Madhya Pradesh High Court
Rambabu Singh Tomar Dead Through Smt. … vs The State Of Madhya Pradesh on 9 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:12033
1 WA-186-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
ON THE 9 th OF APRIL, 2026
WRIT APPEAL No. 186 of 2026
RAMBABU SINGH TOMAR (DEAD) THROUGH LR SMT. GUDDI
DEVI (DAUGHTER-IN-LAW)
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Chetan Kanungo - Advocate for appellant.
Shri Ravindra Dixit - Government Advocate for the State.
ORDER
Per: Justice Gurpal Singh Ahluwalia
1. This writ appeal under Section 2(1) of the Madhya Pradesh Uchcha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, has been filed
against the order dated 19.11.2025, passed by learned Single Judge in W.P.
No.15661/2023, by which the learned Single Judge has directed the
Superintendent of Police to look into the matter in relation to the FIR bearing
Crime No.262/2004 registered at Police Station Porsa, District Morena.
2 . The first paragraph of subject matter in brief, which has been
mentioned by the appellant, reads as under :
“The present appeal arises from a case where time itself
has become an instrument of injustice, and where the
constitutional promise of protection of life and liberty
has failed not once, but repeatedly –first at the handsSignature Not Verified
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of the police, then by prolonged State apathy, and
finally by a mechanical judicial disposal. ”
3. In view of the averment made by the petitioner/appellant that he is
a victim of mechanical judicial disposal, counsel for the appellant was given
a warning that, in case if the appellant fails to justify that he is a victim of
mechanical judicial disposal, then the appellant may suffer contempt
proceedings.
4 . Faced with such a situation, counsel for appellant tendered his
apology for making a wild allegation by alleging that the appellant is a
victim of mechanical judicial disposal and made a prayer for withdrawal of
the said pleadings.
5. Accordingly, counsel for appellant was permitted to withdraw the
first paragraph of the subject matter in brief, and the same shall be treated as
nonest.
6. It is the case of the appellant that on 03/09/2004, the son of
appellant, who was a 29-year-old Constable working in the Border Security
Force, came home on sanctioned leave to perform religious rites. It is the
case of the appellant that his son was shot dead by local police personnel
near Mahavir Temple at village Dhaneta, District Morena. The State
projected the said incident as an encounter, which was immediately contested
by the eyewitnesses, who consistently maintained that Sobran Singh was
unarmed, was not a criminal, and was shot dead by the police. An FIR was
registered against the police officers under Sections 302 r/w Section 34 of
IPC. It is the case of the appellant/petitioner that the investigation was not
done in a Constitutional manner, but it was the result of institutional
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paralysis. The investigation remained inconclusive and culminated only in
the year 2015-16, and a closure report was filed giving a clean chit to all the
accused police persons, attributing the registration of the FIR under alleged
pressure of the villagers.
7. A notice was given to the appellant and, accordingly, the Chief
Judicial Magistrate rejected the closure report on the ground that it has not
been filed after obtaining consent of the senior police officers, and returned
the closure report for filing of same by competent person. Thereafter, the
entire writ appeal has been drafted in the form of a novel. It is the case of the
appellant that when the police failed to file the charge sheet even after
rejection of the closure report, then he invoked the extraordinary jurisdiction
of this Court under Article 226 of the Constitution of India, not only for
compensation but also for a fair investigation by an independent agency. The
said writ petition has been disposed of by the writ Court by directing the
Superintendent of Police to look into the matter in relation to the FIR bearing
Crime No. 262/2004.
8 . Challenging the order passed by learned Single Judge, it is
submitted by counsel for appellant that, after rejection of the closure report,
it was obligatory on the part of the police to file the charge sheet. Twenty-
one long years have passed; therefore, now the investigation should be
handed over to an independent agency. Police protection for the family
members of the appellant was also sought, and compensation of Rs.25 lakhs
was also demanded from the police, apart from imposition of exemplary
costs on the respondents for dereliction of duty and failure to investigate the
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matter in a fair, independent, and impartial manner on timely basis.
Therefore, it is the contention of the appellant that the learned Single Judge
should not have disposed of the writ petition by giving a direction to the
Superintendent of Police to look into the matter.
9. Considered the submissions made by counsel for appellant.
10. In the writ petition, the appellant had filed a copy of FIR bearing
Crime No.262/2004 registered at Police Station Porsa, District Morena for
offences under Sections 302/34 of IPC. The said FIR was lodged against
Ashok Dixit, Mahendra Singh Sikarwar, Pancham, Vikrant Barua, Ramveer
Gurjar and other police personnel. This FIR was lodged by the appellant,
Rambabu Singh Tomar.
11. It is not out of place to mention here that the appellant was not the
eyewitness, and in the FIR it was specifically mentioned that Ran Singh had
witnessed the incident and he narrated the incident of cold-blooded murder
by the police to the appellant.
12. On 21/10/2015, the police filed the closure report. A notice was
issued to the appellant, and accordingly, his statement was also recorded by
the CJM, Morena in MJCR No.389/2016. In that statement also, it was
narrated by the appellant that he was informed by Ran Singh about the
incident. However, the appellant did not examine Ran Singh in support of his
objection. Thus, it is clear that not only the FIR was based on the so-called
information given by Ran Singh, but even Ran Singh was not examined by
the appellant when he was granted opportunity by the Court to support his
objection. Thereafter, it appears that the closure report was not accepted by
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CJM, Morena, and by order dated 27/03/2021, it was held by CJM Morena
that the expunge report/closure report has to be filed by the Superintendent
of Police, whereas the closure report has not been filed by the
Superintendent of Police, and accordingly, the same was returned back to the
police to file the closure report afresh through a competent police officer.
13. Thus, it is clear that the closure report/expunge report which was
filed by the police was not considered by the CJM on merits, and it was not
dismissed on merits, but it was returned back with a direction to file a fresh
closure report by the competent authority. Thereafter, it appears that the
police again went in hibernation and did not take any steps. Accordingly, the
petitioner filed W.P. No.15661/2023 on 05/07/2023 for the reliefs mentioned
in the said petition.
14. The respondents filed their return in the writ petition along with a
letter written by SHO, Police Station Porsa, District Morena, to the SDO on
20/02/2025. In this letter, it is mentioned that on 15/01/2025, an
expunge/closure report registered as MJCR No.36/2025 has been filed before
the CJM, District Morena through the Superintendent of Police. Thus, it is
clear that the expunge report or closure report is still pending before the
Court of CJM, Morena, and it is not the case of the appellant that the said
report has been accepted or rejected or that further investigation has been
directed.
15. If the facts of this case are considered, then it is clear that not only
the FIR was lodged by the appellant on the basis of hearsay information, but
even his objection before the CJM, Morena was also based on hearsay
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information, and Ran Singh, who was alleged to have witnessed the incident,
was not examined by the appellant before the CJM, Morena in support of his
objection.
16. Since the appellant/petitioner had alleged that he is a victim of
mechanical judicial disposal, therefore, counsel for appellant was directed to
justify the said stand.
17. It was fairly conceded by Shri Chetan Kanungo that once a closure
report is filed, then the concerned Magistrate has three options, i.e., (i) to
accept the closure report, (ii) to reject the closure report, or (iii) after
pointing out the lapses, the Court can direct for further investigation. He
fairly conceded that the closure report was neither accepted nor rejected, but
it was returned on the ground that it was not presented by an authorized
officer, as provided under Police Regulation No. 737.
18. Counsel for the appellant could not point out as to how the order
passed by the CJM, Morena was incorrect. Therefore, the averment made by
the appellant that he is a victim of mechanical judicial disposal is
contemptuous, defamatory, and contrary to law, but since the appellant has
already withdrawn the aforesaid allegation, therefore, no further observation
in that regard is required, except that the appellant must remain vigilant in
future in making such allegations, otherwise he shall be dealt with
appropriately, and in future no permission would be granted to withdraw any
baseless allegation made against the judiciary.
19. It appears that the factum of pendency of the closure
report/expunge report before the CJM, Morena was not brought to the notice
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of the learned Single Judge at the time of hearing of W.P. No.15661/2023.
The Supreme Court in Abhinandan Jha & Others vs. Dinesh Mishra ,
reported in AIR 1968 SC 117 , has held as under :
“15. Then the question is, what is the position, when the
Magistrate is dealing with a report submitted by the
police, under Section 173, that no case is made out for
sending up an accused for trial, which report, as we
have already indicated, is called, in the area in question,
as a ‘final report’? Even in those cases, if the Magistrate
agrees with the said report, he may accept the final
report and close the proceedings. But there may be
instances when the Magistrate may take the view, on a
consideration of the final report, that the opinion
formed by the police is not based on a full and complete
investigation, in which case, in our opinion, the
Magistrate will have ample jurisdiction to give
directions to the police, under Section 156(3), to make a
further investigation. That is, if the Magistrate feels,
after considering the final report, that the investigation
is unsatisfactory, or incomplete, or that there is scope
for further investigation, it will be open to the
Magistrate to decline to accept the final report and
direct the police to make further investigation, under
Section 156(3). The police, after such further
investigation, may submit a charge-sheet, or, again
submit a final report, depending upon the further
investigation made by them. If, ultimately, the
Magistrate forms the opinion that the facts, set out in
the final report, constitute an offence, he can take
cognizance of the offence, under Section 190(1)(b),
notwithstanding the contrary opinion of the police,
expressed in the final report.”
20. Thus, once the closure report is pending before the concerned
Magistrate, then only he has the authority or power to decide the same after
giving an opportunity to the complainant to file objections. There was no
need for the learned Single Judge to direct the Superintendent of Police,
Morena, to look into the matter, because if the Magistrate comes to the
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conclusion that the expunge report/closure report which has been filed is not
complete or there are certain lapses requiring further investigation, then
further investigation can be directed by the Magistrate.
21. So far as the handing over of the investigation to an independent
agency is concerned, the law is very clear on that point. The investigation
cannot be handed over to an independent agency merely on the saying of the
complainant.
22. It is well established principle of law that even after charge sheet is
filed the matter can be transferred to CBI but the same has to be done in
exceptional cases.
23. The Supreme Court in the case of State of Punjab v. CBI
and others, reported in (2011) 9 SCC 182 has held as under :-
“22. Section 482 CrPC, however, states that nothing in
CrPC shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as is
necessary to give effect to any order under CrPC or to
prevent the abuse of the process of any court or
otherwise to secure the ends of justice. Thus, the
provisions of CrPC do not limit or affect the inherent
powers of the High Court to make such orders as may
be necessary to give effect to any order of the court or
to prevent the abuse of any process of the court or
otherwise to secure the ends of justice. The language of
sub-section (8) of Section 173 CrPC, therefore, cannot
limit or affect the inherent powers of the High Court to
pass an order under Section 482 CrPC for fresh
investigation or reinvestigation if the High Court is
satisfied that such fresh investigation or reinvestigation
is necessary to secure the ends of justice.
23. We find support for this conclusion in the following
observations of this Court in Mithabhai Pashabhai Patel
v. State of Gujarat [(2009) 6 SCC 332 : (2009) 2 SCC
(Cri) 1047] cited by Mr Dhavan: (SCC p. 337, paras 13
& 15)Signature Not Verified
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“13. It is, however, beyond any cavil that
‘further investigation’ and ‘reinvestigation’
stand on different footing. It may be that in a
given situation a superior court in exercise of
its constitutional power, namely, under
Articles 226 and 32 of the Constitution of
India could direct a ‘State’ to get an offence
investigated and/or further investigated by a
different agency. Direction of a
reinvestigation, however, being forbidden in
law, no superior court would ordinarily issue
such a direction. Pasayat, J. in Ramachandran
v. R. Udhayakumar [(2008) 5 SCC 413 :
(2008) 2 SCC (Cri) 631] opined as under:
(SCC p. 415, para 7)
‘7. At this juncture it would be
necessary to take note of Section 173 of the
Code. From a plain reading of the above
section it is evident that even after
completion of investigation under sub-section
(2) of Section 173 of the Code, the police has
right to further investigate under sub-section
(8), but not fresh investigation or
reinvestigation.’
A distinction, therefore, exists between a
reinvestigation and further investigation.
* * *
15. The investigating agency and/or a court
exercise their jurisdiction conferred on them
only in terms of the provisions of the Code.
The courts subordinate to the High Court
even do not have any inherent power under
Section 482 of the Code of Criminal
Procedure or otherwise. The precognizance
jurisdiction to remand vested in the
subordinate courts, therefore, must be
exercised within the four corners of the
Code.”
24. It is clear from the aforesaid observations of this
Court that the investigating agency or the court
subordinate to the High Court exercising powers under
CrPC have to exercise the powers within the four
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corners of CrPC and this would mean that the
investigating agency may undertake further
investigation and the subordinate court may direct
further investigation into the case where charge-sheet
has been filed under sub-section (2) of Section 173
CrPC and such further investigation will not mean fresh
investigation or reinvestigation. But these limitations in
sub-section (8) of Section 173 CrPC in a case where
charge-sheet has been filed will not apply to the
exercise of inherent powers of the High Court under
Section 482 CrPC for securing the ends of justice.
25. This position of law will also be clear from the
decision of this Court in Nirmal Singh Kahlon v. State
of Punjab [(2009) 1 SCC 441 : (2009) 1 SCC (Cri) 523]
cited by Mr Raval. The facts of that case are that the
State Police had investigated into the allegations of
irregularities in the selection of a large number of
candidates for the post of Panchayat Secretaries and had
filed a charge- sheet against Nirmal Singh Kahlon. Yet
the High Court in a PIL under Article 226 of the
Constitution passed orders on 7-5-2003 directing
investigation by CBI into the case as it thought that such
investigation by CBI was “not only just and proper but a
necessity”. Nirmal Singh Kahlon challenged the
decision of the High Court before this Court contending
inter alia that sub-section (8) of Section 173 CrPC did
not envisage an investigation by CBI after the filing of a
charge-sheet and the Court of Magistrate alone has the
jurisdiction to issue any further direction for
investigation before this Court.
26. Amongst the authorities cited on behalf of Nirmal
Singh Kahlon was the decision of this Court in Vineet
Narain case [(1998) 1 SCC 226 : 1998 SCC (Cri) 307]
that once the investigation is over and charge-sheet is
filed the task of the monitoring court comes to an end.
Yet this Court sustained the order of the High Court
with inter alia the following reasons: (Nirmal Singh
Kahlon case [(2009) 1 SCC 441 : (2009) 1 SCC (Cri)
523] , SCC pp. 465-66, para 63)
“63. The High Court in this case was not
monitoring any investigation. It only desired
that the investigation should be carried out by
an independent agency. Its anxiety, as is
evident from the order dated 3-4-2002, was
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to see that the officers of the State do not get
away. If that be so, the submission of Mr Rao
that the monitoring of an investigation comes
to an end after the charge-sheet is filed, as
has been held by this Court in Vineet Narain
[(1998) 1 SCC 226 : 1998 SCC (Cri) 307]
a n d M.C. Mehta (Taj Corridor Scam) v.
Union of India [(2007) 1 SCC 110 : (2007) 1
SCC (Cri) 264] , loses all significance.”
27. Though the decision of this Court in Nirmal Singh
Kahlon v. State of Punjab [(2009) 1 SCC 441 : (2009) 1
SCC (Cri) 523] is in the context of the power of the
High Court under Article 226 of the Constitution, the
above observations will equally apply to a case where
the power of the High Court under Section 482 CrPC is
exercised to direct investigation of a case by an
independent agency to secure the ends of justice.”
24. The Supreme Court in the case of Dharam Pal v. State of
Haryana and others, reported in (2016) 4 SCC 160 has held as under :-
“2. Cry for fair trial by the accused as well as by the
victim sometimes remains in the singular and
individualistic realm, may be due to the perception
gatherable from the facts that there is an attempt to
contest on the plinth of fairness being provoked by
some kind of vengeance or singularity of “affected
purpose”; but, irrefutably a pronounced and pregnant
one, there are occasions when the individual cry is not
guided by any kind of revengeful attitude or anger or
venom, but by the distressing disappointment faced by
the grieved person in getting his voice heard in proper
perspective by the authorities who are in charge of
conducting investigation and the frustration of a victim
gets more aggravated when he is impecunious, and
mentally shattered owing to the situation he is in and
thereby knows not where to go, the anguish takes the
character of collective agony. When the investigation,
as perceived by him, is nothing but an apology for the
same and mirrors before him the world of
disillusionment that gives rise to the scuffle between the
majesty and sanctity of law on one hand and its abuses
on the other, he is constrained to seek intervention of
the superior courts putting forth a case that his cry is notSignature Not Verified
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motivated but an expression of collective mortification
and the intention is that justice should not be attenuated.
“24. Be it noted here that the constitutional courts can
direct for further investigation or investigation by some
other investigating agency. The purpose is, there has to
be a fair investigation and a fair trial. The fair trial may
be quite difficult unless there is a fair investigation. We
are absolutely conscious that direction for further
investigation by another agency has to be very sparingly
issued but the facts depicted in this case compel us to
exercise the said power. We are disposed to think that
purpose of justice commands that the cause of the
victim, the husband of the deceased, deserves to be
answered so that miscarriage of justice is avoided.
Therefore, in this case the stage of the case cannot be
the governing factor.
25. We may further elucidate. The power to order fresh,
de novo or reinvestigation being vested with the
constitutional courts, the commencement of a trial and
examination of some witnesses cannot be an absolute
impediment for exercising the said constitutional power
which is meant to ensure a fair and just investigation. It
can never be forgotten that as the great ocean has only
one taste, the taste of salt, so does justice have one
flavour, the flavour of answering to the distress of the
people without any discrimination. We may hasten to
add that the democratic set-up has the potentiality of
ruination if a citizen feels, the truth uttered by a poor
man is seldom listened to. Not for nothing it has been
said that sun rises and sun sets, light and darkness,
winter and spring come and go, even the course of time
is playful but truth remains and sparkles when justice is
done. It is the bounden duty of a court of law to uphold
the truth and truth means absence of deceit, absence of
fraud and in a criminal investigation a real and fair
investigation, not an investigation that reveals itself as a
sham one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful
investigation is imperative. If there is indentation or
concavity in the investigation, can the “faith” in
investigation be regarded as the gospel truth? Will it
have the sanctity or the purity of a genuine
investigation? If a grave suspicion arises with regard to
the investigation, should a constitutional court close itsSignature Not Verified
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hands and accept the proposition that as the trial has
commenced, the matter is beyond it? That is the “tour
de force” of the prosecution and if we allow ourselves
to say so it has become “idée fixe” but in our view the
imperium of the constitutional courts cannot be stifled
or smothered by bon mot or polemic. Of course, the
suspicion must have some sort of base and foundation
and not a figment of one’s wild imagination. One may
think an impartial investigation would be a nostrum but
not doing so would be like playing possum. As has been
stated earlier, facts are self-evident and the grieved
protagonist, a person belonging to the lower strata. He
should not harbour the feeling that he is an “orphan
under law”.
25. The Supreme Court in the case of Bharati Tamang v. Union
of India, reported in (2013) 15 SCC 578 has held as under :-
“41. From the various decisions relied upon by the
petitioner counsel as well as by respondents’ counsel,
the following principles can be culled out.
41.1. The test of admissibility of evidence lies in its
relevancy.
41.2. Unless there is an express or implied
constitutional prohibition or other law, evidence placed
as a result of even an illegal search or seizure is not
liable to be shut out.
41.3. If deficiency in investigation or prosecution is
visible or can be perceived by lifting the veil which try
to hide the realities or covering the obvious deficiency,
Courts have to deal with the same with an iron hand
appropriately within the framework of law.
41.4. It is as much the duty of the prosecutor as of the
Court to ensure that full and material facts are brought
on record so that there might not be miscarriage of
justice.
41.5. In order to ensure that the criminal prosecution is
carried on without any deficiency, in appropriate cases
this Court can even constitute Special Investigation
Team and also give appropriate directions to the Central
and State Governments and other authorities to give all
required assistance to such specially constituted
investigating team in order to book the real culprits and
for effective conduct of the prosecution.
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41.6. While entrusting the criminal prosecution with
other instrumentalities of State or by constituting a
Special Investigation Team, the High Court or this
Court can also monitor such investigation in order to
ensure proper conduct of the prosecution.
41.7. In appropriate cases even if the charge- sheet is
filed it is open for this Court or even for the High Court
to direct investigation of the case to be handed over to
CBI or to any other independent agency in order to do
complete justice.
41.8. In exceptional circumstances the Court in order to
prevent miscarriage of criminal justice and if considers
necessary may direct for investigation de novo.”
26. The Supreme Court in the case of Babubhai v. State of Gujarat
and others , reported in (2010) 12 SCC 254 has held as under :-
“37. This Court in K. Chandrasekhar v. State of Kerala
[(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] ,
Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413 :
(2008) 2 SCC (Cri) 631] , Nirmal Singh Kahlon [(2009)
1 SCC 441 : (2009) 1 SCC (Cri) 523] , Mithabhai
Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332 :
(2009) 2 SCC (Cri) 1047] and Kishan Lal v.
Dharmendra Bafna [(2009) 7 SCC 685 : (2009) 3 SCC
(Cri) 611] , SCC p. 693, para 15 has emphasised that
where the court comes to the conclusion that there was a
serious irregularity in the investigation that had taken
place, the court may direct a further investigation under
Section 173(8) CrPC, even transferring the investigation
to an independent agency, rather than directing a
reinvestigation. “Direction of a reinvestigation,
however, being forbidden in law, no superior court
would ordinarily issue such a direction.” (Mithabhai
Pashabhai Patel case [(2009) 6 SCC 332 : (2009) 2 SCC
(Cri) 1047] , SCC p. 337, para 13)
(emphasis supplied)
38. Unless an extraordinary case of gross abuse of
power is made out by those in charge of the
investigation, the court should be quite loathe to
interfere with the investigation, a field of activity
reserved for the police and the executive. Thus, in case
of a mala fide exercise of power by a police officer the
court may interfere. (Vide S.N. Sharma v. Bipen KumarSignature Not Verified
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Tiwari [(1970) 1 SCC 653 : 1970 SCC (Cri) 258 : AIR
1970 SC 786] .)
39. In Kashmeri Devi v. Delhi Admn. [1988 Supp SCC
482 : 1988 SCC (Cri) 864] this Court held that where
the investigation has not been conducted in a proper and
objective manner it may be necessary for the court to
order for fresh investigation with the help of an
independent agency for the ends of justice so that real
truth may be revealed. In the said case, this Court
transferred the investigation to CBI, after coming to the
conclusion that investigation conducted earlier was not
fair.”
27. The Supreme Court in the case of Himanshu Kumar and others v.
State of Chhattisgarh and others, reported in (2023) 12 SCC 592 : 2022 SCC
Online SC 884 has held as under :-
“44. It is now settled law that if a citizen, who is a de
facto complainant in a criminal case alleging
commission of cognizable offence affecting violation of
his legal or fundamental rights against high
Government officials or influential persons, prays
before a Court for a direction of investigation of the said
alleged offence by the CBI, such prayer should not be
granted on mere asking.
45. A Constitution Bench of this Court, in the case of
the State of West Bengal v. Committee for Protection of
Democratic Rights, West Bengal , reported in (2010) 3
SCC 571, has made the following observations pointing
out the situations where the prayer for investigation by
the CBI should be allowed:
“70…. In so far 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 powers 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 situationsSignature Not Verified
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where it becomes necessary to provide
credibility and instil 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.”
(emphasis supplied)
46. In the above decision, it was also pointed out that
the same court in Secretary, Minor Irrigation & Rural
Engineering Services, U.P. v. Sahngoo Ram Arya ,
(2002) 5 SCC 521, had said that an order directing an
enquiry by the CBI should be passed only when the
High Court, after considering the material on record,
comes to the conclusion that such material does
disclose a prima facie case calling for an investigation
by the CBI or any other similar agency.
47. In an appropriate case when the Court feels that the
investigation by the police authorities is not in a proper
direction, and in order to do complete justice in the case
and if high police officials are involved in the alleged
crime, the Court may be justified in such circumstances
to handover the investigation to an independent agency
like the CBI. By now it is well-settled that even after the
filing of the charge sheet the court is empowered in an
appropriate case to handover the investigation to an
independent agency like the CBI.
48. The extraordinary power of the Constitutional
Courts under Articles 32 and 226 respectively of the
Constitution of India qua the issuance of directions to
the CBI to conduct investigation must be exercised with
great caution as underlined by this Court in the case of
Committee for Protection of Democratic Rights, West
Bengal (supra) as adverted to herein above, observing
that although no inflexible guidelines can be laid down
in this regard, yet it was highlighted that such an order
cannot be passed as a matter of routine or merely
because the parties have levelled some allegations
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17 WA-186-2026
against the local police and can be invoked in
exceptional situations where it becomes necessary to
provide credibility and instill confidence in the
investigation or where the incident may have national or
international ramifications or where such an order may
be necessary for doing complete justice and for
enforcing the fundamental rights.
49. We are conscious of the fact that though a
satisfaction of want of proper, fair, impartial and
effective investigation eroding its credence and
reliability is the precondition for a direction for further
investigation or re-investigation, submission of the
charge sheet ipso facto or the pendency of the trial can,
by no means, be a prohibitive impediment. The
contextual facts and the attendant circumstances have to
be singularly evaluated and analyzed to decide the
needfulness of further investigation or re- investigation
to unravel the truth and mete out justice to the parties.
The prime concern and the endeavour of the court of
law should be to secure justice on the basis of true facts
which ought to be unearthed through a committed,
resolved and a competent investigating agency.
50. The above principle has been reiterated in K.V.
Rajendran v. Superintendent of Police, CBCID South
Zone, Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan,
J. 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
exceptional cases where the court finds it
necessary in order to do justice between the
parties and to instil confidence in the public
mind, or where investigation by the State
police lacks credibility and it is necessary for
having “a fair, honest and complete
investigation”, and particularly, when it is
imperative to retain public confidence in the
impartial working of the State agencies. …”
5 1 . Elaborating on this principle, this Court further
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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 instil confidence in the investigation
or where the investigation is prima facie
found to be tainted/biased.”
52. The Court reiterated that an investigation may be
transferred to the CBI only in “rare and exceptional
cases”. 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 made by
the Constitution Bench in the case of Committee for
Protection of Democratic Rights, West Bengal (supra),
that mere allegations against the police do not constitute
a sufficient basis to transfer the investigation.
53. In Romila Thapar v. Union of India, (2018) 10 SCC
753, one of us, A.M. Khanwilkar, J., speaking for a
three-Judge Bench of this Court (Dr. D.Y.
Chandrachud, J. dissenting) noted the dictum in a line
of precedents laying down the principle that the accused
“does not have a say in the matter of appointment of
investigating agency”. In reiterating this principle, this
Court relied upon its earlier decisions in Narmada Bai
v. State of Gujarat , (2011) 5 SCC 79, Sanjiv Rajendra
Bhatt v. Union of India, (2016) 1 SCC 1, E. Sivakumar
v. Union of India, (2018) 7 SCC 365, and Divine
Retreat Centre v. State of Kerala , (2008) 3 SCC
542.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.”
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54. It has been held by this Court in CBI v. Rajesh
Gandhi, 1997 Cri LJ 63, that no one can insist that an
offence be investigated by a particular agency. We fully
agree with the view in the aforesaid decision. An
aggrieved person can only claim that the offence he
alleges be investigated properly, but he has no right to
claim that it be investigated by any particular agency of
his choice.
55. The principle of law that emerges from the
precedents of this Court is that the power to transfer an
investigation must be used “sparingly” and only “in
exceptional circumstances”. 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.”
2 8 . The Supreme Court in the case of K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai and others, reported
in (2013) 12 SCC 480 has held as under :-
“13. The issue involved herein, is no more res integra.
This Court has time and again dealt with the issue under
what circumstances the investigation can be transferred
from the State investigating agency to any other
independent investigating agency like CBI. It has been
held that the power of transferring such investigation
must be in rare and exceptional cases where the court
finds it necessary in order to do justice between the
parties and to instil confidence in the public mind, or
where investigation by the State police lacks credibility
and it is necessary for having “a fair, honest and
complete investigation”, and particularly, when it is
imperative to retain public confidence in the impartial
working of the State agencies. Where the investigation
has already been completed and charge-sheet has been
filed, ordinarily superior courts should not reopen the
investigation and it should be left open to the court,
where the charge-sheet has been filed, to proceed with
the matter in accordance with law. Under no
circumstances, should the court make any expression of
its opinion on merit relating to any accusation against
any individual. (Vide Gudalure M.J. Cherian v. UnionSignature Not Verified
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of India [(1992) 1 SCC 397] , R.S. Sodhi v. State of
U.P. [1994 Supp (1) SCC 143 : 1994 SCC (Cri) 248 :
AIR 1994 SC 38] , Punjab and Haryana High Court Bar
Assn. v. State of Punjab [(1994) 1 SCC 616 : 1994 SCC
(Cri) 455 : AIR 1994 SC 1023] , Vineet Narain v.
Union of India [(1996) 2 SCC 199 : 1996 SCC (Cri)
264] , Union of India v. Sushil Kumar Modi [(1996) 6
SCC 500 : AIR 1997 SC 314], Disha v. State of Gujarat
[(2011) 13 SCC 337 : (2012) 2 SCC (Cri) 628 : AIR
2011 SC 3168] , Rajender Singh Pathania v. State (NCT
of Delhi) [(2011) 13 SCC 329 : (2012) 1 SCC (Cri)
873] and State of Punjab v. Davinder Pal Singh Bhullar
[(2011) 14 SCC 770 : (2012) 4 SCC (Civ) 1034 : AIR
2012 SC 364] .)
14. In Rubabbuddin Sheikh v. State of Gujarat [(2010)
2 SCC 200 : (2010) 2 SCC (Cri) 1006] this Court dealt
with a case where the accusation had been against high
officials of the Police Department of the State of
Gujarat in respect of killing of persons in a fake
encounter and Gujarat Police after the conclusion of the
investigation, submitted a charge-sheet before the
competent criminal court. The Court came to the
conclusion that as the allegations of committing murder
under the garb of an encounter are not against any third
party but against the top police personnel of the State of
Gujarat, the investigation concluded by the State
investigating agency may not be satisfactorily held.
Thus, in order to do justice and instil confidence in the
minds of the victims as well of the public, the State
police authority could not be allowed to continue with
the investigation when allegations and offences were
mostly against top officials. Thus, the Court held that
even if a charge-sheet has been filed by the State
investigating agency there is no prohibition for
transferring the investigation to any other independent
investigating agency.
1 5 . I n State of W.B. v. Committee for Protection of
Democratic Rights [(2010) 3 SCC 571 : (2010) 2 SCC
(Cri) 401] a Constitution Bench of this Court has
clarified that extraordinary power to transfer the
investigation from State investigating agency to any
other investigating agency must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
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21 WA-186-2026
confidence in investigation or where the incident may
have national and international ramifications or where
such an order may be necessary for doing complete
justice and enforcing the fundamental rights. (See also
Ashok Kumar Todi v. Kishwar Jahan [(2011) 3 SCC
758 : (2011) 2 SCC (Cri) 75 : AIR 2011 SC 1254] .)
16. This Court in Sakiri Vasu v. State of U.P. [(2008) 2
SCC 409 : (2008) 1 SCC (Cri) 440] held : (SCC p. 416,
para 31)
“31. … this Court or the High Court has
power under Article 136 or Article 226 to
order investigation by CBI. That, however,
should be done only in some rare and
exceptional case, otherwise, CBI would be
flooded with a large number of cases and
would find it impossible to
properly investigate all of them.”
(emphasis supplied)
17. In view of the above, the law can be summarised to
the effect that the Court could exercise its constitutional
powers for transferring an investigation from the State
investigating agency to any other independent
investigating agency like CBI only in rare and
exceptional cases. Such as where high officials of State
authorities are involved, or the accusation itself is
against the top officials of the investigating agency
thereby allowing them to influence the investigation,
and further that it is so necessary to do justice and to
instill confidence in the investigation or where the
investigation is prima facie found to be tainted/biased.”
29. The Supreme Court in the case of Vishal Tiwari vs. UOI and
others reported in 2024 (4) SCC 115 has held as under :-
“32. This Court does have the power under Article 32
and Article 142 of the Constitution to transfer an
investigation from the authorized agency to the CBI or
constitute an SIT. However, such powers must be
exercised sparingly and in extraordinary circumstances.
Unless the authority statutorily entrusted with the power
to investigate portrays a glaring, willful and deliberate
inaction in carrying out the investigation the court will
ordinarily not supplant the authority which has been
vested with the power to investigate. Such powers mustSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:1203322 WA-186-2026
not be exercised by the court in the absence of cogent
justification indicative of a likely failure of justice in
the absence of the exercise of the power to transfer. The
petitioner must place on record strong evidence
indicating that the investigating agency has portrayed
inadequacy in the investigation or prima facie appears
to be biased.
33. Recently, in Himanshu Kumar v. State of
Chhattisgarh 12, this Court, speaking through one of us
(JB Pardiwala, J) relying on a judgement of a three
judge Bench of this Court in K.V. Rajendran v.
Superintendent of Police CBCID South Zone,
Chennai13 reiterated the principle that the power to
transfer an investigation to investigating agencies such
as the CBI must be invoked only in rare and exceptional
cases. Further, no person can insist that the offence be
investigated by a specific agency since the plea can
only be that the offence be investigated properly. The
Court held as follows:
“51. Elaborating on this principle, this Court further
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 instil confidence in
the investigation or where the
investigation is prima facie found
to be tainted/biased.”
52. The Court reiterated that an investigation may be
transferred to the CBI only in “rare and exceptional
cases”. One factor that courts may consider is that such
transfer is “imperative” to retain “public confidence inSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:1203323 WA-186-2026
the impartial working of the State agencies.” This
observation must be read with the observations made by
the Constitution Bench in the case of Committee for
Protection of Democratic Rights, West Bengal (supra),
that mere allegations against the police do not constitute
a sufficient basis to transfer the investigation.
* * *
54. It has been held by this Court in CBI v. Rajesh
Gandhi, 1997 Cri LJ 63, that no one can insist that an
offence be investigated by a particular agency. We fully
agree with the view in the aforesaid decision. An
aggrieved person can only claim that the offence he
alleges be investigated properly, but he has no right to
claim that it be investigated by any particular agency of
his choice.
55. The principle of law that emerges from the
precedents of this Court is that the power to transfer an
investigation must be used “sparingly” and only “in
exceptional circumstances”. 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.”
(emphasis supplied)
30. The Supreme Court in the case of Royden Harold Buthello and
another vs. State of Chhattisgarh and others reported in 2023 SCC OnLine
SC 204 has held as under :-
“17. Having noted this aspect of the matter it is
appropriate to refer to the decision in the case of State
of West Bengal v. Committee for Protection of
Democratic Rights, West Bengal, (2010) 3 SCC 571
wherein it is held as hereunder:–
“70. Before parting with the case, we deem it
necessary to emphasise that 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 theSignature Not Verified
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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 instil 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.”
18. Also Mithilesh Kumar Singh v. State of Rajasthan ,
(2015) 9 SCC 795 wherein it is held hereunder:–
“12. Even so the availability of power and its
exercise are two distinct matters. This Court
does not direct transfer of investigation just
for the asking nor is transfer directed only to
satisfy the ego or vindicate the prestige of a
party interested in such investigation. The
decision whether transfer should or should
not be ordered rests on the Court’s
satisfaction whether the facts and
circumstances of a given case demand such
an order. No hard-and-fast rule has been or
can possibly be prescribed for universal
application to all cases. Each case will
obviously depend upon its own facts. What is
important is that the Court while exercising
its jurisdiction to direct transfer remains
sensitive to the principle that transfers are not
ordered just because a party seeks to lead theSignature Not Verified
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investigator to a given conclusion. It is only
when there is a reasonable apprehension
about justice becoming a victim because of
shabby or partisan investigation that the
Court may step in and exercise its
extraordinary powers. The sensibility of the
victims of the crime or their next of kin is not
wholly irrelevant in such situations. After all
transfer of investigation to an outside agency
does not imply that the transferee agency will
necessarily, much less falsely implicate
anyone in the commission of the crime. That
is particularly so when transfer is ordered to
an outside agency perceived to be
independent of influences, pressures and
pulls that are commonplace when State
Police investigates matters of some
significance. The confidence of the party
seeking transfer in the outside agency in such
cases itself rests on the independence of that
agency from such or similar other
considerations. It follows that unless the
Court sees any design behind the prayer for
transfer, the same must be seen as an attempt
only to ensure that the truth is discovered.
The hallmark of a transfer is the perceived
independence of the transferee more than any
other consideration. Discovery of truth is the
ultimate purpose of any investigation and
who can do it better than an agency that is
independent.
13. Having said that we need to remind
ourselves that this Court has, in several
diverse situations, exercised the power of
transfer. In Inder Singh v. State of Punjab
this Court transferred the investigation to CBI
even when the investigation was being
monitored by senior officers of the State
Police. So also in R.S. Sodhi v. State of U.P.
investigation was transferred even when the
State Police was doing the needful under the
supervision of an officer of the rank of an
Inspector General of Police and the State
Government had appointed a one-memberSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:1203326 WA-186-2026
Commission of Inquiry headed by a sitting
Judge of the High Court to enquire into the
matter. This Court held that however
faithfully the police may carry out the
investigation the same will lack credibility
since the allegations against the police force
involved in the encounter resulting in the
killing of several persons were very serious.
The transfer to CBI, observed this Court,
“would give reassurance to all those
concerned including the relatives of the
deceased that an independent agency
was looking into the matter”.
14. Reference may also be made to the
decision of this Court in State of Punjab v.
CBI wherein this Court upheld the order
transferring investigation from the State
Police to CBI in connection with a sex
scandal even when the High Court had
commended the investigation conducted by
the DIG and his team of officers. In Subrata
Chattoraj v. Union of India, this Court
directed transfer of the Chit Fund Scam in the
States of West Bengal and Orissa from the
State Police to CBI keeping in view the
involvement of several influential persons
holding high positions of power and
influence or political clout.
15. Suffice it to say that transfers have
been ordered in varied situations but while
doing so the test applied by the Court has
always been whether a direction for transfer,
was keeping in view the nature of
allegations, necessary with a view to making
the process of discovery of truth credible.
What is important is that this Court has
rarely, if ever, viewed at the threshold the
prayer for transfer of investigation to CBI
with suspicion. There is no reluctance on the
part of the Court to grant relief to the victims
or their families in cases, where intervention
is called for, nor is it necessary for the
petitioner seeking a transfer to make out a
cast-iron case of abuse or neglect on the part
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27 WA-186-2026
of the State Police, before ordering a transfer.
Transfer can be ordered once the Court is
satisfied on the available material that such a
course will promote the cause of justice, in a
given case.”
“19. The above-noted decisions are in fact cited by the
learned Senior Counsel for the appellants to contend
that this Court should exercise its extraordinary power
to refer to the matter to CBI in the instant facts. In that
regard, it is also necessary to note that the High Court
on the other hand has referred to the various decisions
on the said aspect and has also taken into consideration
the recent decision in the case of Arnab Ranjan
Goswami v. Union of India, (2020) 14 SCC 12 wherein
the entire aspect has been crystalized and this Court has
held that the power to transfer an investigation must be
used sparingly. The relevant portion reads as hereunder:
—
“52. In assessing the contention for the
transfer of the investigation to CBI, we have
factored into the decision-making calculus
the averments on the record and submissions
urged on behalf of the petitioner. We are
unable to find any reason that warrants a
transfer of the investigation to CBI. In
holding thus, we have applied the tests spelt
out in the consistent line of precedent of this
Court. They have not been fulfilled. An
individual under investigation has a
legitimate expectation of a fair process which
accords with law. The displeasure of an
accused person about the manner in which
the investigation proceeds or an
unsubstantiated allegation (as in the present
case) of a conflict of interest against the
police conducting the investigation must not
derail the legitimate course of law and
warrant the invocation of the extraordinary
power of this Court to transfer an
investigation to CBI. Courts assume the
extraordinary jurisdiction to transfer an
investigation in exceptional situations to
ensure that the sanctity of the administrationSignature Not Verified
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of criminal justice is preserved. While no
inflexible guidelines are laid down, the
notion that such a transfer is an
“extraordinary power” to be used “sparingly”
and “in exceptional circumstances” comports
with the idea that routine transfers would
belie not just public confidence in the normal
course of law but also render meaningless the
extraordinary situations that warrant the
exercise of the power to transfer the
investigation. Having balanced and
considered the material on record as well as
the averments of and submissions urged by
the petitioner, we find that no case of the
nature which falls within the ambit of the
tests enunciated in the precedents of this
Court has been established for the transfer of
the investigation.”
“20. Hence it is clear that though there is no inflexible
guideline or a straightjacket formula laid down, the
power to transfer the investigation is an extraordinary
power. It is to be used very sparingly and in an
exceptional circumstance where the Court on
appreciating the facts and circumstance arrives at the
conclusion that there is no other option of securing a
fair trial without the intervention and investigation by
the CBI or such other specialized investigating agency
which has the expertise.”
31. The Supreme Court in the case of Anant Thanur Karmuse v. State
of Maharashtra and others, reported in (2023) 5 SCC 802 has held as under :-
“34. In Himanshu Kumar [Himanshu Kumar v. State of
Chhattisgarh, (2023) 12 SCC 592 : 2022 SCC OnLine
SC 884] , this Court had occasion to consider the power
of the Court to transfer investigation to any other
independent agency. After taking into consideration the
catena of judgments on the point, it is reiterated that
investigation may be transferred to CBI only in “rare
and exceptional cases”. In SCC paras 44 to 55, it is
observed and held as under:
“44. It is now settled law that if a citizen, who is a
de facto complainant in a criminal case allegingSignature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:1203329 WA-186-2026
commission of cognizable offence affecting violation of
his legal or fundamental rights against high
Government officials or influential persons, prays
before a Court for a direction of investigation of the said
alleged offence by CBI, such prayer should not be
granted on mere asking.
45. A Constitution Bench of this Court, in State of W.B.
v. Committee for Protection of Democratic Rights
[State of W.B. v. Committee for Protection of
Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC
(Cri) 401] , has made the following observations
pointing out the situations where the prayer for
investigation by CBI should be allowed : (SCC p. 602,
para 70)
“70. … 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 powers 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 instil 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.’
46. In the above decision, it was also pointed out that
the same Court in Minor Irrigation & Rural Engg.
Services v. Sahngoo Ram Arya [Minor Irrigation &
Rural Engg. Services v. Sahngoo Ram Arya, (2002) 5
SCC 521 : 2002 SCC (L&S) 775] , had said that an
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order directing an enquiry by CBI should be passed
only when the High Court, after considering the
material on record, comes to the conclusion that such
material does disclose a prima facie case calling for an
investigation by CBI or any other similar agency.
47. In an appropriate case when the Court feels that the
investigation by the police authorities is not in … a
proper direction, and in order to do complete justice in
the case and if high police officials are involved in the
alleged crime, the Court may be justified in such
circumstances to hand over the investigation to an
independent agency like CBI. By now it is well settled
that even after the filing of the charge-sheet the Court is
empowered in an appropriate case to hand over the
investigation to an independent agency like CBI.
48. The extraordinary power of the constitutional courts
under Articles 32 and 226 respectively of the
Constitution of India qua the issuance of directions to
CBI to conduct investigation must be exercised with
great caution as underlined by this Court in Committee
for Protection of Democratic Rights [State of W.B. v.
Committee for Protection of Democratic Rights, (2010)
3 SCC 571 : (2010) 2 SCC (Cri) 401] as adverted to
hereinabove, observing that although no inflexible
guidelines can be laid down in this regard, yet it was
highlighted that such an order cannot be passed as a
matter of routine or merely because the parties have
levelled some allegations against the local police and
can be invoked in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in the investigation or where the incident
may have national or international ramifications or
where such an order may be necessary for doing
complete justice and for enforcing the fundamental
rights.
49. We are conscious of the fact that though a
satisfaction of want of proper, fair, impartial and
effective investigation eroding its credence and
reliability is the precondition for a direction for further
investigation or reinvestigation, submission of the
charge- sheet ipso facto or the pendency of the trial can,
by no means, be a prohibitive impediment. The
contextual facts and the attendant circumstances have to
be singularly evaluated and analysed to decide the
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needfulness of further investigation or reinvestigation to
unravel the truth and mete out justice to the parties. The
prime concern and the endeavour of the court of law
should be to secure justice on the basis of true facts
which ought to be unearthed through a committed,
resolved and a competent investigating agency.
50. The above principle has been reiterated in K.V.
Rajendran v. Supt. of Police [K.V. Rajendran v. Supt. of
Police, (2013) 12 SCC 480 : (2014) 4 SCC (Cri) 578] .
Dr B.S. Chauhan, J. speaking for a three-Judge Bench
of this Court held : (SCC p. 485, para 13)
’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
exceptional cases where the court finds it
necessary in order to do justice between the
parties and to instil confidence in the public
mind, or where investigation by the State
Police lacks credibility and it is necessary for
having “a fair, honest and complete
investigation”, and particularly, when it is
imperative to retain public confidence in the
impartial working of the State agencies.”
51. Elaborating on this principle, this Court further
observed : (K.V. Rajendran case [K.V. Rajendran v.
Supt. of Police, (2013) 12 SCC 480 : (2014) 4 SCC
(Cri) 578] , SCC p. 487, para 17)
’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
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and to instil confidence in the investigation
or where the investigation is prima facie
found to be tainted/biased.’
52. The Court reiterated that an investigation may be
transferred to CBI only in “rare and exceptional cases”.
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 made by
the Constitution Bench in Committee for Protection of
Democratic Rights [State of W.B. v. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571 :
(2010) 2 SCC (Cri) 401] , that mere allegations against
the police do not constitute a sufficient basis to transfer
the investigation.
53. In Romila Thapar v. Union of India [Romila Thapar
v. Union of India, (2018) 10 SCC 753 : (2019) 1 SCC
(Cri) 638] , one of us, A.M. Khanwilkar, J., speaking
for a three-Judge Bench of this Court (Dr D.Y.
Chandrachud, J. dissenting) noted the dictum in a line
of precedents laying down the principle that the accused
“does not have a say in the matter of appointment of
investigating agency”. In reiterating this principle, this
Court relied upon its earlier decisions in Narmada Bai v.
State of Gujarat [Narmada Bai v. State of Gujarat ,
(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] , Sanjiv
Rajendra Bhatt v. Union of India [Sanjiv Rajendra
Bhatt v. Union of India, (2016) 1 SCC 1 : (2016) 1 SCC
(Cri) 193 : (2016) 1 SCC (L&S) 1] , E. Sivakumar v.
Union of India [E. Sivakumar v. Union of India , (2018)
7 SCC 365 : (2018) 3 SCC (Cri) 49] , and Divine
Retreat Centre v. State of Kerala [Divine Retreat Centre
v. State of Kerala , (2008) 3 SCC 542 : (2008) 2 SCC
(Cri) 9] . This Court observed : (Romila Thapar case
[Romila Thapar v. Union of India, (2018) 10 SCC 753 :
(2019) 1 SCC (Cri) 638] , SCC p. 776, para 30)
’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.’
54. It has been held by this Court in CBI v. Rajesh
Gandhi [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 :
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1997 SCC (Cri) 88 : 1997 Cri LJ 63] , that no one can
insist that an offence be investigated by a particular
agency. We fully agree with the view in the aforesaid
decision. An aggrieved person can only claim that the
offence he alleges be investigated properly, but he has
no right to claim that it be investigated by any particular
agency of his choice.
55. The principle of law that emerges from the
precedents of this Court is that the power to transfer an
investigation must be used “sparingly” and only “in
exceptional circumstances”. In assessing the plea urged
by the petitioner that the investigation must be
transferred to CBI, we are guided by the parameters laid
down by this Court for the exercise of that extraordinary
power.”
32. Thus, it is clear that investigation should be transferred to CBI only
in exceptional cases.
33. Therefore, now the only question for consideration is as to whether
the appellant has made out a sufficient cause for transfer of the investigation
to independent agency or not.
34. Only two grounds have been raised by appellant for transfer of
investigation, i.e. (i.) non compliance of direction given by DIG, Chambal
Range, pointing out certain number of points to be considered while
investigating the matter, and it is the case of appellant that the investigation
was not done accordingly, and (ii.) even after the ER was returned by the
Court, the police sat quietly on the matter and did not file ER once again
through authorized or competent authority.
35. So far as the act of the police in keeping the matter pending for 21
long years is concerned, the same has to be deprecated. However, so far as
the merits of the case are concerned, since the closure report/ER is pending
before the CJM, Morena, it would not be in the fitness of things to make any
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comment on the manner of investigation by the police, as in the light of
judgment passed by the Supreme Court in the case of Abhinandan Jha
(supra), it is within the exclusive domain of the CJM, Morena to decide as to
whether the ER/closure report is to be accepted or not.
36. However, one thing is clear that so far as the delay is concerned,
the appellant is equally responsible, because prior to filing of the closure
report, he never approached the Court and never approached the High Court
prior to filing of W.P. No.15661/2023. Since the matter is pending
consideration before the CJM, Morena, this Court is of the considered
opinion that even the learned Single Judge should not have directed the
Superintendent of Police, Morena, to look into the matter.
37. From the impugned order, it is clear that the learned Single Judge
has not taken note of the pendency of the expunge report before the CJM,
Morena.
38. Furthermore, except drafting the petition as if a novel is being
written, no steps were taken by the appellant to point out the stage of ER
No.36/2025 pending before the Court of CJM, Morena.
39. Even the State counsel was negligent in discharging his duty at the
time of arguments in W.P. No. 15661/2023 and did not point out to the
learned Single Judge that the ER/closure report is pending consideration
before the CJM, Morena.
40. Under these circumstances, when the stage of the ER/closure
report in MJCR No.36/2025 is not known, therefore, the order dated
19.11.2025, passed by learned Single Judge in W.P. No. 15661/2023, is
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hereby set aside and it is directed that :
(i) If the expunge/closure report in MJCR No.36/2025 is still pending
before the Court of CJM, Morena, then the same shall be disposed of within
a period of three months from the date of filing of the certified copy of this
order.
(ii) If notices in MJCR No.36/2025 have not been issued to the
appellant/complainant, then the CJM, Morena shall ensure that notice is
immediately served on appellant/complainant and an opportunity is granted
to the appellant/complainant to file his objections. The CJM, Morena shall
also give an opportunity to the appellant to examine any witness in support
of his objection.
(iii) After hearing both the parties, the CJM, Morena shall finally
dispose of MJCR No.36/2025 within a period of three months from the date
of receipt of the certified copy of this order, in the light of the law laid down
by the Supreme Court in the case of Abhinandan Jha (supra) . In the
alternative, it is directed that if final order has already been passed in MJCR
No.36/2025, then the appellant/complainant shall be free to take legal
recourse as permissbile under the law.
41. With aforesaid observations, the Writ Appeal is finally disposed
of.
(G. S. AHLUWALIA) (PUSHPENDRA YADAV)
JUDGE JUDGE
Aman
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