Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.634 OF 2023
(Arising out of SLP (Crl.) No.2454 of 2022)
Royden Harold Buthello & Anr. .… Appellant(s)
Versus
State of Chhattisgarh & Ors. …. Respondent(s)
With
Crl.Appeal No.635 of 2023 @ SLP (Crl.) No.7306 of 2022
J U D G M E N T
A.S. Bopanna, J.
1. Leave granted.
2. The appellants, as also the respondents are common to
Signature Not Verified
these appeals and the subject matter relates to the same issue.
Digitally signed by
Rajni Mukhi
Date: 2023.02.28
16:33:55 IST
Reason:
Hence, they are taken up together and disposed of through the
1
common judgment. The appeal arising out of SLP Criminal
No.2454 of 2022 is filed assailing the order dated 10.01.2022
passed in WPCR No. 686 of 2020. In an appeal arising out of
the SLP Criminal No.7306 of 2022, the order dated 15.09.2021
passed in Criminal Revision No.468 of 2021 is assailed. Both
the said orders are passed by the High Court of Chhattisgarh,
Bilaspur.
3. The said order dated 10.01.2022 is passed in Writ
Petition filed under Article 226 wherein the appellant had
prayed to direct for investigation under the supervision of the
Court, by the Central Bureau of Investigation (for short, ‘CBI’)
relating to (i) FIR No. 232/2020 registered at Azad Chowk
Police Station, Raipur, (ii) FIR No.255/2020 registered at
Kotwali Police Station, Raipur, (iii) Online complaint No.
3334104012000003 dated 27.10.2020 made before the
Superintendent of Police, Raipur and (iv) Online complaint No.
24488049072000014 dated 06.11.2020 made before the
Talcher Police Station, Angul, Odisha. The appellant had also
prayed to quash the charge sheet in Special Case No.87/2020
and Special Case No.98/2020 filed by the respondent Azad
Chowk Police, Raipur and Kotwali Police, Raipur filed pursuant
2
to the said FIRs No.232/2020 and 255/2020, pending before
the learned Special Judge under NDPS Act, Raipur. The further
direction which was prayed is for the CBI to submit a
periodical progress report of the investigation to the Court and
to monitor the same.
4. In the connected appeal, the challenge is to the order
dated 15.09.2021 whereby the Criminal Revision Petition filed
by the appellant herein, before the High Court assailing the
legality and correctness of the order dated 14.07.2021 passed
by the Special Judge under NDPS Act at Raipur in Special Case
No.98/2020 whereby the appellants application filed under
Section 227 of the Code of Criminal Procedure, 1973 (for short,
‘CrPC’) was dismissed and charges were framed against the
appellant under Section 29 read with Sections 22(b), 22(c), 25
and 27 of the NDPS Act, which was not interfered by the High
Court.
5. The brief facts leading to the above appeals are that the
appellant No.1 is accused of indulging in sale of psychotropic
NDPS substance, due to which the prosecuting agency under
the respondent No.1 has registered the FIRs No.232/2020 and
255/2020 and are proceeding in the matter as noted above.
3
The appellant No.1 claims to be innocent, while the appellant
No.2 who is his father being agitated by such alleged illegal
action by the prosecuting agency under the respondent No.1
had filed the online complaints dated 27.10.2020 and
06.11.2020 raising his concern and sought for action in that
regard.
6. The appellants claim that they are residents of Mumbai
and the appellant No.1 is a qualified automobile engineer, who
is an income tax payee. The appellant No.2 is a businessman
carrying on business of logistics, transportation, renting out
vehicles etc. for the last 36 years in the name and style, M/s
Buthello Travels at R/3, Mathur Estate, Premier Road, Kurla
(W), Mumbai. The appellant No.1 was also taking care of the
business of his father and as such was visiting the State of
Odisha as also the State of Chhattisgarh in respect of contracts
relating to the transportation of minerals. It is averred that
appellant No.1 had accordingly travelled to Odisha and had
booked room no.220 in Hotel Green 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 13.00 hours, four
unknown persons visited the said hotel in a white Innova car
4
with a broken front bumper, impersonating themselves as
police officers. They contacted Shri Vijaya who is working as a
receptionist and accordingly met the appellant No.1 in room
No.220. The appellant No.1 was thereafter abducted and taken
into the car and was driven to Raipur.
7. The appellant No.1 claims that while taking dinner at
dhaba between Sambalpur and Sonipat he overheard the name
of the four persons who had taken him to be, Pramod Behra,
Sultan, Santosh and Ali, from their discussion. He also
contends that the mobile phone was with the appellant No.1
and he made calls from his cell No. 8249518758. It is averred
that after reaching Raipur at about 12:30 AM on 21.10.2020
the said four persons took the appellant No.1 to respondent
No.5 where he was detained for some time and his cell phone
as also laptop were taken. It is claimed that the appellant No.1
was thereafter kept in the lockup throughout the night without
disclosing the reasons for such action and on 21.10.2020
about 19:15 hours, police Subinspector Shri Priyesh Mathew
John lodged FIR against him, bearing No.232/2020 for an
alleged offence under Section 22(b) of the NDPS Act. Thereafter
5
his name was also included in the earlier registered FIR
No.255/2020 which is noted above.
8. In that background, the grievance put forth on behalf of
the appellants is that the appellant No.1 though being a
qualified citizen, who was travelling with regard to his business
has been illegally abducted, detained and a case under NDPS
has been foisted on him due to which online complaints were
lodged by his father appellant No.2. It is in that light, the
appellants are seeking for the directions as prayed and noted
above.
9. The respondents have filed their objection statement
denying the allegations and also contending with regard to the
involvement of the appellant for which he has been
apprehended and is proceeded against in accordance with law.
10. In that background, we have heard Shri Shyam Divan
and Shri Gopal Sankaranarayanan, learned senior counsel for
the appellants, Dr. Abhishek Manu Singhvi, learned senior
counsel for the State of Chhattisgarh as also the counsel for
State of Odisha and perused the appeal papers.
11. At the threshold it is necessary to take note that though
initially the petition filed before the High Court had included
6
the relief to quash the charge sheet and the further
proceedings, considering that charges have been framed by the
trial court and also detailed orders have been passed declining
discharge of the appellant No.1, at present, the reliefs sought is
essentially limited with regard to the direction to the CBI to
conduct an investigation into the issue.
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 the appellant No.1 was apprehended by the Azad
Chowk Police when the appellant No.1 was near Ashram Tiraha
in front of Sulabh Complex Police Station, Azad Chowk, Raipur
attempting to sell contraband and on apprehending 9.240
grams cocaine was recovered from him. It is contended by the
appellants that such offence could not have been alleged
against the appellant to have been committed in Raipur on
21.10.2020, when in fact the police personnel named Pramod
Behra, Sultan, Santosh and Ali of Chhattisgarh Police had
abducted and taken away the appellant No.1 from the hotel in
Odisha on 20.10.2020 itself. As such, he was in their illegal
custody at the point when it is alleged that he had indulged in
committing the offence. The circumstances are referred to
7
claim that there is something more than what meets the eye.
The concern expressed is that a citizen who is carrying on his
lawful business activities in various states has been ‘framed’
and a case has been foisted, whereby the personal liberty has
been taken away, which warrants a detailed investigation. It is
contended that the situation which unfolded in Hotel Green
Park on 20.10.2020 at about 1 PM would indicate that the said
four persons acting on behalf of the Chhattisgarh Police had
taken him away from the hotel. Subsequent thereto his name
has been included in FIR No.255/2020 as well, though it was
an earlier registered case.
13. The learned senior counsel for respondent No.1State
would contend that the allegations are unjustified. Pursuant to
the registration of the FIR, an investigation has been conducted
and the charge sheet has been filed. The contentions urged by
the appellants are available to be put forth in defence, in the
proceedings before the trial court where the charges have been
framed and the trial is proceeding. Insofar as the allegation
that he was abducted and taken away from the hotel, it is
denied and contended that even though the police had gone to
Odisha in connection with the earlier F.I.R., they were unable
8
to trace the appellant No.1 there, but he was subsequently
found to be indulging in the illegal activity in Raipur itself
when he was apprehended and proceedings have been
initiated. It is contended that the claim for investigation by the
CBI is without basis and the well laid down guidelines of this
Court does not permit referring the investigation to CBI in
every case where the accused makes an allegation against the
law enforcing authorities.
14. Having noted the rival contentions, we have also
perused the impugned order passed by the High Court while
taking note of the plea put forth by the parties. In fact, the
High Court having framed two points for its consideration, on
the aspect relating to the transfer of the case to CBI as sought
for, has considered it while answering point No.2. The
guidelines as laid down by this Court has been referred to in
detail before adverting to the facts and has thereafter declined
the prayer for referring to an investigation by CBI. In that
background, as noted, the case sought to be made out seeking
for CBI investigation is on the allegation that the appellant
No.1 has been illegally detained and thereafter was charged
with a serious offence, though he is completely innocent. In
9
this regard, it is contended that the allegation of the appellant
No.1 being in possession of 9.240 grams of cocaine on his
person and that he was attempting to sell the same near
Ashram Tihara in front of Sulabh Complex in Raipur on
21.10.2020, is a false case. It is to establish this aspect of the
matter it is contended that the police personnel of respondent
No.1State of Chhattisgarh had illegally abducted him on the
previous day itself i.e. on 20.10.2020 from the hotel in a
different State where he was staying. According to the
appellants, it is a foisted case against appellant No.1 with an
illegal and ulterior motive and the matter requires a detailed
investigation by the CBI.
15. The learned senior counsel for the appellants in order to
buttress his contention with regard to the contradictory stand
being taken by the respondents has sought to rely on the
affidavit filed before this Court. In that regard, an affidavit filed
by respondent Nos.1 to 5 before this Court, the counter
affidavit filed by the respondent No.6State of Odisha, as also
the additional affidavit filed on behalf of respondent Nos.1 to 5
in reply to the affidavit filed by the respondent No.6 are relied
upon. Though the specific averments contained in the affidavits
10
were placed before us and have been taken note of, by us, we
do not propose to refer to each of the statements made therein
to analyse the manner in which the learned senior counsel for
the appellant has sought to highlight, which according to him
contradicts the stand of State of Chhattisgarh. We have
adopted this course since the consideration herein is the
limited scope of this petition and it should not affect the rights
of the parties in the pending criminal proceedings. Such a
serious dispute on facts, in any event, is to be resolved based
on evidence and not based on affidavits.
However, the limited aspect which we propose to note is
16.
that the affidavit filed by the respondent No.6State of Odisha
is essentially to explain the manner of consideration made by
them in relation to FIR No.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 the
online complaint. In the course of the said affidavit, reference
has been made to the process of investigation during which
they had visited the Green Park Hotel and recorded statements
relating to the four persons having come to the hotel and
11
having introduced themselves as Chhattisgarh Police and
asked them about the room number of the appellant No.1. The
staff of the hotel had indicated that the appellant No.1 himself
had stated that there is no problem and he had checked out
after paying the bill. In reply to the said affidavit, the
respondent Nos. 1 to 5 have sought to indicate that even as per
the said affidavit, appellant No.1 himself had indicated that
everything was alright and it is contended that even so far as
the Police Officers mentioned by the appellants, they belong to
a different department. The learned senior counsel for the State
of Chhattisgarh in fact referred to the counter affidavit on
behalf of the respondent Nos. 1 to 5 to clarify that the Police
Officers of the Chhattisgarh Police having travelled to Odisha
were not denied, in as much as, they have disclosed that a
team of abled Police Officers had travelled to Odisha to look up
for the appellant and his whereabouts but it was of no avail
and they came back empty handed. It is therefore contended
on behalf of the respondents that the appellant No.1 being a
habitual 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
12
successful but he was found in Raipur itself the next day
where he was indulging in the illegal activity when he was
apprehended. Hence the incident in Green Park Hotel as put
forth by the appellants is disputed. Whether these seriously
disputed facts justifies the prayer seeking for investigation by
CBI, is the question to be answered herein.
17. Having noted this aspect of the matter it is appropriate
to refer to the decision in the case of
State of West Bengal &
Ors. vs. Committee for Protection of Democratic Rights,
(2010) 3 SCC 571 wherein it is held as
West Bengal & Ors.
hereunder:
“70. Before parting with the case, we deem it
necessary to emphasise that despite wide powers
conferred by Articles 32 and 226 of the Constitution,
while passing any order, the Courts must bear in mind
certain selfimposed limitations on the exercise of
these constitutional powers. The very plenitude of the
power under the said articles requires great caution in
its exercise. Insofar as the question of issuing a
direction to CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be
laid down to decide whether or not such power should
be exercised but time and again it has been reiterated
that such an order is not to be passed as a matter of
routine or merely because a party has levelled some
allegations against the local police. This extraordinary
power must be exercised sparingly, cautiously and in
exceptional situations where it becomes necessary to
provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and
13
enforcing the fundamental rights. Otherwise CBI
would be flooded with a large number of cases and
with limited resources, may find it difficult to properly
investigate even serious cases and in the process lose
its credibility and purpose with unsatisfactory
investigations.”
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 two distinct matters. This Court does not direct
transfer of investigation just for the asking nor is
transfer directed only to satisfy the ego or vindicate the
prestige of a party interested in such investigation. The
decision whether transfer should or should not be
ordered rests on the Court's satisfaction whether the
facts and circumstances of a given case demand such
an order. No hardandfast rule has been or can
possibly be prescribed for universal application to all
cases. Each case will obviously depend upon its own
facts. What is important is that the Court while
exercising its jurisdiction to direct transfer remains
sensitive to the principle that transfers are not ordered
just because a party seeks to lead the investigator to a
given conclusion. It is only when there is a reasonable
apprehension about justice becoming a victim because
of shabby or partisan investigation that the Court may
step in and exercise its extraordinary powers. The
sensibility of the victims of the crime or their next of
kin is not wholly irrelevant in such situations. After all
transfer of investigation to an outside agency does not
imply that the transferee agency will necessarily, much
less falsely implicate anyone in the commission of the
crime. That is particularly so when transfer is ordered
to an outside agency perceived to be independent of
influences, pressures and pulls that are commonplace
when State Police investigates matters of some
significance. The confidence of the party seeking
transfer in the outside agency in such cases itself rests
on the independence of that agency from such or
similar other considerations. It follows that unless the
Court sees any design behind the prayer for transfer,
the same must be seen as an attempt only to ensure
that the truth is discovered. The hallmark of a transfer
is the perceived independence of the transferee more
than any other consideration. Discovery of truth is the
14
ultimate purpose of any investigation and who can do
it better than an agency that is independent.
13. Having said that we need to remind ourselves that
this Court has, in several diverse situations, exercised
the power of transfer. In Inder Singh v. State of
Punjab this Court transferred the investigation to CBI
even when the investigation was being monitored by
senior officers of the State Police. So also in R.S.
Sodhi v. State of U.P. investigation was transferred
even when the State Police was doing the needful
under the supervision of an officer of the rank of an
Inspector General of Police and the State Government
had appointed a onemember Commission of Inquiry
headed by a sitting Judge of the High Court to enquire
into the matter. This Court held that however faithfully
the police may carry out the investigation the same
will lack credibility since the allegations against the
police force involved in the encounter resulting in the
killing of several persons were very serious. The
transfer to CBI, observed this Court, “would give
reassurance to all those concerned including the
relatives of the deceased that an independent agency
was looking into the matter”.
14. Reference may also be made to the decision of this
Court in State of Punjab v. CBI wherein this Court
upheld the order transferring investigation from the
State Police to CBI in connection with a sex scandal
even when the High Court had commended the
investigation conducted by the DIG and his team of
officers. In Subrata Chattoraj v. Union of India, this
Court directed transfer of the Chit Fund Scam in the
States of West Bengal and Orissa from the State Police
to CBI keeping in view the involvement of several
influential persons holding high positions of power and
influence or political clout.
15. Suffice it to say that transfers have been ordered
in varied situations but while doing so the test applied
by the Court has always been whether a direction for
transfer, was keeping in view the nature of allegations,
necessary with a view to making the process of
discovery of truth credible. What is important is that
this Court has rarely, if ever, viewed at the threshold
the prayer for transfer of investigation to CBI with
suspicion. There is no reluctance on the part of the
Court to grant relief to the victims or their families in
15
cases, where intervention is called for, nor is it
necessary for the petitioner seeking a transfer to make
out a castiron case of abuse or neglect on the part of
the State Police, before ordering a transfer. Transfer
can be ordered once the Court is satisfied on the
available material that such a course will promote the
cause of justice, in a given case.”
18. The abovenoted decisions are in fact cited by the
learned Senior Counsel for the appellants to contend that this
Court should exercise its extraordinary power to refer to the
matter to CBI in the instant facts. In that regard, it is also
necessary to note that the High Court on the other hand has
referred to the various decisions on the said aspect and has
also taken into consideration the recent decision in the case of
(2020) 14 SCC 12
Arnab Ranjan Goswami vs. Union of India
wherein the entire aspect has been crystalized and this Court
has held that the power to transfer an investigation must be
used sparingly. The relevant portion reads as hereunder:
In assessing the contention for the transfer of the
“52.
investigation to CBI, we have factored into the
decisionmaking calculus the averments on the record
and submissions urged on behalf of the petitioner. We
are unable to find any reason that warrants a transfer
of the investigation to CBI. In holding thus, we have
applied the tests spelt out in the consistent line of
precedent of this Court. They have not been fulfilled.
An individual under investigation has a legitimate
expectation of a fair process which accords with law.
The displeasure of an accused person about the
manner in which the investigation proceeds or an
unsubstantiated allegation (as in the present case) of a
16
conflict of interest against the police conducting the
investigation must not derail the legitimate course of
law and warrant the invocation of the extraordinary
power of this Court to transfer an investigation to CBI.
Courts assume the extraordinary jurisdiction to
transfer an investigation in exceptional situations to
ensure that the sanctity of the administration of
criminal justice is preserved. While no inflexible
guidelines are laid down, the notion that such a
transfer is an “extraordinary power” to be used
“sparingly” and “in exceptional circumstances”
comports with the idea that routine transfers would
belie not just public confidence in the normal course of
law but also render meaningless the extraordinary
situations that warrant the exercise of the power to
transfer the investigation. Having balanced and
considered the material on record as well as the
averments of and submissions urged by the petitioner,
we find that no case of the nature which falls within
the ambit of the tests enunciated in the precedents of
this Court has been established for the transfer of the
investigation.”
19. Hence it is clear that though there is no inflexible
guideline or a straightjacket formula laid down, the power to
transfer the investigation is an extraordinary power. It is to be
used very sparingly and in an exceptional circumstance where
the Court on appreciating the facts and circumstance arrives at
the conclusion that there is no other option of securing a fair
trial without the intervention and investigation by the CBI or
such other specialized investigating agency which has the
expertise.
In that background, even if the rival contentions are
20.
taken note, we do not find that there is any issue of public
17
importance which requires to be unearthed by an investigation
to be conducted by the CBI. Even from the facts noted above
and the allegations made against the police, though we are
sensitive to the sentiment of the appellants herein, the
contention ultimately is that the offence alleged against him to
have been committed on 21.10.2020 could not have been
committed by him inasmuch as he had been abducted from a
different State and was already in the illegal detention of the
police on 20.10.2020 itself. This essentially would be the
defence in the criminal trial. As already noted, the charges
have been framed and the evidence is being tendered. Insofar
as the allegation that the said persons namely Pramod Behra,
Sultan, Santosh and Ali had gone to Odisha and had illegally
abducted him, from the very details furnished by the
appellants themselves, it is noted that the High Court had
through the order dated 17.03.2022 in a collateral proceeding
directed that the five officers stated in the said order be called
as witnesses for examination and crossexamination.
21. In that view, even though it is contended that the CCTV
footage would be relevant to establish the presence of the said
four persons in the hotel at Odisha and the same has not been
18
seized by the police, the fact remains that even from the same
what is sought to be established is that the said four persons
had abducted the appellant No.1. In the course of trial the five
persons specified by the appellants would now be available to
be crossexamined and any other orders in that regard can be
sought in the pending proceedings. That apart, on the other
aspects also since the trial is under progress, the appellant
No.1 would be entitled to put forth his case when the
statement under Section 313 of CrPC is recorded and also he
would be entitled to tender evidence if necessary. The case of
the appellant is clear as to the reason why he contends that
the appellant No.1 cannot be held to have committed the
offence as registered in FIR No.232/2020 based on which his
name has also been included in an earlier FIR No.255/2020.
These are matters which could be established through evidence
in the trial before the Competent Court in the judicial
proceedings wherein all these matters would be appreciated
and a conclusion would be reached. In that regard, the
appellants in any event would have the further remedy of the
legal course which is available to them if they are dissatisfied.
Further, insofar as the complaint said to have been lodged by
19
the appellant 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 remedy in accordance with law.
In addition, in the said process of the judicial
22.
proceedings if the appellants bring out the fact that the
appellant No.1 who was not involved, had been framed up and
a case was foisted, the appellants would still have the legal
remedy to take action for malicious prosecution, loss of
reputation, action against involved persons, compensation and
for such other relief in that regard. Therefore, when the issue
raised is only a matter of evidence to be considered in the
judicial proceedings to arrive at a conclusion, we are not
convinced that in a case of the present nature, a direction to
the CBI to hold an investigation would be justified nor is it
required at this juncture when the trial in the judicial
proceedings has progressed unhindered. Hence to that extent,
all contentions of the appellants are kept open. For the very
reason, at this stage either quashing or discharge would also
not arise. All contentions are left open to be urged before the
trial court.
20
23. For all the aforestated reasons we see no reason to
interfere with orders impugned in these appeals. The appeals
are accordingly dismissed with no order as to costs.
24. Pending applications if any, shall stand disposed of.
……….…..…………....................J.
(A. S. BOPANNA)
….……..…..………......................J.
(AHSANUDDIN AMANULLAH)
New Delhi;
February 28, 2023
21