On the morning of August 19, 2020, the Supreme Court bench of justice Hrishikesh Roy passed an order on the transfer petition filed by Rhea Chakraborty. In her petition, the actress sought the transfer of the FIR registered against her in Bihar, in the alleged abetment of suicide of Sushant Singh Rajput, to Mumbai.
While the judgment went on for 35 pages, the gist of the verdict was that the FIR registered in Patna was "lawful", the recommendation of Bihar government to transfer the case to the CBI was also lawful, but the Court, affected by the mass speculation about the case and the allegations of political mudslinging, was using its plenary powers to "approve of the CBI investigation."
As the Maharashtra lawyer, senior advocate R Basant sought permission to challenge the decision of Bihar to transfer the case to the CBI, the court also pointed out that the case was now a CBI investigation "on court orders."
The decision led to an outpouring of celebration on social media, with #justice and #CBIforSSR trending on twitter. However, amid the clamour over justice finally in sight, there are some legal issues that remained untangled.
EXCEPTIONAL CIRCUMSTANCES AND THE POWER OF THE CBI
Justice Hrishikesh Roy in his judgment observed: “Transfer of investigation to the CBI cannot be a routine occurrence but should be in exceptional circumstances. One factor which the court finds relevant as an exception is to retain public confidence in the impartial working of the State agencies.”
However, due to the serious allegations of political interference in both states, the bench then decided to “exercise its plenary power” in the case to grant approval to the ongoing CBI investigation.
“Because both states are making acrimonious allegations of political interference against each other, the legitimacy of the investigation has come under a cloud,” noted the Supreme court in its verdict on Wednesday.
Taking note of the “speculative public discourse” and the media limelight that has been shining on the case, the apex court took the unusual decision to transfer the case to the CBI for investigation, specifically noting that it was using its plenary powers under article 142, “to ensure public confidence in the investigation and to do complete justice in the matter.”
Does this verdict then grant unprecedented power to the CBI to take over any case? Legal experts say that is not the case.
“In my mind, this is not the classic category of cases that requires a transfer, but the parties were before the court and the nuances of the case have been examined by the court,” says senior advocate Siddharth Luthra.
With the judgment allowing for “exception” to be carved out due to public discussion of the matter, Luthra says there are “concerns” that this judgment may “open floodgates for people" to approach the court to get their matters transferred to the CBI “even in case of what we call regular crime and not such publicised cases".
Senior advocate KTS Tulsim, on the other hand, says that “it is rare” for such exceptions to be carved out.
“Public hysteria by itself is valid grounds for transfer,” says Tulsim adding that “It’s not easy for investigating agency to remain unaffected. The best course of action is wherever there will be fewer chances of mutual acrimony, that agency might as well investigate."
In this case in particular, the bench accepted the argument by Bihar Police that since the “misappropriation of funds” allegation was there in the FIR, the jurisdiction of the Bihar Police was valid since the victim of such misappropriation and cheating would be KK Singh, father and sole legal heir of Sushant Singh Rajput. The court verdict cited the Samsung case judgment of 2012 to hold that since the money, which Rhea Chakraborty and her family stand accused of siphoning off, would have to be returned to KK Singh in Patna, the “exercise of jurisdiction by the Bihar Police appears to be in order”. At the same time, the bench noted that “FIR suggests that most of the transactions/incidents alleged in the complaint occurred within the territorial jurisdiction of the State of Maharashtra.”
A question then arises - whether this issue would then open the floodgates for more petitions in the country to transfer cases to the jurisdiction of the “choice” of the complainant?
First, the Code of Criminal Procedure (CrPC) already has provisions regarding jurisdiction, and how jurisdiction for the registration of an FIR can be the “place of occurrence of crime” as well as the place where “part of the property” resides or where the “whole or part of the consideration was to be received or accounted for.”
“In any FIR where there are more than 2 offences- you can have an act where there is more than one offence arising out of it, and jurisdiction can be in more than one place. That has been the settled position of the SC for over 2 decades,” says Senior advocate Siddharth Luthra.
Senior advocate Shekhar Naphade also says that the Supreme Court or High court cannot direct CBI investigation for mere asking, some specific grounds must be made out.”
With the provision for a ZERO FIR on the books, Naphade also says that the mandate for registration of FIR would have been there “even if no cause of action was there in Patna” as the complainant approached the Police with a written complaint in Patna.
“The FIR was rightly recorded in Patna, the question is whether after recording the FIR the Bihar police has jurisdiction to investigate or not. That’s a different question, and in any case, the matter is now with the CBI,” says Naphade.
WHERE, IF ANY, ARRESTED PERSON(S) WILL GO?
The most important question now being asked is - now that the CBI is investigating under Court orders, which court will have jurisdiction to try the case, and if Rhea Chakraborty or anyone else, is arrested, will they be taken to Patna or will the Court in Mumbai decide on their remand. Senior advocate and former ASG Maninder Singh, who was representing the Bihar police in the case, says the jurisdiction will be of the Patna court.
“It is for the CBI to consider according to the evidence, witnesses and direction of the investigation where they want to file the challan and other legal procedures. But in my opinion, since the validity of the FIR filed in Patna has been upheld, the jurisdiction will be of the Patna court,” says Singh.
The judgment observed that there was no FIR currently in Maharashtra, but the possibility of such an FIR being filed later “cannot be ruled out”. The Court, however, declined to go into the issue of cognizance of the offence by the Court of jurisdiction.
“In case of a future possibility of cognizance being taken by two courts in different jurisdictions, the issue could be resolved under Section 186 CrPC and other applicable laws. No opinion is therefore expressed on a future contingency and the issue is left open to be decided, if needed, in accordance with law” observed the bench. At the end of the judgment, however, the court noted “if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well,” the bench also noted that it is “according to approval for the ongoing CBI investigation.”
From a plain reading of the order, it appears that the competent court, which will hear any remand applications or where the final challan would be filed, would be the CBI court in Patna. Senior advocate Naphade disagrees. “Now that the CBI is appointed as the investigative agency, they will choose a proper CBI court. In my view, it should be Mumbai- on the grounds that the substantial part of the alleged ingredients of the alleged offence is in Mumbai, practically all witnesses are in Mumbai, all the persons who may be accused are likely to be in Mumbai, therefore the appropriate court should be in Mumbai,” says Naphade.
The legal experts agree, however, that much could depend on the ongoing investigation. “We should wait a day or two to see what the CBI decides now,” says ASG Singh.