The Supreme Court will deliver its decision today in the case of Rhea’s application to the court to have the probe by Bihar police (and the FIR lodged in Patna) transferred to Mumbai at 3.30 PM Melbourne time. Readers will know the FIR lodged in Patna named Rhea, her family and two others in the case of abetment to suicide and financial fraud.
After Rhea filed the application in the Supreme Court of India, a Caveat application – request to be heard – was filed each – by the Mumbai Police and SSR’s family. The proceeding was later joined by the Solicitor General of India after the Bihar government decided to refer the case to the CBI.
Rhea’s contention has been that there is no cause of action in Bihar and anything criminal alleged by the family has taken place – only in Mumbai and therefore – the appropriate authority having jurisdiction to probe and pursue the matter is only Mumbai police.
The Criminal Procedure Code of India provides for such scenarios – where an FIR can be registered elsewhere and then transferred to the place of cause of action authorities to probe. The FIR in such cases is called a Zero FIR and it has to be transferred to where the crime is alleged to have taken place.
Adopting this ‘letter of the law approach’, it is Rhea’s (lawyer’s) contention that the Bihar police – has no jurisdiction and therefore its referral to the CBI is also without foundation.
On the other hand, the Mumbai police – have not yet registered an FIR in the case although it has been more than 66 days. The same Criminal Procedure Code also provides that in case of an unnatural death, the local police will proceed with its inquest to determine the cause of death under Section 174 proceeding with recording an ADR – Accidental Death Report. The local police should attend the scene, talk to two independent local people in the neighbourhood in order to determine the cause of death. The law requires the police officer to report the matter to the local executive magistrate – who practically is in-charge of what the police officer attending to the matter is doing. The police officer has to submit his/her report of the inquest into the cause of death – that is all there is to his/her role at that stage to the executive magistrate.
If the death is suspicious, the body should be securely sent for a postmortem report without contamination – recording all the details of any injuries, marks or anything else which may be of relevance to determining the cause of death. The police has to take every step to seal the area for all the possible criminal and forensic evidence to be collected – again without it being contaminated – in order to establish the cause of death and to assist in further investigations which are to follow – if the postmortem report also supplements the suspicion and rules out conclusively suicide or accidental death.
As per the law proceeding on the ADR, the local police officer should wind up the inquest soon as it obtains the postmortem report. And – should there be any suspicions of any crime having been committed and not a plain suicide or accidental death, an FIR has to be registered and an investigation of that registered crime has to begin.
The law actually empowers the police officer to start investigation into the suspected crime even before the magistrate has given the go ahead. Section 156(2) and (3) clarify that.
The general time frame accepted for finalization of the ADR is no more than a week or the final post mortem report whichever is sooner, unless otherwise warranted by exceptional circumstances.
What the Mumbai police has done, is in the public domain.
On August 5, the matter was duly accepted by the CBI and an SIT has been constituted. This has taken place after the state of Bihar chose to ask the CBI to come in to investigate.
Why is Rhea opposing the current path of CBI coming in
Rhea’s lawyers have pleaded to accept the CBI if the apex court is so minded but not via the state of Bihar. The family and supporters of SSR say Rhea had asked for the CBI even before any FIR was registered and thus has no right to oppose the CBI probe. The difference is – when she asked for the CBI probe back on 16 July – she was not the accused, she is the main accused in the FIR handed over to the CBI.
CBI options for the Supreme Court now:
- Under Article 142 of the Constitution of India, the apex court has the necessary powers to order the CBI probe and it can adopt that path.
- The apex Court also has powers to take Suo Moto action and order the CBI to probe the death of SSR under Article 32 of the Constitution of India.
Taking either of the above paths to deliver its decision today, the court does not require the consent of the state of Maharashtra.
- It can also find that the aggrieved father of SSR, KK Singh being domiciled in the jurisdiction of Rajiv Nagar police station where the FIR was lodged, even if partially, validates the FIR. The apex court can also take into consideration the negligent conduct of the Mumbai police to ignore February 25 written communication to the DCP of Zone 9 – Bandra.
- On a finer legal point – the law used by Rhea’s lawyers to file the application by Rhea to have the case transferred to Mumbai is Section 406 of the Criminal Procedure Code. On the reading of it – the Section deals with the transfer of cases and appeals from the High Court of one state to the High Court of another. The matter is not a case or appeal but mere investigation which is a precursor to a case or appeal.
Should we find the apex court minded not entertain the application on this final legal point, it paves the way for it to order the CBI probe.
On the contrary, should Justice Roy in his decision today find in Rhea’s favour, His Honour will be calling for demonstrations on the streets of India.
No matter what the decision today, in all likelihood, the parties will try to appeal against the decision of His Honour Justice Roy given the high stakes of parties in the matter. It will depend on the mood of the court.