Supreme Court of India
THE STATE OF TAMIL NADU & ORS.versusELEPHANT G. RAJENDRAN & ORS. ETC.
- Citation
- 2019 INSC 523
- Decided
- 12 April 2019
- Disposal
- Case Partly allowed
- Bench
- ASHOK BHUSHAN
Holding
The High Court’s appointment of a retired police officer as Special Officer to continue heading the Idol Wing after superannuation is within the wide jurisdiction of Article 226, and the State’s hurried transfer of the cases to the CBI was not an informed decision and is therefore invalid.
Summary
The Tamil Nadu government, after receiving a complaint from the Hindu Religious and Charitable Endowments Commissioner, ordered on 01.08.2018 that all idol‑theft investigations being handled by the Idol Wing of the CID be transferred to the CBI. The Madras High Court quashed that order and, under Article 226, appointed the retiring Inspector General of Police, A.G. Ponn Manickavel, as a Special Officer to continue heading the Idol Wing for one year, directing the State to pay him an honorarium. The State appealed, arguing that the High Court exceeded its jurisdiction by appointing a retired officer and that the transfer to the CBI was justified. The Supreme Court held that the High Court’s directions were within its plenary powers under Article 226 and that the transfer to the CBI was hasty, uninformed, and therefore invalid. Consequently, the appeal was partly allowed: the High Court’s order was modified, certain directions were deleted, and the observation that the 29.11.2018 government order was redundant was set aside.
Issues considered
- Whether the State of Tamil Nadu was justified in transferring all idol‑theft cases to the CBI by the G.O. dated 01.08.2018.
- Whether the High Court’s judgment quashing the 01.08.2018 Government order is sustainable.
- Whether the High Court, exercising jurisdiction under Article 226, can appoint a police officer after superannuation to head a Special Investigation Team.
- Whether the High Court’s direction for respondent No.2 to continue heading the Idol Wing after superannuation is sustainable.
- Whether the ten directions issued by the High Court are contrary to law and beyond the scope of Article 226.
- Whether the High Court could declare the Government order dated 29.11.2018 as redundant without a challenge before it.
Legislation cited
Subjects
Article 226Special Investigation TeamIdol theftHindu Religious and Charitable EndowmentsCBI transferRetired police officerSuperannuationPublic Interest LitigationJurisdiction of High CourtsParens patriae
Judgment
[2019] 5 S.C.R. 771 771
THE STATE OF TAMIL NADU & ORS. A
v.
ELEPHANT G. RAJENDRAN & ORS. ETC.
(Civil Appeal Nos. 3918–3919 of 2019)
APRIL 12, 2019 B
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959: Idol theft cases – Idol Wing of Crime Investigation Department
handling investigation, detection and follow up of such cases –
C
Hindu Religious and Charitable Endowments Department of the
State controlling and managing the temples, idols and artefacts –
Letter by Commissioner, Hindu Religious and Charitable Endowments
to Director General of Police pointing out various complaints of
his officers received by him against Idol Wing of Police – By G.O.
dated 01.08.2018, State of Tamil Nadu transferring all the under D
investigation cases being investigated by the Special Team constituted
for Idol theft cases and all such future cases to the CBI – Justification
of – Held: It was known fact that there were allegations and FIRs
against few officers of HR & CE and complaints submitted by the
Commissioner against the Idol Wing of the Police ought not to have
E
been accepted outrightly without conducting any enquiry – Even if
there was some truth in the complaints made by the Commissioner,
the same ought to have been enquired and informed decision ought
to be taken by the Government – On a single letter of the
Commissioner suddenly no opinion could have been formed that
Idol Wing of the Department is not doing its job – Decision to F
transfer the cases to CBI was hurriedly taken within one day on a
complaint received by the Commissioner without making any inquiry
and the decision of the Government cannot be said to be an informed
decision – When the matters pertaining to Idol Thefts were already
under investigation by SIT constituted under the order of the High
G
Court, it was appropriate that the State Government ought to have
apprised the Court before issuing any Government order for
transferring the cases – In any view of the matter looking to the
large number of cases of idol thefts cases and cases to come in
future regarding idol thefts, the CBI was not appropriate
H
771
772 SUPREME COURT REPORTS [2019] 5 S.C.R.
A investigating agency to be requested by the State – CBI itself has
expressed its inability to undertake such huge exercise – Thus, the
High Court did not commit any error in quashing the Government
order dated 01.08.2018.
Constitution of India:
B Art. 226 – Jurisdiction under – Exercise of – Respondent no.
2-police officer, heading Idol Wing has been supervising Idol theft
cases and efficiently traced and recovered several idols worth
several crores – Direction by the High Court appointing respondent
no 2 after his superannuation to head a Special Investigation Team
C (SIT) to carry out investigations and other functions, which can be
exercised by a police officer under CrPC – Sustainability of – Held:
Jurisdiction of constitutional courts u/Arts. 226 and 32 can be used
to forge new methodology to achieve the constitutional objectives –
For sufficient reason investigation can be handed over to a person
who is retired or no longer in employment – Government can issue
D orders enabling respondent no. 2 to carry on functions as per the
direction – High Court in exercise of jurisdiction u/Art. 226 could
very well direct respondent No.2 to head the SIT to carry out
investigation and other functions after attaining the age of
superannuation – Thus, the directions of the High Court to continue
E respondent No.2 in Idol Wing of CID after his superannuation is
sustainable.
Art. 226 – Jurisdiction under – Exercise of, by the High Court
– Scope and ambit of – Held: Power given to the High Court u/Art.
226 is of very wide nature which does not contain any fetter except
F self-imposed restrictions – High Court while exercising jurisdiction
u/Art. 226 shall not issue any direction which is contrary to law.
Partly allowing the appeal, the Court
HELD: 1.1 In the letter dated 31.07.2018 by Commissioner,
HR & CE to Director General of Police, the Commissioner
G pointed out various complaints of his officers which were received
by him in writing and orally. The Commissioner stated that HR
and CE Department is facing a crisis. The Commissioner wrote
to the Director General to ensure a fair and confidential
investigation and bring the culprits to book, without damaging
the reputation of honest officials and the Department. By a letter
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 773
RAJENDRAN & ORS. ETC.
of 31.07.2018 itself Additional Director General of Police made A
recommendation to the Director General of Police to transfer all
cases under investigation being investigated by the Special Team
constituted for the Idol Theft cases to the CBI. The Director
General on the next day i.e. 01.08.2018 recommended for
transferring the cases to the CBI, on the same day the GO dated
B
01.08.2018 was issued. The entire process for transferring cases
to the CBI was completed within one day on complaints submitted
by the Commissioner. The High Court order dated 21.07.2018
has directed for holding departmental inquiry against certain
officers of HR & CE. FIRs were registered against the officers
of the HR & CE Department and other accused. Thus, it was C
known fact that there were allegations and FIRs against the few
officers and complaints submitted by the Commissioner against
the Idol Wing of the Police ought not to have been accepted
outrightly without conducting any enquiry. Even if there was some
truth in the complaints made by the Commissioner, the same
D
ought to have been enquired and informed decision ought to be
taken by the Government. The Idol Wing had been carrying out
its work for the last more than three decades, several Idols were
recovered and cases launched and prosecutions were
accomplished. On a single letter of the Commissioner suddenly
no opinion could have been formed that Idol Wing of the E
Department is not doing its job. The Higher Police authorities
and State was fully competent to take action against any officer of
the Idol Wing, if any excess or misdeeds were reported against
any officer of the Idol Wing. The letter of the Commissioner dated
31.07.2018 does not refer to any written complaint by HR & CE
F
Department to Police, higher authorities or the Government in
the above regard. The decision to transfer the cases to CBI was
hurriedly taken within one day on a complaint received by the
Commissioner without making any inquiry and the decision
of the Government cannot be said to be an informed decision.
[Para 32][798-F-H; 799-A-E] G
1.2 The High Court in the impugned judgment gave detail
of reasons for quashing the order dated 01.08.2018. The High
Court in its order dated 21.07.2017 has already directed to
constitute a SIT of the Officers of the Idol Wing to carry on the
investigation and follow up pending trial. The compliance of the H
774 SUPREME COURT REPORTS [2019] 5 S.C.R.
A said order was under consideration before the Court. The
Additional Chief Secretary to the Government, after receiving
letter from Additional Director General of Police, wrote a letter
dated 01.08.2018 to the Additional Advocate General in making
a request. The Advocate General brought to the notice of the
Bench of the letter dated 01.08.2018 and wrote back to the
B
Additional Chief Secretary to the Government that Division Bench
of the High Court has observed that communication, decisions
or orders be placed before the Court in the next hearing to be
held on 08.08.2018. When the matters pertaining to Idol Thefts
were already under investigation by SIT constituted under the
C order of the High Court, it was appropriate that the State
Government ought to have apprised the Court before issuing
any Government order for transferring the cases. In any view of
the matter looking to the large number of cases of Idol Thefts
cases and cases to come in future regarding Idol Thefts, the CBI
was not appropriate investigating agency to be requested by the
D
State. The CBI itself has expressed its inability to undertake
such huge exercise, the High Court did not commit any error in
quashing the Government order dated 01.08.2018. [Para 35,
36][800-E-H; 801-A-C]
2.1 Article 226 of the Constitution of India confers to the
E High Courts wide powers in the matter of issuing writs which
they never possess before. Article 226 of the Constitution is
couched in very wide words, power given to the High Court are
both plenary and inherent. The power under Article 226 is not
confined only to issue specified writs but power conferred to the
F High Court is to issue directions, orders or writs including writs
in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari or any of the rights conferred by Part III
and for any other purpose. The power given to the High Court
under Article 226 is power of very wide nature which does not
contain any fetter except self-imposed restrictions. It is well
G settled that the High Court while exercising jurisdiction under
Article 226 shall not issue any direction which is contrary to law.
[Para 38, 42][801-G-H; 802-A-B; 803-F]
Constitution of India by Durga Das Basu Vol.6 8th Edn
2010 – referred to.
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 775
RAJENDRAN & ORS. ETC.
2.2 Different High Courts and this Court have passed A
several orders constituting Special Investigation Team to carry
out investigations in cases where such requirement was found
necessary. Retired Police Officers have been included to be part
of SIT or to head a SIT. The jurisdiction of constitutional courts
under Article 226 and Article 32 can be used to forge new
B
methodology to achieve the constitutional objectives. No fetter
can be read in the jurisdiction under Article 32 or 226. For
sufficient reason investigation can be handed over to a person
who is retired or no longer in employment. The functions which
are to be performed by that person is under authority of Court’s
order. There may be varied situations and circumstances where C
a former officer is entrusted with an investigation or any other
function to achieve an object or purpose. When the constitutional
courts direct particular officer to carry on specific job that order
cannot be treated to be put that person in office of that post with
all necessary consequences. The particular object is entrusted
D
or only a specific job is entrusted to the officer which he has to
carry. The Court in issuing such direction neither creates any
ex-cadre post nor affects the post of officer by giving any kind of
appointment to a post. The violation of All India Services Act,
1951 or Rules framed thereunder cannot be read in entrustment
of specific job to a retired officer. All India (Death-cum-Retirement E
Benefits) Rules, 1958 of the extension in service to the
incumbents of the posts of the Cabinet Secretary, Defence
Secretary, Home Secretary, Director, Intelligence Bureau,
Secretary, Research and Analysis Wing and Director, Central
Bureau of Investigation for such period as it may deem proper.
F
There cannot be any quarrel to the said provision nor applicability
of the provision in facts of the instant case. In the instant case
the Government has not decided to extend the services of
respondent No.2. The High Court issued direction appointing
respondent No.2 as a Special Officer to head Idol Wing-CID,
Chennai to deal with the cases of theft of Idols and antiques in all G
stages, for a period of one year, after his superannuation. The
Court further directed “the Government to pass orders to that
effect”. The Court clearly intended that in the above regard
Government may pass appropriate orders. It is open for the
Government to issue orders enabling respondent No.2 to carry
H
776 SUPREME COURT REPORTS [2019] 5 S.C.R.
A on functions as per the direction. The Attorney took exception
to direction No.3 by which it is directed that respondent No.2
shall draw the same pay and benefits that were available to him at
the time of his retirement as Special Officer. On objection being
raised to the said direction, the counsel for respondent No.2
submitted that respondent No.2 is ready to carry on and discharge
B
his duties as per orders of this Court without drawing any pay
and benefits as .directed by the High Court. The High Court
instead of issuing direction No.3 ought to have given option to
the State Government either to continue/re-employ respondent
No.2 or in alternative fix some honorarium for the duties
C entrusted on respondent No.2. The State Government having
not passed any order in consequence of which respondent No.2
may continue in the office of Inspector General of Police, justice
would be served when the State Government is directed to pay
some honorarium during the period respondent No.2 performed
his duties under the order of the Court in addition to his pension.
D
However, it is made clear that any pay and benefits which have
already been extended to respondent No.2 shall neither be
recovered nor adjusted. [Paras 48, 53][808-C; 811-B-H;
812-A-F]
2.3 The High Court in exercise of jurisdiction under Article
E 226 can very well direct respondent No.2 to head the SIT to carry
out investigation and other functions after attaining the age of
superannuation. The directions of the High Court to continue
respondent No.2 in Idol Wing of CID after his superannuation is
sustainable. [Para 54][812-G]
F 2.4 The High Court in the impugned judgment before
issuing a direction to continue respondent No.2 in the Idol Wing
has thoroughly examined the credential of respondent No.2. The
High Court has noticed that there are no allegations against
respondent No.2 as to come to the conclusion that he was not a
G fit person to be directed to continue in the idol wing except that
he has not submitted the report to Additional Director General
of Police. The reasons for directing respondent No.2 to continue
have been set out by the High Court. The High Court has taken
note of the fact that the Government order dated 01.08.2018
transferring the cases to CBI having been quashed, it has become
H just and necessary for the Court as the custodian of the Idols, in
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 777
RAJENDRAN & ORS. ETC.
the role of parens patriae to exercise its jurisdiction to formulate A
a solution. In paragraph 36 the Court has noticed the details of
the work accomplished by Idol Wing and the Idols recovered by
the SIT headed by respondent No.2. The High Court had after
due examination of all relevant documents taken a decision to
continue respondent No.2 to head the Idol Wing. The High Court
B
has referred to various judgments of the High Court and this
Court where work and conduct of respondent No.2 was
appreciated. [Paras 56–58][813-D-F; G-H; 814-F; G-H]
2.5 The complaints which have been now referred to and
relied by the appellant are the complaints which have been
submitted after the judgment of the High Court. They are the C
complaints which were submitted even after the filing of the SLP
in this Court. The High Court in its direction has observed that if
there are materials against respondent No.2 the same can be
placed before the High Court for further direction. On the
strength of the complaints which are subsequently submitted after D
the judgment of the High Court, the submission of the appellant
that respondent No.2 was not a fit person to be allowed to head
the Idol Wing after 30.11.2018 cannot be accepted. In so far as
submission of the appellant that after filing of the affidavit on
27.11.2018 by the respondent No.2 no opportunity was given to
the appellant, it is useful to extract the judgment where High E
Court observed that as an affidavit was filed on 27.11.2018, again
a direction was issued on similar lines by this Court to place any
materials if available before this Court. However, till date no such
materials have been placed before this Court. The High Court
had given opportunity to place the materials, if any. The High F
Court did not commit any error in directing respondent No.2 to
continue to head the Idol Wing after his superannuation.
[Para 59][815-B-F]
Dwaraka Nath v. Income-tax Officer AIR 1966 SC
81: 1965 SCR 536 ; Rohtas Industries Ltd. And another G
v. Rohtas Industries Staff Union and others (1976) 2
SCC 82 : [1976] 3 SCR 12 ; Air India Statutory
Corporation and others v. United Labour Union and
others (1997) 9 SCC 377 : [1996] 9 Suppl. SCR 579 ;
Vineet Narain and others v. Union of India and another
H
778 SUPREME COURT REPORTS [2019] 5 S.C.R.
A (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ; M.C.
Mehta and another v. Union of India and others 1987
(1) SCC 395 : [1987] 1 SCR 819 ; Guruvayoor
Devaswom Managing Committee and another v. C.K.
Rajan and others (2003) 7 SCC 546 : [2003] 2 Suppl.
SCR 619; Ranjitsing Brahmajeetsing Sharma and Ors.
B
v. Kisan Baburao Hazare and Ors. 2004 (3) MhLJ 760;
R. Sankarasubbu v. The Commissioner of Police,
Egmore, Chennai 2013 (1) CTC 1 ; Advocates
Association, Bangalore v. Union of India and others
(2013) 10 SCC 611 : [2013] 10 SCR 813 ; Sunita Devi
C and Another v. Union of India and others (2018) 3 SCC
664 ; Board of Control for Cricket in India v. Cricket
Association of Bihar and others 2014 (7) SCC 385 –
referred to.
3. By direction No.1, respondent No.2 was directed to
D function as Special Officer to head Idol Wing-CID, Chennai on
his superannuation on 30.11.2018. The Government was directed
to pass orders to that effect. It has been held that respondent
No.2 could have been directed to work as a Special Officer to
head Idol Wing-CID, thus, there is no error in direction No.1.
With regard to direction No.2, Special Team was already
E constituted by the earlier order of the High Court dated
21.07.2017 which was directed to be continued to which direction
no exception can be taken. With regard to direction No.3, it was
directed to respondent No.2 to draw the same pay and benefits
that were available to him at the time of his retirement for the
F entire tenure of his term as Special Officer. Instead of such
direction, the High Court ought to have given an option to the
State Government either to pass an order for re-employment/re-
engagement or the liberty ought to have been given to State to
fix some honorarium in addition to pension which would have
been drawn by respondent No.2. During the course of hearing it
G was submitted for respondent No.2 that he is ready to carry on
his duty as entrusted by the High Court even without receiving
any emoluments. In the facts and circumstances of the case,
direction No.3 is modified to the effect that the State shall fix a
honorarium to be paid to respondent No.2 in addition to pension
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 779
RAJENDRAN & ORS. ETC.
to be drawn by him. In the event any amount has already been A
paid to respondent No.2 in pursuance to the direction of the High
Court, the same shall not be recovered and adjusted. By direction
No.4 the High Court directed the Special Officer to investigate
the cases thoroughly and submit all the reports before the Court
in a sealed cover to enable the Court to monitor the investigation.
B
It is noticed that an Additional Director General of Police was
appointed to head the Idol Wing by order dated 29.11.2018, it
was not necessary for the High Court to burden itself with
scrutinizing each and every report and requiring each and every
report to be submitted before the Court. There being a higher
Officer posted in the Idol Wing, progress and result of the C
investigation ought to have been reported to Additional Director
General of Police and the report in the High Court was necessary
when certain directions were required by the Special Officer.
Direction No.4 is modified to the effect that report of progress of
the investigation shall be submitted to the Additional Director
D
General of Police of Idol Wing and report to the High Court may
be submitted by the Special Officer only when any further
directions are required from the High Court. With regard to
direction No.5, by this direction the Special Officer is directed to
continue to not only investigate and file charge sheets and
prosecute in the pending cases but also to continue to do so in E
the cases arising in future during his tenure. No exception can
be taken. The direction No. 6 which requires CBI and other
agencies of Central Government shall continue to give appropriate
support to the Special Officer. No exception can be taken since
CBI itself sent letter dated 19.09.2018 communicating its support.
F
With regard to direction 7 serious objection has been raised by
the Attorney General. He submits that the said direction gives
exemption to respondent No.2. The respondent No.2 cannot be
held above law. No one is above the law. The High Court has
given liberty to the State or any competent authority to place the
materials before the Court for further direction if there are any G
materials against respondent No.2. The liberty given in direction
No.7 amply protects the interest of the State which needs no
interference. Direction No.8 pertains to communications to
concerned Departments to extend co–operation to the Special
H
780 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Team with which no exception can be taken. It is to be noted that
Idol Wing has been created by the State in 1983 and for several
decades Idol Wing has been continuing without provision of any
separate division to handle the financial aspects. There was no
such requirement to issue any direction to create such division
to handle the financial aspects. The Idol Wing has to be run as
B
per budget allocation and in any case of requirement it is always
open to the higher Police authorities and State Government to
do the needful. Direction No.9 as regards financial aspects is
deleted. Direction No.10 is general direction to which no
exception can be taken. [Para 60][815-G-H; 816-A-H; 817-A-H;
C 818-A-C]
4. By the Government order dated 29.11.2018 the post of
Inspector General of Police was upgraded as Additional Director
General of Police who was appointed by the State Government
on 29.11.2018. The order dated 29.11.2018 being not under
D challenge in the writ petition, it was not necessary for the High
Court to make any observation in that regard. The High Court
was not right in observing that order dated 29.11.2018 has become
redundant. The observation made by the High Court in paragraphs
47 and 48 that the order dated 29.11.2018 has become redundant
is disapproved. Order dated 29.11.2018 was a Government order
E which was not challenged in the writ petition, the same shall
remain effective that the Idol Wing shall be headed by the
Additional Director General of Police appointed on 29.11.2018.
However, the Special Officer shall take all appropriate steps along
with his Team and he shall submit report to the Additional Director
F General of the result of the investigations so that appropriate
further action be taken. [Para 62][819-B-E]
5. Insofar as filing of the statutory reports as per the
procedure prescribed in the Code of Criminal Procedure,
necessary reports have to be filed by the officer authorized as
G per Code of Criminal Procedure. There might arise exceptional
cases where the direction for appointment of retired officers may
be unavoidable to achieve the goal of justice but the High Court
may resort to the power under Article 226 only after weighing all
pros and cons and after exhausting all options and as a matter of
last resort. Taking services of a retired police officer or any other
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 781
RAJENDRAN & ORS. ETC.
retired personnel is not to be normally resorted to since in the A
State concerned, there is always no dearth of competent and able
officers, hence whenever the Court finds it necessary to take
assistance of services of the retired officers or personnel, it should
be with necessary caution and resorted to only when there are
very valid and unavoidable circumstances. [Para 63][819-F-H;
B
820-A-B]
Case Law Reference
1965 SCR 536 referred to Para 39
[1976] 3 SCR 12 referred to Para 40
C
[1996] 9 Suppl. SCR 579 referred to Para 41
[1997] 6 Suppl. SCR 595 referred to Para 44
[1987] 1 SCR 819 referred to Para 46
[2003] 2 Suppl. SCR 619 referred to Para 47
D
2004 (3) MhLJ 760 referred to Para 48
2013 (1) CTC 1 referred to Para 49
[2013] 10 SCR 813 referred to Para 50
(2018) 3 SCC 664 referred to Para 51 E
2014 (7) SCC 385 referred to Para 52
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3918-
3919 of 2019.
From the Judgment and Order dated 30.11.2018 of the High Court
F
of Judicature at Madras in Writ Petition Nos. 20392 and 20963 of 2018.
K. K. Venugopal, AG, Balaji Srinivasan, AAG, Mukul Rohatgi, R.
Basant, Jaideep Gupta, Mohan Parasaran, Sr. Advs., B. Vinodh Kanna,
Ms. Pallavi Sengupta, Ms. Valarmathi, Ms. Swati Ghildiyal, Ms. Shraddha
Deshmukh, Ankur, B.V. Balramdas, Mayilsamy K., K. Muthu Ganesh
Pandian, N. R. Maurya, P. Somasundram, Ms.Vrinda Grover, Dr. Anindita G
Pujari, Soutik Banerjee, Ms. Aarti Krupa Kumar, Gagan Gupta, R. Anand
Padmanabhan, Prawal Chaturvedi, Ms. Nishaka Tyagi, Aravind S., Shashi
Bhushan Kumar, Ashwin Kumar D.S., Aditi Dani, D. L. Chidananda, G.
S. Mani, Lewish Edward, R. C. Sharma, R. Sathish, Ms. Purbita Mitra,
R. Naveenraj, K. V. Vijayakumar, Advs. for the appearing parties. H
782 SUPREME COURT REPORTS [2019] 5 S.C.R.
A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. The State of Tamil Nadu alongwith its functionaries have filed
these appeals against the common judgment dated 30.11.2018 passed
by the High Court of Madras in Writ Petition Nos. 20392 and 20963 of
B 2018 filed by the respondents as PIL (Public Interest Litigation).
3. Tamil Nadu is a State, which is known for its majestic temples,
its rich culture and heritage. Idols consecrated in its various temples
have their own significance, rich heritage and some of the idols dates
back to 1500 to 2000 years back. There have been several instances for
C theft of precious idols and artefacts in the State of Tamil Nadu, which
alarmed the State Government. The State Government vide its G.O.Ms.
No. 2098, Home(Pol-IV) Department dated 07.10.1983 formed an Idol
Wing of Crime Investigation Department (CID). The temples in Tamil
Nadu are administered under the enactment namely, Tamil Nadu Hindu
D Religious and Charitable Endowments Act, 1959 (hereinafter referred
to as “Act, 1959”). Hindu Religious and Charitable Endowments
Department (hereinafter referred to as “HR & CE Department”) of the
State controls and administers various temples in the State. The HR &
CE Department of the State keeps a direct control and management of
the temples, its properties, idols and artefacts etc.
E
4. One Mr.A.G. Ponn Manickavel, the respondent No.2 herein,
who shall hereinafter be referred to as “respondent No.2” was appointed
as Deputy Inspector General of Police, Idol Wing, Chennai on 11.02.2012,
which was part of Economic Offences Wing of the Tamil Nadu Police.
The role of the wing is basically for efficient investigation, detection and
F follow up of the Idol theft cases and follow the Court cases concerning
them. Respondent No.2 was continued in the Idol Services Wing since
then.
5. The two individuals namely, Mr. R. Venkataraman and Mr.
Elephant G. Rajendran, the respondent No.1 herein, filed petitions before
G the High Court of Madras under Section 482 Cr.P.C. being Crl.O.P. No.
8960 of 2017 and Crl.O.P. No. 12060 of 2017. In Crl.O.P. No.8960 of
2017, it was prayed for transferring the investigation regarding theft of
06 idols from the HR & CE Department to the Idol Wing of the Tamil
Nadu Police and in Crl.O.P. No.12060 of 2017, the prayer was made to
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 783
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
transfer an FIR pertaining to an Idol theft from the Idol Theft Wing, A
CID, Chennai to the Crime Branch, CID, Chennai.
6. The case filed by the petitioner in Crl.O.P. No. 8960 of 2017
was with regard to Sri Pasupatheeswarar Temple in Thanjavur District,
which was built during the Chola Reign about 1500 to 2000 years ago,
which according to petitioner houses several ancient idols of temples. B
Allegation was made that 06 of such idols were missing belonging to a
temple with regard to which complaints were made to police officers
and officials of HR & CE Department. Despite several complaints to
police officers and officials of HR & CE Department, no FIR has been
lodged and no action has been taken to punish the erring officials of the
HR & CE Department. It was further pleaded that officials of HR & C
CE Department are not appropriate authority to investigate the offence
of theft, hence appropriate direction was sought for.
7. Mr. Elephant G. Rajendran, who is respondent No.1 in this
appeal, had filed Crl.O.P. No. 12060 of 2017 making allegation that a
police official came into possession of six Idols during the course of their D
investigation had sold the Idols for Rs.6 Crores. Despite the fact that
FIR had been lodged against the accused, they have been promoted and
no further action was taken. Further allegation was that investigation by
a subordinate officer of the same wing cannot be handled effectively.
Allegations were also made that Idols worth several crores of rupees E
were sold by the trustees in collusion with the HR & CE authorities.
8. Madras High Court disposed of both the Crl.O.P. petitions by
its judgment dated 21.07.2017. the High Court during the hearing had
summoned the Inspector General of Idol Wing, who at that time was
second respondent. Inspector General of Idol Wing appeared before F
the Court and brought to the notice of the Court, various difficulties and
shortcomings faced by the Idol Wing due to which steps for detection of
Idol thefts and bringing the culprits before law is being hampered. During
the course of hearing on 30.06.2017, it was brought before the knowledge
of Madras High Court that respondent No.2, who was working as
Inspector General of Police, Idol Wing has been transferred. Court G
observed that officer, the respondent No.2 has been supervising the cases
and has efficiently traced and recovered several Idols worth several
crores. Court further observed that it is not that the succeeding officer
is less efficient, but considering that Respondent No.2 and his team have
H
784 SUPREME COURT REPORTS [2019] 5 S.C.R.
A extensively travelled throughout the country and are aware of the modus
operandi of the culprits, for the sake of continuity, speedy completion of
the investigation and completion of the pending cases, respondent No.2
must continue despite the work assigned presently. The Madras High
Court on 21.07.2017 issued 20 directions to the State of Tamil Nadu, out
of which first 04 directions are as follows:-
B
“(i) The Chief Secretary of the State of Tamil Nadu must issue
appropriate orders within a week for the creation of a
special camp at Tiruchirappalli headed by Mr. A.G. Ponn
Manickavel, IPS, Inspector General of Police with other
members of Idol wing, who associated him earlier for the
C completion of trial in the pending cases in the State and
needless to say that necessary infrastructure, staff and
transportation, vehicle, fuel etc. from time to time are to be
provided. The said officer can place his representation
immediately intimating required assistance and the team
D members required by him to the Chief Secretary and on
such representation, the same shall be provided forthwith.
(ii) The cases pending on the file of various courts in the State
of Tamil Nadu prosecuted by the Idol wing are hereby
transferred to the file of the learned Additional Chief Judicial
E Magistrate, Kumbakonam for effective and speedy disposal
of the cases, on day to day basis.
(iii) The Inspector General of Police Mr. A.G. Ponn Manickavel,
IPS and all the officers of the cases connected with Idol
wing, CID are directed to continue to investigate and follow
F up all the cases under investigation, pending trial, till the
disposal by the learned Additional Chief Judicial Magistrate,
Kumbakonam.
(iv) The team as now ordered by this Court headed by the
Inspector General of Police Mr. A.G. Ponn Manickavel,
G IPS, shall continue to follow up those cases in addition to
their present and future assignments, wherever they are
posted.
............”
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 785
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
9. The Director General of Police aggrieved by the order dated A
21.07.2017 passed by the Madras High Court filed a SLP (Crl.) Nos.
6139-6140 of 2017, which was disposed of by this Court by its order
dated 01.09.2017 in following manner:-
“Having heard Mr. Mukul Rohatgi, learned Senior Counsel for
the petitioners and Mr. J. Sai Deepak Iyer, learned counsel for B
the respondents and upon perusal of the record, we consider it
appropriate to delete the findings pertaining to the mala fide nature
of the transfer of Inspector General of Police Mr. A.G. Ponn
Manickavel. We order accordingly.
Nonetheless, the order regarding the transfer of Inspector C
General of Police Mr. A.G. Ponn Manickavel, shall remain intact.
With the aforesaid observations, the special leave petitions stand
disposed of.
As a sequel to the above, pending interlocutory applications, if
any, stand disposed of.” D
10. This Court did not interfere with the directions of Madras
High Court dated 21.07.2017 directing the respondent No.2 to continue
to head the Idol Wing of the CID. The High Court vide its order dated
21.07.2017 had not disposed of the matter finally rather it postponed the
matter for reporting compliance. It appears that before the High Court, E
it was brought to the notice that State has not complied with various
directions issued on 21.07.2017 and there are obstacles created in carrying
out various functions of the Idol Wing. It is further to be noticed that
several FIRs were registered leading to arrest of several culprits including
some officers of HR & CE Department. In order dated 21.07.2017, in F
Crl.O.P. No. 8690 of 2017 and Crl.O.P. No. 12060 of 2017, High Court
made certain observations about not providing proper infrastructure to
the Court appointed idol Wing.
11. On 31.07.2018, Commissioner, HR & CE Department wrote
a letter to Director General of Police, Chennai. In the D.O. letter,
G
Commissioner stated that Idol Wing of the Police is harassing the officials
of HR & CE Department and they are being threatened with filing of
the FIRs. Reference to certain complaints made by officers of HR &
CE Department brought to the notice of the Commissioner were also
narrated. The Commissioner requested the State to take necessary action
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786 SUPREME COURT REPORTS [2019] 5 S.C.R.
A to ensure a fair and confidential investigation and bring the culprits to
book, without damaging the reputation of honest officials and the
Department. Commissioner also requested that early charge sheets be
filed and prosecution be undertaken to enable disposal of the cases,
early apprehension of criminals and restoration of the Idols to the
respective temples.
B
12. On the said letter, Additional Director General of Police on
same date, i.e., on 31.07.2018 wrote to the Director General of Police
mentioning that during investigation of cases, several senior officers and
other staff belonging to HR & CE Department were also arrested. The
Additional Director of Police recommended that all cases under
C investigation by the special team constituted for Idol theft cases and all
such future cases may be transferred to the Central Bureau of
investigation. Director General of Police on 01.08.2018 wrote to Additional
Chief Secretary to the Government concurring with the views of
Additional Director General of Police to transfer the cases to Central
D Bureau of Investigation. On 01.08.2018, the Additional Chief Secretary
to the Government wrote to Additional Advocate General of the High
Court of Madras bringing into notice the development. In the end of the
letter, it was stated by Additional Chief Secretary to the Government
that High Court be apprised about the decision of the Government and
when the above cases are taken up for hearing and whether any orders
E from the Court are required. On 01.08.2018 itself, the Additional Advocate
General of Tamil Nadu brought to the notice of Additional Chief Secretary
that he has brought into the notice of the Madras High Court about the
communication dated 01.08.2018 on which the Bench has observed that
the communication, decisions or orders, as the case may be placed before
F the Court on its next hearing on 08.08.2018. On 01.08.2018 itself, the
State Government issued an order according its consent to transfer all
cases being investigated by the Special Team constituted for the Idol
cases and all such future cases to the Central Bureau of Investigation.
13. Two Writ Petitions being Writ Petition No.20392 of 2018 –
G Elephant G.Rajendran Vs. The State of Tamil Nadu and Writ Petition
No. 20963 of 2018 – Traffic Dr. K.R.Ramaswamy Vs. State and Others,
has been filed in the Madras High Court praying for quashing the
Government Order dated 01.08.2018, transferring the investigation to
the Central Bureau of Investigation. The above writ petitions were
heard by the Division Bench and the Division Bench of the High Court
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 787
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
vide its judgment dated 30.11.2018 allowed both the above writ petitions A
quashing the Government Order dated 01.08.2018 and issued several
directions. The conclusion of the Court is recorded in paragraph No.45.
In paragraph Nos.45 to 48 of the judgment, the High Court has held:-
“45. This Court is empowered under Article 226 of the Constitution
to pass any orders to secure the ends of justice. We have already B
expressed our anguish over the conduct of the State in handling
the matter insensitively. The directions issued by this Court and
confirmed by the Hon’ble Supreme Court have not been complied
in full. We have also expressed that we are satisfied with the
credentials of the Mr.A.G.Pon Manickavel, I.P.S, Inspector General
of Police and the steps taken by him in the process of investigation. C
Hence, the following directions are given, which shall be
implemented by the State forthwith:
(1)Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police
is hereby appointed as a Special Officer to head Idol
Wing~CID, Chennai to deal with the cases of theft of D
idols and antiques in all stages, for a period of one year, who
shall assume charge on his superannuation on 30.11.2018
forthwith and function from the same camp with the same
facilities. The Government shall pass orders to that effect. It is
made clear that any delay by the Government in passing E
appropriate orders, shall not curtail the powers of Mr.A.G.Pon
Manickavel, I.P.S. to head the team and investigate the cases
and take appropriate action as per law.
(2)The members of the Special team constituted on the basis
of the orders of this Court on 21.07.2017 shall continue to be F
part of the team and any such member as requested by
Mr.A.G.Pon Manickavel, I.P.S., shall be spared by the
Government from the Tamil Nadu Police Force.
(3)Mr.A.G.Pon Manickavel, I.P.S., Inspector General of Police,
shall draw the same pay and benefits that were available to G
him at the time of his retirement for the entire tenure of his
term as Special officer.
(4)The Special Officer, hereby appointed shall investigate the
cases thoroughly and periodically submit all the reports before
H
788 SUPREME COURT REPORTS [2019] 5 S.C.R.
A the appropriate Court as per law and also before this Court in
a sealed cover to enable this Court to monitor the investigation.
(5)The Special Officer and his team shall continue to not only
investigate and file charge Sheets and prosecute in the pending
cases but shall also continue to do so in the cases arising in
B future during his tenure or until further orders from this Court.
(6)The CBI and other agencies of Central Government shall
continue to give appropriate support to the Special officer and
his team.
(7)No action or enquiry against the Special officer or any
C member of his team shall be initiated except with the
concurrence of this Court. If any materials are there to rely
upon for necessary action, the same be placed before this court
for further directions.
(8)The State shall forthwith issue appropriate communications
D to concerned Departments of the State including the HR &
CE Department to extend their fullest co~operation to
the Special Team and furnish necessary particulars and
documents sought by them.
(9) The State shall create a separate Division to handle the
E financial aspects of the functioning of the team so as to ensure
that no action is delayed for paucity of funds and separate
account is to be created for this purpose and reasonable amount
must be available to meet out the daily overheads.
(10)All the directions issued by this Court shall be implemented
F without any delay or demur and a report shall be submitted
regarding the action taken.
46.With the above directions, the writ petitions are allowed.
Consequently, other connected petitions in W.M.P.Nos.23975,
23976, 24609 and 26868 of 2018 are closed. No costs.
G 47.When we are about to pronounce this order, the petitioner in
WP.No.20392 of 2018 produced a copy of the proceedings issued
by the Government of Tamil Nadu in Police Note No.SC/19/2018
dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh,
IPS, Additional Director General of Police/Chief Vigilance Officer,
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 789
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
Tamil Nadu Newsprint and Papers Limited, Karur has been A
transferred and posted as Additional Director General of Police,
Idol Wing, CID, Chennai by upgrading the post of Inspector General
of Police, Idol Wing CID.
48.We are of the view that the State all along, is not inclined to
continue with the investigation of idol theft cases as the same B
were transferred to CBI despite pendency of the stay order of
this Court. It is also pertinent to note that after the orders were
reserved, they have upgraded the post of the Additional Director
General of Police and appointed an officer, by order dated
29.11.2018, which action is inappropriate and it would amply prove
the transfer of cases in a most hurried manner within a single day C
i.e., on 01.08.2018. Similarly, the manner in which the present
order dated 29.11.2018 has been passed, will speak for itself.
Hence, notwithstanding the order dated 29.11.2018 passed by the
Government, which has become redundant, Tr.A.G.Pon
Manickavel shall take charge as Special Officer to head the Idol D
Wing as ordered by us, in order to preserve the idols as well as
recovery of the stolen idols to uphold the cultural heritage of this
land.”
14. State of Tamil Nadu aggrieved by the said judgment has filed
these appeals. E
15. Shri K.K. Venugopal, learned Attorney General has appeared
for the State of Tamil Nadu. Shri Mukul Rohatgi, learned senior counsel
has appeared for Director General of Police, Tamil Nadu. We have
heard Shri R. Basant, learned senior counsel appearing for the respondent
No.1 and we have also heard learned counsel, who has appeared for the F
PIL petitioner– Traffic Dr. K.R. Ramaswamy. We have also heard,
learned counsel, who appeared for intervenor. Shri Mohan Parasaran,
Senior Advocate has appeared for respondent No.9.
16. Learned Attorney General submits that High Court exceeded
its jurisdiction under Article 226 in appointing respondent NO.2 as a G
Special Officer to head Idol Wing, whereas respondent No.2 was going
to be superannuated on 30.11.2018 itself. In the writ petition, challenge
was to the Government order dated 01.08.2018 for transferring the
investigation, which was being carried on by Idol Wing of the CID to the
CBI. Without their being any prayer, the respondent No.2 has been
H
790 SUPREME COURT REPORTS [2019] 5 S.C.R.
A directed to continue to head the Idol Wing even after his superannuation.
The respondent No.2 after superannuation could not have exercised
any power of police officer as entrusted on a police officer under the
Code of Criminal Procedure. Retired police officer is not a police officer
for purposes of registering a FIR or carrying out the investigation or
submitting a charge sheet, nor a retired police officer can present a case
B
in Court. The State Government was fully justified in transferring the
investigation of Idol theft cases to CBI for fair investigation. Even the
learned Single Judge while hearing Crl.O.P. No. 8960 of 2017 and
Crl.O.P. No. 12060 of 2017 had made observation that in event
appropriate infrastructure and facilities are not provided to Idol Wing,
C the Court may direct for investigation to be carried out by CBI.
17. High Court, exercising jurisdiction under Article 226 cannot
take over the power of Superintendent of Police conferred on the State
Government under Sections 3 and 4 of the Police Act, 1861. It was not
within the scope of Article 226 so as to direct by the High Court to take
D over a full-fledged wing of the Executive (Idol Wing-CID) from the
control of the Executive. The direction to appoint respondent NO.2 as
Special Officer to head the Idol Wing-CID has been passed without
affording an opportunity to the State. The State has already appointed
one Abhay Kumar Singh, by Government Order dated 29.11.2018, as
Additional Director General of Police, Idol Wing, CID, Chennai, which
E order has been erroneously held by the High Court to be redundant.
When respondent No.2 was going to be superannuated on 30.11.2018,
State was fully justified in making an arrangement to head the Idol Wing
of the CID. The directions issued by the High Court, as noticed in
paragraph No.45 of the judgment are all beyond the scope of the
F jurisdiction of the High Court under Article 226. Although, this Court as
well as the High Courts in several judgments has directed for carrying
on investigations by retired personnel but in none of the cases, the question
was decided as to whether it is competent on behalf of the High Court to
direct for carrying out investigation by retired personnel. The power
given to this Court to pass orders under Article 142 are not available to
G the High Court under Article 226. The High Court, while exercising
jurisdiction under Article 226 has virtually exercised the jurisdiction given
to this Court under Article 142 of the Constitution. The respondent No.2
has provided the details of cases so as to transfer it to the CBI as per its
request.
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 791
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
18. Shri Mukul Rohatgi, learned senior counsel appearing for the A
Director General of Police submits that impugned judgment of the High
Court is beyond the scope of Article 226. It is submitted that High Court
erred in directing for continuation of respondent No.2 even after
superannuation. There have been several complaints against respondent
No.2 relating to his functioning and respondent No.2 was not a person
B
who could have been allowed to head the Idol Wing even after his
superannuation. It is submitted that in the writ petitions, respondent
No.2 has filed certain self-serving documents on 27.11.2018 to which no
opportunity was there to the appellants to rebut the claim of respondent
No.2 that he has done much good work pertaining to theft and recovery
of Idols. Shri Rohtagi has referred to extradition of one person, namely, C
Subhash Chandra Kapoor, who was extradited from Germany. It is
submitted that several cases of further extradition are not being processed
on account of unwarranted delay with regard to case of Subhash Chandra
Kapoor. It is submitted that due to inaction on the part of the Idol Wing
with regard prosecution of Subhash Chandra Kapoor, other cases of
D
other accused for extradition are not being even processed. It is submitted
that impugned judgment of the High Court has created a shield to
respondent No.2 so that he is not answerable to anyone. It is submitted
that there was no challenge to the order dated 29.11.2018 by which the
Additional Director General of Police was posted in the Idol Wing to
head it. The order having not been challenged or set aside, the respondent E
No.2 cannot be allowed to head the Idol Wing, when Additional Director
General is a superior Officer. It is submitted by Shri Rohtagi that PIL
petitioner – Elephant G. Rajendran even before 30.11.2018 has written
to the Government that respondent No.2 be allowed to continue to head
the Idol Wing. There is no bonafide in filing the Public Interest Litigations.
F
PIL petitioner and respondent No.2 are hands in gloves.
19. Learned counsel appearing for the applicant in I.A. No. 24724
of 2019 submits that respondent No.2 has constantly tried to malign and
defame the officers of HR & CE Department. Several senior officers
of HR & CE Department were arrested without any cogent grounds.
The Commissioner in its letter dated 31.07.2018 written to the Director G
General of Police has highlighted several misdeeds of the Idol Wing.
The learned counsel for the applicant submits that officers of HR & CE
Department have been unnecessarily castigated by the Idol Wing. it is
submitted that applicant be permitted to intervene in the matter so that
this Court may be apprised of the correct facts. H
792 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 20. Shri Mohan Parasaran, learned senior counsel appearing for
the respondent No.9 submits that respondent No.9 is neither appropriate
nor necessary party, who has been unnecessarily impleaded in the writ
petition before the High Court. It is submitted that respondent No.9 is a
respected person and an incorrect allegation has been made against
him. Respondent No.9 is respectable person of the Society, who has
B
unnecessarily been dragged.
21. Shri R.Basant, learned senior counsel appearing for Elephant
G. Rajendran, PIL petitioner, refuting the submission of learned Attorney
General submits that judgment of the High Court is well within the scope
and ambit of Article 226. Shri Basant submits that submission raised
C questioning the bonafide of PIL petitioner is an afterthought and has no
substance. The PIL petitioner has done commendable public work.
Elephant G. Rajendran had filed a PIL petition in the year 2001 with
regard to an injured Elephant in which High Court permitted the PIL
petitioner to bring doctors from foreign countries. The PIL petitioner
D brought doctors from foreign countries and got the Elephant cured.
Several Public Interest Litigations have been filed by Elephant G.
Rajendran in public interest. It is specifically noted by the High Court in
the impugned judgment that Additional Advocate General himself has
submitted that there are no question on the bonafide of the petitioner. It
is submitted that various complaints in respect of respondent No.2, which
E are brought on the record are complaints, which have been deliberately
obtained after the judgment of the High Court. Most of the complaints
against respondent No.2 have been obtained by obliging Police Officials
on one day, i.e., on 18.12.2018, which is clear from the complaints brought
on the record alongwith I.A. No. 10291 of 2018.
F 22. It is submitted by Shri Basant that High Court has jurisdiction
under Article 226 to direct for constituting a Special Investigation Team
headed by respondent No.2. He submits that conferring of the police
power on non-police officer is not an anathema to law. Extraordinary
situation calls for extraordinary remedy. The jurisdiction of the High
G Court under Article 226 is wide and plenary. There have been several
orders of different High Courts as well as this Court where Special
Investigation Team were constituted consisting of retired personnel. The
transfer of the investigation of the Idol cases before the Idol Wing to the
CBI was nothing but a ruse to remove respondent No.2 from not carrying
out the investigation. Several officers of HR & CE Department were
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 793
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
involved and were accused in different First Information Reports. The A
Government has acted on to save officers of HR & CE Department.
Shri Basant submits that the present is not a case where High Court
exercised any jurisdiction under Article 142 of the Constitution of India
as contended by the appellant. He further submits that the present is a
case where this Court need not exercise its jurisdiction under Article
B
136. The High Court having exercised jurisdiction well within its powers,
there is no extraordinary situation, where this Court may grant special
leave in the present case. High Court has exercised its jurisdiction to
ensure fair and proper investigation and prosecution in Idol theft cases.
Replying to lapses as alleged on the part of respondent No.2 with regard
to Subhash Chandra Kapoor, it is submitted that prosecution agency to C
prosecute cases is State. It is State, which is prosecuting extradited
accused Shri Subhash Chandra Kapoor and no blame can be put on
respondent No.2 in the above regard.
23. Learned counsel appearing for the second PIL petitioner, i.e.,
Traffic Dr. K.R. Ramaswamy submits that free and fair trial is D
fundamental right. He submits that when the Director General of Police
can be given 02 years extension in the year 2017, why such extension
could not have been granted to respondent No.2. Respondent No.2 was
appointed as Special Officer in Idol Wing in 2012 and since then he has
been efficiently carrying on his duties. It is submitted that order of the
High Court dated 21.07.2017 passed in Crl.O.P. No. 8960 of 2017 and E
Crl.O.P. No. 12060 of 2017, respondent No.2 was directed to continue
as head of the Idol Wing. The Director General of Police aggrieved by
the said order has filed a special leave petition before this Court, which
was dismissed on 01.09.2017.
24. It is submitted that it is on account of the letter dated 31.07.2018 F
written by the Commissioner, HR & CE Department to the Director
General of Police that hurriedly decision was taken to transfer the cases
to CBI. The letter of Commissioner dated 31.07.2018 and within 24
hours, a decision was taken by the State Government to transfer the
cases to the CBI in hurried manner. The Commissioner in his letter G
dated 31.07.2018 made allegations against Idol Wing, on which allegations,
without there being any investigation or inquiry, the decision was taken
to transfer the cases to CBI, which was done with intent to take away
the investigation from respondent No.2, who was unearthing several
unholy cases and was taking action against the officers of HR & CE
H
794 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Department and some police officers. The decision of the State to
transfer it to CBI was not bonafide. It is further submitted that CBI
itself in its letter dated 20.09.2018, which was filed before the High
Court, submitted that CBI will extend its full cooperation and support in
the matters of extradition of accused, issue of Red Corner Notices and
coordinating with Interpol and it shall extend all its cooperation to SIT,
B
which is already investigating the Idol theft cases. CBI has expressed
its unwillingness to take up large number of Idol theft cases under its
fold. As regards not challenging G.O. dated 29.11.2018, it is pointed out
that it was produced on the eve of the judgment and there was time to
challenge it.
C 25. Learned Attorney General in his rejoinder submission contends
that High Court cannot pass any order in violation of law. It is submitted
that the officers of Indian Police Services are governed by the All India
Services Act, 1951 and the Rules made thereunder. The State has no
power to grant extension of service of IPS Officers. It is submitted that
D under the All India Services (Death-cum-Retirement Benefits) Rules,
1958, only few of the incumbents of the posts can be given extension in
services by the Central Government, which rule does not include extension
for Inspector General of Police, the post held by respondent No.2.
Learned Attorney General submits that even though there was O.M.
dated 18.05.1977 issued for extension/re-employment of Central
E Government servants beyond the age of superannuation, it is now no
longer available in view of issuance of O.M. dated 09.12.2002. After
the O.M. dated 09.12.2002, no re-employment can be granted beyond
the age of superannuation of 60 years. Learned Attorney General again
referring to the various directions in the impugned order contends that
F the directions are contrary to the provisions of Code of Criminal Procedure
and fall outside the law. He submits that each and every direction given
in the impugned judgment is contrary to some or other law.
26. We have considered the submissions of the learned counsel
for the parties and have perused the records.
G 27. Following are the main issues, which arise for consideration in
the present appeals:-
(i) Whether the State of Tamil Nadu was justified in transferring
all the under investigation cases being investigated by the
Special Team constituted for Idol theft cases and all such
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 795
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
future cases to the Central Bureau of Investigation vide its A
G.O. dated 01.08.2018?
(ii) Whether the impugned judgment of the High Court dated
30.11.2018 quashing the Government Order dated 01.08.2018
is sustainable?
(iii) Whether the High Court, in exercise of jurisdiction under B
Article 226 of the Constitution of India can appoint a police
officer after his superannuation to head a Special
Investigation Team (S.I.T.) to carry out investigations and
other functions, which can be exercised by a police officer
under the Code of Criminal Procedure? C
(iv) Whether the impugned judgment of the High Court dated
30.11.2018 directing respondent No.2 to continue to head
the Idol Wing of C.I.D. after his superannuation on 30.11.2018
is sustainable?
(v) Whether the 10 directions issued by the High Court in D
Paragraph No.45 of the impugned judgment are contrary to
law and are unsustainable being beyond the scope of Article
226 of the Constitution of India?
(vi) Whether the High Court could have declared the Government
Order dated 29.11.2018 appointing Thiru. Abhay Kumar E
Singh, IPS, Additional Director General of Police, Idol Wing
– C.I.D., Chennai as redundant without there being any
challenge to the said Government Order before the High
Court in the Writ Petitions, in question?
Issue Nos. 1 and 2 F
28. Both the above issues being inter-connected are being taken
together. Few background facts before issuance of Government order
dated 01.08.2018 need to be noted. The Idol Wing of the Criminal
Investigation Department(CID) is a special feature pertaining to State
of Tamil Nadu. The State of Tamil Nadu is blessed with most ancient G
temples in the country. As noted above under the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 there are various
authorities to ensure proper administration and governance of Hindu
religious and charitable endowments Tamil Nadu. The HR & CE
Department has obligation and responsibilities of managing and
H
796 SUPREME COURT REPORTS [2019] 5 S.C.R.
A maintaining temples’ properties including the Idols. There being large
number of cases pertaining to theft, missing and misappropriation of
Idols valuing in several crores, the State of Tamil Nadu had constituted
the Idol Wing by the Government Order issued in the year 1983. The
Madras High Court while deciding Criminal O.P. Nos.8690 and 12060
of 2017 in its order dated 21.07.2017 has made following observation in
B
paragraph 12:
“12. The HR & CE department is the custodian of most of the
temples and the properties including the idols belonging to them.
It is their primary duty to protect the temples and safeguard the
valuable idols/antiques, which, this Court with great anguish,
C expresses that the department has failed to do. It is startling to
find that the HR & CE department with all its income from major
temples, has not been able to maintain historical temples and
safeguard the Idols, which in market, have antique value based
on their age. Some temples in the State have also been recognised
D by the UNESCO as heritage sites. Many temples constructed at
least 1500 years ago or much before the temples recognised by
UNESCO, are in ruins. Even the daily rituals are not performed.
Some temples remain closed throughout the day with no one to
even lighten the lamps. Neither the Archaeology Department nor
the HR & CE Department has shown interest to identify and
E protect them. This has also come to the advantage of the
miscreants, who have laid their hands on the Idols.”
29. The above Criminal O.P. were filed for transferring all
investigations regarding theft of 6 Idols from the Commissioner, HR &
CE, Nungambakkam District, Chennai to Additional Director General of
F Police, Economic Offences Wing, CID, Chennai. The High Court while
deciding Criminal O.Ps in its judgment dated 21.07.2017 has observed
that various complaints given to Joint Commissioner were not addressed.
In paragraph 16 the High Court made the following observation:
“16. In the cases on hand, the erring officials have had a free
G hand in handling the idols as if it was their private property. It is
clear from the documents produced by the petitioner that the
various complaints of the petitioner in Crl.O.P.No.8690/2017 have
not been addressed. Curiously, there is no denial about the existence
of the tunnel and stocking the PWD guest house. Despite the fact
H that the 6th respondent found that the idols were missing, no
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 797
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
complaint has been lodged till date. It appears that the ball is passed A
on from one office to another, to protect the officials. The learned
counsel for the petitioner has sought for a transfer of the
investigation from the 6th respondent to the Idol Wing, CID,
Chennai. However, considering the nature of the offence that 6
Idols under the custody of the department has gone missing, not
B
only does the matter require investigation by the idol wing, CID,
but also departmental action must be initiated against the relevant
officials. This Court is also not in consonance with the reply given
by the Deputy Superintendent of Police of Idol wing that a complaint
should only be lodged with the local police station as per Section
154 Cr.P.C.” C
30. The High Court observed that considering the nature of the
offences, 6 Idols under the custody of the Department had gone missing,
not only the matter required investigation by the Idol Wing, CID
departmental action was also required to be taken by the relevant officials.
While the Criminal O.P.Nos.8690 and 12060 of 2017 were heard, it was D
brought to the notice of the High Court that respondent No.2 who was
heading Idol Wing has been transferred. The High Court noticed that
respondent No.2 has been supervising the cases and has efficiently traced
and recovered several Idols worth several crores, hence, for the sake of
continuity and speedy completion of the investigation, respondent No.2
must continue despite the work assigned presently. In paragraph 19 E
following observation has been made:
“19. After much dejection from this Court as to why no action
has been taken, an order of suspension dated 29.06.2017 was
passed and a copy of the same was produced to the Court on
30.06.2017, while at the same time, it was brought to the knowledge F
of this Court that Mr.A.G.Ponn Manickavel, Inspector General
of Police, Idol Wing was transferred. Though it could be claimed
as a routine transfer, this Court feels, it is otherwise. Also, the
officer has been supervising the cases and has efficiently traced
and recovered several Idols worth several crores. It is not that G
the succeeding officer is less efficient, but considering that
Mr.A.G.Ponn Manickavel and his team have extensively travelled
throughout the country and are aware of the modus operandii of
the culpritis. For the sake of continuity, speedy completion of the
investigation and completion of the pending cases, this Court is of
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798 SUPREME COURT REPORTS [2019] 5 S.C.R.
A the view that Mr.A.G.Ponn Manickavel, Inspector General of
Police and his team must continue despite the work assigned
presently.”
31. As noted above against the order of the High Court dated
21.07.2017, the Director General of Police filed an SLP in this Court
B which was disposed of on 01.09.2017 but the order directing respondent
No.2 to be continued as head of the Idol Wing was not interfered with
by this Court. Consequently, respondent No.2 was continuing to head
the Idol Wing. It is further to be noted that the High Court vide its order
dated 21.07.2017 has specifically directed that departmental proceedings
must be initiated against the officials of the HR and CE Department.
C FIRs were registered in which Officers of HR & CE Department were
also made accused and several officers were arrested. It was on
31.07.2018 that D.O. letter was written by Commissioner, HR & CE to
Director General of Police. The letter begins with the words:
“This is to inform you of the increasing ways in which the Idol
D Wing of the Police is harassing officials of this Department
threatening them with filing of FIRs in case they do not agree to
carry out its wishes filing FIRs on the basis of complaints by Public
without even a preliminary enquiry, refusing to file FIR on the
basis of complaints by the Department/Temple authorities,
E undermining the authority of the temple/ Department authorities
including the Commissioner, humiliating and hurting the reputation
of officials through public investigation of cases and their depiction
in the social and conventional media and interfering in the legitimate
functioning of this Department.”
F 32. In the letter dated 31.07.2018 the Commissioner pointed out
various complaints of his officers which were received by him in writing
and orally. The Commissioner stated that HR and CE Department is
facing a crisis. The Commissioner wrote to the Director General to ensure
a fair and confidential investigation and bring the culprits to book, without
damaging the reputation of honest officials and the Department. By a
G letter of 31.07.2018 itself Additional Director General of Police made
recommendation to the Director General of Police to transfer all cases
under investigation being investigated by the Special Team constituted
for the Idol Theft cases to the CBI. The Director General on the next
day i.e. 01.08.2018 recommended for transferring the cases to the CBI,
H on the same day the GO dated 01.08.2018 was issued. The entire process
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 799
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
for transferring cases to the CBI was completed within one day on A
complaints submitted by the Commissioner. We have already noted that
the High Court order dated 21.07.2018 has directed for holding
departmental inquiry against certain officers of HR & CE. It is already
noticed that FIRs were registered against the officers of the HR & CE
Department and other accused. Thus, it was known fact that there were
B
allegations and FIRs against the few officers and complaints submitted
by the Commissioner against the Idol Wing of the Police ought not to
have been accepted outrightly without conducting any enquiry. Even if
there was some truth in the complaints made by the Commissioner, the
same ought to have been enquired and informed decision ought to be
taken by the Government. The Idol Wing had been carrying out its work C
for the last more than three decades, several Idols were recovered and
cases launched and prosecutions were accomplished. On a single letter
of the Commissioner suddenly no opinion could have been formed that
Idol Wing of the Department is not doing its job. The Higher Police
authorities and State was fully competent to take action against any
D
officer of the Idol Wing, if any excess or misdeeds were reported against
any officer of the Idol Wing. The letter of the Commissioner dated
31.07.2018 does not refer to any written complaint by HR & CE
Department to Police, higher authorities or the Government in the above
regard. We, thus, are of the view that the decision to transfer the cases
to CBI was hurriedly taken within one day on a complaint received by E
the Commissioner without making any inquiry and the decision of the
Government cannot be said to be an informed decision.
33. Another aspect of the matter in the above context needs to be
noted. That the transfer was made of all the under investigation cases
being investigated by the Special Team constituted for Idol Theft cases F
and all such future cases to the CBI. There were more than 100 cases
under investigation with the Idol Wing at the relevant time. In the above
context, it is relevant to notice the letter dated 19/20.09.2018 of the
Central Bureau of Investigation which was brought before the High
Court by memo and is filed as Annexure P/18 to the appeal which is to
the following effect: G
“Sub: Writ Petition NO.20392/2018 filed by
Shri Elephant G.Rajendran – reg.
Please refer to the subject cited above.
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800 SUPREME COURT REPORTS [2019] 5 S.C.R.
A In this connection, it is requested that when the matter comes
up for hearing, it may be stated that Considering the large number
of Idol Theft Cases pending in various stages and also the future
idol theft cases likely to come up, and considering the severe
shortage of manpower, CBI will extend its full cooperation and
support in the matters of Extradition of accused, issue of Red
B
Corner Notices and coordinating with Interpol, etc., to the Special
Investigation Team, which is already investigating the Idol Theft
Cases.
HoB, CBI, SCB, Chennai.”
C 34. The CBI by its communication dated 20.09.2018 in reference
to subject matter in the writ petition has expressed its opinion that
considering the large number of Idol Theft Cases pending in various
stages and also the future Idol Theft Cases likely to come up, and
considering the severe shortage of manpower, CBI will extend its full
cooperation and support in the matters of Extradition of accused, issue
D of Red Corner Notices and coordinating with Interpol, etc., to the Special
Investigation Team, which is already investigating the Idol Theft Cases.
The said letter is politely expressing inability of the CBI to undertake
such large number of cases.
35. The High Court in paragraph 32 of the impugned judgment
E has given detail of reasons for quashing the order dated 01.08.2018. It is
relevant to notice that the High Court in its order dated 21.07.2017 has
already directed to constitute a SIT of the Officers of the Idol Wing to
carry on the investigation and follow up pending trial. The compliance of
the aforesaid order was under consideration before the Court. The
F Additional Chief Secretary to the Government, after receiving letter from
Additional Director General of Police, wrote a letter dated 01.08.2018
to the Additional Advocate General in which following request was made:
“9. I am therefore, to request you to appraise the Hon’ble
High Court of Madras about the decision of the Government
G when the above cases are taken up for hearing and whether
any orders from the Court are required.”
36. The Advocate General also brought to the notice of the Bench
of the letter dated 01.08.2018 and wrote back to the Additional Chief
Secretary to the Government that Division Bench of the High Court has
observed that communication, decisions or orders be placed before the
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 801
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
Court in the next hearing to be held on 08.08.2018. When the matters A
pertaining to Idol Thefts were already under investigation by SIT
constituted under the order of the High Court, it was appropriate that the
State Government ought to have apprised the Court before issuing any
Government order for transferring the cases. In any view of the matter
looking to the large number of cases of Idol Thefts cases and cases to
B
come in future regarding Idol Thefts, the CBI was not appropriate
investigating agency to be requested by the State. The CBI itself has
expressed its inability to undertake such huge exercise, the High Court
did not commit any error in quashing the Government order dated
01.08.2018.
Issue No.3 and 4 C
37. The submission which has been much pressed by the learned
Attorney General before us is the lack of the jurisdiction of the High
Court under Article 226 to direct for appointment of retired Police Officer
to head a SIT after his superannuation. Three-fold submissions have
been made by the learned Attorney General in the above regard. Firstly, D
the High Court exercising jurisdiction under Article 226 cannot take over
the power of the Superintendent of Police conferred on the State
Government under Sections 3 and 4 of the Police Act, 1861. Secondly,
Under the Code of Criminal Procedure, it is the Police Officer who is
entitled to carry investigation, arrest, submit charge sheet and do all E
other acts as a Police Officer. Thirdly, the Respondent No.2 after
superannuation no longer continued as Police Officer and could not have
exercised any power or jurisdiction as conferred on Police officer under
the Cr.P.C.
38. What is the ambit and scope of powers of the constitutional F
courts exercising the jurisdiction under Article 226 needs to be looked
into. The High Courts in India were created by Indian High Courts Act,
1861. Sections 9 and 10 of the Indian High Courts Act, 1861 provided
for jurisdiction and power of the High Court. Section 106 of the
Government of India Act, 1915 and Section 223 of the Government of
India Act, 1935 provided for jurisdiction of the existing High Courts. G
Article 226 of the Constitution of India confers to the High Courts vide
powers in the matter of issuing writs which they never possess before.
Article 226 of the Constitution is couched in very wide words, power
given to the High Court are both plenary and inherent. The power under
Article 226 is not confined only to issue specified writs but power H
802 SUPREME COURT REPORTS [2019] 5 S.C.R.
A conferred to the High Court is to issue directions, orders or writs including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari or any of the rights conferred by Part III and for any other
purpose.
39. The scope and ambit of Article 226 came for consideration
B before this Court in Dwaraka Nath vs. Income-tax Officer, AIR 1966
SC 81. Justice K. Subba Rao speaking for the Court held:
“(4)………This article is couched in comprehensive phraseology
and it ex facie confers a wide power on the High Courts to reach
injustice wherever it is found. The Constitution designedly used a
C wide language in describing the nature of the power, the purpose
for which and the person or authority against whom it can be
exercised. It can issue writs in the nature of prerogative writs as
understood in England; but the scope of those writs also is widened
by the use of the expression “nature”, for the said expression
does not equate the writs that can be issued in India with those in
D England, but only draws an analogy from them. That apart, High
Courts can also issue directions, orders or writs other than the
prerogative writs. It enables the High Courts to mould the reliefs
to meet the peculiar and complicated requirements of this country.
Any attempt to equate the scope of the power of the High Court
E under Article 226 of the Constitution with that of the English Courts
to issue prerogative writs is to introduce the unnecessary
procedural restrictions grown over the years in a comparatively
small country like England with a unitary form of government to a
vast country like India functioning under a federal structure. Such
a construction defeats the purpose of the article itself……”
F
40. Justice Krishna Iyer speaking for this Court in Rohtas
Industries Ltd. And another vs. Rohtas Industries Staff Union
and others, (1976) 2 SCC 82, held that the extended power of the
High Court under Article 226 is as wide as the amplitude of the language
used. In paragraph 9 following was held:
G
“9. The expansive and extraordinary power of the High Courts
under Article 226 is as wide as the amplitude of the language
used indicates and so can affect any person — even a private
individual — and be available for any (other) purpose — even
one for which another remedy may exist. The amendment to Article
H 226 in 1963 inserting Article 226 (1-A) reiterates the targets of
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 803
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
the writ power as inclusive of any person by the expressive A
reference to ‘the residence of such person’. But it is one thing to
affirm the jurisdiction, another to authorise its free exercise like a
bull in a china shop. This Court has spelt out wise and clear
restraints on the use of this extraordinary remedy and High Courts
will not go beyond those wholesome inhibitions except where the
B
monstrosity of the situation or other exceptional circumstances
cry for timely judicial interdict or mandate. The mentor of law is
justice and a potent drug should be judiciously administered.
Speaking in critical retrospect and portentous prospect, the writ
power has, by and large, been the people’s sentinel on the qui
vive and to cut back on or liquidate that power may cast a peril to C
human rights……”
41. Again, this Court in Air India Statutory Corporation and
others vs. United Labour Union and others, (1997) 9 SCC 377,
held that the Founding fathers placed no limitation or fetters under Article
226 of the Constitution except self-imposed limitations. This Court held D
that ‘The arm of the Court is long enough to reach injustice wherever it
is found’. In paragraph 59 following has been observed:
“59. The Founding Fathers placed no limitation or fetters on the
power of the High Court under Article 226 of the Constitution
except self-imposed limitations. The arm of the Court is long E
enough to reach injustice wherever it is found. The Court as
sentinel on the qui vive is to mete out justice in given facts……”
42. The above authorities of this Court clearly lay down that power
given to the High Court under Article 226 is power of very wide nature
which does not contain any fetter except self-imposed restrictions. It is F
well settled that the High Court while exercising jurisdiction under Article
226 shall not issue any direction which is contrary to law.
43. The challenge raised before us by the learned Attorney General
is that after superannuation of Police Officer he cannot be entrusted the
power of investigation or other powers under Cr.P.C. which entrustment G
runs contrary to the statutory scheme and cannot be held to be available
under Article 226. We may notice few decisions of the High Courts and
this Court which may be relevant for the issue under consideration.
44. A three-Judge Bench of this Court on monitoring of criminal
investigation has laid down that in appropriate cases this Court can monitor
H
804 SUPREME COURT REPORTS [2019] 5 S.C.R.
A the Criminal Investigation especially when persons occupying high
position in society are accused. This Court in Vineet Narain and others
vs. Union of India and another, (1998) 1 SCC 226, held that Govt.
Agencies including CBI had not carried out their public duty to investigate
the offences disclosed; this Court would monitor the investigations. This
Court laid down following in paragraphs 8 and 9:
B
“8. The sum and substance of these orders is that the CBI and
other governmental agencies had not carried out their public duty
to investigate the offences disclosed; that none stands above the
law so that an alleged offence by him is not required to be
investigated; that we would monitor the investigations, in the sense
C that we would do what we permissibly could to see that the
investigations progressed while yet ensuring that we did not direct
or channel those investigations or in any other manner prejudice
the right of those who might be accused to a full and fair trial. We
made it clear that the task of the monitoring court would end the
D moment a charge-sheet was filed in respect of a particular
investigation and that the ordinary processes of the law would
then take over. Having regard to the direction in which the
investigations were leading, we found it necessary to direct the
CBI not to report the progress of the investigations to the person
occupying the highest office in the political executive; this was
E done to eliminate any impression of bias or lack of fairness or
objectivity and to maintain the credibility of the investigations. In
short, the procedure adopted was of “continuing mandamus”.
9. Even after this matter was brought to the Court complaining of
the inertia of CBI and the other agencies to investigate into the
F offences because of the alleged involvement of several persons
holding high offices in the executive, for quite some time the
disinclination of the agencies to proceed with the investigation
was apparent. The accusation, if true, revealed a nexus between
high-ranking politicians and bureaucrats who were alleged to have
G been funded by a source linked with the source funding the
terrorists. In view of the funding also through foreign currency,
some undesirable foreign elements appeared to be connected.
This revealed a grave situation posing a serious threat even to the
unity and integrity of the nation. The serious threat posed to the
Indian polity could not be underscored. The obvious need for an
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 805
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
expeditious and thorough probe which had already been delayed A
for several years could not but be countenanced. The continuing
inertia of the agencies to even commence a proper investigation
could not be tolerated any longer. In view of the persistence of
that situation, it became necessary as the proceedings progressed
to make some orders which would activate the CBI and the other
B
agencies to at least commence a fruitful investigation. Merely
issuance of a mandamus directing the agencies to perform their
task would be futile and, therefore, it was decided to issue directions
from time to time and keep the matter pending requiring the
agencies to report the progress of investigation so that monitoring
by the court could ensure continuance of the investigation. It was, C
therefore, decided to direct the CBI and other agencies to complete
the investigation expeditiously, keeping the court informed from
time to time of the progress of the investigation so that the court
retained seisin of the matter till the investigation was completed
and the charge-sheets were filed in the competent court for being
D
dealt with, thereafter, in accordance with law.”
45. When the Government Agencies failed in unearthing offences
of magnitude the doors of constitutional courts have been knocked by
citizens to come to their rescue. One of the tools of this Court to advance
justice and fulfil the constitutional objectives is recognizing a special
category of litigation, namely, PIL. Durga Das Basu in Commentary on E
the Constitution of India Vol.6 8th Edition 2010 while delineating scope
and object of such litigation states:
“1. The grievance in a public interest action is about the content
and conduct of Government action in relation to the constitutional
or statutory rights of segments of society and in certain F
circumstances the conduct of Government policy. The relief to be
granted looks to the future and is, generally, corrective rather than
compensatory which, sometimes, it also is. The Court has a more
dynamic and positive role. It often does seek the assistance of
expert panels, commissioners, advisory committees etc. The relief G
implies affirmative action. The remedy is both imposed, negotiated
or quasi-negotiated.”
46. A Constitution Bench of this Court speaking through Bhagwati,
CJ in M.C. Mehta and another vs. Union of India and others,
1987 (1) SCC 395, while considering the nature of PIL and power H
806 SUPREME COURT REPORTS [2019] 5 S.C.R.
A under Article 32 held that under Article 32 this Court is free to devise
any procedure appropriate for particular purpose of the proceeding. In
paragraphs 6 and 7 following was stated:
“6. So far as the power of the court under Article 32 to gather
relevant material bearing on the issues arising in this kind of
B litigation, which we may for the sake of convenience call social
action litigation, and to appoint Commissions for this purpose is
concerned, we endorse what one of us, namely, Bhagwati, J. as
he then was, has said in his judgment in Bandhua Mukti Morcha
case. We need not repeat what has been stated in that judgment.
It has our full approval.
C
7. We are also of the view that this Court under Article 32(1) is
free to devise any procedure appropriate for the particular purpose
of the proceeding, namely, enforcement of a fundamental right
and under Article 32(2) the court has the implicit power to issue
whatever direction, order or writ is necessary in a given case,
D including all incidental or ancillary power necessary to secure
enforcement of the fundamental right. The power of the court is
not only injunctive in ambit, that is, preventing the infringement of
a fundamental right, but it is also remedial in scope and provides
relief against a breach of the fundamental right already committed
E vide Bandhua Mukti Morcha case. If the court were powerless
to issue any direction, order or writ in cases where a fundamental
right has already been violated, Article 32 would be robbed of all
its efficacy, because then the situation would be that if a
fundamental right is threatened to be violated, the court can inject
such violation but if the violator is quick enough to take action
F infringing the fundamental right, he would escape from the net of
Article 32. That would, to a large extent, emasculate the
fundamental right guaranteed under Article 32 and render it
impotent and futile. We must, therefore, hold that Article 32 is not
powerless to assist a person when he finds that his fundamental
G right has been violated. He can in that event seek remedial
assistance under Article 32. The power of the court to grant such
remedial relief may include the power to award compensation in
appropriate cases. We are deliberately using the words “in
appropriate cases” because we must make it clear that it is not in
every case where there is a breach of a fundamental right
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 807
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
committed by the violator that compensation would be awarded A
by the court in a petition under Article 32. The infringement of the
fundamental right must be gross and patent, that is, incontrovertible
and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of
persons, or it should appear unjust or unduly harsh or oppressive
B
on account of their poverty or disability or socially or economically
disadvantaged position to require the person or persons affected
by such infringement to initiate and pursue action in the civil courts.
Ordinarily, of course, a petition under Article 32 should not be
used as a substitute for enforcement of the right to claim
compensation for infringement of a fundamental right through the C
ordinary process of civil court. It is only in exceptional cases of
the nature indicated by us above, that compensation may be
awarded in a petition under Article 32. This is the principle on
which this Court awarded compensation in Rudul Shah v. State
of Bihar5. So also, this Court awarded compensation to Bhim
D
Singh, whose fundamental right to personal liberty was grossly
violated by the State of Jammu and Kashmir6. If we make a fact
analysis of the cases where compensation has been awarded by
this Court, we will find that in all the cases, the fact of infringement
was patent and incontrovertible, the violation was gross and its
magnitude was such as to shock the conscience of the court and E
it would have been gravely unjust to the person whose fundamental
right was violated, to require him to go to the civil court for claiming
compensation.”
What is said about Article 32 of the Constitution is also true for
jurisdiction of High Courts under Article 226. F
47. This Court time and again forged and fashioned new designs
to enforce fundamental rights and to redress other grievance of the
people. There are several instances of this Court and High Courts issuing
directions for carrying out investigation by Special Investigation Team
which consisted even retired officers. This Court in Guruvayoor G
Devaswom Managing Committee and another vs. C.K. Rajan and
others, (2003) 7 SCC 546, has elaborately noticed the scope of Public
Interest Litigation and has catalogued the principles evolved by this Court
in paragraph 50 of the judgment. Eleven principles have been
summarized. In sub-para (ix) this Court held:
H
808 SUPREME COURT REPORTS [2019] 5 S.C.R.
A “50.(i) XXX XXX
(ix) The Court in special situations may appoint a Commission, or
other bodies for the purpose of investigating into the allegations
and finding out facts. It may also direct management of a public
institution taken over by such Committee. (See Bandhua Mukti
B Morcha, Rakesh Chandra Narayan v. State of Bihar and A.P.
Pollution Control Board v. Prof. M.V. Nayudu.)”
48. Different High Courts and this Court have passed several
orders constituting Special Investigation Team to carry out investigations
in cases where such requirement was found necessary. Before Division
C Bench of Bombay High Court in Ranjitsing Brahmajeetsing Sharma
and Ors. Vs. Kisan Baburao Hazare and Ors., 2004 (3) MhLJ
760, was a case where SIT was constituted which consisted of retired
Director General of Police. Initially order was passed on 04.09.2003 by
consent of the parties with regard to SIT to be headed by Mr. S.S. Puri,
retired Director General of Police. When a subsequent order dated
D 24.09.2003 was passed providing that Mr. S.S. Puri will exercise all
powers exercisable by Director General of Police, as if he is in service
and the Government Resolution was issued on 26.09.2003 to the said
effect, an application was filed for recalling the subsequent direction
dated 24.09.2003. The submission was made before the Court that Mr.
E S.S. Puri being not in service and as a result of direction issued by the
Court there were two Director Generals of Police in the State of
Maharashtra which was contrary to the provisions of the All India
Services Act, 1951 read with the Indian Police Service (Cadre) Rules,
1954 and I.P.S. (Fixation of Cadre Strength) Regulations, 1955. The
submission was also made that in exercise of jurisdiction under Article
F 226 the High Court cannot overstep limits prescribed by statute. It was
contended that order of the Court trenches upon the statutory machinery
which has been envisaged in the Cr.P.C. for investigation of offences.
The Division bench of Bombay High Court repelled the submission it
held that the order of the High Court does not supplant the provisions of
G Cr.P.C. or disabled the machinery of investigation that has been designed
under the Code. The Division Bench in paragraph 27 observed:
“27. Good governance in a civil society is inextricably woven with
the fabric of ordered liberty. Enforcement of law, the investigation
of crimes and the prosecution of offenders constitute important
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 809
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
components of a system which is guided by the ideals of the Rule A
of Law. Ideals in the distant horizon they seem to be when the
conscience of a society is aroused by wrongdoing which is of a
systemic nature. The evolution of a society from market control
to market reform is an important milestone in development. The
dominance of market forces furnishes new avenues for the
B
generation of wealth. On the other hand, the sanctity of the
economic system and its stability can be destroyed by systemic
franks of the kind that contemporary economics have had to
confront. Effective investigation and prosecution are the hallmarks
of a legal system committed to the protection of human rights as
they are of a legal regime that protects legitimate forms of C
economic activity. Courts must and do have a healthy respect for
the demarcation of powers between the executive, the legislature
and the judiciary. Equally, nothing can be as destructive of the
rule of law as the lack of independence and impartiality of the
investigation and prosecutorial processes. When systemic issues
D
of the kind involved here arise before the Court, the obligation of
the court as expounder of constitutional precept warrants flexible
and effective remedies. The evolution of legal doctrine is not
stratified in a frozen dialogue. Courts must and do respond to felt
necessities of the time ensuring that in the process they do not
offend the constitutional distribution of powers or statutory E
prohibitions. Doctrinal immutability should not stultify a democratic
society in its effort to find effective measures for unheralded
wrongs.”
49. A Full Bench of the Madras High Court in R. Sankarasubbu
vs. The Commissioner of Police, Egmore, Chennai, 2013 (1) CTC F
1, appointed one Mr. R.K. Raghavan, former Director of CBI. In this
context in paragraph 76(i) following has been stated:
“76.(i) We hereby appoint Mr. R.K. Raghavan, former Director
of Central Bureau of Investigation, as Investigating Officer of
Special Investigation Team(SIT), to be assisted by Dr. M. G
Narayana Reddy, former Professor and Head of the Department
of Forensic Medicine, Osmania University, Hyderabad, Andhra
Pradesh to investigate this case.”
50. This Court in Advocates Association, Bangalore vs. Union
of India and others, (2013) 10 SCC 611, has noticed that the High H
810 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Court of Karnataka has constituted SIT which was headed by a retired
Director of CBI. Paragraph 7 of the judgment is as follows:
“7. The High Court, by order dated 16-5-20121, constituted a
Special Investigation Team (SIT) headed by Dr R.K. Raghavan,
a retired Director of CBI as Chairman and Mr R.K. Dutta, Director
B General of Police, CID, Bangalore as Convenor along with other
police officials to investigate into the incident with reference to
the complaints lodged by the police, advocates as well as media
against each other and to conclude the same within 3 months
from the date of the government notification. In pursuance of the
same, the State Government issued a series of notifications
C constituting and reconstituting SIT for reasons of non-availability
of officers to be its members.”
51. Although this Court ultimately entrusted the investigation to
CBI but the fact we notice that the High Court had appointed SIT which
was headed by retired CBI Director General. Recently this Court in
D SUNITA DEVI AND ANOTHER VS. UNION OF INDIA AND
OTHERS, (2018) 3 SCC 664, has appointed a SIT to investigate a
case of murder where one Shri Shri M.L. Sharma, IPS (retired), former
Special Director, CBI, was appointed as Chairman of the SIT. In
paragraph 10 following was directed:
E “10. Having examined the entire materials placed on record, we
deem it proper to constitute a Special Investigating Team (SIT) to
reinvestigate FIR No. 221 of 2001 titled “State v. Manvir Singh”
registered at Police Station Pilakhua, District Ghaziabad, U.P. Shri
M.L. Sharma, IPS (retired), former Special Director, CBI, is
F appointed as the Chairman of the SIT. Shri M.L. Sharma is
permitted to take assistance of two officers of his choice of CBI
as its members. We direct the SIT to proceed as regards further
investigation in respect of FIR No. 221 of 2001 and to submit its
report within a period of three months from today. Needless to
say that appropriate secretarial assistance and logistic support
G shall be made available to the SIT by the Government of Uttar
Pradesh. The Government of Uttar Pradesh is also directed to
provide to the Chairman and the members of the SIT all travelling,
boarding and lodging expenses while discharging their responsibility
entrusted to them.”
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 811
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
52. Learned counsel for the appellants relied on a judgment of A
this Court in Board of Control for Cricket in India vs. Cricket
Association of Bihar and others, 2014 (7) SCC 385, where
suggestion to include Mr. M.L. Sharma, retired IPS was not accepted.
In his place one Mr. B.B. Mishra, IPS of the 1983 Batch was included.
53. The judgments as noted above indicate that the High Courts B
and this Court in their several judgments have included retired Police
Officers to be part of SIT or to head a SIT. Learned Attorney General
has submitted that these are those cases where the appointment of retired
officers was made but the Court had no occasion to consider the legality
of such appointment in exercise of jurisdiction under Article 226 or Article
32. We having noticed the expansive nature of jurisdiction under Article C
226 and the exposition of law of this Court extracted above, the jurisdiction
of constitutional courts under Article 226 and Article 32 can be used to
forge new methodology to achieve the constitutional objectives. No
fetter can be read in the jurisdiction under Article 32 or 226 as contended
by the learned Attorney General. For sufficient reason investigation can D
be handed over to a person who is retired or no longer in employment.
The functions which are to be performed by that person is under authority
of Court’s order. There may be varied situations and circumstances
where a former officer is entrusted with an investigation or any other
function to achieve an object or purpose. When the constitutional courts
direct particular officer to carry on specific job that order cannot be E
treated to be put that person in office of that post with all necessary
consequences. The particular object is entrusted or only a specific job is
entrusted to the officer which he has to carry. The Court in issuing such
direction neither creates any ex-cadre post nor affects the post of officer
by giving any kind of appointment to a post. The violation of All India F
Services Act, 1951 or Rules framed thereunder cannot be read in
entrustment of specific job to a retired officer. Learned Attorney General
has submitted that in view of subsequent Government Order dated
09.12.2002 which has been placed before us now re-employment of
Government servants beyond the age of superannuation of 60 years is
not permissible. He has also referred to the All India (Death-cum- G
Retirement Benefits) Rules, 1958 where under Rule 16(1)A there is
provision of giving extension in service to the incumbents of the posts of
the Cabinet Secretary, Defence Secretary, Home Secretary, Director,
Intelligence Bureau, Secretary, Research and Analysis Wing and Director,
H
812 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Central Bureau of Investigation for such period as it may deem proper.
There cannot be any quarrel to the above provision nor applicability of
the above provision in facts of the present case. Present is not a case
where Government has decided to extend the services of respondent
No.2. It is relevant to note that the High Court issued direction in paragraph
45(1) appointing respondent No.2 as a Special Officer to head Idol Wing-
B
CID, Chennai to deal with the cases of theft of Idols and antiques in all
stages, for a period of one year, after his superannuation w.e.f. 30.11.2018.
The Court further directed “the Government to pass orders to that effect”.
The Court clearly intended that in the above regard Government may
pass appropriate orders. It is open for the Government to issue orders
C enabling respondent No.2 to carry on functions as per the direction.
Learned Attorney has taken exception to direction No.3 by which it is
directed that respondent No.2 shall draw the same pay and benefits that
were available to him at the time of his retirement as Special Officer.
On objection being raised to the said direction, learned counsel for
respondent No.2 has fairly submitted before us that respondent No.2 is
D
ready to carry on and discharge his duties as per orders of this Court
without drawing any pay and benefits as directed by the High Court. We
are of the view that the High Court instead of issuing direction No.3
ought to have given option to the State Government either to continue/
re-employ respondent No.2 or in alternative fix some honorarium for the
E duties entrusted to respondent No.2. The State Government having not
passed any order in consequence of which respondent No.2 may continue
in the office of Inspector General of Police, justice would be served
when the State Government is directed to pay some honorarium during
the period respondent No.2 performed his duties under the order of the
Court in addition to his pension. We, however, make it clear that any pay
F
and benefits which have already been extended to respondent No.2 shall
neither be recovered nor adjusted.
54. We, thus, conclude that the High Court in exercise of
jurisdiction under Article 226 can very well direct respondent No.2 to
head the Special Investigation Team to carry out investigation and other
G functions after attaining the age of superannuation. We, further, hold
that directions of the High Court dated 30.11.2018 to continue respondent
No.2 in Idol Wing of CID after his superannuation is sustainable.
55. Learned Attorney General as well as Shri Mukul Rohtagi further
submitted that there are allegations against respondent No.2, several
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 813
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
complaints were filed and it cannot be said that the respondent No.2 is A
the competent officer to continue as head of the Idol Wing. It is submitted
that respondent No.2 in the writ petition has filed affidavit on 27.11.2018
with regard to which there was no opportunity given to the appellant to
file reply. Alongwith affidavit dated 27.11.2018 several self-serving
documents were brought on record by respondent No.2 which were
B
relied by the High Court. It is, further, submitted that alongwith
I.A.No.180358 of 2018 as well as I.A.No.30023 of 2019 details of various
complaints were brought on record before this Court. On the basis of
which it is clear that respondent No.2 cannot claim to be an officer with
clean records and officer having no complaints.
56. Learned counsel appearing for the PIL refuting the above C
submission submitted that before the High Court no grievance was raised
against respondent No.2 regarding his competence or complaints against
him, it is only after the orders have been passed by the High Court on
30.11.2018 that certain complaints were obtained against respondent
No.2 which are sought to be filed along with I.A.No.30023 of 2019. It is D
submitted that complaints which have been brought on record are
complaints which were obtained in the third and fourth week of
December, 2018. The High Court in the impugned judgment before issuing
a direction to continue respondent No.2 in the Idol Wing has thoroughly
examined the credential of respondent No.2. The High Court in paragraph
34 of the judgment has noticed the statement of learned Additional E
Advocate General that there are no allegations against respondent No.2
except that he has not submitted the report to Additional Director General
of Police. Following observation was made by the High Court in
paragraph 34:
“34. Even earlier, during the earliest of hearings, when it was F
mentioned before this Court about such conduct of the Police
Department, the learned Additional Advocate General fairly
submitted that the only blemish on the part of the officer is that he
has not submitted the reports to the Additional Director General
of Police and that apart there are no allegations against him.” G
57. The reasons for directing respondent No.2 to continue have
been set out by the High Court in paragraph Nos. 35 to 41. The High
Court has taken note of the fact that the Government order dated
01.08.2018 transferring the cases to CBI having been quashed, it has
H
814 SUPREME COURT REPORTS [2019] 5 S.C.R.
A become just and necessary for the Court as the custodian of the Idols, in
the role of parens patriae to exercise its jurisdiction to formulate a solution.
Following has been stated in paragraph 35:
“35. Now, considering that the Government order has been
quashed and that the State is not inclined to continue the cases,
B the CBI has categorically refused to take up the cases and
expressed its intention to assist the existing team; that the Central
Government has so far remained silent, an extraordinary situation
has arisen, by which, a vacuum has been created and this Court
has to take a timely decision to protect the idols and treasures of
the temples. Hence it has become just and necessary for this
C Court as the custodian of the Idols, in the role of parens patriae to
exercise its jurisdiction to formulate a solution to bring about a
continuity in the investigation and to safe guard the idols, which
are valuable properties of this country. It has come to the
knowledge of this Court that Mr.A.G.Pon Manickavel, I.P.S in
D the rank of Inspector General of Police is attaining superannuation
in the forenoon of 30.11.2018. The credibility of the officer is
evident from the fact he has been fair and impartial in his actions.
This Court is also satisfied with the procedure followed by him in
securing the accused. It was also brought to the knowledge of
this Court, that even recently, more than 250 idols were unearthed
E by him based on the information received from credible sources.
Some idols were also recovered during transit. He has been able
to keep the informants intact and show tremendous progress.”
58. In paragraph 36 the Court has noticed the details of the work
accomplished by Idol Wing and the Idols recovered by the SIT headed
F by respondent No.2. In paragraph 40 of the judgment, the High Court
also noticed the Performance Appraisal Report of respondent No.2 and
it noticed that respondent was assessed by 28 officers and he has been
given excellent grading by 27 officers, except one officer who made
adverse remarks which had been set aside by the Central Administrative
G Tribunal. We, thus, are of the view that the High Court had after due
examination of all relevant documents taken a decision to continue
respondent No.2 to head the Idol Wing. The High Court has referred to
various judgments of the High Court and this Court where work and
conduct of respondent No.2 was appreciated which observations were
extracted by the High Court in support of its conclusion.
H
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 815
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
59. The statement of Additional Advocate General noted by the A
High Court in paragraph 34 clearly indicates that before the High Court
there were no allegations against respondent No.2 as to come to the
conclusion that he was not a fit person to be directed to continue in the
Idol Wing. The complaints which have been now referred to and relied
by the appellant are the complaints which have been submitted after the
B
judgment of the High Court. Alongwith I.A.No.10291 of 2018 the
petitioners have referred to certain complaints in paragraph 6 in tabular
chart. The said chart indicates that complaints are of 17, 18 and 26
December, of 2018. They are the complaints which were submitted
even after the filing of the SLP in this Court. We are not required to
enter into correctness or otherwise of the allegations in the complaints. C
The High Court in its direction has observed that if there are materials
against respondent No.2 the same can be placed before the High Court
for further direction. On the strength of the complaints which are
subsequently submitted after the judgment of the High Court, we are not
persuaded to accept the submission of the appellant that respondent
D
No.2 was not a fit person to be allowed to head the Idol Wing after
30.11.2018. In so far as submission of learned counsel for the appellant
that after filing of the affidavit on 27.11.2018 by the respondent No.2 no
opportunity was given to the appellant, it is useful to extract paragraph
34 of the judgment where High Court observes “As an affidavit was
filed on 27.11.2018, again a direction in similar lines was issued by us on E
27.11.2018 to place any materials if available before this Court. However,
till date no such materials have been placed before us.” We, thus, are of
the view that the High Court had given opportunity to place the materials,
if any. We, thus, are of the view that the High Court did not commit any
error in directing respondent No.2 to continue to head the Idol Wing
F
after his superannuation on 30.11.2018.
Issue No.5
60. Now we come to the 10 directions issued by the High Court in
paragraph 45 of the judgement which have been assailed by the learned
Attorney General on the ground that each and every direction is contrary G
to law. We will take up each direction separately:
(1) By direction No.1, respondent No.2 was directed to function
as Special Officer to head Idol Wing-CID, Chennai on his
superannuation on 30.11.2018. The Government was
directed to pass orders to that effect. We have already while H
816 SUPREME COURT REPORTS [2019] 5 S.C.R.
A considering Issue Nos.3 and 4 held that respondent No.2
could have been directed to work as a Special Officer to
head Idol Wing-CID, hence, we do not find any error in
direction No.1.
(2) With regard to direction No.2, Special Team was already
B constituted by the earlier order of the High Court dated
21.07.2017 which was directed to be continued to which
direction no exception can be taken.
(3) With regard to direction No.3, it was directed to respondent
No.2 to draw the same pay and benefits that were available
C to him at the time of his retirement for the entire tenure of
his term as Special Officer. We are of the view that instead
of such direction, the High Court ought to have given an
option to the State Government either to pass an order for
re-employment/re-engagement or the liberty ought to have
been given to State to fix some honorarium in addition to
D pension which would have been drawn by respondent No.2.
During the course of hearing learned counsel for respondent
No.2 has submitted that respondent No.2 is ready to carry
on his duty as entrusted by the High Court even without
receiving any emoluments. We are of the view that in the
E facts and circumstances of the case, direction No.3 deserves
to be modified to the effect that the State shall fix a
honorarium to be paid to respondent No.2 in addition to
pension to be drawn by him. We further observe that in the
event any amount has already been paid to respondent No.2
in pursuance to the direction of the High Court, the same
F shall not be recovered and adjusted.
(4) By direction No.4 the High Court directed the Special
Officer to investigate the cases thoroughly and submit all
the reports before the Court in a sealed cover to enable the
Court to monitor the investigation. We have noticed that an
G Additional Director General of Police was appointed to head
the Idol Wing by order dated 29.11.2018, it was not necessary
for the High Court to burden itself with scrutinising each
and every report and requiring each and every report to be
submitted before the Court. There being a higher Officer
H posted in the Idol Wing, progress and result of the
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 817
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
investigation ought to have been reported to Additional A
Director General of Police and the report in the High Court
was necessary when certain directions were required by
the Special Officer. We modify direction No.4 to the effect
that report of progress of the investigation shall be submitted
to the Additional Director General of Police of Idol Wing
B
and report to the High Court may be submitted by the Special
Officer only when any further directions are required from
the High Court.
(5) With regard to direction No.5, by this direction the Special
Officer is directed to continue to not only investigate and
file charge sheets and prosecute in the pending cases but C
also to continue to do so in the cases arising in future during
his tenure. No exception can be taken.
(6) The direction No.6 which requires CBI and other agencies
of Central Government shall continue to give appropriate
support to the Special Officer. No exception can be taken D
since CBI itself sent letter dated 19.09.2018 communicating
its support.
(7) With regard to direction 7 serious objection has been raised
by the learned Attorney General. He submits that the said
direction gives exemption to respondent No.2. The E
respondent No.2 cannot be held above law. We are of the
view that no one including respondent No.2 is above the
law. The High Court has given liberty to the State or any
competent authority to place the materials before the Court
for further direction if there are any materials against F
respondent No.2. The liberty given in direction No.7 amply
protects the interest of the State which needs no interference.
(8) Direction No.8 pertains to communications to concerned
Departments to extend co-operation to the Special Team
with which no exception can be taken. G
(9) With regard to direction No.9, learned Attorney General
submits that the High Court ought not to have given any
direction with regard to financial aspects. He submits that
there is a procedure for allocation of finances for which
passing of budget is required. It is to be noted that Idol
H
818 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Wing has been created by the State in 1983 and for several
decades Idol Wing has been continuing without provision of
any separate division to handle the financial aspects. We
are of the view that there was no such requirement to issue
any direction to create such division to handle the financial
aspects. The Idol Wing has to be run as per budget allocation
B
and in any case of requirement it is always open to the
higher Police authorities and State Government to do the
needful. Direction No.9, thus, is to be deleted.
(10) Direction No.10 is general direction to which no exception
can be taken.
C
Issue No.5 is decided accordingly.
Issue No.6
61. The High Court while delivering judgment on 30.11.2018
noticed the order dated 29.11.2018 which was brought into the notice of
D the Court by respondent No.2 with regard to which observation has
been made by the High Court in paragraphs 47 ad 48 of the judgment.
In paragraphs 47 and 48 following has been observed:
“47. When we are about to pronounce this order, the petitioner in
WP.No.20392 of 2018 produced a copy of the proceedings issued
E by the Government of Tamil Nadu in Police Note No.SC/19/2018
dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh,
IPS, Additional Director General of Police/Chief Vigilance Officer,
Tamil Nadu Newsprint and Papers Limited, Karur has been
transferred and posted as Additional Director General of Police,
F Idol Wing, CID, Chennai by upgrading the post of Inspector General
of Police, Idol Wing CID.
48. We are of the view that the State all along, is not inclined to
continue with the investigation of idol theft cases as the same
were transferred to CBI despite pendency of the stay order of
this Court. It is also pertinent to note that after the orders were
G
reserved, they have upgraded the post of the Additional Director
General of Police and appointed an officer, by order dated
29.11.2018, which action is inappropriate and it would amply prove
the transfer of cases in a most hurried manner within a single day
i.e., on 01.08.2018. Similarly, the manner in which the present
H order dated 29.11.2018 has been passed, will speak for itself.
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G. 819
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
Hence, notwithstanding the order dated 29.11.2018 passed by the A
Government, which has become redundant, Tr.A.G.Pon
Manickavel shall take charge as Special Officer to head the Idol
Wing as ordered by us, in order to preserve the idols as well as
recovery of the stolen idols to uphold the cultural heritage of this
land.”
B
62. The above observation itself indicates that by the Government
order dated 29.11.2018 the post of Inspector General of Police was
upgraded as Additional Director General of Police who was appointed
by the State Government on 29.11.2018. The order dated 29.11.2018
being not under challenge in the writ petition, it was not necessary for
the High Court to make any observation in that regard. Without there C
being any challenge to the order dated 29.11.2018, the High Court was
not right in observing that order dated 29.11.2018 has become redundant.
We, thus, disapprove the observation made by the High Court in
paragraphs 47 and 48 that the order dated 29.11.2018 has become
redundant. Order dated 29.11.2018 was a Government order which was D
not challenged in the writ petition, the same shall remain effective that
the Idol Wing shall be headed by the Additional Director General of
Police appointed on 29.11.2018. The Idol Wing shall be headed by the
Additional Director General of Police. We, however, observe that Special
Officer shall take all appropriate steps along with his Team and he shall
submit report to the Additional Director General of the result of the E
investigations so that appropriate further action be taken. Issue No.6 is,
thus, answered accordingly.
63. Before we close, we need to clarify one aspect and notice
one necessary caution with regard to what has been said above, i.e.,
F
(i) Insofar as filing of the statutory reports as per the procedure
prescribed in the Code of Criminal Procedure, necessary
reports have to be filed by the officer authorized as per Code
of Criminal Procedure.
(ii) There might arise exceptional cases where the direction for G
appointment of retired officers may be unavoidable to achieve
the goal of justice but the High Court may resort to the power
under Article 226 only after weighing all pros and cons and
after exhausting all options and as a matter of last resort.
Taking services of a retired police officer or any other retired
personnel is not to be normally resorted to since in the State H
820 SUPREME COURT REPORTS [2019] 5 S.C.R.
A concerned, there is always no dearth of competent and able
officers, hence whenever the Court finds it necessary to take
assistance of services of the retired officers or personnel, it
should be with necessary caution and resorted to only when
there are very valid and unavoidable circumstances.
B 64. In view of the foregoing discussions, the appeals are partly
allowed. The judgment of the High Court is modified to the following
extent:-
(1) The direction No.9 issued in paragraph 45 of the judgment of
the High Court is deleted and directions Nos.3 and 4 are
C modified as indicated in paragraphs 60(3) and 60(4) of this
judgment.
(2) The order of the High Court in paragraph 48 that the
Government order dated 29.11.2018 has become redundant
is set aside.
D 65. Parties shall bear their own costs.
Nidhi Jain Appeal partly allowed.
E
F
G
H
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