ROYDEN HAROLD BUTHELLO & ANR. versus STATE OF CHHATTISGARH & ORS. on 28 February 2023

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SUPREME COURT REPORTS

[2023] 3 S.C.R.

AROYDEN HAROLD BUTHELLO & ANR.

v.

STATE OF CHHATTISGARH & ORS.

(Criminal Appeal No.634 of 2023)

BFEBRUARY 28, 2023

[A. S. BOPANNA AND AHSANUDDIN AMANULLAH, JJ.]

Criminal Law – Investigation by CBI – When cannot bedirected – Appellant no.1 accused of indulging in sale ofpsychotropic NDPS substance – It is the case of the appellant no.1Cthat while he was travelling with regard to his business, he wasillegally abducted, detained and a case under NDPS was foistedon him – Appellant no.1 and his father-appellant no.2 filed writpetition before High Court inter alia seeking direction to transferthe investigation to the CBI, which was declined – Revision petitionDfiled by the appellant against order framing charges was alsodismissed – On appeal, held: Power to transfer the investigation isan extraordinary power – It is to be used very sparingly and in anexceptional circumstance where the Court on appreciating the factsand circumstance arrives at the conclusion that there is no otheroption of securing a fair trial without the intervention andEinvestigation by the CBI or such other specialized investigatingagency – In the present case, there is no issue of public importancewhich requires investigation by the CBI – Contention of the appellantthat the offence alleged against him to have been committed on21.10.2020 could not have been committed by him inasmuch as heFwas abducted from a different State and was already in illegaldetention of the police on 20.10.2020, would be the defence in thecriminal trial – Other aspects contended by the appellants could beestablished through evidence in trial before the competent court –Appellants would have the further remedy of the legal courseavailable to them if they are dissatisfied – Thus, when the issueGraised is only a matter of evidence to be considered in the judicialproceedings to arrive at a conclusion, a direction to the CBI to holdan investigation would be unjustified – Impugned orders notinterfered with – NDPS Act – ss.29 r/w ss.22(b), (c), 25, 27 – Codeof Criminal Procedure, 1973 – s.313.H

Dismissing the appeals, the Court

HELD: 1.1 Though there is no inflexible guideline or astraightjacket formula laid down, the power to transfer theinvestigation is an extraordinary power. It is to be used verysparingly and in an exceptional circumstance where the Court onappreciating the facts and circumstance arrives at the conclusionthat there is no other option of securing a fair trial without theintervention and investigation by the CBI or such otherspecialized investigating agency which has the expertise. In thatbackground, there is no issue of public importance which requiresto be unearthed by an investigation to be conducted by the CBI.Even from the facts noted and the allegations made against thepolice, though the Court is sensitive to the sentiment of theappellants herein, the contention ultimately is that the offencealleged against him to have been committed on 21.10.2020 couldnot have been committed by him inasmuch as he had beenabducted from a different State and was already in the illegaldetention of the police on 20.10.2020 itself. This essentially wouldbe the defence in the criminal trial. The charges have been framedand the evidence is being tendered. Insofar as the allegation thatthe said persons namely ‘PB’, ‘S’, ‘S’ and ‘A’ had gone to Odishaand had illegally abducted him, from the very details furnished bythe appellants themselves, it is noted that the High Court hadthrough the order dated 17.03.2022 in a collateral proceedingdirected that the five officers stated in the said order be called aswitnesses for examination and cross-examination. [Paras 19,20][162-F-H; 163-A-B]

1.2 In that view, even though it is contended that the CCTVfootage would be relevant to establish the presence of the saidfour persons in the hotel at Odisha and the same has not beenseized by the police, the fact remains that even from the samewhat is sought to be established is that the said four persons hadabducted the appellant No.1. In the course of trial the five personsspecified by the appellants would now be available to be cross-examined and any other orders in that regard can be sought inthe pending proceedings. That apart, on the other aspects alsosince the trial is under progress, the appellant No.1 would beentitled to put forth his case when the statement under Section A

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A313 of CrPC is recorded and also he would be entitled to tenderevidence if necessary. The case of the appellant is clear as to thereason why he contends that the appellant No.1 cannot be heldto have committed the offence as registered in FIR No.232/2020based on which his name has also been included in an earlier FIRNo.255/2020. These are matters which could be establishedBthrough evidence in the trial before the Competent Court in thejudicial proceedings wherein all these matters would beappreciated and a conclusion would be reached. In that regard,the appellants in any event would have the further remedy of thelegal course which is available to them if they are dissatisfied.CFurther, insofar as the complaint said to have been lodged by theappellant No.2, from the affidavit as filed by the respondent No.6,the nature of investigation carried out by them has been stated.In that regard also the appellant No.2 would have the legal remedyin accordance with law. In addition, in the said process of thejudicial proceedings if the appellants bring out the fact that theDappellant No.1 who was not involved, had been framed up and acase was foisted, the appellants would still have the legal remedyto take action for malicious prosecution, loss of reputation, actionagainst involved persons, compensation and for such other reliefin that regard. Therefore, when the issue raised is only a matterEof evidence to be considered in the judicial proceedings to arriveat a conclusion, this Court is not convinced that in a case of thepresent nature, a direction to the CBI to hold an investigationwould be justified nor is it required at this juncture when the trialin the judicial proceedings has progressed unhindered. Henceto that extent, all contentions of the appellants are kept open. AllFcontentions are left open to be urged before the trial court. Noreason to interfere with orders impugned. [Paras 21, 22][163-C-H; 164-A-C]

State of West Bengal & Ors. vs. Committee for Protectionof Democratic Rights, West Bengal & Ors. (2010) 3 SCCG571 : [2010] 2 SCR 979; Mithilesh Kumar Singh vs.State of Rajasthan & Ors. (2015) 9 SCC 795 : [2014]13 SCR 1362; Arnab Ranjan Goswami vs. Union ofIndia (2020) 14 SCC 12 : [2020] 8 SCR 222 – reliedon.

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ROYDEN HAROLD BUTHELLO & ANR. v. STATE OFCHHATTISGARH & ORS.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.634 of 2023.

From the Judgment and Order dated 10.01.2022 of the High Courtof Chhattisgarh at Bilaspur in WPCR No.686 of 2020.

Shyam Divan, Gopal Sankaranarayanan, Sr. Advs., AdithDeshmukh, D.M. Galani, Ms. Tanya Shrivastava, Neel Kamal Mishra,Jatin Zaveri, Advs. for the Appellants.

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Vikramjeet Banerjee, A.S.G., Dr. Abhishek Manu Singhvi, Sr. Adv.,Sumeer Sodhi, Devashish Tiwari, Shibashish Misra, Mrs. Sairica Raju,Samar Singh Kachwaha, Rahul Mishra, Akshay Nain, Kartik Dey, Ms.Janhvi Prakash, Ms. Shruti Agarwal, Arvind Kumar Sharma, Advs. forthe Respondents.

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

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1. Leave granted.

2. The appellants, as also the respondents are common to theseappeals and the subject matter relates to the same issue. Hence, theyare taken up together and disposed of through the common judgment.The appeal arising out of SLP Criminal No.2454 of 2022 is filed assailingthe order dated 10.01.2022 passed in WPCR No. 686 of 2020. In anappeal arising out of the SLP Criminal No.7306 of 2022, the order dated15.09.2021 passed in Criminal Revision No.468 of 2021 is assailed. Boththe said orders are passed by the High Court of Chhattisgarh, Bilaspur.

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3. The said order dated 10.01.2022 is passed in Writ Petition filedunder Article 226 wherein the appellant had prayed to direct forinvestigation under the supervision of the Court, by the Central Bureauof Investigation (for short, ‘CBI’) relating to (i) FIR No. 232/2020registered at Azad Chowk Police Station, Raipur, (ii) FIR No.255/2020registered at Kotwali Police Station, Raipur, (iii) Online complaint No.3334104012000003 dated 27.10.2020 made before the Superintendent G

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Aof Police, Raipur and (iv) Online complaint No. 24488049072000014dated 06.11.2020 made before the Talcher Police Station, Angul, Odisha.The appellant had also prayed to quash the charge sheet in Special CaseNo.87/2020 and Special Case No.98/2020 filed by the respondent AzadChowk Police, Raipur and Kotwali Police, Raipur filed pursuant to thesaid FIRs No.232/2020 and 255/2020, pending before the learned SpecialBJudge under NDPS Act, Raipur. The further direction which was prayedis for the CBI to submit a periodical progress report of the investigationto the Court and to monitor the same.

4. In the connected appeal, the challenge is to the order dated15.09.2021 whereby the Criminal Revision Petition filed by the appellantCherein, before the High Court assailing the legality and correctness ofthe order dated 14.07.2021 passed by the Special Judge under NDPSAct at Raipur in Special Case No.98/2020 whereby the appellantsapplication filed under Section 227 of the Code of Criminal Procedure,1973 (for short, ‘CrPC’) was dismissed and charges were framed againstDthe appellant under Section 29 read with Sections 22(b), 22(c), 25 and27 of the NDPS Act, which was not interfered by the High Court.

5. The brief facts leading to the above appeals are that the appellantNo.1 is accused of indulging in sale of psychotropic NDPS substance,due to which the prosecuting agency under the respondent No.1 hasEregistered the FIRs No.232/2020 and 255/2020 and are proceeding inthe matter as noted above. The appellant No.1 claims to be innocent,while the appellant No.2 who is his father being agitated by such allegedillegal action by the prosecuting agency under the respondent No.1 hadfiled the online complaints dated 27.10.2020 and 06.11.2020 raising hisconcern and sought for action in that regard.F

6. The appellants claim that they are residents of Mumbai and theappellant No.1 is a qualified automobile engineer, who is an income taxpayee. The appellant No.2 is a businessman carrying on business oflogistics, transportation, renting out vehicles etc. for the last 36 years inthe name and style, M/s Buthello Travels at R/3, Mathur Estate, PremierGRoad, Kurla (W), Mumbai. The appellant No.1 was also taking care ofthe business of his father and as such was visiting the State of Odisha asalso the State of Chhattisgarh in respect of contracts relating to thetransportation of minerals. It is averred that appellant No.1 hadaccordingly travelled to Odisha and had booked room no.220 in HotelHGreen Park, Talcher, District Angul, Odisha from 15.10.2020 to

20.10.2020. It is the case of the appellants that on 20.10.2020 at 13.00hours, four unknown persons visited the said hotel in a white Innova carwith a broken front bumper, impersonating themselves as police officers.They contacted Shri Vijaya who is working as a receptionist andaccordingly met the appellant No.1 in room No.220. The appellant No.1was thereafter abducted and taken into the car and was driven to Raipur.

7. The appellant No.1 claims that while taking dinner at dhababetween Sambalpur and Sonipat he overheard the name of the fourpersons who had taken him to be, Pramod Behra, Sultan, Santosh andAli, from their discussion. He also contends that the mobile phone waswith the appellant No.1 and he made calls from his cell No. [REDACTED].It is averred that after reaching Raipur at about 12:30 AM on 21.10.2020the said four persons took the appellant No.1 to respondent No.5 wherehe was detained for some time and his cell phone as also laptop weretaken. It is claimed that the appellant No.1 was thereafter kept in thelockup throughout the night without disclosing the reasons for such actionand on 21.10.2020 about 19:15 hours, police Sub-inspector Shri PriyeshMathew John lodged FIR against him, bearing No.232/2020 for an allegedoffence under Section 22(b) of the NDPS Act. Thereafter his namewas also included in the earlier registered FIR No.255/2020 which isnoted above.

8. In that background, the grievance put forth on behalf of theappellants is that the appellant No.1 though being a qualified citizen, whowas travelling with regard to his business has been illegally abducted,detained and a case under NDPS has been foisted on him due to whichonline complaints were lodged by his father- appellant No.2. It is in thatlight, the appellants are seeking for the directions as prayed and notedabove.

9. The respondents have filed their objection statement denyingthe allegations and also contending with regard to the involvement of theappellant for which he has been apprehended and is proceeded againstin accordance with law.

10. In that background, we have heard Shri Shyam Divan andShri Gopal Sankaranarayanan, learned senior counsel for the appellants,Dr. Abhishek Manu Singhvi, learned senior counsel for the State ofChhattisgarh as also the counsel for State of Odisha and perused theappeal papers.

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A11. At the threshold it is necessary to take note that though initiallythe petition filed before the High Court had included the relief to quashthe charge sheet and the further proceedings, considering that chargeshave been framed by the trial court and also detailed orders have beenpassed declining discharge of the appellant No.1, at present, the reliefssought is essentially limited with regard to the direction to the CBI toBconduct an investigation into the issue.

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12. In that regard, the contention as noted is that, the FIR No.232/2020 is registered on 21.10.2020 alleging that at about 19:15 hours theappellant No.1 was apprehended by the Azad Chowk Police when theappellant No.1 was near Ashram Tiraha in front of Sulabh ComplexCPolice Station, Azad Chowk, Raipur attempting to sell contraband andon apprehending 9.240 grams cocaine was recovered from him. It iscontended by the appellants that such offence could not have been allegedagainst the appellant to have been committed in Raipur on 21.10.2020,when in fact the police personnel named Pramod Behra, Sultan, SantoshDand Ali of Chhattisgarh Police had abducted and taken away the appellantNo.1 from the hotel in Odisha on 20.10.2020 itself. As such, he was intheir illegal custody at the point when it is alleged that he had indulged incommitting the offence. The circumstances are referred to claim thatthere is something more than what meets the eye. The concern expressedis that a citizen who is carrying on his lawful business activities in variousEstates has been ‘framed’ and a case has been foisted, whereby thepersonal liberty has been taken away, which warrants a detailedinvestigation. It is contended that the situation which unfolded in HotelGreen Park on 20.10.2020 at about 1 PM would indicate that the saidfour persons acting on behalf of the Chhattisgarh Police had taken himFaway from the hotel. Subsequent thereto his name has been included inFIR No.255/2020 as well, though it was an earlier registered case.

13. The learned senior counsel for respondent No.1-State wouldcontend that the allegations are unjustified. Pursuant to the registrationof the FIR, an investigation has been conducted and the charge sheetGhas been filed. The contentions urged by the appellants are available tobe put forth in defence, in the proceedings before the trial court wherethe charges have been framed and the trial is proceeding. Insofar as theallegation that he was abducted and taken away from the hotel, it isdenied and contended that even though the police had gone to Odisha inconnection with the earlier F.I.R., they were unable to trace the appellantH

No.1 there, but he was subsequently found to be indulging in the illegalactivity in Raipur itself when he was apprehended and proceedings havebeen initiated. It is contended that the claim for investigation by the CBIis without basis and the well laid down guidelines of this Court does notpermit referring the investigation to CBI in every case where the accusedmakes an allegation against the law enforcing authorities.

14. Having noted the rival contentions, we have also perused theimpugned order passed by the High Court while taking note of the pleaput forth by the parties. In fact, the High Court having framed two pointsfor its consideration, on the aspect relating to the transfer of the case toCBI as sought for, has considered it while answering point No.2. Theguidelines as laid down by this Court has been referred to in detail beforeadverting to the facts and has thereafter declined the prayer for referringto an investigation by CBI. In that background, as noted, the case soughtto be made out seeking for CBI investigation is on the allegation that theappellant No.1 has been illegally detained and thereafter was chargedwith a serious offence, though he is completely innocent. In this regard,it is contended that the allegation of the appellant No.1 being in possessionof 9.240 grams of cocaine on his person and that he was attempting tosell the same near Ashram Tihara in front of Sulabh Complex in Raipuron 21.10.2020, is a false case. It is to establish this aspect of the matterit is contended that the police personnel of respondent No.1-State ofChhattisgarh had illegally abducted him on the previous day itself i.e. on20.10.2020 from the hotel in a different State where he was staying.According to the appellants, it is a foisted case against appellant No.1with an illegal and ulterior motive and the matter requires a detailedinvestigation by the CBI.

15. The learned senior counsel for the appellants in order to buttresshis contention with regard to the contradictory stand being taken by therespondents has sought to rely on the affidavit filed before this Court. Inthat regard, an affidavit filed by respondent Nos.1 to 5 before this Court,the counter affidavit filed by the respondent No.6-State of Odisha, asalso the additional affidavit filed on behalf of respondent Nos.1 to 5 inreply to the affidavit filed by the respondent No.6 are relied upon. Thoughthe specific averments contained in the affidavits were placed before usand have been taken note of, by us, we do not propose to refer to eachof the statements made therein to analyse the manner in which the learnedsenior counsel for the appellant has sought to highlight, which according AB

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Ato him contradicts the stand of State of Chhattisgarh. We have adoptedthis course since the consideration herein is the limited scope of thispetition and it should not affect the rights of the parties in the pendingcriminal proceedings. Such a serious dispute on facts, in any event, is tobe resolved based on evidence and not based on affidavits.

B16. However, the limited aspect which we propose to note is thatthe affidavit filed by the respondent No.6-State of Odisha is essentiallyto explain the manner of consideration made by them in relation to FIRNo.0027 dated 22.01.2021 lodged at Talcher Police Station, Angul District,Odisha which is pursuant to the complaint on behalf of the appellants.The said affidavit also refers to the investigation made relating to theConline complaint. In the course of the said affidavit, reference has beenmade to the process of investigation during which they had visited theGreen Park Hotel and recorded statements relating to the four personshaving come to the hotel and having introduced themselves asChhattisgarh Police and asked them about the room number of theDappellant No.1. The staff of the hotel had indicated that the appellantNo.1 himself had stated that there is no problem and he had checked outafter paying the bill. In reply to the said affidavit, the respondent Nos. 1to 5 have sought to indicate that even as per the said affidavit, appellantNo.1 himself had indicated that everything was alright and it is contendedthat even so far as the Police Officers mentioned by the appellants, theyEbelong to a different department. The learned senior counsel for theState of Chhattisgarh in fact referred to the counter affidavit on behalfof the respondent Nos. 1 to 5 to clarify that the Police Officers of theChhattisgarh Police having travelled to Odisha were not denied, in asmuch as, they have disclosed that a team of abled Police Officers hadFtravelled to Odisha to look up for the appellant and his whereabouts butit was of no avail and they came back empty handed. It is thereforecontended on behalf of the respondents that the appellant No.1 being ahabitual offender was required to be investigated in relation to FIR No.255/2020. Though on information, an attempt was made to apprehend him in Odisha, the same was not successful but he was found in Raipur itselfGthe next day where he was indulging in the illegal activity when he wasapprehended. Hence the incident in Green Park Hotel as put forth bythe appellants is disputed. Whether these seriously disputed facts justifiesthe prayer seeking for investigation by CBI, is the question to be answeredherein.H

17. Having noted this aspect of the matter it is appropriate torefer to the decision in the case of State of West Bengal & Ors. vs.Committee for Protection of Democratic Rights, West Bengal & Ors.(2010) 3 SCC 571 wherein it is held as hereunder:-

“70. Before parting with the case, we deem it necessary toemphasise that despite wide powers conferred by Articles 32 and226 of the Constitution, while passing any order, the Courts mustbear in mind certain self-imposed limitations on the exercise ofthese constitutional powers. The very plenitude of the power underthe said articles requires great caution in its exercise. Insofar asthe question of issuing a direction to CBI to conduct investigationin a case is concerned, although no inflexible guidelines can belaid down to decide whether or not such power should be exercisedbut time and again it has been reiterated that such an order is notto be passed as a matter of routine or merely because a party haslevelled some allegations against the local police. This extraordinarypower must be exercised sparingly, cautiously and in exceptionalsituations where it becomes necessary to provide credibility andinstil confidence in investigations or where the incident may havenational and international ramifications or where such an ordermay be necessary for doing complete justice and enforcing thefundamental rights. Otherwise CBI would be flooded with a largenumber of cases and with limited resources, may find it difficultto properly investigate even serious cases and in the process loseits credibility and purpose with unsatisfactory investigations.”

Also Mithilesh Kumar Singh vs. State of Rajasthan & Ors.(2015) 9 SCC 795 wherein it is held hereunder:- “12. Even so the availability of power and its exercise are twodistinct matters. This Court does not direct transfer of investigationjust for the asking nor is transfer directed only to satisfy the egoor vindicate the prestige of a party interested in such investigation.The decision whether transfer should or should not be orderedrests on the Court’s satisfaction whether the facts andcircumstances of a given case demand such an order. Nohard-and-fast rule has been or can possibly be prescribed foruniversal application to all cases. Each case will obviously dependupon its own facts. What is important is that the Court whileexercising its jurisdiction to direct transfer remains sensitive to A

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Athe principle that transfers are not ordered just because a partyseeks to lead the investigator to a given conclusion. It is onlywhen there is a reasonable apprehension about justice becominga victim because of shabby or partisan investigation that the Courtmay step in and exercise its extraordinary powers. The sensibilityof the victims of the crime or their next of kin is not whollyBirrelevant in such situations. After all transfer of investigation toan outside agency does not imply that the transferee agency willnecessarily, much less falsely implicate anyone in the commissionof the crime. That is particularly so when transfer is ordered to anoutside agency perceived to be independent of influences,Cpressures and pulls that are commonplace when State Policeinvestigates matters of some significance. The confidence of theparty seeking transfer in the outside agency in such cases itselfrests on the independence of that agency from such or similarother considerations. It follows that unless the Court sees anydesign behind the prayer for transfer, the same must be seen asDan attempt only to ensure that the truth is discovered. The hallmarkof a transfer is the perceived independence of the transferee morethan any other consideration. Discovery of truth is the ultimatepurpose of any investigation and who can do it better than anagency that is independent.

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13. Having said that we need to remind ourselves that this Courthas, in several diverse situations, exercised the power of transfer.In Inder Singh v. State of Punjab this Court transferred theinvestigation to CBI even when the investigation was beingmonitored by senior officers of the State Police. So also in R.S.FSodhi v. State of U.P. investigation was transferred even whenthe State Police was doing the needful under the supervision ofan officer of the rank of an Inspector General of Police and theState Government had appointed a one-member Commission ofInquiry headed by a sitting Judge of the High Court to enquire intothe matter. This Court held that however faithfully the police mayGcarry out the investigation the same will lack credibility since theallegations against the police force involved in the encounterresulting in the killing of several persons were very serious. Thetransfer to CBI, observed this Court, “would give reassurance toall those concerned including the relatives of the deceased that anHindependent agency was looking into the matter”.

14. Reference may also be made to the decision of this Court inState of Punjab v. CBI wherein this Court upheld the ordertransferring investigation from the State Police to CBI in connectionwith a sex scandal even when the High Court had commendedthe investigation conducted by the DIG and his team of officers.In Subrata Chattoraj v. Union of India, this Court directed transferof the Chit Fund Scam in the States of West Bengal and Orissafrom the State Police to CBI keeping in view the involvement ofseveral influential persons holding high positions of power andinfluence or political clout.

15. Suffice it to say that transfers have been ordered in variedsituations but while doing so the test applied by the Court hasalways been whether a direction for transfer, was keeping in viewthe nature of allegations, necessary with a view to making theprocess of discovery of truth credible. What is important is thatthis Court has rarely, if ever, viewed at the threshold the prayerfor transfer of investigation to CBI with suspicion. There is noreluctance on the part of the Court to grant relief to the victims ortheir families in cases, where intervention is called for, nor is itnecessary for the petitioner seeking a transfer to make out acast-iron case of abuse or neglect on the part of the State Police,before ordering a transfer. Transfer can be ordered once the Courtis satisfied on the available material that such a course will promotethe cause of justice, in a given case.”

18. The above-noted decisions are in fact cited by the learnedSenior Counsel for the appellants to contend that this Court shouldexercise its extraordinary power to refer to the matter to CBI in theinstant facts. In that regard, it is also necessary to note that the HighCourt on the other hand has referred to the various decisions on the saidaspect and has also taken into consideration the recent decision in thecase of Arnab Ranjan Goswami vs. Union of India (2020) 14 SCC 12wherein the entire aspect has been crystalized and this Court has heldthat the power to transfer an investigation must be used sparingly. Therelevant portion reads as hereunder:- “52. In assessing the contention for the transfer of theinvestigation to CBI, we have factored into the decision-makingcalculus the averments on the record and submissions urged onbehalf of the petitioner. We are unable to find any reason that AB

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Awarrants a transfer of the investigation to CBI. In holding thus,we have applied the tests spelt out in the consistent line ofprecedent of this Court. They have not been fulfilled. An individualunder investigation has a legitimate expectation of a fair processwhich accords with law. The displeasure of an accused personabout the manner in which the investigation proceeds or anBunsubstantiated allegation (as in the present case) of a conflict ofinterest against the police conducting the investigation must notderail the legitimate course of law and warrant the invocation ofthe extraordinary power of this Court to transfer an investigationto CBI. Courts assume the extraordinary jurisdiction to transferCan investigation in exceptional situations to ensure that the sanctityof the administration of criminal justice is preserved. While noinflexible guidelines are laid down, the notion that such a transferis an “extraordinary power” to be used “sparingly” and “inexceptional circumstances” comports with the idea that routinetransfers would belie not just public confidence in the normal courseDof law but also render meaningless the extraordinary situationsthat warrant the exercise of the power to transfer the investigation.Having balanced and considered the material on record as wellas the averments of and submissions urged by the petitioner, wefind that no case of the nature which falls within the ambit of theEtests enunciated in the precedents of this Court has beenestablished for the transfer of the investigation.”

19. Hence it is clear that though there is no inflexible guideline ora straightjacket formula laid down, the power to transfer the investigationis an extraordinary power. It is to be used very sparingly and in anFexceptional circumstance where the Court on appreciating the facts andcircumstance arrives at the conclusion that there is no other option ofsecuring a fair trial without the intervention and investigation by the CBIor such other specialized investigating agency which has the expertise.

20. In that background, even if the rival contentions are takenGnote, we do not find that there is any issue of public importance whichrequires to be unearthed by an investigation to be conducted by the CBI.Even from the facts noted above and the allegations made against thepolice, though we are sensitive to the sentiment of the appellants herein,the contention ultimately is that the offence alleged against him to havebeen committed on 21.10.2020 could not have been committed by himH

inasmuch as he had been abducted from a different State and was alreadyin the illegal detention of the police on 20.10.2020 itself. This essentiallywould be the defence in the criminal trial. As already noted, the chargeshave been framed and the evidence is being tendered. Insofar as theallegation that the said persons namely Pramod Behra, Sultan, Santoshand Ali had gone to Odisha and had illegally abducted him, from the verydetails furnished by the appellants themselves, it is noted that the HighCourt had through the order dated 17.03.2022 in a collateral proceedingdirected that the five officers stated in the said order be called as witnessesfor examination and cross-examination.

21. In that view, even though it is contended that the CCTV footagewould be relevant to establish the presence of the said four persons inthe hotel at Odisha and the same has not been seized by the police, thefact remains that even from the same what is sought to be established isthat the said four persons had abducted the appellant No.1. In the courseof trial the five persons specified by the appellants would now be availableto be cross-examined and any other orders in that regard can be soughtin the pending proceedings. That apart, on the other aspects also sincethe trial is under progress, the appellant No.1 would be entitled to putforth his case when the statement under Section 313 of CrPC is recordedand also he would be entitled to tender evidence if necessary. The caseof the appellant is clear as to the reason why he contends that the appellantNo.1 cannot be held to have committed the offence as registered in FIRNo.232/2020 based on which his name has also been included in anearlier FIR No.255/2020. These are matters which could be establishedthrough evidence in the trial before the Competent Court in the judicialproceedings wherein all these matters would be appreciated and aconclusion would be reached. In that regard, the appellants in any eventwould have the further remedy of the legal course which is available tothem if they are dissatisfied. Further, insofar as the complaint said tohave been lodged by the appellant No.2, from the affidavit as filed bythe respondent No.6, the nature of investigation carried out by them hasbeen stated. In that regard also the appellant No.2 would have the legalremedy in accordance with law.

22. In addition, in the said process of the judicial proceedings ifthe appellants bring out the fact that the appellant No.1 who was notinvolved, had been framed up and a case was foisted, the appellantswould still have the legal remedy to take action for malicious prosecution, AB

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Aloss of reputation, action against involved persons, compensation and forsuch other relief in that regard. Therefore, when the issue raised is onlya matter of evidence to be considered in the judicial proceedings to arriveat a conclusion, we are not convinced that in a case of the presentnature, a direction to the CBI to hold an investigation would be justifiednor is it required at this juncture when the trial in the judicial proceedingsBhas progressed unhindered. Hence to that extent, all contentions of theappellants are kept open. For the very reason, at this stage either quashingor discharge would also not arise. All contentions are left open to beurged before the trial court.

23. For all the aforestated reasons we see no reason to interfereCwith orders impugned in these appeals. The appeals are accordinglydismissed with no order as to costs.

24. Pending applications if any, shall stand disposed of.

DDivya Pandey

(Assisted by : Shaaivi Shukla and Shevali Monga, LCRAs)

Appeals dismissed.

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