Gujarat High Court
Ramanlal Rajmal vs State Of Gujarat on 3 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1079/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1079 of 1998
With
R/SPECIAL CRIMINAL APPLICATION NO. 680 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAMANLAL RAJMAL
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the PETITIONER(s) No. 1
LAW OFFICER BRANCH(420) for the RESPONDENT(s) No. 3
MR HEMANG M SHAH(5399) for the RESPONDENT(s) No. 3
MR KS RATHORE(1875) for the RESPONDENT(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR with MS MOXA THAKKAR, APP
for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/04/2018
COMMON ORAL JUDGMENT
1. As the issues raised in both the captioned writ-applications are interrelated and the relief prayed for is also common, those Page 1 of 66 R/SCR.A/1079/1998 JUDGMENT were heard analogously and are being disposed of by this common judgment and order.
"Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong" - Theodore Roosevelt
2. Let me start with a recent pronouncement of the Supreme Court in the case of Dharam Pal v. State of Haryana and others, [Criminal Appeal No.85 of 2016, decided on 29th January 2016]. His Lordship Justice Dipak Mishra observed as under:
"2. Cry for fair trial by the accused as well as by the victim sometimes remains in the singular and individualistic realm, may be due to the perception gatherable from the facts that there is an attempt to contest on the plinth of fairness being provoked by some kind of vengeance or singularity of "affected purpose"; but, irrefutably a pronounced and pregnant one, there are occasions when the individual cry is not guided by any kind of revengeful attitude or anger or venom, but by the distressing disappointment faced by the grieved person in getting his voice heard in proper perspective by the authorities who are in charge of conducting investigation and the frustration of a victim gets more aggravated when he is impecunious, and mentally shattered owing to the situation he is in and thereby knows not where to go, the anguish takes the character of collective agony. When the investigation, as perceived by him, is nothing but an apology for the same and mirrors before him the world of disillusionment that gives rise to the scuffle Page 2 of 66 R/SCR.A/1079/1998 JUDGMENT between the majesty and sanctity of law on one hand and its abuses on the other, he is constrained to seek intervention of the superior courts putting forth a case that his cry is not motivated but an expression of collective mortification and the intention is that justice should not be attenuated.
3. Justice, which is "truth in action" and "the firm and continuous desire to render to everyone which in his due"
becomes a mirage for the victim and being perturbed he knocks at the doors of the High Court under Article 226 of the Constitution alleging that principle of fair and proper investigation has been comatosed by the investigating agency, for the said agency has crucified the concept of faith in the investigation which is expected to maintain loyalty to law and sustain fidelity to its purpose. In the case at hand, the assertions made with immense anguish gave rise to the question before the High Court whether some progress in trial would act as a remora in the dispensation of justice and the situation should be allowed to remain as it is so that an organic disorder is allowed to creep in and corrode and create a cul-de-sac in administration of justice. The further question posed whether the non-approach to the court prior to the stage of commencement of trial would be a peccadillo so as to usher in an absolutely indifferent, unconcerned and, in a way, biased investigation to rule and in the ultimate eventuate lead to guillotining of justice. The High Court having negatived the stand put forth by the appellant, the husband of the deceased, he has approached this Court by way of special leave.
Page 3 of 66R/SCR.A/1079/1998 JUDGMENT
10. First, we intend to deal with the stand of the CBI and the principles laid down in Committee for Protection of Democratic Rights (supra). In the said case, the Constitution Bench, after examining the rival contentions in the context of the constitutional scheme, recorded the following conclusions:-
"(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.Page 4 of 66
R/SCR.A/1079/1998 JUDGMENT
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed.
Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is Page 5 of 66 R/SCR.A/1079/1998 JUDGMENT an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of Page 6 of 66 R/SCR.A/1079/1998 JUDGMENT judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, [pic]exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."
[emphasis added]
11. After recording the conclusions, the Constitution Bench added a note of caution which we may profitably reproduce:-
"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. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to Page 7 of 66 R/SCR.A/1079/1998 JUDGMENT 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 levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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 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."
[emphasis added]
14. In the context, we may profitably refer to a two-Judge Bench decision in Narmada Bai v. State of Gujarat and others [(2011) 5 SCC 79]. The Court, in the factual matrix of the case, has emphasized that 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.
15. A three-Judge Bench in K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai and Page 8 of 66 R/SCR.A/1079/1998 JUDGMENT others [(2013) 12 SCC 480] reiterating the said principle stated that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. The Court, after referring to earlier decisions, has laid down as follows:-
"In view of the above, the law can be summarised to the effect that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."
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 Page 9 of 66 R/SCR.A/1079/1998 JUDGMENT 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 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 Page 10 of 66 R/SCR.A/1079/1998 JUDGMENT 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 "idee 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 person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law".
3. The Special Criminal Application No.1079 of 1998 has been filed with the following prayers :
"(A) The Hon'ble Court be pleased to direct the State of Gujarat to handover the investigation of prohibition C.R.No.216/96 pending before the Palanpur Police to C.B.I. (B) The Hon'ble Court be pleased to issue a writ of mandamus or writ in nature of mandamus or writ of prohibition or writ in nature of prohibition or writ of certiorari or writ in nature of certiorari or any other appropriate writ or direction or order directing to quash and set aside the Page 11 of 66 R/SCR.A/1079/1998 JUDGMENT distinction of civil and criminal matters under Article 226 of Constitution of India made in the Gujarat High Court Rules 1993 in part I Chapter I and be pleased to further declare that it being an extra-ordinary Constitutional remedy, there is no distinction of civil or criminal matter under Article 226 of Constitution of India and that it be further declared that further appeal is available to parties irrespective of such distinction under clause 15 of the Letters Patent.
(C) The Hon'ble Court be pleased to issue appropriate writ or direction directing reinvestigation of the F.I.R. registered at Kotwali Police Station, Pali bearing C.R. No.403/96 by Central Bureau of Investigation (C.B.I.) or by an officer not below the rank of Director General of Police of the State of Rajasthan.
(D) Pending disposal and final hearing of this petition all further proceedings in connection with C.R. No.216/96 of Palanpur and C.R. No.403/96 of Pali Kotwali Police Station at Pali Rajasthan be stayed.
(E) Such other order which are just and proper in the facts and circumstances of the case."
4. The learned counsel appearing for the writ-applicant, at the outset, submitted that he is not pressing for the relief in terms of prayer (B) but would confine his case to the relief in terms of prayer (A).
5. The Special Criminal Application No.680 of 1999 has been filed by a police officer with the following prayers :
Page 12 of 66R/SCR.A/1079/1998 JUDGMENT "(A) The Honorable Court be pleased to direct the State of Gujarat to handover the investigation of prohibition C.R. No.216/96 pending before the Palanpur City Police to Central Bureau of Investigation (C.B.I.) not below the rank of Director General of Police C.B.I. (B) The Honorable Court be pleased to issue appropriate writ or direction directing reinvestigation of the F.I.R. registered at Kotwali Police Station, Pali bearing C.R. No.403/96 by Central Bureau of Investigation (C.B.I.) not below the rank of Director General of Police of the C.B.I. (C) Pending disposal and final hearing of this petition all further proceedings in connection with Prohibition C.R. No.216/96 of Palanpur City Police Station and C.R. No.403/96 of Pali Kotwali Police Station at Pali Rajasthan be stayed.
(D) Such other order which are just and proper in the facts and circumstances of the case."
6. The facts giving rise to the two writ-applications may be summarised as under :
7. The genesis of this litigation lies in the two FIRs, (i) C.R. No.403 of 1996 registered at the Kotwali Police Station, Pali, Rajasthan, and (ii) C.R. No.216 of 1996 registered at the Palanpur city Police Station, State of Gujarat.
8. C.R. No.216 of 1996 of Palanpur Police Station, State of Gujarat, for the offence under Section 17 of the NDPS Act.
Page 13 of 66R/SCR.A/1079/1998 JUDGMENT
9. The aforesaid C.R. came to be registered on a telephonic message on 30.4.1996 from the police control room, Palanpur, which contains the message that one unknown person from Pali (Rajasthan) has given information that one Sumersingh C.Rajpurohit deals in opium. He is staying in Hotel Lajwanti at Palanpur, along with the opium weighing 5 kgs., delivery of the opium is to be given in Palanpur. On receiving this information, the police visited Hotel Lajwanti at Palanpur. Thereupon the hotel owner verified the entries of the register regarding the person holding the guest house. It was disclosed that as per entry No.604 of the register, one Sumersingh Rajpurohit, resident of Vardhman Market, Pali, had checked in room No.305 at 21:40 hours on 29.4.1996. The said room was given to him by his father Shantilal. Thereafter, the police team went to room No.305 and opened the same. No person was found therein. It was learnt that on receiving the information about the raid, the occupant of the room had run away. Thereafter, search of the room was made in presence of Panchas. They found opium weighing 1 kg. 15 gms. The P.I. Mr. Vyas, under the instructions of Mr.Sanjiv Bhatt, D.S.P., Palanpur, went to Pali along with P.S.I., Rajendra Yagnik and other police constables. The accused Sumersingh was arrested in the intervening night of 2.5.1996 and 3.5.1996 from his house at Pali and brought to Palanpur. As per the information, he had come to Palanpur with 5 Kgs. of opium and 1 kg. 15 gms. was recovered from room No.305 of Hotel Lajwanti. Further information was to be collected from the accused as to where he sold the remaining 4 kgs. of opium. Sumersingh was produced before the learned Chief Judicial Magistrate, Palanpur, on 4.5.1996 and prayed for grant of Page 14 of 66 R/SCR.A/1079/1998 JUDGMENT remand for 14 days. When Sumersingh was produced before the Chief Judicial Magistrate, the learned advocate on behalf of Sumersingh submitted that the accused is an advocate practising at Pali in the State of Rajasthan and he has been falsely arrested at the instance of the owner of the shop, which is in the possession of Sumersingh. It was also pointed out that a civil suit is going on between the owner of the shop and Sumersingh. It was also pointed out that the police is in collusion with the owner of the shop. However, the learned Magistrate granted remand for a period of seven days and directed that the accused shall be produced at 15:30 hours on 10.5.1996 before the Special Judge. 5th May was a holiday and on 6th an identification parade was arranged before the Executive Magistrate, Palanpur, at 16:30 hours. Sumersingh was not identified. The witnesses stated that the accused is not the person who checked in room No.305 on 29th April 1996. They had not seen the arrested person-Sumersingh earlier. In view of this, on the same day, the police submitted a report before the Special Judge, Palanpur, under Section 169 of the Code and prayed that Sumersingh be released. Mr.R.P.Vaghela, the Additional Sessions Judge did not pass any order thereon on 6th May 1996. On the same day, the accused also filed an application for bail under Section 439 of the Code. The learned Additional Sessions Judge enlarged Sumersingh on executing a personal bond of Rs.10,000/- by order dated 8.5.1996. The order reads as follows:
"Heard, Mr. Parmar for the applicant and P.P. Mr. Jagani.
Since even according to the police, the applicant does not appear to be involved in any offence, it is just and proper to Page 15 of 66 R/SCR.A/1079/1998 JUDGMENT release him on bail.
The applicant be released on bail on furnishing personal bond in the sum of Rs. 10,000/- and undertaking that he will remain present in the Court when summoned.
Sd/-
R.P. Vaghela Addl. Sessions Judge "
10. On 9th May 1996, Mr.I.B.Vyas, Police Inspector, L.C.B., Palanpur (writ-applicant of the Special Criminal Application No.680 of 1999), submitted an application to the Special Judge stating that during the course of investigation in the C.R.No.216 of 1996, it emerged that there is some conspiracy in giving the information with respect to staying in the room No.305 of the Guest House and entering the name of Sumersingh in the register. He also stated that the signature of Sumersingh has been forged. In view of this, a request was made to permit him to add Section 58(2) of the N.D.P.S. Act in the F.I.R. The learned Magistrate did not pass any order thereon. On 14th May 1996, Mr.J.R.Vora, Special Judge, passed the order on the police report filed under Section 169 of the Code on 6.5.1996. The learned Judge cancelled the bail-bonds executed by Sumersingh in pursuance of the order dated 8.5.1996. The order dated 14.5.1996 reads as follows:
"Learned P.P. Mr: Jagani and learned Advocate Mr. B. Section Parmar for the accused were heard. Papers of investigation perused. Learned P.P. has contended that the evidence is deficient to connect the accused with the fact that Page 16 of 66 R/SCR.A/1079/1998 JUDGMENT he boarded in Hotel Lajwanti. Further evidence shows that the accused, at the relevant time, was at Pali, Rajasthan, and therefore, the report under Section 169 of the Code is required to be accepted. He is released on personal bond by Addl. Sessions Judge, vide order dated 8-5-1996 below Misc. Criminal Application No. 331 of 1996. Hence, in the interest of justice, following order is passed:
ORDER Report of the Investigating Officer under Section 169 of the Code pursuant to the accused is accepted. The accused is released and discharged. Personal bond executed by the accused in pursuance of the order dated 8-5-1996 stands cancelled.
Pronounced in the open Court on 14.5.1996.
Sd/-
J.R. Vora Special Judge"
11. F.I.R. Case No. 403 of 1996 of the Kotwali Police Station, Pali, for offence under Sections 120-B, 195, 196, 342, 347, 357, 369, 458, 482 I.P.C. and Sections 17, 58(1) and 58(2) of N.D.P.S. Act dated 18.11.1996.
12. On 17.10.1996, Sumersingh Rajpurohit submitted a complaint in the Court of the learned Chief Judicial Magistrate, Pali, Rajasthan. He also produced an envelope containing two audio cassettes along with a schedule. In the said complaint, the following persons have been arrayed as accused persons:
Page 17 of 66R/SCR.A/1079/1998 JUDGMENT
1. Phootarmal, resident of Bijapur, Pali
2. Raman R.Jain, Addl. Judge, Gujarat High Court, Ahmedabad
3. Sanjiv Bhatt, District Superintendent of Police, Rajkot, Gujarat
4. I.B. Vyas, Police Inspector, L.C.B., Palanpur
5. Yagnik, Traffic Inspector, Palanpur
6. Shantilal, owner of Hotel Lajwanti, Palanpur
7. Pradeepbhai, L.C.B., Palanpur
8. Hingerbhai, L.C.B., Palanpur
9. Kantibhai, Constable-cum-driver, Palanpur
13. There are seven to eight other unknown police officers of Gujarat also included as accused persons.
14. After following the requisite procedure, the learned Magistrate forwarded the complaint for investigation under Section 156(3) of the Code to Kotwali Police Station, Pali. However, the case was not registered by the police as officer in- charge of the police station had hesitation in registering a case against Mr.R.R.Jain, Judge of the High Court of Gujarat, who was shown as accused No.2. A revision was filed by the State of Rajasthan against the order of the learned Chief Judicial Magistrate dated 17.10.1996, so far as it relates to registering the case against Mr.R.R.Jain is concerned. Reliance was placed on the case of K. Veeraswamy v. Union of India, reported in 1991 Cri.LR 67 (SC). After discussing the case of the Supreme Court Page 18 of 66 R/SCR.A/1079/1998 JUDGMENT in Veeraswamy's case (supra), the learned Additional Sessions Judge in his judgment dated 15.11.1996, held thus:
"In my opinion, for registering an offence against Mr. R.R. Jain, Judge of the High Court of Gujarat, consultation of Chief Justice of India is not required."
15. The learned Judge, however, modified the order of the learned Magistrate so far as the direction of investigation to be conducted by the D.G.P. is concerned.
16. The learned Judge directed that the case shall be investigated by the P.I., Police Station, Pali. After decision in the Revision, the police registered the case as F.I.R. Case No. 403 of 1996 dated 18.11.1996.
17. The facts of F.I.R. Case No. 403 of 1996 of Kotwali Police Station, Pali, as culled out from the complaint and other materials on record, are as follow:
18. The Accused No. 1 - Phootarmal is a permanent resident of Bijapur District, Pali. He has business in Shivganj and Pali. He is the real uncle of Mr.R.R.Jain, a Judge of the High Court of Gujarat at the relevant time. Mr.Jain is also a permanent resident of Bijapur. The engagement of Mr.R.R.Jain's real sister Muli Devi had taken place with one Mr.Javant Raj Jain of Bijapur, but before the marriage could take place, Muli Devi died. Mr.Javant Raj married to Smt. Amribai alias Anita Jain. As Page 19 of 66 R/SCR.A/1079/1998 JUDGMENT per the caste and village customs, as Amribai married in place of Muli Devi, she was being treated by Mr.R.R.Jain and other family members as real sister. A shop bearing No.6 situated at Vardhaman Market belongs to Amribai. As she resides at Bombay, a Power of Attorney has been given to Phootarmal. Narsinh, brother of the complainant Sumersingh carried on business in the said shop with Manoharlal Jain. The office of Sumersingh as advocate also existed in the said shop. There was a dispute between Phootarmal and the tenants for vacating the shop. A civil suit was also pending. It is alleged that the accused persons have conspired to get the shop vacated and to fulfill this systematically planned a conspiracy, they arranged to file C.R. No.216 of 1996 on 30.4.1996 under the N.D.P.S. Act at Palanpur against the complainant in which it was mentioned that Sumersingh stayed in room No.305 at Hotel Lajwanti, Palanpur, on 29.4.1996 and opium was recovered from the said room. In the intervening night of 2nd and 3rd May 1996, the Gujarat police personnel Mr.I.B.Vyas, P.I. and Yagnik, P.S.I, along with other police officers came to Sumersingh's house at about 1:30 a.m. (midnight). They called "Vakil saheb, Vakil saheb". On opening the door, they pounced on him. He was handcuffed and thrown in the jeep. He was manhandled. He was not even allowed to put on his shirt. They took him in baniyan and trouser. The family members gave information to his brother and fellow Lawyers, who in turn, informed the Pali police about the incident. A wireless message was given to Shri Gomaram, P.S.I, who was on patrolling duty. Mr.I.B. Vyas, with a view to return to Palanpur, just proceeded towards the highway. Mr. Gomaram, P.S.I., Kotwali Police Station who was on patrolling duty, intercepted the vehicle of the Palanpur police. Gomaram took Page 20 of 66 R/SCR.A/1079/1998 JUDGMENT them to the Pali Kotwali Police Station. At the police station, many Lawyers had assembled. Mr.I.B.Vyas disclosed his identity as Police Inspector, L.C.B., Palanpur, Gujarat Police. All the police personnel were in civil dress. They could not produce the police diary. Police Inspector Kotwali Pali told Mr. I.B. Vyas that even if they wanted to arrest Sumersingh in N.D.P.S. case before entering in Pali, they should have informed Rajasthan police. He also asked Mr.I.B.Vyas to remove the handcuff from the hands of Sumersingh. Police at Pali advised Mr.Vyas that they should take Sumersingh only in the morning after the entire matter is sorted out. Mr.Vyas said that he should talk to Mr.Sanjiv Bhatt, D.S.P. at Palanpur. Mr.Sanjiv Bhatt was contacted by the P.I. Mr. Sanjiv Bhatt insisted that as there is election on 7th May, the police party along with Sumersingh should immediately be allowed to move. Mr.I.B.Vyas gave a written Taharir (memo) stating that he has arrested Sumersingh in connection with C.R. No.216 of 1996 under N.D.P.S. Act. An entry was also made in the Rojnama at the Police Station Kotwali, Pali, narrating the entire incident. Mr.Sumersingh has stated that Mr.I.B.Vyas enquired from him about Vardhaman market and shop No.6. The jeep was also taken on that side. He showed him shop No.6. On reaching at Palanpur, he was produced before Mr.Sanjiv Bhatt, Palanpur. He enquired from him as to what is the dispute about the shop in Vardhaman market. He asked him to vacate the same immediately otherwise he will have to initiate the proceedings of recovery of the remaining 4 kgs. of opium. He also said that once the recovery of 4 kgs. opium is made from him, it will be difficult for him to get bail even from the High Court. He also stated that the owner of the said shop is brother of Shri R.R.Jain, a Judge of the Gujarat High Court, who is also Page 21 of 66 R/SCR.A/1079/1998 JUDGMENT interested in getting the shop vacated. Sumersingh passed on this information to Narsingh Rajpurohit, who in turn, contacted Raghunathsingh, the elder brother of Sumersingh and directed him to contact Phootarmal Jain. Accordingly, negotiation talks commenced with Phootarmal. Narayan Singh of Kharabera played the role of mediator. Phootarmal asked him to give the vacant possession of the shop and also duly executed agreement in writing be given by Mohanlal, the original tenant, only then Sumersingh would be released. After negotiation, the agreement was signed between Phootarmal and Mohanlal on 5th May 1996. As per the agreement, key of the vacant possession of the shop was handed over in trust to Narayan Singh of Kharabera. With this understanding that when Sumersingh would be released and the case against him would be disposed of, key of the said shop would be given to Phootarmal, otherwise, the same shall be returned to Mohanlal. After this negotiation on the evening of 5.5.1996, all these persons including Phootarmal reached Palanpur. Meanwhile, Phootarmal made a telephonic talk to his nephew Mr.R.R.Jain to Ahmedabad from Pali, apprising him the developments that had taken place in Pali and Mr.R.R.Jain, on his part, talked to Mr.Sanjiv Bhatt, D.S.P., Palanpur. Mr.R.R.Jain instructed Phootarmal that agreement should be in writing duly singed by Mohanlal, the original tenant. There were many rounds of telephonic talks held between Pali and Ahmedabad by Phootarmal and from Ahmedabad to Palanpur by Mr.R.R.Jain in connection with Sumersingh's case. After reaching Palanpur, Phootarmal again held telephonic talk with Mr.R.R.Jain and requested him to ask Mr.Sanjiv Bhatt to close the case against Sumersingh at the earliest possible now, as Sumersingh and his brother has agreed in writing to vacate the Page 22 of 66 R/SCR.A/1079/1998 JUDGMENT shop. The Lawyers and family members had reason to believe from the saying and conduct of Phootarmar that things have been done under the influence of Mr.R.R.Jain. Thus, to collect the evidence, the talk between Phootarmal and R.R.Jain were recorded on tape. Raghunath Singh also talked to Mr.R.R.Jain from S.T.D. booth, who was assured that Sumersingh will be released and a report under Section 169 of the Code was submitted. A report under Section 169 of the Code was submitted on 6.5.1996 itself. A bail application was also filed on the same day. However, no order was passed by Mr.R.P.Vaghela, the Additional Sessions Judge either on report under Section 169 or on the bail application on the ground that the case being under N.D.P.S. Act, such an order can be passed only by the Special Judge. On this, Sumersingh become uncomfortable. Thus, there were again telephonic talks with Mr.R.R.Jain. Sumersingh was assured that whether the Special Judge is there or not, he will be released on 6.5.1996. The courts were closed on 7th May on account of elections. On 8th May, Mr.Vaghela, the Additional Sessions Judge released Sumersingh on personal bond. It was, however, insisted by Gangasingh, Advocate, that unless Sumersingh is discharged and final report is given in the case, the key of the shop shall not be given. On 14.5.1996, the final report was accepted by the Special Judge and the personal bonds furnished by Sumersingh were discharged. On 15.5.1996, Gangasingh, Advocate, talked through conference system from the residence of Sonalal Nahar to Mr.R.R.Jain. The order accepting the final report under Section 169 of the Code and the order of discharge was read over to Gangasingh, on telephone by Mr.R.R.Jain. A direction was given to Gangasingh by Mr.R.R.Jain that as per the agreement, the keys of the shop Page 23 of 66 R/SCR.A/1079/1998 JUDGMENT should be given to Phoatarmal. Accordingly, the keys were given to Phootarmal on 15.5.1996. According to the complainant, the conspiracy was hatched at village Mohrai when Phootarmal, Mr.R.R.Jain, the sister Amribai, her husband Javant Raj, all had assembled to attend the marriage of the son of Amribai.
19. The case of the writ-applicant of the Special Criminal Application No.1079 of 1998 in his own words, as pleaded in his writ-application, is as under :
"3.7 The petitioner submits that the present applicant also wants that true and correct investigating should be carried out to know as to who had given false information and signed the Hotel register. If investigation had been carried out sincerely the culprit could have been found but the same has been stalled under threat of arrest in the case at Pali, Rajasthan and influence of highly placed officers and political leaders.
3.8 The petitioner submits that so far as the complaint Annexure-A is concerned it was filed on 30.4.96 yet the investigation is not active to bring it to logical end to lay hands on the offender and that since the date under the pressure or coercion a report under Section 169 of Criminal Procedure Code is filed in the court of Special Judge, Palanpur and the original accused has been illegally discharged. That thereafter no further investigation is carried out by the Palanpur police. It is the duty of police that where complaint is registered, its investigation should be done at earliest and as far as possible within 90 days. However in Page 24 of 66 R/SCR.A/1079/1998 JUDGMENT the present case more than 2 years period is over and up till now nothing is heard. On personal inquiry also it is revealed that after the aforesaid report no further steps were taken.
3.16 The petitioner submits that as stated above information was received about possession of Narcotic Drug. The Bald information was entered in the Register. The place namely Lajwanti Hotel was raided and search was carried out and during the search narcotic drug was recovered, panchnama was prepared to that effect, there is positive report of Forensic Science Laboratory that the muddamal recovered was opium there are statements about the search, seizure and recovery. accused was arrested and further accused was obtained on remand. All these steps of investigation definitely indicate the fact that there is strong prima-facie case against the accused.
3.17 The petitioner submits that during the investigation, no doubt certain statements of some members from Pali Bar Association were recorded to create alibi of the suspected accused at Palanpur on the relevant date. It is submitted that the efforts are made under influence and pressure of Bar Association Pali as it was making an agitation. By considering these statements of persons from Pali and members of Pali Bar Association the Local Police Investigation Officer has appreciated the evidence collected by him during the course of investigation under Section 161 and 162 of Criminal Procedure Code. He has also appreciated evidence about the involvement of accused in Page 25 of 66 R/SCR.A/1079/1998 JUDGMENT the said offence and has arrived at conclusion that on the date of incident accused was at Pali. In these statements no one has stated the fact that from which time to which time the accused was at Pali. The occupancy Register of Lajwanti Hotel is a documentary evidence directly involving accused in commission of offence hence the police could not have overlooked it and could not have submitted report under Section 169 of Criminal Procedure Code in light of oral statement. This material fact and circumstance is not considered by the investigation officer and has appreciated evidence though legally is not entitled to appreciate to discharge the functions of Court. No contrary evidence is collected but it appears that under the influence of Advocates from Pali Bar Association and under the influence of High Ranking Police Officers and other officers the Local Police Investigation Officer has obliged the accused by submitting report under Section 169 of Criminal Procedure Code in favour of accused Sumersingh.
3.18 The petitioner submits that the present applicant submits that under the provisions of Criminal Procedure Code as well as under the provisions of NDPS Act the investigation officer is legally not entitled to appreciate the evidence collected by him during the course of investigation. Under Section 173 of Criminal Procedure Code it is specifically mentioned in the definition that after collecting the evidence which supports the prosecution case, police officer shall submit the report under Section 173 of Criminal Procedure Code in the court. While here in the present case though there is ample evidence to raise reasonable suspicion Page 26 of 66 R/SCR.A/1079/1998 JUDGMENT against accused to file charge-sheet yet under influence and pressure investigation officer had submitted report under Section 169 of Criminal Procedure Code."
20. The case of the writ-applicant of the Special Criminal Application No.680 of 1999 in his own words, as pleaded in his writ-application is as under :
"3.2 The petitioner submits that as the said wardhi was not an information the same being a message received from Palanpur Police Control, and that he had not received the information from his own source or his informant whereas the wardhi so received was mandatory in nature he had gone with two police Sub Inspectors and other police personnels after summoning two independent persons as panchas. That this consisted of a parading party who had reached Hotel Rajvandi and on examining the register, it was revealed that one Sumersing Rajpurohit aged about 38 years residing at Pali Vardaman Market had checked into the said guest house at 9.40 p.m. on 29th April 1996 and that he had stay put in room no.305. That the said entry was registered in the hotel register at entry Sr.No.640. That on pressing the nob the door of the said room flung open and no person was found inside the room. That the ceiling fan was on an in the presence of the owner of the said hotel, the room was searched by the raiding party. One cloth shoulder bag was found concealed below the matters and on opening the said bag, it was further found that the same was opium and on weighing the same it was revealed that 1.15 kg. After preparing the panchnama, a complaint was registered at Page 27 of 66 R/SCR.A/1079/1998 JUDGMENT Palanpur City Police Station which is registered as prohibition C.R No.216 of 1996.
3.3 That in furtherance of the investigation of the said offence, as it had prima facie disclosed the fact that the said person was an accused person, on 3.5.1996 the petitioner along with other police personnel of Banaskantha District Police had gone to Pali at Rajasthan and directed the said accused to accompany with the police party to Palanpur in furtherance of the investigation. The petitioner submits that while leaving Pali city, the petitioner had got the entry registered with Pali Kothwali Police Station with the said effect and the said accused was brought to Palanpur. The petitioner submits that on being questioned, the said accused denied to have committed any offence. The petitioner submits that as there was strong prima facie case with regard to the name, age and address of the said accused found to be the same as entry of Lajwanti guest house, and the opium was recovered as stated hereinabove, the said accused was arrested and was produced before the Chief Judicial Magistrate on 4.5.1996 under section 167(1) of Cr.P.C. and obtained remand for a further period upto 10.5.1996 till 5.30 p.m. The petitioner submits that the said accused person had not made any complaint about his illegal arrest or illegal detention and any ill-treatment meted out to him either by the petitioner or any other person. The petitioner submits that during the course of further custody of the said accused, test identification parade was conducted wherein he was not identified to be a person who had occupied room no.305 on 29th April 1996 and therefore, a report u/s 169 of Cr.P.C.Page 28 of 66
R/SCR.A/1079/1998 JUDGMENT was made over to the court of learned Sessions Judge on 6.5.1996 before the expiry of Police Remand Service. The petitioner submits that the said report is accepted by the learned Special Judge on 14.5.1996 by a speaking order. The petitioner submits that it is pertinent to note that the said accused Sumersingh was ordered to be released on bail by the learned Special Judge, even before filing of the report under Section 169 of Cr.P.C. The petitioner submits that as the said accused was not required for investigation though his remand period was not over in consonance with the provisions of law, the said accused was forwarded to the court of Special Judge and the petitioner had submitted his report u/s 169 of Cr.P.C. on 6.5.1996 and after issuing the notice and after hearing the State of Gujarat through Public Prosecutor and after perusing the papers, and more importantly the said accused through his lawyer, the learned Special Judge granted the report vide order dated 14.5.1996.
3.4 The petitioner submits that the petitioner had filed a further report on 9.5.1996 before the Special Judge, at Special Court at Palanpur inter-alia praying to add section 58(2) of N.D.P.S. Act in the offence registered with Palanpur City Police Station as Prohi. C.R. No.216/96 as the petitioner being the investigating officer had found that with malicious reasons by the name of said Sumersingh had checked into the Lajvanti guest house and after concealing opium and by making false entry in the register of the guest house and also giving information to the District Police Control, had mislead the local police agency to cause arrest of the said Page 29 of 66 R/SCR.A/1079/1998 JUDGMENT Sumersingh Rajpurohit of Pali. The petitioner submits that the said report for addition of section 58(2) was granted by the learned Special Judge. The petitioner submits that the real culprit was required to be traced and brought before the court. The petitioner submits that the investigation of the said offence is ordered to be transferred by other police officer of the Respondent no.1 and even after passing of two years, no investigation has taken place and the same is dormant till date.
3.5 The petitioner submits that it is pertinent note that the said accused who is now a witness in the same offence, is a prosecuting lawyer at Pali and who has practiced both on civil as well as criminal of law. The petitioner submits that it is also pertinent to note that the said person was produced u/s 167(1) of Cr.P.C. and police remands were obtained, he was heard personnel as well as through his lawyer, that he had moved an application for bail and under his instruction the lawyer had preferred an application before the court of Sessions Judge at Palanpur more over he had also heard through his lawyer when the petitioner had filed report u/s 169 of Cr.P.C. before the Special Judge at Palanpur, that the said person was not the guilty of the offence and in this facts of the case, it is pertinent to note that the said person had not made any complaint against the petitioner or any other police personnel.
3.6 The petitioner submits that during the course of investigation, test identification parade was held, but the said person Sumersingh was not identified.Page 30 of 66
R/SCR.A/1079/1998 JUDGMENT 3.7 The petitioner submits that the said Sumersingh Rajpurohit being a practicing lawyer at Pali and having political influence with the then ruling party and the Chief Minister of State of Rajasthan, who was offended because of his arrest, the local bar association of Pali and Rajasthan Advocates Bar Association initiated including going on strike. The delegates and the representatives had created a panic and they met the then Hon'ble Chief Justice of India and the Hon'ble Chief Justice of Rajasthan High Court and Gujarat High Court and made representation before the Hon'ble President of India and Hon'ble Prime Minister India and Hon'ble Minister for Law and Justice. This particular facts were reflected from numerous newspaper report. That all this was being done with the intention to settle the private dispute between the said person Sumersing with other at Pali but in the process thereof the petitioner and other police officers and the judicial officers were dragged into the same. The petitioner submits that after a lapse of five months and after making hue and cry, in creating a situation in his favour the said Sumersingh filed a complaint which came to be registered with Pali Kothwali Police Station as C.R No.403/96 for the offences alleged under Sections 120B, 195, 196, 342, 347, 357, 368, 458 and 482 of I.P.C. and u/s 17, 58(1) and 58(2) of N.D.P.S. Act against 17 persons. The petitioner submits that the said complaint was filed with the pre-determined goal and object and the ways of investigation to cause arrest of all the persons on the allegations so set out on the said complaint. The petitioner submits that the cause to file the said complaint according to Page 31 of 66 R/SCR.A/1079/1998 JUDGMENT the provisions of Cr.P.C. had reasons at Palanpur on 30.4.96 when the information was received by the District Police Control, Palanpur had received the information and the investigation agency was set into motion. That, the said person Sumrsingh alleged in the complaint that by giving false evidence with an intent to procure conviction of an offence punishable with imprisonment for 7 years or upwards and using the same in judicial proceedings as evidence known to be false or fabricated and thereby wrongly fully confining him or extorting the property or constraining to an illegal act and by use of criminal force in an attempt wrongful confining him as a kidnapped person by lurking house trespass by night after preparation made for causing any offence punishable with imprisonment, the accused persons had committed the said offence. The petitioner submits that all this is alleged against all the 17 accused persons and the genesis of the same lies in the information received at Palanpur and recorded on 30.4.96 and the mandatory direction complied with by Palanpur Police after registering the complaint.
4. The petitioner submits that the petitioner has put in 24 years of unblemished long service and has received several rewards for his excellent performance as an upright police officer. The petitioner submits that when the petitioner was posted at Local Crime Branch, Palanpur it was the information received by the District Control conveyed to him as a mandate, he had to act accordingly by putting the machinery in to motion. The petitioner submits that the petitioner had done all the acts in discharge of his duties as Page 32 of 66 R/SCR.A/1079/1998 JUDGMENT envisaged under the provisions of Code of Criminal Procedure, 1973, Narcotics Drugs & Psychotropic Substance Act, Bombay Prohibition Act and under the Gujarat Police Manual. The petitioner submits that on verification of the register of Lajwanti Hotel at Palanpur when the name and address of the occupant of the room lastly occupied was revealed from the register so maintain by the said Hotel, the petitioner along with other staff after informing the higher officers had gone to Pali and after locating the said person, a suspected accused, was taken for interrogation from Pali (State of Rajasthan) and an information in writing of the same was given immediately to the Police Inspector, Pali, Kotwali Police Station. That said Sumersing was arrested at Palanpur on 3rd May 1996 and was produced before the Learned Chief Judicial Magistrate on 4.5.96 at Palanpur in compliance of Section 57 & 167(1) of Cr.P.C. and remand were sought for also under the provisions of Section 36 A(1)
(b) of N.D.P.S. Act upto 10.5.1996 till 3.30 p.m. That the said accused is a practicing lawyer at Pali and at the time of production before the Chief Judicial Magistrate he did not make any complaint against the Police Officers. The petitioner submits that the defence of said accused was recorded in the Case Diary by the petitioner, that the Test Identification Parade was carried out by the Executive Magistrate at Palanpur but the said accused was not identified, the accused was produced and submitted to Judicial Custody before the Learned Special Judge at Palanpur on 6th May 1996 though his policeman and was upto 10.5.96 on which day also said suspected accused did not make any complaint against the petitioner. That the Page 33 of 66 R/SCR.A/1079/1998 JUDGMENT investigation was undertaken by the petitioner and a report of hand writing expert for the verification of the signature in the Hotel Register with that of the specimen signatures taken of the said suspect accused were sent and a report of an expert came to the effect that it was not possible to give any conclusive and affirmative opinion to the effect that the signature in the hotel register were that of the suspect accused. During the course of investigation on collecting other materials evidence it was revealed that the suspect accused is not guilty of the offence and therefore as an upright and law abiding police officer the petitioner had filed a report under Section 169 of Code of Criminal Procedure before the Special Court at Palanpur in accordance with the provisions of 218(3) of Gujarat Police Manual, Part-III, which reads as under :
"If during the period of remand to Police custody, the Police complete the investigation and find that there is no ground for sending up the accused to a Magistrate for inquiry or trial, it is not open to the Police to release him on bail under Section 169, Criminal Procedure Code. The proper course for them is to send the accused back to the Magistrate concerned or request him to release the accused on bail under Section 437, Criminal Procedure Code."
4.1 The petitioner submits, that after a lapse of about six months, the complainant has filed a complaint before the Chief Judicial Magistrate, Pali, on 17th October 1996 under Sections 120(b), 195, 196, 342, 347, 357, 368, 458 and 482 Page 34 of 66 R/SCR.A/1079/1998 JUDGMENT of the NDPS Act, inter alia against several Police Officers of Gujarat State, including Investigating Officer of Prohibition C.R. No.216 registered at Palanpur City Police Station and other superior and as well as subordinate officers of Banaskantha District and the same has came to be registered as Pali Kotwali Police Station C.R. No.403 of 1996 on 18th November 1996."
21. The grounds raised by the writ-applicant of the Special Criminal Application No.680 of 1999 are extracted hereunder :
"A. That despite more than two years have passed yet the Palanpur Police has not carried further investigation to find out the real offender. This has raised considerable doubt about the correctness of the incident in the mind of the accused who has subsequently initiated proceedings at Rajasthan making false allegations against the petitioner.
B. That the inaction on the part of Gujarat Police has given rise to the complaint at Pali wherein the petitioner has been victimized.
C. The incident is common in both the complaints.
D. The second complaint is preferred with a malafide ulterior motive seeking vendetta against the petitioner and other police officers of the State of Gujarat.Page 35 of 66
R/SCR.A/1079/1998 JUDGMENT E. The investigation by two different agencies that too of two different states is likely to result in conflicting claims and possible enmity inter-se which should be avoided by entrusting the investigation to one Agency such as C.B.I. F. The investigation of the second complaint Annexure-B is politically handled and is influenced by Chief Minister as well as supported by Bar Council of Rajasthan and all the Bar Association of Rajasthan State.
G. As the second complaint is supported by the mass of Advocate of Rajasthan and therefore report by police of Rajasthan would be based one.
H. Though the later complaint is investigated under the banners of Crime Investigation Department (Crime) yet the investigation officer Mr.K.M.Sharma is one who served in different capacity in the same district and is in close contact with the lawyers, complainant and political leaders, hence the investigation cannot be independent and fair.
I. That the then Chief Minister has taken active interest as he was elected to the State assembly from the Bali Constituency in District Pali to which the complainant also belongs and therefore the investigation was also politically influenced and in the event the then Chief Minister who is also re-elected from the same constituency is may against influence the investigation as a prestige issue."Page 36 of 66
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22. Thus, both the writ-applicants have prayed that the investigation of the C.R. No.216/96 be transferred to the C.B.I.
23. The following facts are not in dispute:-
1. The investigation into the FIR No.403/96 registered at the Kotwali Police Station, Pali, State of Rajasthan is already over and the competent court has taken cognizance of the report filed under section 173 of CrPC long back at least before more than 10 years.
2. There has been no investigation with regard to the C.R. No.216/96 registered at the Palanpur District Banaskantha at all.
3. The prayer made by the petitioner Shri IB Vyas to transfer the criminal proceeding of the FIR Case No.403 of 1996 from Pali to be taken with C.R. No.216/96 at Palanpur purported to have been filed under section 186 of Cr.PC stood rejected by a detailed judgment and order dated 4.12.1997 passed by this Court in the Special Criminal Application No.1302 and 1309 of 1997 titled as IB Vyas vs State of Gujarat.
4. In light of the above, the only question which requires to be examined is with regard to the investigation of the offence registered as C.R. No.216 of 1996 at the Palanpur City P.S. which, unfortunately, has remained uninvestigated in spite of the seriousness of the offences involved therein.Page 37 of 66
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5. Briefly stated the offence/s pertains to the planting/ recovery of 1½ kg of narcotics drug at the Hotel Lajwanti City Palanpur, State of Gujarat. The intimation of narcotics drug being available in the said Hotel is stated to have been received by the control room of the Palanpur district Police through an anonymous caller.
6. Based upon the said recovery/planting of 1½ kg narcotic drugs at the Hotel Lajwanti, City Palanpur, one Advocate [Shri Sumer Singh Rajpurohit who has not been joined as party in the present petition] is stated to have been abducted in the midnight from his residence at Pali, Rajasthan. As recorded by this Court in the aforesaid judgment and order dated 4.12.1997, after the arrest of the said victim - Advocate, a property occupied by him was vacated under the pressure of his alleged implication with the narcotic drug found in Hotel Lajwanti.
Surprisingly, as emerged during the investigation of the C.R. No.403/96 conducted by the Rajasthan Police, a written document was executed for vacating the said property while Shri Sumer Singh Rajpurohit was still in the police custody of the Palanpur police. In the said written agreement, it was shockingly mentioned that if the said Advocate vacates the property, the Palanpur Police would release him from Jail in the said narcotic case. In fact, within only three days of Shri Sumer Singh Rajpurohit remaining in police custody, the property was vacated by his brother and on such vacating of the property, the Palanpur Police filed a report under Section 169 Cr.PC before the Court saying that the person occupying the Page 38 of 66 R/SCR.A/1079/1998 JUDGMENT room in Hotel Lajwanti where 1½ kg narcotic was found was not Shri Sumer Singh Rajpurohit and that he may be released.
The sequence of events are really shocking. More shocking is the fact that though the offence registered as C.R. No.216/96 at Palanpur is crucial for investigation, no investigation, whatsoever, has taken place.
7. So far as the offence registered as C.R. No.216/96 at the Palanpur police station regarding planting/recovery of 1½ kg. of narcotic drug based upon which an Advocate was falsely arrested and was coerced to vacate the property in three days while in custody is concerned, this Court in the aforesaid judgment dated 4.12.1997 recorded as under :
"10. I have perused the police diary of C.R. No. 216/96. Nothing substantial has been done in this case. Mr. D.N. Patel, learned APP submitted that the police is in search of the person who gave false information to the police from Pali. For this two computer photographs have been prepared. I cannot understand when even according to the police the said information was received on telephone how and what basis a computer photograph could be prepared. There is no progress beyond this, in this case."
It is very sad and unfortunate to note, as informed by the learned Public Prosecutor, that till date there has not been any investigation or progress in the C.R. No.216/96.
Page 39 of 66R/SCR.A/1079/1998 JUDGMENT So far as the investigation into the offence registered at the Pali Kotwali Police Station is concerned, the facts brought are very shocking. This Court, in the judgment of I.B. Vyas vs State of Gujarat [supra], after elaborately examining the investigation conducted by the CID, CB, Rajasthan into the offence registered at Pali, State of Rajasthan, being FIR Case No.403/96 recorded the following facts which have emerged on investigation:
i. Shop No. 6 in Vardhaman Market, Pali, belongs to Amribai. She lives in Bombay. Phootarmal holds the Power of Attorney. He is real uncle of Shri R.R. Jain. They were interested in eviction of the premises from Sumersingh and his brother.
ii. Though Amribai is not the real sister of Mr. R.R. Jain, as she married to Javant Raj in place of his sister, she was treated as real sister. She is an elderly lady aged 55 years. Her husband-
Jawantraj is carrying own business in Bombay. Mr. Jain has studied in Bombay staying with his sister Amribai. In one of the reception in the village, Mr. R.R. Jain said that whatever he is today, is because of Javant Raj.
iii. Smt. Amribai, Javant Raj ji. Phootarmal and R.R. Jain all had assembled in village Mohrai to attend the marriage of the son of Amribai, during the period 25.4.1996 to 29.4.1996. The investigation Page 40 of 66 R/SCR.A/1079/1998 JUDGMENT has recorded statement of number of witnesses about the participation of these persons in the marriage. As per the information given by the Gujarat High Court, Hon'ble Justice R.R. Jain was not on duty during the period 25.4.1996 to 29.4.1996. As per the report of the driver, Mr. Jain left Ahmedabad on 25.4.1996. Police has also collected copies of the petrol consumption bills which indicate that petrol was filled in his official car GJ-1G 1904 at Sirohi Road, Sumerpur, Abu Road. Statement of Addl. Superintendent of Police Officers at Bali have been recorded, which shows Shri Jain's presence in Bijapur and near villages during the said period, as on his telephonic request, Police arrangements were made.
iv. There are statement of witnesses to the effect that during marriage, there were talks in the family about the shop in Vardhaman Market. Shri Javant Raj had; agreed to sell the shop for Rs. 6 lakhs, but the deal could not be settled as Phootarmal was demanding Rs. 8 lakhs. Vacant possession of the shop was felt necessary. They disbursed on 29th April 96. Palanpur is on: the way from Bijapur to Ahmedabad.
v. The Investigating Agency has also collected telephone bills of Phootermal from Pali, telephone bills of Sanjiv Bhatt, DSP,; Palanpur (57104) and Page 41 of 66 R/SCR.A/1079/1998 JUDGMENT that also the telephone bills of Shri R.R. Jain (7865568) at Ahmedabad. Police has collected all relevant record from S.T.D. Telephone Booths at Palanpur and Pali. Relevant evidence in: that regard has been recorded. There are outgoing calls from the telephone of Sanjiv Bhatt to Shri R.R. Jain at Ahmedabad on various dates, i.e. 5.3.1996, 6.3.96, 22.6.96, 24.3.96, 2.4.96, 8.4.96, 9.4.96, 10.4.96, 14.4.96, 4.5.96 and 7.5.96. Similarly there are outgoing calls from the telephone of Shri R.R. Jain to Sanji v. Bhatt at Palanpur on 5.3.96, 31.3.96 and 10.4.96, 30.4.96, 4.5.96, 6.5.96 and 8.5.96.
vi. On 30.4.96, before the arrest of Sumersingh and the day on which opium alleged to have been planted in the Hotel at Palanpur, there are telephone calls between the alleged conspirators. There are noticeable outgoing calls from the official telephone No. 7865568 of Shri R.R. Jain.
Hrs. Seconds
20.23 206 Phootarmal,
Pali
21.08 89 -do-
21.17 145 Sanjiv Bhatt,
Palanpur
21.13 105 Phootarmal,
Pali
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vii. On 3.5.96, the day on which Sumersingh was brought to Palanpur, there is one call to Phootarmal at 21.12 hrs., on 4.5.96 again there are outgoing calls from the telephone of R.R. Jain to Phootarmal at 09.11 hours then at 9.20 hours. This talk to Phootarmal is a long one. Thereafter there is a talk to Sanjiv Bhatt at 9.43 hours. Again call to Phootarmal at 9.45 hours, 14.05 hours to Phootarmal, 21.09 hours to Phootarmal and immediately thereafter at 21.11 hours, to Sanjiv Bhatt. On 5.5.1996, the day on which agreement to vacate the premises is executed and Sumersingh was assured that he will be released, there are outgoing calls from the telephone of Shri Jain to Sanjiv Bhatt at 10.08 hrs., 0.53 hrs., 18.16 hrs. and 23.09 hrs. Suffice it to say that the computer record collected by the Police from Telephone Department shows that there had been 16 rounds of telephonic calls from Pali to Ahmedabad made by Phootarmal to Shri Jain and Ahmedabad to Palanpur made from the telephone of Shri Jain to the telephone of Shri Bhatt. Police has collected tape recorded talk of Phootarmal to the telephone of Shri Jain.
viii. Investigating Agency has collected various documents pertaining to tenancy of the shop, Civil Suit and the agreement dated 5.5.96 signed by Mohanlal to deliver the vacant possession and Page 43 of 66 R/SCR.A/1079/1998 JUDGMENT another agreement written by Phootarmal through his son Rohit, in which it is mentioned to get Sumersingh released and if it is not done, he will have right to get possession back of the shop and the agreement shall stand cancelled. Key of the shop was given to Narayansingh, mediator.
ix. Official record showing the visit of I.B. Vyas and Police party to Pali in civil dress, without informing the local police in jeep of fake number plate has been collected. Relevant record from RTO, Udaipur has been collected about the use of jeep with fake number plate by Mr. I.B. Vyas. Statements of number of witnesses have been recorded.
x. Police has also collected copies of the judicial proceedings of the Court of Chief Judicial Magistrate, Additional Sessions Judge and Special Judge at Palanpur during the period 4.5.96 to 14.5.96, which reflects presssure on police and may be to some extent on judiciary.
xi. Police has collected documentary and oral evidence to show that Sumersingh was in Pali on 29th and 30th April 1996. Material has also been collected as to how Shanti Lal made a false entry in the Register of Lajwanti Guest House and forged the signature of Sumersingh.
Page 44 of 66R/SCR.A/1079/1998 JUDGMENT xii. On 26.11.96, Mr. M.D. Vaishnav, produced an application of Shri R.R. Jain addressed to the Bar Association for compromise. On 27.11.96, Mr. Vaishnav, Pathanjali Joshi, Bhagirath, Advocates talked to Shri Jain the talk was taped by Sidheswar Puri from another room the audio cassette has been produced and the same is with the Investigating Agency. According to the complainant, it contains extra-judicial confession of Shri R.R. Jain."
24. The petitioner/s have informed this Court that the proceedings with regard to the charge-sheet filed by the Rajasthan Police in C.R. No.403/1996 are pending before the Hon'ble Supreme Court in Criminal Appeal No.1030 and 1031 of 2002.
However, it is an admitted position that neither any proceedings are pending with regard to the prohibition C.R. No.216 of 1996 pending at the Palanpur City Police Station, Banaskantha, Gujarat, nor the investigation has progressed at all.
25. From the shocking facts emerging from the record and the reported judgment placed before this Court in which Shri I.B.Vyas himself was the petitioner and the subject matter being the same, it is clear that it would be a travesty of justice if an independent, detailed and thorough investigation in offence registered being the C.R. No.216/96 at the Palanpur City Police Station is not conducted so as to find out who brought/planted 1½ kg of narcotic drugs based upon which the complainant Page 45 of 66 R/SCR.A/1079/1998 JUDGMENT Advocate Shri Sumer Singh Rajpurohit was allegedly falsely implicated which is apparent from the investigation conducted by the Rajasthan Police referred to above.
26. Both the petitioners are praying for investigation through the CBI of the C.R.No.216/96 pending at the Palanpur District, Banaskantha, which otherwise is also a demand of justice in the shocking facts which has emerged so far. The learned Public Prosecutor does not have, and obviously cannot have, any objection if a direction is issued for an independent, thorough and impartial investigation of the C.R. No.216/96. The learned counsel appearing for the State of Rajasthan has also no objection if the said offence is ordered to be investigated provided it does not dilute the investigation already conducted and charge-sheet filed in C.R. No.403/96 in any manner.
27. In light of the above referred facts, no directions are required to be given with regard to the investigation of the C.R.No.403/96 as the charge-sheet has already filed and the competent court has already taken cognizance making it clear that there would not be any interference so far as the investigation conducted therein is concerned.
28. So far as the C.R.No.216/96 which has remained univestigated since 1996 is concerned, from the totality of the facts, this Court is of the firm view that the same should not be left to be conducted by the local police, i.e. the police officials of the Banaskantha district, State of Gujarat. At the same time, from the averments made in the petition, no extraordinary or exceptional case is made out as required to be made out, in view of the judgment of the Constitution Bench of the Hon'ble Page 46 of 66 R/SCR.A/1079/1998 JUDGMENT Supreme Court in State of West Bengal & ors. versus The Committee for Protection of Democratic Rights, West Bengal & Ors. [(2010)3 SCC 571] for transfer of investigation to the CBI.
29. It is therefore, absolutely necessary and in the interest of justice that the said investigation of the C.R.No.216/96 be conducted by a special team constituted from out of the CID [Crime], State of Gujarat which is a Central agency of Crime detection in the State of Gujarat which should consist of officers of not below the rank of SP and should have an officer of the level of DIG as its Head.
30. Article 21 of the Constitution of India guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the courts are vigilant, for, it is as much the duty of the court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all the aspects of an accusation, be it in favour of the accused or Page 47 of 66 R/SCR.A/1079/1998 JUDGMENT against him.
31. Article 21, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he or she has the right to demand that the State discharges its Constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand a fair trial. When the police registers a case, the State assumes the responsibility of conducting an investigation. Having assumed the responsibility of investigating the truth or veracity of the allegations, which the police receive, the State cannot act, nor can its Investigating agency act, without a sense of impartiality. It is not merely a trial, which has to be impartial. No less important it is that the investigation, too, is impartial. Fairness of trial will carry with it the fairness of investigation Page 48 of 66 R/SCR.A/1079/1998 JUDGMENT and fairness of investigation will carry with it the impartiality in investigation, besides the investigation being efficient, unbiased, not aimed at helping either the prosecution or the defence. In short, an investigation must not suffer from any ulterior motive or hidden agenda to either help a person or harm a person. This is the principle, which Article 21 of the Constitution of India, read with Article 14 thereof enshrines, when we say that our Constitution guarantees fair trial.
32. The alleged violation of the above stated principles is at the heart of the controversy in the present two writ-applications.
33. Free and fair investigation and trial is enshrined in Articles 14, 21 and 39-A of the Constitution of India. It is the duty of the State to ensure that every citizen of the country should have the free and fair investigation and trial. The Preamble of and the Constitution are compulsive and not facultative, in that, free access to the form of justice is integral to the core right to equality, regarded as a basic feature of our Constitution. Therefore, such a right is a Constitutional right as well as a fundamental right. Such a right cannot be confined only to the accused but also to the victim depending upon the facts of the case. Therefore, such a right is not only a Constitutional right but also a human right. Any procedure which comes in the way of a party in getting a fair trial would be in violation of Article 14 of the Constitution.
34. The Supreme Court, in the case of Zahira Habibulla H. Sheikh v. State of Gujarat, (2004)4 SCC 158, has observed as follows:
Page 49 of 66R/SCR.A/1079/1998 JUDGMENT "36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all- comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
35. Similarly, in the case of Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, (2006)1 SCC 442, the Supreme Court has Page 50 of 66 R/SCR.A/1079/1998 JUDGMENT observed as follows:
"37. If the agent was to be prosecuted for violation of the term of the notification, he could challenge the validity thereof. A fortiori, a quia timet application would also be maintainable. A person must be held to have access to justice if his right in any manner whether to carry on business is infringed or there is a threat to his liberty. Access to justice is a human right.
38. In Dwarka Prasad v. B.D. Agarwal, (2003)6 SCC 230, this Court opined: (SCC pp.245-46, para 38) "A party cannot be made to suffer adversely either indirectly or directly by reason of an order passed by any court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the international treaties and conventions, the right to get a fair trial is a basic fundamental/human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution of India. Right to a fair trial by an independent and impartial tribunal is part of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 [see Clark (Procurator Fiscal, Kirkcaldy) v. Kelly [(2003) 1 All ER 1106(PC)]." "
36. In the case of Nirmal Singh Kahlon v. State of Punjab, (2009)1 SCC 441, the Supreme Court was pleased to observe Page 51 of 66 R/SCR.A/1079/1998 JUDGMENT that the right to fair investigation and trial is applicable to the accused as well as the victim and such a right to a victim is provided under Article 21 of the Constitution of India. The observation of the Supreme Court is extracted hereunder:
"28. An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation. When serious allegations were made against a former Minister of the State, save and except the cases of political revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose of investigating into the matter. The State for achieving the said object at any point of time may consider handing over of investigation to any other agency including a Central agency which has acquired specialisation in such cases."
37. In the case of Azija Begum v. State of Maharashtra, (2012)3 SCC 126, the Supreme Court has held as follows:
"13. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing the rule of law and maintaining proper balance in law and order."Page 52 of 66
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38. In the case of Subramanian Swamy v. CBI, (2014)8 SCC 682, the Supreme Court has ruled that any investigation into crime should be fair and should not be tainted. It has been further held that Rule of Law is a facet of equality under Article 14 of the Constitution of India.
39. In the case of Dayal Singh v. State of Uttaranchal, (2012)8 SCC 263, the Supreme Court has held that the court is bound to record any deliberate dereliction of duty, designed defective investigation, intentional acts of omission and commission.
40. Therefore, fairness in an action leading to upholding the rule of law is a sine qua non of a criminal investigation.
41. An investigator is the kingpin of the criminal justice delivery system. (See Amitbhai Anilchandra Shah v. CBI, (2013)6 SCC 348).
42. A bias attributed on the part of the investigator may lead to a deception leading to injustice. A duty is imposed upon the investigator to give an impression that it has been done without an element of unfairness or ulterior motive. He must dispel a possible suspicion to the genuineness of the investigation done. An attempt of an investigation officer is to make a genuine endeavour to bring out the truth.
43. Considering the same, the Supreme Court in the case of Babubhai v. State of Gujarat, (2010)12 SCC 254, has held as follows:Page 53 of 66
R/SCR.A/1079/1998 JUDGMENT "32 The Investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide R.P. Kapur v. State of Punjab, AIR 1960 SC 866, Jamuna Chaudhary v. State of Bihar, (1974) 3 SCC 774, SCC at p. 780, para 11 and Mahmood v. State of U.P. (1976) 1 SCC 542)
44. Considering the duty of a investigator to conduct a proper investigation, the Supreme Court in Manohar Lal Sharma v. Principal Secretary and others, (2014)2 SCC 532, made its observation in the following paragraph.
"A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences."
45. In the case of the State of Punjab v. Davinder Pal Singh Bhullar, 2012 Cri.L.J. 1001, after conclusion of the trial and Page 54 of 66 R/SCR.A/1079/1998 JUDGMENT acquittal of three accused persons and 20 days after the dismissal of the appeal by the High Court, the High Court had again taken up the case suo motu and directed the authorities to furnish full details of the proclaimed offenders and the bench marked the matter part-heard. After considering the affidavit filed by the SSP, the High Court had directed the Chandigarh Administration to constitute a special investigation team to inquire into all aspects of the proclaimed offenders and submit a status report. As notice was also issued to the CBI, it submitted its report requesting the High Court not to hand over the inquiry to the CBI as it was already overburdened and suffering from shortage of manpower and resources and the case did not have any inter-State ramifications. However, the High Court directed the CBI to investigate the allegations of one B.S. Multani regarding his missing son. In the same matter, the bench entertained another application filed by Shri Davinder Pal Singh Bhullar (a convict in another case and lodged in Tihar jail) regarding the allegations that his father and maternal uncle had absconded in the year 1991. The High Court directed the CBI to investigate the allegations made in the complaint filed by Shri Bhullar and to get his statement recorded under section 164 of Cr.P.C., so that the witness may not resile under duress or be won over by any kind of inducement. Then, the CBI, after making a preliminary investigation registered an FIR against SSP, UT, Chandigarh, the then DSP and others and then the High Court had also issued further directions to complete the investigation and submit a further report. In the context of such facts, the Supreme Court observed:
"45. In Divine Retreat Centre (supra), this Court held that the High Court could have passed a judicial order directing Page 55 of 66 R/SCR.A/1079/1998 JUDGMENT investigation against a person and his activities only after giving him an opportunity of being heard. It is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person in violation of principles of natural justice. A person against whom an inquiry is directed must have a reasonable opportunity of being heard as he is likely to be adversely affected by such order and, particularly, when such an order results in drastic consequence of affecting his reputation.
46. In D.Venkatasubramaniam & Ors. v. M.K.Mohan Krishnamachari & Anr., (2009)10 SCC 488, this Court held that an order passed behind the back of a party is a nullity and liable to be set aside only on this score. Therefore, a person against whom an order is passed on the basis of a criminal petition filed against him, he should be impleaded as a respondent being a necessary party.
47. This Court in Disha v. State of Gujarat & Ors., AIR 2011 SC 3168, after considering the various judgments of this Court, particularly, in Vineet Narain & Ors. v. Union of India & Anr., AIR 1996 SC 3386; Union of India vs. Sushil Kumar Modi (1998)8 SCC 661; Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India, (2006)6 SCC 613; Rubabbudin Sheikh v. State of Gujarat & Ors., AIR 2010 SC 3175; and Ashok Kumar Todi vs. Kishwar Jahan & Ors., (2011)3 SCC 758; held that the court can transfer the matter to the CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State Authorities like high police Page 56 of 66 R/SCR.A/1079/1998 JUDGMENT officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.
48. Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible."
46. In a decision dated 18th July 2011 of the Division Bench of the Bombay High Court, in Criminal (PIL) Petition Nos.28 and 29 of 2011 and Criminal Application No.13 of 2011 [Per: Hon'ble Mrs. Justice Ranjana Desai (As Her Ladyship then was)], the Court observed that in the Constitution Bench judgment in Committee for Protection of Democratic Rights, West Bengal, the Page 57 of 66 R/SCR.A/1079/1998 JUDGMENT Supreme Court had, inter alia, observed that the State has a duty to enforce human rights of a citizen by providing fair and impartial investigation against any person accused of commission of a cognizable offence which may include its own officers. Victim's rights also need to be protected. The Supreme Court further observed that being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. The Supreme Court concluded that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State, without the consent of that State, shall be valid in law. The Supreme Court had, however, added a caveat that the very plenitude of the power under the said articles requires great caution in its exercise. Although no inflexible guidelines could 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 levelled some allegations against the local police. The extraordinary 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. After reference to several relevant judgments, the Court culled out, in para 18, the principles that could be deduced and, inter alia, laid down:
Page 58 of 66R/SCR.A/1079/1998 JUDGMENT "(g) In an appropriate case, where high officials are involved in crime, when the court feels that the police investigation is not in the proper direction in order to do complete justice, investigation can be transferred to CBI even after the charge- sheet is submitted."
47. Earlier, in Union of India v. W.N. Chadha, 1993 Supp.(4) SCC 260, the Supreme Court has observed:
"80. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading "Exclusion of the audi alteram partem rule'.
81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
82. Bhagwati, J. (as the learned Chief Justice then was) in Page 59 of 66 R/SCR.A/1079/1998 JUDGMENT Maneka Gandhi speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus:
"Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.""
48. In the case of R.S. Sodhi, Advocate v. State of U.P., 1994 Supp.(1) SCC 143, the Supreme Court ordered :
"2. We have examined the facts and circumstances leading to the filing of the petition and the events that have taken place after the so-called encounters. Whether the loss of lives was on account of a genuine or a fake encounter is a matter which has to be inquired into and investigated closely. We, however, refrain from making any observation in that behalf; we should, therefore, not be understood even remotely to be expressing any view thereon one way or the other. 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 Page 60 of 66 R/SCR.A/1079/1998 JUDGMENT 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. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice. The writ petition and the review petition stand disposed of by this order."
49. In the case of Mohammed Anis v. Union of India, 1994 Supp.(1) SCC 145, the Supreme Court ordered:
"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 public interest as well as the interest of justice."
50. In the case of Rubabbuddin Sheikh v. State of Gujarat, (2010)2 SCC 200, the Supreme Court observed:
Page 61 of 66R/SCR.A/1079/1998 JUDGMENT "53. It is an admitted position in the present case that the accusations are directed against the local police personnel in which 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 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.
60. .......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 Page 62 of 66 R/SCR.A/1079/1998 JUDGMENT is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.
81. In the present circumstances and in view of the involvement of the police 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."
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51. In the case of Narmadabai v. State of Gujarat and others, (2011)5 SCC 79, both oral and documentary evidence raised strong suspicion that the encounter was fake and stage- managed as predicted by Tulsiram Prajapati prior to his death in a number of communications. Although charge-sheet was filed by the State after a gap of 31/2 years after the incident, yet the court was satisfied that the investigation conducted and concluded by the State Police could not be accepted. Therefore, it was found to be not desirable to allow the Gujarat State Police to continue with the investigation and accordingly, to meet the ends of justice and in the public interest, CBI was held to be required to be directed to take over the investigation. The Apex court directed police authorities of the State to handover all records of the case to CBI and directed CBI to investigate all aspects of the case and file report to the Court concerned having jurisdiction, within a period of six months. It was clarified that the observations made by the court were only for the limited purpose of deciding the issue whether investigation was required to be handed over to CBI or not and they were not to be construed as expression of opinion on the merits of the case.
52. In the case of Samaj Parivartan Samudaya and others v. State of Karnataka and others, (2012)7 SCC 407, a bench of three Judges, after reference to the provisions of Sections 173(8), 202 and 210 of Cr.P.C., observed that, all these provisions clearly indicated the legislative scheme under Cr.P.C. that initiation of an investigation and filing of a charge-sheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized Page 64 of 66 R/SCR.A/1079/1998 JUDGMENT investigation agency. The Court further observed:
"66. Wherever and whenever the State fails to perform its duties, the Court shall step in to ensure that the rule of law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. ....In respect of the past actions, the only option is to examine in depth the huge monetary transactions which were effected at the cost of national wealth, natural resources, and to punish the offenders for their illegal, irregular activities. The protection of these resources was, and is the constitutional duty of the State and its instrumentalities and thus, the Court should adopt a holistic approach and direct comprehensive and specialized investigation into such events of the past."
53. In the result, both the writ-applications are disposed of with a direction that the investigation of the C.R. No.216/96 registered with the Palanpur City Police Station be conducted by a Special Investigation Team constituted from out of the CID (Crime), State of Gujarat, which is a central agency of crime detection in the State of Gujarat.
54. The Special Investigation Team shall consists of the officers of not below the rank of the Superintendent of Police and shall have an officer of the level of the Deputy Inspector General of Police as its head.
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55. The investigation shall be carried out under the direct supervision of an officer not below the rank of the Inspector General of Police.
56. As this litigation is of the year 1996, the investigation shall be completed within a period of three months from the date of service of this order and in the right direction.
57. There shall not be any delay or any callous attitude in the conduct or completion of the investigation.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 66 of 66