Once Trial Has Commenced & Some Witnesses Examined, Constitutional Courts Should Avoid Reopening Or Transferring Investigation: Allahabad HC

A bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar opined thus while dismissing a criminal writ plea moved by one Usman Ali seeking transfer of the investigation in the murder case of his brother from Crime-Branch Criminal Investigation Dept. (CBCID) to the National Investigation Agency (NIA)/Central Bureau of Investigation (CBI).

The case in brief

In this case, the petitioner filed an FIR on October 25, 2018, over the murder of his brother (Imtiyaz Ahmad, sitting chairman of Topan Town area, Sonbhadra). Initially, the Sonbhadra police investigated the matter; however, subsequently, the investigation was transferred to CB-CID at the request of the accused parties.

In February 2020, the IO filed a police report before the Court of CJM charging eight persons and exonerating the named accused persons Rakesh Jaiswal and Ravi Jalan, who were also named in the dying declaration; the magistrate took cognizance of the chargesheet the next day.

The petitioner alleged that the matter was transferred to the CBCID at the instance of Jaiswal and Jalan, and as per their diktats, the CBCID exonerated them. The petitioner also argued that the stringent UAPA should have been invoked against the accused in the light of the Apex Court's ruling in the case of Arup Bhuyan vs State of Assam 2023 LiveLaw (SC) 234.

The petitioner moved a protest petition, which was rejected in August 2020. Challenging the same, he moved the Sessions Court, wherein his revision plea was allowed and several shortcomings of the investigation were pointed out and the matter was remanded to the Magistrate, where the court of Magistrate allowed the protest petition by observing the lacuans and irregularities in the investigation and directed further investigation into the matter in May 2022. In this order, the DGP was also asked to take action against the IO.

The case was then moved from CB-CID Varanasi to CB-CID Prayagraj, and a fresh charge sheet was submitted (including the named accused Jaiswal and Jalan, but it is not on record).

During this period, the petitioner filed another application to make this charge sheet part of the case record, which was rejected in September 2024 by the CJM, Sonbhadra. He then approached the High Court under Section 482 CrPC, and that matter is still pending.

Meanwhile, the trial has already started in the Sessions Court, Sonbhadra, and eight prosecution witnesses have been examined.

High Court's observations

In this case, the Court dealt with a significant issue as to whether, after the commencement of the trial and deposition of several witnesses, the investigation can be transferred to the CBI/NIA?

The counsel for the petitioner, Senior Advocate Rakesh Pande, assisted by Advocates Mohd. Aman Khan and Krishna Kumar Verma, submitted that the constitutional courts can order a fresh, de-novo, or reinvestigation irrespective of whether the trial has commenced and some witnesses have been examined.

The Court, however, held that while a direction to conduct “further investigation” even after filing of the charge-sheet and commencement of the trial is permissible in law, the superior courts should ordinarily refrain from directing the “reopening” of the investigation.

The Court added that in such cases, where the chargesheet is filed and the trial has commenced, the matter should be left to the trial court, which is competent to recall any witness or witness already examined or to summon any witness even if the evidence on both sides is closed in view of Section 311 CrPC (Section 348 BNSS).

Regarding the prayer to transfer the investigation to the CBI/NIA, the Court referred to the Apex Court's ruling in the case of K.V. Rajendran vs Superintendent Of Police, Cbcid South 2013, wherein it was held that the transfer of investigation should be rare, only when justice demands it or State police lacks credibility, to ensure a fair and impartial probe.

“We also find that Hon'ble Apex Court, while dealing with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI, has consistently 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,” the division bench observed.

In view of these observations, the Court refused to allow the plea and thus, the same was dismissed.