Court cannot order transfer of probe to CBI while rejecting bail plea: Supreme Court

Courts cannot transfer an investigation to the Central Bureau of Investigation (CBI) while rejecting a bail application, observed the Supreme Court recently [Abhishek and Another v. State of Rajasthan and Others].

A Bench of Justices Abhay S Oka and Augustine George Masih made the observation while setting aside a Rajasthan High Court order that had transferred the investigation into the murder of a 22-year-old man to the CBI while rejecting the bail application filed by the accused.

"Suffice it to say that while rejecting the prayer for grant of bail to the appellants, the High Court ought not to have transferred the investigation to the CBI. The direction is to make a de-novo investigation. Such a direction could not have been issued, while rejecting the prayer for grant of bail to the appellants," the Supreme Court observed in its October 21 order.

The High Court had ordered the CBI probe after observing that the investigation conducted by the State Police and CID appeared to be biased, unfair and incomplete.

The case concerns the murder of a 22-year-old man belonging to an oppressed community who was allegedly killed at the behest of the bajri/sand mafia to 'set an example in the society.'

After the High Court rejected the bail plea of the accused men and ordered a CBI probe into the matter, the accused moved the Supreme Court for relief.

The top court was informed that the State police has already filed a chargesheet in the matter and that out of 67 cited witnesses, 14 have been examined.

Representing the accused (appellants), Senior Advocate Mukul Rohatgi added that the accused had been languishing in jail for over a year and that the State police investigation was midway when the High Court ordered a new probe by the CBI.

The Supreme Court also noted that the accused did not have any criminal antecedents. The Court concluded that a case for bail has been made out and allowed the appeal.

"We have perused the post-mortem notes and the evidence of PW-3, the medical officer. We are satisfied that a case is made for enlarging the appellants on bail, especially when in the counter affidavit filed by the State, antecedents of the appellants are not brought on record," the Court held while setting aside the High Court order.

Advocates Anand Varma, Sandeep Singh Shekhawat and Ayush Gupta, also appeared for the accused.

Additional Advocate General Shiv Mangal Sharma, and advocates Amogh Bansal and Nidhi Jaswal appeared for State of Rajasthan.

Advocates Ajit Kumar Thakur, Ram Nath, Kiran Singh and Sushil Balwada, appeared for the complainant.

Additional Solicitor General Aishwarya Bhati and advocates Mukesh Kumar Maroria, Chitrangda Rastaravara, Shreya Jain, Jagdish Chandra Solanki and Vidya Vijaysingh Pawar appeared for the CBI.

[Read Order]