Suresh Kumar vs State Of Uttarakhand And Others on 29 June, 2017

[Cites 44, Cited by 3]

Uttarakhand High Court

Suresh Kumar vs State Of Uttarakhand And Others on 29 June, 2017

Bench: Lok Pal Singh

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

         Writ Petition (Criminal) No. 1300 of 2015

Suresh Kumar                                             .....Petitioner

                                  Versus

State of Uttarakhand & Ors.                         ....Respondents

Mr.   Lokendra Dobhal with Mr. Devang Dobhal, Advocate for the petitioner
Mr.   Pratiroop Pandey, A.G.A. for the State of Uttarakhand/respondent no.1
Mr.   Sanjay Bhatt, Advocate for Union of India/respondent no.2.
Mr.   Sandeep Tandon, Advocate as Special Counsel for C.B.I./respondent no.3


                                                     Dated: 29.06.2017

Hon'ble Lok Pal Singh, J.

Brief facts of the case are that daughter of petitioner Km. Yukti who was a student of 1st year nursing course in All India Institute of Medical Sciences, Rishikesh, District Dehradun (respondent no.4) was found dead in her hostel room on 24.06.2014, whereafter her dead body was taken in emergency at Government Hospital, Rishikesh, District Dehradun. Information to this effect was given to the SHO, P.S. Kotwali, Rishikesh on the same day. Thereafter, inquest of the dead body of deceased Km. Yukti was conducted on 25.06.2014 at about 12.30 pm by the police. This information of death of Km. Yukti was sent to the petitioner by the Administrative Officer of respondent no.4, after which the petitioner immediately came at Rishikesh. Petitioner suspected murder of his daughter, as on 24.06.2017 at about 8 pm, his daughter had told him on telephone that authorities of respondent no.4 are teasing her. According to the petitioner, as death of his daughter was unnatural, he tried to lodge the report but the police did not lodge the first information report.

2. Section 154 of Cr.P.C. casts a duty upon the officer in charge of a police station to lodge a first information report in a cognizable offence. For ready reference, Section 154 of Cr.P.C. is extracted hereunder:

"(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."

3. The Constitutional Bench of the Hon'ble Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and others, (2014) 2 Supreme Court Cases 1, has held that it is the duty of police to lodge the first information report on receipt of information disclosing commission of a cognizable offence. Paragraphs 72, 73, 74 & 75 of the judgment are relevant, which are reproduced hereunder:

"72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR Book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.

'Information'

73. The legislature has consciously used the expression "information" in Section 154(1) of the Code as against the expression used in Section 41(1)(a) and (g) where the expression used for arresting a person without warrant is "reasonable complaint" or "credible information".

The expression under Section 154(1) of the Code is not qualified by the prefix "reasonable" or "credible". The non qualification of the word "information" in Section 154(1) unlike in Sections 41(1)(a) and (g) of the Code is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness 4 or credibility of the said information is not a condition precedent for the registration of a case.

74. The above view has been expressed by this Court in Bhajan Lal which is as under:-

"32. ... in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Sections 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information"

without qualifying the said word."

75. In Parkash Singh Badal, this Court held as under:-

"65. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" [as defined under Section 2(c)of the Code] if given orally (in which case it is to be reduced into writing) or in writing to "an officer in charge of a police station" [within the meaning of Section 2(o) of the Code] and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "first information report" and which act of entering the information in the said form is known as registration of a crime or a case.

66. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the 5 investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub- section (3) of Section 154 of the Code.

67. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Sections 41(1)(a) or (g) of the Code wherein the expressions "reasonable complaint" and "credible information" are used. Evidently, the non- qualification of the word "information" inSection 154(1) unlike in Sections 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, "reasonableness" or "credibility" of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information"

without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that "every complaint or information" preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that "every complaint"

preferred to an officer in charge of a police station shall be reduced in writing. The word "complaint"

which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word "information" was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an 6 information and that information must disclose a cognizable offence.

68. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1)of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."

4. It is incumbent upon the officer in charge of a police station concerned to lodge the first information report but he failed to discharge his legal obligations as well as mandatory provisions of Section 154 of Cr.P.C. When the First Information Report was not lodged at the police station, the unfortunate father of deceased moved an application before the concerned Magistrate under Section 156(3) of Cr.P.C. to issue directions to the concerned police station to lodge the first information report. Thereafter, the report was lodged and the case was registered in Police Station Rishikesh under the directions of Magistrate issued on the application of the petitioner u/s 156(3) of Cr.P.C. On information being sought by the petitioner regarding the complaint made by the deceased and her batchmates to the Principal earlier, he was informed on 25.07.2014 that the complaint was made against the Warden of the hostel wherein explanation was called from the Warden. It is asserted that the F.I.R. was not being lodged by the police and it was lodged after three months of the incident, which shows that the police of P.S. Kotwali, Rishikesh was under the influence of authorities of respondent no.4. It is also asserted that since the police was not properly and deliberately investigating the matter, therefore, he made an 7 application to Joint Secretary, Government of Uttarakhand Secretariat, Dehradun requesting that the matter be investigated by CBI. On the application of the petitioner, State of Uttarakhand issued a notification on 27.04.2015 for investigation of the offence under Delhi Special Police Force. The Secretary, State of Uttarakhand also requested the respondent no.2 to investigate this matter by C.B.I. However, such request was denied stating that CBI is already over burdened. Thereafter, the investigation was transferred to CBCID, who after completing the investigation, submitted final report in the matter on 08.02.2017.

5. In the meantime, the petitioner filed present writ petition seeking the following reliefs:

"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to investigate the matter and submit its report after proper investigation of the mysterious death of Km. Yukti, student of Nursing 1st year in the Institute of the respondent no.4.

(ii) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 16.07.2015 (Annexure no.16) passed by respondent no.5 Under Secretary Government of India, Ministry of Personnel P.G. & Pension (Department of Personnel and Training) North Block, New Delhi."

6. It is the contention of learned counsel for the petitioner that the CBCID also did not carry out the 8 investigation in fair and proper manner and has submitted the final report in the matter.

7. Counter affidavit has been filed by the State denying most of the averments made in the writ petition. It is stated in the counter affidavit that the investigation was being conducted in a proper and fair manner. It is also stated that after rejection of the investigation by the C.B.I., the investigation was handed over to CBCID by the State Government.

8. Learned counsel for the petitioner submits that CBCID has failed to conduct proper, scientific and fair investigation. A rejoinder affidavit has been filed by the petitioner in which it is stated that at the time of postmortem, there were two doctors and one lecturer of the respondent no.4 Institute present inside the room where postmortem was being conducted. It is stated that in the postmortem report only four injuries were mentioned in the body of the deceased and cause of death is shown as asphyxia due to anti-mortem hanging, whereas it is clear from the photographs that firstly the deceased was badly beaten. Several sharp edge injuries were inflicted upon both the hands and legs and neck of the deceased and thereafter she was strangulated and then hanged. It is alleged that the postmortem is tainted as no correct description of the injuries have been given in the report and the same has been prepared under the duress of respondent no.4 Institute to save the culprits.

9. I have heard learned counsel for the parties and have perused the entire material available on file.

10. The issue that arises for consideration is whether such a situation calls for issuance of direction for transfer of the investigation to the CBI.

11. Before any further discussion, it would be pertinent to mention the injuries found on the body of the deceased, which is reproduced as follows:

Injuries

(i) 20 superficial incised wounds acres the lower part of left forearm in a area of 10 cm ..all wounds...clotted blood in all wounds, each wound in 6-7 cm lower.

(ii) A 3x1.5 cm incised wound on left cubital ..

with clotted blood.

(iii) A 3x1.5 cm incised wound with clotted blood.

(iv) Eight superficial inside wound 5-6 cm over right....

12. A perusal of the postmortem report shows that the deceased had received several injuries. In that event, it cannot be presumed that a girl who has received such injuries, may be able to hang herself. That apart, during the course of investigation, the I.O. has recorded statements of Km. Divya, Km. Manvinder Kaur, Vijay Pal Singh, Km. Monika under Section 161 of Cr.P.C. and in all these statements, the I.O. has specifically mentioned the date of incident as 24.07.2014, whereas in fact the date of incident is 24.06.2014, which reflects that the I.O. has prepared all these statements in a single stroke sitting in the police station and without visiting the spot. The I.O. was also not bothered to collect evidence from the spot. The petitioner has pointed out the shortcomings in the investigation, when he moved a complaint to the Joint Secretary, State Government and has made a demand for investigation of the matter by C.B.I. Following 10 allegations were made by the petitioner in his complaint;

i) That he was not supplied with the copy of postmortem report as well as some other documents by the Investigating Officer, which he obtained under Right to Information Act.

ii) That on 25.06.2014 when postmortem was conducted at Dehradun, he along with his brother and nephew was outside the room where postmortem was being conducted. But they were not allowed to enter, whereas three doctors of AIIMS were inside the postmortem house. According to the petitioner, the place of incident was neither sealed by the administration nor viscera was preserved, nor inquest report was made in accordance with law.

iii) That the alleged suicide note does not bear the signatures of his deceased daughter. At the top of the suicide notice, '24.06.2014 10:06 pm' was mentioned, whereas he was told by his daughter's friends that they were accompanying her (deceased) daughter upto 10.30 Pm.

iiv) That apart from the original primary number, the deceased was using one more sim number which was operating on the I.D. of one Kistura Ram and he suspects murder of his daughter by that person, as his daughter's friend had told him that a quarrel had taken place between the deceased and Kistura Ram outside the hostel.

13. Along with rejoinder affidavit, some photographs have been filed which suggests that at the time of postmortem two doctors and one lecturer of the said Institute were present at the time of postmortem. Further, at the time of incident, the room was locked from outside as in the photographs, door handle is shown broken. Besides this, as pleaded in the rejoinder affidavit, the phone of the deceased was also taken by the I.O. but the phone was not put under surveillance to trace the call records of the outgoing and incoming calls that were made soon before her death.

14. The Court also finds that on the application of the petitioner for conducting the investigation by C.B.I., the State Government had issued a notification on 27.04.2015 requesting the Union of India to accord its sanction for investigation by C.B.I., Union of India. Union of India consulted the matter with Central Bureau of India and subsequently on 16.07.2015 the respondent no.2 sent a letter to respondent no.1 with regard that the CBI is already overburdened with investigation due to limited manpower.

15. Mr. Sandeep Tandon, learned counsel for the C.B.I. has submitted that C.B.I. is overburdened and is unable to take the investigation of this case in its hands. He further submitted that since the CBCID did not find any credible material during investigation and submitted final report in the matter, therefore at this stage no useful purpose would be served to handover the investigation to the C.B.I. He further submitted that the incident had taken place in the year 2014 and after a lapse of about more than three years nothing 12 remains for the C.B.I. to investigate. He vehemently opposed the transfer of investigation to C.B.I.

16. In Dayal Singh and others vs. State of Uttaranchal, (2012) 8 Supreme Court Cases 263, Hon'ble Apex Court has held that investigation being defective and motivated, will not give the benefit to the accused to the extent of his acquittal .

17. In Hema vs. State (2013) 10 SCC 192, Hon'ble Apex Court has held as under:

"10. It is settled law that not only fair trial, but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Accordingly, investigation must be fair, transparent and judicious and it is the immediate requirement of rule of law. As observed by this Court in Babubhai vs. State of Gujarat the Investigating Officer cannot be permitted to conduct an investigation in a tainted and biased manner. It was further observed that where non-interference of the Court would ultimately result in failure of justice, the Court must interfere. Though reliance was placed on the above decision in Babubhai case by the appellant, it is not in dispute that in that case, the High Court has concluded by giving detailed reasons that the investigation has been totally one-sided based on mala fides. Further, in that case, the charge-sheets filed by the Investigating Agency in both the cases were against the same set of accused. This was not the situation in the case on hand. Though the State Crime Branch initiated investigation, subsequently, the same was taken over by the CBI considering the volume and importance of the offence.

18. No doubt, C.B.I. is overburdened due to many other important cases but due to the reason that 13 C.B.I. has limited manpower and is therefore unable to take investigation in its hand cannot be a ground for not transferring the investigation to C.B.I. The Hon'ble Apex Court in the case of Pooja Pal vs. Union of India, (2016) 3 SCC 135 has held as under:

"50. The authorities cited at the Bar present the precedential spectrum of the curial jurisprudence in the context of entrustment of investigation to an instrumentality other than the local/state police agencies.

51. In Zahira Habibulla H. Sheikh, commonly adverted to as "Best Bakery Case" on the theme, the aspects of perfunctory and partisan role of the investigating agency as well as improper conduct of the trial involved by the public prosecutor surfaced for scrutiny. Though the trial was over resulting in acquittal of the accused persons mainly as the purported eye- witnesses had resiled from the statements made by them under Section 161 Cr.P.C. (hereinafter to be referred to as "the Code") during the investigation coupled with faulty and biased investigation and laconical trial, this Court responded to the request for a fresh trial made by the State and one of the eye-witnesses, Zahira. It was pleaded inter alia that when a large number of witnesses have turned hostile, it ought to raise a reasonable suspicion that they were being threatened or coerced. Apart from alleging that the prosecution did not take steps to protect the star witnesses, it was contended as well that the trial court had failed to exercise its power under Section 311 of the Code to recall and reexamine them as their testimony was essential to unearth the truth and record a just decision in the case.

52. The casual decision of the public prosecutor in Zahira Habibulla Sheikh case to drop a material witness, a measure approved by the trial court also came to be criticized. The lapse of non-examination of the injured eye-witnesses, who were kept away from the trial, was also highlighted. It was alleged that the partisan witnesses had been examined to favour the accused persons resulting in a denial of fair trial.

53. This Court in the above disquieting backdrop in Zahira Habibulla Sheikh case, did underline 14 that discovery, vindication and establishment of truth were the avowed purposes underlying the existence of the courts of justice. Apart from indicating that the principles of a fair trial permeate the common law in both civil and criminal contexts, this Court underscored the necessity of a delicate judicial balancing of the competing interests in a criminal trial - the interests of the accused and the public and to a great extent that too of the victim, at the same time not losing the sight of public interest involved in the prosecution of persons who commit offences.

54. It was propounded in Zahira Habibulla case that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the concept of fair trial entails the triangulation of the interest of the accused, the victim, society and that the community acts through the state and the prosecuting agency was authoritatively stated. This Court observed that the interests of the society are not to be treated completely with disdain and as persona non grata. It was remarked as well that due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case so much so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.

55. In Zahira Habibulla case while highlighting the courts' overriding duty to maintain public confidence in the administration of justice, it was enunciated as well, that they cannot turn a blind eye to vexatious and oppressive conduct, discernable in relation to the proceedings. That the principles of rule of law and due process are closely linked with human rights protection, guaranteeing a fair trial, primarily aimed at ascertaining the truth, was stated. It was held as well, that the society at large and the victims or their family members and relatives have an 15 inbuilt right to be dealt fairly in a criminal trial and the denial thereof is as much injustice to the accused as to the victim and the society.

56. Dwelling upon the uncompromising significance and the worth of witnesses in the perspective of a fair trial, the following revealing comments of Bentham were extracted in paragraph 41:

"41. "Witnesses", as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political count and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate causalities. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slot process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the 16 court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert the trial getting tainted and derailed and truth becoming a causality. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he has deposed."

57. It was underlined Zahira Habibulla case that if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interest of justice do not get incapacitated in the sense of making the proceedings before the courts, mere mock trials. While elucidating that a court ought to exercise its powers under Section 311 of the Code and Section 165 of the Evidence Act judicially and with circumspection, it was held that such invocation ought to be only to subserve the cause of justice and the public interest by eliciting evidence in aid of a just decision and to uphold the truth. It was proclaimed that though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is, while pronouncing judgment on the cause brought before it by enforcing the law and administer justice and not to ignore or turn the attention away from the truth of the cause or the lis before it, in disregard of its duty to prevent miscarriage of justice. That any indifference, inaction or lethargy displayed in protecting the right of an ordinary citizen, more particularly when a grievance is expressed against the mighty administration, would erode the public faith in the judicial system was underlined. It was highlighted that the courts exist to do justice to the persons who are affected and therefore they cannot afford to get swayed by the abstract technicalities and close their eyes to the factors which need to be positively probed and noticed. The following statement in Jennison vs. Baker, was recalled:

"...The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

58. It was declared in Zahira Habibulla case that the courts have to ensure that the accused persons are punished and that the might or the authority of the state is not used to shield themselves and their men and it should be ensured that they do not wield such powers, which under the Constitution has to be held only in trust for the public and society at large. That if any deficiency in investigation or prosecution is visible or can be perceived by lifting the veil covering such deficiency, the courts have to deal with the same with an iron hand appropriately within the framework of law was underlined.

59. Referring to its earlier decision in Karnel Singh vs. State of M.P., it was reiterated that in a case of a defective investigation, the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 of the Code or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It recalled as well its observations in Ram Bihari Yadav v. State of Bihar & others, that the courts are installed for justice oriented mission and thus if a negligent investigation or omissions or lapses due to perfunctory investigation are not effectively rectified, the faith and confidence of the people would be shaken in the law enforcing agency and also in the institution devised for administration of justice.

60. Though, as referred to hereinabove, trial was completed and the accused persons were acquitted, in the textual facts, this Court in Zahira Habibulla case did direct retrial as prayed for, to avoid subversion of the justice delivery system and ordered the investigating agency or those supervising the investigation to act in terms of Section 173(8) of the Code as the circumstances would so warrant.

61. The observations and the propositions, though made in the backdrop of a request for retrial, those pertaining to the essentiality of a fair and complete investigation and trial as well as the solemn duty of the courts to ensure the discernment of truth to administer even handed justice as institutions of trust of public faith and confidence, are in our estimate, of universal application and binding effect, transcending the factual settings of a case. An adverse deduction 18 vis-à-vis the quality of investigation and/a trial trivializing the cause of justice, is however the essential pre-requisite, for such remedial intervention by way of further investigation, reinvestigation, additional evidence, retrial etc. to be made objectively but assuredly for the furtherance of the salutary objectives of the justice dispensing system as contemplated in law, it being of paramount pre-eminence.

62. This Court in Mohd. Hussain6 was also seized of a situation imploring for a retrial following the termination of the prosecution principally on account of delay, when juxtaposed to the demand for justice in cases involving grave crimes affecting the society at large. The offence involved was under Sections 302/307/120-B IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 and had perpetrated an explosion in a passenger carrying bus. This Court amongst others recalled its observations in Kartar Singh v. State of Punjab30 that while dispensing justice, the courts should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear ones and above all the collective interest of the community and the safety of the nation, so that the public may not lose faith in the system of judicial administration and indulge in private retribution. It, however, also took note of its ruling in State of M.P. v. Bhooraji31 that (SCC p. 685, para 8) a de novo trial should be the last resort and that too only when such a course becomes desperately indispensable and should be limited to the extreme exigency to avert a failure of justice. It noted with approval the observation in P. Ramachandra Rao17 that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings and that the criminal courts are not obliged to terminate the trial or criminal proceedings merely on account of lapse of time. That such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings or to terminate the same and acquit or discharge the accused, was emphatically underlined. Reference too was made of the decision in Zahira Habibulla H. Sheikh.

63. Vis-à-vis the notions of "speedy trial" and "fair trial" as the integral constituents of Article 19 21 of the Constitution of India, it was observed in Mohd. Hussain case6 that there was a qualitative difference between the right to speedy trial and the right of the accused to fair trial. While pointing out that unlike the accused's right of fair trial, the deprivation of the right to speedy trial does not per se prejudice the accused in defending himself, it was proclaimed that mere lapse of several years since the commencement of prosecution by itself, would not justify the discontinuance of prosecution or dismissal of the indictment. It was stated in no uncertain terms that the factors concerning the accused's right to speedy trial have to be counterpoised with the impact of the crime on the society and the confidence of the people in the judicial system. It was noted that speedy trial secures rights to an accused but it does not preclude the rights of public justice. It was exposited that the nature and gravity of the crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former, the long delay in conclusion of trial should not operate against the continuation of the prosecution but if the right of the accused in the facts and circumstances of the case and the exigencies or situation leans the balance in his favour, the prosecution may be brought to end. It was held that the guiding factor for a retrial essentially has to be the demand of justice. It was emphasised that while protecting the right of an accused to fair trial and due process of law, the interest of the public at large who seek protection of law ought not to be altogether overlooked so much so, that it results in loss of hope in the legal system. Retrial in the facts of the case was ordered.

64. The content and scope of the power under Article 226 of the Constitution of India to direct investigation by CBI in a cognizable offence, alleged to have taken place within the territorial jurisdiction of the State, without the consent of the State Government fell for scrutiny of this Court in Committee for Protection of Democratic Rights4. While examining the issue in the context of the power of judicial review as embedded in the constitutional scheme, it was held that no Act of Parliament could exclude or curtail the powers of the constitutional courts in that regard. Reiterating, that the power of judicial review is an integral part of the basic structure of the 20 Constitution, it was underlined that the same was essential to give a pragmatic content to the objectives of the Constitution embodied in Part III and other parts thereof. In elaboration, it was held that Article 21 of the Constitution not only takes within its fold, the enforcement of the rights of the accused but also the rights of the victim. It was predicated that the State has a duty to enforce the human rights of the citizens providing for fair and impartial investigation, against any person accused of commission of any cognizable offence.

65. Referring to Section 6 of the Delhi Special Police Establishment Act, 1946, it was ruled in Committee for Protection of Democratic Rights case4 that any restriction imposed thereby could not be construed to be one on the powers of the constitutional courts and thus cannot be taken away or curtailed or diluted thereby. While proclaiming the supervening powers of the High Court under Article 226 of the Constitution of India to direct entrustment of the investigation to CBI as in the case involved, this Court sounded a caveat as well that the very plenitude of such power inheres a great caution in its exercise and though no inflexible guidelines can be laid down in that regard, the same has to be invoked sparingly, cautiously and in exceptional situation when it becomes necessary to provide credibility and to instil confidence in the investigation 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.

66. The facts in Bharati Tamang7 seeking de novo investigation, present somewhat an identical fact situation. The appellant's husband, President of a political party was brutally murdered in public view and in the presence of police and security personnel, by the supporters of the rival party. The investigation into the sordid incident had been completed. Alleging that the probe initially held by the State Police and thereafter by CID and by CBI were faulty, the prayer for de novo inquisition was made. Imputation of attempts by the prosecution to suppress the truth in spite of the fact that the assailants were identified and named in the FIR and that the incident was in effectuation of a deep-rooted conspiracy and preceded by 21 previous threats were made. CBI in its pleadings, inter alia, cited:

(i) prevailing law and order situation in the town;

(ii) abscondence of most of the accused persons;

(iii) murder of its informants;

(iv) fear psychosis in the locality and resultant want of support from the local public as hindrances to its investigation.

67. In Bharati Tamang case7 on behalf of the appellant, accusation of tardy prosecution of the case, and free and open movement of the key accused persons in the city avoiding arrest were made as well. The plea of the impleaded accused persons that the appellant after the demise of her husband had initiated the writ proceedings for political gain was rejected. Their contention based on Section 319 of the Code that in course of the trial, on availability of sufficient evidence, any person not being an accused could be ordered to be tried, was also negated. The propositions expounded in Zahira Habibulla H. Sheikh3 qua the duty of the court to ensure fair investigation by remedying the deficiencies and defaults therein so as to bring forth full and material facts to prevent miscarriage of justice were reiterated. It was concluded that when the courts find extraordinary or exceptional circumstances rendering reinvestigation imperative, in such eventualities even de novo investigation can be ordered. While ruling that in case of discernable deficiency in investigation or prosecution, the courts have to deal with the same with iron hand appropriately within the framework of law, it was underlined that in appropriate cases, even if charge-sheet was filed, it was open for the High Court and also this Court to direct investigation of the case to be handed over to CBI or to any other agency or to direct investigation de novo in order to do complete justice, in the facts of the case.

68. Noticing that certain transcripts of some conversations relating to the incident intercepted by CBI were awaiting analysis by the forensic agency as a part of the investigation, this Court in Bharati Tamang case7 in the ultimate, transferred the case beyond the territorial limits of the district involved and directed that the probe be carried out by CBI to be monitored by its Joint Director as named. It was ordered that CBI 22 would ensure that all required evidence is gathered by leaving no stone unturned, so that all accused involved in the offence are brought for trial to be dealt with in accordance with law. The trial that had meanwhile commenced was kept in abeyance pending conclusion of the further investigation by CBI and the submission of report before the transferred court as ordered. Not only in issuing these directions this Court revisited the imperatives bearing on the duty of the Court to ensure that criminal prosecution is carried out effectively and the perpetrators of the crime are duly punished by the appropriate court of law, it noticed as well some of the factual features of the case, namely:

(i) The deceased at his death was the President of a political party.

(ii) There was a deep-rooted rivalry between his party and another party.

(iii) The deceased had organised a meeting of his party on the date of the incident.

(iv) Police personnel were present at the place of the occurrence. Though present, no report thereof was registered immediately thereafter.

(v) Wide coverage of the incident by the media.

(vi) Availability of the transcripts of the intercepted conversations of some of the accused persons and the office-bearers of the rival political party.

69. This Court in Babubhai5 while examining the scope of Section 173(8) of the Code, did recall its observations in Manu Sharma v. State (NCT of Delhi)32 that it is not only the responsibility of the investigating agency but as well as of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. It underlined that the equally enforceable canon of criminal law is that high responsibility lies upon the investigating agency, not to conduct an investigation in a tainted and unfair manner and that such a drill should not, prima facie, be indicative of a biased mind and every effort should be made to bring the guilty to law dehors his position and influence in the society as nobody stands above law. It propounded that the word "ordinarily" applied under Section 173(8) of the Code, did attest that if the investigation is unfair and deliberately incomplete and has been 23 done in a manner with an object of helping a party, the court may direct normally for further investigation, and not for reinvestigation. It was, however, added as a sequitur that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, and if it is considered necessary, may direct for de novo investigation as well. It was observed that if an investigation has not been conducted fairly, the resultant charge-sheet would be invalid. It was held as well that such investigation would ultimately prove to be a precursor of miscarriage of criminal justice and the court in such a contingency would be left to guess or conjecture, as the whole truth would not be forthcoming to it. It was held that fair investigation is a part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India and thus, the investigating agency cannot be permitted to conduct an investigation in a tainted or biased manner. It was emphasised that where non- interference of the court would ultimately result in failure of justice, the court must interfere and in the interest of justice choose an independent agency to make a fresh investigation.

70. In Rubabbuddin Sheikh23 as well, though as many as eight action reports had been submitted by the State Police on the incident of reported murder of the brother of the petitioner in a fake encounter and the disappearance of his sister-in- law in which, amongst other, allegedly the anti- terrorist squad of the State Police was involved, a proceeding was initiated on the basis of a letter addressed to the Chief Justice of India seeking a direction for investigation by CBI. In view of the rival contentions advanced as to the permissibility or otherwise of the transfer of the investigation as prayed for, this Court on an in- depth audit of the decisions rendered by it, did negate the plea that subsequent to the submission of a charge-sheet, the court is not empowered in any case whatsoever to hand over the investigation to an independent agency like CBI. It was held, having regard to the parameters outlined by the two sets of authorities on the issue, that such a course, however, would be permissible in an appropriate case where the facts bearing thereon would demonstrate lack of proper investigation and vitiations thereof by factual discrepancies endorsing such a deduction. The aspect that accusations in the contextual facts were directed against the local 24 police personnel in which high police officials of the State had been made accused also did weigh with the determination. The view taken in Gudalure M.J. Cherian20 that though ordinarily, after the investigation is completed by the police and charge-sheet is submitted to the court, the investigation ought not to be reopened by entrusting the same to a specialised agency like CBI, nevertheless in a given situation, to do justice between the parties and to instil confidence in the public mind it may be warranted, was noted with approval. The overriding imperative of permitting transfer of investigation to CBI was thus, acknowledged to be in the advancement of the cause of justice and to instil confidence in the mind of the victims as well as the public.

71. The renderings in Hussainara Khatoon15, A.R. Antulay16, P. Ramachandra Rao17, Vakil Prasad18, Sampat Lal8, Babubhai5 and Common Cause11 have been pressed into service on behalf of Respondents 4 and 5 to highlight the demand of speedy trial as a mandate of the fundamental right to life guaranteed under Article 21 of the Constitution of India. While emphasising that speedy trial is the essence of criminal justice and any delay constitutes denial thereof, it has been propounded therein, that any procedure which does not ensure a quick trial cannot be regarded as reasonable, fair or just and would fly in the face of such cherished constitutional promise. While observing that the right to speedy trial encompasses all the stages, namely, investigation, inquiry, trial, appeal, revision and retrial, it was however noted in P. Ramachandra Rao17 that no guidelines for a speedy trial can be intended to be applied as hard rules or a straitjacket formula and that their application would depend on the fact situation of each case, which is difficult to foresee, so much so that no generalisation can be made. It was expounded as well in Sampat Lal8 that in spite of the procedure laid down in the relevant provisions of the Criminal Procedure Code, a court, in a given case, if is satisfied that the statutory agency has not functioned in an effective way or that the circumstances are such that it may reasonably be presumed or inferred that it may not be able to conduct the investigation fairly or impartially, the court may reasonably consider to supplement the procedure.

72. While recalling its observation in State of Bihar v. J.A.C. Saldanha33, that on a cognizance of the offence being taken by the court, the police function of investigation comes to an end subject to the provision contained in Section 173(8) of the Code and that the adjudicatory function of the judiciary commences, thus delineating the well- demarcated functions of crime detection and adjudication, this Court in Sampat Lal case8 did recognise a residuary jurisdiction to give directions to the investigating agency, if satisfied that the requirements of law were not being complied with and that the investigation was not being conducted properly or with due haste and promptitude.

73. It was reiterated in Babubhai5 that in exceptional circumstances, the Court in order to prevent the miscarriage of criminal justice, may direct investigation de novo, if it is satisfied that non-interference would ultimately result in failure of justice. In such an eventuality endorsement of the investigation to an independent agency to make a fresh probe may be well merited. That not only fair trial but fair investigation is also a part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India and therefore, investigation ought to be fair, transparent and judicious, was re-emphasised. The expression "ordinarily" as used in Section 173(8) of the Code was noted again to rule that in exceptional circumstances, however, in order to prevent miscarriage of criminal justice, a court may still direct investigation de novo.

74. The above postulations being strikingly common in all these decisions, do pervade the fabric and the content thereof and thus dilation of individual facts has been avoided.

75. That the extraordinary power of the constitutional courts under Articles 32 and 226 of the Constitution of India qua the issuance of direction to CBI to conduct investigation must be exercised with great caution, was underlined in Committee for Protection of Democratic Rights4 as adverted to hereinabove. Observing that although no inflexible guidelines can be laid down in this regard, it was highlighted that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police and can be invoked in exceptional situations where it 26 becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights.

76. In Kashmeri Devi, being satisfied, in the prevailing facts and circumstances that effort had been made to protect and shield the guilty officers of the police who allegedly had perpetrated the offence of murder involved, this Court directed the Magistrate concerned before whom the charge-sheet had been submitted, to exercise its power under Section 173(8) of the Code to direct CBI for proper and thorough investigation of the case and to submit an additional charge-sheet in accordance with law.

77. In Gudalure M.J. Cherian, this Court in a petition under Article 32 of the Constitution of India, lodged in public interest, did after taking note of the fact that charge-sheet had already been submitted, direct CBI to hold further investigation in respect of the offence involved. In recording this conclusion, this Court did take note of the fact that the nuns who had been the victim of the tragedy did not come forward to identify the culprits and that as alleged by the petitioners, the four persons set up by the police as accused were not the real culprits and that the victims were being asked to accept them to be so. The paramount consideration for the direction issued was to secure justice between the parties and to instil confidence in public mind. The same imperative did impel this Court to issue a similar direction for fresh investigation by CBI in Punjab and Haryana High Court Bar Assn.21 Here as well the investigation otherwise had been completed and charge-sheet was submitted.

78. This Court dealing with the proposition that once a charge-sheet is filed, it would then be exclusively in the domain of the competent court to deal with the case on merits in accordance with law and that the monitoring of the investigation would cease in all respects, held, in particular, in K.V. Rajendran14 in reiteration of the enunciations aforestated, that though it is ordinarily so, the power of transferring investigation in rare and exceptional cases for the purpose of doing justice between the parties and to instil confidence in the public mind, can be 27 made invoking its constitutional power available, to ensure a fair, honest and complete investigation.

79. The precedential ordainment against absolute prohibition for assignment of investigation to any impartial agency like CBI, submission of the charge-sheet by the normal investigating agency in law notwithstanding, albeit in an exceptional fact situation warranting such initiative, in order to secure a fair, honest and complete investigation and to consolidate the confidence of the victim(s) and the public in general in the justice administering mechanism, is thus unquestionably absolute and hallowed by time. Such a measure, however, can by no means be a matter of course or routine but has to be essentially adopted in order to live up to and effectuate the salutary objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike.

80. In the decisions cited on behalf of CBI as well, this Court in K. Saravanan Karuppasamy24 and Sudipta Lenka25, recounted the above propositions underpinning the primacy of credibility and confidence in investigations and a need for complete justice and enforcement of fundamental rights judged on the touchstone of high public interest and the paramountcy of the rule of law.

81. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like CBI, whether or not the probe into a criminal offence by the local/State Police is pending or completed, irrespective of as well, the pendency of the resultant trial have concretised over the years, applicability whereof, however, is contingent on the factual setting involved and the desideratum for vigilant, sensitised and even- handed justice to the parties.

82. The exhaustive references of the citations seemingly repetitive though, assuredly attest the conceptual consisting in the expositions and enunciations on the issue highlighting the cause of justice as the ultimate determinant for the course to be adopted.

83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.

84. As every social order is governed by the rule of law, the justice dispensing system cannot afford any compromise in the discharge of its sanctified role of administering justice on the basis of the real facts and in accordance with law. This is indispensable, in order to retain and stabilise the faith and confidence of the public in 29 general in the justice delivery institutions as envisioned by the Constitution.

85. As succinctly summarised by this Court in Committee for Protection of Democratic Right4, the extraordinary power of the constitutional courts in directing CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not interdependent on each other.

86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof.

Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.

87. Any criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, 30 always accountable to the law-abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation.

88. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali34 to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.

89. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya v. State of Karnataka35 that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction.

90. That the victim cannot be afforded to be treated as an alien or total stranger to the criminal trial was reiterated by this Court in Rattiram v. State of M.P.36 It was postulated that the criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is the perception of a trial from the viewpoint of criminal as well as the victim when judged in the social context.

91. This Court in NHRC v. State of Gujarat37 did proclaim unambiguously that discovery, investigation and establishment of truth are the main purposes of the courts of justice and indeed are raison d'étre for their existence.

92. That the pre-eminence of truth is the guiding star in a judicial process forming the foundation of justice, had been aptly propounded by this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira38. It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasising that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. While referring with approval, the revealing observation made in Ritesh Tewari v. State of U.P.39 that every trial is voyage of discovery in which truth is the quest, the following passage of Lord Denning scripted in Jones v. National Coal Board40 was extracted in affirmation: (Maria Margarida case38, SCC p. 384, para 39) "39. ... ... It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.' (Jones case40, QB p. 64)"

93. A strain of poignance and disquiet over the insensitive approach of the court concerned in the textual facts in the context of fair trial in the following observations of this Court in Vinod Kumar v. State of Punjab41 sounds an awakening caveat: (SCC p. 227, para 3) "3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise 'the felt necessities of time' and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes 'fair trial' for the accused as well as the prosecution?"

94. The observations though made in the backdrop of repeated adjournments granted by the trial court, chiefly for cross-examination of a witness resulting in the delay of the proceedings, 32 the concern expressed is of overarching relevance demanding sentient attention and remedial response. The poser indeed stems from the indispensable interface of the orderly existence of the society founded on the rule of law and "fair trial" for the accused as well as the prosecution. That the duty of the court while conducting a trial is to be guarded by the mandate of law, conceptual fairness and above all its sacrosanct role to arrive at the truth on the basis of material brought on record, was reiterated.

95. Adverting to the role of the police to be one for protection of life, liberty and property of citizens, with investigation of offences being one of its foremost duties, it was underscored in Manohar Lal Sharma v. Union of India42 that the aim of investigation is ultimately to search for truth and to bring the offender to book. The observations of Lord Denning in his rendering in The Due Process of Law, First Indian Reprint, 1993, p. 102 were alluded to as under: (SCC p. 553, para 25) "25. ... 'In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well-trained and well- disciplined force of police whom it can trust:

and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.

The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants.'"

19. It is true that despite wide powers conferred by Article 226 of the Constitution, while passing any order, the Court must bear in mind certain self- imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Article requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid 33 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. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights, as has been held by Hon'ble Apex Court in the case of State of West Bengal vs. Committee of Protection, 2010 (3) SCC

571.

20. From the facts of the present case, it depicts that firstly in a case of unnatural death of a young girl, the first information report was not lodged by the officer-in-charge of a police station and the same could be lodged under the directions of Magistrate concerned on the application of the petitioner moved under Section 156(3) of Cr.P.C.; secondly, the Investigation Officer did not record the statement of the witnesses u/s 161 Cr.P.C. in accordance with law (proper and true documentation by investigating officer are necessary); thirdly the mobile phone of the deceased was not put under surveillance to trace the outgoing and incoming calls before death and; lastly I.O. did not conduct fair investigation and conducted the same, deeming it to be a case of suicidal death. The Court observes that the concerned I.O. did not bother to conduct the investigation in a fair, unbiased and 34 scientific manner. That apart, CBCID also did not conduct the investigation properly and submitted the charge sheet in a very casual manner. In a case of unnatural death, fair and impartial investigation, and in a scientific manner, should be done to find out the truth, whereas no such endeavor has been made by the Investigating Agency in this case to disinter the truth and to book the culprits. I am of the firm opinion that both the Investigating Agency, be it Civil Police or CBCID, have failed to investigate the matter in accordance with law. Therefore, considering the present case to be a rarest of rare case and to best serve the ends of justice, I am inclined to handover investigation of the case to CBI for making a de novo investigation.

21. Consequently, the writ petition is allowed. Order dated 16.07.2015 (Annexure no.16) issued by respondent no.5 stands quashed. Respondent no.3 is directed to register the case at CBI (SPE) Dehradun and to investigate the matter de novo, on priority basis, as the incident occurred in the year 2014.

22. No order as to costs.

(Lok Pal Singh, J.) 29.06.2017 Rajni

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