No Embargo on SC to transfer a case to CBI after submission of Chargesheet: SC

The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst. (Para 23)

Dr Naresh Kumar Mangla v. Smt. Anita Agarwal & Ors.

Criminal Appeal Nos.872-873 of 2020 (Arising out of SLP (Crl.) Nos. 4935-4936 of 2020)

17 December, 2020.

The Hon'ble Supreme Court Comprising of Justice Dr Dhananjaya Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee held in a case that there is no embargo on this Court to transfer an investigation to the CBI after submission of the charge-sheet.

The marriage between the deceased (Deepti) and Sumit Agarwal took place on 3 November 2014. On 7 August 2020, the appellant lodged a complaint which was registered as a First Information Report under Section 154 of the CrPC. It is alleged that Sumit, his parents, brother-in-law and sister-in-law misbehaved with the deceased on account of dowry. The accused were charged under Sections 498A, 304-B, 323, 506 and 313 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, 1961. It is alleged in the FIR that the appellant had paid money on several occasions by cheque to the in-laws of the deceased. On account of the demand for dowry, it was alleged that she was severely assaulted in 2017 and the injuries were medically examined at the Government Hospital in Vrindavan.

Applications for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 were filed by four out of five persons. The husband of the deceased is in custody. The application was rejected by Sessions Judge, Agra. After that, an appeal was preferred before the High Court in which Anticipatory Bail was granted. It is against this order of granting Anticipatory Bail the present appeal is preferred.

Learned counsel for the Appellants submitted that (i) As a matter of fact, between 19 November 2015 and 15 December 2018, an amount of Rs.50.53 lacs was transferred by the parents of the deceased the rest being transferred into her account. (ii) In the charge-sheet which has eventually been filed on 5 November 2020, the recovery panchnama of the suicide note does not find mention. The suicide note is not in the handwriting of the deceased. (iii) In spite of the dismissal of the applications for anticipatory bail by the sessions judge and the specific allegation that Deepti had been killed, only her spouse was taken in for custodial interrogation and the alleged murder has not been investigated.

Learned counsel for the respondents submitted that (i) Several transfers of funds have been made to the deceased from the two hospitals, besides which amounts have been paid by the father-in-law to the deceased and her spouse for the purchase of property in their joint names. (ii) The alleged incident on 1 October 2017 is a fabrication since the brother-in-law and sister-in-law of the deceased had travelled to Mumbai on those days (iii) The suicide note, which has been forwarded to the forensic science laboratory, indicates that the deceased was in a depressed mental state due to her miscarriages. (iv) The recovery of the suicide note is evidenced by the recovery memos drawn up by the police.

With regard to granting anticipatory bail, the Court, Referring to its judgments in Siddharam Satlingappa Mhetre vs. State of Maharashtra (2011) 1 SCC 694 Jai Prakash Singh vs State of Bihar (2012) 4 SCC 379 Sushila Aggarwal vs State (NCT of Delhi) (2020) 5 SCC 1, observed the following:

It is a well settled principle of law that the setting aside of an “unjustified, illegal or perverse order” granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation. In Puran vs. Ramvilas, this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled. The recording of no reasons is one end of the spectrum. The other end of the domain for interference with an order granting anticipatory bail (into which the present case settles) is where the reasons are contrary to the material on record and hence found to suffer from perversity. (Para 15)

Further, the Court reproduced a part of its judgment from Myakala Dharmarajam vs. The State of Telangana (2020) 2 SCC 743 in the following words:

“It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in cancelling the bail.” (Para 9 of Myakala Dharmarajam vs. The State of Telangana)

Referring to judgment of the Court in Pokar Ram vs. State of Rajasthan (1985) 2 SCC 597, the Court made a distinction between the principles governing Anticipatory bail and ordinary bail. Applying the above elucidated legalities in the present case, the Court observed the following:

Judged in the light of the above principles, the judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. The FIR has referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found. The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as “engineered” to falsely implicate the spouse of the deceased and his family. We hasten to add that our observations at this stage are prima facie in nature, and nothing that we have said should be construed as a determination on the merits of the case which will be adjudicated at the trial. (Para 19)

With regard to transferring the case to CBI while charge sheet has been filed in the investigation, the Court referred to its judgment in Vinay Tyagi vs Irshad (2013) 5 SCC 762 and Pooja Pal vs Union of India (2016) 3 SCC 135 and observed the following:

The court held that wherever a charge-sheet has been submitted to the court, even this Court would not ordinarily reopen the investigation especially by entrusting it to a specialized agency. However, in a proper case, when the Court feels that the investigation by the police has not been in the proper perspective and that in order to do complete justice, where the facts of the case demand that the investigation be handed over to a specialized agency, a superior court is not bereft of the authority to do so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC (Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006])

In Pooja Pal vs Union of India16, a two judge Bench of this Court, speaking through Justice Amitava Roy, observed that there was no embargo on this Court to transfer an investigation to the CBI after submission of the charge-sheet. (Para 22)

While transferring the present case to CBI, the Court explained the special circumstances that require the transfer in the present case in the following words:

Having regard to the circumstances which have emerged on the record, which have been adverted to in the earlier part of the judgment, we are of the view that it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution. The conduct of the investigating authorities from the stage of arriving at the scene of occurrence to the filing of the charge-sheet does not inspire confidence in the robustness of the process. A perusal of the charge-sheet evinces a perfunctory rendition of the investigating authorities‟ duty by a bare reference to the facts and the presumption under Section 304B of the IBC when the death occurs within seven years of the marriage. The stance taken by the Deputy Superintendent of Police in the Counter Affidavit, filed a few days after forwarding the charge-sheet, travels beyond the scope of the investigation recorded in the charge-sheet with respect to the veracity of the suicide note, medical examination of injuries and the past miscarriages of the deceased. Critical facts of the money trail between the deceased, her father (the informant), and the accused; and the call history of A2, the informant and the deceased are unexplored. No attempt at custodial interrogation of the applicants was made between the issuance of non-bailable warrants on 9 September 2020 and interim protection from arrest by the High Court granted on 22 September 2020. As noted above, upon questioning during the hearing, the Counsel for the State answered that no investigation on the allegation of murder had been conducted. It would indeed be a travesty if this Court were to ignore the glaring deficiencies in the investigation conducted so far, irrespective of the stage of the proceedings or the nature of the question before this Court. The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminish this Court‟s faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst. (Para 23)

Consequently, the appeal was allowed and the judgment was set aside.

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Kalidharun K M