Uttarakhand High Court
Iqbal Singh vs State Of Uttarakhand And Others on 28 July, 2016
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Crl.) No.513 of 2015
Iqbal Singh. ........Petitioner
Versus
State of Uttarakhand & others. .......Respondents
Mr. S.K. Mandal, Advocate for the petitioner.
Mr. A.S. Gill, Deputy Advocate General with Mr. Milind Raj, Brief Holder for the State
of Uttarakhand/respondent nos. 1 to 3.
Mr. Arvind Vashisht, Senior Advocate for C.B.I./respondent no. 4.
Mr. S.P.S. Panwar, Senior Advocate, assisted by Mr. Vipul Sharma, Advocate for
respondent nos. 5, 6 & 7.
Dated: July 28, 2016
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
V.K. BIST, J.
Petitioner has approached this Court seeking the following reliefs:
"I. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to give necessary protection of life and liberty to the petitioner from the accused persons. II. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to transfer the investigation of FIR No. 94/2015 under Section 302 of I.P.C., P.S. Kichha District Udham Singh Nagar dated 21.4.2015 to the C.B.I. for proper investigation. III. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to take necessary action for arrest of the accused persons in FIR No.94/2015 under Section 2 302 of I.P.C., P.S. Kichha District Udham Singh Nagar dated 21.4.2015."
2. Briefly put, the case of the petitioner is as follows:
The petitioner is father of Jasvinder Singh @ Jassa, who was arrested by the police personnel of Police Station Kichha on 20.04.2015 at about 4:00 p.m. The son of the petitioner was very healthy and was in good physical condition. On asking by the petitioner about the arrest of his son, the In-charge of Reporting Out Post Lalpur, P.S. Kichha along with a constable informed the petitioner that his son was being taken by them for interrogation in a case, he will be released and sent to the home after sometime. Thereafter, the petitioner went to the police chowki with his relatives, where he was informed that his son was taken to police station Kichha. The petitioner and his relatives went to police station Kichha and saw that the son of the petitioner was lying down in the room of the Circle Officer (for short 'C.O.'), P.S. Kichha, District Udham Singh Nagar. The petitioner requested the C.O. to release his son, as he is innocent, but the C.O. told the petitioner that after taking the finger prints of his son, he will be released after some time. Thereafter, the C.O. took away the son of the petitioner with him to some unknown place. Same day, another son of the petitioner went to police chowki and asked about his brother Jasvinder Singh @ Jassa. There he was informed that the son of the petitioner was admitted in Sushila Tiwari Hospital, Haldwani. Immediately, the 3 petitioner alongwith his relatives went to the Sushila Tiwari Hospital Haldwani, but they were not permitted to meet the son of the petitioner and there was heavy police force deputed outside the Hospital. Someone from the crowd told that the dead body of one person was taken by the police from Kichha. On the next day morning, the petitioner and his relatives went to the Police Station Kichha, and then they saw the dead body of Jasvinder Singh @ Jassa. Thereafter, the petitioner lodged F.I.R. under Section 302 of I.P.C. against the C.O., Chowki In-charge, S.S.I. and other police officers, which was registered as FIR No. 94/2015. On 21.04.2015, Post-Mortem on the body of the deceased Jasvinder Singh @ Jassa was conducted at Government Medical College & Sushila Tiwari Hospital Haldwani by panel of five doctors. According to the medical report, there were 11 injuries found on the body of the deceased Jasvinder Singh @ Jassa. As per their report, cause of death to be declared after receipt of histo-pathological report. All injuries were ante-mortem and death was within few minutes and the cause of injuries was blunt force impact. The pattern of injuries was suggestive of assault. Though named F.I.R. was lodged against the police personnel, but police did not take any action against the accused person and also did not take timely steps for further investigation. Thereafter, the relatives and local inhabitants of the deceased protested before the police station Kichha and agitated for the arrest of the accused person. The local representative also asked for the arrest of the accused person. A news item was 4 published in the daily news paper Dainik Jagran on 22.04.2015 showing that the police is not taking action against the accused person. A news item was also published in the evening news paper Basundhara Deep on 21.04.2015 showing that the innocent Jasvinder Singh @ Jassa has been murdered in the police custody and the accused are absconding and are not being arrested. On 25.04.2015, the petitioner made an application to the Home Minister, Government of India, National Human Right Commission and Director General of Police, Dehradun, through registered post, stating therein that on 24.04.2015, at night, the accused S.S.I. Kamal Hassan along with two other person came to the house of the petitioner and asked him to withdraw the F.I.R. lodged against him and threatened him for severe consequences. Thereafter, the civil police also started threatening the petitioner and his relatives by telling them that they will be falsely implicated in the criminal case. The petitioner and his family members are living under the fear of police and the police can implicate the petitioner in false criminal case at any time. Since the life and liberty of the petitioner is in danger, hence he filed this writ petition seeking the reliefs, which we have already adverted to.
3. Supplementary affidavit on behalf of the petitioner has also been filed, in which it is, inter alia, stated as follows:
"4. That on 13.05.2015, the Information Officer, Government Medical College, 5 Haldwani issued a letter stated therein that on 21.04.2015 at about 12:15 a.m., the son of the petitioner Jasvinder Singh was brought in the Hospital and at 12:30 a.m., he was declared death by the Doctor, the deceased Jasvinder Singh was not admitted in the Hospital and the proper information was sent to the local police.
5. That on 14.05.2015, the Public Information Officer of District Magistrate Udham Singh Nagar provided the information to the petitioner stated therein that on 22.04.2015 sum of Rs. 10,00000/- through cheque no. 505596 Bank of Baroda given to Smt. Paramjeet Kaur W/o Late Jasvinder Singh @ Jassa as a compensation of death of Jasvinder Singh @ Jass in police custody as per the oral direction of Hon'ble Chief Minister.
6. That on 18.05.2015 the officer incharge of police station Kotwali Kichha, issued the information stated therein that there is no case was registered against Jasvinder Singh @ Jassa.
7. That on 28.05.2015 the public information officer of medical college Haldwani provided the information to the petitioner that the deceased Jasvinder Singh was brought by Sri C.O..R. Joshi, Sri B.L. Vishvakarma (Inspector).
8. That from the perusal of the aforesaid information it is evident that the son of the petitioner has been murdered in police custody, but till date, proper investigation has not been made as the accused persons are the member of civil police and they are the senior officers of the police department, therefore there is no hope for fair and proper investigation in the hand of investigation agency of State Government.
9. That the state government/ investigation agency is not taking the appropriate steps for arrest of the accused 6 person and there is chance of tampering with the witnesses."
4. Counter affidavit on behalf of S.S.P., Udham Singh Nagar/respondent no. 2 has been filed. In the counter affidavit, it is stated that one Case Crime no. 47/15 was registered on 13.03.2015 regarding rape and murder on 12.03.2015. After receiving this information, same day the respondent no. 2 passed an order directing T.D. Bela, Additional S.P. to constitute a team. In compliance of the order passed by the respondent no.2, a team was constituted on 21.03.2015. No information regarding the incident mentioned in the writ petition was given to respondent no. 2 by any subordinate earlier. Matter was reported on 21.04.2015 and without any delay, the respondent no. 2 informed D.I.G. Range telephonically about the incident and, in the morning, a letter was also sent. It is stated that one complaint against police officers was received and the S.H.O., Kichha was directed to convert this complaint into F.I.R. same day. C.O., Kichha was deputed by the Additional S.P., Rudrapur as an Inquiry Officer/Investigating Officer. It is submitted that after getting information regarding this incident, the respondent no. 2 took immediate action against three persons, namely, Constable Madan Singh, who is not respondent in this writ petition; S.I. Manoj Kumar, who is respondent no. 6 and S.S.I. Kamal Hassan, who is respondent no. 7. It is stated that the recommendation seeking sanction for suspension of C.O. (respondent no. 5) was sent by the 7 respondent no. 2 same day. It is further stated that sanction was necessary for suspension of Circle Officer and in the present case, after getting sanction from the State, Shri J.R. Joshi (respondent no. 5) was also suspended by order dated 28.04.2015. Respondents 5, 6 & 7 and one Madan Singh, who is not a respondent in this writ petition but named in F.I.R., were also suspended by the respondent no. 2. Shri T.D. Baila, Addl. S.P. was appointed as an Inquiry Officer. It is stated that because the allegation was against the police personnel, in the interest of justice, the respondent no. 2 requested the D.I.G., Kumaun Range to transfer this case for the purposes of investigation to another district same day and as such, there is no negligence or any latches on the part of respondent no. 2 regarding this incident and he has been unnecessarily made as respondent no. 2 and he may be discharged from this petition. It is stated that in compliance of this Court's order dated 01.05.2015, the respondent no. 2 passed order same day directing the Inspector Reserve Line to give full protection to the petitioner without any latches and negligence. The copy was given to S.H.O., Kichha same day in this regard for compliance. In compliance of the order dated 01.5.2015, Armed Constable 622 C.P. Ved Prakash, was deputed and deployed for the protection of the petitioner. It is stated that the petitioner is satisfied regarding protection provided by the respondent no. 2 to him, which is clear from his letter dated 03.05.2015 addressed to the S.H.O., Kichha. It is stated that the respondent no. 2 has never received 8 any complaint from the petitioner regarding any threat from respondent no. 7 or any other police personnel. If any complaint would have been made against the respondent no. 5, 6 & 7, the respondent no. 2 would have certainly taken appropriate action against them. It is stated that proper investigation was started by the C.O., Khatima, Shri Uttam Singh Negi and petitioner was required to cooperate with the Investigating Officer in this matter for the proper and fair investigation. It is submitted that because a free and fair investigation started in this matter and all accused, alleged in the writ petition as well as in the F.I.R., have been suspended by the respondent no. 2 and a departmental enquiry has also been constituted against respondent no. 5, 6 & 7, as such, there is no need to transfer the investigation. The D.I.G., Kumaun also recommended this matter to be investigated by C.B.C.I.D. for free and fair investigation. It is stated that the allegations are vague, improper and no evidence is seen against anyone regarding tampering the investigation. It is stated that no person is above law, and guilty must be punished and the police is discharging its duties in accordance with law. Respondent nos. 5, 6 & 7 are now attached in the police line as well as at police headquarters. The police is trying its best for free and fair investigation. Police is taking action in accordance with law. It is stated that before filing this writ petition, the petitioner had not approached the department for any relief and directly filed this writ petition, thus the writ petition is liable to be dismissed with costs.
95. Short counter affidavit has been filed on behalf of S.H.O., Police Station Kichha/respondent no.3. In the short counter affidavit, he has stated that on the date of incident, neither he was shown in the company of respondent no. 5, 6 & 7 nor any allegation regarding any incident was leveled against him neither in the F.I.R. nor in the writ petition. On that day, he was on duty regarding approval of gang charts. Further, on the same day, in evening, he was doing his duty and was looking after law and order in the town.
6. Mr. S.K. Mandal, learned counsel for the petitioner submitted that the 34 years old healthy son of the petitioner was murdered by the accused police personnel of police station Kichha in their custody, in the name of the interrogation. He was murdered by assaulting him with the blunt object. He submitted that the son of the petitioner was not involved in any crime. He was a peace loving and law obedient farmer, having four minor children and wife. He submitted that since the offence has been committed by the police personnel and the investigation is conducted by C.B.C.I.D., through the persons belonging to police force, they were under the political pressure of higher officers of the police, therefore, there is no fair investigation. Even no steps were taken in time for the arrest of accused persons. In fact, appropriate action for collection of the evidence and the custodial interrogation was not taken by the Investigation officer. He submitted that the accused persons had been moving freely and they have high approach in the 10 police department, therefore, they have managed the Investigation. Higher officers of the civil police also extended help to the accused persons. He submitted that, as per the Medical Report, the death of the son of the petitioner was caused within few minutes from the injuries sustained, which clearly shows that the police personnel badly beaten the son of the petitioner. Post Mortem Report shows that the anti mortem injuries were caused within day. He submitted that the petitioner is an old person of 62 years and has lost his young son by assault of the police personnel in their custody. The accused persons are powerful officers of the Police Department and they have very good approach politically, therefore, they, to some extent, succeeded in influencing the Investigation Officer. There has been no fair investigation. In such circumstances, now C.B.I. be given the case for further investigation, so that proper investigation be done and real facts be brought on record. He also submitted that the life and liberty of the petitioner is in danger from the police and necessary protection of life, liberty and property of the petitioner be given to him. He submitted that there is possibility of threat being extended to the witnesses and the relatives of the deceased, and they may withdraw themselves from giving evidence against the police personnel. He also submitted that investigation of the case was influenced and charge sheet has not been filed under Section 302 of I.P.C. He submitted that investigation by C.B.I. be done in view of the fact that the State Investigation Agency C.B.C.I.D. is one of the branch of the police 11 department and since the police officers of the same department were involved, proper and fair investigation was not conducted and, therefore, the present case be given to C.B.I. for proper and fair investigation. By doing so, faith in the system will be maintained. Learned counsel for the petitioner, in support of his arguments, relied upon paragraph nos. 76, 81, 82, 84, 86, 91, 92, 93, 94 & 95 of the judgment given in the case of Pooja Pal Vs. Union of India & others, reported in (2016) (3) Supreme 135, paragraph nos.10, 16, 19, 20, 21 & 22 of the judgment given in the case of Dharam Pal Vs. State of Haryana & others, reported in 2016 (1) Supreme 702, paragraph nos. 59, 63 & 64 of the judgement given in the case of Narmada Bai Vs. State of Gujarat and others, reported in (2011) 5 SCC 79 and paragraph nos. 53, 54, 60, 80, 81 & 82 of the judgment given in the case of Rubabbuddin Sheikh Vs. State of Gujarat and others, reported in (2010) 2 SCC 200.
7. Respondents' counsel strongly opposed the prayer made by the petitioner. Mr. A.S. Gill, learned Deputy Advocate General submitted that first the investigation was being conducted by civil police; but, subsequently, same was transferred to C.B.C.I.D. and, now, charge sheet has been filed against the accused persons. Investigation was conducted fairly and there is no need to issue direction to C.B.I. to further investigate the matter. He submitted that deceased was not having good health and his condition was deteriorated in the police station, therefore, he was 12 shifted to hospital. He denied beating by the police. Mr. S.P.S. Panwar, learned Senior Advocate appearing for the respondent nos. 5, 6 & 7 submitted that chargesheet has been filed wrongly under pressure, as virtually case was being monitored by the High Court in the present petition. According to him, it was pressure of pendency of the case in the High Court, otherwise no chargesheet would have been filed against the respondent nos. 5, 6 & 7. He submitted that in any case, the injuries were minor and for those injuries, nobody can be charged under Section 304 I.P.C. According to him, it is not a fit case to be given to the C.B.I. He submitted that deceased was a heart patient, having enlarged heart of 393 gms. He relied on paragraph no. 14 of the judgment given in the case of Mohammad Yasin Vs. State (NCT of Delhi) & others, reported in (2009) 14 SCC 644, which is quoted below.
"14. It is mentioned in the counter affidavit that directions issued by this court in D.K. Basu (supra) have been followed in true spirits. It is also mentioned that according to the opinion of doctors, a normal heart weighs around 240-300 grams whereas the heart of the deceased was 460 grams and had the high risk of sudden death with or without provocation. Such a grossly enlarged and overweight heart does not happen in a day or two but it will take at least 5 to 10 years which in itself indicates a long heart ailment which is supported both by the medical evidence as well as the categorical statement of the appellant himself. It is also stated that the distance between the place of arrest and the ESI hospital is 96 kms. One and half hour 13 driving time is absolutely normal, therefore, the allegation that the delay of one and half hour shows that the deceased was first taken to some place where he was tortured and injuries inflicted due to which he died, is not only false but preposterous."
By relying on this judgment, he submitted that the death of the deceased Jasvinder Singh was caused due to heart attack and not due to police torture. In support of his other arguments, he placed reliance on paragraph nos.70 & 71 of the judgment of Hon'ble Apex Court given in the case of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal & others, reported in (2010) 3 SCC 571, paragraph no.14 of the judgment given in the case of Mohammad Yasin Vs. State (NCT of Delhi) & others, reported in (2009) 14 SCC 644, paragraph nos. 11, 24, 25, 26 & 27 of the judgment given in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others, reported in (2008) 2 SCC 409, paragraph nos. 15 & 16 of the judgment given in the case of M.C. Abraham and another Vs. State of Maharashtra and others, reported in (2003) 2 SCC 649, paragraph no.6 of the judgment given in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another, reported in (2002) 5 SCC 521 and paragraph no.8 of the judgment given in the case of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, reported in (1996) 11 SCC 523.
148. As far as power of superior courts is concerned, now it is settled that the superior courts have power of transferring the investigation from one agency to another, provided the ends of justice so demand. Superior courts have jurisdiction to direct further investigation, fresh or de-novo or reinvestigation. The question is under what circumstances and in what type of cases Court should direct the C.B.I. to investigate the matter.
9. For appreciating the case on the point, whether we should now refer the matter for further investigation to C.B.I., first of all, we are referring the case law, referred by the parties, in the subsequent paragraphs.
10. In paragraph nos. 81 and 82 of Pooja Pal Vs. Union of India & others, reported in (2016) (3) Supreme 135, the Hon'ble Supreme Court has observed about fair and proper investigation in the following manner:
"81. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi vs Irshad Ali @ Deepak and others (2013)5 SCC 762 to encompass two imperatives; firstly the investigation must be unbiased, honest, just and in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.
82. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya and others vs. State of Karnataka and others 15 (2012)7 SCC 407 that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction."
11. We may further refer to paragraph nos. 20 & 21 of Dharam Pal Vs. State of Haryana & others, reported in 2016 (1) Supreme 702.
20. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.
21. We may further elucidate. The power to order fresh, de-novo or re-
investigation being vested with the Constitutional Courts, the commencement of 16 a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "'id'ee fixe" but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier facts are self-evident and the grieved protagonist, a 17 person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law".
12. Now, we refer to paragraph nos. 59, 63 and 64 of Narmada Bai Vs. State of Gujarat and others, reported in (2011) 5 SCC 79 and paragraph nos. 53, 54, 60, 80, 81 & 82 of Rubabbuddin Sheikh Vs. State of Gujarat and others, reported in (2010) 2 SCC 200, which have been referred by learned counsel for the petitioner. He, by relying on these judgments, submitted that since involvement of police officer is apparent, the matter should be further investigated by C.B.I. Paragraph nos. 59, 63 & 64 of Narmada Bai Vs. State of Gujarat and others, reported in (2011) 5 SCC 79:
"59. It is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The fact that in the case of murder of an associate of Tulsiram Prajapati, senior police officials and a senior politician were accused which may shake the confidence of public in investigation conducted by the State Police. If the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI.
63. In both these decisions, this Court refrained from expressing any opinion on the allegations made by either side but thought it wise to have the incident investigated by an independent agency like the CBI so that it may bear credibility.18
This Court felt that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as allegations were directed against them. This Court, therefore, thought it both desirable and advisable and in the interest of justice to entrust the investigation to CBI so that it may complete the investigation at an early date. It was clearly stated that in so ordering, no reflection either on the local police or the State Government was intended. This Court merely acted in public interest.
64. The above decisions and the principles stated therein have been referred to and followed by this Court in Rubbabuddin Sheikh (supra) where also it was held that considering the fact that the allegations have been leveled against high- level police officers, despite the investigation made by the police authorities of the State of Gujarat, ordered investigation by the CBI. Without entering into the allegations leveled by either of the parties, we are of the view that it would be prudent and advisable to transfer the investigation to an independent agency. It is trite law that the accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them."
Paragraph nos. 53, 54, 60, 80, 81 & 82 of Rubabbuddin Sheikh Vs. State of Gujarat and others, reported in (2010) 2 SCC 200:
"53. It is an admitted position in the present case that the accusations are directed against the local police personnel in which the high police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ petitioner or even the public to come 19 forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility however faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody.
54. It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI Authorities would be an appropriate authority to investigate the case.
60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency.
Therefore, it can safely be concluded that in an appropriate case when the court feels 20 that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to handover the investigation to an independent agency like CBI.
80. We have already discussed the decisions cited from the Bar on the question that after the charge-sheet being filed whether the investigation could be handed over to the CBI Authorities or to any other independent agency from the State police authorities. We have already distinguished the decisions cited by the State that they related to the power of the court to monitor the investigation after the charge sheet was filed. The scope of this order, however, cannot deal with the power of this Court to monitor the investigation, but on the other hand in order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter. Since the high police officials of the State of Gujarat are involved and some of them had already been in custody, we are also of the view that it would not be sufficient to instill confidence in the minds of the victims as well as of the public that still the State Police Authorities would be allowed to continue with the investigation when allegations and offences were mostly against them.
81. In the present circumstances and in view of the involvement of the police 21 officials of the State in this crime, we cannot shut our eyes and direct the State Police authorities to continue with the investigation and the charge sheet and for a proper and fair investigation, we also feel that the CBI should be requested to take up the investigation and submit a report in this Court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them.
82. Accordingly, in the facts and circumstances even at this stage the police authorities of the State are directed to hand over the records of the present case to the CBI Authorities within a fortnight from this date and thereafter the CBI Authorities shall take up the investigation and complete the same within six months from the date of taking over the investigation from the State police authorities. The CBI Authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy. The report of the CBI Authorities shall be filed in this Court when this court will pass further necessary orders in accordance with the said report, if necessary. We expect that the police authorities of Gujarat, Andhra Pradesh and Rajasthan shall co-operate with the CBI authorities in conducting the investigation properly and in an appropriate manner."
13. We also wish to refer to few judgments of the Hon'ble Supreme Court, in which the Hon'ble Supreme Court has dealt the situation where matter could be referred to C.B.I. Paragraph no. 70 and 71 of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal & others, reported in (2010) 3 SCC 571:
22"70. Before parting with the case, we deem it necessary to emphasize that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
71. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Anr.31, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any 23 other similar agency. We respectfully concur with these observations."
Paragraph no.6 of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another, reported in (2002) 5 SCC 521:
"6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law- abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause."
Paragraph no.8 of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, reported in (1996) 11 SCC 523:
"8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not 24 attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2.6.1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the powers and Jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station, on case No.159 of 9.3.1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (l) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act,1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120-8 and 201 I.P.C. and Section 4 of the Prevention Of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No.159 dated 9.3.1933 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police 25 Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police had not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate."
14. Now, we will deal with the present case. We have already referred the judgments of the Hon'ble Supreme Court. Now, it is settled that in such cases High Court's power under Article 226 of the Constitution of India must be exercised sparingly, cautiously and in exceptional situations where it becomes extremely necessary, of course, after considering the entire material on record and after reaching the conclusion that investigation/further investigation should be done by the C.B.I. In the cases, like present case, High Court has to see that whether investigation done was in accordance with law, unbiased and just. We have further to see prima facie 26 whether investigation was influenced by the interested and influential persons, as alleged by the petitioner and also due to the fact that accused are police personnel.
15. There is no dispute that police took the deceased to Police Station Kichha in the evening of 20.04.2015 for the purpose of interrogation in connection with a case registered under Section 302 and 376 of I.P.C. He was taken to police chowki, as it appears that petitioner, with family members and others, gathered at the Police Station. Petitioner was informed that son of the petitioner was being taken for taking his finger impression and, thereafter, he will be released. After sometime, petitioner's another son went to police chowki, where he was informed that deceased was taken to Sushila Tiwari Hospital, Haldwani. Petitioner and his relatives went to Sushila Tiwari Hospital, where they saw heavy police force and crowd. Someone from crowd informed the petitioner that dead body of one person was brought by police from Kichha. Thereafter, the petitioner learnt that his son had died. Next day morning, petitioner lodged F.I.R. under Section 302 of I.P.C. against the C.O., Chowki In-charge, S.S.I. and other police officers, which was registered as F.I.R. No. 94 of 2015.
16. We find that firstly the investigation was conducted by the officers of civil police. Mr. Uttam Singh Negi, C.O. Khatima, was the first Investigating Officer, who investigated the case from 22.04.2015 to 27 23.04.2015. Thereafter, Mr. Harish Chandra Panda, Inspector In-charge, Bhowali, became the second Investigating Officer of this case and he investigated the case from 23.04.2015 to 06.05.2015. After that, Mr. Yashwant Singh Chauhan, Additional S.P. Nainital, became the third Investigating Officer and investigated the case from 07.05.2015 to 27.05.2015. According to the State, since officials of civil police were named in the F.I.R., the investigation was transferred to C.B.C.I.D on 26.05.2015. Mr. Baljeet Singh Bhakuni, was the fourth Investigating Officer, who investigated the matter from 27.05.2015 to 20.06.2015. Mr. Ramiram was the fifth Investigating Officer, who investigated the case from 20.06.2015 to 23.09.2015. Dr. Harish Verma, Additional S.P., C.B.C.I.D. Haldwani, was the sixth Investigating Officer, who investigated the case from 23.09.2015 to 01.12.2015 and Mr. Devendra Peencha, C.O., C.B.C.I.D, was the last Investigating Officer from 04.12.2015 till the filing of chargesheet. After investigation, chargesheet has been filed against J.R. Joshi, Manoj Kumar, Kamal Hassan and Jitendra Soaradi under Sections 304, 330, 348/34 of I.P.C. We find that deceased was taken to police station Kichha for interrogation in connection with a criminal case. As per the version of the petitioner, at that time, his son was hale and hearty. He was beaten inside the police station and was hit by a blunt object and he died due to that injury. We have also perused the Post Mortem Report, in which it is stated that the cause of death is to be declared after receipt of Histo pathological report; all the injuries 28 described in the Post Mortem Report are ante mortem in nature, with duration of within a day consequent upon blunt force impact, the pattern of injuries described is suggestive of assault. Following ante mortem injuries were found on the person of deceased:
"(i) Diffuse swelling present on centre top of head on dissection extravasation of blood present in the underlying tissue, on removal of skull cap and on dissection of the dura the brain found oedematous with engorged blood vessels.
(ii) Reddish contusion of size 2.5x2.5cm present on left alae of nose with infiltration of blood in the underlying tissue.
(iii) Crescentric reddish abrasion of size 0.5x0.5 cm present on right nasion with infiltration of blood in the underlying tissue.
(iv) Buccal cavity contains bloody secretions on further dissection lacerated wound of size 4mmx4mm and 3mmx3mm on lateral aspect anterior 1/3 on right side and lacerated wound of size 4mmx4mm on dorsal aspect of right side anterior 1/3, lacerated wound of sixe 4mmx4mm on left side anterior 1/3 found present.
(v) Reddish blue contusion of size 1.4cmx1.8cm, discoid in shape found on medial aspect of left arm, 9cm above the elbow joint with infiltration of blood in the underlying tissue.
(vi) Reddish blue contusion of size 0.5x0.5cm present 1cm below injury no. 5 with infiltration of blood in the underlying tissue.
(vii) Three Reddish abrasion each of size 0.5cmx0.5cm present on lateral aspect of left hand each 6mm apart and parallel to each other the lower one starting 1cm above the elbow joint with 29 infiltration of blood in the underlying tissue.
(viii) Reddish abrasion of size 0.5cmx0.5cm present on dorsal medial aspect of left hand, 0.5 cm above the wrist joint, with infiltration of the blood in the underlying tissue.
(ix) Reddish abraded tram track contusion of size 5cmx.2.5cm present on posterior aspect of right leg placed obliquely and is 9cm below the knee joint, with infiltration of blood present in the underlying tissue.
(x) Reddish contusion of size 0.5x0.5 cm present on left upper back of chest, 5cm below nape of neck and is 6cm lateral to the midline, placed vertically with infiltration of the blood present in underlying tissue.
(xi) Reddish contusion of size 2.5cmx0.5cm presents 1.5 cm above and medial and above to injury no. 10, placed obliquely with infiltration of blood present in the underlying tissue."
17. As per the Post Mortem Report, heart was congested and weighs 393 grams with increase in fibro fatty mass, the thickness of left ventricle wall is 2mm and the thickness of right ventricle wall is 1cm. (Sent for Histo pathological examination in 10% formalin).
18. The case of the petitioner is that the deceased died due to police beating with blunt object, whereas the case of the private respondents is that the cause of death is weak heart and its failure. From the perusal of the Post Mortem Report, we find that team of doctors conducting post mortem was not sure about the cause of death and they observed that "the cause of Death to the 30 best of my knowledge and belief is to be declared after receipt of Histo pathological report; all the injuries described in the postmortem report are ante mortem in nature with duration of within a day consequent upon blunt force impact, the pattern of injuries described is suggestive of assault." At this stage, we don't think that any inference should be drawn by the Court, regarding cause of death of the deceased for deciding the issue relating to investigation.
19. It is not a case of enmity between the family of petitioner or deceased with the accused person. At least, this is not a case of the petitioner. His case is that deceased was hale and hearty, when he was taken by the police for interrogation and death was caused inside the police station by hitting him by a blunt object and since, murder of petitioner's son was committed inside police station, chargesheet should have been filed under proper section i.e. under Section 302 of I.P.C. and, therefore, investigation is not fair. Further, he has contended that B.L. Vishvakarma, who brought deceased to the hospital, has been let off though his involvement is apparent. It is true that there are as many as 11 ante mortem injuries on the body of the deceased. From the perusal of the record, till this stage, we have not found anything, prima facie, which could suggest that investigation 31 was influenced by interested person and we should refer the matter to C.B.I. for further investigation. We could not find that investigation was not done in accordance with law. Only for the reason that accused are police officials, in our view, the matter cannot be referred to C.B.I. The accused have already been chargesheeted under Sections 304, 330, 348/34 of I.P.C. We have not discussed the case in detail, as same may affect the case of either of the parties; but, we are, prima facie, of the view that this is not a fit case to be referred for further investigation to C.B.I. But, we make it clear that judgment in this case will not affect the right of the petitioner to avail any remedy which is available to him under the law and he will be free to do so. Also, needless to say, it will always be open to the Court to exercise the power available to it under law. But, considering the facts and circumstances of the case and considering the fact that since the petitioner's allegation is against police officials, we direct that necessary protection be provided to the petitioner and his family members till trial is over. To this extent, the writ petition is partly allowed. In respect of other reliefs, petition stands dismissed.
20. There will be no order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 28.07.2016 Arpan