Rajasthan High Court - Jaipur
Sunil Kumar S/O Sh. Mukandram vs State Of Rajasthan on 2 December, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 608/2020
Sunil Kumar S/o Sh. Mukandram, Aged About 25 Years, R/o
Village Nagla Machhalla, Ps Rudawal, Distt. Bharatpur, Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through The Public Prosecutor
2. Additional Director General Of Police (Crime), Police Head Quarter, Lal Kothi, Jaipur
3. Superintendent Of Police, Distt. Bharatpur
4. Station House Officer, Rudawal Distt. Bharatpur
5. The Director, Central Bureau Of Investigation, Plot No. 5- B, Cgo Complex, Lodhi Road, New Delhi-110 003
6. Joint Director, Special Crime Zone, Cgo Complex, Lodhi Road, New Delhi-110 003
7. Manoj S/o Gopal, R/o Village Nagla Machhaila, Ps Rudawal Distt. Bharatpur, Raj.
8. Deva S/o Gopal, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Raj.
9. Padam Singh S/o Moti, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
10. Gopal S/o Hardwari, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
11. Charan Singh S/o Turushi, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
12. Samadar S/o Turushi, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
13. Dinesh S/o Turushi, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
14. Lakhan Singh S/o Turushi, R/o Village Nagla Machhaila, Ps Rudawal, Distt. Bharatpur, Rajasthan
----Respondents For Petitioner(s) : Mr. Satish Kumar For Respondent(s) : Mr. Ramesh Choudhary, PP (Downloaded on 04/12/2020 at 09:10:23 PM) (2 of 9) [CRLW-608/2020] HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order Reserved on 23/11/2020 Pronounced on 02/12/2020
1. Petitioner, who is brother of the deceased Mahesh, has preferred this writ petition alleging that the Police has not conducted fair and impartial investigation of offence of murder of his brother Mahesh. He states that a complaint was made by him on 26/06/2020 at Police Station Rudawal wherein he alleged that on 25/06/2020 at about 5.00 PM his brother Mahesh had gone to Public Water Tank for bathing, however, Manoj, Deva son of Gopal, Padam Singh son of Moti, Gopal son of Hardwari, Charan Singh, Samander, Dinesh, Lakhan son of Turshi, by caste Jatav, residents of Nagla Machela and others picked up quarrel with his brother and did not allow his brother to take bath at the Public Water Tank and threw away his clothes. When his brother opposed, they all abused him profusely and murdered him and thereafter threw him in a well. When the nearby children, who were playing raised noise and the other villagers collected, he came to know about the said incident and thereafter the dead body of his brother was taken out from the well and the same was sent to CHC Hospital, Bayana for postmortem and it was lying in the mortuary.
2. On the basis of the said complaint, an FIR bearing No.254 was registered on 26/60/2020 at Police Station, Rudawal under Section 143, 302 IPC.
3. It is stated that the investigation was botched up by the Investigating Officer and with a view to help the accused- respondents No. 7 to 14, the Investigating Officer is intending to file a final report stating that no case of murder is made out (Downloaded on 04/12/2020 at 09:10:23 PM) (3 of 9) [CRLW-608/2020] although there are two eye-witnesses namely; Kishan Singh and Govind who have seen the incident having occurred and there were two persons who took up the body from the well who have also got their statements recorded as eye-witnesses. It is also stated that the Police is pressuring the petitioner for entering into a compromise and a Panchayat was organized on 08/07/2020 at Village Panchayat and all the Panchayat leaders unanimously took a decision not to pursue or advocate the murder case and forced the family members of the petitioner to enter into a compromise. The photographs of the Panchayat and transcript of mobile video have been placed on record. A representation in this regard was submitted to the DIG, Police Range, Bharatpur and SP, Bharatpur.
4. The Investigating Officer was called. He has submitted his report alongwith the investigation conducted by him.
5. From the perusal of the case diary and the investigation conducted by the Investigating Officer, this Court is not satisfied with the report submitted by the SHO, Police Station, Rudawal, District Bharatpur dated 21/11/2020 as he has ignored the statements of the eye-witnesses. It is also seen that he has not arrested even a single person in a case under Section 302 IPC whereas all the accused-persons were named in the FIR.
6. Prima-facie, this Court does not find the Investigating Officer to have performed his duties of conducting a fair investigation. The Investigating Officer in his entire investigation report as per the case diary has completely failed to make a mention relating to the Panchayat held on 08/07/2020 in relation to the incident where the petitioners were forced to take compensation in lieu of death which shows laxity on the part of the Investigating Officer for which he is liable to departmental action. (Downloaded on 04/12/2020 at 09:10:23 PM)
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7. The statements of eye-witness Kishan Singh and chance witness Govind support the allegation in the FIR. The postmortem report also requires to be examined in the said light.
8. This Court called the Investigating Officer. He appeared before this Court but has failed to explain his conduct.
9. Prima-facie, this Court finds that the Investigating Officer Mr. Mukesh Kumar, Sub Inspector, Police Station Rudawal, District Bharatpur has not performed his duties. He has neither arrested the named culprits in the FIR nor he conducted the investigation fairly and in his report has attempted to save the culprits. Not only this, on account of not arresting the named accused persons, they were able to influence the other witnesses and also managed to get the Panchayat meeting conducted which pressurized the complainants to accept 'Mautana' i.e. 'an amount in lieu of death' under threatening of being thrown out of the village. Thus, a departmental action is required to be undertaken against the concerned Investigating Officer Mr. Mukesh Kumar, Sub Inspector, Police Station Rudawal, District Bharatpur. The Director General of Police, Police Headquarters, Rajasthan, Jaipur shall take steps accordingly.
10. This Court is conscious that the scope of interference in investigation in a criminal case is limited. However, the Supreme Court in Neetu Kumar Nagaich Vs. State of Raj. & Ors.:
2020(11) SCALE 185 has observed as under:-
"9. Normally when an investigation has been concluded and police report submitted Under Section 173(2) of the Code, it is only further investigation that can be ordered Under Section 173(8) of the Code. But where the constitutional court is satisfied that the investigation has not been conducted in a proper and (Downloaded on 04/12/2020 at 09:10:23 PM) (5 of 9) [CRLW-608/2020] objective manner, as observed in Kashmeri Devi v. Delhi Administration, (1988) Suppl. SCC 482, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. In such exceptional circumstances the court may, in order to prevent miscarriage of criminal justice direct de novo investigation as observed in Babubhai v. State of Gujarat, (2010) 12 SCC 254. A fair investigation is as much a part of a constitutional right guaranteed Under Article 21 of the Constitution as a fair trial, without which the trial will naturally not be fair. The observations in this context in Babubhai (supra) are considered relevant at paragraph 45 as follows:
"45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed Under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of Rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation."
10. In Bharati Tamang v. Union of India, (2013) 15 SCC 578, relief was sought in a writ petition to quash the charge sheet and the supplementary charge sheet coupled with a mandamus for a de novo investigation by a Special Investigation Team of competent persons having impeccable credentials to unravel the conspiracy. This Court relied on the following extract from Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, as follows:
33....."Courts have to ensure that Accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held (Downloaded on 04/12/2020 at 09:10:23 PM) (6 of 9) [CRLW-608/2020] only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice."
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37. In the decision of Babubhai v. State of Gujarat, in para 40, this Court held that the scheme of investigation particularly Section 173(8) Code of Criminal Procedure provides for further investigation and not of reinvestigation but held in para 42 as under:(SCC p. 272)
42. Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances.
38. Therefore, at times of need where this Court finds that an extraordinary or exceptional circumstance arise and the necessity for reinvestigation would be imperative in such extraordinary cases even de novo investigation can be ordered.
xxxxx 41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.
xxxxx 41.5. In order to ensure that the criminal (Downloaded on 04/12/2020 at 09:10:23 PM) (7 of 9) [CRLW-608/2020] prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution.
xxxxx 41.7. In appropriate cases even if the charge-sheet is filed it is 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 other independent agency in order to do complete justice.
41.8. In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo.
11. The power of the constitutional court may extend to directing reinvestigation was again noticed in Pooja Pal v. Union of India, (2016) 3 SCC 135, as follows:
87. Any criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither (Downloaded on 04/12/2020 at 09:10:23 PM) (8 of 9) [CRLW-608/2020] be enervated nor moderated by any legislation.
12. In Dharam Pal v. State of Haryana, (2016) 4 SCC 160, it was noticed that the power of the constitutional court to order fresh or de novo investigation could also be exercised after commencement of the trial and the examination of some witnesses could not be an impediment, observing as follows:
25.....The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of 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 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....."
11. In view of above, this Court exercises its inherent jurisdiction and passes following order:-
(i) "This Court is satisfied that the investigation conducted by the Investigating Officer Mr. Mukesh Kumar, Sub Inspector, Police Station Rudawal, District Bharatpur is not in accordance with law and the provisions of Evidence Act have also not been considered while preparing the investigating report. A fresh de-novo investigation is, therefore, required to be conducted.
(ii) Accordingly, the Director General of Police, Police Headquarter, Rajasthan, Jaipur is directed to get the investigation conducted from a special team headed by an Officer of the rank of Additional Superintendent of Police of CID (CB) Branch and such Investigating Officer shall collect the entire evidence and conduct (Downloaded on 04/12/2020 at 09:10:23 PM) (9 of 9) [CRLW-608/2020] the investigation independent of what has been conducted by the earlier Investigating Officer and submit his report before this Court within three months.
12. A copy of this order be sent to the Director General of Police, Police Headquarter, Rajasthan, Jaipur for compliance.
13. List the matter after three months.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 04/12/2020 at 09:10:23 PM) Powered by TCPDF (www.tcpdf.org)