Accused Has No Indefeasible Right To Be Heard Before Transfer Of Probe To CBI: Punjab & Haryana High Court

The Punjab & Haryana High Court has said that the accused has no indefeasible right to be heard, before the High Court passes an order for transfer of investigation to the CBI.

Justice Sumeet Goel said, "there is no right nay indefeasible right vested in the accused/suspect, to be heard, before the High Court passes an order for transfer of investigation of a case/FIR to CBI."

In case, a plea (for transfer of investigation of a case/FIR to CBI) brings forth accentuating circumstances requiring the accused/suspect to put forward his version for opposing such a plea, the High Court would be well empowered to grant such an opportunity, added the Court.

These observations were made while hearing the plea to transfer the investigation in case of alleged gang rape to an independent agency.

It was alleged that prosecutrix was gang raped by the accused persons and a hefty amount was taken from her on pretext of getting her husband released on bail in a fraud case.

Counsel for the petitioner argued that there are specific allegations of rape as also extortion of money against the accused named in the FIR but the police has chosen to put up chargesheet only against one accused, and that too only under Sections 420 (cheating), 406 (criminal breach of trust) and 201 (causing disappearance of evidence) of the IPC.

It was alleged that the Police did not conduct free and fair investigation into the FIR in question on account of influence exerted by an IPS Officer of Haryana cadre who is a close relative of one of the accused.

After hearing the submissions, the Court observed that if prior notice and an opportunity of hearing is to be mandatorily given to an accused; in every criminal case at every stage before taking any action against him, such a procedure would frustrate the object of proceedings and "obstruct prompt action as the law demands; cause defeat of the ends of justice & will render provisions of law relating to investigation as lifeless, absurd and immobilized."

Reliance was placed on Supreme Court's decision in E Sivakumar v. wherein it held that the accused is not entitled to an opportunity of hearing as a matter of course, in a petition seeking impartial investigation.

 The Court concluded that, "an order by High Court, whereby investigation of a case/FIR is transferred to the CBI, cannot be said to be illegal on account of it not complying with the salubrious principle of “audi alteram partem”."

Consequentially, there is indefeasible right vested in the accused/suspects for being provided an opportunity of hearing, before transfer of investigation of a case/FIR to CBI, it added.

Adding a word of caution the Court said the High Court would be entitled to call upon the accused or allow them to state his stand, if accentuating circumstances are brought forward before the High Court to allow so.

In the present case, the Court noted that it is not the case wherein the accused/suspect is a senior Police Officer.

"The factum of material not having been found against the charge-sheeted accused in respect of offences under Sections 376- D/506/509 of IPC and the other FIR-named accused not having been charge-sheeted cannot be taken to be a good ground for transfer of the investigation of the FIR, in question, to CBI," the Court concluded.

Stating that petitioner has remedy to seek further investigation or seek consideration of the concerned Court for summoning of additional accused, the Court rejected the plea.

Also read: High Court Can Direct CBI Probe Even When FIR Is Not Lodged In Case, State's Consent Not Required: Punjab & Haryana High Court

Mr. Manoj Tanwar, Advocate for the petitioner.

Ms. Mahima Yashpal, DAG, Haryana.

Mr. Shiv Kumar Sharma, Advocate for respondent No.7. Mr. Ravi Kamal Gupta, Retainer Counsel for the CBI.

Case Title: NXXXX v. State of Haryana and others