SHREE SHREE RAM JANKI JI ASTHAN TAPOVAN MANDIR & ANR. versus THE STATE OF JHARKHAND & ORS. on 1 May 2019

[2019] 8 S.C.R. 137

SHREE SHREE RAM JANKI JI ASTHAN TAPOVANMANDIR & ANR.

v.

THE STATE OF JHARKHAND & ORS.

(Civil Appeal No.4003 of 2019)

MAY 01, 2019

[DR. DHANANJAYA Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]

Investigation: Transfer of land of deity – Public InterestLitigation by respondent No. 8 challenging the transfer – Nogrievance was made by respondent No. 8 to any public authority inrespect of the alleged transfer by the Trustees nor any report waslodged before the concerned police station making grievance ofany one of the facts stated in the writ petition so as to initiate theprocess of investigation under the Criminal Procedure Code – HighCourt held that there is no provision in the original Trust Deed totransfer the property of the Deity but new Trust Deed was preparedwith ulterior motive, to usurp the property of the Deity and to facilitateillegal transfer of land of the Deity – High Court further held thatthere was large scale illegality which required to be enquired intoand directed the CBI to enquire/investigate the criminality part ingiving such sanction – In the instant appeal, the Trust and the Pujariof the Mandir challenged the directions of High Court on the groundthat the Board of Religious Trust had granted approval for transferof the property – Held: s.44 of the Bihar Hindu Religious Trust Act,1950 gives power of transfer of immovable property of a religioustrust after taking previous sanction from the Board – Such permissionis to convert any property of the Trust after approval of the DistrictJudge as provided by s.28 (j) of the Act – Thus, High Court was notjustified in creating a suspicion on an act of transferring the landof the Deity – The vesting of the property in Deity is a religiousendowment but has no public element in it, the grievance of whichcan be made in a writ petition filed in the public interest – HighCourt passed an order directing investigation by CBI by casuallyreturning a finding that permission was obtained by the Trust bymisrepresentation and fraud – High Court completely misdirected

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Aitself in directing the CBI to take over investigation in a matter whichrelated to the rights of the trustees to sell property of a religiousTrust or Deity, giving rise to civil dispute – The order of the HighCourt is set aside – Bihar Hindu Religious Trust Act, 1950 – s.44 –Public Interest Litigation – Trust – Religious endowment.

BConstitution of India: Seventh Schedule, List II Entry 1 and 2– Transfer of land of deity – Challenge to the said transfer – HighCourt held that there was large scale illegality which required to beenquired into and directed the CBI to investigate – Held: The publicorder (Entry 1) and the police (Entry 2) is a State subject falling inList II of the VII Schedule of the Constitution – It is a primaryCresponsibility of the investigating agency of the State Police toinvestigate all offences which are committed within its jurisdiction– The investigations can be entrusted to CBI only in exceptionalcircumstances – Such power cannot and should not be exercised ina routine manner without examining the complexities and nature of Doffence – Trust – Religious endowment.

Allowing the appeal, the Court

HELD: 1. The High Court ought to have refrained fromentertaining such Public Interest Litigation in respect of allegedwrongful sale of property of the religious bodies. Section 44 ofEthe Bihar Hindu Religious Trust Act, 1950 gives power of transferof immovable property of a religious trust after taking previoussanction from the Board. Such permission is to convert anyproperty of the Trust after approval of the District Judge asprovided by Section 28 (j) of the Act. The stand of the appellantsFis that they have obtained approval as contemplated by the Actand such approval has been sought as an act of prudentmanagement. Therefore, the High Court was not justified increating a suspicion on an act of transferring the land of the Deity.[Paras 10, 11] [143-C-E]

2. The finding recorded by the High Court that the Deitycould not transfer its land in any case is not tenable. The sweepingremarks that the allegations are against the Government and theBoard which consist of Government functionaries; therefore, thematter requires to be investigated by CBI are wholly untenable G

and such sweeping remarks against the Government and/or theBoard should not have been made. The functioning in theGovernment is by different Officers and the working of theExecutive has inbuilt checks and balances. Therefore, merelybecause, permission has been granted by a functionary of theState Government will not disclose a criminal offence. The HighCourt has thus travelled much beyond its jurisdiction in directinginvestigations by CBI in a matter of sale of property of the Deity.Still further, the High Court has issued directions without theirbeing any complaint to the local police in respect of the propertyof the religious Trust. [Para 19] [149-E-G]

3. The public order (Entry 1) and the police (Entry 2) is aState subject falling in List II of the VII Schedule of theConstitution. It is a primary responsibility of the investigatingagency of the State Police to investigate all offences which arecommitted within its jurisdiction. The investigations can beentrusted to Central Bureau of Investigation on satisfaction ofthe conditions as specified therein only in exceptionalcircumstances as laid down in State of West Bengal case. Suchpower cannot and should not be exercised in a routine mannerwithout examining the complexities, nature of offence and sometime the tardy progress in the investigations involving highofficials of the State investigating agency itself. [Para 20]

[150-A-C]

State of West Bengal and Others v. Committee forProtection of Democratic Rights, West Bengal andOthers (2010) 3 SCC 571 : [2010] 2 SCR 979– followed.

Secretary, Minor Irrigation & Rural EngineeringServices, U.P. and Others v. Sahngoo Ram Arya andAnother (2002) 5 SCC 521;Sujatha Ravi Kiran v. Stateof Kerala and Others (2016) 7 SCC 597 : [2016] 3SCR 492;K.V. Rajendran v. Superintendent of Police,CBCID South Zone, Chennai and Others (2013) 12SCC 480 : [ 2013] 9 SCR 199;Bimal Gurung v. Unionof India (2018) 15 SCC 480 :[2018] 4 SCR 843 ;T.C. Thangaraj v. V. Engammal and Others (2011) 12SCC 328 : [2011] 9 SCR 647 – referred to..

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CCIVIL APPELLATE JURISDICTION: Civil Appeal No. 4003of 2019

From the Judgment and Order dated 07.06.2017 of the High Courtof Jharkhand at Ranchi in Writ Petition (PIL) No. 1590 of 2017

G. Gurukrishna Kumar, Sr. Adv., Kumar Anurag Singh, Zain A.DKhan, Kumar Shivam, Jaykrishnan C.D., Ms.Tulika Mukherjee,Advs. for the Appellants.

Ms. Pinky Anand, ASG, Ms. Vibha Datta Makhija, Ajit Kr. Sinha,Sr. Advs. Ms. Ranjana Narayan, Rajesh Ranjan, Praveen, Ms. SaudaminiSharma, Arvind Kumar Sharma, Mukesh Kumar Maroria, Manish KumarESaran, R. Krishna, Tapesh Kumar Singh, Aditya Pratap Singh,Krishnanand Pandeya, Amitabh Verma, Birendra Bikram, Bankey Bihari,Advs. for the Respondents.

The Judgment of the Court was delivered by FHEMANT GUPTA, J. 1.The present appeal is directed againstan order passed by the High Court of Jharkhand at Ranchi on 07.06.2017directing the Central Bureau of Investigation to investigate and to takeappropriate action at the earliest and conclude the investigations preferablywithin six months. The High Court held as under:- “……This Court is of prima facie view that land of the deityGcould not have been transferred in any case. This large scaleillegality needs to be enquired into. Now the question is, who willdo so? The land and trust which is involved in this case is ofRanchi. Allegation is against the Government and the Board. Board H

consists of Government functionaries. In this case, another issueis illegally sanctioning of map by Government Officials. We find,as submitted by the petitioner that in one Public Interest Litigationbeing WP(PIL) No. 1531 of 2011 (Har Narain Lakhotia Vs. Stateof Jharkhand and Others) this Court directed the CBI to enquire/investigate the criminality part in giving such sanction in respectof many buildings of Ranchi. The said order has been upheld bythe Hon’ble Supreme Court. This is also one of such case, whichneeds investigation.

16. On this background, this Court feels that this matter be alsoentrusted to the Central Bureau of Investigation for investigatingthe criminality part. This would also include the aspects and theintent involved in creation of Trust Deed dated 20.9.2005,transfer/conversion of land, permission of maps and all otherincidental issues involved.”

2. The said directions were issued finding that the property ofDeity Shree Shree Ram Janki Ji Asthan Tapowan Mandir[1] at Ranchihas been transferred against the mandate of the Trust Deed created bythe author of the Trust to establish Shree Ram Janki Tapowan MandirTrust[2] on 25.02.1948. The said Trust was reconstituted on 12.05.1987by virtue of registered deed. Still further, by another deed dated20.09.2005, there was again reconstitution of the Trust.

3. The High Court entertained the Public Interest Litigationpreferred by Respondent No. 8, and held that there is no provision in theoriginal Trust Deed to transfer/sale of the property of the Deity but withulterior motive, new Trust Deed was prepared in the year 2005 to usurpthe property of the Deity and to facilitate illegal transfer of land of theDeity.

4. The directions issued by the High Court are subject matter ofchallenge before this Court by the Trust and by Pujari of the Mandir.The argument is that there is provision to develop and transfer theproperty of the Deity. Some of the properties of the Trust were beingillegally encroached by local inhabitants and for better return and toincrease the funds, the properties were transferred. The appropriateapprovals have been obtained from Bihar State Board of Religious Trust 1Mandir 2Trust A

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Aand that the learned Judicial Commissioner has granted approval oftransfer of immovable property.

5. The High Court found that properties were endowed to theDeity by the Trust Deed of 1948 and that the Trustees becamecustodian of the same. The subsequent Trust Deed of 1987 again pro-Bhibits the Trustees from selling or transferring or settling a land of theMandir or Deity. The Trust Deed of 1948 and that of 1987 were authoredby Mahant Shri Janki Jiwan Sharan but subsequently on 20.09.2005 anew Trust Deed has been created. Mahant Shri Ram Sharan Dassregistered the said Trust Deed though the founder was Late Janki JiwanSharan. The said Trust Deed has a clause by which landed property canCbe sold.

6. The High Court found that the permission of Jharkhand StateHindu Religious Trust Board granted in the year 2006 was based uponpermission granted by Bihar State Board of Religious Trust in the year1994 which was obtained by misrepresentation and fraud.D

7. The writ petitioner has invoked the Public Interest Jurisdictionof the High Court, inter-alia claiming the following reliefs:-

“(i) For issuance of an appropriate writ(s)/order (s)/ direction(s)or a writ in nature of mandamus commanding upon theErespondents to conduct an inquiry preferably by an Agency otherthan the Agency of the State in the matter of illegal transfer ofproperty belonging to Sri Ram Janki Tapowan Mandir Trust sincethe substantial properties of the trust has been misappropriatedby the members of the Trust in connivance with the governmentofficials for sale of land belonging to the Trust as well as forFconstruction of building over the land considering the fact that thevaluable property of the Trust has been illegally transferred to theprivate persons who have the support of the most of the higherauthorities of the State.”

8. The Public Interest Litigation was filed by Respondent No. 8Gprojecting himself as a responsible and vigilant citizen of the Countryand being a Hindu by faith, therefore, as under pious responsibility toprotect the interest of the Deity as per his faith. The Respondent No. 8has not lodged any report before the concerned police station making H

grievance of any one of the facts stated in the writ petition so as toinitiate the process of investigations under the Code of CriminalProcedure, 1973[3]. The writ petitioner has not made any grievance toany public authority in respect of the alleged transfers by the Trusteesas well.

9. The High Court has passed an order directing investigationby Central Bureau of Investigation by casually returning a finding thatpermission was obtained by the Trust by misrepresentation and fraud.The High Court was again not careful to return findings on the disputedquestions of fact and that too in a public interest writ petition.

10. The vesting of the property in Deity is a religious endowmentbut has no public element in it, the grievance of which can be made in awrit petition filed in the public interest. We do not say any more than thefact that the High Court should have refrained from entertaining suchPublic Interest Litigation in respect of alleged wrongful sale of propertyof the religious bodies.

11. Section 44 of the Bihar Hindu Religious Trust Act, 1950[4] givespower of transfer of immovable property of a religious trust after takingprevious sanction from the Board. Such permission is to convert anyproperty of the Trust after approval of the District Judge as provided bySection 28 (j) of the Act. The stand of the appellants is that they haveobtained approval as contemplated by the Act and such approval hasbeen sought as an act of prudent management. Therefore, the HighCourt was not justified in creating a suspicion on an act of transferringthe land of the Deity.

12. The question as to whether the High Court could direct CBIto take over investigation in the facts of the present case needs to beexamined. The Constitution Bench in its judgment reported as State ofWest Bengal and Others v. Committee for Protection ofDemocratic Rights, West Bengal and Others[5 ]has examined thequestion as to the rights of CBI to investigate a criminal offence in aState without its consent. This Court examined Entry 2 of List II of VIISchedule of the Constitution. It was held that the legislative power ofthe Union to provide for the regular police force of one State to exercisepower and jurisdiction in any area outside the State can only be exercised 3Code 4Act 5(2010) 3 SCC 571

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Awith the consent of the Government of that particular State in whichsuch area is situated. The Court held that though the Court had widepowers conferred by Articles 32 and 226 of the Constitution, but it mustbear in mind certain self-imposed limitations on the exercise of theseconstitutional powers. This extraordinary power must be exercisedsparingly, cautiously and in exceptional situations where it becomesBnecessary to provide credibility and instil confidence in investigation orwhere the incident may have national or international ramifications orwhere such an order is necessary for doing complete justice and enforcingfundamental rights. The relevant extract from the judgment reads asunder:-C“70. Before parting with the case, we deem it necessary toemphasise that despite wide powers conferred by Articles 32 and226 of the Constitution, while passing any order, the Courts mustbear in mind certain self-imposed limitations on the exercise ofthese constitutional powers. The very plenitude of the power underDthe said articles requires great caution in its exercise. Insofar asthe question of issuing a direction to CBI to conduct investigationin a case is concerned, although no inflexible guidelines can belaid down to decide whether or not such power should be exercisedbut time and again it has been reiterated that such an order is notto be passed as a matter of routine or merely because a party hasElevelled some allegations against the local police. This extraordinarypower must be exercised sparingly, cautiously and in exceptionalsituations where it becomes necessary to provide credibility andinstil confidence in investigations or where the incident may havenational and international ramifications or where such an orderFmay be necessary for doing complete justice and enforcing thefundamental rights. Otherwise CBI would be flooded with a largenumber of cases and with limited resources, may find it difficultto properly investigate even serious cases and in the process loseits credibility and purpose with unsatisfactory investigations.”

G13.The Court approved earlier two Judge Bench Judgmentreported as Secretary, Minor Irrigation & Rural EngineeringServices, U.P. and Others v. Sahngoo Ram Arya and Another[6]wherein it was held that the High Court under Article 226 of the 6(2002) 5 SCC 521H

Constitution can direct inquiry to be conducted by CBI but such powercan be exercised only in cases where there is sufficient material to cometo a prima facie conclusion that there is need for such inquiry. It washeld that it is not sufficient to have such material in the pleadings. TheCourt also held that the right to live under Article 21 include the right ofa person to live without being hounded by the police or CBI to find outwhether he has committed any offence or is living as a law-abidingcitizen. The relevant extracts from the judgment read as under:- “5. While none can dispute the power of the High Court underArticle 226 to direct an inquiry by CBI, the said power can beexercised only in cases where there is sufficient material to cometo a prima facie conclusion that there is a need for such inquiry. Itis not sufficient to have such material in the pleadings. On thecontrary, there is a need for the High Court on consideration ofsuch pleadings to come to the conclusion that the material beforeit is sufficient to direct such an inquiry by CBI. This is a requirementwhich is clearly deducible from the judgment of this Court in thecase of Common Cause[7]. This Court in the said judgment atparagraph 174 of the Report has held thus: (SCC p. 750, para174)

“174. The other direction, namely, the direction to CBI toinvestigate ‘any other offence’ is wholly erroneous and cannotbe sustained. Obviously, direction for investigation can be givenonly if an offence is, prima facie, found to have beencommitted or a person’s involvement is prima facie established,but a direction to CBI to investigate whether any person hascommitted an offence or not cannot be legally given. Such adirection would be contrary to the concept and philosophy of‘LIFE’ and ‘LIBERTY’ guaranteed to a person under Article 21 ofthe Constitution. This direction is in complete negation ofvarious decisions of this Court in which the concept of ‘LIFE’has been explained in a manner which has infused ‘LIFE’ intothe letters of Article 21.”

6. It is seen from the above decision of this Court that the right tolife under Article 21 includes the right of a person to live withoutbeing hounded by the police or CBI to find out whether he has AB

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Acommitted any offence or is living as a law-abiding citizen.Therefore, it is clear that a decision to direct an inquiry by CBIagainst a person can only be done if the High Court afterconsidering the material on record comes to a conclusion thatsuch material does disclose a prima facie case calling for aninvestigation by CBI or any other similar agency, and the sameBcannot be done as a matter of routine or merely because a partymakes some such allegations. In the instant case, we see that theHigh Court without coming to a definite conclusion that there is aprima facie case established to direct an inquiry has proceededon the basis of “ifs” and “buts” and thought it appropriate that theCinquiry should be made by CBI. With respect, we think that this isnot what is required by the law as laid down by this Court in thecase of Common Cause.”

14. It is the said findings, which were approved specifically by theConstitution Bench in State of West Bengal (supra) holding as under:- D

“71. In Minor Irrigation & Rural Engg. Services, U.P. v.Sahngoo Ram Arya this Court had said that an order directing anenquiry by CBI should be passed only when the High Court, afterconsidering the material on record, comes to a conclusion thatsuch material does disclose a prima facie case calling for anEinvestigation by CBI or any other similar agency. We respectfullyconcur with these observations.”

15. A three Judge Bench Judgment reported as Sujatha RaviKiran v. State of Kerala and Others[8 ]held thatthe extraordinary powerof the Constitutional Courts in directing CBI to conduct investigation in aFcase must be exercised rarely in exceptional circumstances, especially,when there is lack of confidence in the investigating agency or in thenational interest. This Court heldas under:- “10. Taking into account the law laid down by this Court inCommittee for Protection of Democratic Rights[9], direction forGinvestigation by CBI was declined by this Court in K. SaravananKaruppasamy v. State of T.N.[10] and Sudipta Lenka v. State ofOdisha[11].

8 (2016) 7 SCC 597

9 State of W.B. v. Committee for Protection of Democratic Rights (supra)H10(2014) 10 SCC 40611(2014) 11 SCC 527

11. Considering the facts and circumstances of the case in hand,in the light of the above principles, we are of the view that thecase in hand does not entail a direction for transferring theinvestigation from the State police/special team of State policeofficers to CBI. The facts and circumstances in which theoffence is alleged to have been committed can be betterinvestigated into by the State police. However, having regard tothe nature of allegations levelled by the petitioner, we deem itappropriate to direct the State of Kerala to constitute a specialteam of police officers headed by an officer not below the rank ofDeputy Inspector General of Police to investigate the matter.”

16. In another three Judge Bench Judgment reported as K.V.Rajendran v. Superintendent of Police, CBCID South Zone,Chennai and Others[12], it was held that the Court could exercise itsconstitutional powers for transferring an investigation from the Stateinvestigating agency to any other independent investigating agency onlyin rare and exceptional circumstances. The Court gave instances suchas where high officials of State authorities are involved, or the accusa-tion itself is against the top officials of the investigating agency therebyallowing them to influence the investigation, and to instil confidence inthe investigation.

17. In another two Judge Bench Judgment reported as BimalGurung v. Union of India[13], this Court held that the power oftransferring such investigation must be in rare and exceptional caseswhere the Court finds it necessary in order to do justice between theparties and to instil confidence in the public mind. It was held as under:- “29. The law is thus well settled that power of transferringinvestigation to other investigating agency must be exercised inrare and exceptional cases where the court finds it necessary inorder to do justice between the parties to instil confidence in thepublic mind, or where investigation by the State Police lackscredibility. Such power has to be exercised in rare andexceptional cases. In K.V. Rajendran v. Supt. of Police, thisCourt has noted few circumstances where the Court couldexercise its constitutional power to transfer of investigation fromState Police to CBI such as: (i) where high officials of State 12(2013) 12 SCC 480

13(2018) 15 SCC 480

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148SUPREME COURT REPORTS

Aauthorities are involved, or (ii) where the accusation itself is againstthe top officials of the investigating agency thereby allowing themto influence the investigation, or (iii) where investigation primafacie is found to be tainted/biased.”

18. In an earlier two Judge Bench Judgment reported as T.C.BThangaraj v. V. Engammal and Others[14], this Court found that merelybecause complaint was against the police officer, the investigations shouldnot be entrusted to Central Bureau of Investigation. The Court held asunder:- “8. The learned counsel for the complainant, on the other hand,Ccited a decision of two-Judge Bench of this Court in RameshKumari v. State (NCT of Delhi)[15] in which this Court directedCBI to register a case and investigate into the complaint of theappellant because the complaint was against the police officerand the Court was of the view that the interest of justice would bebetter served if the case is registered and investigated by anDindependent agency like CBI.

9. The decision of the two-Judge Bench of this Court in RameshKumari v. State (NCT of Delhi) will have to be now read in thelight of the principles laid down by the Constitution Bench of thisCourt in State of W.B. v. Committee for Protection ofEDemocratic Rights. The Constitution Bench has considered atlength the power of the High Court to direct investigation by CBIinto a cognizable offence alleged to have been committed withinthe territorial jurisdiction of a State and while taking the view thatthe High Court has wide powers under Article 226 of theConstitution cautioned that the courts must bear in mind certainFself-imposed limitations.

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11. In the impugned order, the High Court has not exercised itsconstitutional powers under Article 226 of the Constitution andGdirected CBI to investigate into the complaint with a view toprotect the complainant’s personal liberty under Article 21 of theConstitution or to enforce her fundamental rights guaranteed byPart III of the Constitution. The High Court has exercised its 14 (2011) 12 SCC 328H15(2006) 2 SCC 677

power under Section 482 CrPC on a grievance made by thecomplainant that her complaint that she was cheated in a loantransaction of Rs 3 lakhs by the three accused persons, was notbeing investigated properly because one of the accused personsis an Inspector of Police. In our considered view, this was not oneof those exceptional situations calling for exercise ofextraordinary power of the High Court to direct investigation intothe complaint by CBI. If the High Court found that theinvestigation was not being completed because P. Kalaikathiravan,an Inspector of Police, was one of the accused persons, the HighCourt should have directed the Superintendent of Police toentrust the investigation to an officer senior in rank to theInspector of Police under Section 154(3) CrPC and not to CBI.

12. It should also be noted that Section 156(3) of the Code ofCriminal Procedure provides for a check by the Magistrate onthe police performing their duties and where the Magistrate findsthat the police have not done their duty or not investigatedsatisfactorily, he can direct the police to carry out theinvestigation properly, and can monitor the same. (See Sakiri Vasuv. State of U.P.[16])”

19. We find that the finding recorded by the High Court that theDeity could not transfer its land in any case is not tenable. The appellantrelies upon statutory provisions in support of its stand to transfer of land.The sweeping remarks that the allegations are against the Governmentand the Board which consist of Government functionaries; therefore,the matter requires to be investigated by CBI are wholly untenable andsuch sweeping remarks against the Government and/or the Board shouldnot have been made. The functioning in the Government is by differentOfficers and the working of the Executive has inbuilt checks and balances.Therefore, merely because, permission has been granted by a functionaryof the State Government will not disclose a criminal offence. The HighCourt has thus travelled much beyond its jurisdiction in directinginvestigations by CBI in a matter of sale of property of the Deity. Stillfurther, the High Court has issued directions without their being anycomplaint to the local police in respect of the property of the religiousTrust.

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A20. It may be kept in mind that the public order (Entry 1) and thepolice (Entry 2) is a State subject falling in List II of the VII Schedule ofthe Constitution. It is a primary responsibility of the investigating agencyof the State Police to investigate all offences which are committed withinits jurisdiction. The investigations can be entrusted to Central Bureau ofInvestigation on satisfaction of the conditions as specified therein only inBexceptional circumstances as laid down in State of West Bengal (supra)case. Such power cannot and should not be exercised in a routine mannerwithout examining the complexities, nature of offence and some timethe tardy progress in the investigations involving high officials of theState investigating agency itself.

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21. We find that the High Court has completely misdirected itselfin directing the Central Bureau of Investigation to take over investigationin a matter which relates to the rights of the trustees to sell property ofa religious Trust or Deity, giving rise to civil dispute.

22. In view of the above, the appeal is allowed. The order of theDHigh Court is set aside and the writ petition is thus dismissed.

Devika Gujral

Appeal allowed.

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