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Synopsis

The Supreme Court has said that it can invoke its power under Section 406 of Criminal Procedure Code in exceptional cases and sparingly, only when after investigation there is likelihood of causing some prejudice to an accused in the course of trial.

A bench of Justices Surya Kant and K V Vishwanathan explained that it is trite law that in exercise of power conferred under Section 406 of CrPC, the top court would not transfer the investigation of an FIR.

In this regard, the court cited the Supreme Court judgments in case of 'Ram Chander Singh Sagar (Dr) Vs State of TN', (1978) and 'State of UP Vs State of Punjab', (2021) and 'Rhea Chakraborty Vs State of Bihar' (2020).

The court, however, used its extraordinary power under Article 142 of the Constitution to transfer two sets of FIRs lodged by two parties in civil contract with Madhya Pradesh and Haryana, to Delhi police in public interest and to avoid contrasting proceedings, duplication of efforts and wastage of public resources.

The court was dealing with a transfer petition filed by Neelima Suri and another person for transfer of three FIRs lodged for offences of cheating, criminal intimidation and extortion by Guna police in Madhya Pradesh.

The dispute arose out of alleged failure to execute Mechanical, Electrical and Plumbing (MEP) contract executed in 2018 between M/s Kings Chariot, whose proprietor was petitioner no 1, and M/s Sunny Vista Hotels Pvt Ltd, which was a hotel project of respondent no 2.

The petitioners also lodged an FIR registered under Sections 120B, 415, 417, 418, 420, 422 and 506 of IPC against respondent no 2 and his company in Gurugram, on the same set of allegations and counter allegations.

The petitioners sought transfer of three FIRs, alleging the Guna Police was acting at the behest of the respondent no 2 and a civil dispute emanating from the work contract had been converted into criminal offences. 

It was also pointed out to the court that both sides had in the meanwhile invoked arbitration clause contained in the work contract and had filed their respective petitions under Section 11 of the Arbitration and Conciliation Act, 1996 before the Madhya Pradesh High Court and the Delhi High Court, respectively.

The court noted a peculiar situation as broad allegations in two sets of FIRs were overlapping and admittedly emanated from the dispute that had arisen as a result of the alleged failure to execute the work as per the agreed specifications. 

It pointed out that two sets of FIRs were broadly in the nature of case and cross-cases and what was alleged in the first set of FIRs was countered in the second set, and in essence, represented the conflicting versions of the same incident.

"We are thus of the considered opinion that with a view to get a comprehensive understanding of the case, all the FIRs must be investigated together. If these are investigated in silos, not only could such isolated investigations result in an incomplete picture, but they might also produce contradictory conclusions. Such conflicting results might ultimately lead to contrasting criminal proceedings, or may necessitate additional investigation to resolve the discrepancies between the two opposing versions," the bench said. 

In case of the former, the parties will face the danger of conflicting judgments on similar facts. In case of the latter, the multiplicity of investigation proceedings would unnecessarily lead to duplication of efforts and wastage of public resources, which would not be in the larger public interest, the bench added.

Having thus noted such sui generis circumstances, the court said that it will be in the interest of administration of criminal justice that the investigation of all the four FIRs is entrusted to one and the same agency so that a complete, impartial and fair investigation can be conducted to find out the element of criminality (if any) and the party/persons responsible for such an offending act.

Invoking its powers under Article 142 of the Constitution, the court ordered to transfer all the four FIRs, to one and the same Investigating Agency, namely, Delhi Police. It directed the Madhya Pradesh Police and Haryana Police to transfer the records of the subject FIRs to Commissioner of Delhi Police forthwith.

The court directed the Commissioner of Police, Delhi to form an SIT headed by an officer not below the rank of Daputy SP to investigate the FIRs and file a final report in a competent court in Delhi.

The bench granted pre arrest bail to both the parties with a condition that they would fully co-operate in the investigation. The court also allowed the police to record statement of witnesses through virtual mode if some of them are not in position to travel to Delhi.

The court also clarified pending investigation would have no bearing on the petitions filed by the parties under Section 11 of the Arbitration and Conciliation Act, 1996 and the High Courts would decide such petitions as per their own merit.

Case Title: Neelima Suri & Anr Vs State of Madhya Pradesh & Anr