THE STATE OF TAMIL NADU & ORS. versus ELEPHANT G. RAJENDRAN & ORS. ETC. on 12 April 2019

[2019] 5 S.C.R. 771

THE STATE OF TAMIL NADU & ORS.

v.

ELEPHANT G. RAJENDRAN & ORS. ETC.

(Civil Appeal Nos. 3918–3919 of 2019)

APRIL 12, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Tamil Nadu Hindu Religious and Charitable Endowments Act,1959: Idol theft cases – Idol Wing of Crime Investigation Departmenthandling investigation, detection and follow up of such cases –Hindu Religious and Charitable Endowments Department of theState controlling and managing the temples, idols and artefacts –Letter by Commissioner, Hindu Religious and Charitable Endowmentsto Director General of Police pointing out various complaints ofhis officers received by him against Idol Wing of Police – By G.O.dated 01.08.2018, State of Tamil Nadu transferring all the underinvestigation cases being investigated by the Special Team constitutedfor Idol theft cases and all such future cases to the CBI – Justificationof – Held: It was known fact that there were allegations and FIRsagainst few officers of HR & CE and complaints submitted by theCommissioner against the Idol Wing of the Police ought not to havebeen accepted outrightly without conducting any enquiry – Even ifthere was some truth in the complaints made by the Commissioner,the same ought to have been enquired and informed decision oughtto be taken by the Government – On a single letter of theCommissioner suddenly no opinion could have been formed thatIdol Wing of the Department is not doing its job – Decision totransfer the cases to CBI was hurriedly taken within one day on acomplaint received by the Commissioner without making any inquiryand the decision of the Government cannot be said to be an informeddecision – When the matters pertaining to Idol Thefts were alreadyunder investigation by SIT constituted under the order of the HighCourt, it was appropriate that the State Government ought to haveapprised the Court before issuing any Government order fortransferring the cases – In any view of the matter looking to thelarge number of cases of idol thefts cases and cases to come infuture regarding idol thefts, the CBI was not appropriate

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Ainvestigating agency to be requested by the State – CBI itself hasexpressed its inability to undertake such huge exercise – Thus, theHigh Court did not commit any error in quashing the Governmentorder dated 01.08.2018.

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Art. 226 – Jurisdiction under – Exercise of – Respondent no.2-police officer, heading Idol Wing has been supervising Idol theftcases and efficiently traced and recovered several idols worthseveral crores – Direction by the High Court appointing respondentno 2 after his superannuation to head a Special Investigation TeamC(SIT) to carry out investigations and other functions, which can beexercised by a police officer under CrPC – Sustainability of – Held:Jurisdiction of constitutional courts u/Arts. 226 and 32 can be usedto forge new methodology to achieve the constitutional objectives –For sufficient reason investigation can be handed over to a personwho is retired or no longer in employment – Government can issueDorders enabling respondent no. 2 to carry on functions as per thedirection – High Court in exercise of jurisdiction u/Art. 226 couldvery well direct respondent No.2 to head the SIT to carry outinvestigation and other functions after attaining the age ofsuperannuation – Thus, the directions of the High Court to continueErespondent No.2 in Idol Wing of CID after his superannuation issustainable.

Art. 226 – Jurisdiction under – Exercise of, by the High Court– Scope and ambit of – Held: Power given to the High Court u/Art.226 is of very wide nature which does not contain any fetter exceptFself-imposed restrictions – High Court while exercising jurisdictionu/Art. 226 shall not issue any direction which is contrary to law.

Partly allowing the appeal, the Court

Conclusion

HELD: 1.1 In the letter dated 31.07.2018 by Commissioner,HR & CE to Director General of Police, the CommissionerGpointed out various complaints of his officers which were receivedby him in writing and orally. The Commissioner stated that HRand CE Department is facing a crisis. The Commissioner wroteto the Director General to ensure a fair and confidentialinvestigation and bring the culprits to book, without damagingthe reputation of honest officials and the Department. By a letterH

of 31.07.2018 itself Additional Director General of Police maderecommendation to the Director General of Police to transfer allcases under investigation being investigated by the Special Teamconstituted for the Idol Theft cases to the CBI. The DirectorGeneral on the next day i.e. 01.08.2018 recommended fortransferring the cases to the CBI, on the same day the GO dated01.08.2018 was issued. The entire process for transferring casesto the CBI was completed within one day on complaints submittedby the Commissioner. The High Court order dated 21.07.2018has directed for holding departmental inquiry against certainofficers of HR & CE. FIRs were registered against the officersof the HR & CE Department and other accused. Thus, it wasknown fact that there were allegations and FIRs against the fewofficers and complaints submitted by the Commissioner againstthe Idol Wing of the Police ought not to have been acceptedoutrightly without conducting any enquiry. Even if there was sometruth in the complaints made by the Commissioner, the sameought to have been enquired and informed decision ought to betaken by the Government. The Idol Wing had been carrying outits work for the last more than three decades, several Idols wererecovered and cases launched and prosecutions wereaccomplished. On a single letter of the Commissioner suddenlyno opinion could have been formed that Idol Wing of theDepartment is not doing its job. The Higher Police authoritiesand State was fully competent to take action against any officer ofthe Idol Wing, if any excess or misdeeds were reported againstany officer of the Idol Wing. The letter of the Commissioner dated31.07.2018 does not refer to any written complaint by HR & CEDepartment to Police, higher authorities or the Government inthe above regard. The decision to transfer the cases to CBI washurriedly taken within one day on a complaint received by theCommissioner without making any inquiry and the decisionof the Government cannot be said to be an informed decision.[Para 32][798-F-H; 799-A-E]

1.2 The High Court in the impugned judgment gave detailof reasons for quashing the order dated 01.08.2018. The HighCourt in its order dated 21.07.2017 has already directed toconstitute a SIT of the Officers of the Idol Wing to carry on theinvestigation and follow up pending trial. The compliance of the AB

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Asaid order was under consideration before the Court. TheAdditional Chief Secretary to the Government, after receivingletter from Additional Director General of Police, wrote a letterdated 01.08.2018 to the Additional Advocate General in makinga request. The Advocate General brought to the notice of theBench of the letter dated 01.08.2018 and wrote back to theBAdditional Chief Secretary to the Government that Division Benchof the High Court has observed that communication, decisionsor orders be placed before the Court in the next hearing to beheld on 08.08.2018. When the matters pertaining to Idol Theftswere already under investigation by SIT constituted under theCorder of the High Court, it was appropriate that the StateGovernment ought to have apprised the Court before issuingany Government order for transferring the cases. In any view ofthe matter looking to the large number of cases of Idol Theftscases and cases to come in future regarding Idol Thefts, the CBIwas not appropriate investigating agency to be requested by theDState. The CBI itself has expressed its inability to undertakesuch huge exercise, the High Court did not commit any error inquashing the Government order dated 01.08.2018. [Para 35,36][800-E-H; 801-A-C]

2.1 Article 226 of the Constitution of India confers to theEHigh Courts wide powers in the matter of issuing writs whichthey never possess before. Article 226 of the Constitution iscouched in very wide words, power given to the High Court areboth plenary and inherent. The power under Article 226 is notconfined only to issue specified writs but power conferred to theFHigh Court is to issue directions, orders or writsincluding writsin the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari or any of the rights conferred by Part IIIand for any other purpose.The power given to the High Courtunder Article 226 is power of very wide nature which does not contain any fetter except self-imposed restrictions. It is wellGsettled that the High Court while exercising jurisdiction underArticle 226 shall not issue any direction which is contrary to law.[Para 38, 42][801-G-H; 802-A-B; 803-F]

Constitution of India by Durga Das Basu Vol.6 8[th] Edn2010 – referred to.H

2.2 Different High Courts and this Court have passedseveral orders constituting Special Investigation Team to carryout investigations in cases where such requirement was foundnecessary. Retired Police Officers have been included to be partof SIT or to head a SIT. The jurisdiction of constitutional courtsunder Article 226 and Article 32 can be used to forge newmethodology to achieve the constitutional objectives. No fettercan be read in the jurisdiction under Article 32 or 226. Forsufficient reason investigation can be handed over to a personwho is retired or no longer in employment. The functions whichare to be performed by that person is under authority of Court’sorder. There may be varied situations and circumstances wherea former officer is entrusted with an investigation or any otherfunction to achieve an object or purpose. When the constitutionalcourts direct particular officer to carry on specific job that ordercannot be treated to be put that person in office of that post withall necessary consequences. The particular object is entrustedor only a specific job is entrusted to the officer which he has tocarry. The Court in issuing such direction neither creates anyex-cadre post nor affects the post of officer by giving any kind ofappointment to a post. The violation of All India Services Act,1951 or Rules framed thereunder cannot be read in entrustmentof specific job to a retired officer. All India (Death-cum-RetirementBenefits) Rules, 1958 of the extension in service to theincumbents of the posts of the Cabinet Secretary, DefenceSecretary, Home Secretary, Director, Intelligence Bureau,Secretary, Research and Analysis Wing and Director, CentralBureau of Investigation for such period as it may deem proper.There cannot be any quarrel to the said provision nor applicabilityof the provision in facts of the instant case. In the instant casethe Government has not decided to extend the services ofrespondent No.2. The High Court issued direction appointingrespondent No.2 as a Special Officer to head Idol Wing-CID,Chennai to deal with the cases of theft of Idols and antiques in allstages, for a period of one year, after his superannuation. TheCourt further directed “the Government to pass orders to thateffect”. The Court clearly intended that in the above regardGovernment may pass appropriate orders. It is open for theGovernment to issue orders enabling respondent No.2 to carry AB

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Aon functions as per the direction. The Attorney took exceptionto direction No.3 by which it is directed that respondent No.2shall draw the same pay and benefits that were available to him atthe time of his retirement as Special Officer. On objection beingraised to the said direction, the counsel for respondent No.2submitted that respondent No.2 is ready to carry on and dischargeBhis duties as per orders of this Court without drawing any payand benefits as .directed by the High Court. The High Courtinstead of issuing direction No.3 ought to have given option tothe State Government either to continue/re-employ respondentNo.2 or in alternative fix some honorarium for the dutiesCentrusted on respondent No.2. The State Government havingnot passed any order in consequence of which respondent No.2may continue in the office of Inspector General of Police, justicewould be served when the State Government is directed to paysome honorarium during the period respondent No.2 performedhis duties under the order of the Court in addition to his pension.DHowever, it is made clear that any pay and benefits which havealready been extended to respondent No.2 shall neither berecovered nor adjusted. [Paras 48, 53][808-C; 811-B-H;812-A-F]

2.3 The High Court in exercise of jurisdiction under ArticleE226 can very well direct respondent No.2 to head the SIT to carryout investigation and other functions after attaining the age ofsuperannuation. The directions of the High Court to continuerespondent No.2 in Idol Wing of CID after his superannuation issustainable. [Para 54][812-G]F

2.4 The High Court in the impugned judgment beforeissuing a direction to continue respondent No.2 in the Idol Winghas thoroughly examined the credential of respondent No.2. TheHigh Court has noticed that there are no allegations againstrespondent No.2 as to come to the conclusion that he was not aGfit person to be directed to continue in the idol wing except thathe has not submitted the report to Additional Director Generalof Police. The reasons for directing respondent No.2 to continuehave been set out by the High Court. The High Court has takennote of the fact that the Government order dated 01.08.2018transferring the cases to CBI having been quashed, it has becomeHjust and necessary for the Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulatea solution. In paragraph 36 the Court has noticed the details ofthe work accomplished by Idol Wing and the Idols recovered bythe SIT headed by respondent No.2. The High Court had afterdue examination of all relevant documents taken a decision tocontinue respondent No.2 to head the Idol Wing. The High Courthas referred to various judgments of the High Court and thisCourt where work and conduct of respondent No.2 wasappreciated. [Paras 56–58][813-D-F; G-H; 814-F; G-H]

2.5 The complaints which have been now referred to andrelied by the appellant are the complaints which have beensubmitted after the judgment of the High Court. They are thecomplaints which were submitted even after the filing of the SLPin this Court. The High Court in its direction has observed that ifthere are materials against respondent No.2 the same can beplaced before the High Court for further direction. On thestrength of the complaints which are subsequently submitted afterthe judgment of the High Court, the submission of the appellantthat respondent No.2 was not a fit person to be allowed to headthe Idol Wing after 30.11.2018 cannot be accepted. In so far assubmission of the appellant that after filing of the affidavit on27.11.2018 by the respondent No.2 no opportunity was given tothe appellant, it is useful to extract the judgment where HighCourt observed that as an affidavit was filed on 27.11.2018, againa direction was issued on similar lines by this Court to place anymaterials if available before this Court. However, till date no suchmaterials have been placed before this Court. The High Courthad given opportunity to place the materials, if any. The HighCourt did not commit any error in directing respondent No.2 tocontinue to head the Idol Wing after his superannuation.[Para 59][815-B-F]

Dwaraka Nath v. Income-tax Officer AIR 1966 SC81: 1965 SCR 536 ; Rohtas Industries Ltd. And anotherv. Rohtas Industries Staff Union and others (1976) 2SCC 82 : [1976] 3 SCR 12 ; Air India StatutoryCorporation and others v. United Labour Union andothers (1997) 9 SCC 377 : [1996] 9 Suppl. SCR 579 ;Vineet Narain and others v. Union of India and another AB

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A(1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ; M.C.Mehta and another v. Union of India and others 1987(1) SCC 395 : [1987] 1 SCR 819 ; GuruvayoorDevaswom Managing Committee and another v. C.K.Rajan and others (2003) 7 SCC 546 : [2003] 2 Suppl.SCR 619; Ranjitsing Brahmajeetsing Sharma and Ors.Bv. Kisan Baburao Hazare and Ors. 2004 (3) MhLJ 760;R. Sankarasubbu v. The Commissioner of Police,Egmore, Chennai 2013 (1) CTC 1 ; AdvocatesAssociation, Bangalore v. Union of India and others(2013) 10 SCC 611 : [2013] 10 SCR 813 ; Sunita DeviCand Another v. Union of India and others (2018) 3 SCC664 ; Board of Control for Cricket in India v. Cricket–Association of Bihar and others 2014 (7) SCC 385 referred to.

3. By direction No.1, respondent No.2 was directed toDfunction as Special Officer to head Idol Wing-CID, Chennai onhis superannuation on 30.11.2018. The Government was directedto pass orders to that effect. It has been held that respondentNo.2 could have been directed to work as a Special Officer tohead Idol Wing-CID, thus, there is no error in direction No.1.With regard to direction No.2, Special Team was alreadyEconstituted by the earlier order of the High Court dated21.07.2017 which was directed to be continued to which directionno exception can be taken. With regard to direction No.3, it wasdirected to respondent No.2 to draw the same pay and benefitsthat were available to him at the time of his retirement for theFentire tenure of his term as Special Officer. Instead of suchdirection, the High Court ought to have given an option to theState Government either to pass an order for re-employment/re-engagement or the liberty ought to have been given to State tofix some honorarium in addition to pension which would havebeen drawn by respondent No.2. During the course of hearing itGwas submitted for respondent No.2 that he is ready to carry onhis duty as entrusted by the High Court even without receivingany emoluments. In the facts and circumstances of the case,direction No.3 is modified to the effect that the State shall fix ahonorarium to be paid to respondent No.2 in addition to pensionH

to be drawn by him. In the event any amount has already beenpaid to respondent No.2 in pursuance to the direction of the HighCourt, the same shall not be recovered and adjusted. By directionNo.4 the High Court directed the Special Officer to investigatethe cases thoroughly and submit all the reports before the Courtin a sealed cover to enable the Court to monitor the investigation.It is noticed that an Additional Director General of Police wasappointed to head the Idol Wing by order dated 29.11.2018, itwas not necessary for the High Court to burden itself withscrutinizing each and every report and requiring each and everyreport to be submitted before the Court. There being a higherOfficer posted in the Idol Wing, progress and result of theinvestigation ought to have been reported to Additional DirectorGeneral of Police and the report in the High Court was necessarywhen certain directions were required by the Special Officer.Direction No.4 is modified to the effect that report of progress ofthe investigation shall be submitted to the Additional DirectorGeneral of Police of Idol Wing and report to the High Court maybe submitted by the Special Officer only when any furtherdirections are required from the High Court. With regard todirection No.5, by this direction the Special Officer is directed tocontinue to not only investigate and file charge sheets andprosecute in the pending cases but also to continue to do so inthe cases arising in future during his tenure. No exception canbe taken. The direction No. 6 which requires CBI and otheragencies of Central Government shall continue to give appropriatesupport to the Special Officer. No exception can be taken sinceCBI itself sent letter dated 19.09.2018 communicating its support.With regard to direction 7 serious objection has been raised bythe Attorney General. He submits that the said direction givesexemption to respondent No.2. The respondent No.2 cannot beheld above law. No one is above the law. The High Court hasgiven liberty to the State or any competent authority to place thematerials before the Court for further direction if there are anymaterials against respondent No.2. The liberty given in directionNo.7 amply protects the interest of the State which needs nointerference. Direction No.8 pertains to communications toconcerned Departments to extend co–operation to the Special ABCDEFG

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ATeam with which no exception can be taken. It is to be noted thatIdol Wing has been created by the State in 1983 and for severaldecades Idol Wing has been continuing without provision of anyseparate division to handle the financial aspects. There was nosuch requirement to issue any direction to create such divisionto handle the financial aspects. The Idol Wing has to be run asBper budget allocation and in any case of requirement it is alwaysopen to the higher Police authorities and State Government todo the needful. Direction No.9 as regards financial aspects isdeleted. Direction No.10 is general direction to which noexception can be taken. [Para 60][815-G-H; 816-A-H; 817-A-H;C818-A-C]4. By the Government order dated 29.11.2018 the post ofInspector General of Police was upgraded as Additional DirectorGeneral of Police who was appointed by the State Governmenton 29.11.2018. The order dated 29.11.2018 being not underDchallenge in the writ petition, it was not necessary for the HighCourt to make any observation in that regard. The High Courtwas not right in observing that order dated 29.11.2018 has becomeredundant. The observation made by the High Court in paragraphs47 and 48 that the order dated 29.11.2018 has become redundantis disapproved. Order dated 29.11.2018 was a Government orderEwhich was not challenged in the writ petition, the same shallremain effective that the Idol Wing shall be headed by theAdditional Director General of Police appointed on 29.11.2018.However, the Special Officer shall take all appropriate steps alongwith his Team and he shall submit report to the Additional DirectorFGeneral of the result of the investigations so that appropriatefurther action be taken. [Para 62][819-B-E]

5. Insofar as filing of the statutory reports as per theprocedure prescribed in the Code of Criminal Procedure,necessary reports have to be filed by the officer authorized asGper Code of Criminal Procedure. There might arise exceptionalcases where the direction for appointment of retired officers maybe unavoidable to achieve the goal of justice but the High Courtmay resort to the power under Article 226 only after weighing allpros and cons and after exhausting all options and as a matter oflast resort. Taking services of a retired police officer or any otherH

retired personnel is not to be normally resorted to since in theState concerned, there is always no dearth of competent and ableofficers, hence whenever the Court finds it necessary to takeassistance of services of the retired officers or personnel, it shouldbe with necessary caution and resorted to only when there arevery valid and unavoidable circumstances. [Para 63][819-F-H;820-A-B]

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3918-3919 of 2019.

From the Judgment and Order dated 30.11.2018 of the High Courtof Judicature at Madras in Writ Petition Nos. 20392 and 20963 of 2018.

K. K. Venugopal, AG, Balaji Srinivasan, AAG, Mukul Rohatgi, R.Basant, Jaideep Gupta, Mohan Parasaran, Sr. Advs., B. Vinodh Kanna,Ms. Pallavi Sengupta, Ms. Valarmathi, Ms. Swati Ghildiyal, Ms. ShraddhaDeshmukh, Ankur, B.V. Balramdas, Mayilsamy K., K. Muthu GaneshPandian, N. R. Maurya, P. Somasundram, Ms.Vrinda Grover, Dr. AninditaPujari, Soutik Banerjee, Ms. Aarti Krupa Kumar, Gagan Gupta, R. AnandPadmanabhan, Prawal Chaturvedi, Ms. Nishaka Tyagi, Aravind S., ShashiBhushan Kumar, Ashwin Kumar D.S., Aditi Dani, D. L. Chidananda, G.S. Mani, Lewish Edward, R. C. Sharma, R. Sathish, Ms. Purbita Mitra,R. Naveenraj, K. V. Vijayakumar, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered byASHOK BHUSHAN, J. 1. Leave granted.

2. The State of Tamil Nadu alongwith its functionaries have filedthese appeals against the common judgment dated 30.11.2018 passedby the High Court of Madras in Writ Petition Nos. 20392 and 20963 ofB2018 filed by the respondents as PIL (Public Interest Litigation).

3. Tamil Nadu is a State, which is known for its majestic temples,its rich culture and heritage. Idols consecrated in its various templeshave their own significance, rich heritage and some of the idols datesback to 1500 to 2000 years back. There have been several instances forCtheft of precious idols and artefacts in the State of Tamil Nadu, whichalarmed the State Government. The State Government vide its G.O.Ms.No. 2098, Home(Pol-IV) Department dated 07.10.1983 formed an IdolWing of Crime Investigation Department (CID). The temples in TamilNadu are administered under the enactment namely, Tamil Nadu HinduDReligious and Charitable Endowments Act, 1959 (hereinafter referredto as “Act, 1959”). Hindu Religious and Charitable EndowmentsDepartment (hereinafter referred to as “HR & CE Department”) of theState controls and administers various temples in the State. The HR &CE Department of the State keeps a direct control and management ofthe temples, its properties, idols and artefacts etc.

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4. One Mr.A.G. Ponn Manickavel, the respondent No.2 herein,who shall hereinafter be referred to as “respondent No.2” was appointedas Deputy Inspector General of Police, Idol Wing, Chennai on 11.02.2012,which was part of Economic Offences Wing of the Tamil Nadu Police.The role of the wing is basically for efficient investigation, detection andFfollow up of the Idol theft cases and follow the Court cases concerningthem. Respondent No.2 was continued in the Idol Services Wing sincethen.

5. The two individuals namely, Mr. R. Venkataraman and Mr.Elephant G. Rajendran, the respondent No.1 herein, filed petitions beforeGthe High Court of Madras under Section 482 Cr.P.C. being Crl.O.P. No.8960 of 2017 and Crl.O.P. No. 12060 of 2017. In Crl.O.P. No.8960 of2017, it was prayed for transferring the investigation regarding theft of06 idols from the HR & CE Department to the Idol Wing of the TamilNadu Police and in Crl.O.P. No.12060 of 2017, the prayer was made to H

transfer an FIR pertaining to an Idol theft from the Idol Theft Wing,CID, Chennai to the Crime Branch, CID, Chennai.

6. The case filed by the petitioner in Crl.O.P. No. 8960 of 2017was with regard to Sri Pasupatheeswarar Temple in Thanjavur District,which was built during the Chola Reign about 1500 to 2000 years ago,which according to petitioner houses several ancient idols of temples.Allegation was made that 06 of such idols were missing belonging to atemple with regard to which complaints were made to police officersand officials of HR & CE Department. Despite several complaints topolice officers and officials of HR & CE Department, no FIR has beenlodged and no action has been taken to punish the erring officials of theHR & CE Department. It was further pleaded that officials of HR &CE Department are not appropriate authority to investigate the offenceof theft, hence appropriate direction was sought for.

7. Mr. Elephant G. Rajendran, who is respondent No.1 in thisappeal, had filed Crl.O.P. No. 12060 of 2017 making allegation that apolice official came into possession of six Idols during the course of theirinvestigation had sold the Idols for Rs.6 Crores. Despite the fact thatFIR had been lodged against the accused, they have been promoted andno further action was taken. Further allegation was that investigation bya subordinate officer of the same wing cannot be handled effectively.Allegations were also made that Idols worth several crores of rupeeswere sold by the trustees in collusion with the HR & CE authorities.

8. Madras High Court disposed of both the Crl.O.P. petitions byits judgment dated 21.07.2017. the High Court during the hearing hadsummoned the Inspector General of Idol Wing, who at that time wassecond respondent. Inspector General of Idol Wing appeared beforethe Court and brought to the notice of the Court, various difficulties andshortcomings faced by the Idol Wing due to which steps for detection ofIdol thefts and bringing the culprits before law is being hampered. Duringthe course of hearing on 30.06.2017, it was brought before the knowledgeof Madras High Court that respondent No.2, who was working asInspector General of Police, Idol Wing has been transferred. Courtobserved that officer, the respondent No.2 has been supervising the casesand has efficiently traced and recovered several Idols worth severalcrores. Court further observed that it is not that the succeeding officeris less efficient, but considering that Respondent No.2 and his team have A

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Aextensively travelled throughout the country and are aware of the modusoperandi of the culprits, for the sake of continuity, speedy completion ofthe investigation and completion of the pending cases, respondent No.2must continue despite the work assigned presently. The Madras HighCourt on 21.07.2017 issued 20 directions to the State of Tamil Nadu, outof which first 04 directions are as follows:-B

“(i)The Chief Secretary of the State of Tamil Nadu must issueappropriate orders within a week for the creation of aspecial camp at Tiruchirappalli headed by Mr. A.G. PonnManickavel, IPS, Inspector General of Police with othermembers of Idol wing, who associated him earlier for theCcompletion of trial in the pending cases in the State andneedless to say that necessary infrastructure, staff andtransportation, vehicle, fuel etc. from time to time are to beprovided. The said officer can place his representationimmediately intimating required assistance and the teamDmembers required by him to the Chief Secretary and onsuch representation, the same shall be provided forthwith.

(ii) The cases pending on the file of various courts in the Stateof Tamil Nadu prosecuted by the Idol wing are herebytransferred to the file of the learned Additional Chief JudicialEMagistrate, Kumbakonam for effective and speedy disposalof the cases, on day to day basis.

(iii) The Inspector General of Police Mr. A.G. Ponn Manickavel,IPS and all the officers of the cases connected with Idolwing, CID are directed to continue to investigate and followFup all the cases under investigation, pending trial, till thedisposal by the learned Additional Chief Judicial Magistrate,Kumbakonam.

(iv) The team as now ordered by this Court headed by theInspector General of Police Mr. A.G. Ponn Manickavel,GIPS, shall continue to follow up those cases in addition totheir present and future assignments, wherever they areposted.

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9. The Director General of Police aggrieved by the order dated21.07.2017 passed by the Madras High Court filed a SLP (Crl.) Nos.6139-6140 of 2017, which was disposed of by this Court by its orderdated 01.09.2017 in following manner:- “Having heard Mr. Mukul Rohatgi, learned Senior Counsel forthe petitioners and Mr. J. Sai Deepak Iyer, learned counsel forthe respondents and upon perusal of the record, we consider itappropriate to delete the findings pertaining to the mala fide natureof the transfer of Inspector General of Police Mr. A.G. PonnManickavel. We order accordingly.

Nonetheless, the order regarding the transfer of InspectorGeneral of Police Mr. A.G. Ponn Manickavel, shall remain intact.

With the aforesaid observations, the special leave petitions standdisposed of.

As a sequel to the above, pending interlocutory applications, ifany, stand disposed of.”

10. This Court did not interfere with the directions of MadrasHigh Court dated 21.07.2017 directing the respondent No.2 to continueto head the Idol Wing of the CID. The High Court vide its order dated21.07.2017 had not disposed of the matter finally rather it postponed thematter for reporting compliance. It appears that before the High Court,it was brought to the notice that State has not complied with variousdirections issued on 21.07.2017 and there are obstacles created in carryingout various functions of the Idol Wing. It is further to be noticed thatseveral FIRs were registered leading to arrest of several culprits includingsome officers of HR & CE Department. In order dated 21.07.2017, inCrl.O.P. No. 8690 of 2017 and Crl.O.P. No. 12060 of 2017, High Courtmade certain observations about not providing proper infrastructure tothe Court appointed idol Wing.

11. On 31.07.2018, Commissioner, HR & CE Department wrotea letter to Director General of Police, Chennai. In the D.O. letter,Commissioner stated that Idol Wing of the Police is harassing the officialsof HR & CE Department and they are being threatened with filing ofthe FIRs. Reference to certain complaints made by officers of HR &CE Department brought to the notice of the Commissioner were alsonarrated. The Commissioner requested the State to take necessary action A

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Ato ensure a fair and confidential investigation and bring the culprits tobook, without damaging the reputation of honest officials and theDepartment. Commissioner also requested that early charge sheets befiled and prosecution be undertaken to enable disposal of the cases,early apprehension of criminals and restoration of the Idols to therespective temples.B

12. On the said letter, Additional Director General of Police onsame date, i.e., on 31.07.2018 wrote to the Director General of Policementioning that during investigation of cases, several senior officers andother staff belonging to HR & CE Department were also arrested. TheAdditional Director of Police recommended that all cases underCinvestigation by the special team constituted for Idol theft cases and allsuch future cases may be transferred to the Central Bureau ofinvestigation. Director General of Police on 01.08.2018 wrote to AdditionalChief Secretary to the Government concurring with the views ofAdditional Director General of Police to transfer the cases to CentralDBureau of Investigation. On 01.08.2018, the Additional Chief Secretaryto the Government wrote to Additional Advocate General of the HighCourt of Madras bringing into notice the development. In the end of theletter, it was stated by Additional Chief Secretary to the Governmentthat High Court be apprised about the decision of the Government andwhen the above cases are taken up for hearing and whether any ordersEfrom the Court are required. On 01.08.2018 itself, the Additional AdvocateGeneral of Tamil Nadu brought to the notice of Additional Chief Secretarythat he has brought into the notice of the Madras High Court about thecommunication dated 01.08.2018 on which the Bench has observed thatthe communication, decisions or orders, as the case may be placed beforeFthe Court on its next hearing on 08.08.2018. On 01.08.2018 itself, theState Government issued an order according its consent to transfer allcases being investigated by the Special Team constituted for the Idolcases and all such future cases to the Central Bureau of Investigation.

13. Two Writ Petitions being Writ Petition No.20392 of 2018 –GElephant G.Rajendran Vs. The State of Tamil Nadu and Writ PetitionNo. 20963 of 2018 – Traffic Dr. K.R.Ramaswamy Vs. State and Others,has been filed in the Madras High Court praying for quashing theGovernment Order dated 01.08.2018, transferring the investigation tothe Central Bureau of Investigation. The above writ petitions wereheard by the Division Bench and the Division Bench of the High CourtH

vide its judgment dated 30.11.2018 allowed both the above writ petitionsquashing the Government Order dated 01.08.2018 and issued severaldirections. The conclusion of the Court is recorded in paragraph No.45.In paragraph Nos.45 to 48 of the judgment, the High Court has held:- “45. This Court is empowered under Article 226 of the Constitutionto pass any orders to secure the ends of justice. We have alreadyexpressed our anguish over the conduct of the State in handlingthe matter insensitively. The directions issued by this Court andconfirmed by the Hon’ble Supreme Court have not been compliedin full. We have also expressed that we are satisfied with thecredentials of the Mr.A.G.Pon Manickavel, I.P.S, Inspector Generalof Police and the steps taken by him in the process of investigation.Hence, the following directions are given, which shall beimplemented by the State forthwith:

(1) Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Policeis hereby appointed as a Special Officer to head IdolWing~CID, Chennai to deal with the cases of theft ofidols and antiques in all stages, for a period of one year, whoshall assume charge on his superannuation on 30.11.2018forthwith and function from the same camp with the samefacilities. The Government shall pass orders to that effect. It ismade clear that any delay by the Government in passingappropriate orders, shall not curtail the powers of Mr.A.G.PonManickavel, I.P.S. to head the team and investigate the casesand take appropriate action as per law.

(2) The members of the Special team constituted on the basisof the orders of this Court on 21.07.2017 shall continue to bepart of the team and any such member as requested byMr.A.G.Pon Manickavel, I.P.S., shall be spared by theGovernment from the Tamil Nadu Police Force.

(3) Mr.A.G.Pon Manickavel, I.P.S., Inspector General of Police,shall draw the same pay and benefits that were available tohim at the time of his retirement for the entire tenure of histerm as Special officer.

(4) The Special Officer, hereby appointed shall investigate thecases thoroughly and periodically submit all the reports before A

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the appropriate Court as per law and also before this Court ina sealed cover to enable this Court to monitor the investigation.

(5) The Special Officer and his team shall continue to not onlyinvestigate and file charge Sheets and prosecute in the pendingcases but shall also continue to do so in the cases arising infuture during his tenure or until further orders from this Court.

(6) The CBI and other agencies of Central Government shallcontinue to give appropriate support to the Special officer andhis team.

(7) No action or enquiry against the Special officer or anymember of his team shall be initiated except with theconcurrence of this Court. If any materials are there to relyupon for necessary action, the same be placed before this courtfor further directions.

(8) The State shall forthwith issue appropriate communicationsto concerned Departments of the State including the HR &CE Department to extend their fullest co~operation tothe Special Team and furnish necessary particulars anddocuments sought by them.

(9) The State shall create a separate Division to handle thefinancial aspects of the functioning of the team so as to ensurethat no action is delayed for paucity of funds and separateaccount is to be created for this purpose and reasonable amountmust be available to meet out the daily overheads.

(10) All the directions issued by this Court shall be implementedwithout any delay or demur and a report shall be submittedregarding the action taken.

46. With the above directions, the writ petitions are allowed.Consequently, other connected petitions in W.M.P.Nos.23975,23976, 24609 and 26868 of 2018 are closed. No costs.

47. When we are about to pronounce this order, the petitioner inWP.No.20392 of 2018 produced a copy of the proceedings issuedby the Government of Tamil Nadu in Police Note No.SC/19/2018dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh,IPS, Additional Director General of Police/Chief Vigilance Officer, Tamil Nadu Newsprint and Papers Limited, Karur has beentransferred and posted as Additional Director General of Police,Idol Wing, CID, Chennai by upgrading the post of Inspector Generalof Police, Idol Wing CID.

48. We are of the view that the State all along, is not inclined tocontinue with the investigation of idol theft cases as the samewere transferred to CBI despite pendency of the stay order ofthis Court. It is also pertinent to note that after the orders werereserved, they have upgraded the post of the Additional DirectorGeneral of Police and appointed an officer, by order dated29.11.2018, which action is inappropriate and it would amply provethe transfer of cases in a most hurried manner within a single dayi.e., on 01.08.2018. Similarly, the manner in which the presentorder dated 29.11.2018 has been passed, will speak for itself.Hence, notwithstanding the order dated 29.11.2018 passed by theGovernment, which has become redundant, Tr.A.G.PonManickavel shall take charge as Special Officer to head the IdolWing as ordered by us, in order to preserve the idols as well asrecovery of the stolen idols to uphold the cultural heritage of thisland.”

14. State of Tamil Nadu aggrieved by the said judgment has filedthese appeals.

15. Shri K.K. Venugopal, learned Attorney General has appearedfor the State of Tamil Nadu. Shri Mukul Rohatgi, learned senior counselhas appeared for Director General of Police, Tamil Nadu. We haveheard Shri R. Basant, learned senior counsel appearing for the respondentNo.1 and we have also heard learned counsel, who has appeared for thePIL petitioner– Traffic Dr. K.R. Ramaswamy. We have also heard,learned counsel, who appeared for intervenor. Shri Mohan Parasaran,Senior Advocate has appeared for respondent No.9.

16. Learned Attorney General submits that High Court exceededits jurisdiction under Article 226 in appointing respondent NO.2 as aSpecial Officer to head Idol Wing, whereas respondent No.2 was goingto be superannuated on 30.11.2018 itself. In the writ petition, challengewas to the Government order dated 01.08.2018 for transferring theinvestigation, which was being carried on by Idol Wing of the CID to theCBI. Without their being any prayer, the respondent No.2 has been A

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Adirected to continue to head the Idol Wing even after his superannuation.The respondent No.2 after superannuation could not have exercisedany power of police officer as entrusted on a police officer under theCode of Criminal Procedure. Retired police officer is not a police officerfor purposes of registering a FIR or carrying out the investigation orsubmitting a charge sheet, nor a retired police officer can present a caseBin Court. The State Government was fully justified in transferring theinvestigation of Idol theft cases to CBI for fair investigation. Even thelearned Single Judge while hearing Crl.O.P. No. 8960 of 2017 andCrl.O.P. No. 12060 of 2017 had made observation that in eventappropriate infrastructure and facilities are not provided to Idol Wing,Cthe Court may direct for investigation to be carried out by CBI.17. High Court, exercising jurisdiction under Article 226 cannottake over the power of Superintendent of Police conferred on the StateGovernment under Sections 3 and 4 of the Police Act, 1861. It was notwithin the scope of Article 226 so as to direct by the High Court to takeDover a full-fledged wing of the Executive (Idol Wing-CID) from thecontrol of the Executive. The direction to appoint respondent NO.2 asSpecial Officer to head the Idol Wing-CID has been passed withoutaffording an opportunity to the State. The State has already appointedone Abhay Kumar Singh, by Government Order dated 29.11.2018, asAdditional Director General of Police, Idol Wing, CID, Chennai, whichEorder has been erroneously held by the High Court to be redundant.When respondent No.2 was going to be superannuated on 30.11.2018,State was fully justified in making an arrangement to head the Idol Wingof the CID. The directions issued by the High Court, as noticed inparagraph No.45 of the judgment are all beyond the scope of theFjurisdiction of the High Court under Article 226. Although, this Court aswell as the High Courts in several judgments has directed for carryingon investigations by retired personnel but in none of the cases, the questionwas decided as to whether it is competent on behalf of the High Court todirect for carrying out investigation by retired personnel. The power given to this Court to pass orders under Article 142 are not available toGthe High Court under Article 226. The High Court, while exercisingjurisdiction under Article 226 has virtually exercised the jurisdiction givento this Court under Article 142 of the Constitution. The respondent No.2has provided the details of cases so as to transfer it to the CBI as per itsrequest.H

18. Shri Mukul Rohatgi, learned senior counsel appearing for theDirector General of Police submits that impugned judgment of the HighCourt is beyond the scope of Article 226. It is submitted that High Courterred in directing for continuation of respondent No.2 even aftersuperannuation. There have been several complaints against respondentNo.2 relating to his functioning and respondent No.2 was not a personwho could have been allowed to head the Idol Wing even after hissuperannuation. It is submitted that in the writ petitions, respondentNo.2 has filed certain self-serving documents on 27.11.2018 to which noopportunity was there to the appellants to rebut the claim of respondentNo.2 that he has done much good work pertaining to theft and recoveryof Idols. Shri Rohtagi has referred to extradition of one person, namely,Subhash Chandra Kapoor, who was extradited from Germany. It issubmitted that several cases of further extradition are not being processedon account of unwarranted delay with regard to case of Subhash ChandraKapoor. It is submitted that due to inaction on the part of the Idol Wingwith regard prosecution of Subhash Chandra Kapoor, other cases ofother accused for extradition are not being even processed. It is submittedthat impugned judgment of the High Court has created a shield torespondent No.2 so that he is not answerable to anyone. It is submittedthat there was no challenge to the order dated 29.11.2018 by which theAdditional Director General of Police was posted in the Idol Wing tohead it. The order having not been challenged or set aside, the respondentNo.2 cannot be allowed to head the Idol Wing, when Additional DirectorGeneral is a superior Officer. It is submitted by Shri Rohtagi that PILpetitioner – Elephant G. Rajendran even before 30.11.2018 has writtento the Government that respondent No.2 be allowed to continue to headthe Idol Wing. There is no bonafide in filing the Public Interest Litigations.PIL petitioner and respondent No.2 are hands in gloves.

19. Learned counsel appearing for the applicant in I.A. No. 24724of 2019 submits that respondent No.2 has constantly tried to malign anddefame the officers of HR & CE Department. Several senior officersof HR & CE Department were arrested without any cogent grounds.The Commissioner in its letter dated 31.07.2018 written to the DirectorGeneral of Police has highlighted several misdeeds of the Idol Wing.The learned counsel for the applicant submits that officers of HR & CEDepartment have been unnecessarily castigated by the Idol Wing. it issubmitted that applicant be permitted to intervene in the matter so thatthis Court may be apprised of the correct facts.

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A20. Shri Mohan Parasaran, learned senior counsel appearing forthe respondent No.9 submits that respondent No.9 is neither appropriatenor necessary party, who has been unnecessarily impleaded in the writpetition before the High Court. It is submitted that respondent No.9 is arespected person and an incorrect allegation has been made againsthim. Respondent No.9 is respectable person of the Society, who hasBunnecessarily been dragged.

21. Shri R.Basant, learned senior counsel appearing for ElephantG. Rajendran, PIL petitioner, refuting the submission of learned AttorneyGeneral submits that judgment of the High Court is well within the scopeand ambit of Article 226. Shri Basant submits that submission raisedCquestioning the bonafide of PIL petitioner is an afterthought and has nosubstance. The PIL petitioner has done commendable public work.Elephant G. Rajendran had filed a PIL petition in the year 2001 withregard to an injured Elephant in which High Court permitted the PILpetitioner to bring doctors from foreign countries. The PIL petitionerDbrought doctors from foreign countries and got the Elephant cured.Several Public Interest Litigations have been filed by Elephant G.Rajendran in public interest. It is specifically noted by the High Court inthe impugned judgment that Additional Advocate General himself hassubmitted that there are no question on the bonafide of the petitioner. Itis submitted that various complaints in respect of respondent No.2, whichEare brought on the record are complaints, which have been deliberatelyobtained after the judgment of the High Court. Most of the complaintsagainst respondent No.2 have been obtained by obliging Police Officialson one day, i.e., on 18.12.2018, which is clear from the complaints broughton the record alongwith I.A. No. 10291 of 2018.

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22. It is submitted by Shri Basant that High Court has jurisdictionunder Article 226 to direct for constituting a Special Investigation Teamheaded by respondent No.2. He submits that conferring of the policepower on non-police officer is not an anathema to law. Extraordinarysituation calls for extraordinary remedy. The jurisdiction of the HighGCourt under Article 226 is wide and plenary. There have been severalorders of different High Courts as well as this Court where SpecialInvestigation Team were constituted consisting of retired personnel. Thetransfer of the investigation of the Idol cases before the Idol Wing to theCBI was nothing but a ruse to remove respondent No.2 from not carryingout the investigation. Several officers of HR & CE Department were H

involved and were accused in different First Information Reports. TheGovernment has acted on to save officers of HR & CE Department.Shri Basant submits that the present is not a case where High Courtexercised any jurisdiction under Article 142 of the Constitution of Indiaas contended by the appellant. He further submits that the present is acase where this Court need not exercise its jurisdiction under Article136. The High Court having exercised jurisdiction well within its powers,there is no extraordinary situation, where this Court may grant specialleave in the present case. High Court has exercised its jurisdiction toensure fair and proper investigation and prosecution in Idol theft cases.Replying to lapses as alleged on the part of respondent No.2 with regardto Subhash Chandra Kapoor, it is submitted that prosecution agency toprosecute cases is State. It is State, which is prosecuting extraditedaccused Shri Subhash Chandra Kapoor and no blame can be put onrespondent No.2 in the above regard.

23. Learned counsel appearing for the second PIL petitioner, i.e.,Traffic Dr. K.R. Ramaswamy submits that free and fair trial isfundamental right. He submits that when the Director General of Policecan be given 02 years extension in the year 2017, why such extensioncould not have been granted to respondent No.2. Respondent No.2 wasappointed as Special Officer in Idol Wing in 2012 and since then he hasbeen efficiently carrying on his duties. It is submitted that order of theHigh Court dated 21.07.2017 passed in Crl.O.P. No. 8960 of 2017 andCrl.O.P. No. 12060 of 2017, respondent No.2 was directed to continueas head of the Idol Wing. The Director General of Police aggrieved bythe said order has filed a special leave petition before this Court, whichwas dismissed on 01.09.2017.

24. It is submitted that it is on account of the letter dated 31.07.2018written by the Commissioner, HR & CE Department to the DirectorGeneral of Police that hurriedly decision was taken to transfer the casesto CBI. The letter of Commissioner dated 31.07.2018 and within 24hours, a decision was taken by the State Government to transfer thecases to the CBI in hurried manner. The Commissioner in his letterdated 31.07.2018 made allegations against Idol Wing, on which allegations,without there being any investigation or inquiry, the decision was takento transfer the cases to CBI, which was done with intent to take awaythe investigation from respondent No.2, who was unearthing severalunholy cases and was taking action against the officers of HR & CE

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ADepartment and some police officers. The decision of the State totransfer it to CBI was not bonafide. It is further submitted that CBIitself in its letter dated 20.09.2018, which was filed before the HighCourt, submitted that CBI will extend its full cooperation and support inthe matters of extradition of accused, issue of Red Corner Notices andcoordinating with Interpol and it shall extend all its cooperation to SIT,Bwhich is already investigating the Idol theft cases. CBI has expressedits unwillingness to take up large number of Idol theft cases under itsfold. As regards not challenging G.O. dated 29.11.2018, it is pointed outthat it was produced on the eve of the judgment and there was time tochallenge it.

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25. Learned Attorney General in his rejoinder submission contendsthat High Court cannot pass any order in violation of law. It is submittedthat the officers of Indian Police Services are governed by the All IndiaServices Act, 1951 and the Rules made thereunder. The State has nopower to grant extension of service of IPS Officers. It is submitted thatDunder the All India Services (Death-cum-Retirement Benefits) Rules,1958, only few of the incumbents of the posts can be given extension inservices by the Central Government, which rule does not include extensionfor Inspector General of Police, the post held by respondent No.2.Learned Attorney General submits that even though there was O.M.dated 18.05.1977 issued for extension/re-employment of CentralEGovernment servants beyond the age of superannuation, it is now nolonger available in view of issuance of O.M. dated 09.12.2002. Afterthe O.M. dated 09.12.2002, no re-employment can be granted beyondthe age of superannuation of 60 years. Learned Attorney General againreferring to the various directions in the impugned order contends that Fthe directions are contrary to the provisions of Code of Criminal Procedureand fall outside the law. He submits that each and every direction givenin the impugned judgment is contrary to some or other law.

26. We have considered the submissions of the learned counselfor the parties and have perused the records.G27. Following are the main issues, which arise for consideration inthe present appeals:-

(i) Whether the State of Tamil Nadu was justified in transferringall the under investigation cases being investigated by theSpecial Team constituted for Idol theft cases and all such H

RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]

future cases to the Central Bureau of Investigation vide itsG.O. dated 01.08.2018?

(ii) Whether the impugned judgment of the High Court dated30.11.2018 quashing the Government Order dated 01.08.2018is sustainable?

(iii) Whether the High Court, in exercise of jurisdiction underArticle 226 of the Constitution of India can appoint a policeofficer after his superannuation to head a SpecialInvestigation Team (S.I.T.) to carry out investigations andother functions, which can be exercised by a police officerunder the Code of Criminal Procedure?

(iv) Whether the impugned judgment of the High Court dated30.11.2018 directing respondent No.2 to continue to headthe Idol Wing of C.I.D. after his superannuation on 30.11.2018is sustainable?

(v) Whether the 10 directions issued by the High Court inParagraph No.45 of the impugned judgment are contrary tolaw and are unsustainable being beyond the scope of Article226 of the Constitution of India?

(vi) Whether the High Court could have declared the GovernmentOrder dated 29.11.2018 appointing Thiru. Abhay KumarSingh, IPS, Additional Director General of Police, Idol Wing– C.I.D., Chennai as redundant without there being anychallenge to the said Government Order before the HighCourt in the Writ Petitions, in question?

Issue Nos. 1 and 2

28. Both the above issues being inter-connected are being takentogether. Few background facts before issuance of Government orderdated 01.08.2018 need to be noted. The Idol Wing of the CriminalInvestigation Department(CID) is a special feature pertaining to Stateof Tamil Nadu. The State of Tamil Nadu is blessed with most ancienttemples in the country. As noted above under the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959 there are variousauthorities to ensure proper administration and governance of Hindureligious and charitable endowments Tamil Nadu. The HR & CEDepartment has obligation and responsibilities of managing and A

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Amaintaining temples’ properties including the Idols. There being largenumber of cases pertaining to theft, missing and misappropriation ofIdols valuing in several crores, the State of Tamil Nadu had constitutedthe Idol Wing by the Government Order issued in the year 1983. TheMadras High Court while deciding Criminal O.P. Nos.8690 and 12060of 2017 in its order dated 21.07.2017 has made following observation inBparagraph 12:

“12. The HR & CE department is the custodian of most of thetemples and the properties including the idols belonging to them.It is their primary duty to protect the temples and safeguard thevaluable idols/antiques, which, this Court with great anguish,Cexpresses that the department has failed to do. It is startling tofind that the HR & CE department with all its income from majortemples, has not been able to maintain historical temples andsafeguard the Idols, which in market, have antique value basedon their age. Some temples in the State have also been recognisedDby the UNESCO as heritage sites. Many temples constructed atleast 1500 years ago or much before the temples recognised byUNESCO, are in ruins. Even the daily rituals are not performed.Some temples remain closed throughout the day with no one toeven lighten the lamps. Neither the Archaeology Department northe HR & CE Department has shown interest to identify andEprotect them. This has also come to the advantage of themiscreants, who have laid their hands on the Idols.”

29. The above Criminal O.P. were filed for transferring allinvestigations regarding theft of 6 Idols from the Commissioner, HR &CE, Nungambakkam District, Chennai to Additional Director General ofFPolice, Economic Offences Wing, CID, Chennai. The High Court whiledeciding Criminal O.Ps in its judgment dated 21.07.2017 has observedthat various complaints given to Joint Commissioner were not addressed.In paragraph 16 the High Court made the following observation:

“16. In the cases on hand, the erring officials have had a freeGhand in handling the idols as if it was their private property. It isclear from the documents produced by the petitioner that thevarious complaints of the petitioner in Crl.O.P.No.8690/2017 havenot been addressed. Curiously, there is no denial about the existenceof the tunnel and stocking the PWD guest house. Despite the factHthat the 6th respondent found that the idols were missing, no complaint has been lodged till date. It appears that the ball is passedon from one office to another, to protect the officials. The learnedcounsel for the petitioner has sought for a transfer of theinvestigation from the 6th respondent to the Idol Wing, CID,Chennai. However, considering the nature of the offence that 6Idols under the custody of the department has gone missing, notonly does the matter require investigation by the idol wing, CID,but also departmental action must be initiated against the relevantofficials. This Court is also not in consonance with the reply givenby the Deputy Superintendent of Police of Idol wing that a complaintshould only be lodged with the local police station as per Section154 Cr.P.C.”

30. The High Court observed that considering the nature of theoffences, 6 Idols under the custody of the Department had gone missing,not only the matter required investigation by the Idol Wing, CIDdepartmental action was also required to be taken by the relevant officials.While the Criminal O.P.Nos.8690 and 12060 of 2017 were heard, it wasbrought to the notice of the High Court that respondent No.2 who washeading Idol Wing has been transferred. The High Court noticed thatrespondent No.2 has been supervising the cases and has efficiently tracedand recovered several Idols worth several crores, hence, for the sake ofcontinuity and speedy completion of the investigation, respondent No.2must continue despite the work assigned presently. In paragraph 19following observation has been made:

“19. After much dejection from this Court as to why no actionhas been taken, an order of suspension dated 29.06.2017 waspassed and a copy of the same was produced to the Court on30.06.2017, while at the same time, it was brought to the knowledgeof this Court that Mr.A.G.Ponn Manickavel, Inspector Generalof Police, Idol Wing was transferred. Though it could be claimedas a routine transfer, this Court feels, it is otherwise. Also, theofficer has been supervising the cases and has efficiently tracedand recovered several Idols worth several crores. It is not thatthe succeeding officer is less efficient, but considering thatMr.A.G.Ponn Manickavel and his team have extensively travelledthroughout the country and are aware of the modus operandii ofthe culpritis. For the sake of continuity, speedy completion of theinvestigation and completion of the pending cases, this Court is of AB

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Athe view that Mr.A.G.Ponn Manickavel, Inspector General ofPolice and his team must continue despite the work assignedpresently.”

31. As noted above against the order of the High Court dated21.07.2017, the Director General of Police filed an SLP in this CourtBwhich was disposed of on 01.09.2017 but the order directing respondentNo.2 to be continued as head of the Idol Wing was not interfered withby this Court. Consequently, respondent No.2 was continuing to headthe Idol Wing. It is further to be noted that the High Court vide its orderdated 21.07.2017 has specifically directed that departmental proceedingsmust be initiated against the officials of the HR and CE Department.CFIRs were registered in which Officers of HR & CE Department werealso made accused and several officers were arrested. It was on31.07.2018 that D.O. letter was written by Commissioner, HR & CE toDirector General of Police. The letter begins with the words:

“This is to inform you of the increasing ways in which the IdolDWing of the Police is harassing officials of this Departmentthreatening them with filing of FIRs in case they do not agree tocarry out its wishes filing FIRs on the basis of complaints by Publicwithout even a preliminary enquiry, refusing to file FIR on thebasis of complaints by the Department/Temple authorities,Eundermining the authority of the temple/ Department authoritiesincluding the Commissioner, humiliating and hurting the reputationof officials through public investigation of cases and their depictionin the social and conventional media and interfering in the legitimatefunctioning of this Department.”

F32. In the letter dated 31.07.2018 the Commissioner pointed outvarious complaints of his officers which were received by him in writingand orally. The Commissioner stated that HR and CE Department isfacing a crisis. The Commissioner wrote to the Director General to ensurea fair and confidential investigation and bring the culprits to book, withoutdamaging the reputation of honest officials and the Department. By aGletter of 31.07.2018 itself Additional Director General of Police maderecommendation to the Director General of Police to transfer all casesunder investigation being investigated by the Special Team constitutedfor the Idol Theft cases to the CBI. The Director General on the nextday i.e. 01.08.2018 recommended for transferring the cases to the CBI,Hon the same day the GO dated 01.08.2018 was issued. The entire process

for transferring cases to the CBI was completed within one day oncomplaints submitted by the Commissioner. We have already noted thatthe High Court order dated 21.07.2018 has directed for holdingdepartmental inquiry against certain officers of HR & CE. It is alreadynoticed that FIRs were registered against the officers of the HR & CEDepartment and other accused. Thus, it was known fact that there wereallegations and FIRs against the few officers and complaints submittedby the Commissioner against the Idol Wing of the Police ought not tohave been accepted outrightly without conducting any enquiry. Even ifthere was some truth in the complaints made by the Commissioner, thesame ought to have been enquired and informed decision ought to betaken by the Government. The Idol Wing had been carrying out its workfor the last more than three decades, several Idols were recovered andcases launched and prosecutions were accomplished. On a single letterof the Commissioner suddenly no opinion could have been formed thatIdol Wing of the Department is not doing its job. The Higher Policeauthorities and State was fully competent to take action against anyofficer of the Idol Wing, if any excess or misdeeds were reported againstany officer of the Idol Wing. The letter of the Commissioner dated31.07.2018 does not refer to any written complaint by HR & CEDepartment to Police, higher authorities or the Government in the aboveregard. We, thus, are of the view that the decision to transfer the casesto CBI was hurriedly taken within one day on a complaint received bythe Commissioner without making any inquiry and the decision of theGovernment cannot be said to be an informed decision.

33. Another aspect of the matter in the above context needs to benoted. That the transfer was made of all the under investigation casesbeing investigated by the Special Team constituted for Idol Theft casesand all such future cases to the CBI. There were more than 100 casesunder investigation with the Idol Wing at the relevant time. In the abovecontext, it is relevant to notice the letter dated 19/20.09.2018 of theCentral Bureau of Investigation which was brought before the HighCourt by memo and is filed as Annexure P/18 to the appeal which is tothe following effect:

“Sub: Writ Petition NO.20392/2018 filed by Shri Elephant G.Rajendran – reg.Please refer to the subject cited above.

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AIn this connection, it is requested that when the matter comesup for hearing, it may be stated that Considering the large numberof Idol Theft Cases pending in various stages and also the futureidol theft cases likely to come up, and considering the severeshortage of manpower, CBI will extend its full cooperation andsupport in the matters of Extradition of accused, issue of RedBCorner Notices and coordinating with Interpol, etc., to the SpecialInvestigation Team, which is already investigating the Idol TheftCases.

HoB, CBI, SCB, Chennai.”

C34. The CBI by its communication dated 20.09.2018 in referenceto subject matter in the writ petition has expressed its opinion thatconsidering the large number of Idol Theft Cases pending in variousstages and also the future Idol Theft Cases likely to come up, andconsidering the severe shortage of manpower, CBI will extend its fullcooperation and support in the matters of Extradition of accused, issueDof Red Corner Notices and coordinating with Interpol, etc., to the SpecialInvestigation Team, which is already investigating the Idol Theft Cases.The said letter is politely expressing inability of the CBI to undertakesuch large number of cases.

35. The High Court in paragraph 32 of the impugned judgmentEhas given detail of reasons for quashing the order dated 01.08.2018. It isrelevant to notice that the High Court in its order dated 21.07.2017 hasalready directed to constitute a SIT of the Officers of the Idol Wing tocarry on the investigation and follow up pending trial. The compliance ofthe aforesaid order was under consideration before the Court. TheFAdditional Chief Secretary to the Government, after receiving letter fromAdditional Director General of Police, wrote a letter dated 01.08.2018to the Additional Advocate General in which following request was made:

“9. I am therefore, to request you to appraise the Hon’bleHigh Court of Madras about the decision of the GovernmentGwhen the above cases are taken up for hearing and whetherany orders from the Court are required.”

36. The Advocate General also brought to the notice of the Benchof the letter dated 01.08.2018 and wrote back to the Additional ChiefSecretary to the Government that Division Bench of the High Court hasobserved that communication, decisions or orders be placed before theH

Court in the next hearing to be held on 08.08.2018. When the matterspertaining to Idol Thefts were already under investigation by SITconstituted under the order of the High Court, it was appropriate that theState Government ought to have apprised the Court before issuing anyGovernment order for transferring the cases. In any view of the matterlooking to the large number of cases of Idol Thefts cases and cases tocome in future regarding Idol Thefts, the CBI was not appropriateinvestigating agency to be requested by the State. The CBI itself hasexpressed its inability to undertake such huge exercise, the High Courtdid not commit any error in quashing the Government order dated01.08.2018.

Issue No.3 and 4

37. The submission which has been much pressed by the learnedAttorney General before us is the lack of the jurisdiction of the HighCourt under Article 226 to direct for appointment of retired Police Officerto head a SIT after his superannuation. Three-fold submissions havebeen made by the learned Attorney General in the above regard. Firstly,the High Court exercising jurisdiction under Article 226 cannot take overthe power of the Superintendent of Police conferred on the StateGovernment under Sections 3 and 4 of the Police Act, 1861. Secondly,Under the Code of Criminal Procedure, it is the Police Officer who isentitled to carry investigation, arrest, submit charge sheet and do allother acts as a Police Officer. Thirdly, the Respondent No.2 aftersuperannuation no longer continued as Police Officer and could not haveexercised any power or jurisdiction as conferred on Police officer underthe Cr.P.C.

38. What is the ambit and scope of powers of the constitutionalcourts exercising the jurisdiction under Article 226 needs to be lookedinto. The High Courts in India were created by Indian High Courts Act,1861. Sections 9 and 10 of the Indian High Courts Act, 1861 providedfor jurisdiction and power of the High Court. Section 106 of theGovernment of India Act, 1915 and Section 223 of the Government ofIndia Act, 1935 provided for jurisdiction of the existing High Courts.Article 226 of the Constitution of India confers to the High Courts videpowers in the matter of issuing writs which they never possess before.Article 226 of the Constitution is couched in very wide words, powergiven to the High Court are both plenary and inherent. The power underArticle 226 is not confined only to issue specified writs but power AB

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Aconferred to the High Court is to issue directions, orders or writsincludingwrits in the nature of habeas corpus, mandamus, prohibition, quo warrantoand certiorari or any of the rights conferred by Part III and for any otherpurpose.

39. The scope and ambit of Article 226 came for considerationBbefore this Court in Dwaraka Nath vs. Income-tax Officer, AIR 1966SC 81. Justice K. Subba Rao speaking for the Court held:

“(4)………This article is couched in comprehensive phraseologyand it ex facie confers a wide power on the High Courts to reachinjustice wherever it is found. The Constitution designedly used aCwide language in describing the nature of the power, the purposefor which and the person or authority against whom it can beexercised. It can issue writs in the nature of prerogative writs asunderstood in England; but the scope of those writs also is widened by the use of the expression “nature”, for the said expressiondoes not equate the writs that can be issued in India with those inDEngland, but only draws an analogy from them. That apart, HighCourts can also issue directions, orders or writs other than theprerogative writs. It enables the High Courts to mould the reliefsto meet the peculiar and complicated requirements of this country.Any attempt to equate the scope of the power of the High CourtEunder Article 226 of the Constitution with that of the English Courtsto issue prerogative writs is to introduce the unnecessaryprocedural restrictions grown over the years in a comparativelysmall country like England with a unitary form of government to avast country like India functioning under a federal structure. Sucha construction defeats the purpose of the article itself……”F

40. Justice Krishna Iyer speaking for this Court in RohtasIndustries Ltd. And another vs. Rohtas Industries Staff Unionand others, (1976) 2 SCC 82, held that the extended power of theHigh Court under Article 226 is as wide as the amplitude of the languageused. In paragraph 9 following was held:G

“9. The expansive and extraordinary power of the High Courtsunder Article 226 is as wide as the amplitude of the languageused indicates and so can affect any person — even a privateindividual — and be available for any (other) purpose — evenone for which another remedy may exist. The amendment to ArticleH226 in 1963 inserting Article 226 (1-A) reiterates the targets of the writ power as inclusive of any person by the expressivereference to ‘the residence of such person’. But it is one thing toaffirm the jurisdiction, another to authorise its free exercise like abull in a china shop. This Court has spelt out wise and clearrestraints on the use of this extraordinary remedy and High Courtswill not go beyond those wholesome inhibitions except where themonstrosity of the situation or other exceptional circumstancescry for timely judicial interdict or mandate. The mentor of law isjustice and a potent drug should be judiciously administered.Speaking in critical retrospect and portentous prospect, the writpower has, by and large, been the people’s sentinel on the quivive and to cut back on or liquidate that power may cast a peril tohuman rights……”

41. Again, this Court in Air India Statutory Corporation andothers vs. United Labour Union and others, (1997) 9 SCC 377,held that the Founding fathers placed no limitation or fetters under Article226 of the Constitution except self-imposed limitations. This Court heldthat ‘The arm of the Court is long enough to reach injustice wherever itis found’. In paragraph 59 following has been observed:

“59. The Founding Fathers placed no limitation or fetters on thepower of the High Court under Article 226 of the Constitutionexcept self-imposed limitations. The arm of the Court is longenough to reach injustice wherever it is found. The Court assentinel on the qui vive is to mete out justice in given facts……”

42. The above authorities of this Court clearly lay down that powergiven to the High Court under Article 226 is power of very wide naturewhich does not contain any fetter except self-imposed restrictions. It iswell settled that the High Court while exercising jurisdiction under Article226 shall not issue any direction which is contrary to law.

43. The challenge raised before us by the learned Attorney Generalis that after superannuation of Police Officer he cannot be entrusted thepower of investigation or other powers under Cr.P.C. which entrustmentruns contrary to the statutory scheme and cannot be held to be availableunder Article 226. We may notice few decisions of the High Courts andthis Court which may be relevant for the issue under consideration.

44. A three-Judge Bench of this Court on monitoring of criminalinvestigation has laid down that in appropriate cases this Court can monitor A

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Athe Criminal Investigation especially when persons occupying highposition in society are accused. This Court in Vineet Narain and othersvs. Union of India and another, (1998) 1 SCC 226, held that Govt.Agencies including CBI had not carried out their public duty to investigatethe offences disclosed; this Court would monitor the investigations. ThisCourt laid down following in paragraphs 8 and 9:B

“8. The sum and substance of these orders is that the CBI andother governmental agencies had not carried out their public dutyto investigate the offences disclosed; that none stands above thelaw so that an alleged offence by him is not required to beinvestigated; that we would monitor the investigations, in the sensethat we would do what we permissibly could to see that theinvestigations progressed while yet ensuring that we did not director channel those investigations or in any other manner prejudicethe right of those who might be accused to a full and fair trial. Wemade it clear that the task of the monitoring court would end themoment a charge-sheet was filed in respect of a particularinvestigation and that the ordinary processes of the law wouldthen take over. Having regard to the direction in which theinvestigations were leading, we found it necessary to direct theCBI not to report the progress of the investigations to the personoccupying the highest office in the political executive; this wasdone to eliminate any impression of bias or lack of fairness orobjectivity and to maintain the credibility of the investigations. Inshort, the procedure adopted was of “continuing mandamus”.

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9. Even after this matter was brought to the Court complaining ofthe inertia of CBI and the other agencies to investigate into theoffences because of the alleged involvement of several personsholding high offices in the executive, for quite some time thedisinclination of the agencies to proceed with the investigationwas apparent. The accusation, if true, revealed a nexus betweenhigh-ranking politicians and bureaucrats who were alleged to havebeen funded by a source linked with the source funding theterrorists. In view of the funding also through foreign currency,some undesirable foreign elements appeared to be connected.This revealed a grave situation posing a serious threat even to theunity and integrity of the nation. The serious threat posed to theIndian polity could not be underscored. The obvious need for an F

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expeditious and thorough probe which had already been delayedfor several years could not but be countenanced. The continuinginertia of the agencies to even commence a proper investigationcould not be tolerated any longer. In view of the persistence ofthat situation, it became necessary as the proceedings progressedto make some orders which would activate the CBI and the otheragencies to at least commence a fruitful investigation. Merelyissuance of a mandamus directing the agencies to perform theirtask would be futile and, therefore, it was decided to issue directionsfrom time to time and keep the matter pending requiring theagencies to report the progress of investigation so that monitoringby the court could ensure continuance of the investigation. It was,therefore, decided to direct the CBI and other agencies to completethe investigation expeditiously, keeping the court informed fromtime to time of the progress of the investigation so that the courtretained seisin of the matter till the investigation was completedand the charge-sheets were filed in the competent court for beingdealt with, thereafter, in accordance with law.”

45. When the Government Agencies failed in unearthing offencesof magnitude the doors of constitutional courts have been knocked bycitizens to come to their rescue. One of the tools of this Court to advancejustice and fulfil the constitutional objectives is recognizing a specialcategory of litigation, namely, PIL. Durga Das Basu in Commentary onthe Constitution of India Vol.6 8[th] Edition 2010 while delineating scopeand object of such litigation states:

“1. The grievance in a public interest action is about the contentand conduct of Government action in relation to the constitutionalor statutory rights of segments of society and in certaincircumstances the conduct of Government policy. The relief to begranted looks to the future and is, generally, corrective rather thancompensatory which, sometimes, it also is. The Court has a moredynamic and positive role. It often does seek the assistance ofexpert panels, commissioners, advisory committees etc. The reliefimplies affirmative action. The remedy is both imposed, negotiatedor quasi-negotiated.”

46. A Constitution Bench of this Court speaking through Bhagwati,CJ in M.C. Mehta and another vs. Union of India and others,1987 (1) SCC 395, while considering the nature of PIL and power AB

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Aunder Article 32 held that under Article 32 this Court is free to deviseany procedure appropriate for particular purpose of the proceeding. Inparagraphs 6 and 7 following was stated:

“6. So far as the power of the court under Article 32 to gatherrelevant material bearing on the issues arising in this kind oflitigation, which we may for the sake of convenience call socialaction litigation, and to appoint Commissions for this purpose isconcerned, we endorse what one of us, namely, Bhagwati, J. ashe then was, has said in his judgment in Bandhua Mukti Morchacase. We need not repeat what has been stated in that judgment.It has our full approval.

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7. We are also of the view that this Court under Article 32(1) isfree to devise any procedure appropriate for the particular purposeof the proceeding, namely, enforcement of a fundamental rightand under Article 32(2) the court has the implicit power to issuewhatever direction, order or writ is necessary in a given case,including all incidental or ancillary power necessary to secureenforcement of the fundamental right. The power of the court isnot only injunctive in ambit, that is, preventing the infringement ofa fundamental right, but it is also remedial in scope and providesrelief against a breach of the fundamental right already committedvide Bandhua Mukti Morcha case. If the court were powerlessto issue any direction, order or writ in cases where a fundamentalright has already been violated, Article 32 would be robbed of allits efficacy, because then the situation would be that if afundamental right is threatened to be violated, the court can injectsuch violation but if the violator is quick enough to take actioninfringing the fundamental right, he would escape from the net ofArticle 32. That would, to a large extent, emasculate thefundamental right guaranteed under Article 32 and render itimpotent and futile. We must, therefore, hold that Article 32 is notpowerless to assist a person when he finds that his fundamentalright has been violated. He can in that event seek remedialassistance under Article 32. The power of the court to grant suchremedial relief may include the power to award compensation inappropriate cases. We are deliberately using the words “inappropriate cases” because we must make it clear that it is not inevery case where there is a breach of a fundamental right D

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committed by the violator that compensation would be awardedby the court in a petition under Article 32. The infringement of thefundamental right must be gross and patent, that is, incontrovertibleand ex facie glaring and either such infringement should be on alarge scale affecting the fundamental rights of a large number ofpersons, or it should appear unjust or unduly harsh or oppressiveon account of their poverty or disability or socially or economicallydisadvantaged position to require the person or persons affectedby such infringement to initiate and pursue action in the civil courts.Ordinarily, of course, a petition under Article 32 should not beused as a substitute for enforcement of the right to claimcompensation for infringement of a fundamental right through theordinary process of civil court. It is only in exceptional cases ofthe nature indicated by us above, that compensation may beawarded in a petition under Article 32. This is the principle onwhich this Court awarded compensation in Rudul Shah v. Stateof Bihar[5]. So also, this Court awarded compensation to BhimSingh, whose fundamental right to personal liberty was grosslyviolated by the State of Jammu and Kashmir[6]. If we make a factanalysis of the cases where compensation has been awarded bythis Court, we will find that in all the cases, the fact of infringementwas patent and incontrovertible, the violation was gross and itsmagnitude was such as to shock the conscience of the court andit would have been gravely unjust to the person whose fundamentalright was violated, to require him to go to the civil court for claimingcompensation.”

What is said about Article 32 of the Constitution is also true forjurisdiction of High Courts under Article 226.

47. This Court time and again forged and fashioned new designsto enforce fundamental rights and to redress other grievance of thepeople. There are several instances of this Court and High Courts issuingdirections for carrying out investigation by Special Investigation Teamwhich consisted even retired officers. This Court in GuruvayoorDevaswom Managing Committee and another vs. C.K. Rajan andothers, (2003) 7 SCC 546, has elaborately noticed the scope of PublicInterest Litigation and has catalogued the principles evolved by this Courtin paragraph 50 of the judgment. Eleven principles have beensummarized. In sub-para (ix) this Court held:

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(ix) The Court in special situations may appoint a Commission, orother bodies for the purpose of investigating into the allegationsand finding out facts. It may also direct management of a publicinstitution taken over by such Committee. (See Bandhua MuktiBMorcha, Rakesh Chandra Narayan v. State of Bihar and A.P.Pollution Control Board v. Prof. M.V. Nayudu.)”

48. Different High Courts and this Court have passed severalorders constituting Special Investigation Team to carry out investigationsin cases where such requirement was found necessary. Before DivisionCBench of Bombay High Court in Ranjitsing Brahmajeetsing Sharmaand Ors. Vs. Kisan Baburao Hazare and Ors., 2004 (3) MhLJ760, was a case where SIT was constituted which consisted of retiredDirector General of Police. Initially order was passed on 04.09.2003 byconsent of the parties with regard to SIT to be headed by Mr. S.S. Puri,retired Director General of Police. When a subsequent order datedD24.09.2003 was passed providing that Mr. S.S. Puri will exercise allpowers exercisable by Director General of Police, as if he is in serviceand the Government Resolution was issued on 26.09.2003 to the saideffect, an application was filed for recalling the subsequent directiondated 24.09.2003. The submission was made before the Court that Mr.ES.S. Puri being not in service and as a result of direction issued by theCourt there were two Director Generals of Police in the State ofMaharashtra which was contrary to the provisions of the All IndiaServices Act, 1951 read with the Indian Police Service (Cadre) Rules,1954 and I.P.S. (Fixation of Cadre Strength) Regulations, 1955. Thesubmission was also made that in exercise of jurisdiction under ArticleF226 the High Court cannot overstep limits prescribed by statute. It wascontended that order of the Court trenches upon the statutory machinerywhich has been envisaged in the Cr.P.C. for investigation of offences.The Division bench of Bombay High Court repelled the submission itheld that the order of the High Court does not supplant the provisions ofGCr.P.C. or disabled the machinery of investigation that has been designedunder the Code. The Division Bench in paragraph 27 observed:

“27. Good governance in a civil society is inextricably woven withthe fabric of ordered liberty. Enforcement of law, the investigationof crimes and the prosecution of offenders constitute important H

components of a system which is guided by the ideals of the Ruleof Law. Ideals in the distant horizon they seem to be when theconscience of a society is aroused by wrongdoing which is of asystemic nature. The evolution of a society from market controlto market reform is an important milestone in development. Thedominance of market forces furnishes new avenues for thegeneration of wealth. On the other hand, the sanctity of theeconomic system and its stability can be destroyed by systemicfranks of the kind that contemporary economics have had toconfront. Effective investigation and prosecution are the hallmarksof a legal system committed to the protection of human rights asthey are of a legal regime that protects legitimate forms ofeconomic activity. Courts must and do have a healthy respect forthe demarcation of powers between the executive, the legislatureand the judiciary. Equally, nothing can be as destructive of therule of law as the lack of independence and impartiality of theinvestigation and prosecutorial processes. When systemic issuesof the kind involved here arise before the Court, the obligation ofthe court as expounder of constitutional precept warrants flexibleand effective remedies. The evolution of legal doctrine is notstratified in a frozen dialogue. Courts must and do respond to feltnecessities of the time ensuring that in the process they do notoffend the constitutional distribution of powers or statutoryprohibitions. Doctrinal immutability should not stultify a democraticsociety in its effort to find effective measures for unheraldedwrongs.”

49. A Full Bench of the Madras High Court in R. Sankarasubbuvs. The Commissioner of Police, Egmore, Chennai, 2013 (1) CTC1, appointed one Mr. R.K. Raghavan, former Director of CBI. In thiscontext in paragraph 76(i) following has been stated:

“76.(i) We hereby appoint Mr. R.K. Raghavan, former Directorof Central Bureau of Investigation, as Investigating Officer ofSpecial Investigation Team(SIT), to be assisted by Dr. M.Narayana Reddy, former Professor and Head of the Departmentof Forensic Medicine, Osmania University, Hyderabad, AndhraPradesh to investigate this case.”

50. This Court in Advocates Association, Bangalore vs. Unionof India and others, (2013) 10 SCC 611, has noticed that the High ABC

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ACourt of Karnataka has constituted SIT which was headed by a retiredDirector of CBI. Paragraph 7 of the judgment is as follows:

“7. The High Court, by order dated 16-5-2012[1], constituted aSpecial Investigation Team (SIT) headed by Dr R.K. Raghavan,a retired Director of CBI as Chairman and Mr R.K. Dutta, DirectorBGeneral of Police, CID, Bangalore as Convenor along with otherpolice officials to investigate into the incident with reference tothe complaints lodged by the police, advocates as well as mediaagainst each other and to conclude the same within 3 monthsfrom the date of the government notification. In pursuance of thesame, the State Government issued a series of notificationsCconstituting and reconstituting SIT for reasons of non-availabilityof officers to be its members.”

51. Although this Court ultimately entrusted the investigation toCBI but the fact we notice that the High Court had appointed SIT whichwas headed by retired CBI Director General. Recently this Court inDSUNITA DEVI AND ANOTHER VS. UNION OF INDIA ANDOTHERS, (2018) 3 SCC 664, has appointed a SIT to investigate acase of murder where one Shri Shri M.L. Sharma, IPS (retired), formerSpecial Director, CBI, was appointed as Chairman of the SIT. Inparagraph 10 following was directed:

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“10. Having examined the entire materials placed on record, wedeem it proper to constitute a Special Investigating Team (SIT) toreinvestigate FIR No. 221 of 2001 titled “State v. Manvir Singh”registered at Police Station Pilakhua, District Ghaziabad, U.P. ShriM.L. Sharma, IPS (retired), former Special Director, CBI, isFappointed as the Chairman of the SIT. Shri M.L. Sharma ispermitted to take assistance of two officers of his choice of CBIas its members. We direct the SIT to proceed as regards furtherinvestigation in respect of FIR No. 221 of 2001 and to submit itsreport within a period of three months from today. Needless tosay that appropriate secretarial assistance and logistic supportGshall be made available to the SIT by the Government of UttarPradesh. The Government of Uttar Pradesh is also directed toprovide to the Chairman and the members of the SIT all travelling,boarding and lodging expenses while discharging their responsibilityentrusted to them.”

52. Learned counsel for the appellants relied on a judgment ofthis Court in Board of Control for Cricket in India vs. CricketAssociation of Bihar and others, 2014 (7) SCC 385, wheresuggestion to include Mr. M.L. Sharma, retired IPS was not accepted.In his place one Mr. B.B. Mishra, IPS of the 1983 Batch was included.

53. The judgments as noted above indicate that the High Courtsand this Court in their several judgments have included retired PoliceOfficers to be part of SIT or to head a SIT. Learned Attorney Generalhas submitted that these are those cases where the appointment of retiredofficers was made but the Court had no occasion to consider the legalityof such appointment in exercise of jurisdiction under Article 226 or Article32. We having noticed the expansive nature of jurisdiction under Article226 and the exposition of law of this Court extracted above, the jurisdictionof constitutional courts under Article 226 and Article 32 can be used toforge new methodology to achieve the constitutional objectives. Nofetter can be read in the jurisdiction under Article 32 or 226 as contendedby the learned Attorney General. For sufficient reason investigation canbe handed over to a person who is retired or no longer in employment.The functions which are to be performed by that person is under authorityof Court’s order. There may be varied situations and circumstanceswhere a former officer is entrusted with an investigation or any otherfunction to achieve an object or purpose. When the constitutional courtsdirect particular officer to carry on specific job that order cannot betreated to be put that person in office of that post with all necessaryconsequences. The particular object is entrusted or only a specific job isentrusted to the officer which he has to carry. The Court in issuing suchdirection neither creates any ex-cadre post nor affects the post of officerby giving any kind of appointment to a post. The violation of All IndiaServices Act, 1951 or Rules framed thereunder cannot be read inentrustment of specific job to a retired officer. Learned Attorney Generalhas submitted that in view of subsequent Government Order dated09.12.2002 which has been placed before us now re-employment ofGovernment servants beyond the age of superannuation of 60 years isnot permissible. He has also referred to the All India (Death-cum-Retirement Benefits) Rules, 1958 where under Rule 16(1)A there isprovision of giving extension in service to the incumbents of the posts ofthe Cabinet Secretary, Defence Secretary, Home Secretary, Director,Intelligence Bureau, Secretary, Research and Analysis Wing and Director, A

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ACentral Bureau of Investigation for such period as it may deem proper.There cannot be any quarrel to the above provision nor applicability ofthe above provision in facts of the present case. Present is not a casewhere Government has decided to extend the services of respondentNo.2. It is relevant to note that the High Court issued direction in paragraph45(1) appointing respondent No.2 as a Special Officer to head Idol Wing-BCID, Chennai to deal with the cases of theft of Idols and antiques in allstages, for a period of one year, after his superannuation w.e.f. 30.11.2018.The Court further directed “the Government to pass orders to that effect”.The Court clearly intended that in the above regard Government maypass appropriate orders. It is open for the Government to issue ordersCenabling respondent No.2 to carry on functions as per the direction.Learned Attorney has taken exception to direction No.3 by which it isdirected that respondent No.2 shall draw the same pay and benefits thatwere available to him at the time of his retirement as Special Officer.On objection being raised to the said direction, learned counsel for

respondent No.2 has fairly submitted before us that respondent No.2 isDready to carry on and discharge his duties as per orders of this Courtwithout drawing any pay and benefits as directed by the High Court. Weare of the view that the High Court instead of issuing direction No.3ought to have given option to the State Government either to continue/

re-employ respondent No.2 or in alternative fix some honorarium for theEduties entrusted to respondent No.2. The State Government having notpassed any order in consequence of which respondent No.2 may continuein the office of Inspector General of Police, justice would be servedwhen the State Government is directed to pay some honorarium duringthe period respondent No.2 performed his duties under the order of theCourt in addition to his pension. We, however, make it clear that any payFand benefits which have already been extended to respondent No.2 shallneither be recovered nor adjusted.

54. We, thus, conclude that the High Court in exercise ofjurisdiction under Article 226 can very well direct respondent No.2 tohead the Special Investigation Team to carry out investigation and otherGfunctions after attaining the age of superannuation. We, further, holdthat directions of the High Court dated 30.11.2018 to continue respondentNo.2 in Idol Wing of CID after his superannuation is sustainable.

55. Learned Attorney General as well as Shri Mukul Rohtagi furthersubmitted that there are allegations against respondent No.2, severalH

complaints were filed and it cannot be said that the respondent No.2 isthe competent officer to continue as head of the Idol Wing. It is submittedthat respondent No.2 in the writ petition has filed affidavit on 27.11.2018with regard to which there was no opportunity given to the appellant tofile reply. Alongwith affidavit dated 27.11.2018 several self-servingdocuments were brought on record by respondent No.2 which wererelied by the High Court. It is, further, submitted that alongwithI.A.No.180358 of 2018 as well as I.A.No.30023 of 2019 details of variouscomplaints were brought on record before this Court. On the basis ofwhich it is clear that respondent No.2 cannot claim to be an officer withclean records and officer having no complaints.

56. Learned counsel appearing for the PIL refuting the abovesubmission submitted that before the High Court no grievance was raisedagainst respondent No.2 regarding his competence or complaints againsthim, it is only after the orders have been passed by the High Court on30.11.2018 that certain complaints were obtained against respondentNo.2 which are sought to be filed along with I.A.No.30023 of 2019. It issubmitted that complaints which have been brought on record arecomplaints which were obtained in the third and fourth week ofDecember, 2018. The High Court in the impugned judgment before issuinga direction to continue respondent No.2 in the Idol Wing has thoroughlyexamined the credential of respondent No.2. The High Court in paragraph34 of the judgment has noticed the statement of learned AdditionalAdvocate General that there are no allegations against respondent No.2except that he has not submitted the report to Additional Director Generalof Police. Following observation was made by the High Court inparagraph 34:

“34. Even earlier, during the earliest of hearings, when it wasmentioned before this Court about such conduct of the PoliceDepartment, the learned Additional Advocate General fairlysubmitted that the only blemish on the part of the officer is that hehas not submitted the reports to the Additional Director Generalof Police and that apart there are no allegations against him.”

57. The reasons for directing respondent No.2 to continue havebeen set out by the High Court in paragraph Nos. 35 to 41. The HighCourt has taken note of the fact that the Government order dated01.08.2018 transferring the cases to CBI having been quashed, it has A

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Abecome just and necessary for the Court as the custodian of the Idols, inthe role of parens patriae to exercise its jurisdiction to formulate a solution.Following has been stated in paragraph 35:

“35. Now, considering that the Government order has beenquashed and that the State is not inclined to continue the cases,Bthe CBI has categorically refused to take up the cases andexpressed its intention to assist the existing team; that the CentralGovernment has so far remained silent, an extraordinary situationhas arisen, by which, a vacuum has been created and this Courthas to take a timely decision to protect the idols and treasures ofthe temples. Hence it has become just and necessary for thisCCourt as the custodian of the Idols, in the role of parens patriae toexercise its jurisdiction to formulate a solution to bring about acontinuity in the investigation and to safe guard the idols, whichare valuable properties of this country. It has come to theknowledge of this Court that Mr.A.G.Pon Manickavel, I.P.S inDthe rank of Inspector General of Police is attaining superannuationin the forenoon of 30.11.2018. The credibility of the officer isevident from the fact he has been fair and impartial in his actions.This Court is also satisfied with the procedure followed by him insecuring the accused. It was also brought to the knowledge ofthis Court, that even recently, more than 250 idols were unearthedEby him based on the information received from credible sources.Some idols were also recovered during transit. He has been ableto keep the informants intact and show tremendous progress.”

58. In paragraph 36 the Court has noticed the details of the workaccomplished by Idol Wing and the Idols recovered by the SIT headedFby respondent No.2. In paragraph 40 of the judgment, the High Courtalso noticed the Performance Appraisal Report of respondent No.2 andit noticed that respondent was assessed by 28 officers and he has beengiven excellent grading by 27 officers, except one officer who madeadverse remarks which had been set aside by the Central AdministrativeGTribunal. We, thus, are of the view that the High Court had after dueexamination of all relevant documents taken a decision to continuerespondent No.2 to head the Idol Wing. The High Court has referred tovarious judgments of the High Court and this Court where work andconduct of respondent No.2 was appreciated which observations wereextracted by the High Court in support of its conclusion.H

59. The statement of Additional Advocate General noted by theHigh Court in paragraph 34 clearly indicates that before the High Courtthere were no allegations against respondent No.2 as to come to theconclusion that he was not a fit person to be directed to continue in theIdol Wing. The complaints which have been now referred to and reliedby the appellant are the complaints which have been submitted after thejudgment of the High Court. Alongwith I.A.No.10291 of 2018 thepetitioners have referred to certain complaints in paragraph 6 in tabularchart. The said chart indicates that complaints are of 17, 18 and 26December, of 2018. They are the complaints which were submittedeven after the filing of the SLP in this Court. We are not required toenter into correctness or otherwise of the allegations in the complaints.The High Court in its direction has observed that if there are materialsagainst respondent No.2 the same can be placed before the High Courtfor further direction. On the strength of the complaints which aresubsequently submitted after the judgment of the High Court, we are notpersuaded to accept the submission of the appellant that respondentNo.2 was not a fit person to be allowed to head the Idol Wing after30.11.2018. In so far as submission of learned counsel for the appellantthat after filing of the affidavit on 27.11.2018 by the respondent No.2 noopportunity was given to the appellant, it is useful to extract paragraph34 of the judgment where High Court observes “As an affidavit wasfiled on 27.11.2018, again a direction in similar lines was issued by us on27.11.2018 to place any materials if available before this Court. However,till date no such materials have been placed before us.” We, thus, are ofthe view that the High Court had given opportunity to place the materials,if any. We, thus, are of the view that the High Court did not commit anyerror in directing respondent No.2 to continue to head the Idol Wingafter his superannuation on 30.11.2018.

Issue No.5

60. Now we come to the 10 directions issued by the High Court inparagraph 45 of the judgement which have been assailed by the learnedAttorney General on the ground that each and every direction is contraryto law. We will take up each direction separately:

(1) By direction No.1, respondent No.2 was directed to functionas Special Officer to head Idol Wing-CID, Chennai on hissuperannuation on 30.11.2018. The Government wasdirected to pass orders to that effect. We have already while AB

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considering Issue Nos.3 and 4 held that respondent No.2could have been directed to work as a Special Officer tohead Idol Wing-CID, hence, we do not find any error indirection No.1.

(2) With regard to direction No.2, Special Team was alreadyBconstituted by the earlier order of the High Court dated21.07.2017 which was directed to be continued to whichdirection no exception can be taken.

(3) With regard to direction No.3, it was directed to respondentNo.2 to draw the same pay and benefits that were availableCto him at the time of his retirement for the entire tenure ofhis term as Special Officer. We are of the view that insteadof such direction, the High Court ought to have given anoption to the State Government either to pass an order forre-employment/re-engagement or the liberty ought to havebeen given to State to fix some honorarium in addition toDpension which would have been drawn by respondent No.2.During the course of hearing learned counsel for respondentNo.2 has submitted that respondent No.2 is ready to carryon his duty as entrusted by the High Court even withoutreceiving any emoluments. We are of the view that in theEfacts and circumstances of the case, direction No.3 deservesto be modified to the effect that the State shall fix ahonorarium to be paid to respondent No.2 in addition topension to be drawn by him. We further observe that in theevent any amount has already been paid to respondent No.2in pursuance to the direction of the High Court, the sameFshall not be recovered and adjusted.

(4) By direction No.4 the High Court directed the SpecialOfficer to investigate the cases thoroughly and submit allthe reports before the Court in a sealed cover to enable theCourt to monitor the investigation. We have noticed that anAdditional Director General of Police was appointed to headthe Idol Wing by order dated 29.11.2018, it was not necessaryfor the High Court to burden itself with scrutinising eachand every report and requiring each and every report to besubmitted before the Court. There being a higher Officerposted in the Idol Wing, progress and result of the G

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investigation ought to have been reported to AdditionalDirector General of Police and the report in the High Courtwas necessary when certain directions were required bythe Special Officer. We modify direction No.4 to the effectthat report of progress of the investigation shall be submittedto the Additional Director General of Police of Idol Wingand report to the High Court may be submitted by the SpecialOfficer only when any further directions are required fromthe High Court.

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(5) With regard to direction No.5, by this direction the SpecialOfficer is directed to continue to not only investigate andfile charge sheets and prosecute in the pending cases butalso to continue to do so in the cases arising in future duringhis tenure. No exception can be taken.

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(6) The direction No.6 which requires CBI and other agenciesof Central Government shall continue to give appropriateDsupport to the Special Officer. No exception can be takensince CBI itself sent letter dated 19.09.2018 communicatingits support.

(7) With regard to direction 7 serious objection has been raisedby the learned Attorney General. He submits that the saiddirection gives exemption to respondent No.2. Therespondent No.2 cannot be held above law. We are of theview that no one including respondent No.2 is above thelaw. The High Court has given liberty to the State or anycompetent authority to place the materials before the Courtfor further direction if there are any materials againstrespondent No.2. The liberty given in direction No.7 amplyprotects the interest of the State which needs no interference.

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(8) Direction No.8 pertains to communications to concernedDepartments to extend co-operation to the Special Teamwith which no exception can be taken.

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(9) With regard to direction No.9, learned Attorney Generalsubmits that the High Court ought not to have given anydirection with regard to financial aspects. He submits thatthere is a procedure for allocation of finances for whichpassing of budget is required. It is to be noted that Idol H

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Wing has been created by the State in 1983 and for severaldecades Idol Wing has been continuing without provision ofany separate division to handle the financial aspects. Weare of the view that there was no such requirement to issueany direction to create such division to handle the financialaspects. The Idol Wing has to be run as per budget allocationand in any case of requirement it is always open to thehigher Police authorities and State Government to do theneedful. Direction No.9, thus, is to be deleted.

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(10) Direction No.10 is general direction to which no exceptioncan be taken.

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Issue No.5 is decided accordingly.

Issue No.6

61. The High Court while delivering judgment on 30.11.2018noticed the order dated 29.11.2018 which was brought into the notice ofDthe Court by respondent No.2 with regard to which observation hasbeen made by the High Court in paragraphs 47 ad 48 of the judgment.In paragraphs 47 and 48 following has been observed:

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“47. When we are about to pronounce this order, the petitioner inWP.No.20392 of 2018 produced a copy of the proceedings issuedEby the Government of Tamil Nadu in Police Note No.SC/19/2018dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh,IPS, Additional Director General of Police/Chief Vigilance Officer,Tamil Nadu Newsprint and Papers Limited, Karur has beentransferred and posted as Additional Director General of Police,Idol Wing, CID, Chennai by upgrading the post of Inspector GeneralFof Police, Idol Wing CID.

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48. We are of the view that the State all along, is not inclined tocontinue with the investigation of idol theft cases as the samewere transferred to CBI despite pendency of the stay order ofthis Court. It is also pertinent to note that after the orders wereGreserved, they have upgraded the post of the Additional DirectorGeneral of Police and appointed an officer, by order dated29.11.2018, which action is inappropriate and it would amply provethe transfer of cases in a most hurried manner within a single dayi.e., on 01.08.2018. Similarly, the manner in which the presentHorder dated 29.11.2018 has been passed, will speak for itself.

Hence, notwithstanding the order dated 29.11.2018 passed by theGovernment, which has become redundant, Tr.A.G.PonManickavel shall take charge as Special Officer to head the IdolWing as ordered by us, in order to preserve the idols as well asrecovery of the stolen idols to uphold the cultural heritage of thisland.”

62. The above observation itself indicates that by the Governmentorder dated 29.11.2018 the post of Inspector General of Police wasupgraded as Additional Director General of Police who was appointedby the State Government on 29.11.2018. The order dated 29.11.2018being not under challenge in the writ petition, it was not necessary forthe High Court to make any observation in that regard. Without therebeing any challenge to the order dated 29.11.2018, the High Court wasnot right in observing that order dated 29.11.2018 has become redundant.We, thus, disapprove the observation made by the High Court inparagraphs 47 and 48 that the order dated 29.11.2018 has becomeredundant. Order dated 29.11.2018 was a Government order which wasnot challenged in the writ petition, the same shall remain effective thatthe Idol Wing shall be headed by the Additional Director General ofPolice appointed on 29.11.2018. The Idol Wing shall be headed by theAdditional Director General of Police. We, however, observe that SpecialOfficer shall take all appropriate steps along with his Team and he shallsubmit report to the Additional Director General of the result of theinvestigations so that appropriate further action be taken. Issue No.6 is,thus, answered accordingly.

63. Before we close, we need to clarify one aspect and noticeone necessary caution with regard to what has been said above, i.e.,

(i) Insofar as filing of the statutory reports as per the procedureprescribed in the Code of Criminal Procedure, necessaryreports have to be filed by the officer authorized as per Codeof Criminal Procedure.

(ii) There might arise exceptional cases where the direction forappointment of retired officers may be unavoidable to achievethe goal of justice but the High Court may resort to the powerunder Article 226 only after weighing all pros and cons andafter exhausting all options and as a matter of last resort.Taking services of a retired police officer or any other retiredpersonnel is not to be normally resorted to since in the State A

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Aconcerned, there is always no dearth of competent and ableofficers, hence whenever the Court finds it necessary to takeassistance of services of the retired officers or personnel, itshould be with necessary caution and resorted to only whenthere are very valid and unavoidable circumstances.

B 64. In view of the foregoing discussions, the appeals are partlyallowed. The judgment of the High Court is modified to the followingextent:-

(1) The direction No.9 issued in paragraph 45 of the judgment ofthe High Court is deleted and directions Nos.3 and 4 areCmodified as indicated in paragraphs 60(3) and 60(4) of thisjudgment.

(2) The order of the High Court in paragraph 48 that theGovernment order dated 29.11.2018 has become redundantis set aside.

D65. Parties shall bear their own costs.

Nidhi Jain

Appeal partly allowed.

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