ROYDEN HAROLD BUTHELLO & ANR. versus STATE OF CHHATTISGARH & ORS.
[2023] 3 S.C.R. 150, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Facts
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   [2023] 3 S.C.R. 150
150
ROYDEN HAROLD BUTHELLO & ANR.
v.
STATE OF CHHATTISGARH & ORS.
(Criminal Appeal No.634 of 2023)
FEBRUARY 28, 2023
[A. S. BOPANNA AND AHSANUDDIN AMANULLAH, JJ.]
Criminal Law – Investigation by CBI – When cannot be
directed – Appellant no.1 accused of indulging in sale of
psychotropic NDPS substance – It is the case of the appellant no.1
that while he was travelling with regard to his business, he was
illegally abducted, detained and a case under NDPS was foisted
on him – Appellant no.1 and his father-appellant no.2 filed writ
petition before High Court inter alia seeking direction to transfer
the investigation to the CBI, which was declined – Revision petition
filed by the appellant against order framing charges was also
dismissed – On appeal, held: 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 – In the present case, there is no issue of public importance
which requires investigation by the CBI – Contention of the appellant
that the offence alleged against him to have been committed on
21.10.2020 could not have been committed by him inasmuch as he
was abducted from a
different State and was already in illegal
detention of the police on 20.10.2020, would be the defence in the
criminal trial – Other aspects contended by the appellants could be
established through evidence in trial before the competent court –
Appellants would have the further remedy of the legal course
available to them if they are dissatisfied – Thus, when the issue
raised is only a matter of evidence to be considered in the judicial
proceedings to arrive at a conclusion, a direction to the CBI to hold
an investigation would be unjustified – Impugned orders not
interfered with – NDPS Act – ss.29 r/w ss.22(b), (c), 25, 27 – Code
of Criminal Procedure, 1973 – s.313.
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Dismissing the appeals, the Court
HELD: 1.1 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. In that
background, there is no issue of public importance which requires
to be unearthed by an investigation to be conducted by the CBI.
Even from the facts noted and the allegations made against the
police, though the Court is sensitive to the sentiment of the
appellants herein, the contention ultimately is that the offence
alleged against him to have been committed on 21.10.2020 could
not have been committed by him inasmuch as he had been
abducted from a different State and was already in the illegal
detention of the police on 20.10.2020 itself. This essentially would
be the defence in the criminal trial. The charges have been framed
and the evidence is being tendered. Insofar as the allegation that
the said persons namely ‘PB’, ‘S’, ‘S’ and ‘A’ had gone to Odisha
and had illegally abducted him, from the very details furnished by
the appellants themselves, it is noted that the High Court had
through the order dated 17.03.2022 in a
collateral proceeding
directed that the five officers stated in the said order be called as
witnesses for examination and cross-examination. [Paras 19,
20][162-F-H; 163-A-B]
1.2 In that view, even though it is contended that the CCTV
footage would be relevant to establish the presence of the said
four persons in the hotel at Odisha and the same has not been
seized by the police, the fact remains that even from the same
what is sought to be established is that the said four persons had
abducted the appellant No.1. In the course of trial the five persons
specified by the appellants would now be available to be cross-
examined and any other orders in that regard can be sought in
the pending proceedings. That apart, on the other aspects also
since the trial is under progress, the appellant No.1 would be
entitled to put forth his case when the statement under Section
ROYDEN HAROLD BUTHELLO & ANR. v. STATE OF
CHHATTISGARH & ORS.
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313 of CrPC is recorded and also he would be entitled to tender
evidence if necessary. The case of the appellant is clear as to the
reason why he contends that the appellant No.1 cannot be held
to have committed the offence as registered in FIR No.232/2020
based on which his name has also been included in an earlier FIR
No.255/2020. These are matters which could be established
through evidence in the trial before the Competent Court in the
judicial proceedings wherein all these matters would be
appreciated and a conclusion would be reached. In that regard,
the appellants in any event would have the further remedy of the
legal course which is available to them if they are dissatisfied.
Further, insofar as the complaint said to have been lodged by the
appellant No.2, from the affidavit as filed by the respondent No.6,
the nature of investigation carried out by them has been stated.
In that regard also the appellant No.2 would have the legal remedy
in accordance with law. In addition, in the said process of the
judicial proceedings if the appellants bring out the fact that the
appellant No.1 who was not involved, had been framed up and a
case was foisted, the appellants would still have the legal remedy
to take action for malicious prosecution, loss of reputation, action
against involved persons, compensation and for such other relief
in that regard. Therefore, when the issue raised is only a matter
of evidence to be
considered in the judicial proceedings to arrive
at a conclusion, this Court is not convinced that in a case of the
present nature, a direction to the CBI to hold an investigation
would be justified nor is it required at this juncture when the trial
in the judicial proceedings has progressed unhindered. Hence
to that extent, all contentions of the appellants are kept open. All
contentions are left open to be urged before the trial court. No
reason to interfere with orders impugned. [Paras 21, 22][163-C-
H; 164-A-C]
State of West Bengal & Ors. vs. Committee for Protection
of Democratic Rights, West Bengal & Ors. (2010) 3 SCC
571 : [2010] 2 SCR 979; Mithilesh Kumar Singh vs.
State of Rajasthan & Ors. (2015) 9 SCC 795 : [2014]
13 SCR 1362; Arnab Ranjan Goswami vs. Union of
India (2020) 14 SCC 12 : [2020] 8 SCR 222 – relied
on.
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Case Law Reference
[2010] 2 SCR 979
relied on
  Para 17
[2014] 13 SCR 1362
relied on
  Para 17
[2020] 8 SCR 222
relied on
  Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.634 of 2023.
From the Judgment and Order dated 10.01.2022 of the High Court
of Chhattisgarh at Bilaspur in WPCR No.686 of 2020.
Shyam Divan, Gopal Sankaranarayanan, Sr. Advs., Adith
Deshmukh, D.M. Galani, Ms. Tanya Shrivastava, Neel Kamal Mishra,
Jatin Zaveri, Advs. for the Appellants.
Vikramjeet Banerjee, A.S.G., Dr. Abhishek Manu Singhvi, Sr. Adv.,
Sumeer Sodhi, Devashish Tiwari, Shibashish Misra, Mrs. Sairica Raju,
Samar Singh Kachwaha, Rahul Mishra, Akshay Nain,  Kartik Dey, Ms.
Janhvi Prakash, Ms. Shruti Agarwal, Arvind Kumar Sharma, Advs. for
the Respondents.
The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. Leave granted.
2. The appellants, as also the respondents are common to these
appeals and the subject matter relates to the same issue. Hence, they
are taken up together and disposed of through the common judgment.
The appeal arising out of SLP Criminal No.2454 of 2022 is filed assailing
the order dated 10.01.2022 passed in WPCR No. 686 of 2020. In an
appeal arising out of the SLP Criminal No.7306 of 2022, the order dated
15.09.2021 passed in Criminal Revision No.468 of 2021 is assailed. Both
the said orders are passed by the High Court of Chhattisgarh, Bilaspur.
3. The said order dated 10.01.2022 is passed in Writ Petition filed
under Article 226
wherein the appellant had prayed to direct for
investigation under the supervision of the Court, by the Central Bureau
of Investigation (for short, ‘CBI’) relating to (i) FIR No. 232/2020
registered at Azad Chowk Police Station, Raipur, (ii) FIR No.255/2020
registered at Kotwali Police Station, Raipur, (iii) Online complaint No.
3334104012000003 dated 27.10.2020 made before the Superintendent
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of Police, Raipur and (iv) Online complaint No. 24488049072000014
dated 06.11.2020 made before the Talcher Police Station, Angul, Odisha.
The appellant had also prayed to quash the charge sheet in Special Case
No.87/2020 and Special Case No.98/2020 filed by the respondent Azad
Chowk Police, Raipur and Kotwali Police, Raipur filed pursuant to the
said FIRs No.232/2020 and 255/2020, pending before the learned Special
Judge under NDPS Act, Raipur. The further direction which was prayed
is for the CBI to submit a periodical progress report of the investigation
to the Court and to monitor the same.
4. In the connected appeal, the challenge is to the order dated
15.09.2021 whereby the Criminal Revision Petition filed by the appellant
herein, before the High Court assailing the legality and correctness of
the order dated 14.07.2021 passed by the Special Judge under NDPS
Act at Raipur in Special Case No.98/2020 whereby the appellants
application filed under Section 227 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) was dismissed and charges were framed against
the appellant under Section 29 read with Sections 22(b), 22(c), 25 and
27 of the NDPS Act, which was not interfered by the High Court.
5. The brief facts leading to the above appeals are that the appellant
No.1 is accused of indulging in sale of psychotropic NDPS substance,
due to which the prosecuting agency under the respondent No.1 has
registered the
FIRs No.232/2020 and 255/2020 and are proceeding in
the matter as noted above. The appellant No.1 claims to be innocent,
while the appellant No.2 who is his father being agitated by such alleged
illegal action by the prosecuting agency under the respondent No.1 had
filed the online complaints dated 27.10.2020 and 06.11.2020 raising his
concern and sought for action in that regard.
6. The appellants claim that they are residents of Mumbai and the
appellant No.1 is a qualified automobile engineer, who is an income tax
payee. The appellant No.2 is a businessman carrying on business of
logistics, transportation, renting out vehicles etc. for the last 36 years in
the name and style, M/s Buthello Travels at R/3, Mathur Estate, Premier
Road, Kurla (W), Mumbai. The appellant No.1 was also taking care of
the business of his father and as such was visiting the State of Odisha as
also the State of Chhattisgarh in respect of contracts relating to the
transportation of minerals. It is averred that appellant No.1 had
accordingly travelled to Odisha and had booked room no.220 in Hotel
Green Park, Talcher, District Angul, Odisha from 15.10.2020 to
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20.10.2020. It is the case of the appellants that on 20.10.2020 at 13.00
hours, four unknown persons visited the said hotel in a white Innova car
with a broken front bumper, impersonating themselves as police officers.
They contacted Shri Vijaya who is working as a receptionist and
accordingly met the appellant No.1 in room No.220. The appellant No.1
was thereafter abducted and taken into the car and was driven to Raipur.
7. The appellant No.1 claims that while taking dinner at dhaba
between Sambalpur and Sonipat he overheard the name of the four
persons who had taken him to be, Pramod Behra, Sultan, Santosh and
Ali, from their discussion. He also contends that the mobile phone was
with the appellant No.1 and he made calls from his cell No. 8249518758.
It is averred that after reaching Raipur at about 12:30 AM on 21.10.2020
the said four persons took the appellant No.1 to respondent No.5 where
he was detained for some time and his cell phone as also laptop were
taken. It is claimed that the appellant No.1 was thereafter kept in the
lockup throughout the night without disclosing the reasons for such action
and on 21.10.2020 about 19:15 hours, police Sub-inspector Shri Priyesh
Mathew John lodged FIR against him, bearing No.232/2020 for an alleged
offence under Section 22(b) of the NDPS Act. Thereafter his name
was also included in the earlier registered FIR No.255/2020 which is
noted above.
8. In that background, the grievance put forth on behalf of the
appellants is that the appellant No.1 though being a qualified citizen, who
was travelling with regard to his business has been illegally abducted,
detained and a case under NDPS has been foisted on him due to which
online complaints were lodged by his father- appellant No.2. It is in that
light, the appellants are seeking for the directions as prayed and noted
above.
9. The respondents have filed their objection statement denying
the allegations and also contending with regard to the involvement of the
appellant for which he has been apprehended and is proceeded against
in accordance with law.
10. In that background, we have heard Shri Shyam Divan and
Shri Gopal Sankaranarayanan, learned senior counsel for the appellants,
Dr. Abhishek Manu Singhvi, learned senior counsel for the State of
Chhattisgarh as also the counsel for State of Odisha and perused the
appeal papers.
ROYDEN HAROLD BUTHELLO & ANR. v. STATE OF
CHHATTISGARH & ORS. [A. S. BOPANNA, J.]
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11. At the threshold it is necessary to take note that though initially
the petition filed before the High Court had included the relief to quash
the charge sheet and the further proceedings, considering that charges
have been framed by the trial court and also detailed orders have been
passed declining discharge of the appellant No.1, at present, the reliefs
sought is essentially limited with regard to the direction to the CBI to
conduct an investigation into the issue.
12. In that regard, the contention as noted is that, the FIR No.232/
2020 is registered on 21.10.2020 alleging that at about 19:15 hours the
appellant No.1 was apprehended by the Azad Chowk Police when the
appellant No.1 was near Ashram Tiraha in front of Sulabh Complex
Police Station, Azad Chowk, Raipur attempting to sell contraband and
on apprehending 9.240 grams cocaine was recovered from him. It is
contended by the appellants that such offence could not have been alleged
against the appellant to have been committed in Raipur on 21.10.2020,
when in fact the police personnel named Pramod Behra, Sultan, Santosh
and Ali of Chhattisgarh Police had abducted and taken away the appellant
No.1 from the hotel in Odisha on 20.10.2020 itself. As such, he was in
their illegal custody at the point when it is alleged that he had indulged in
committing the offence. The circumstances are referred to claim that
there is something more than what meets the eye. The
concern expressed
is that a citizen who is carrying on his lawful business activities in various
states has been ‘framed’ and a case has been foisted, whereby the
personal liberty has been taken away, which warrants a detailed
investigation. It is contended that the situation which unfolded in Hotel
Green Park on 20.10.2020 at about 1 PM would indicate that the said
four persons acting on behalf of the Chhattisgarh Police had taken him
away from the hotel. Subsequent thereto his name has been included in
FIR No.255/2020 as well, though it was an earlier registered case.
13. The learned senior counsel for respondent No.1-State would
contend that the allegations are unjustified. Pursuant to the registration
of the FIR, an investigation has been conducted and the charge sheet
has been filed. The contentions urged by the appellants are available to
be put forth in defence, in the proceedings before the trial court where
the charges have been framed and the trial is proceeding. Insofar as the
allegation that he was abducted and taken away from the hotel, it is
denied and contended that even though the police had gone to Odisha in
connection with the earlier F.I.R., they were unable to trace the appellant
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No.1 there, but he was subsequently found to be indulging in the illegal
activity in Raipur itself when he was apprehended and proceedings have
been initiated. It is contended that the claim for investigation by the CBI
is without basis and the well laid down guidelines of this Court does not
permit referring the investigation to CBI in every case where the accused
makes an allegation against the law enforcing authorities.
14. Having noted the rival contentions, we have also perused the
impugned order passed by the High Court while taking note of the plea
put forth by the parties. In fact, the High Court having framed two points
for its consideration, on the aspect relating to the transfer of the case to
CBI as sought for, has considered it while answering point No.2. The
guidelines as laid down by this Court has been referred to in detail before
adverting to the facts and has thereafter declined the prayer for referring
to an investigation by CBI. In that background, as noted, the case sought
to be made out seeking for CBI investigation is on the allegation that the
appellant No.1 has been illegally detained and thereafter was charged
with a serious offence, though he is completely innocent. In this regard,
it is contended that the allegation of the appellant No.1 being in possession
of 9.240 grams of cocaine on his person and that he was attempting to
sell the same near Ashram Tihara in front of Sulabh Complex in Raipur
on 21.10.2020, is a false case.
It is to establish this aspect of the matter
it is contended that the police personnel of respondent No.1-State of
Chhattisgarh had illegally abducted him on the previous day itself i.e. on
20.10.2020 from the hotel in a different State where he was staying.
According to the appellants, it is a foisted case against appellant No.1
with an illegal and ulterior motive and the matter requires a detailed
investigation by the CBI.
15. The learned senior counsel for the appellants in order to buttress
his contention with regard to the contradictory stand being taken by the
respondents has sought to rely on the affidavit filed before this Court. In
that regard, an affidavit filed by respondent Nos.1 to 5 before this Court,
the counter affidavit filed by the respondent No.6-State of Odisha, as
also the additional affidavit filed on behalf of respondent Nos.1 to 5 in
reply to the affidavit filed by the respondent No.6 are relied upon. Though
the specific averments contained in the affidavits were placed before us
and have been taken note of, by us, we do not propose to refer to each
of the statements made therein to analyse the manner in which the learned
senior counsel for the appellant has sought to highlight, which according
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to him contradicts the stand of State of Chhattisgarh. We have adopted
this course since the consideration herein is the limited scope of this
petition and it should not affect the rights of the parties in the pending
criminal proceedings. Such a serious dispute on facts, in any event, is to
be resolved based on evidence and not based on affidavits.
16. However, the limited aspect which we propose to note is that
the affidavit filed by the respondent No.6-State of Odisha is essentially
to explain the manner of consideration made by them in relation to FIR
No.0027 dated 22.01.2021 lodged at Talcher Police Station, Angul District,
Odisha which is pursuant to the complaint on behalf of the appellants.
The said affidavit also refers to the investigation made relating to the
online complaint. In the course of the said affidavit, reference has been
made to the process of investigation during which they had visited the
Green Park Hotel and recorded statements relating to the four persons
having come to the hotel and having introduced themselves as
Chhattisgarh Police and asked them about the room number of the
appellant No.1. The staff of the hotel had indicated that the appellant
No.1 himself had stated that there is no problem and he had checked out
after paying the bill. In reply to the said affidavit, the respondent Nos. 1
to 5 have sought to indicate that even as per the said affidavit, appellant
No.1 himself had
indicated that everything was alright and it is contended
that even so far as the Police Officers mentioned by the appellants, they
belong to a different department. The learned senior counsel for the
State of Chhattisgarh in fact referred to the counter affidavit on behalf
of the respondent Nos. 1 to 5 to clarify that the Police Officers of the
Chhattisgarh Police having travelled to Odisha were not denied, in as
much as, they have disclosed that a team of abled Police Officers had
travelled to Odisha to look up for the appellant and his whereabouts but
it was of no avail and they came back empty handed. It is therefore
contended on behalf of the respondents that the appellant No.1 being a
habitual offender was required to be investigated in relation to FIR No.255/
2020. Though on information, an attempt was made to apprehend him in
Odisha, the same was not successful but he was found in Raipur itself
the next day where he was indulging in the illegal activity when he was
apprehended. Hence the incident in Green Park Hotel as put forth by
the appellants is disputed. Whether these seriously disputed facts justifies
the prayer seeking for investigation by CBI, is the question to be answered
herein.
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17. Having noted this aspect of the matter it is appropriate to
refer to the decision in the case of State of West Bengal & Ors. vs.
Committee for Protection of Democratic Rights, West Bengal & Ors.
(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
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 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.”
Also Mithilesh Kumar Singh vs. State of Rajasthan & Ors.
(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
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the principle that transfers are not ordered just because a party
seeks to lead the 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-member 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”.
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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 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.”
18. 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 vs. 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
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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 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.”
19. 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.
20. In that background, even if the rival contentions are taken
note, we do not find that there is any issue of public importance which
requires to be unearthed by an investigation to be conducted by the CBI.
Even from the facts noted above and the allegations made against the
police, though we are sensitive to the sentiment of the appellants herein,
the contention ultimately is that the offence alleged against him to have
been committed on 21.10.2020 could not have been committed by him
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inasmuch as he had been abducted from a different State and was already
in the illegal detention of the police on 20.10.2020 itself. This essentially
would be the defence in the criminal trial. As already noted, the charges
have been framed and the evidence is being tendered. Insofar as the
allegation that the said persons namely Pramod Behra, Sultan, Santosh
and Ali had gone to Odisha and had illegally abducted him, from the very
details furnished by the appellants themselves, it is noted that the High
Court had through the order dated 17.03.2022 in a collateral proceeding
directed that the five officers stated in the said order be called as witnesses
for examination and cross-examination.
21. In that view, even though it is contended that the CCTV footage
would be relevant to establish the presence of the said four persons in
the hotel at Odisha and the same has not been seized by the police, the
fact remains that even from the same what is sought to be established is
that the said four persons had abducted the appellant No.1. In the course
of trial the five persons specified by the appellants would now be available
to be cross-examined and any other orders in that regard can be sought
in the pending proceedings. That apart, on the other aspects also since
the trial is under progress, the appellant No.1 would be entitled to put
forth his case when the statement under Section 313 of CrPC is recorded
and also he would be entitled to tender evidence if
necessary. The case
of the appellant is clear as to the reason why he contends that the appellant
No.1 cannot be held to have committed the offence as registered in FIR
No.232/2020 based on which his name has also been included in an
earlier FIR No.255/2020. These are matters which could be established
through evidence in the trial before the Competent Court in the judicial
proceedings wherein all these matters would be appreciated and a
conclusion would be reached. In that regard, the appellants in any event
would have the further remedy of the legal course which is available to
them if they are dissatisfied. Further, insofar as the complaint said to
have been lodged by the appellant No.2, from the affidavit as filed by
the respondent No.6, the nature of investigation carried out by them has
been stated. In that regard also the appellant No.2 would have the legal
remedy in accordance with law.
22. In addition, in the said process of the judicial proceedings if
the appellants bring out the fact that the appellant No.1 who was not
involved, had been framed up and a case was foisted, the appellants
would still have the legal remedy to take action for malicious prosecution,
ROYDEN HAROLD BUTHELLO & ANR. v. STATE OF
CHHATTISGARH & ORS. [A. S. BOPANNA, J.]
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
loss of reputation, action against involved persons, compensation and for
such other relief in that regard. Therefore, when the issue raised is only
a matter of evidence to be considered in the judicial proceedings to arrive
at a conclusion, we are not convinced that in a case of the present
nature, a direction to the CBI to hold an investigation would be justified
nor is it required at this juncture when the trial in the judicial proceedings
has progressed unhindered. Hence to that extent, all contentions of the
appellants are kept open. For the very reason, at this stage either quashing
or discharge would also not arise. All contentions are left open to be
urged before the trial court.
23. For all the aforestated reasons we see no reason to interfere
with orders impugned in these appeals. The appeals are accordingly
dismissed with no order as to costs.
24. Pending applications if any, shall stand disposed of.
Divya Pandey
Appeals dismissed.
(Assisted by : Shaaivi Shukla and Shevali Monga, LCRAs)