HC Must Say Why State Police Investigation Is Unfair Before Ordering CBI Probe : Supreme Court Sets Aside Calcutta HC Order

The Supreme Court today set aside a Calcutta High Court order directing preliminary investigation by the CBI, holding that such directions can be passed only in very rare cases, and that too, after the High Court records reasons for deeming State investigation to be unfair or impartial.

"The High Court while exercising its powers under Article 226 of the Constitution can entrust investigation to the CBI. However, for doing so, it has to come to a reasoning as to why it finds that investigation by State police is not fair or is partisan. Merely, on the basis of some letters, such exercise is not warranted. It has also been held that such an exercise of entrusting the investigation by the High Court has to be done in very rare cases. A perusal of the order passed by the learned single judge would reveal that there is not even a whisper as to why it finds the investigation by the state to be unfair or impartial so as to find it necessary to direct an enquiry to be conducted by CBI. For the very same reasons, the order passed by the learned Division Bench is also not sustainable in law", said the bench of Justices BR Gavai and KV Viswanathan.

Quashing the impugned orders, whereby preliminary investigation was handed over to CBI, the Court ordered that the Single Judge of the High Court shall decide the underlying writ petition in accordance with law.

Briefly stated, a writ petition was filed before the High Court raising several issues concerning the recruitment and the regularization of the Voluntary Teachers in Gorkha Territorial Administration (GTA). A declaration was sought to the effect that the orders passed directing regularization of those Voluntary Teachers were null and void and did not confer any right to a person in whose favor the orders were passed.

In course of hearing of the said writ petition, certain letters were received by the Single Judge, wherein several illegalities and/or infirmities in the action of the GTA as well as the State were flagged. Considering the same, the Single Judge directed an SIT of the CBI to conduct a preliminary examination and/or analysis of the allegations.

This order was appealed before a Division Bench of the High Court, but it did not deem any interference necessary. The Division Bench noted that the state registered the FIR after "the whistle was blown" by the writ-petitioner and the Single Judge's order passed. Further, it observed that certain letters were written to the then Minister-in-Charge seeking regularization of the Voluntary Teachers and the consequential steps were taken thereupon. As a person holding high position in the Government appeared to be involved, the Court opined there were no fetters on its power to order preliminary investigation by an independent agency.

The High Court's orders were assailed before the Supreme Court by the State, claiming that scrutiny of public order and/or consequential steps to be taken was within the realm of the State List which could not be diverted either through an executive fiat or by a judicial order. Further, it was contended that the State Government had constituted an SIT and submitted a report, which lead to registration of the FIR. On the basis thereof, the investigation was going on and therefore the direction to make preliminary examination by the CBI was in effect transgressing the authority of the State. It was also submitted that directions for CBI probe should be a last resort, exercised only in exceptional cases.

After hearing the State, represented by Senior Advocate Neeraj Kishan Kaul, and the respondent/writ petitioner, represented by Senior Advocate Bikash Ranjan Bhattacharyya, Justice Gavai remarked,

"The law is very settled. No doubt, under Article 226, the High Court direct an investigation to be entrusted to CBI. But then, it has come to reasons and it has to be done in very rare case. Law and order is a state subject."

Ultimately, the petition was allowed and the impugned High Court order set aside.

Case Title: STATE OF WEST BENGAL Versus JASHIMUDDIN MONDAL AND ORS., SLP(C) No. 9628/2024 

Citation : 2024 LiveLaw (SC) 759

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