Demand of CBI enquiry in cases has become rampant, and it would not be astonishing to notice this. May be due to political influence, or may be due to the fear in the mind of the victim not to get a fair deal, such petitions are filed. One such situation has come into light in the case of Disha v. State of Gujarat and Others Writ Petition (Criminal) No. 33 of 2011, where court rejected the request made by the petition so as to transfer the case pending against her along with her deceased husband and his partners, court could not find ground which, in court's opinion, were substantial to order a CBI inquiry. CBI inquiry should be ordered only in exceptional cases, which do not leave any room to conclude that it would be highly unfair and unjustified for the victim to be investigated by the state police, or any other state agency. While ordering a CBI probe, court very often looks into the credibility of the agency which is investing the matter, and it would be an obligation on the part of the person demanding such probe to make court convinced. Also, it would be an obligation on the part of the Court to actively participate in such matters so as to arrive at a conclusion decorously.
This issue has in fact become one of the most controversial topics in the recent times, when it was opined by the Supreme Court bench headed by the then Chief Justice of India, Justice K.G. Balakrishnan in State of West Bengal & Ors v. Committee for Protection of Democratic Rights, West Bengal W.P. (CRL.) 24 OF 2008
“47. An order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency”
Supreme Court clearly rejected the appeal made by the petitioner who contended that police officials, working under the directions of the State government, would not be able to discharge an impartial probe and that it would be unjust for her to get her case investigated by them. Husband of the petitioner allegedly committed suicide as he had been owing debt to several clients, who were assured by the deceased to receive a considerable amount of profit within a short period of time. He had various agencies in different cities, Pune and Ahemdabad being two of them. One agency was registered in the name of the petitioner, and court had already ordered a probe to be done in the matter relating to fraud. It has been found by the police officials that death of the petitioner’s husband was a clear cut case of suicide which, in all probability, would have been committed by him because of the pressure put over him by his clients, and the same finding was affirmed by the High Court.
Further, court was of the opinion that a CBI inquiry can only be ordered in the cases which are exceptional, and it can only be ordered when court becomes satisfied that an impartial probe would not be possible, if done by the police officials working under the state government because of the involvement of various politicians, influential persons etc. It is only under these circumstances that a court would order a CBI probe, and very often it would be remain reluctant to order such probe. Also, the burden would lie on the petitioner to prove that such an impartial probe cannot be supervised by the police officials. Bearing in mind all these points, court dismissed the petitioner and denied to order CBI to proceed with the investigation. It would be quite interesting to have a glance over the ratio of this court in Vineet Narain & Ors v. Union of India AIR 1996 SC 3386, which will certainly make it easier to understand the situation as to when can a CBI probe be ordered by the High Court, if state fails to do so. Usually speaking, it would be the power of the state to request CBI to conduct an inquiry. But, there have been many instances when state has failed to discharge its duty because of various intervening factors, politics being most significant. This is a landmark case pertaining to CBI inquiry, and Supreme Court, in this case, was of the view that
“The gist of the allegations in the writ petition are that Government agencies, like the CBI and the revenue authorities, have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by CBI. It is alleged that the apprehending of certain terrorists led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'hawala' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the CBI and other Government agencies have failed to fully investigate into the matter and take it to the logical and point of the trial and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every person involved, irrespective of the height at which he is placed in the power set up.”
It further referred to the rule of law and stated that
“the basic tenet of rule of law : "Be you ever so high, the law is above you". Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.”
Above few precedents will make it quite clear as to how and when can a CBI probe be ordered by the High Court.
“Law enforcement officers are never 'off duty.' They are dedicated public servants who are sworn to protect public safety at any time and place that the peace is threatened. They need all the help that they can get." - Barbara Boxer
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