Dr. (Ku.) Kalyani Pandey vs Union Of India Judgement Given By: ... on 29 October, 2013

[Cites 37, Cited by 1]

Madhya Pradesh High Court

Dr. (Ku.) Kalyani Pandey vs Union Of India Judgement Given By: ... on 29 October, 2013

1. The petitioner being Spokesman of Congress-I of State of M.P., Ex- MLA of State of M.P., Ex-Mayor of Jabalpur Municipal Corporation, and also Office bearer of various social institutions, has filed this regular Public Interest Litigation petition for the following reliefs:-

"1. That this Hon'ble Court may kindly be pleased to issue a writ in the nature of Mandamus to the Competent Authority to depute the Central Bureau of Investigation (C.B.I.) to investigate into the murder of the deceased.

2. That this Hon'ble Court may be pleased to issue a writ in nature of Mandamus for providing police protection to the family members of the deceased, including the eye witness of the incident, thereby protecting the life, limb and property at the hands of local police administration and State Administration.

3. That this Hon'ble Court may be pleased to issue a writ in nature of Certiorari thereby quashing the Crime No.169/12 and Crime No.170/12, registered at Police Station Suatala, District Narsinghpur.

4. Any other relief which this Hon'ble Court deem fit and proper may also be awarded to the petitioner in the nature of public interest"

2. The facts giving rise to this petition in short are that, Shri Ambika Prasad Dubey @ Munna Maharaj, being resident of village Jhilpinadhana of District Narsinghpur was a volunteer of Indian National Congress-I Party, and the president of Van Samiti of his village. He was also involved in social services of the Tribals of such area, pursuant to that majority of Tribals had remained with the National Congress-I political party and on account of this reason, party had won some election. At present, the wife of younger brother of Ambika Prasad Dubey is Sarpach of the village. He being devoted to the social work, was popular in the vicinity for raising the voice against the police and State machinery with respect of the atrocities carried out by its officials on the Aadisavi and the public at large.

3. On dated 15.6.2012, in his village some food material grain under a Scheme for distribution to the Aadivasi through Sahakari Samiti brought to the village by some persons in a Vehicle bearing registration no. MP20-GA-

278. Ambika Prasad had suspected the commodity of such material lesser in comparison stated in its builty, on which he had raised an objection and parked the vehicle in the Society Bhawan and carried out the weight of substance in which same was found to be less by 5 Quintals and 64 Kg, for which he had also prepared Panchnamas (Annexure-P-1 and P-2) in presence of the villagers. On account of his aforesaid public work and action to protect the rights of tribales, the officials of the administration and along with some other persons including police authorities had a grudge with him and due to this reasons, the persons involved in the aforesaid defalcation of sending the less ration to the village had send the police party of Police Station Suatala District Narsinghpur headed by respondent no.8 Ashutosh Chand, Station House Officer along with 10-12 police personnel armed with their service weapons to the village on 16.6.2012 at 4.00 PM. Soon after reaching to the village, they had started abusing to Ambika Prasad Dubey (since deceased) with filthy languages 3 with a threat to kill him made assault on him on which, his daughter Aarti Dubey, son Abhishek with the help of the villagers intervened to save him. At the same time, the respondent no.8 and his police party fellowman had opened the fire by their service weapon on Ambika Prasad Dubey by which, he had sustained four arm injuries on his person. Thereafter, the respondent no.8 accompanied with police officials including the respondents no.9 and 10 Shankar Patel and Rajesh Jaat, Head Constables of aforesaid Police Station Suatala, had ran away from such place. After sustaining the injuries by Ambika Prasad, his daughter and other villagers picked up him from the place of the incident and while taking him to Medical College Jabalpur, on the way, due to aforesaid injuries of firearm, he had died. After his death, his younger brother went to the Police Station Suatala for lodging the report, but his report was not registered against the commission of the aforesaid murder by the police officials. On the contrary, the respondents no.8 to 10 and their fellowman in order to shield their own misdeed and commission of the offence had got registered false cases against the deceased Ambika Prasad Dubey, his son Abhishek with some other persons of the village as Crime No.169/12, for the offence punishable under Sections 394, 342 of I.P.C. and Crime No.170/12 for the offence under Sections 147, 148, 149, 294, 353, 307, 332, 186, 224 and 225 of I.P.C. read with Section 3 (iv) of the Lok Sampatti Hani Adhiniyam. The same were registered with the intention to create pressure on the family members of the deceased and other victims of the police assault, so that they should not raise their voice against the commission of murder of Ambika Prasad Dubey by the above mentioned police officials. The copies of First Information Report of Crime No. 169/12 and Crime No.170/12 are annexed with the petition as Annexure-P-3 and P-4.

4. Subsequent to aforesaid, the daughter of the deceased namely Aarti Dubey had served a report in writing in this regard at Police Station Garha, SDM Gorakhpur, Collector and Superintendent of Police Jabalpur on dated 17.6.2012 for registration of the offence. Such reports are annexed with the petition as Annexure-P-5 and P-6.

5. As on the way to the Hospital, Ambika Prasad Dubey had died then, his corpus was send to Medical College Jabalpur to carry out the post- mortem, the same was conducted. According to postmortem report (Annexure-P-7) Ambika Prasad died due to gun shot injuries as on his person four gun shot injuries were found.

6. Inspite making efforts when the report of the incident was not registered against the aforesaid police officials then, the daughter of the deceased, Aarti Dubey had sent a written report dated 21.6.2012 (Annexure-P-8) to the Hon'ble Chief Justice of High Court of M.P., with a prayer for registration of the offence against the above-mentioned accused persons and for investigation through Central Bureau of Investigation, with a further prayer to protect the life, limb and property of the family members of the Ambika Prasad Dubey and the alleged eye witnesses of the incident from the police atrocities. Subsequent to that, looking to the gravity of the offence by the police officials, in order to shield the commission of their aforesaid offence, the respondent no.4 Collector Narsinghpur vide its order No.6454 dated 19.6.2012, had directed to hold the Magisterial Enquiry of the incident. In consequence of which, the SDM Gadarwara vide its letter dated 9.7.2012 had published Aam Soochna (Annexure-P-9) (public notice). On publication of such notice, the family member of the deceased and the eye witnesses of the incident by submitting letter dated 12.7.2012 (Annexure-P-10) before such SDM had shown their apprehension at the hands of the police, in giving the evidence in the Magisterial Inquiry.

7. Considering the aforesaid complaint of Aarati Dubey dated 21.6.2012 (Annexure-P-8) send to the Hon'ble Chief Justice, a Letter Petition W.P. No.9991/12 was registered in the Madhya Pradesh High Court at Jabalpur. On listing such petition on 18.7.2012 for hearing, the State counsel had taken time to seek instructions from the Collector and S.P. Narsinghpur. A copy of such order is annexed as Annexure-P-11. After 5 filing the return (Annexure-A-12) on behalf of the State authorities on dated 28.7.2012, such petition was listed on 30.7.2012, on such date, the Single Bench of this Court had ordered (Anexure-P-13) for listing the petition after a month to enable the learned Government Advocate to furnish the report regarding steps taken by the State.

8. In para 7 of the aforesaid return, inter-alia stated that "As Magisterial Inquiry has already been ordered by the District Magistrate, Narsinghpur, investigation done by the police is ceased". As per the petitioner the State has protected the police official, who are real culprit of the alleged offence. In such circumstance, the petitioner being the social worker and political figure of the State and on national level, always working for the upliftment of the downtrodden and specially women, had visited the place of the incident, met with the victims of the police atrocities and protested against such commission of murder "in the garb of Khaki".

9. In the aforesaid circumstances, inspite making efforts when the First Information Report of the victims regarding murder of Ambika Prasad Dubey was neither registered nor any investigation in that regard was started by the police authorities on which, the petitioner demanded for investigation of the alleged offence by the CBI and for registration of the FIR. As per the averments, the local administration are hands in gloves with the respondents and instead of lodging the First Information Report, they are shielding the culprits of the offence and in order to show their bonafide, the District Magistrate Narsinghpur has ordered for Magisterial Inquiry, knowing fully well that the alleged offence was committed by the respondents no.8 to 10 and other their official are, the cognizable offence and registration of the FIR of the same under Section 154 of Cr.P.C. was necessary but inspite that, they have not registered the same and in the absence of such FIR against the police officials, no investigation of the offence was started. The initiation of Magisterial enquiry by the District Administration through SDM do not have any legal entity in the eye of law 6 specially when there is prima facie cognizable offence of murder was committed by the police officials, as such directing the magisterial enquiry by the District Administration was nonest and with the object of tampering the evidence of the murder, in order to shield the commission of the offence committed by the respondents no.8 to 10. With these submissions this public interest litigation for conduction of investigation of the matter through Central Bureau of Investigation, with the other reliefs as mentioned above, has been filed.

10. In response filed on behalf of the respondent no.1/CBI on dated 4.2.2013 it is contended that specialized investigation agencies of the State Government like Criminal Investigation Department (CID), Special Task Force (STF) etc. functioning in the State of M.P. are having the necessary expertise for conducing the investigation into the allegations mentioned in the petition. So the investigation through Central Bureau of Investigation, (CBI), specialized investigation agency of the Government of India, dealing with the cases of corruption by public servants of Central Government Departments, Public Sector Undertakings etc. and the cases having inter-State or international ramifications, is already over burdened with the work entrusted to it and if the investigation of the present case is directed to be carried out by it then such institution would be put unavoidable strain. It is also stated that CBI has limited resources to investigate the matter and in the lack of wide infrastructure, it would be very strainful for it to carry out the investigation of the aforesaid matter, if the same is directed and handed over to it.

11. In the return filed on behalf of respondent no.2 to 7, the authorities of the State of M.P. the allegations stated in the petition against the police officials respondents no. 8, 9 and 10 the Station House Officer, Head Constables and other officials of the aforesaid Police Station regarding their alleged criminal act murdering Ambika Prasad Dubey, are denied. It is further stated that present petition is nothing but sheer abuse of process of law and the same has been filed as parallel litigation before this Court, 7 while the writ petition No.9991/12, at the instance of Aarti Dubey, daughter of deceased Ambika Prasad Dubey is pending in which after hearing the complainant Aarti Dubey in person on 18.7.2012, the State counsel was directed to seek instructions from the concerned Collector/SP. In response of the same, a detail return dated 27.7.2012 (Annexure-R-1) was filed in such petition, all the factual aspects of the matter were stated. On hearing of such petition on dated 30.7.2012, after taking into consideration the proceedings of Magisterial enquiry carried out at the instance of the District Magistrate Narsinghpur, it was directed that the enquiry should be conducted in a fair and impartial manner, with a further direction to such District Magistrate to hold such enquiry by sitting at a place nearby residence of the deceased Ambika Prasad Dubey. On completion of the Magisterial enquiry, a report (Annexure-R-2) was prepared on dated 30.10.2012. It is further stated that soon after receiving the FSL report, the FIR has been registered against the respondents no.8 Ashutosh Chand, Station House Officer, respondent no.9 and 10 Kripa Shankar Patel and Rajesh Jat, Head Constables and so also against other persons posted at Police Station Suatala as Crime No.340/12 on dated 28.10.2012 for the offence punishable under Sections 302, 304 and 34 of I.P.C. and R.L. Armo, SDO (P) Tendukheda, District Narsinghpur has been appointed as Investigating Officer. In the light of initial return filed in the writ petition No.9991/12, the Single Bench had observed that since the FIR has been lodged against the concerning police officials and the matter is taken into investigation consequently, the writ petition deserves to be disposed of. But, however, considering the request of the counsel of the complainant/petitioner of such writ petition based on illness, the same was adjourned for next hearing. Thereafter on listing the matter on several occasion, the same was adjourned at the instance of the complainant/petitioner of such writ petition. During the pendency of such writ petition, the present petitioner has filed this Public Interest Litigation. In addition to it, it is stated that the FIR has already been lodged against the concerning police officials and the matter is under active investigation 8 hence, there is no occasion to grant any relief prayed by the petitioner in the instant petition whereas, the Crime No.169/12 and 170/12 registered against the deceased and other persons, deserve to be investigated properly in view of the FSL report and Magisterial enquiry report. It is also stated that accused persons therein are free to avail the recourse available under the law against registration of crime against them. In such premises, the present Public Interest Litigation is nothing but a sponsored litigation at the behest of the persons made accused in the aforesaid Crime No.169/12 and 170/12. With these averments the prayer for dismissal of the petition is made.

12.(a) In response of the petition, on behalf of the respondents no.8, 9 and 10, by denying the averments stated in the petition regarding involvement of such respondents in the murder of Ambika Prasad Dubey, it is stated that the respondent no.8 has not registered any false case at Police Station Suatala as Crime No.169/12 and 170/12 against the deceased Ambika Prasad Dubey and his family members and other eye witnesses of the incident. That these respondents, have been arrayed as accused persons in Crime No. 340/12 of Police Station Suatala for the offence under Sections 302, 304 read with Section 34 of I.P.C. on false allegations and present public interest litigation has also been filed on false pretext. As such on the date of alleged incident i.e. 16.6.2012, a report was lodged at Police Station Suatala by one Govind Parashar, the Manager of the Lead Society, that a truck bearing registration no. MP-20- GA-2781, having PDS wheat for the fair price shop, run by Co-operative Society Suatala, has been apprehended by Ambika Prasad Dubey @ Munna Maharaj along with certain people of village and he has taken away the aforesaid truck to his residence. It was also alleged that besides the truck, three hammals and one Driver, have also been abducted by the said persons. On receiving such complaint at Police Station Suatala, an offence under Sections 394 and 342 of I.P.C. was registered against Ambika Prasad, his son Abhishek Dubey and other unidentified persons at about 3.45 PM. Firstly, the information of such incident was brought to the 9 notice of Superintendent of Police and Collector Narsinghpur by the Manager of Lead Society and on the direction of the S.P. Narsinghpur, TI Suatala, respondent no.8 had registered the above-mentioned First Information Report and looking to the fact that the public property and four individuals are in illegal custody of said Ambika Prasad, he along with police party had rushed to village Jhilpinidhana. A copy of First Information Report dated 16.6.2012 is annexed as Annexure-R-8/1. (According to such FIR the alleged incident was happened on 15.6.2012 while the original FIR was registered on 16.6.2012.) The alleged Dehati Nalishi is not placed on record along with the return.

(b) Apart from the aforesaid, it is further stated that in response of the aforesaid FIR, on reaching the spot the police party had found that the deceased Ambika Prasad Dubey, surrounded the truck with the mob of 20- 25 persons, armed with country made pistol, lathies, swords and stones. The respondent no.8 had conversion with Ambika Prasad and tried to convince him that he was in illegal custody of truck and had abducted four individuals and advised him to release the truck and four persons, but such advise was not adhere to by the deceased-Ambika Prasad, therefore, police party had no other option except to arrest the said Ambika Prasad. At the time of his arrest, the mob at the instigation of Ambika Prasad, had attacked on the police party and son of deceased Abhishek Dubey, had fired with country made pistol on Head Constable Rajesh Jaat, by which he had sustained the gun shot injuries on his right hand. The papers relating to his treatment in some hospital is annexed as Annexure-R.8/2. The said mob led by Ambika Prasad and Abhishek Dubey, had not only assaulted police party but had also damaged the police vehicle. During the aforesaid assault by the mob, certain persons had tried to snatch the rifle of Head Constable Rajesh Jaat and in this process, the fire had taken place from such rifle which after hitting the hard surface, had broken down into pieces and one piece of such bullet has hit the deceased Ambika Prasad Dubey.

(c) It is also mentioned that there was no intention of the respondents no.8 to 10, to commit any offence, but the alleged incident had taken place due to attack by the mob and on trying to snatch the service rifle.

(d) That in view of the aforesaid criminal act of Ambika Prasad, Abhishek Dubey, Shravan Thakur, Bhikam Mallah, Nabbu Thakur, Bhupat Thakur and Dashrath Thakur, a Crime No.170/12 for the offence punishable under Sections 147, 148, 149, 294, 353, 332, 186, 224 and 225 of I.P.C. was registered against them. The papers of registered criminal case are annexed as Annexure-R.8/4. In further averments it is stated that the respondent no.9 Kripashankar Patel (wrongly mentioned as Shankar Patel) was not present on the date of incident as he was on leave for 10 days from 12.6.2012 because of marriage of his daughter Nandni scheduled on 18.6.2012, and he had resumed the duties on 24.6.2012. In support of this contention the copy of Roznamacha entries along with the marriage invitation card are annexed as Annexure-R.8/5. In such premises, the allegations regarding presence of said Head Constable, respondent no.9 is apparently false and he has been wrongly implicated in the aforesaid Crime No.340/12.

(e) A copy of Roznamacha Sanha dated 16.6.2012 is also annexed as Annexure-R.8/6. According to which, the respondents no.8 and 9 had not gone from the Police Station to the place of alleged incident. It is also stated that deceased Ambika Prasad Dubey, was hard core criminal and against him the offence punishable under I.P.C. as well as under Forest Act, were registered. In this regard the entries (Annexure-R-8/7) are also made in the village crime Book of Police Station Suatala. With these submissions the prayer for dismissal of the present petition is made.

13. Apart the aforesaid, on behalf of the State on dated 24.1.2013, by filing the I.A. No. 1232/13, the prayer for grant of two months time to investigate the matter and submit the report was made. In such I.A., inter alia it is stated that MLA Sunil Jaiswal, Ajay Singh and Choudhary Rakesh 11 Singh have raised the question no.299,296 and 297 in the Legislative Assembly under Rule 138(1) i.e. the question of immediate attention of the Minister of Administrative Department where the allegations were made that on account of action of the police, there were fear amongst the people on which, the Minister assured that the investigation of the aforesaid Crime No.170/12 and Crime No.340/12 will be conducted through the Officer not below the rank of Superintendent of Police. Pursuant to that, on such assurance of Minister of Administrative Department vide order dated 20.12.2012, the Director General of Police constituted the four members team as a special team under the headship of Surendra Jain, Superintendent of Police, AJK Jabalpur to investigate the matter. Pursuant to that, the further investigation of the abovementioned crime was handed over to the aforesaid S.P. AJK, Jabalpur on dated 7.1.2013. In such premises, the case diary had not remained in possession of police officials of District Narsinghpur, the same was handed over to the Special Team constituted under the headship of aforesaid police official Surendra Jain, who visited the place of incident at the village Jhilpanidhana on 15.1.2013 where, they had tried to record the statements of eye witnesses and also to collect necessary evidence to proceed for arrest of the accused persons, but only the statements of Vishnu Prasad Dubey, the elder brother of the deceased and Narbar Singh, the resident of same village, could have been recorded, while the other family members of the deceased and other persons of the village have not recorded their statement to the police. No eye witnesses had come forward to give statement. Despite all possible efforts made by SIT, no sufficient evidence could be collected on such date. Copies of statement of the aforesaid both the witnesses are annexed with I.A., as Annexure-A.4. It is also stated that the investigation has been carried out by SIT sincerely and further efforts are being made to reveal as to who are the main culprits and as to whose weapon the fire was occurred and whether there was any intention to kill somebody. It is also stated that the investigation is going on and as on today it cannot be said that as to whether the offence of Sections 302 12 and 304 of I.P.C. and other offence has actually been committed or not. On the basis of report in writing, the crime has been registered and after investigation if it is found that the accused are guilty of committing the offence and if there is sufficient evidence against them, then they will be arrested and the challan will be submitted before the Court.

14. In response of the return of the respondent no.1 as well as the return of the respondents no.8 to 10, so also the aforesaid application submitted by the respondents no.2 to 7, State authorities, the rejoinder was filed on behalf of the petitioner on 13.3.2013, stating that the respondent no.1 should have seen that the alleged incident was committed by the local police official under the political patronage and thereby, they have murdered Ambika Prasad Dubey by making gun shot on him and thereafter, in order to shield their criminal act, has registered the offence against the deceased and his family members and the other victims of the police assault and inspite of commission of the cognizable offence by the police officials i.e. respondents no.8 to 10 and others by misusing and abusing the authority inflicted excess of police atrocities and only by the intervention of this Court in order to show their bonafide, the local police has registered the offence very belatedly on 28.10.2012, as Crime No. 340/12 against the abovementioned police officials under Section 304 of I.P.C. with Sections 302, 34 of I.P.C. with intention to bring the case in a narrow campus for an offence of culpable homicide, not amounting to murder. In such premises, the public at large including the victim of the police assault and the family members of the deceased has no credibility and confidence on any of the investigation Agency of the State Government.

15. It is further stated that after registration of the aforesaid offence, at very belated stage the investigating Officer R.L. Armo was appointed to investigate the matter, who at the initial stage had defended the police official from the alleged crime in the writ petition No.9991/12, filed by the daughter of the deceased and lateron, on filing the rejoinder by the petitioner in such writ petition in response of the return of the respondents 13 no.2 to 7, State Investigation Agency has constituted Special Investigation Team headed by SP AJK, Jabalpur, by the order of Director General of Police. The matter was also raised before the Assembly of the State from where assurance was given to the members of the Legislative Assembly to appoint the Officer not below the rank of Superintendent of Police, then the investigation was handed over to such S.P. AJK. Jabalpur. In such situation, the victim of the police assault and also the public at large have lost the confidence in the investigation carried out by the State Investigating Agency. It is further sated that mere perusal of para 9 of the application dated 22.1.2013 of the respondent no.2 to 7, it is apparent that inspite registration of the cognizable offence against the respondents no.8 to 10 so also against the other police officials, none of them was arrested. On the contrary, it was stated before this Court that after investigation if it is found that that the accused are guilty of committing the offence and if there is sufficient evidence against them, they will be arrested and challan will be submitted before the Court. Such conduct of the high rank police official i.e. Superintendent of Police AJK Jabalpur, who has been handed over the investigation of Crime No.340/12, he also tried to save the police officials from their alleged offence of Section 302 of I.P.C. so also save them from their arrest. In such premises the present case is a case of rarest of rare case. The law protectors have taken law into their own hands and after breaking the law, misusing and abusing their position, committed the offence of murder and thereafter, shielded the commission of offence, tampered the evidence of offence committed by them and whole investigating agency from bottom to top are bent upon to shield the commission of the offence committed by the police personnel. So in such premises, the accused persons may not be prosecuted, punished for their criminal act and in such premises, the present case is a fit case for which investigation by the CBI/respondent no.1 is essential and necessary for doing the complete justice and enforcing the fundamental rights as held by the apex Court.

16. In compliance of the order dated 9.1.2013 the respondents no.2 to 7 have filed the report on dated 5.4.2013 in which it is contended that on dated 23.3.2013, the SIT has arrested the then T.I. Ashutosh Chand, respondent no.8, Rajat Jatt Head Constable respondent no.9 Shikhar @ Shiv Kumar Udenia, Head Constable respondent no.10 and other accused of Crime No.340/12. It is also stated that although the name of four persons were mentioned, but during investigation it has been found that the Head Constable Kripa Shanker Patel, was on leave on the date of the alleged incident and he had not participate in the entire incident.

17. Apart the aforesaid, on behalf of the petitioner, after filing the charge-sheet of the aforesaid Crime No.340/12, copy of the same is placed on the record along with I.A. No. 10343/12, contented that such charge- sheet has been filed by the Police Station Suatala District Narsinghpur, in a biased and un-transparent manner just to save the accused persons from the alleged offence committed by them. During the course of arguments such copy of the charge-sheet was referred by the counsel of the parties.

18. Counsel of the parties of this petition as well as of writ petition No.9991/12 were heard at length, keeping in view their arguments advanced, we have carefully gone through the averments of the petition, as well as the aforesaid returns of all the respondents, applications so also the rejoinder filed on behalf of the petitioner.

19. Before filing the present public interest litigation petition, on receiving the complaint letter from Aarti Dubey, daughter of deceased Ambika Prasad Dubey, a letter writ petition No.9991/12 was registered. The same is also pending for adjudication before the learned Single Bench. The record of such writ petition is placed along with the present petition, so while hearing this petition, we have also heard the respective counsel of such other writ petition because the identical question, to direct the investigation of Crime No.340/12 of Police Station Suatala District 15 Narsinghpur, to Central Bureau of Investigation, is involved in both the petitions. Pursuant to it, such petition is being also decided by this order.

20. As per case of the petitioner, the deceased Ambika Prasad Dubey @ Munna Maharaj being political and social worker of village Jhilpinadhana District Narsinghpur, was working in the welfare of the villagers and on dated 15.6.2012, some ration came to the village for its distribution to the Aadivasi by Sahakari Samiti and when it was verified by the deceased that commodities are less to the extent of 5 quintal and 64 Kg to the quantity mentioned in the bilty on which, he had made an objection and had got the said vehicle kept in the Society Bhawan of the village and also prepared Panchnama in presence of the villagers i.e. Annexure-A-1 and A-

2. On account of which, the persons who were involved in this defalcation of sending the less ration for distribution, had send the police party of Police Station Suatala, District Narsinghpur, headed by respondent no.8 Station House Officer along with 10-12 police personnel armed with their service weapon, who after reaching to the village on 16.6.2012 at about 4.00 PM, had started abusing the deceased with filthy languages and threatened him to kill and had started assaulted on him, at that time, her daughter Aarti Dubey and son Abhishek Dubey had intervened to save him with the help of the villagers on which, the respondent no.8, police party, fellowman had fired by their weapons on the person of Ambika Prasad Dubey (since deceased) by which, he had sustained four fire arm injuries on his person, as revealed from the post-mortem report of his corpus. After causing such incident, the respondent no.8, accompanied with his police officials had ran away from the place of the incident and the relative of the deceased, villagers and the eye witnesses of the incident were terrified and shocked came under apprehension because of the murder at the hands of the police as they were eye witnesses of the commission of the murder of the Ambika Prasad Dubey. It appears from the record that while taking the Ambika Prasad Dubey to Medical College Jabalpur on the way, he had died and on reaching to the Hospital he was declared dead on which, the brother of the deceased went to the Police Station Suatala to 16 lodge the report, but his report was not registered as it was against the police officials. On the contrary, in order to shield and save the police officials, Crime No.169/12 for the offence punishable under Sections 394, 342 of I.P.C. and Crime No.170/12, for the offence punishable under Sections 147, 148, 149, 294, 353, 307, 332, 186, 224, 225 of I.P.C. read with Section 3 & 5 of Lok Sampatti Hani Adhiniyam were registered against the deceased, his son Abhishek so also other persons which is evident from the copies of FIR Annexure-P-3 and P/4. But it is apparent that no offence regarding murder of Ambika Prasad Dubey due to injury of the gun shot was registered at such Police Station while, such fact was very well in the knowledge of the respondent no.8 Station House Officer, as well as of the Head Constables respondents no.9 and 10. It is also stated that when the report of the brother of the deceased was not registered at Police Suatala, then the daughter of the deceased had given the report to Police Station Garha and S.D.M. Gorakhpur, Jabalpur regarding murder of her father on 17.6.2012 by the police officials. A copy of such written report is available on record as Annexure-P-5 and P-6. According to post- mortem report (Annexure-P-7) four gun shot anti-mortem injuries were found on the person of the deceased. Inspite such report, when the offence was not registered then initially said Aarti Dubey wrote a letter to the Hon'ble Chief Justice on which the letter writ petition was registered and in such petition the learned Single Bench of this Court, monitored the matter by issuing directions from time to time to the State authorities. On behalf of the State authorities, with respect of the alleged offence stated by the Aarti Dubey-complainant, the Magisterial enquiry was set-up by the District Magistrate Narsinghpur, by appointing SDM Gadarwara as Enquiry Officer and in the garb of such enquiry, the investigation which could have been carried out by the police was ceased.

21. It is undisputed fact on record, that insptite making report for the cognizable offence by the complainant Aarti Dubey, the crime was not registered against the accused persons till 28.10.2012, although in the return, on behalf of the State it is stated that after receiving the FSL report 17 regarding service rifle of Police Station Suatala and Magisterial Enquiry Report, the crime was registered against the aforesaid police officials for the offence punishable under Sections 302, 304/34 of IPC., but inspite registration of such offence, although at belated stage against the respondents no.8 to 10 and others, none of them was arrested for a long period. Then the investigation Officer A.R. Armo, SDO (P) Narsighpur was appointed but for one reason or another, the respondents authorities were giving assurance on every date of hearing of writ petition (Letter Petition) that investigation of the case is going on and as soon as the evidence comes that the police officials have committed such offence, then they will be arrested, but till 21.2.2013, inspite handing over the investigation of the case to aforesaid Senior police official of the State Superintendent of Police, AJK Jabalpur, on the instruction of the Ministry of General Administration, the accused were not arrested and it appears that such Senior Police Officer Surendra Jain had also extended the shelter to culprits of the case.

22. It is apparent from the case diary and the police report filed under Section 173 (2) of Cr.P.C. that in Crime No.340/12, the interrogation of the various eye witnesses including the complainant Aarti Dubey, Abhishek Dubey son of the deceased so also other villagers, was not carried out and there statements were not recorded by the police under Section 161 of Cr.P.C. In this regard, no reasons are stated by the concerning police officials in their respective return. In the oral submissions, it was said that inspite making efforts to trace out the witnesses of the alleged incident, they were not available so their interrogatory statements could not be recorded and it appears from the case diary that only on one or two occasions from the date of the registration of the offence till filing the charge-sheet, against the respondents no.8 and 10 so also against some other accused, continuous or sincere efforts to trace out the witnesses as per existing legal position, were not taken/carried out by the Investigating Agency. It shows that from the very beginning of the case i.e. from the date of alleged incident i.e. 16.6.2013, the impugned offence being 18 committed by the Station House Officer, Head Constables and other police officials of the Police Station Suatala, the Investigation Officer of the case so also the other senior police officials have tried to save the aforesaid persons from the offence of the murder of Ambika Prasad Dubey, and with this intention instead to register the offence against the culprit police officials for committing the murder of Ambika Prasad Dubey by gun shot on dated 16.6.2012, to create the pressure on the family of the deceased and the victims so also other alleged eye witnesses of the incident, on false pretext the Crime No.170/12 was registered at Police Station Suatala, not only against the deceased but also against his son Abhishek Dubey and other eye witnesses of the incident and thereafter, the investigation of such crime was immediately started against the family members of the deceased, victims and others.

23. Simultaneously, it appears from the First Information Report of Crime No. 169/12 registered at Police Station Suatala that the same was not registered on the date of incident i.e. on 15.6.2012 when the alleged ration came to the village from the alleged vehicle and the same was less in quantity. By preparing the Panchnama the same was kept as it is, in the Vehicle by the deceased in the Society Bhawan of village Jhilpinadhana. It appears that the repot of Crime No. 169/12, was registered on the basis of some Dehati Nalishi of Crime No.02/12, (although the copy of the same is not placed on record) on 16.6.2012, at 6.05 PM against the deceased and his son Abhishek Dubey and others for the offence punishable under Section 394 and 342 of I.P.C. alleging that by using the criminal force against the driver and other persons of the vehicle, the deceased had taken the custody of such vehicle and the ration by committing the offence of robbery also abducted the persons deployed on the vehicle.

24. In the aforesaid premises, prima facie it appears that till reaching the police party to the aforesaid village of the deceased, no offence was registered against the deceased Ambika Prasad Dubey. So, it appears that such Dehati Nalishi, on which the FIR of Crime No.169/2012 is based, was 19 registered ante-time after happening the aforesaid incident of murder of the Ambika Prasad Dubey with the hands of the respondents no.8 to 10 and fellowmen. It is apparent that the investigation of such case was started from the same date on which the offence was registered but for one reason or another, the FIR was not registered against the police officials for the alleged offence of murder.

25. It is settled proposition that as soon as the information of the cognizable offence is received at the Police Station, then there is no option with the Station House Officer except to register the offence, but in the present case, the incident was happened on 16.6.2012, inspite that the First Information Report was not registered for a long period and only on intervention of the Court at the instance of Aarti Dubey, daughter of the deceased in Letter writ petition No.9991/12, the FIR was registered at very belated stage on 28.10.2012 by stating the reasons that on receiving the report of FSL, in respect of service weapon and the Magisterial Enquiry, the offence has been established. In the available scenario such reason does not appear to be believable and digestible. In such FIR, the story stated in the aforesaid First Information Reports of Crime Nos. 169/12 and 170/12 registered at the same Police Station, to save the respondents no. 8, 10 and others, was stated and it appears that the earlier investigating Officer A.R. Armo, Dy, S.P. and subsequent to that Surendra Jain, SP AJK Jabalpur, have also tried to save the respondents No. 8 to 10 from their alleged offence.

26. Apart the aforesaid, it is apparent from the copy of charge-sheet of Crime No. 340/12 that till filing the same, the interrogatory statements of Aarti Dubey, the daughter of the deceased, who gave the report in writing to Police Station Garha, Abhishek, the son of the deceased and various other material eye witnesses of the occurrence have not been recorded and reasons whatsoever have been assigned about non-recording the interrogatory statement of such witness. The reasons shown in the case diary prima facie do not appear to be convincing. The case diary of the 20 case has also not been kept in accordance with the procedure prescribed under Section 163 of Cr.P.C. by proper paging and day-to-day basis. So, in such premises, the entire investigation carried by the State Agencies does not appear to be impartial or fair. In such premises, it is apparent that investigation Agency has not carried out the investigation independently, fairly and impartially.

27. In the light of aforesaid material discrepancy in investigation the bias attitude of the State Investigating Agency in holding the investigation is apparent. Therefore, the entire investigation has been carried out in a very casual manner with intention to save the police officials by the State investigation Agency and the police report filed along with the charge sheet, are not acceptable, pursuant to it even after filing the charge sheets, there is no option with the Court except to direct the fresh independent investigation of the aforesaid case of murder of Ambika Prasad Dubey through respondent no.1, Central Bureau of Investigation, an independent and impartial investigation Agency so the reality of the impugned offence could be investigated and the real facts, complete evidence and culprits could be brought before the Court for their prosecution.

28. Our aforesaid approach is fully fortified by the decision of the apex Court announced in the matter of Narmada Bai vs State of Gujarat and others reported in [2011] 5 SCC 79 in which it was held as under:-

"27. The first issue i.e. (A) as in the case on hand also arose in the case of Rubabbuddin Sheikh. The factual details therein will be discussed in the later paragraphs. With regard to the similar objection as to further investigation by the CBI, this Court considered the following cases:

(i) Vineet Narain vs. Union of India,

(ii) Union of India vs. Sushil Kumar Modi,

(iii) Rajiv Ranjan Singh `Lalan' (8) vs. Union of India,

(iv) Hari Singh vs. State of U.P., 21

(v) Aleque Padamsee vs. Union of India,

(vi) M.C. Mehta vs. Union of India,

(vii) R.S. Sodhi vs. State of U.P.,

(viii) Ramesh Kumari vs. State (NCT of Delhi),

(ix) Kashmeri Devi vs. Delhi Administration,

(x) Gudalure M.J. Cherian vs. Union of India, and

(xi) Punjab & Haryana High Court Bar Assn. Vs. State of Punjab, And concluded in paras 60-61 as under:- (Rubabbuddin Sheikh case, SCC pp.216-17) "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 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 hand over the investigation to an independent agency like CBI.

61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in court. On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties."

(Emphasis supplied)

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 22 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 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 the CBI.

61. In Mohd. Anis vs. Union of India and Ors., it has been observed by this Court that:

"5......Fair and impartial investigation by an independent agency, not involved in the controversy is the demand of public interest. If the investigation is by an agency, which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to the public interest as well as the interest of justice" (SCC p.148, para 5) "2.....Doubts were expressed regarding fairness of investigation as it was feared that as the local police was alleged to be involved in the encounter, the investigation by an officer of the UP Cadre may not be impartial." (SCC p.147, para 2)

62. In another decision of this Court in R.S. Sodhi vs. State of U.P., the following conclusion is relevant (SCC pp.144-45, para 2) "2......We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that those involved in the occurrences, one way or the other, may be brought to book. We direct accordingly."

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. 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 the CBI so that it may complete the investigation at 23 an early date. It was clearly stated that in so ordering no reflection either on the local police of 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 where also it was held that considering the fact that the allegations have been leveled against higher 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 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.

65. In view of our discussions and submission of learned counsel on either side and keeping in mind the earlier directions given by this Court, although, charge-sheet has been filed by the State of Gujarat after a gap of 3 ½ years after the incident, that too after pronouncement of judgment in Rubbabudin's case and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the CBI should be directed to take the investigation."

29. In the aforesaid premises, the impugned investigation and the charge-sheet being based on such investigation which can not be said to be fair, impartial, is not acceptable so we direct a fresh and impartial investigation of the case relating to murder of Ambika Prasad Dubey @ Munna Maharaj through respondent no.1-Central Bureau of Investigation, and till such investigation and filing the charge-sheet, the trial of the sessions case of Crime No. 340/12, registered at Police Station Suatala, District Narsinghpur, pending in the Court of some Sessions Judge Narsinghpur, is hereby stayed.

30. So far as the submission on behalf of the respondent no.1-CBI, as stated in it's return that it is already overburdened with the work and did not possess sufficient infrastructure to carry out the investigation of each and every case in which competent Agency of State is not in a position to do the fair and impartial investigation is concerned, it is suffice to say that in view of the aforesaid discussions, it has been revealed that the investigation of the case has not been carried out by the State agency impartially against the Station House Officer and the other officials of Police Station Suatala and in such premises, such investigation and filed charge-sheets is not acceptable, so the matter requires fresh investigation through some impartial Agency. But there is no any other independent agency in the State of M.P. to investigate such matter fair and impartially. So in view of the aforesaid cited decision of the apex Court, there is no option except to direct to carry out the investigation of the impugned case through the respondent no.1 CBI. True it is that the CBI is over burdened with the work and may be having less infrastructure but in the available circumstances to do justice with the deceased and victimized family, except this there is no any way to carry out the fresh investigation of the matter. Hence, the respondent no.1 Central Bureau of Investigation, is directed to investigate the impugned case along with the crime No. 169/12 and Crime No.170/12 registered at the same Police Station where the Crime No.340/12 is registered and submit it's report before the appropriate Court. Pursuant to this, the Director General of Police of State of Madhya Pradesh and also the other concerning officials of its Department are directed to handover the case diary and all other necessary papers relating to the aforesaid murder of Ambika Prasad Dubey, so also of the case diaries of Crime No. 169/12 and Crime No. 170/12 to the authorities of the respondent no.1 Central Bureau of Investigation within 30 days, to investigate the case in compliance of the aforesaid direction.

31. Besides the aforesaid, in the available circumstances as discussed above, the State authorities the District Magistrate and the Superintendent of Police of Narsinghpur, are directed to provide the appropriate securities 25 to the complainant Aarti Dubey and other family members of the deceased Ambika Prasad Dubey @ Munna Maharaj, so also to the all material and eye witnesses of the case till the fresh investigation is completed, charge sheet is filed and their evidence is recorded by the Court to them, and their properties.

32. In view of the aforesaid directions, no separate order is required in writ petition No.9991/12, hence such writ petition being identical, is also allowed with the same terms as mentioned above. Copy of this order be also kept with the record of such W.P. No.9991/12. The Central Bureau of Investigation after investigation and filing challan in the matter shall submit a report to the Registry of this Court within 90 days from the date of communication of this order.

33. Both the petitions are allowed as indicated above.

     (KRISHN KUMAR LAHOTI)                           (U.C.MAHESHWARI)
        Acting Chief Justice                               JUDGE
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