Supreme Court:A reading of Section 10 of the NIA Act indicates that there is no embargo on the State Investigating Agency to investigate a scheduled offence, which would include offences under the UAPA.

 We have already held that the continuance of the investigation by the ATS Nanded in terms of Section 6(7) of the NIA Act, till the investigation had been taken up by the NIA Mumbai, was legitimate. A reading of Section 10 of the NIA Act indicates that there is no embargo on the State Investigating Agency to investigate a scheduled offence, which would include offences under the UAPA. Consequently, till the investigation was taken up by the NIA Mumbai, the ATS Nanded was acting within jurisdiction in investigating the offence and filing the charge-sheet in the present case. {Para 48}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1165 and 1166 of 2021

Decided On: 20.10.2021

Naser Bin Abu Bakr Yafai Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0943/2021,(2022) 6 SCC 308.

Print Page

Whether the court should order the transfer of investigation on the ground that the police officer is a Facebook friend of the complainant?

As regards the association, alliance and close family relations

of the complainant in FIR No.76 dated 1903.2018 with a senior police

officer who was the then Special Director of CBI, it appears to the Court

that all the allegations are mere assumption and not substantiated by any

material on record. The petitioner has drawn attention of the Court towards

two e-mails addressed to Ram Gopal Garg, the then ACB, CBI, Chandigarh

(rggarg@yahoo.com) and the copy of the same was addressed to head of

CBI at Chandigarh on official email address – hobacchg@cbi.gov.in as well

as to Tajinder Ludhra, the then IGP and Rakesh Asthana on email address

spl.dir@gov.in. These documents by any stretch of imagination, cannot be

said to be any connecting evidence substantiating the close family relations

or influence of the Special Director, CBI in the investigation conducted by

the police. The petitioner has also failed to mention the role of any police

official in hampering with the fair investigation conducted in the aforesaid

FIR or any role of any police official in lodging FIR No.75 dated

21.09.2020 under Sections 419, 420 IPC at Police Station, Sector 19,

Chandigarh.

As regards, the alleged proximity of a senior police official and

his wife with the complainant in FIR No.76 dated 19.03.2018, the same

have not been substantiated by way of any cogent proof. Even otherwise, if

a person appears in the friend list of a Facebook page of any public servant,

it cannot be assumed that an official shall favour such a person in an illegal

manner and maneuver investigation of a crime. It is indeed intriguing as to

how the petitioner gained access to the Facebook account of this police

official. Facebook accounts are privy to the account holder and the

petitioner must be put to strict proof as to how has he been able to access

the facebook account of a police official and where from he obtained the

facebook conversations Annexures P-1 and P-2.

The high ranking police officer who has never remained posted

in Chandigarh and having graduated with the husband of complainant from

same university/college in the year 1982 would not necessarily lead to any

inference that he was instrumental in getting the investigation conducted in

a biased manner. It appears to the Court that name of this officer has been

unnecessarily dragged into the litigation for ulterior motive with a view to

put pressure upon the Chandigarh police to act according to petitioner’s

whims.

The so-called officer, Mr. Asthana, never remained posted in

Chandigarh and the other high rank officer Tajinder Luthra was transferred

way back in 2018 from Chandigarh police and particularly in case of Mr.

Asthana, it can be said beyond doubt that he is not even remotely connected

with the affairs of Chandigarh Police.

The power of transferring an 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 Stae

agencies. Under no circumstances, should the court make any expression of

its opinion on merit relating to any accusation against any individual. The

aforesaid view has been taken from judgment dated 21.08, 2013 rendered by

the Apex Court in Criminal Appeal No.1167 of 2013 titled ‘Prof. K.V.

Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai

& others’.

It is settled law that an accused does not have the right to

determine the prosecuting agency of its own choice. The Hon’ble Supreme

Court in the case of Romila Thapar v. Union of India, (2018) 10 SCC 753,

held that the accused “does not have a say in the matter of appointment of

investigating agency”. The Hon’ble Supreme Court further held that “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.”

 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Decided on: 26.11.2020

Civil Writ Petition No.16659 of 2020

Dr. Mohit Dhawan Vs  U.T. Chandigarh & others

CORAM: HON'BLE MR. JUSTICE SANT PARKASH

Print Page

Whether accused can seek transfer of investigation?

In assessing the contention for the transfer of the investigation to the 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 the 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 the CBI.
Courts assume the extraordinary jurisdiction to transfer an investigation in
exceptional situations to ensure that the sanctity of the administration 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
Writ Petition (Crl) No. 130 of 2020

Arnab Ranjan Goswami  Vs  Union of India

Dr Dhananjaya Y Chandrachud, J

Dated:May 19, 2020.

Print Page