44. In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr., AIR 2002 SC 2225, this Court placed reliance on its earlier judgment in Common Cause, A Registered Society v. Union of India and Ors., (1999) 6 SCC 667 and held that before directing CBI to investigate, the court must reach a conclusion on the basis of pleadings and material on record that a prima facie case is made out against the accused. The court cannot direct CBI to investigate as to whether a person committed an offence as alleged or not. The court cannot merely proceed on the basis of `ifs’ and `buts’ and think it appropriate that inquiry should be made by the CBI.
45. In Divine Retreat Centre (Supra), this Court held that the High Court could have passed a judicial order directing investigation against a person and his activities only after giving him an opportunity of being heard. It is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person in violation of principles of natural justice. A person against whom an inquiry is directed must have a reasonable opportunity of being heard as he is likely to be adversely affected by such order and, particularly, when such an order results in drastic consequence of affecting his reputation.
46. In D. Venkatasubramaniam and Ors. v. M.K. Mohan Krishnamachari and Anr., (2009) 10 SCC 488, this Court held that an order passed behind the back of a party is a nullity and liable to be set aside only on this score. Therefore, a person against whom an order is passed on the basis of a criminal petition filed against him, he should be impleaded as a Respondent being a necessary party.
47. This Court in Disha v. State of Gujarat and Ors. AIR 2011 SC 3168, after considering the various judgments of this Court, particularly, in Vineet Narain and Ors. v. Union of India and Anr., AIR 1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661; Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India, (2006) 6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat and Ors., AIR 2010 SC 3175; and Ashok Kumar Todi v. Kishwar Jahan and Ors., (2011) 3 SCC 758; held that the court can transfer the matter to the CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State Authorities like high police officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.
48. Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible.