1. Petitioner, who is the father of Sri.Kumar Ajitabh, is seeking for transfer of investigation pending in FIR No.0486/2017 dated 20.12.2017 and FIR
No.0500/2017 dated 29.12.2017 â€" Annexures-A and B respectively to second respondent-Central Bureau of Investigation (hereinafter referred to
as ‘CBI’ for the sake of brevity).
2. Sri.Kumar Ajitabh son of petitioner was born in Patna, State of Bihar on 14.11.1988 and on completion of his graduation in Engineering, B.Tech.
from Manipal University, Karnataka, in the year 2010 joined the services of Tata Consultancy Services and worked for about 5 years. From April
2017 he has been working in British Telecom as IT Analyst. He was residing at Bengaluru since 2010 and has been residing for the last 4 years at
Flat-H 201, Citilight Rustique, ECC Road, Near Deens Academy School, Whitefield, Bengaluru â€" 560056. Annexures-C to E would establish his
identity and employment at British Telecom E Service (India) Pvt. Ltd.
3. Petitioner’s son is said to have secured admission at Indian Institute of Management, Kolkata and on account of his purported financial
condition not being sound, he is said to have put up his Maruthi Suzuki Car (2017 model) bearing registration No.KA 03 NA 1715 for sale by online
advertisement in a website known as ‘OLX’ during the month of November 2017 to meet part of his tuition fee.
4. According to petitioner his son Kumar Ajitabh is said to have received a call from an unknown person on 18.12.2017 around 6.30 p.m., who had
offered to purchase the car put up for sale and as such, he is said to have left the house to meet the prospective buyer, who had called him and
subsequently thereafter he had never returned to the utter shock of petitioner and his family members and has been missing since then. It is also
alleged in the petition that mobile phone of Kumar Ajitabh was switched off since about 7.10 p.m. on 18.12.2017 and attempts to trace about his
whereabouts was futile. Hence, a complaint came to be lodged before Whitefield Police Stationâ€"fourth respondent, which was registered as FIR
No.0486/2017 against unknown persons for the offence punishable under Section 364 and 34 of IPC vide Annexure-A. Apprehending that his son had
been abducted, petitioner is said to have lodged one more complaint with fourth respondent on 29.12.2017 at 7.30 p.m., which came to be registered in
FIR No.0500/2017 for the offence punishable under Section 363 IPC vide Annexure-B.
5. It is also alleged in the petition that print, electronic and social media has carried various articles and report in relation about missing of Kumar
Ajitabh and same has remained untraced till date. It is alleged by the petitioner that fourth respondent has not been able to trace or find out
whereabouts of his son and fearing his abduction as a part of an organized crime, since his son possessed skills in information technology and same
could be used for anti-national activities and also expressing his life being in danger and he might have been made a victim of organ trafficking,
petitioner requested third respondent to transfer the investigation to second respondent by representation dated 31.12.2017 â€" Annexure-H alleging
that respondents 3 and 4 are unable to trace his missing son Kumar Ajitabh and all efforts made by the petitioner and other family members including
the friends of missing Kumar Ajitabh was to no avail. Hence, petitioner has sought for transferring the investigation of FIR Nos.0486/2017 and
0500/2017 to second respondent.
6. I have heard the arguments of Sriyuths Goutham Sridhar Bharadwaj, learned counsel for petitioner, H.Jaikar Shetty, Central Government Counsel
for respondent No.1 and A.S.Ponnanna, learned Additional Advocate General along with Sri.V.Sreenidhi, AGA appearing for respondent Nos.3 and
4.
7. It is the contention of Sri. Goutham Bharadwaj, learned counsel appearing for the petitioner that son of the petitioner has been missing since
18.12.2017 and despite complaints having been lodged by the petitioner before the jurisdictional police, no fruitful result has come out of it and he has
not been traced for more than 7 months and thus, the right to life of the missing person guaranteed under Article 21 of the Constitution of India is at
stake. He would also submit that threat to missing person is immense, given the mysterious circumstances under which he has gone missing/abducted
and there has been no significant leads in the investigation so far conducted so as to instill confidence in petitioner and family members that chances of
tracing the missing persons being bright is a ground on which investigation is to be transferred to CBI.
8. He would also contend that petitioner having informed second respondent and other senior officers in the Karnataka State, Home Department,
seeking transfer of investigation in FIR Nos.0486/2017 and 0500/2017 to CBI as it is more adept at handling the investigation, said plea has remained
unanswered.
9. He would further elaborate contending that investigation requires to be transferred to second respondent so as to instill faith and confidence in the
family members of petitioner and public at large so that complaint lodged by the petitioner, which has resulted in investigation being taken up would
reach its logical end. He would also contend that petitioner has apprehended that abduction of his son is part of a organized crime since his skills in
Information Technology could be used for anti-national activities or he may be a victim of organ trafficking. Hence, he has prayed for allowing the
petition. In support of his submission he has relied upon the following judgments:
(i) (2010) 3 SCC 571: STATE OF WEST BENGAL AND OTHERS vs. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST
BENGAL AND OTHERS
(ii) (2016) 4 SCC 160: DHARAM PAL vs. STATE OF HARYANA AND OTHERS
10. Per contra, Sri. A.S.Ponnanna, learned Additional Advocate General appearing for State of Karnataka has drawn the attention of the Court to the
progress of investigation made to contend that petitioner has not alleged about any lack of interest having been exhibited by the State Police in
conducting investigation or investigation having not been carried on in proper and effective manner and as such on the said ground itself petition is
liable to be rejected. He would also submit that this Court in exercise of power vested under Article 226 of the Constitution of India should be slow in
directing the CBI to conduct investigation and in the instant case, initial investigation was conducted by the Officers of Whitefield Police Station and
Unit Officers of D.C.P., Whitefield between 20.12.2017 to 16.01.2018 and pursuant to order dated 16.01.2018 the Special Investigation Team (SIT)
was formed, which is headed by Additional Commissioner of Police, East, Bangalore City, and parallely Central Crime Branch (CCB) has also
conducted the investigation and is monitored by the Commissioner of Police, Bangalore City by issuing suitable directions and guidelines and wherever
any mistake or error has occurred, suitable instructions for carrying out further verification has been issued and as such there has been no lacuna or
deficiency in the investigation and as such there would be no need or necessity to direct the enquiry being handed over to the second respondent. He
would further elaborate his submission by contending that in the event of order being passed to handover investigation to CBI it would not only
demoralize the Officers engaged in the investigation but would set a bad precedent and CBI would be flooded with such directions being issued by the
Courts, which in the instant case is not called for. He would fairly submit that only in case of rarest and exceptional cases if this Court were to find
that it would be necessary to transfer the investigation to CBI, the power under Article 226 can be exercised and it cannot be done for the mere
asking by the petitioner, particularly when there is not even an iota of allegation against the State police. Hence, he prays for rejecting the writ petition
and assures the Court that there would be no let-up in the investigation taken up by the jurisdictional police. In support of his submission he has relied
upon the following judgments:
(i) (2010) 3 SCC 571: STATE OF WEST BENGAL AND OTHERS vs. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST
BENGAL AND OTHERS
(ii) (2002) 5 SCC 521: SECRETARY, MINOR IRRIGATION & RURAL ENGINEERING SERVICES, U.P. AND OTHERS vs. SAHNGOO
RAM ARYA AND ANOTHER
(iii) (2016) 7 SCC 597: SUJATHA RAVI KIRAN vs. STATE OF KERALA AND OTHERS
(iv) Unreportedjudgmentin Crl.A.No.1571-72/2017between
M.K.KUSHALAPPA AND ANR. VS. K.J.GEORGE AND OTHERS disposed of on 19.10.2016
11. Sri. P. Prasanna, learned counsel appearing for second respondent-CBI would place reliance on the following judgments and prays for suitable
orders being passed by this Court:
(i) (2016) 4 SCC 160: DHARAM PAL vs. STATE OF HARYANA AND OTHERS
(ii) (2015) 12 SCC 531: RASHMI BEHL vs. STATE OF UTTAR PRADESH AND OTHERS
(iii) (2016) 7 SCC 597: SUJATHA RAVI KIRAN ALIAS SUJATASAHU vs. STATE OF KERALA AND OTHERS
12 Hon’ble Apex Court time and again has reiterated the circumstances under which transfer of a criminal case from the State Police to CBI can
be ordered by the High Court. It has been held that mere apprehension of either the accused being influential or investigation is not conducted in a
proper and effective manner without any supporting material in that regard, would not be sufficient ground to transfer the case. The extraordinary
power of this Court to direct CBI to conduct investigation is thus to be exercised rarely in exceptional circumstances. Said exceptional circumstances
may be lack of confidence in the investigating agency or investigation having national or international ramification and in order to do complete the
justice between the parties.
13. Hon’ble Apex Court in the case of STATE OF
WEST BENGAL AND OTHERS vs. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL AND OTHERS
reported in (2010) 3 SCC 571 has held judicial review is otherwise essential for resolving the disputes regarding the limits of constitutional power and
entering the constitutional limitations as an ultimate interpreter of the Constitution. It is further held as under:
“52. It is manifest from the language of Article 245 of the Constitution that all legislative powers of Parliament or the State Legislatures are
expressly made subject to other provisions of the Constitution, which obviously would include the rights conferred in Part III of the Constitution.
Whether there is a contravention of any of the rights so conferred, is to be decided only by the constitutional courts, which are empowered not only to
declare a law as unconstitutional but also to enforce fundamental rights by issuing directions or orders or writs of or “in the nature of†mandamus,
certiorari, habeas corpus, prohibition and quo warranto for this purpose.â€
“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:
(i) xxxx
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the
procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person
accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for
and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the
Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail
the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give
practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the
distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an
authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to
the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity.
Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the
principle of constitutionality and the reach of judicial review.â€
(iv) xxxx
(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on
the power of the Judiciary under Articles 32 and 226 of the Constitution.
(vi) xxxx
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI 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 CBI 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 Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of
the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of
the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either
the doctrine of separation of power or the federal structure.â€
14. The word of caution sounded by the Apex Court in the said judgment is ‘apposite’ to note at this juncture itself, since it would have a direct
bearing and impact of the facts and circumstances unraveled in the instant case.
“70. Before parting with the case, 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. Insofar as the question of issuing a direction to 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 extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil 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 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 investigations.â€
15. There cannot be any inflexible rule which can be prescribed in a straight jacket formula to determine as to the circumstances under which this
Court would be empowered to exercise the extraordinary jurisdiction to transfer investigation from State Police Wing to any other agency. It all
depends on the facts and circumstances of the case. Depending upon the terrain, the facts may travel, exercise of extraordinary jurisdiction may be
called for in a given case. However, such power will have to be exercised cautiously, sparingly and in exceptional situations or circumstances where it
becomes necessary to instill confidence in the victim or the complainant and public at large in investigating agency. Hon’ble Apex Court in the
case DHARAMPAL vs. STATE OF HARYANA AND ORS. reported in (2016) 4 SCC 160 has held:
“3. Justice, which is “truth in action†and “the firm and continuous desire to render to everyone which is his due†becomes a mirage for
the victim and being perturbed he knocks at the doors of the High Court under Article 226 of the Constitution alleging that principle of fair and proper
investigation has been comatosed by the investigating agency, for the said agency has crucified the concept of faith in the investigation which is
expected to maintain loyalty to law and sustain fidelity to its purpose.â€
It is further held:
“25. We may further xxxxx discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the
truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring
come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the xxxxx “orphan under law.â€
16. Thus, it would emerge from the authoritative pronouncements of Apex Court referred to hereinabove, the ultimate test would be: whether the facts
would warrant the investigation being transferred from State Agency to Central Agency and circumstances would warrant the same? In other words,
this Court would examine as to whether it would be necessary to transfer the investigation to CBI as sought for by petitioner or not?.
17. Records on hand would disclose that petitioner’s son-Sri. Kumar Ajitabh had left his apartment on 18.12.2017 at 18.22 hrs to sell/show his car
for a prospective buyer, who had made enquiry through OLX app and since then he has gone missing from Bangalore. On 20.12.2017 the room-mate
of Mr.Kumar Ajitabh filed a missing complaint at Whitefield Police Station, which came to be registered in Cr.No.0486/2017. Subsequently on
29.12.2017 the father of missing person namely, petitioner lodged a complaint with the Whitefield Police Station registered in Cr.No.500/2017 under
Section 363 of IPC, since it was alleged in the complaint by the petitioner that his son had been abducted. A communication dated 31.12.2017
â€"Annexure-H has been addressed by petitioner to the Director General of Police, Bengaluru, to transfer the case registered in FIR Nos.0486/2017
and 0500/2017 to CBI. On 02.01.2018 i.e., after lapse of 15 days from the date of missing person, the present petition has been filed for transfer of the
investigation from the State police to CBI.
18. In the instant case, on issuing notice to respondents of this petition on 03.01.2018, a memo came to be filed on 08.01.2018 by the learned
Additional Advocate General enclosing certain documents. Same was taken on record and it was noted by this Court as under:
“The learned Additional Advocate General has filed a memo dated 08.01.2018 enclosing thereto the documents to indicate the effort being made
by the respondents No.3 and 4 to trace the son of the petitioner. The details would indicate that the teams consisting of 8 Officers and 60 personnel
has been formed and the day to day effort being made in that regard is indicated.
The learned Additional Advocate General would submit that all serious efforts would be made and the progress made would be brought to the notice
of this Court.â€
19. On 16.01.2018 a memo came to be filed by the learned Additional Advocate General enclosing therewith day-to-day report relating to steps taken
by the police in an attempt to trace the son of petitioner who was missing. It was noticed by this Court that no break-through in the efforts has been
there. Hence, this Court directed the Commissioner of Police to constitute a special team of senior officers in whom he has confidence to conduct
proper investigation. Accordingly, Special Investigating team came to be constituted and a report came to be filed on 22.01.2018 and this Court
directed further report to be filed on 29.01.2018. Accordingly, the Commissioner of Police,
Bangalore, has filed a report indicating thereunder the method adopted in the investigation and the Commissioner of Police had expressed satisfaction
with the progress and as such, matter came to be adjourned.
20. Subsequently on 02.02.2018 further report came to be filed by the Commissioner of Police, which was taken on record and it was observed by this
Court to the following effect:
“Learned Additional Advocate General has filed a memo dated 02.02.2018 enclosing thereto the further steps taken in the investigation. Though
the Commissioner of Police has indicated with regard to the steps taken, the Court is of the opinion that the investigating agency should be more
proactive in the investigation as merely indicating what has been done would not be sufficient without atleast securing some leads in the investigation.
Atleast it is hoped that all steps would be putforth and result would be indicated by the next date of hearing.â€
21. The above observation made by this Court would disclose that, investigation carried out was mechanical, not proactive and without any leads in the
investigation. It is in this background, matter came to be adjourned to 08.02.2018 and after perusing the report filed on 08.02.2018, this Court had
clearly expressed its dissatisfaction to the investigation carried out and it was specifically observed:
“Though along with the memo, the report of the Commissioner is enclosed, there is no much progress in the investigation, so as to satisfy this
Court.
List on 15.02.2018.
If no progress is indicated on that day there would be no other option for this Court but to hear the learned counsel for the parties and pass appropriate
orders, based on the material placed before this Court.â€
22. Subsequently when the matter was listed from time to time i.e., on 26.02.2018, 27.04.2018 at the instance of State Government, no fruitful results
were forthcoming from the investigation and as such on 01.06.2018 it came to be observed by this Court as
under:
“Though reports have been filed, same has not been upto the mark namely, no leads have been found, obviously the progress which respondents-
authorities are claimed to have been made has not yielded positive results. Even otherwise, the manner in which investigation has been done would not
indicate that it has conducted in a thorough professional manner as expected of a investigating team like CID. In fact, today a memo has been filed by
learned Government Advocate enclosing a sealed cover, which is said to have contained the report of Deputy Inspector of General Police, CID,
Bangalore, disclosing further enquiry conducted. A perusal of said report would indicate that respondents-authorities in its usual and casual approach
and in a routine manner has sent or forwarded certain communications to various authorities, which is expected of them. Memo is placed on record.
The complaint lodged by the petitioner before the Office of Prime Minister and the Ministry for Law and Justice, Government of India, has also
received its attention whereby the Prime Minister’s Office has forwarded the complaint of petitioner to the Chief Secretaries of State of Kerala,
Maharashtra, Andhra Pradesh, Tamil Nadu, Telangana, Goa with a copy to the respective Director Generals of Police.â€
23. It is no doubt true from the above line of investigation, petitioner would not be justified in contending that either the State Police Investigating Team
has exhibited any laxity or shown any undue favours to the suspected persons or has ignored any vital clue which would otherwise had missed the link.
In fact, as rightly canvassed by Sri. A.S.Ponnanna, learned Additional Advocate General there has been no inch of allegation made against the State
Investigating Agency, but on the other hand, petitioner being the father of the missing person (son), would be quite justified in expecting that
investigation is taken-up or being conducted by the State police officers would reach its logical end. The eternal wait of the family members expecting
their son to return would always be there. This hope and optimism is the basis or the foundation on which, it would keep not only the parents but also
the members of the missing person’s family alive and this agony and trauma of ‘wait and watch’ can be known only by the person who
undergoes the same. It is said: “it is the wearer who knows where his shoe pinchesâ€. In the Hindu mythological epic-Ramayana when Lord Rama
goes to jungle for 14 years giving up all the worldly pleasures and his father-Dasharatha, who is separated by his son and undergoes the pangs of
separation, he exclaims: ‘putra shokam nirantaram’.
Putra shoka (grief of son) does not necessarily mean physical death of the son but would also include separation that too when whereabouts of the son
is not known by his family members and it would also partake the character of putra shoka. In other words, family members would be eternally
grieving about their missing son, either till he is found or till they know about his whereabouts. The pangs of separation the family members undergo
during this interregnum period can only be explained by them.
24. It would also be apt and appropriate to note that under Section 13 of the Hindu Marriage Act, 1955 a petition for divorce on the ground that other
party has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of it, and that party been
alive is a ground on which such petition for divorce can be filed. In other words, a statutory recognition of a person not being alive if he is unheard of
for a period of 7 years can be traced under the said provision. Thus, those persons who would naturally have heard about missing person would be
father, mother, brother, sister and other close relatives. They would quite naturally be expecting either to see the missing person or find him at one
point of time and it is this hope which carries them forward.
25. In the aforestated background, when facts on hand are examined it would disclose that investigation has been conducted by SIT not only in the
State of Karnataka but also in other States and for want of leads from other States, investigation has not proceeded at the pace at which it ought to
have progressed. In fact, the technical team of investigation is continuing with analysis process of CDR, Internet Protocol Detail Record (IPDR) of
the victim and suspect and in order to seek the usage details of Whatsapp and Google accounts of the suspect persons documents under Section 166A
of Cr.P.C. has been prepared and forwarded to Interpol Liaison Officer (ILO) also. It would not be out of place to mention here that due to lack of
coordination between the Investigating Agencies of different States also, no results or leads about missing person have been traced. It is also on
record that the missing person had completed his Engineering â€"B.Tech. from Manipal University and had worked initially with Tata Consultancy
Services and had been working in British Telecom as IT Analyst and had secured an admission in a premier educational institution of the country
namely, Indian Institute of Management â€" Kolkata and on account of his financial condition not being so sound, he intended to sell his new Maruti
Suzuki Ciaz car to meet his tuition fee and as such had put up an online advertisement in a website known as ‘OLX’ during 2017 November to
sell his car. Thus, the apprehension expressed by the petitioner namely, father of the missing person that his son might have been abducted for making
use of his services for anti-national activities also cannot be ruled-out or for the purposes of organ trafficking he having been abducted, cannot be
completely ignored or ruled out. The apprehension of the petitioner and his family members that investigation made hither to has not yielded any
fruitful result, is fully justifiable and as such this Court in the facts and circumstances that has been unraveled is of the view that transferring the
investigation from the State Agency to the second respondent-CBI would be called for. However, it is explicitly made clear that investigation is not
being transferred either on account of laxity in the investigation by the State police or inaction of the investigating agency and it is transferred only on
the ground of investigation till date has led to multiple leads across the country and for better coordination between different wings of the investigating
wings or agencies of other States and the Central Agency like CBI being in a higher pedestal, it would be able to coordinate, collate and collect all
such leads to ensure the investigation is taken to its logical end. Yet, another reason to transfer the investigation is to instill confidence in the petitioner
and his family members and for enforcement of Article 21 of the Constitution of India namely, Right to Life of the missing person Sri.Kumar Ajitabh
i.e., son of the petitioner.
26. Hence, I proceed to pass the following:
(i) Writ petition is hereby allowed.
(ii) Investigation pending in FIR Nos.0486/2017 dated 20.12.2017 and FIR No.0500/2017 dated 29.12.2017 â€" Annexures-A and B respectively with
Special Investigating Team (SIT) of Karnataka State Police is transferred to second respondent-Central Bureau of Investigation (CBI) forthwith.
(iii) Special Investigation Team (SIT) shall handover all the case papers including CDs, reports, etc. relating to the investigation of FIR Nos.0486/2017
and 0500/2017 conducted hitherto and which is in their care and custody to the second respondent forthwith.
(iv) Second respondent-CBI shall continue the investigation and ensure that the investigation relating to the missing person Sri.Kumar Ajitabh is taken
to its logical end.
(v) No order as to costs.