Debangsu Basak, J
1. The petitioner has sought proper investigation with respect to First Information Report (FIR) being FIR No. 132 dated June 10, 2017. He has sought
a direction upon the respondents to recover his minor daughter from the clutches of the private respondent, arrest the accused persons and, the Police
to proceed in accordance with law with regard to the FIR.
2. Learned Advocate appearing for the petitioner has submitted that, the minor daughter of the petitioner who was to appear in the Class X
examinations for the year 2017 went missing on June 9, 2017. Despite the best of the efforts of the petitioner to locate her missing daughter, the
petitioner could not locate her. The petitioner thereafter lodged a complaint with the Police on June 10, 2017. The complaint was subsequently
registered as a First Information Report bearing FIR No. 132 dated June 10, 2017. The Police did not take any initiative to recover the minor daughter
of the petitioner. Although the private respondent No. 6 was an accused and the petitioner supplied specific informations with regard to the
involvement of the private respondent No. 6 in the crime, the Police did not arrest the private respondent No. 6. The Police did not take initiative to
gather the available evidences. The Close Circuit Television (C.C.T.V.) footage was not called for or looked into.
3. Learned Advocate appearing for the petitioner has highlighted the conduct of the Police subsequent to the filing of the writ petition. He has referred
to the order dated February 16, 2018 passed by the High Court. He has submitted that, by such order, the respondent No. 3 was directed to ensure
that a raid was carried out at the premises identified by the petitioner to recover the victim girl. However, despite such order, the police went to the
social media to deny that there was any order of such nature. He has submitted that, this activity of the Police, shook the confidence of the petitioner
in the Police. Moreover, subsequent to such order, the Police did not take any step to recover the minor daughter. During the pendency of the writ
petition, the Police sought to pass off a dead body of a different person as that of the daughter of the petitioner. On DNA examination, it was
established that, such dead body was not that of the petitioner. Present investigating authority being unable to recover the minor daughter of the
petitioner, the Court should change the investigating authority and that, the Central Bureau of Investigation should be directed to take over the
investigation forthwith. The petitioner has been patient with the Police. The Police have failed to deliver. The Special Investigating Team set up by the
High Court made no progress since taking over charge. The Special Investigating Team is yet to recover the minor daughter. It is appropriate that, the
Court should intervene to change the investigating agency. He has relied upon 2011 Volume 9 Supreme Court Cases page 182 (State of Punjab v.
Central Bureau of Investigation and others) and 2010 Volume 3 Supreme Court Cases page 571 (State of West Bengal & Ors. v. Committee for
Protection of Democratic Rights, West Bengal & Ors.) in support of his contentions.
4. Learned Advocate General appearing for the State respondents has submitted that, the Police have taken such measures as are permissible in law
to recover the victim girl. He has referred to the orders passed by the Court from time to time. He has drawn the attention of the Court to the reports
submitted by the Special Investigating Team, from time to time to the Court. He has submitted that, change of investigating agency should not be
granted for the asking. The fact scenario must make out a case for change of the investigating agency. In the facts of the present case, according to
him, there does not exist any ground for changing the present investigating agency. He has submitted that, the present investigating agency came into
being pursuant to the order of the Court passed in the present writ petition. He has submitted that, the Special Investigating Team was constituted on
February 28, 2019. Thereafter, the Special Investigating Team has taken measures from time to time in order to recover the minor daughter of the
petitioner. Unfortunately, the Special Investigating Team has not been successful. That by itself does not mean that, the investigation should be made
over to the Central Bureau of Investigation. He has relied upon 2018 Volume 15 Supreme Court Cases page 480 (Bimal Gurung v. Union of India and
others) in support of his contentions.
5. The daughter of the petitioner is missing since June 9, 2017. On such date, the daughter of the petitioner was a minor. The petitioner had lodged a
complaint with the Police on June 10, 2017. Such complaint was registered as a FIR. Subsequently, the petitioner supplied information to the Police
that, the private respondent No. 6 is the person involved in the kidnapping of the daughter of the petitioner. According to the Police, they investigated
the complaint of the petitioner and the allegation that, the private respondent No. 6 was involved in the crime. According to the Police, the investigation
in that regard did not throw up any complicity of the private respondent No. 6 for the Police to take any coercive measure against the private
respondent No. 6 or his family members.
6. Complaining of Police inaction, the present writ petition was affirmed on January 12, 2018 and filed on January 15, 2018. The presentation form of
the writ petition filled up on behalf of the petitioner stated that, the writ petition may be listed on January 24, 2018. It was listed on such date and taken
up for consideration on January 24, 2018 itself. Noting the grievances of the petitioner, by the order dated January 24, 2018, the respondent No. 5 was
directed to submit a report as to the progress of the investigation. The respondent No. 5 was called upon to inform the Court as to the steps taken for
the purpose of recovering the minor daughter of the petitioner. The writ petition was taken up for consideration on February 16, 2018 thereafter. On
February 16, 2018, it was contended on behalf of the petitioner that, the petitioner was aware of the locale where, the minor daughter of the petitioner
was held and that, the Police despite supply of such information was not carrying out raid at such locale. In view of such allegations, by the order
dated February 16, 2018, the respondent No. 3 was directed to ensure that a raid was carried at the premises identified by the petitioner to recover his
minor daughter. The respondent No. 3 was asked to submit a report as to the result of the raid on the next date of hearing. The writ petition was taken
up for consideration on July 23, 2018 thereafter. On such date, Learned Advocate General appearing for the State prayed for leave to file a
supplementary affidavit which was allowed. Supplementary affidavit was filed on August 16, 2018. The Police claimed that, the daughter of the
petitioner was dead. A dead body recovered by the Police was claimed to be that of the daughter of the petitioner. The petitioner had contested such
claim of the Police. The writ petition was taken up for consideration on August 23, 2018. By the order dated August 23, 2018 a DNA test was
directed to be carried out with regard to the dead body recovered. It thereafter transpired on DNA examination that, the dead body recovered by the
Police was not that of the minor daughter of the petitioner. The writ petition was heard from time to time thereafter. On February 13, 2019, a report
filed by the Police was considered. By an order dated February 28, 2019, a Special Investigating Team presently in charge of the investigation, was
constituted by the Court. The order dated February 28, 2019 was corrected on March 12, 2019. The writ petition was subsequently taken up for
consideration on April 4, 2019. The order dated April 4, 2019 records that, the Special Investigating Team recorded the statement of the petitioner. It
also recorded the prayer of the Learned Advocate General for further time. The writ petition was taken up for consideration thereafter on April 22,
2019 when, Learned Advocate General relied upon a list of dates with regard to the steps taken by the Special Investigating Team subsequent to April
4, 2019. A copy of such list of dates and parawise comments was made over to the Learned Advocate appearing for the petitioner in Court. On June
12, 2019 the writ petition was adjourned on the prayer of the Learned Advocate General for the State. It was then heard on July 3, 2019. At such
hearing, the petitioner wanted the Central Bureau of Investigation to take over the investigation. Such prayer was opposed on behalf of the State.
7. In State of Punjab (supra) the Supreme Court has held that, the High Court has inherent powers under Section 482 of the Criminal Procedure Code,
1973 and under Article 226 of the Constitution of India to direct investigation by Central Bureau of Investigation for securing the ends of Justice.
However, such power must be exercised sparingly, cautiously and in exceptional cases where it becomes necessary to provide creditability and
confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing
complete Justice and enforcing fundamental rights. In the facts of that case, it had found that, there were involvements of administrators, senior police
officers and politicians affecting fair and just investigation and that Justice would not be done if local Police investigates. After returning such finding,
the Supreme Court did not find any reason to interfere with the High Court directing investigation by the Central Bureau of Investigation.
8. Committee for Protection of Democratic Rights (supra) has considered the issue as to whether a High Court, in exercise of its jurisdiction under
Article 226 of the Constitution of India, can direct the Central Bureau of Investigation established under the Delhi Special Police Establishment Act,
1946 to investigate cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State
Government. It has held that, when the Delhi Special Police Establishment Act, 1946 itself provides that subject to the consent by the State, Central
Bureau of Investigation can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the Court can
also exercise its constitutional power of judicial review and direct Central Bureau of Investigation to take up the investigation within the jurisdiction of
the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Delhi
Special Police Establishment Act, 1946. It has gone on to say that, the extraordinary power of the Court to direct investigation by the Central Bureau
of Investigation, must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil
confidence in the 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.
9. In Bimal Gurung (supra) the Supreme Court has held as follows:
 “29. The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional
cases where the court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the
State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran v. Supt. of Police, this Court has noted
few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where
high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing
them to influence the investigation, or (iii) where investigation prima facie is found to be tainted/biased.â€
………………
53. Most of the cases which were cited before us by the parties are the cases where this Court exercised jurisdiction under Article 32 in transferring
the investigation at the instance of the victims. For a victim, the investigation in a case is of much significance. In the event, a proper investigation is
not carried out and relevant evidence which would have been collected by due care and caution, is not collected, the victim is sure not to get justice on
such faulty investigation. In case of faulty investigation, where an accused has been wrongly roped in, he has the right to seek all remedies before
court of law for further investigation and a court of law is able to marshal all evidence and capable of discerning truth from evidence on record.
Although as a principle, there is no fetter on an accused to move a court of law for transfer of investigation, but on the facts of this case as noted
above, we do not think it to be a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases en masse to an independent
agency. The present case cannot be said to be a case of individual’s persecution by the State authority.â€
10. The power of the Constitutional Courts to order fresh investigation, reinvestigation or further investigation, even if, trial of the criminal case has
commenced, is recognised. However such power is to be exercised sparingly and in rare and exceptional cases. A Constitutional Court can do so, if it
finds that, such a course of action is necessary in order to do justice between the parties, to instil confidence in the public mind, or where the
investigation by the State Police lacks creditability. Bimal Gurung (supra) gives some instances where a Constitutional Court can exercise its power to
transfer the investigation from the State Police to the Central Bureau of Investigation. They are:
“(i) where high officials of State authorities are involved, or
(ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or
(iii) where investigation prima facie is found to be tainted/biased.â€
Each case however has to be adjudged on its factual parameters to find out whether the conditions for the exercise of such power vested in the
Constitutional Court exist or not.
11. Learned Advocate General appearing for the State has relied upon a Gazette notification dated March 12, 2003. Such notification contains an
order of the Commissioner of Police passed in light of the observations of the Hon’ble Supreme Court in connection with WP (CRL) No. 610 of
1996. He has submitted that, the order dated March 12, 2003 lays down the procedure to be followed by the Police for making effective search of a
kidnapped/abducted/missing person including minor girls. He has submitted that, such order is the standard operating procedure for any investigating
authority dealing with a case of kidnapping or abduction or a missing person including minor girls. In the present case, he has submitted that, the
Special Investigating Team constituted by the Court is following such standard operating procedure. In every case, the Police including a Special
Investigating Team may not be successful in recovering the kidnapped or abducted or missing person despite the Police following the standard
operating procedure. That by itself will be no ground for the Court to substitute the investigating agency. He has submitted that, the present case is not
a rare and exceptional case for the Court to transfer the investigation from the Special Investigating Team constituted by the Court to the Central
Bureau of Investigation.
12. In the facts of the present case, it cannot be said that, the Special Investigating Team constituted by the order dated February 28, 2019 are inactive
or are not following the standard operating procedure in respect of a missing or kidnapped or abducted person. At this stage of the investigation, it
cannot be said that, the present case falls within the parameters for the exercise of the power to transfer the investigation to the Central Bureau of
Investigation. Some more time should be afforded to the Special Investigation Team to arrive at a conclusion of the investigation with which they have
been entrusted with. The prayer for change of the investigating agency however is absent in the writ petition. Despite its absence in the writ petition,
the prayer was considered in view of the plight of the petitioner in relation to his missing daughter and on the principle that a writ Court can mould the
reliefs for the ends of justice.
13. In the facts of the present case, disposing the writ petition at this stage may have ramifications on the investigation. It would be appropriate to
permit the parties to file affidavits in the writ petition. Let affidavit in opposition be filed within four weeks from date, reply if any within two weeks
thereafter. The writ petition be treated as ready for hearing immediately on completion of the time stipulated for filing affidavits. Liberty to the parties
to mention for early hearing.
14. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite
formalities.
