High Court Can Direct CBI Probe Even When FIR Is Not Lodged In Case, State's Consent Not Required: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that a High Court can transfer a probe to CBI even when the FIR is not lodged in the case and for passing such a direction, the consent of the State will not be required.

Justice Sumeet Goel said, "The High Court is well empowered to direct a CBI investigation, of a cognizable offence, alleged to have been committed within the territory of a State/Union Territory. To clarify, such directions can be issued by the High Court without an FIR earlier having been registered by the State/Union Territory."

The Court added that for such direction by the High Court "pertaining to investigation by the CBI, the consent of the concerned State/Union Territory is not required."

It further explained that such power may be exercised by the High Court either by way of its writ jurisdiction under Article 226 of the Constitution or by way of its inherent jurisdiction under Section 482 of CrPC 1973 or Section 528 of BNSS 2023.

Adding a word of caution, the Court said, "such power should be exercised sparingly, cautiously and in exceptional situations only where it becomes imperative to provide credibility as also instill confidence in investigation or where the incident has national/international ramifications or when such exercise of power is required for doing complete justice..."

These observations were made while hearing the plea to transfer the investigation in case of alleged gang rape to an independent agency.

It was alleged that prosecutrix was gang raped by the accused persons and a hefty amount was taken from her on pretext of getting her husband released on bail in a fraud case.

Counsel for the petitioner argued that there are specific allegations of rape as also extortion of money against the accused named in the FIR but the police has chosen to put up chargesheet only against one accused, and that too only under Sections 420 (cheating), 406 (criminal breach of trust) and 201 (causing disappearance of evidence) of the IPC.

It was alleged that the Police did not conduct free and fair investigation into the FIR in question on account of influence exerted by an IPS Officer of Haryana cadre who is a close relative of one of the accused.

After hearing the submissions, the Court said that the discovery, vindication and upholding of the truth is "the cardinal purpose for the existence of the Courts of Justice & for garnering these objects, which are indubitably invaluable and important, proper and fair investigation is absolutely vital."

It is, thus, indubitable that the High Court can direct for transfer of investigation in exercise of its writ jurisdiction under Article 226 of the Constitution, the Court opined.

Justice Goel while referring to catena of Apex Court cases highlighted that "Section 528 of BNSS, 2023 reflects peerless powers, which a High Court may draw upon, as necessary, whenever it is just and equitable to do so; in particular, to ensure observance of the due process of law, to prevent vexation or oppression, to do justice nay substantial justice, between the parties and to secure the ends of justice."

However, the judge added that the High Court, while considering a plea for transfer, "ought to also take into consideration the limited resources available with the CBI."

The Court elucidated that aggrieved parties wish for the highest level of investigating agency of the country, viz., the CBI to take up their case and hence make a plea to such effect before the High Court.

Yet, "there are operational/infrastructural challenges for the CBI, owing to limited resources, primarily the man-power related restrictions, due to which it is not pragmatic to saddle the CBI with an excessive volume of cases," it added.

Probe Can Be Transferred To CBI When Police Has Filed Chargesheet 

The Court further stated that the High Court has power to direct for investigation/further investigation by CBI even when investigation by local Police etc. has concluded and charge-sheet has been filed.

"The High Court's power; to direct for investigation/further investigation when investigation by local Police etc. is concluded and charge-sheet has been filed; is not denuded even when proceedings in such a trial (emanating from charge-sheet filed by local Police) has commenced and even some/substantial prosecution evidence has been recorded before such trial Court," it added.

In the present case, the Court noted that it is not the case wherein the accused/suspect is a senior Police Officer.

"The factum of material not having been found against the charge-sheeted accused in respect of offences under Sections 376- D/506/509 of IPC and the other FIR-named accused not having been charge-sheeted cannot be taken to be a good ground for transfer of the investigation of the FIR, in question, to CBI," the Court concluded.

Stating that petitioner has remedy to seek further investigation or seek consideration of the concerned Court for summoning of additional accused, the Court rejected the plea,

Mr. Manoj Tanwar, Advocate for the petitioner.

Ms. Mahima Yashpal, DAG, Haryana.

Mr. Shiv Kumar Sharma, Advocate for respondent No.7. Mr. Ravi Kamal Gupta, Retainer Counsel for the CBI.

Case Title: NXXXX v. State of Haryana and others