SUSHANT SINGH RAJPUT MATTER: Continuing Dilemmas In Investigation

Late Sushant Singh Rajput, an actor with pan India following, was found hanging on June 14 at his Bandra residence. The unnatural death is raising a number of questions in relation to the power of police to investigate a cognizable offence. After Sushant’s death, Bandra police filed the ‘Unnatural Death Report’ under Section 174 Code of Criminal Procedure, 1973 (“C.r.P.C”), and is enquiring into it. Bandra Police has recorded the statements of his father and sister, and they have raised no finger at anyone. No written complaint has been preferred by the father or anyone on his behalf before the Mumbai police seeking registration of an FIR nor about the fact that their statement was wrongly recorded.

After more than a month, his father Mr. Krishna Kishor Singh has lodged a First Information Report (“FIR”) in Rajeev Nagar Police Station in Patna, Bihar against Ms. Rhea Chakravarti and some of her family members for cheating, criminal breach of trust and abetting the suicide of Sushant. FIR lodged in Patna does not mention that any part of the offence has taken place in Patna or even Bihar. Ms. Rhea Chakravarti has sought transfer of this FIR from Patna to Mumbai, and the matter is pending before the Supreme Court. As per news reports, the team of Bihar Police is camping in Mumbai and carrying out an investigation, complaining lack of assistance from Mumbai police.

Prima facie, no part of the offence, has taken place in State of Bihar, and yet the State of Bihar has registered an FIR, assumed jurisdiction, and commenced an investigation, undeniably in another State (Maharashtra). If permitted, this could lead to a legal absurdity. Therefore the decision by the Supreme Court on Ms. Rhea Chakravarti’s plea would have wide ramifications and could affect the federal character and disturb Centre-State relations.

Interesting legal issues arise from this, which we seek to analyse, namely:

1. Jurisdiction: whether Patna Police has the jurisdiction to lodge the FIR and investigate it, even though there is no mention of any part of the offence being committed in Patna
2. Transfer: whether FIR can be transferred under S. 406 Cr.P.C
3. Remedy: if police refuse registration of an FIR, what are the remedies available
4. CBI: consequences of the transfer of investigation to the CBI by State of Bihar

First Information Report and Jurisdictional issues

First Information Report is a report prepared by the police upon receipt of information about the commission of a cognizable offence (Section 154, Cr.P.C). The informant could be anyone having access to information about the crime and could be the victim, eyewitnesses, relatives of the victim, or even a rank outsider. A criminal case is to be inquired and tried by a court in whose jurisdiction the offence took place as per Section 177 of the Cr.P.C and accordingly the police station in whose jurisdiction the offence took place has jurisdiction to file an FIR. This is not to say that other police stations should not register an FIR if it is unclear that the offence has taken in their jurisdiction. Section 154 of the Cr.P.C mandates registration of FIR if information pertaining to cognizable offence is disclosed to a police officer. Once police register the FIR, and during investigation, it comes to their knowledge that the offence has taken place in another jurisdiction, they must transfer the matter to the police station having jurisdiction to investigate. However, if it is apparent even during the time of registration of FIR that the offence has taken place in some other jurisdiction, they must register a ‘zero FIR’ and transfer the investigation of the matter immediately to the relevant police station.

In the instant matter, Sushant Singh Rajput was based in Mumbai and was found hanging in his Bandra residence. Even the accused Rhea Chakravarti is based in Mumbai. Allegations by the informant are cheating, breach of criminal trust, and abetting suicide. The entire alleged criminal transaction took place in Bandra and at other places in Mumbai. The Mumbai police are enquiring into the incident, with no FIR having been filed till date. However, Sushant’s father has filed an FIR in Patna and the Rajeev Nagar Police has lodged an FIR and sent its team to Mumbai to undertake investigation. As per reports FIR is said to have allegations of criminal conspiracy against Rhea and her family members of sacking Sushant’s staff, getting employees of their choice and criminally conspiring against Sushant. Even if the allegations against the accused persons are believed to be true, the entire transaction seems to have taken place in Mumbai and therefore, Bihar police could only have filed a zero FIR. The fact that the transaction took place in Mumbai is further strengthened from the fact that Bihar police have sent its team to Mumbai for investigation.

Post the registration of FIR by Bihar Police, media has started baying for blood and demands for justice are becoming strident, including for transfer of the matter to CBI. However, the issue is not of a distraught father seeking justice for his departed son but the mode and manner of seeking it under the realm of law. If such an FIR as registered with Bihar Police is allowed will it then not open a pandora’s box and entitle one to get an FIR registered anywhere in any State and provide police with jurisdiction to start investigation of an offence in any State with no actual nexus with the purported crime. Such action has potential to lead to anarchy and to cause great mischief.

Remedies available in case jurisdictional police refuses to file FIR

One of the arguments taken by Mr. Krishna Kishore Singh’s lawyer for filing of FIR in Patna is that Mumbai police is not investigating the incident properly and not registering an FIR. This statement ignores the legal remedies that are available to aggrieved persons if the Police are not registering FIR. The following are the relevant legal remedies available in case of refusal of FIR:

Information to Superintendent of Police

The first and foremost remedy available to any person aggrieved by refusal of police to register an FIR is to send the substance of information to the Superintendent of Police (“S.P.”) in writing. Section 154(3) of the Cr.P.C. provides that if the information provided to the S.P. discloses commission of a cognizable offence, he/she shall investigate the matter either himself or direct any sub-ordinate officer to investigate as per the procedure envisaged in the Cr.P.C.

Complaint before Magistrate

Upon exhausting remedies available under Section 154(1) and (3) of the Cr.P.C. aggrieved person may file a complaint before the Magistrate under Section 190 read with Section 200 of the Cr.P.C. for investigation as per Section 156(3) of the Cr.P.C which states:

“Any Magistrate empowered under section 190 may order such an investigation as above- mentioned”

If the magistrate finds a prima facie case, he/she is empowered to direct investigation by the police in place of issuing the process, and direct them to submit a report.

Writ before the High Court

If the aggrieved person exhausts remedies provided under Section 154(3) and Section 190/200 of the Cr.P.C., then he/she can approach the jurisdictional High Court under Article 226 of the Constitution to issue a writ of mandamus against the erring police officer to perform his statutory duty to file an FIR if the informant discloses commission of a cognizable offence. It is pertinent to mention that this remedy can be refused if the High Court believes that alternative remedies of approaching the SP and/or the magistrate have not been availed or if it believes that the information prima facie does not disclose commission of a cognizable offence.

 Plea to transfer FIR from Bihar to Mumbai

Post the filing of FIR by Mr. Kishore Singh, Ms. Rhea Chakravarti has moved the Supreme Court for transfer of FIR from Patna to Mumbai. The question that arises is if an FIR, which has not yet culminated into a case, where police investigation is still underdoing and no report, has been filed under Section 173 of the Cr.P.C, can the FIR be transferred by the Supreme Court?

Section 406 of the Cr.P.C grants the Supreme Court power to transfer a case or appeal pending before sub-ordinate court or High Court to another sub-ordinate court or High Court if it appears expedient for the ends of justice. The moot question that arises is if “case” under the aforementioned provision includes a mere FIR. This question has previously been answered by the Supreme Court in Ram Chander Singh Sagar v. State of Tamil Nadu wherein Justice Krishna Iyer observed that under Section 406 of the Cr.P.C the Supreme Court is not empowered to transfer investigation from one police station to another when no case is pending before any court at that point of time. Further, in the case of Naresh Kavarchand Khatri v. State of Gujarat & Anr., the Supreme Court while dealing with a similar power of the High Court to transfer cases under Cr.P.C held that the power to court to interfere with investigation is limited and that the court should not interfere at an initial stage. It was stated that if the Investigation Officer (“I.O”) during the investigation finds that he has no territorial jurisdiction, then he should transfer the same to police station having jurisdiction. On the basis of various previous rulings of the Supreme Court, it was held that only during the investigation will the territorial jurisdiction of a matter become evident and therefore it was stated that at the stage of investigation, it cannot be said that I.O does not have the jurisdiction to investigate the case.

Even though the Supreme Court has wide powers under Article 142 of the Constitution, it has been held that such wide power shall not be used contrary to settled law and must also be used sparingly. Therefore, Supreme Court may not be inclined to allow transfer of an FIR at the stage of investigation as that may widen the scope of judicial inquiry into the territorial jurisdiction of crime concerned. However, if this is not done and Patna police is permitted to continue investigation of a case even though no part of the offence took place within its jurisdiction, it would raise serious issues because in the future, FIRs could be registered in places without territorial jurisdiction and the courts may be left helpless till investigation is completed by the police and a report is filed before the court of appropriate jurisdiction. Therefore, the outcome of the hearing next week will be much awaited.

Transfer of FIR by State of Bihar to Central Bureau of Investigation

While the Mumbai Police has refused to file an FIR and to transfer the investigation to the CBI, Rajeev Nagar Police has filed an FIR and has sent its team to Mumbai for investigation. The Bihar Government has recommended that this matter be transferred to CBI and the Union Government has accepted the request for transfer to CBI. The question that arises is if the government of Bihar can legitimately transfer the investigation to CBI considering that the offence has taken place in Mumbai and has no prima facie nexus with Bihar?

CBI unlike other central agencies does not have jurisdiction across the country and is governed by Delhi Special Police Establishment Act, 1946 (“DSPE”). DSPE states that consent of the concerned State governments is required for conducting investigation within the jurisdiction of States except Union Territories (Section 6, DPSE). With regards investigation into cases against Central Government employees, a lot of State Governments have given general consent to the CBI. However, for cases of crime against private persons, specific consent of the State Government is required. Now in the instant case, in our opinion, Maharashtra’s consent will be required to investigate as the offence has taken place there. However, in a hypothetical situation, in case part offence had taken place within the jurisdiction of Bihar, in that case Bihar could have legitimately transferred the matter to CBI.

Bihar Government has recommended and Union Government has accepted the requested for transfer of matter to CBI. However, since there are doubts with regards territorial jurisdiction (as shown in earlier part of this post) of Bihar Police (Rajeev Nagar Police Station) to investigate and file FIR in the first place, therefore, transferring of FIR to CBI by Bihar would mean doing something that cannot be done directly, indirectly. This would set an unusual precedent where autonomy of concerned State Government to transfer cases to CBI will be affected negatively. Therefore, if FIR is transferred and CBI is allowed to investigate in Mumbai, it would mean that a way to interject specific State consent is to get an FIR in another State (with no nexus to purported offence) registered and then get it to transfer it to CBI. In the instant case, since the jurisdiction is in Mumbai and all relevant events took place in Mumbai, the CBI team will also have to investigate in Mumbai. If Mumbai were to decline consent to CBI to investigate it will lead to a situation where States are at loggerheads and since ‘Public Order’ is a State subject, the State concerned i.e. Maharashtra should have the right to decide if it wishes to transfer the FIR to CBI and not any other State including Bihar whose police had erroneously assumed jurisdiction after filing the FIR.