Sushant Singh-Rhea Chakraborty Case : Did Single Bench Exceed Its Limited Jurisdiction U/s 406 CrPC By Ordering CBI Investigation?

Order VI Rule 1 of the Supreme Court Rules, 2013, provides that subject to the other provisions of these rules, every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice.

The following proviso has been inserted by Supreme Court (Amendment) Rules, 2019:

"Provided that the following categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice:........

(ii) Applications for transfer of cases under Section 406 of the Code of Criminal Procedure, 1973 (2 of 1974) 

(iii) Application of urgent nature for transfer of cases under Section 25 of the Code of Civil Procedure, 1908 (5 of 1908)".

Thus a judge nominated by the Chief Justice of India invoking this (part of) proviso can only hear and dispose of Transfer petitions filed under Section 406 CrPC and Section 25 of the Code of Civil Procedure 1908. That is to say, this judge, sitting singly, cannot decide any other issue other than those mentioned in the proviso. These Rules are made invoking Article 145(3) of the Constitution of India which empowers the Court to fix the minimum number of Judges who are to sit for any purpose, and to provide for the powers of single Judges and Division Courts. 

Before Justice Hrishikesh Roy, the nominated single judge, was a petition under Section 406 CrPC filed by Rhea Chakraborty. She prayed for transfer of the FIR registered at the Rajeev Nagar Police Station, Patna and all consequential proceedings, from the jurisdiction of the Additional Chief Judicial Magistrate III, Patna Sadar, to the Additional Chief Metropolitan Magistrate, Bandra Mumbai. 

The judge first considered the issue (a) whether he has power to transfer investigation (not case or appeal) under Section 406 of the CrPC?

Referring to the ratio in Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC 35, the judge held that only cases and appeals (not investigation) can be transferred. In other words, the Judge held that he has no jurisdiction to transfer the investigation from Patna Court to Mumbai Court.

It was appropriate to end the discussion there by dismissing the Transfer Petition as not maintainable.

But the court proceeded to consider the rest of the issues framed by it: (b) Whether the proceeding under Section 174 CrPC conducted by the Mumbai Police to inquire into the unnatural death, can be termed as an investigation; (c) 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; and (d) 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.

Regarding issue (b), the Judge '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. On issue (c), the Court 'held' that the Patna police committed no illegality in registering the Complaint. It also held that 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. Though the issue on the scope of the power of a single judge exercising jurisdiction under section 406 of the CrPC, is seen framed as issue (d), it is not discussed anywhere in the judgment. The last mention about Section 406 is made while answering the first issue (a).

After answering issue (c), the Court proceeded to observe that Mumbai police also possess the jurisdiction to undertake investigation. It notes that, in future, if commission of cognizable offence under section 175(2) CrPC is determined, the possibility of parallel investigation by the Mumbai Police cannot be ruled out. "Therefore, it would be appropriate to decide at this stage itself as to who should conduct the investigation on all the attending circumstances relating to the death of the actor Sushant Singh Rajput. This issue becomes relevant only if another FIR is registered on the same issue, at Mumbai. A decision by this Court on the point would confer legitimacy to the investigation.", the Court observed thus.

As referred above, the Supreme Court Rules are very clear when it says that a single judge can only hear and decide the matters for which he/she is nominated by the Chief Justice of India. Every other matter ought to be heard by a Division Bench. But interestingly, the single judge, in this case, after finding that he has no jurisdiction to transfer investigation under Section 406 from the Court in Patna to the Court in Mumbai, proceeded to hear and decide as to who should conduct the investigation. Conferring legitimacy to the investigation which is underway is not the purpose of Section 406 CrPC. In my humble view, Single Bench of the Apex Court had no jurisdiction to entertain a petition except for transfer of cases and appeals under Section 406.

Invocation of Article 142

It is by invoking Article 32 of the Constitution that the Supreme Court transfers an investigation to the CBI. It has been held that the High Court can, in appropriate cases, invoke Article 226 to order CBI investigation. The Supreme Court, exercising its appellate jurisdiction, has also ordered CBI investigations. All these have been done by Division Benches because they possessed the power to do so by virtue of Supreme Court Rules. But single bench chose to exercise his Article 142 power to decide something that was not assigned to it by roster. In State of Punjab and others vs. Bakshish Singh (1998) 8 SCC 222), it was observed that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.

Article 142 empowers the Supreme Court in the 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. Here, in this case, the Supreme Court's single bench was exercising Section 406 CrPC jurisdiction and Article 142 can be invoked in the exercise of that jurisdiction and nothing else. Here the 'cause or matter' pending before it was not about the choice of investigating agency, but whether the case should be transferred from the Court in Patna to the Court in Mumbai. 

Legitimizing Investigations Held Without Jurisdiction

As per Section 156 CrPC, a police officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII. Sub- section (2) further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. It is also settled law that, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed.

In this case, the death of Sushant Singh Rajput happened in Mumbai. Deceased's father filed FIR in Patna. It is true that the investigation started by Patna Police ought not to be interfered with at this stage. But the question here is whether the Supreme Court should have preempted the investigation at the place of occurrence i.e. Mumbai? What the Supreme Court essentially did was it stopped the police which had natural jurisdiction from proceeding with the case and upheld the CBI investigation rooted in an FIR lodged in Patna. This would set a bad precedent and may help the trend of people lodging FIR at places where political environment is suitable.

Ordering CBI investigation

In this case, the Court ordered CBI investigation to ensure public confidence in the investigation and to do complete justice in the matter. It said that the same would also ensure "public confidence", as speculations have been floating around and they can be put to rest with an impartial investigation into the late actor's death and would result in dissemination of the "real facts through unbiased investigation". The court also noted that 'both states are making acrimonious allegations of political interference against each other, the legitimacy of the investigation has come under a cloud.'

It is only necessary to quote the following observations made in a Constitution Bench judgment in this regard. "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. In so far as the question of issuing a direction to the 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 extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill 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 the 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." [State of West Bengal and Ors. vs. Committee of Protection of Democratic Rights, West Bengal and Ors. reported in (2010) 3 SCC 57] 

So, ordering CBI inquiry merely on the basis of allegations against the investigating agency, without recording any dissatisfaction with respect to the course of the investigation (the SC judgment, in fact, states that there was nothing on record to show any wrongdoing by the Mumbai Police so far), is against settled precedents. In my view, the Supreme Court should have just dismissed the Transfer Petition as not maintainable and should not have dwelt into other issues since it had no relevance after it found that it has no jurisdiction to decide the Transfer petition itself.