AIR 2012 SC 364
Para 44: In Secretary, Minor Irrigation and
Rural Engineering Services, U.P. & Ors. V/s. Sahngoo Ram Arya & Anr.,
AIR 2002 SC 2225, this Court placed reliance on its earlier judgment in Common
Cause, A Registered Society V/s. Union of India & Ors, (1999) 6 SCC 667 and
held that before directing CBI to investigate, the court must reach a
conclusion on the basis of pleadings and material on record that a prima facie
case is made out against the accused. The court cannot direct CBI to
investigate as to whether a person committed an offence as alleged or not. The
court cannot merely proceed on the basis of `ifs' and `buts' and think it
appropriate that inquiry should be made by the CBI.
Para 45: In Divine Retreat Centre (Supra),
this Court held that the High Court could have passed a judicial order
directing investigation against a person and his activities only after giving
him an opportunity of being heard. It is not permissible for the court to set
the criminal law in motion on the basis of allegations made against a person in
violation of principles of natural justice. A person against whom an inquiry is
directed must have a reasonable opportunity of being heard as he is likely to
be adversely affected by such order and, particularly, when such an order
results in drastic consequence of affecting his reputation.
Para 46: In D. Venkatasubramaniam &
Ors. V/s. M.K.Mohan Krishnamachari & Anr., (2009) 10 SCC 488, this Court
held that an order passed behind the back of a party is a nullity and liable to
be set aside only on this score. Therefore, a person against whom an order is
passed on the basis of a criminal petition filed against him, he should be
impleaded as a respondent being a necessary party.
Para 47: This Court in Disha V/s. State of
Gujarat & Ors., AIR 2011 SC 3168, after considering the various judgments
of this Court, particularly, in Vineet Narain & Ors. V/s. Union of India
& Anr., AIR 1996 SC 3386; Union of India V/s. Sushil Kumar Modi, (1998) 8
SCC 661; Rajiv Ranjan Singh `Lalan' (VIII) V/s. Union of India, (2006) 6 SCC
613; Rubabbuddin Sheikh V/s. State of Gujarat & Ors., AIR 2010 SC 3175; and
Ashok Kumar Todi V/s. Kishwar Jahan & Ors., (2011) 3 SCC 758; held that the
court can transfer the matter to the CBI or any other special agency only when
it is satisfied that the accused is a very powerful and influential person or
the State Authorities like high police officials are involved in the offence
and the investigation has not been proceeded with in proper direction or the
investigation had been conducted in a biased manner. In such a case, in order
to do complete justice and having belief that it would lend credibility to the
final outcome of the investigation, such directions may be issued.
Para 48: Thus, in view of the above, it is
evident that a constitutional court can direct the CBI to investigate into the
case provided the court after examining the allegations in the complaint
reaches a conclusion that the complainant could make out prima facie, a case
against the accused. However, the person against whom the investigation is
sought, is to be impleaded as a party and must be given a reasonable
opportunity of being heard. CBI cannot be directed to have a roving inquiry as
to whether a person was involved in the alleged unlawful activities. The court
can direct CBI investigation only in exceptional circumstances where the court
is of the view that the accusation is against a person who by virtue of his
post could influence the investigation and it may prejudice the cause of the
complainant, and it is necessary so to do in order to do complete justice and
make the investigation credible.
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