The recent judgment of the Supreme Court in the case of late Bollywood actor Sushant Singh Rajput has now taken a different turn in terms of investigation. The single bench of Justice Hrishikesh Roy vide judgment dated 19.08.2020, has taken the investigation from the clutches of Bihar and Maharashtra Police and transferred it to the Central Bureau of Investigation (CBI) by exercising the power conferred to the Supreme Court under Article 142 of the Constitution of India. (Rhea Chakraborty v. State of Bihar, Transfer Petition (Crl.) No. 225 of 2020).
Article 142 of the Constitution of India
The power under Article 142 of the Constitution of India is a discretionary power which allows the Supreme Court, in the exercise of its jurisdiction, to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. This power is given to the Supreme Court to meet the contours of justice and it is unfettered by any other law in India. Although this power being extraordinary, which should be exercised sparingly under rare and extreme circumstance, the Supreme Court, over a period of time, to meet the ends of justice, has frequently resorted to Article 142 in order to do complete justice between the parties.
The rigmarole regarding whether an order made under Article 142, being a constitutional provision, could override express statutory provision, was settled in Prem Chand v. Excise Commr., U.P. (AIR 1963 SC 996). The Supreme Court while answering this issue in negative, speaking through Gajendragadkar J., has categorically held that:
“An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
Thus, it is prima facie clear that an order passed under Article 142 cannot violate an express statutory provision. This view was approved by the same learned Judge in Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1) which was decided by a Nine Judges Bench of the Supreme Court. While it was decided that no enactment made by the legislature can limit or restrict the constitutional power of the Supreme Court under Article 142, the Court must take into consideration the statutory provisions regulating the matter in dispute, as was held in the case of Delhi Judicial Service Assn. v. State of Gujarat, [(1991) 4 SCC 406]. In other words, it can be very well inferred that the Supreme Court invokes its power under Article 142 in cases where the existing provisions do not provide any effective and appropriate remedy and it is usually not appropriate to invoke the power under Article 142 where there is an existing provision in law which can address the issue between the parties in an adequate manner and do complete justice. At the same time, being a constitutional provision, Article 142 can override any statutory provision, but the Supreme Court does not resort to it in direct confrontation with any express statuary provision unless it is the need of the hour. Thus, there exist no straightjacket guidelines or directions as to when and how powers under Article 142 should be invoked, but the Supreme Court, over a period of time, has evolved certain limitations on its undefined and uncatalogued powers, and this power is not exercised unless it becomes absolutely necessary in the interest of meting out complete justice. It is also pertinent to note that the High Courts and the Tribunal do not have any power that is analogous to this power conferred to the Supreme Court.
Power under Article 142 and Section 406 Cr.P.C. vis-à-vis transfer of investigation
In the petition filed by Rhea Chakraborty before the Supreme Court, the Court addressed one of issue wherein she sought for transfer of investigation from Patna to Mumbai under Section 406 of the Criminal Procedure Code, 1973. Section 406 deals with the power of the Supreme Court to transfer cases and appeals from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court, to meet the ends of justice. The Supreme Court while delivering the judgment and taking into consideration the law laid in Ram Chander Singh Sagar and Anr. v. State of Tamil Nadu, [(1978) 2 SCC 35], held that the contour of power under Section 406 is only restricted to transfer of cases and appeals and not investigation.
Since there is no provision in law, more particularly the Code of Criminal Procedure, 1973, which gives power to the Supreme Court to transfer the investigation in a case, the Court is competent enough to invoke its inherent power enshrined under Article 142 to transfer the investigation the CBI. The Court relied upon the ratio laid down in K.V. Rajendran v. Superintendent of Police, CBCID, Chennai & Ors. [(2013) 12 SCC 480], wherein it was held that transfer of investigation must be in rare and exceptional cases in order to do complete justice between the parties and to instil straight confidence in the public mind.
It is also important to take note of at this juncture, the Supreme Court, being a constitutional court, can direct the CBI to investigate into an offence even without the consent of State government, avoiding the rigors of Section 6 of the DSPE Act (Mohd. Anis v. Union of India, [1994 Supp. (1) SCC 145]. Although in Rhea Chakraborty’s case, the FIR was registered in Patna, Bihar and the Bihar government has given its consent for the CBI to investigate the case.
The jurisprudence behind insertion of Section 142 in the Indian Constitution is to prevent the miscarriage of justice to the parties before the Court. It was included considering the paramount importance of justice to be delivered to the parties by protecting their rights guaranteed by the Constitution. While doing so, the Supreme Court is not bound to consider any statutory provision. However, the Court, through practice, refrains itself from interfering with issues which could be effectively dealt with by existing statutory provisions. Such a step of putting limitation on itself is only to restrict its inherent power vested under Article 142. However, in absence of any provision addressing the issue between the parties, the Supreme Court steps in as a guardian and guarantor of constitutional rights and render complete justice by invoking its power vested under Article 142. Thus, in Rhea Chakraborty’s case, the Court was not hesitant while invoking its power to complete justice and transferred the investigation to CBI. Recently, in the highly debated judgment on Ram Janm Bhoomi also, the power under Article 142 was invoked, making it first such case where the said power was invoked for a civil dispute over an immovable property that involved private parties.
Hardik Gautam is an advocate practising at the Supreme Court of India.