Sushant Singh Rajput, a very talented actor, died recently in Mumbai. His father has lodged an FIR on July 25 in Patna. The accused Rhea Chakroborty immediately approached the Supreme Court under Section 406 of the Code of Criminal Procedure (CrPC) seeking transfer of the FIR in Patna to Mumbai.

Meanwhile, the Bihar government recommended for a Central Bureau of Investigation (CBI) probe, which was accepted by the Centre in principle. The CBI has now lodged an FIR in the case.

The plea filed by Chakraborty was heard by a Single Judge Bench of Justice Hrishikesh Roy earlier this week.

Two important questions arise for consideration at this juncture:

1. Can investigation of an FIR be transferred u/s 406 CrPC?

2. Can an accused choose the investigating agency which should investigate allegations against her?

Let us attempt answers to these.

Section 406(1) CrPC states as follows –

“406. Power of Supreme Court to transfer cases and appeals.

(1)Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred 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.”

A bare perusal of the provision makes it abundantly clear that an order under this section is to meet the ends of justice, and a particular ‘case or appeal’ can be transferred from a court to court. This Section does not empower the Supreme Court to transfer an investigation from one state to the other. The power under this section can only be used to transfer a case/appeal pending before a court to a court in another jurisdiction.

The CrPC as we know today was notified in 1974. Way back in 1978, the Supreme Court in Ram Chander Singh Sagar v. State of Tamil Nadu held that to move the Supreme Court for transfer of FIR u/s 406 CrPC amounts to ‘travelling the wrong street’.

This has been the settled position of law since then. There are multiple judgments which caution courts against ordinarily interfering at the stage of investigation.

The Supreme Court has time and again held that an investigation cannot be run at the behest of the accused. The accused has no choice in the manner in which she should be investigated. This upturns the entire criminal machinery.

Most recently, in Arnab Goswami’s case (2020), the Supreme Court held that “An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency.”

In Romila Thapar (2018) it was held.

“The consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court monitored investigation”

Similar views have been expressed in Narmada Bai v. State of Gujarat, Sanjiv Rajendra Bhatt v. Union of India and Divine Retreat Centre v. State of Kerala.

Therefore, the petition seeking transfer of investigation from Patna to Mumbai u/s 406 CrPC is untenable in view of the text of Section 406 CrPC, Ram Chander Singh’s judgment and other judgments mentioned here. At best, a petition under Article 32 of the Constitution could have been entertained.

Another interesting aspect of the case is the powers of the Single Judge. The Supreme Court amended its 2013 Rules recently in May 2020 and notified that certain matters related to bail and transfer of cases will be heard by a “judge sitting singly”. This amendment also allows a Single judge to hear ‘Applications for transfer of cases u/s 406 Crpc’.

Therefore, even under the Supreme Court Rules, the Single Judge can hear applications seeking transfer of cases and not transfer of investigations. Also, it will be interesting to see if the two-judge bench decision in Ram Chander Singh is deemed to be binding on the Single Judge.

The author is an Advocate-on-Record at the Supreme Court.