Smt. Lakshmi Vs the State by

THE STATE BY MAHALAKSHMI LAYOUT POLICE STATION, REP. BY THE POLICE INSPECTOR, SRI. BHARAMAPPA, MAHALAKSHMI LAYOUT POLICE STATION, BENGALURU - 560 086.

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THE STATE BY JNANABHARATHI POLICE STATION, REP. BY STATION HOUSE OFFICER, JNANABHARATHI POLICE STATION, BENGALURU - 560 056.

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THE DIRECTOR GENREAL & INSPECTOR GENERAL OF POLICE, NRUPATHUNGA ROAD, BENGALURU - 560 001.

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THE COMMISSIONER OF POLICE ALI ASKAR ROAD, BENGALURU - 560 052.

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THE CHIEF SECRETARY MINISTRY OF HOME DEPARTMENT, STATE OF KARNATAKA, VIDHANA SOUDHA,

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BENGALURU - 560 001.

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CENTRAL BUREAU OF INVESTIGATION (CBI) REP. BY THE SUPERINTENDENT OF POLICE, BELLARY ROAD,

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BENGALURU - 560 032.

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…RESPONDENTS

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(BY SRI. MAHANTESH SHETTAR, AGA FOR R1 TO R5; SRI. P. PRASANNA KUMAR, ADVOCATE FOR R6)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT NO.1 IN CRIME NO.272/2016 AND CRIME NO.299/2016 AND RESPONDENT NO.2 IN CRIME NO.293/2016 VIDE ANNEXURE-A TO PLACE THE ENTIRE FILE AND ALL RECORDS PERTAINING TO THE DEATH OF LATE ASHIK S/O THE PETITIONER BEFORE RESPONDENT NO.6CENTRAL BUREAU OF INVESTIGATION (CBI); DIRECT THE RESPONDENT NO.6-CENTRAL BUREAU OF INVESTIGATION TO CONDUCT FREE, FAIR AND IMPARTIAL INVESTIGATION PERTAINING TO THE ENCOUNTER DEATH OF LATE ASHIK S/O THE PETITIONER AND SUBMIT THE REPORT TO THE JURISDICTIONAL COURT; AND ETC.

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THIS WRIT PETITION, HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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CAV ORDER

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In this writ petition, the petitioner has sought for a direction to the respondent No.1 in Crime Nos.272/2016 and 299/2016 and the respondent No.2 in Crime No.293/2016 to place the entire material pertaining to the death of late Ashik S/o the petitioner before the respondent No.6-Central Bureau of Investigation (CBI); inter alia sought for direction to the respondent No.6-CBI to conduct free, fair and impartial investigation pertaining to the encounter death of late Ashik S/o the petitioner and submit the report to the jurisdictional Court.

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The facts in nutshell for the purpose of adjudication

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of this writ petition are that the petitioner is the mother of deceased Ashik. It is stated in the writ petition that, based on the statement of one Sri. Bharamappa, Police Inspector of Mahalakshmi Layout Police Station, Bengaluru, the complaint is lodged and F.I.R. registered in Crime No.293 of 2016 before the Jnanabharathi Police Station, Bengaluru City against three accused persons, alleging that, on 07^th October, 2016 upon the credible information, the complainant-Police Inspector along

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with his sub-ordinate officers went to arrest the accused persons in Crime Nos.272/2016 and 299/2016 and as such, tried to caught hold of the accused persons namely, Santhosh and Arun. At that time, the said accused persons had tried to escape in the Swift Dezire car by dashing their car to other two to three vehicles and a Police vehicle, which resulted in injury to Woman Police Inspector Smt. Roopa Tambhada.

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It is further stated in the writ petition that the Police have arrested the three accused in the aforementioned crime and on the statement made by the accused, respondentPolice came to know that, one Kulli Ramesha and deceased Ashik were involved in the commission of offence in Crime Nos.272/2016 and 299/2016. On the basis of the credible information, the Police Officers reached the Health Layout, situate at Annapoorneshwari Nagar and after, came to know

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about the same, the said Kulli Ramesh tried to attack a Police personnel with a Dragger and the deceased Ashik hit the complainant-Police Inspector Sri. Bharamappa with a sickle on the chest and on account of the same, the complainant got injured and there was bleeding from the chest. Immediately, in order to save his life and his team members, including the

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Women Sub-Inspector, the complainant took his service revolver and shot a gun fire on the head of deceased Ashik and on account of the same, Ashik fell down with bleeding injury. Later the Police called the Ambulance and rushed the accusedAshik and the Women Police Inspector Smt. Roopa Tambhada to the nearest Hospital, wherein the deceased Ashik was declared dead. In this regard, F.I.R. was registered in Crime No.293/2016 for the offences punishable under Sections 307, 333, 353 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act at Jnanabharati Police Station, Bengaluru. It is the case of the petitioner that the respondentPolice have encountered resulting in death of her son Ashik and therefore, petitioner has sought for transfer of the investigation to the respondent No.6-CBI, by filing the present writ petition.

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Heard Sri. Rajesh Rao K., learned counsel appearing for the petitioner; Sri. Mahantesh Shettar, learned Additional Government Advocate appearing for respondents 1 to 5; and Sri. P. Prasanna Kumar, learned counsel appearing for the respondent No.6.

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Sri. Rajesh Rao K., learned counsel appearing for

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the petitioner by referring to the statement mentioned in the F.I.R. at Annexure-A, submitted that the Police Officers were intend to encounter the said Kulli Ramesha, however, by mistake, they killed Ashik s/o the Petitioner. Learned counsel appearing for the petitioner in this regard, by referring to the daily newspaper statement produced at Annexure-B, argued that the respondent-Police have killed Ashik, aged about 16 years instead of the real culprit viz. Kulli Ramesha in an encounter. Accordingly, he sought for transfer of investigation to the respondent No.6-CBI.

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Per contra, Sri. Mahantesh Shettar, learned Additional Government Advocate appearing for respondents referred to the averments made in the statement of objections and submitted that the presence of Ashik with Kulli Ramesha

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was not doubted and when the said Ashik hit the Police Inspector through a sickle, the complainant-Police Inspector in order to save his life and his team members, was constrained to shot a gun fire towards the deceased Ashik's right hand in which, he was holding long sickle. Learned Additional Government Advocate further submits that the Police Inspector

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of Jnanabharathi Police Station had come to the spot and taken the injured Women Police Sub-Inspector Smt. Roopa Tambhada, respondent No.1 and the injured Ashiq to the Victoria Hospital for medical treatment. It is also contended by learned Additional Government Advocate that the said Ashiq had attacked the Police Personnel with a sickle and injured the Police inspector and other Police personnel.

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It is also argued by learned Additional Government Advocate that, this Court has conducted independent enquiry through the Criminal Investigation Department (CID), State Investigation Agency and report has been filed before this Court, which reveals that the averments made in this petition are false and baseless. Accordingly, he sought for dismissal of the petition.

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In the light of submission made by learned counsel appearing for the parties and on careful consideration of writ papers, the same would indicate that, on credible information in Crime No.272/2016 and 299/2016, the complainantBharamappa Bhimappa Mallur, Police Inspector, Mahalakshmi Layout, Bengaluru along with the Police Sub-Inspectors Sri.

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Basavaraj and Smt. Roopa Tambhada and other six police constables visited the Annapoorneshwari Layout to arrest one Santhosh, Arun and Vivek and the said accused persons came to know about the arrival of the Police, tried to escape from the place through their Swift Dezire car and in that interception the said Santhosh and Arun have dashed two to three motor vehicles and caused injury to the Police personnel. The said accused Sathosh and Arun have dashed Police Jeep to cause injury to the Police Sub-Inspector also. At that time, the Women Police Sub-Inspector Smt. Roopa Tambhada got injured, however, the respondent-Police were succeeded in arresting the accused persons. Based on the statement made by the accused that, one Kulli Ramesh and Ashik were mastermind n the case, the complainant-Police Inspector along with the other Police Personnel visited the place where the said Kulli Ramesh and Ashik were present. At that relevant time, the said Ashik hit the complainant-Police Inspector through sickle resulting in injury at the chest of the complainant-Police Inspector and further the said Ashik tried to attack the Police Inspector and other Police personnel as such, the said Police Inspector through his service revolver fired on the said Ashik

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and in the result, the said Ashik got injured. Thereafter, the

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said Ashik and the other injured Police Officers were rushed to nearest Hospital through Ambulance and in this connection, on the basis of the statement made by Police Inspector, Crime No.293/2016 registered at Jnanabharati Police Station for the offences punishable under Sections 307, 333, 353 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act. Perusal of the writ papers would indicate that the involvement of the son of the petitioner i.e., the deceased Ashik with the accused Kulli Ramesha cannot be disputed. The entire averments in the writ petition is based on the newspaper statement as per Annexure-B and the source of the information cannot be believed based on the documents referred to in the enquiry. The grievance of the petitioner that the investigation in the instant crime at the instance of the respondentAuthorities could be doubted and therefore sought for transfer the investigation to respondent No.6-CBI. Taking into accunt the facts on record, the question to be answered in this writ petition is, whether the petitioner has made out the case for change of investigation agency as prayed for in the writ petition.

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At this juncture, it is relevant to cite the judgment

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of Hon'ble Supreme Court with regard to guidelines issued in respect of transfer of investigation to the Central Bureau of Investigation. The Constitution Bench of the Hon'ble Supreme Court in the case of STATE OF WEST BENGAL AND OTHERS

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vs COMMITTEE FOR PROTECTION OF DEMOCRATIC

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RIGHTS reported in (2010) 3 SCC 577 at paragraph 70 held as follows:

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"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 self-imposed 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 the 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 situation where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international

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ramifications or where such an order may be necessary for doing complete justice and 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."

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It is to be noted that, Hon'ble Supreme Court in

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the case of HIMANSHU KUMAR AND OTHERS vs. STATE OF CHHATTISGARH AND OTHERS reported in (2023) 12 SCC 592, held that the power to transfer the investigation by the investigation agencies is to be invoked only in rare and exceptional cases. In the case of CBI (CENTRAL BUREAU OF

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INVESTIGATION) AND ANOTHER vs. RAJESH GANDHI

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AND ANOTHER reported in (1996) 11 SCC 253, it is held that no one can insist that an offence be investigated by a particular agency as a matter of right. The said aspect of the matter was considered by Hon'ble Supreme Court in the case of VISHAL TIWARI vs. UNION OF INDIA AND OTHERS reported in (2024) 4 SCC 115, wherein at paragraphs 31 to 33 held as under:

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"31. The petitioners seek the transfer of the investigation from SEBI to CBI or an SIT. The question

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that falls for decision is whether a case has been established by the petitioners for the court to issue such a direction.

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32. This Court does have the power under Article 32 and Article 142 of the Constitution to transfer an investigation from the authorised agency to CBI or constitute an SIT. However, such powers must be exercised sparingly and in extraordinary circumstances. Unless the authority statutorily entrusted with the power to investigate portrays a glaring, wilful and deliberate inaction in carrying out the investigation the court will ordinarily not supplant the authority which has been vested with the power to investigate. Such powers must not be exercised by the court in the absence of cogent justification indicative of a likely failure of justice in the absence of the exercise of the power to transfer. The petitioner must place on record strong evidence indicating that the investigating agency has portrayed inadequacy in the investigation or prima facie appears to be biased.

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33. Recently, in Himanshu Kumar v. State of Chhattisgarh, this Court, speaking through one of us (J.B. Pardiwala, J.) relying on a judgment of a threeJudge Bench of this Court in K.V. Rajendran v. CBCID reiterated the principle that the power to transfer an investigation to investigating agencies such as CBI must be invoked only in rare and exceptional cases. Further, no person can insist that the offence be investigated by a specific agency since the plea can only be that the

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offence be investigated properly. The Court held as follows :

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“51. Elaborating on this principle, this Court further observed :

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‘17. … the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased.’

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52. The Court reiterated that an investigation may be transferred to CBI only in “rare and exceptional cases”. One factor that courts may consider is that such transfer is “imperative” to retain ‘public confidence in the impartial working of the State agencies.’ This observation must be read with the observations made by the Constitution Bench in Committee for Protection of Democratic Rights, that mere allegations against the police do not constitute a sufficient basis to transfer the investigation.

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54. It has been held by this Court in CBI v. Rajesh Gandhi [CBI v. Rajesh Gandhi, that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in

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the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

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55. The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used “sparingly” and only “in exceptional circumstances”. In assessing the plea urged by the petitioner that the investigation must be transferred to CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power.”

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(emphasis supplied)

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It is also relevant to extract the observation made by the Hon'ble Supreme Court in the case of K.V. RAJENDRAN

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vs. SUPERINTENDENT OF POLICE, CBCID SOUTH ZONE, CHENNAI AND OTHERS reported in (2013) 12 SCC 480, particularly at paragraphs 13 to 17, which reads as follows:

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"13. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it

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necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having “a fair, honest and complete investigation”, and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge-sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge-sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual.

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14. In Rubabbuddin Sheikh v. State of Gujarat, this Court dealt with a case where the accusation had been against high officials of the Police Department of the State of Gujarat in respect of killing of persons in a fake encounter and Gujarat Police after the conclusion of the investigation, submitted a charge-sheet before the competent criminal court. The Court came to the conclusion that as the allegations of committing murder under the garb of an encounter are not against any third party but against the top police personnel of the State of Gujarat, the investigation concluded by the State investigating agency may not be satisfactorily held. Thus, in order to do justice and instil confidence in the minds of the victims as well of the public, the State police authority could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. Thus, the Court

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held that even if a charge-sheet has been filed by the State investigating agency there is no prohibition for transferring the investigation to any other independent investigating agency.

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15. In State of W.B. v. Committee for Protection of Democratic Rights, a Constitution Bench of this Court has clarified that extraordinary power to transfer the investigation from State investigating agency to any other investigating agency must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. (See also Ashok Kumar Todi v. Kishwar Jahan).

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16. This Court in Sakiri Vasu v. State of U.P. held:

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“31. … this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.”

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(emphasis supplied)

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17. In view of the above, the law can be summarised to the effect that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the

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accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."

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12. In the case of ROYDEN HAROLD BUTHELLO AND ANOTHER vs. STATE OF CHHATTISGARH AND OTHERS

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reported in 2023 SCC OnLine SC 204, at paragraphs 20 and 21, it is held as under:

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"20. 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.

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21. In that background, even if the rival contentions are taken note, we do not find that there is any issue of public 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

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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."

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Recently, Hon'ble The Supreme Court in the case of

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VINAY AGGARWAL vs. STATE OF HARYANA AND OTHERS

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reported in (2025) 5 SCC 14, at paragraphs 9 and 13, following the law declared by Hon'ble Constitution Bench in the case of COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS (supra) held as follows:

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"9. While quashing the earlier FIR against the appellant, the Himachal Pradesh High Court had also observed that the complainant and other witnesses have used the FIR (No. 01/2022) as a weapon to settle down the business disputes with the appellant. The appellant also contends that the money shown to be transferred in his account from

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the account of the complainant's firms is the money which was taken by the complainant as a loan. However, we are not expressing any views on the merits of the case as all these aspects have to be seen during the investigation.

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13. The High Courts should direct for CBI investigation only in cases where material prima facie discloses something calling for an investigation by CBI and it should not be done in a routine manner or on the basis of some vague allegations. The “ifs” and “buts” without any definite conclusion are not sufficient to put an agency like CBI into motion[See: Minor Irrigation & Rural Engg. Services v. Sahngoo Ram Arya]. After going through the records of the case, we are of the view that the present case is not the one where CBI investigation ought to have been directed by the High Court."

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Following the law declared by the Hon'ble Supreme

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Court in the aforesaid cases and applying the aforementioned principles to the case on hand, I am of the view that the petitioner has not made out a case for interference in view of the proceedings before the Criminal Court in Crime No.293/2016 of Jnanabharathi Police Station, Bengaluru City is pending and also as per the order dated 26^th September, 2024 passed by this Court, enquiry was entrusted to the independent investigation Agency of the State viz., Criminal Investigation

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Department (CID) by an officer not below the rank of Assistant Commissioner of Police and pursuant to the same, a detailed report is filed, which would satisfy the fair investigation by the Criminal Investigation Department. Therefore, I am of the considered opinion that, it is not an exceptional case to be referred to the Central Bureau of Investigation (CBI) to conduct re-investigation under the circumstances of the case. Accordingly, writ petition is dismissed as devoid of merits.

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SD/- (E.S. INDIRESH) JUDGE

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ARK List No.: 1 Sl No.: 29

Smt. Lakshmi v. the State by

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