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2012 DIGILAW 281 (HP)

Neelam v. State Of Himachal Pradesh

2012-05-14

DEV DARSHAN SUD, R.B.MISRA

body2012
JUDGMENT : Dev Darshan Sud, J. - This writ petition has been preferred by the petitioner herein with a prayer that investigation of the case be transferred to the Central Bureau of Investigation as the investigation in the case is not fair. 2. Brief facts necessary for decision of this case are that Cr. W.P. No. 24 of 2011 was preferred by Manish Kumar on the allegations that he was wedded to Neelam Kumari and that she was detained by her parents against her will. He was not allowed to cohabit with her. According to him, the marriage between the parties was solemnized in Laxmi Narayan Mandir, Bilaspur, on 6.4.2011 and registered on that date itself. Photographs including album etc. were placed on record to prove the purported solemnization of the marriage etc. Notice of the petition was issued to the parties therein, where-after both of us talked to Neelam Kumari in Chambers to ascertain her version of the entire incident. She narrated in detail the painful episode as to how she was allegedly forced, coerced and threatened to stay with Manish Kumar to purportedly enter into the alleged matrimonial alliance. She described the complete harrowing details how she was taken from place to place, confined in a room and subjected to sexual abuse. Her statement was recorded when she expressed her wish to stay with her parents and not with Manish. She was repeatedly affirmed that she had been coerced and threatened into the so called alliance. We are not going into this aspect for the time being, as it may prejudice the case of both the parties. But suffice it to say that writ of habeas-corpus was dismissed after the statement of Neelam Kumari was recorded. 3. As a sequel to that writ petition, first information report No. 223 was lodged in Police Station Balh on 16.09.2011 for offences under Sections 366, 368, 376, 344, 506 and 120-B IPC and a detailed complaint Annexure P-3 has been filed by Neelam. We also find an averment in the petition, which is supported by Annexure P-1 which is a complaint addressed by the petitioner to the Superintendent of Police, Mandi, stating that on 8.9.2011 she had gone to Police Station Balh for registration of a case, but the police personnel did not entertain the complaint nor register any case. We also find an averment in the petition, which is supported by Annexure P-1 which is a complaint addressed by the petitioner to the Superintendent of Police, Mandi, stating that on 8.9.2011 she had gone to Police Station Balh for registration of a case, but the police personnel did not entertain the complaint nor register any case. She had gone there with her father and waited in the police station for about 2 hours. She even presented a copy of the order passed by this Court in Cr.WP No. 24 of 2011 in which we had directed that it would be open to the petitioner to approach the police for appropriate action, but nothing was done. The petition then proceeds with the pleading that on receipt of this application, the Additional Superintendent of Police, Mandi directed the registration of the case, but her submission is that the investigation is not fair. 4. Looking into allegations made in the complaint, we find that very serious allegations have been made by the petitioner herein, not only against Manish Kumar, but also the other persons, who were involved in the case. The petitioner submits that respondent No. 4 who was the Station House Officer, Police Station Balh prior to arresting Manish Kumar approached her and was compelling her to get her statement recorded before the Court under Section 164 of Cr.P.C., that the names of Shri Sunder Lal Malik, retired Additional Superintendent of Police, his wife Meera Devi, son Ram Pal, daughter Promila and son-in-law Dev Raj posted as Divisional Forest Officer, Bilaspur mentioned in the FIR as the other accused persons be deleted. The allegations made against respondent No.4 are that he has not carried out the investigation in fair and impartial manner as he is shielding the accused and other persons named by her in the FIR. In case the accused are not dealt with in accordance with law, they will be emboldened not only to interfere in the course of investigation of this case but also commit other offences. In the reply preferred by the Additional Superintendent of Police, Mandi, these allegations have been denied. We did not entertain this affidavit as it was not in consonance with the directions dated 10.19.2011 issued by us. We find that thereafter on 3.11.2011, another affidavit has been placed on record of the case which is by the Superintendent of Police. In the reply preferred by the Additional Superintendent of Police, Mandi, these allegations have been denied. We did not entertain this affidavit as it was not in consonance with the directions dated 10.19.2011 issued by us. We find that thereafter on 3.11.2011, another affidavit has been placed on record of the case which is by the Superintendent of Police. He also repeats whatever has been stated by the Additional Superintendent of Police. It shows little application of mind. 5. In the meantime, CMP No. 13444 of 2011 was filed by the petitioner praying for impleadment of Shri Pupul Datta Prasad, Superintendent of Police and Ashish Kumar, Deputy Superintendent of Police as parties in the writ petition. The allegation was that true and proper facts have not been brought on record of the case and in this event, they are required to be impleaded. 6. CMP No. 13445 of 2011 has been filed by Manish Kumar accused for being impleaded as a party. He submits that since he will be affected by any order which may ultimately be passed by this Court, it is his interest which would be adversely affected. 7. We have heard the rival contentions of both the parties. We will first deal with the application under Order 1, Rule 10 of the Code of Civil Procedure instituted by Manish Kumar. He wants to be impleaded in the writ petition as a party to oppose the prayer of the petitioner herein for having the investigation carried out by an Agency different from the one which is investigating the case at present. We may consider the law on the point. Without delving into history, we note that in Emperor v. Khwaja Nazir Ahmad, AIR (32) 1945 Privy Council 18 the Privy Council had an occasion to consider extent of powers of the police and the jurisdiction of the Court in the case under investigation. In the context of the law applicable, it was held: "In their Lordships opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. In the context of the law applicable, it was held: "In their Lordships opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognisable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C., to give direction in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognisable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam J. may well have decided rightly in A.I.R. 1938 Mad. 129. But that is not this case. In the present case the police have under Sections 154 and 156, Criminal P.C., a statutory right to investigate a cognisable offence without requiring the sanction of the Court, and to that extent the case resembles 44 Cal. 535 in which as the High Court has pointed out their Lordships Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds. Of course, in the present case as in the petition brought by Mr. Gauba no prosecution is possible unless the necessary sanction under Section 197, Criminal P.C., has first been obtained. But that stage like the stage at which the Court may legitimately intervene has not, in their Lordships opinion, yet been reached. The question so far is one of investigation, not prosecution. In accordance with their view, their Lordships will humbly advise His Majesty that the appeal should be allowed the decree and order of the High Court quashed and investigation permitted to proceed." (at p. 22) 8. We are also mindful on constrains placed by the Supreme Court in adopting a cavalier attitude in interfering with police investigation merely at the asking of the petitioner. In State of Bihar and another v. J.A.C. Saldanha and others, (1980) 1 SCC 554 the Court after considering facts inter alia holds: "1. Reverence and anxiety to the same degree, if not more, to shoot at sight even a remote intrusion into the field preserved for judiciary must inform the judicial approach whenever assistance of the judicial machinery is sought for an unwarranted encroachment into the field of activity reserved for the other branch of government, more so, when extraordinary power conferred on the High Court to issue prerogative writ in aid of justice is invoked to thwart a possible detection of a suspected offence. How dangerous it is to rush in where one should be way to tread is amply demonstrated by the facts revealed in these two appeals. 6. How dangerous it is to rush in where one should be way to tread is amply demonstrated by the facts revealed in these two appeals. 6. Two substantial questions arise in these appeals: (1a) Whether the State Government was competent to direct further investigation in a criminal case in which a report was submitted by the investigating agency under Section 173 (2) of the Code of Criminal Procedure, 1973 (Code for short) to the Magistrate having jurisdiction to try the case? (1b) Whether the Magistrate having jurisdiction to try the case committed an illegality in postponing consideration of the report submitted to him upon a request made by Assistant Public Prosecutor in charge of the case till report on completion of further investigation directed by the State Government was submitted to him?; and (2) Whether, when the investigation was in progress the High Court was justified in interfering with the investigation and prohibiting or precluding further investigation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution? It is the second question which would be relevant for the purpose of the present case and which has been answered by the Court thus: "24. The next contention is that the High Court was in error in exercising jurisdiction under Article 226 at a stage when the Additional Chief Judicial Magistrate who has jurisdiction to entertain and try the case has not passed upon the issues before him, by taking upon itself the appreciation of evidence involving facts about which there is an acrimonious dispute between the parties and giving a clean bill to the suspects against whom the first information report was filed. By so directing the learned Additional Chief Judicial Magistrate the judgment of the High Court virtually disposed of the case finally. As we are setting aside the judgment of the High Court with the result that the case would go back to the learned Additional Chief Judicial Magistrate, it would be imprudent for us to make any observation on facts involved in the case. 25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. 25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 where the Privy Council observed as under: In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognisable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of an inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then. 26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognisable offence is ordinarily not to be interfered with by the judiciary. 27. Some attempt was made to impress us with utterly irrelevant factors as to how much freight TISCO is paying to the railways every year and even the amount which may become payable in view of the disputed facts was also paid some time prior to the filing of the first information report. We would refrain from making even an implied observation on any facts involved in the dispute. The case is not at a stage where the Court is called upon to quash the proceedings as disclosing no offence but the case is at a stage where further investigation into the offence is sought to be thwarted by interference in exercise of the extraordinary jurisdiction. Apart from reiterating the caution administered way back in Khwaja Nazir Ahmad case that unless the extraordinary case of gross abuse of power is made out by those in charge of investigation as noted in S.M. Sharma v. Bipen Kumar Tiwari, 1970 (1) SCC 653 the Court should be quite loath to interfere at the stage of investigation, a field of activity reserved for police and the executive. It would be advantageous to extract what this Court observed in S.M. Sharma case : (SCC p. 657, para 11) It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognisable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. Not only such a case is not made out but the High Court by an utter misconception of its jurisdiction almost directed the Magistrate before whom the papers are pending to act in a manner as enjoined by the High Court. How the High Court has usurped the jurisdiction of the learned Magistrate, the following passage from the judgment of the High Court would be illustrative. After setting aside the impugned order of the learned Magistrate dated February 24, 1979, and remitting the case to the learned Magistrate the High Court gave the following direction: He will not proceed to consider the final report submitted by the Police (C.I.D.). I should, however, like to observe for the benefit of the learned Magistrate that he will bear in mind that mere failure to follow rules and regulations is neither cheating nor breach of trust. He will also bear in mind while applying himself to the case diary with all thoroughness whether there is any material to show that the Railways have suffered. In order to constitute offence of cheating causation of damage or harm to a person in body, mind, reputation or property is essential. The learned Magistrate will direct his attention to this aspect of the matter. Loss to the Railways cannot be presumed merely from the fact of irregular booking. The learned Magistrate will consider the effect of issuing of dispatch advice and forwarding notes by TISCO at the time of dispatch of goods. The learned Magistrate will also bear in mind that mere failure to pay does not amount to cheating for, mere breach of contract is not cheating. The learned Magistrate will consider the effect of issuing of dispatch advice and forwarding notes by TISCO at the time of dispatch of goods. The learned Magistrate will also bear in mind that mere failure to pay does not amount to cheating for, mere breach of contract is not cheating. The attention of the learned Additional Chief Judicial Magistrate is particularly dawn to the cases of Harakrishna Mahatab v. Emperor, AIR 1930 Pat. 209, Major Robert Stuart Wauchope v. Emperor, AIR 1933 Cal 800 and State of Kerala v. A. Prasad Pillai, AIR 1973 SC 326 . To my mind the Railway as an organisation profited rather than lost by the unusual procedure adopted in relation to TISCO. The learned Magistrate will also consider whether the whole case diary reveals any material indicating that any public servant had enriched himself either by bribery or by breach of faith. After going through the case diary thoroughly the learned Magistrate will decide dehors the recommendation of Superintendent of Railway Police, respondent 7 and C.I.D. whether any offence had been committed and if so which accused should be put on trial. 28. Is there anything more required to write the final epitaph and say amen by the learned Additional Chief Judicial Magistrate after the finding is recorded by the High Court, more especially finding of fact that railway organisation has profited rather than lost by the unusual procedure? It is a clear case of usurpation of jurisdiction vested in the learned Additional Chief Judicial Magistrate to take or not to take cognizance of a case on the material placed before him. The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more." (at pp. 572-574). 9. Subsequently, the Constitutional Bench in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 considered the entire law on the point. On the submissions made by the parties to the petition before the Supreme Court, it formulated the question relevant for decision. The Court holds: "1. 572-574). 9. Subsequently, the Constitutional Bench in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 considered the entire law on the point. On the submissions made by the parties to the petition before the Supreme Court, it formulated the question relevant for decision. The Court holds: "1. The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short "the CBI"), established under the Delhi Special Police Establishment Act, 1946 (for short "the Special Police Act"), to investigate a cognisable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. 2. For the determination of the afore-stated important legal issue, it is unnecessary to dilate on the facts obtaining in individual cases in this bunch of civil appeals/special leave petitions/writ petitions and a brief reference to the facts in Civil Appeal Nos. 6249-50 of 2001, noticed in the referral order dated 8-11-2006, would suffice." Considering the facts the Court holds: 4. On 8.1.2001, the Director General of Police, West Bengal directed the C.I.D. to take over the investigations in the case. A writ petition under Article 226 of the Constitution was filed in the High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal, in public interest, inter alia, alleging that although in the said incident 11 persons had died on 4.1.2001 and more than three months had elapsed since the incident had taken place yet except two persons, no other person named in the FIR, had been arrested; no serious attempt had been made to get the victims identified and so far the police had not been able to come to a definite conclusion whether missing persons were dead or alive. It was alleged that since the police administration in the State was under the influence of the ruling party which was trying to hide the incident to save its image, the investigations in the incident may be handed over to the CBI, an independent agency. 5. It was alleged that since the police administration in the State was under the influence of the ruling party which was trying to hide the incident to save its image, the investigations in the incident may be handed over to the CBI, an independent agency. 5. Upon consideration of the affidavit filed in opposition by the State Government, the High Court felt that in the background of the case it had strong reservations about the impartiality and fairness in the investigation by the State police because of the political fallout, therefore, no useful purpose would be served in continuing with the investigation by the State Investigating Agency. Moreover, even if the investigation was conducted fairly and truthfully by the State police, it would still be viewed with suspicion because of the allegation that all the assailants were members of the ruling party. Having regard to all these circumstances, the High Court deemed it appropriate to hand over the investigation into the said incident to the CBI. 6. Aggrieved by the order passed by the High Court, the State of West Bengal filed a petition for special leave to appeal before this Court. On 3.9. 2001 leave was granted. When the matter came up for hearing before a two-Judge Bench on 8.11.2006, taking note of the contentions urged by learned counsel for the parties and the orders passed by this Court in The Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal & Ors., 1970 (1) SCC 633 and Kazi Lhendup Dorji v. C.B.I., 1994 Supp (2) SCC 116, the Bench was of the opinion that the question of law involved in the appeals was of great public importance and was coming before the courts frequently and, therefore, it was necessary that the issue be settled by a larger Bench. Accordingly, the Bench directed that the papers of the case be placed before the Hon'ble Chief Justice of India for passing appropriate orders for placing the matter before a larger Bench. When the matter came up before a three Judge Bench, headed by the Hon'ble Chief Justice of India, on 29.8.2008, this batch of cases was directed to be listed before a Constitution Bench. This is how these matters have been placed before us. (at pp 579-580) 10. When the matter came up before a three Judge Bench, headed by the Hon'ble Chief Justice of India, on 29.8.2008, this batch of cases was directed to be listed before a Constitution Bench. This is how these matters have been placed before us. (at pp 579-580) 10. After considering the entire precedents on the point of the jurisdiction of the Supreme Court and the High Court under Articles 32 and 226 of the Constitution of India and on the power of judicial review, the Court concluded: 68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognisable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review". (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognisable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. 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. 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. In so far as the question of issuing a direction to the CBI to conduct investigation in a 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 situations where it becomes necessary to provide credibility and instil confidence in investigations 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. Otherwise the 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. 71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521 , this Court had said that an order directing an enquiry by the 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. We respectfully concur with these observations." (at pp.600-602) 11. It is these principles which we have to consider. We are mindful of the constrains placed upon this Court prohibiting it to rush into an arena which is otherwise the domain of the police and the executive. We respectfully concur with these observations." (at pp.600-602) 11. It is these principles which we have to consider. We are mindful of the constrains placed upon this Court prohibiting it to rush into an arena which is otherwise the domain of the police and the executive. But we are also not unmindful of the fact that in the present peculiar fact situation that there is a young girl who has completed her BAMS studies and in response to the habeas-corpus petition, instituted by accused Manish to secure her custody, appears before us and has narrated in graphic detail the sordid saga and harrowing experience of her purported marriage and cohabitation with the accused and her statement that she is unwilling to stay with him for the reason that she never married him. We could have directed registration of FIR on that statement which was recorded by us in Criminal Writ Petition No. 24 of 2011, on 5.9.2011. But we left liberty reserved to the petitioner to approach the police for redressal in accordance with law conscience of the fact that it may be taken as a final pronouncement of guilt and in these circumstances left it open to the police to perform its statutory functions but an all out effort to botch up the investigation was undertaken by the respondents only because a retired police officer and a forest service officer are involved. But we do find that the complainant makes a detailed complaint in writing (Annexure P-3) on 8.9.2011. Her allegation is that on 8.9.2011 she had gone with her father and relatives to lodge the complaint with the police but no action was taken. Thereafter, on 9.9.2011 she presented this complaint with request to initiate action in accordance with law, but of no avail. Then she approached the Superintendent of Police, Mandi on 9.9.2011 by way of Annexure-P1 requesting that action be taken on her complaint. FIR No. 223 was registered on 16.9.2011. Why this delay? We find no explanation on record. In response to the allegations made by the petitioner in paragraph 2 and 3 of the writ petition, it is pleaded that the victim was not present at the time when FIR was lodged. FIR No. 223 was registered on 16.9.2011. Why this delay? We find no explanation on record. In response to the allegations made by the petitioner in paragraph 2 and 3 of the writ petition, it is pleaded that the victim was not present at the time when FIR was lodged. In paragraph 3 of the petition, she says that she had then to approach the Superintendent of Police, Mandi on 9.9.2011, but response is that FIR was registered on the written complaint of the petitioner on information from the Superintendent of Police, Mandi on 12.9.2011. What stopped the police from recording the substance of complaint on 8.9.2011 even if the victim was not present? What kind of procedure has been followed by the police in recording the First Information Report when the complaint was lodged by the victim himself/herself? Why was she compelled to approach the Superintendent of Police? Why was she being compelled to have the names of certain persons deleted and her statement recorded under Section 164 Cr.P.C.? 12. We then turn to the other allegations made in the writ petition. The accusing finger has been pointed at the Station House Officer, respondent No.4, who is alleged to have exercised pressure on the petitioner to make a statement under Section 164 Cr.P.C. before the Magistrate even before he started investigation asking her to exclude the names of other persons, who are named in the FIR. Her allegation is that one of the accused is a retired Additional Superintendent of Police and his son-in-law is the Divisional Forest Officer, Bilaspur and it was these people who are exercising influence to thwart further proceedings. She then states that when remand of the accused was sought by the police from the Court of learned Judicial Magistrate Ist Class, on 11.10.2011 he was only asked to be detained for offences under Sections 465, 468 and 471 IPC and not Sections 366, 368, 376, 344, 506 and 120-B IPC. If the petitioner had submitted that she had been raped investigation was required and not prompt deletion. We also find that the petitioner points out a number of defects with respect to the documents on record, the factum, place of marriage etc. She also states that other co-accused having not been impleaded in the case itself makes the entire case suspicious as to whether she would get justice at all. 13. We also find that the petitioner points out a number of defects with respect to the documents on record, the factum, place of marriage etc. She also states that other co-accused having not been impleaded in the case itself makes the entire case suspicious as to whether she would get justice at all. 13. We do not express our opinion on allegations made save and except that some of the facts are very telling and the first one to strike our mind is that why delay was occasioned in recording the FIR when according to the police, the parents and other relatives were present in the Police Station asking them to lodge a report against the accused. Ultimately it is with the intervention of the Superintendent of Police when the report was recorded. We find no logical explanation on record as to why this course was adopted by the Investigating Agency and in this event, we would be justified in directing the investigation to be handed over to the other independent Agency. We do not wish to tarnish the image of the police of Himachal but the facts as noticed by us leave no option but to place a shield of protection around the complainant and to ensure that the case is fairly investigated. 14. Traversing the facts furthers, whether there was the necessity of having the statement of complainant recorded under Section 164 Cr.P.C.? What is the progress which has been made in the direction of investigation on the allegations made against other accused? We may add that after Cr.W.P. No. 24 of 2011 had been disposed of by us, it should have been clear to the Investigating Agency to be vigilant with regard to the investigation of the case. But they have not cared for anything expressing their own primacy in the statutory hierarchy of functions without realising that the sweep of the powers of this Court under Article 226 of the Constitution of India are wide and to keep the respondents within the statutory bounds. 15. We also make it clear that it is not for a party to choose the Investigating Agency. It is only when we find that the police is going awry then we will intervene under Article 226. We are not holding that any party named in FIR is per se guilty of offences as alleged merely because his/her name figures there. We also make it clear that it is not for a party to choose the Investigating Agency. It is only when we find that the police is going awry then we will intervene under Article 226. We are not holding that any party named in FIR is per se guilty of offences as alleged merely because his/her name figures there. We are also alive to the manner in which investigation should be carried out, though if we find that if the occasion arises, we would intervene without hesitation and uphold the majesty of the Rule of Law. Accordingly we direct that investigation in this case be entrusted to the Central Bureau of Investigation with the further direction that the case shall be investigated by an officer not below the rank of Deputy Superintendent of Police. CMP No. 13444 of 2011 is dismissed. We hold that there is no vested right in the applicant to be impleaded as a party-respondent as no order is passed against him and his assumption that in case the investigation is handed over to the Central Bureau of Investigation, he is per se guilty is ill founded. CMP No. 13445 of 2011 is also dismissed being infructuous. 16. Let a copy of this order be sent to the Director General of Police, Himachal Pradesh as also the Superintendent of Police, Central Bureau of Investigation, Shimla for further action in accordance with law. A direction is also issued to respondent No. 4 and the Superintendent of Police, Mandi to ensure that entire papers of investigation till date be handed over to the Superintendent of Police, CBI for further action in accordance with law. Writ petition stands disposed of. No order as to costs.