An analysis of SC verdict in the Sushant Singh Rajput case that paves way for CBI to investigate - The Daily Guardian
Connect with us

Legally Speaking

An analysis of SC verdict in the Sushant Singh Rajput case that paves way for CBI to investigate

While according approval for the ongoing CBI investigation, if any other case is registered on the death of actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Rahul Bhandari

Published

on

The case of fateful demise of young celebrity actor Sushant Singh Rajput’s generated a lot speculation in the last few days among the public and media. Emotions were high demanding non-partisan inquiry into his sudden death. Initially, the Mumbai Police started investigating the case in terms of section 174 of CrPC without formal registration of a FIR. Successively, Bihar Police registered a FIR on the basis of complaint of father of deceased Sushant Singh Rajput under various serious sections of IPC, 1860 as against actor Rhea Chakorbarty and Ors. In due course, Mumbai Police and Bihar Police were at loggerheads over the Investigation of the case. Both sides, the accused and victim were fearing no justice, leading to a lawsuit in Supreme Court.

Finally, the Supreme Court on 19.08.2020 gave a judgment in Rhea Chakraborty vs State of Bihar and Ors paving a way for Central Bureau of Investigation to investigate the case putting an end to all kind of murmur. The case was filed by Rhea Chakraborty under section 406 of CrPC seeking transfer of case registered by Bihar Police to Mumbai Police. Section 406 of Code of Criminal Procedure deals with power of Supreme Court to transfer cases and appeals from on State to another State, to secure the ends of justice. Additionally, Supreme Court Rules 2013 empowers a Single Judge of Supreme Court to deal with cases of transfers.

Rhea Chakraborty argued that she has been falsely implicated by the Bihar Police, that the incidents alleged have been taken place entirely in the jurisdiction of State of Maharashtra, therefore the jurisdiction lies only with the Mumbai Police and not with Bihar Police. And since the Bihar Police lacked the jurisdiction to register and investigate a case hence transfer of investigation to CBI on Bihar Govt’s consent would not amount to a lawful consent under section 6 of Delhi Special Police Establishment Act, 1946. To explain briefly, section 6 of DSPE Act mandates consent of State Government to enable any exercise of power by member of DSPE in an area of that State Govt. Interestingly, petitioner also made a prayer for an exercise of power under Article 142 of Constitution of India. Article 142 of Constitution of India gives power to Supreme Court to pass any order or direction for doing a complete justice in the matter, which is often termed as one of the most important tools of Supreme Court.

The stand of the Bihar Government was that upon disclosure of a cognizable offence, it is mandatory on the police to register an FIR and investigate the case. Since the allegation of criminal breach of trust, cheating and defalcation of money from account of deceased was alleged, the Bihar Police is well within its jurisdiction to register a case. Also, since no FIR was registered by Mumbai Police, the action of Bihar Police in registration of FIR and consequent consent for entrustment of investigation to CBI satisfies the requirement of Section 6 of DSPE Act. Uniformly, it was urged by the father of Sushant Singh Rajput that since only an investigation (not a case or appeal) is pending at Patna, and a legally competent investigation has commenced, invocation of Section 406 power by this Court to transfer the investigation, is projected to be not merited.

The State of Maharashtra asserted that the Mumbai Police is seized of investigation and already examined around 56 persons and if it discloses commission of cognizable offence, the FIR will be registered and that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction, the offence was committed. That further crime investigation cannot be routinely transferred to the Central Agency. The Union of India being also a party submitted that in the absence of any FIR by the Mumbai Police following the death of the actor on 14.06.2020, the FIR registered at Patna at the instance of the deceased’s father is projected to be the only one pending. Hence, the matter does not relate to two cases pending in two different states. Referring to the contradictory stand and the parallel allegation of state’s Police being influenced by external factors in both states, Union prayed that this itself justifies entrustment of the investigation to an independent Central Agency.

Answering these contentions, the Supreme Court framed four important questions of law. Coming to the first question of law ‘whether under section 406 of CrPC a mere ‘investigation’ can be transferred’. Relying on a previous judgment rendered by J. Krishna Iyer of Supreme Court in Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC 35, it has been held that only cases and appeals (not investigation) can be transferred under section 406 of CrPC. A mere investigation done by a Police Station cannot be transferred to another part of the Country.

 Secondly, whether the proceeding under Section 174 CrPC conducted by the Mumbai Police to inquire into the unnatural death, can be termed as an ‘investigation’. Supreme Court held that “the proceeding under Section 174 CrPC is limited to the inquiry carried out by the police to find out the apparent cause of unnatural death. In the present case, the Mumbai Police has attempted to stretch the purview of Section 174 without drawing up any FIR and therefore, as it appears, no investigation pursuant to commission of a cognizable offence is being carried out by the Mumbai police. They are yet to register a FIR. Nor they have made a suitable determination, in terms of Section 175(2) CrPC. Therefore, it is pre-emptive and premature to hold that a parallel investigation is being carried out by the Mumbai Police. Following the above, it is declared that the inquiry conducted under Section 174 CrPC by the Mumbai police is limited for a definite purpose but is not an investigation of a crime under Section 157 of the CrPC.” To base this finding, the Learned Single Judge had relied on a judgment titled Manoj K Sharma vs. State of Chhatisgarh (2016) 9 SCC 1.”

Thirdly, “whether it was within the jurisdiction of the Patna Police to register the FIR and commence investigation of the alleged incidents which took place in Mumbai? As a corollary, what is the status of the investigation by the CBI on the consent given by the Bihar government”. Answering this, it has been held that ‘registration of FIR is mandated when information on cognizable offence is received by the police. Precedents suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case. Moreover, the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police. Hence they were not required to transfer the investigation to Mumbai Police. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful’. While answering this query, it has been also held that though the Patna police although found to be competent to investigate the allegation in the Complaint, the FIR suggests that most of the transactions/ incidents alleged in the Complaint occurred within the territorial jurisdiction of the State of Maharashtra indicating that the Mumbai police also possess the jurisdiction to undertake investigation on those circumstances. Therefore, in the event of a case being registered also at Mumbai, the consent for the investigation by the CBI under Section 6 of the DSPE Act can be competently given by Maharashtra Government. Hence, this needs to be determined.

Lastly, “What is the scope of the power of a single judge exercising jurisdiction under section 406 of the CrPC and whether this Court can issue direction for doing complete justice, in exercise of plenary power”. Explaining this, it has been held while the CBI cannot conduct any investigation without the consent of the concerned state as mandated under section 6, the powers of the Constitutional Courts are not fettered by the statutory restriction of the DSPE Act and Supreme Court can pass appropriate directions by resorting to Article 142. Relying on the judgment rendered in Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradesh and Others (2008) 8 SCC 781 on Article 142 of Constitution of India which stated that-

“Under Article 142 of the Constitution this Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any “cause” or “matter” pending before it. The expression “cause” or “matter” would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal.

 This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality……’’

Hon’ble Justice Hrishikesh Roy held that the “above ratio makes it amply clear that the Supreme Court in a deserving case, can invoke Article 142 powers to render justice. In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.”.

Hence, it becomes clear from a reading of the judgment that that every query has been methodically answered. It is not a first time that a Single Judge of Supreme Court has exercised powers under Article 142 of Constitution of India. Infact, in Gaurav Jain vs UOI and Ors reported in (1997) 8 SCC 114, the Supreme Court has already held that “a Single Judge of a Supreme Court can invoke Article 142 to issue appropriate orders/ directions to meets the end of justice in a case. However, a point which is being argued post this judgment is that whether sitting in this roster such directions could have been issued, though this point according to me has also been taken care by the Hon’ble Single Judge. While we may continue to argue on various legal issues, the judgment had atleast put a final stamp regarding investigation which seems to be in the interest of both parties for the time being.

Adv. Rahul Bhandari practices at the Supreme Court, Delhi High Court and district courts at Delhi.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Who will be next APTEL Chairman ?

Tarun Nangia

Published

on

Justice Hemant Gupta, currently serving as Judge, Supreme Court of India may be appointed as the next Chairman of the Appellate Tribunal for Electricity (APTEL). Justice Hemant Gupta’s tenure as Judge of Supreme Court comes to an end on October 16th.

Justice Gupta enrolled as an advocate in July 1980 and started practice in the District Court of Chandigarh. He entered in the High Court of Punjab and Haryana and worked on Civil, Labour, Company and Constitutional matters. In 1997 he was appointed Additional Advocate General of Punjab and elevated as a Judge of High Court of Punjab and Haryana on 2 July 2002. Justice Gupta was transferred to the Patna High Court in February 2016,[1] thereafter took over the charge of acting chief justice of the Patna High Court after the retirement of Justice Iqbal Ahmed Ansari on 29 October 2016. He was appointed the Chief Justice of the Madhya Pradesh High Court on 18 March 2017.In November 2018 he became Justice of the Supreme Court of India

Continue Reading

Legally Speaking

Delhi HC asks trial court to consider Sharjeel Imam’s bail plea for relief

Published

on

By

The Delhi High Court has instructed a trial court to first consider former JNU student Sharjeel Imam’s application for relief under Section 436-A CrPC on the grounds that he has been in custody for 31 months following a 2019 sedition FIR, in accordance with the Supreme Court’s directive to keep sedition cases on hold.

According to Section 436-A, a person might well be released on bail by the court after serving a sentence of up to one-half the maximum allowed for the offence against him up until the end of the trial.

Imam claims that because he has been imprisoned for more than a year and a half since his arrest in February 2020 and has served more than half of the maximum sentence of three years under Section 153A (promoting hostility among religious groups), he is entitled to the advantage of being released.

A speech that Imam delivered at Jamia Millia Islamia in 2019 is the subject of a charge against him that was filed at the New Friends Colony (NFC) Police station.

Justice Anoop Mendiratta asked the trial court to consider the Supreme Court’s order keeping the offence of sedition in abeyance when deciding whether to grant the applicant’s request for default bail on Monday (September 26), while permitting him to withdraw his application for regular bail in a 2019 sedition case.

Appearing for Imam, his counsel Ahmad Ibrahim told the judge that the trial court, while dismissing his bail plea, had only made observations against him with respect to offences under Section 153A and 124A (sedition) and opined that no case was made out under other offences.

The counsel argued that the only offence which now warrants consideration of the trial court during the hearing of bail plea is Section 153A as offence of sedition has been kept abeyance.

Special public prosecutor Amit Prasad told the court that Imam’s bail plea pending before High Court may be withdrawn in entirety, as it may not be appropriate to consider the application under Section 436A CrPC in a piecemeal with reference to Section 153A of IPC.

Continue Reading

Legally Speaking

Delhi High Court restrains Axis Bank from substituting PS Toll Road Pvt Ltd (PSTR) as the concessionaire of the Pune Satara Toll Road Project

Tarun Nangia

Published

on

Delhi high court

The Delhi High Court has restrained Axis bank from substituting PS Toll Road Pvt. Ltd (PSTR) as a concessionaire of the Pune Satara Toll Road Project. The order authored by Justice Anup Jairam Bhambani found Axis Bank in breach of its own undertaking given before the court.

The court says Axis Bank is bound by its undertaking given to the court in February 2021 & then in March 2021 that it will not go ahead with the substitution of the concessionaire in the PS Toll Road project, without the court’s nod.

Delhi HC says Axis Bank’s undertaking was unconditional, and therefore it cannot rely upon any event under the Concession Agreement or the Substitution Agreement, to appoint a new concessionaire in the project.

PS Toll Road Pvt Ltd (PSTR), the concessionaire of the Pune Satara Toll Road project, had challenged the appointment of a new concessionaire in the project by the Axis Bank despite a stay on the process by the Delhi HC in March 2021.

PS Toll Road Pvt Ltd, in its appeal before the Delhi HC, has contended that Axis Bank was in breach of its own undertaking given before the court in 2021, that it will not finalize the bids or award the contract to a third party, thereby substituting the PS Toll Road Pvt Ltd.

Sr. Adv. Neeraj Kishan Kaul with Sr. Adv. Dayan Krishnan and Adv. Mahesh Agarwal of Agarwal Law Associates (ALA) represented PS Toll Road Pvt. Ltd.

Court has issued notice to Axis Bank and the matter will be heard on 28 September.

PS Toll Road Pvt Ltd is a subsidiary of Reliance Infrastructure Ltd. and was awarded the contract for six laning of 140 KM of stretch between Pune and Satara in Maharashtra on BOT basis. The project is now complete.

Continue Reading

Legally Speaking

Supreme Court: Permanent injunction cannot be sought on the basis of an unregistered agreement to sell

Published

on

Supreme Court: Permanent injunction cannot be sought on the basis of an unregistered agreement to sell

The Supreme Court in the case Balram Singh vs Kelo Devi observed and stated that a relief of permanent injunction cannot be sought on the basis of such an unregistered document/agreement to sell.
The bench comprising of Justice MR Shah and Justice Krishna Murari observed that a plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for specific performance.
In the present case, a suit has been filled by the plaintiff praying for a decree of permanent injunction restraining the defendant from disturbing her possession in the suit property, which was claimed on the basis of the agreement to sell of which was an unregistered agreement/document to sell on ten rupees stamp paper. The suit was dismissed by the Trial Court by the original plaintiff and refused to grant permanent injunction and allowed the counter-claim of the defendant. However, the First Appellate Court reversed the Trial Court judgment and decreed the suit. The second appeal filled by the defendant was dismissed by the High Court.
In appeal, the defendant-appellant contended that an unregistered agreement to sell is not admissible in evidence and that the suit filed by the original plaintiff was only for permanent injunction and she did not seek the relief for specific performance of agreement to sell by adopting a clever drafting as she was well aware that she would not succeed in the suit filled for specific performance on the basis of an unregistered agreement to sell. On the other hand, it was contended by the respondent-plaintiff that an unregistered document can be used for collateral purpose and therefore both, the first appellate Court as well as the High Court have rightly passed a decree for permanent injunction while considering the agreement for selling of collateral purpose for grant of permanent injunction.
The Apex Court observed, while allowing the appeal:
However, having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, a suit was filed by the plaintiff simplicitor for permanent injunction only. In a given case, it may be true that an unregistered document can be used and/or considered for collateral purpose and at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case filled for the relief of specific performance. Thus, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was being allowed by the learned trial Court. It has been cleverly prayed by the plaintiff for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered agreement/document to sell, no decree for specific performance could have been passed. By clever drafting, the plaintiff cannot get relief.
Therefore, the court restored the Trial Court judgment dismissing the suit and allowing the counter-claim.

Continue Reading

Legally Speaking

Supreme Court refuses to stay EC proceedings on Shinde’s claim, ‘real’ Shiv Sena tussle

Published

on

Who is real Shiv Sena? SC leaves it to EC to decide

On Tuesday, a constitution bench of the Supreme Court allowed the Election Commission of India to go ahead and decide Maharashtra Chief Minister Eknath Shinde’s claim that his faction represents the “real” Shiv Sena.
The bench comprising of Justice D.Y. Chandrachud dismissed the plea of Uddhav Thackeray camps to stay the ECI proceedings. It was argued by Mr. Thackeray that the Shinde faction was facing disqualification proceedings for defection under the 10th schedule and that the ECI should wait until the question of disqualification was decided.
The Supreme Court stated during the hearing that there was a bit of problem with Mr. Thackeray’s argument that the ECI proceedings under the Symbols Order of 1968 should be “stultified” merely because of a disqualification process against the Shinde function was pending before the Assembly Speaker.
Also, the bench comprising of Justice M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha stated that “we direct that there would be no stay of the proceedings before the Election Commission”.
It was observed that the Thackeray-led Maha Vikas Aghadi government had collapsed after a revolt by Mr. Shinde and the 39 other legislators against the Sena leadership.
On June 30, Mr. Shinde was sworn in as the CM along with BJP’s Devendra Fadnavis as his deputy.
The Supreme Court had referred to a five-judge bench on August 30, the plea filled by the Thackeray and Shinde-led factions raising several constitutional questions related to defection, disqualification and merger.
It was also stated that it had been asked the Election Commission Of India (ECI) not to pass any orders on the Shinde faction’s petition that it be considered the “real” Shiv Sena and be granted the party’s poll symbol.
However, the bench led by the then Chief Justice N.V. Ramana has said that the batch of petitions raise important constitutional issues which is relating to the 10th schedule of the Constitution pertaining to the disqualifications, power of the speaker and the governor, and judicial review.
It is provided by the 10th schedule of the Constitution for the prevention of defection of the elected and the nominated members for their political parties and contains stringent provisions against defection.
Earlier, it has been submitted by Thackeray faction that party MLAs loyal to Shinde can save themselves from disqualification under the 10th schedule of the constitution only by merging with another political party.
It has been contended by the Shinde group that the anti-defection law is not a weapon for a leader who has lost the confidence of his own party.

Continue Reading

Legally Speaking

Supreme Court Collegium Recommends To Elevate Bombay HC Chief Justice Dipankar Datta As Judge Of Supreme Court

Published

on

Supreme Court Collegium Recommends To Elevate Bombay HC Chief Justice Dipankar Datta As Judge Of Supreme Court

The Supreme Court Collegium has recommended to elevate Bombay High Court Chief Justice Dipankar Datta as a Judge of the Supreme Court.
Justice Datta is the son of a former Calcutta High Court Judge, late (J) Salil Kumar Datta and brother-in-law of Justice Amitava Roy, former Supreme Court Judge and was born in February 1965.
However, in 1989, he obtained his LL.B. degree from the University of Calcutta and was enrolled as an Advocate on November 16, 1989. Further, he worked as a Junior Standing Counsel for the State of West Bengal from May 16, 2002 to January 16, 2004 and as a Counsel for the Union of India since 1998.
From June 22, 2006., he worked as a Judge of the Calcutta High Court. On April 28, 2020., he was elevated as the Chief Justice of Bombay High Court.
He has passed several significant judgements as CJ of the Bombay High Court, including home vaccination for the bedridden and has directed a preliminary enquiry against Anil Deshmukh – Maharashtra Home Minister at the time, and an authoritative pronouncement on an illegal construction.

Continue Reading

Trending