constitution of India — Art. 32 — Writ petition — Direction for investigation by `CBI into the alleged abduction and fake encounter of the brother of the writ petitioner Sohrabuddin by the Gujarat Police Authorities — Not open for this court under Art. 32 of the Constitution to direct the CBI Authorities or any other independent agency to investigate into the matter when the police authorities are proceeding with the trial and charge sheet has already been submitted — Submission thereto — It would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility, however, faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody — When police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI authorities would be an appropriate authority to investigate the case
C. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Registration of an offence and investigation by CBI into alleged encounter of one T, a close associate of Sohrabuddin, who was allegedly used to locate and abduct Sohrabuddin and his wife Kausarbi, and was thus a material witness against Police personnel — Fit case for handing over investigation to CBI from the State of Gujarat — Submission thereto — From the charge sheet, it also appears that the third person was `sent somewhere — However, it appears that the literal translation of the Charge-sheet in Gujarati would mean that he was `anyhow made to disappear — An attempt was made by the investigating agency of the State of Gujarat to mislead the Court
D. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Registration of an offence and investigation by CBI into alleged encounter of one T, a close associate of Sohrabuddin, who was allegedly used to locate and abduct Sohrabuddin and his wife Kausarbi, and was thus a material witness against Police personnel — Fit case for handing over investigation to CBI from the State of Gujarat — Submission thereto — That after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency — Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI — It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI
E. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — After the charge sheet was submitted in court, it was not open to the court to hand over the investigation to the CBI or any other independent agency — Contention thereto — Reliance on Vineet Narayan & Ors. v. Union of India [1996 (2) SCC 199] — In Vineet Narayan it was alleged that the CBI and the Revenue Authorities had failed to perform their duties and legal obligations inasmuch as the investigation into “Jain Diaries†seized in raids conducted by the CBI is concerned — From that decision, it is clear that the CBI and the Revenue Authority had failed to perform their duties and legal obligations inasmuch as the investigation into `Jain Diaries seized in raids conducted by the CBI was concerned — Union of India vs. Sushil Kumar Modi was rendered following the decision in the case of Vineet Narayan — That the investigation at this stage cannot be handed over to the CBI Authorities or any other independent agency — Unacceptable — Decisions were rendered when CBI enquiries have already been made and at that stage this Court held that after the charge sheet is submitted, the CBI authorities would not be able to approach this Court or the High Court to have issuance of directions from this Court — Power of the court to monitor the investigation after the charge sheet was filed — Decisions distinguished
F. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Writ of habeas corpus to produce Kausarbi, the sister-in- law of writ petitioner — Fit case for handing over the investigation to CBI from the State of Gujarat — Submission thereto — Motives for killings — Attributed as “name, fame and promotionâ€, in case of Sohrabuddin s death and “destruction of evidenceâ€, in Kausarbi s case — There are large and various discrepancies in reports and the investigation conducted by the police authorities of the State of Gujarat and also the charge sheet filed by the State Investigating Agency cannot be said to have run in a proper direction — It appears from the charge sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabbuddin and two others were picked up by Gujarat Police Personnel, accompanied by seven personnel of Hyderabad Police — It also appears from the Chargesheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused — They were not even among the people who were listed as accused — An honest investigating agency cannot plead their inability to identify seven personnel of the Police Force of the State
G. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Writ of habeas corpus to produce Kausarbi, the sister-in-law of writ petitioner — Fit case for handing over the investigation to CBI from the State of Gujarat — Submission thereto — Motives for killings — Attributed as “name, fame and promotionâ€, in case of Sohrabuddin s death and “destruction of evidenceâ€, in Kausarbi s case — Eight Action Taken Reports filed by the police authorities of the State of Gujarat — Killing of Kausarbi — It was only stated that she was seen in the company of the ATS personnel, on 26th of November, 2005 and her dead body was taken for cremation on 29th of November, 2005 — It is not clear from the as to what happened to Kausarbi in the meanwhile, nor is the mode of killing stated — The investigating agency of the State of Gujarat has made a false excuse for not conducting the NARCO Analysis of the accused because a judgment of this Court is pending on the matter, though the Sessions Judge had permitted such NARCO Analysis — It is merely an excuse for not being able to conduct the investigation relating to mode and manner of killing of Kausarbi
H. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Call records — Evident that they had not been analyzed properly, particularly the call data relating to three senior police officers either in relation to Sohrabbuddin s case or in Prajapati s case — It also appears from the charge sheet as well as from the eight Action Taken Reports that the motive, which is very important in the investigation reports was not properly investigated into as to the reasons of their killing — The motive of conspiracy cannot be merely fame and name — No justification can be found for the investigating officer Ms. Johri walking out the investigation with respect to Tulsiram Prajapati s death without even informing this Court — That apart, the charge sheet was filed in the court of Chief Metropolitan Magistrate, Ahmedabad against 13 — Factual discrepancies appearing in eight Action Taken Reports and from the charge sheet — Police authorities of the State of Gujarat had failed to carry out a fair and impartial investigation — Discussion among the accused officers concerning Sohrabbuddin was meant to obfuscate the enquiry
I. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Report of police officer on completion of investigation — Investigation of crime was carried out de hors the mandate contained in the CrPC and particularly Chapter XII containing Ss. 154-176 of the Code — There had been no fresh FIR filed despite primary investigation — FIR dated 16th of November, 2005 which was filed following the alleged encounter was a fabricated one and, therefore, it could not have formed the basis of the real investigation to find the truth — Ms. Geeta Johri herself in her report dated 7th of December, 2006 had conceded that ATS was not a regular police station in which FIR should have been filed
J. Constitution of India — Art. 32 — Writ petition — Criminal Procedure Code, 1973 — S. 173(8) — Action Taken Reports submitted by the State Police Authorities — State Police Authorities of the Gujarat had to take help from the other police officials of other States, namely, Andhra Pradesh and Rajasthan — If the investigation is transferred to the CBI Authorities it would be fair and proper that the other State police officials should also help the CBI Authorities in coming to a final conclusion on the allegations made by the writ petitioner and also on the offences alleged to have committed by some of them
