Recently, the Supreme Court on 19 August 2020, in Rhea
Chakraborty v. State of Bihar & Ors¹, has
illuminated on various crucial elementary concepts of criminal law
including power to transfer investigation under Section 406 of the
Criminal Procedure Code, 1973 (CrPC), nature and scope of inquiry
under Section 174 CrPC, territorial jurisdiction of police to
investigate and power of a single Judge under Section 406 CrPC for
the purpose of justice. The decision has also shed light on
investigation entrustment to Central Bureau of Investigation
(CBI).

Facts

Put shortly, the judgment arises out of a transfer petition
under Section 406 CrPC filed by the Petitioner for transfer of a
First Information Report (FIR) registered at Patna, Bihar and all
subsequent proceedings from the jurisdiction of the concerned
Magistrate, Bihar to the concerned Magistrate, Mumbai, Maharashtra.
The transfer was sought on the ground that the victim/deceased,
whose unnatural death was reported under Section 174 CrPC, was
residing within the jurisdiction of the concerned police station at
Mumbai. The FIR was filed by the father of the victim/deceased
against the Petitioner in Patna.

Decision & Analysis

Power to transfer investigation under Section 406 CrPC

The court held that a transfer plea under Section 406 CrPC was
granted in cases where the court believed that that the trial may
be prejudiced and fair and impartial trial cannot take place in
case the trial continues. The court relied on the long standing
ratio in Ram Chander Singh Sagar & Anr. v. State of Tamil
Nadu² wherein it was held that Section 406 CrPC
pertains to a power to transfer a case or appeal from one High
Court or a court subordinate to one High Court to another High
Court or to a court subordinate thereto. It does not apply for
transfer of investigation from one police station to another.

In view of the above, the court, considering the contours of the
power under Section 406 CrPC, concluded that only cases and appeals
can be transferred and not investigation.

Nature and scope of proceedings under Section 174 CrPC

The court observed that proceeding under Section 174 CrPC is
limited to inquiry carried out by the police to find out the
apparent cause of an unnatural death. These are not
“investigations” as undertaken after filing of an FIR. As
a matter of fact, the court noted that Mumbai Police was yet to
register an FIR pursuant to Section 174 CrPC inquiry.

The court relied on Manoj K. Sharma v. State of
Chhattisgarh³ (a case having factual resemblance),
wherein it was held that Section 174 CrPC has a very limited scope.
The said decision further held that the object of Section 174 CrPC
is only to ascertain the apparent cause of the death. The question
regarding other details as to how the deceased was assaulted or who
assaulted or under what circumstances, is foreign to the scope and
ambit of Section 174 CrPC. Section 174 CrPC is for the purpose of
“inquiries” and entirely distinct from an
“investigation”. Thus, the court held that Section 174
CrPC is not an investigation of a crime.

Jurisdiction of the police to register an FIR and investigate
incidents which did not take place in its jurisdiction.

In this section, the court discussed whether the Patna Police
had the jurisdiction to register the complaint when the victim was
residing in another state. As per the complainant, his attempt from
Patna to talk to his deceased son was thwarted by the Petitioner/
Accused.

The court held that registration of FIR is mandated when
information on cognizable offence is received by the police. In
this regard, the court relied on Lalita Kumari v. State of
U.P⁴. The court observed that there are precedents
which suggest that at the stage of investigation, it cannot be said
that the concerned police station does not have territorial
jurisdiction.

The court considered to interpret Section 177 CrPC (Ordinary
Place of Inquiry or Trial) and 178 CrPC (Place of Inquiry or
Trial). The decision in Satvinder Kaur v. State (Govt of NCT of
Delhi)⁵ was relied on, wherein it was held that
Section 178 CrPC, inter alia, provides for a place of
enquiry or trial when it is uncertain in which of several local
areas an offence was committed or where the offence was committed
partly in one local area and partly in another and where it
consisted of several acts done in different local areas, it could
be enquired into or tried by a court having jurisdiction over any
of such local areas. Hence, at the stage of investigation, it
cannot be held that the police does not have territorial
jurisdiction to investigate the crime.

To discuss the jurisdictional aspect, when allegations of
criminal breach of trust or of misappropriation are made, the court
relied on Asit Bhattacharjee v. Hanuman Prasad
Ojha⁶. In the said decision, the court referred to
Section 181 CrPC which provides for place of trial for certain
offences. It was held that Section 181(4) CrPC clearly suggest that
even if a part of cause of action has arisen, the police station
concerned situated within the jurisdiction of the magistrate
empowered to take cognizance will have the jurisdiction to make
investigation.

The court further relied on Naresh Kavarchand Khatri v.
State of Gujarat⁷; Rasiklala Dalpatram Thakkar
v. State of Gujarat⁸ which followed Satvinder
Kaur. In Rasiklala Dalpatram, the Supreme Court made
it clear that a police officer cannot refrain from investigating a
matter on territorial ground and the issue can be decided after
conclusion of the investigation.

Regarding the allegations of criminal breach of trust or
misappropriation, the court held that the same were to be
eventually accounted for in Patna and could prima facie
indicate the lawful jurisdiction of the Patna Police. In this
regard, the Supreme Court relied on Lee Kun Hee, President,
Samsung Corporation, South Korea and Others v. State of Uttar
Pradesh and Ors⁹., wherein it was held
that in terms of the offences of criminal breach of trusts and
misappropriation of money, the court within whose local
jurisdiction, the whole or a part of consideration were required to
be returned or accounted for, would have jurisdiction.

As per the law enunciated above, the court held that there
exists no illegality in the FIR registered by the Patna Police.

Investigation entrustment to CBI and the direction on
investigation.

In fact, the FIR registered at Patna, Bihar was transferred to
the CBI with the consent of the Bihar Government. Section 6 of the
Delhi Special Police Establishment Act, 1946 read with Section 5
prescribe the requirement of consent from the concerned state
government, before entrustment of an investigation to the CBI. The
court held that since the CBI has already registered a case and
commenced investigation at the instance of the Bihar Government,
uncertainty and confusion must be avoided in the event of Mumbai
Police also deciding to simultaneously investigate the cognizable
offence, based on their finding in the inquiry proceeding. Hence,
the court thought it fit to decide as to who should conduct the
investigation.

The court observed that there exists a conflict between the two
state governments regarding the competency to investigate the case.
The court relied on K.V. Rajendran v. Superintendent of Police,
CBCID, Chennai & Ors¹⁰ wherein it was held that
transfer of an investigation must be in rare and exceptional cases
to do complete justice between the parties and to instil confidence
in the public mind.

The court held in favour of the investigation already commenced
by CBI and observed that it would be appropriate if the case in
Mumbai is also investigated by the said agency. While reaching to
such a conclusion, it was held that the court must strive to ensure
that search for the truth is undertaken by an independent agency,
not controlled by any state government/s.

Regarding Supreme Court’s power under Article 142, the court
relied on Monica Kumar (Dr.) and Anr. v. State of Uttar Pradesh
and Others¹¹ wherein it was held that the
court’s power under Article 142 to do “complete
justice” is entirely of a different level and a different
quality. The said decision also held that once the court
has seisin of a cause or matter before it, it has power to issue
any order or direction to do “complete justice” in the
matter.

Following Monica Kumar, the court was of the view that
the case in hand, in its peculiar circumstances, is a deserving
case to invoke Article 142 to ensure complete justice and to ensure
public confidence for a fair, incompetent and impartial
investigation.

Key Takeaways

Briefly, below are the key takeaway from the decision:

1. Section 406 CrPC pertains to transfer of cases or appeals, only
   and not investigations;




2. The scope of Section 174 CrPC is limited and is in the nature
   of an “inquiry” and not an
   “investigation”;




3. Registration of FIR is mandatory when information of a
   cognizable offence in received. Police cannot refrain from
   conducting investigation on a territorial ground. Moreover, in any
   offence of allegation of criminal breach of trust or
   misappropriation, the local court, where the offence was committed
   or any part of the property (involved in the offence) was received
   or retained or was required to be returned or accounted for, would
   be the place of trial; and




4. There is no impediment for exercise of Article 142 when the
   Supreme Court is exercising lawful jurisdiction. Article 142 can be
   invoked to ensure public confidence in the investigation and for
   the purpose of rendering complete justice in a deserving case.

Footnotes

1 Transfer Petition (Cri) 225 of 220

2 (1978) 2 SCC 35.

3 (2016) 9 SCC 1

4 (2014) 2 SCC 1

5 (1999) 8 SCC 728

6 (2007) 5 SCC 786

7 (2008)8 SCC 300,

8 (2010) 1 SCC 1

9 (2012) 3 SCC 132

10 (2013) 12 SCC 480,

11 (2008) 8 SCC 781,

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.