Madhya Pradesh High Court
Mithlesh Rai vs The State Of Madhya Pradesh Judgement ... on 24 January, 2014
Author: U. C. Maheshwari
Bench: U. C. Maheshwari
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
WRIT APPEAL NO.20 OF 2013
Division Bench :- Hon. Justice Shri Krishn Kumar Lahoti &
Hon. Justice Shri U.C. Maheshwari
Mithlesh Rai
Versus.
The State of M.P. and others
For appellant : Shri Adarshmuni Trivedi, Senior Advocate assisted
by Shri S.K. Mishra, Adv.
For respondent Nos.1 to 4 : Shri Piyush Dharmadhikari,
Govt. Advocate.
WRIT APPEAL NO.803 OF 2012
Santan Rai @ Pappu Rai
Versus.
The State of M.P. and others
For appellant : Shri Parag Chaturvedi, Adv.
For respondent Nos.1 to 4 : Shri Piyush Dharmadhikari,
Govt. Advocate.
ORDER
( 24 .01.2014) Per U. C. Maheshwari J.
1. This order shall govern the disposal of the aforesaid both the Intra Court Writ appeals.
22. The appellants have filed their respective W.A. No. 20 of 2013 and W.A. No. 803 of 2012 being aggrieved by the order dated 17.5.2012 passed by the learned Single Bench in W.P. No. 7426 of 2012 whereby their joint petition filed under Article 226/227 of the Constitution of India to issue the appropriate writ for the following reliefs has been dismissed:-
1. To issue a writ of Mandamus and command the respondents and call the entire records of the investigation related to crime no. 50/2012 of police station Kotwali Umariya, district Umariya 460 of IPC, incident dated intervening night of 17.2.2012.
2. To direct the CBI established under the Delhi Special Police Establishment Act, to carry out the fresh investigation of the Chandrika Rai and his family murder case dated 17.2.2012.
3. And pass such other and further order which this Hon'ble Court deems fit and proper.
3. For the convenience the name of the aforesaid appellants, Santan Rai @ Pappu Rai and Mithlesh Rai respectively are hereinafter referred as "the petitioner nos. 1 and 2" respectively or "petitioners" as stated in the impugned order.
4. The appellants had filed the writ petition with their joint names contending that deceased Chandrika Rai, the brother of petitioner no. 2, the brother in law of the petitioner no. 1, was fearless and dynamic journalist of Umaria. He had waged the war against the Coal and Bhoo Mafias of Shahdol and Umaria region, so also against their protectors, the local politicians by publishing the news and articles against them. Due to such reasons, he was subjected to threats for his life, inspite of that he had not left his principles and had continued to publish the news and articles against such Mafias. On his published news, the authorities had intercepted and seized the coal having the worth of Rs.80,00,000/- when 3 the same was being illegally transported by them. He had also published the news of illegal allotment of mining tender by the authorities, on which the Chief Minister of the State had intervened in the matter and had cancelled such tenders. In this regard, the copies of the news paper cuttings were annexed with the petition as Annexure P-1.
5. As per averments, before his murder, he being a journalist was covering the news of kidnapping case of Anant Jhariya, S/o Hamant Jhariya, the SDO of PWD, Umaria. As on 15.2.2012 such Anant Jhariya, a seven years old boy on his returning from the coaching class on the way was kidnapped and thereafter his kidnappers had demanded five crores ransom from his father to release such boy. In connection of such case, the deceased had collected some material evidence against some very eminent persons of the society and was on the verge of exposing them.
6. Due to collection of such material by Chandrika Rai under his fear the kidnappers without taking any sum of ransom had left said child Anant Jhariya at Beohari Railway Station. Besides this, on the basis of the news and articles published at his instant in the newspapers as many as 58 cases were registered by the administration against the persons involved in the illegal mining, Bhoo Mafias and other related influential persons.
7. On 18.2.2012 the house of the deceased Chandrika Rai was found to be locked upto the evening as nobody had come out from the house and none was picking up the phone of Vinay Yadav, who continuously between 12.00 to 3.00 PM tried to contact the deceased, Chandrika Rai, on which Vinay Yadav asked the petitioner no. 2, the younger brother of the deceased in this regard, then he replied that the deceased might have gone to his farm house. But thereafter Raju Sharma, Brijendra Tiwari and Santosh Gupta had reached to the house of deceased and found it locked. Then at 6 o'clock in the evening he called the petitioner no. 2, on his reaching, he had broken the lock and entered in the house, where they had found that Chandrika Rai, his wife Smt. Durga Rai and their son Jalaj Rai and daughter Nisha Rai were brutally murdered and their bodies 4 were lying in four different rooms and the rooms were massed. Thereafter on information of Mithlesh Rai, the Police Umaria had registered the FIR as Crime No. 50/2012 against the unknown persons only for the offence of Section 460 of IPC. Copy of such FIR is annexed with the writ petition as Annexure P-3.
8. The deceased Chandrika Rai being a journalist was exposing the white collar criminals and due to that his entire family have been brutally murdered by the criminals and the Police were unable to solve the case, so the local news papers and Journalist of all over country had published many articles and criticized the working of local Police and also accused the State Government for not providing the adequate security to Chandrika Rai who was fighting against the Bhoo Mafias and Coal Mafias. In support of such contention the copy of newspapers cutting are annexed with the petition as Annexure P-4.
9. Subsequent to registration of the offence in the course of investigation, respondent no. 3 Superintendent of Police, Umaria organized a press conference on 24.2.2012 and issued the press note, Annexure P-5 (with the petition) by which he had claimed that the murder mistry of Chandrika Rai and his family members has been solved. In such note, it was also stated that the deceased Chandrika Rai was blackmailing the kidnappers of Anant Jharia by giving threat to expose their names, therefore, such kidnappers had brutally murdered the entire family of Chandrika Rai in the intervening night of 17th and 18th of February 2012 between 10.30 PM to 1.00 AM and the Police has arrested two accused namely Vidhya Niwas Tiwari and Amit singh who have also confessed their crime.
10. Subsequent to aforesaid press note, the then Director General of Police, Sri S.K. Raut had visited Umaria and refuted to accept the aforesaid story found in primary investigation and had directed the respondent no.3, Superintendent of Police to reinvestigate the matter. Thereafter on 29.2.2012, the respondent no. 3 had organized another press conference and issued fresh press note stating that after collecting 5 sufficient evidence , they had solved the mistry of the alleged four murder case according to which the Driver of the deceased Chandrika Rai namely Ramesh Yadav on non fulfilling his demand of money had murdered the entire family of such Chandrika Rai. He had also robbed the house and stolen the ATM card and other articles and by using such ATM card had withdrawn Rs.3000/- from the ATM of Union Bank of India. It was further stated that the Police had arrested Ramesh Yadav and at his instance also seized the mobile phone, ATM card and other things of the deceased. Besides this, on disclosing information by Ramesh Yadav, at his instance, the Police had also seized the other articles relating to the occurrence. It was also claimed that Ramesh Yadav had confessed his crime, a copy of such press note is annexed with the petition as Annexure P-6.
11. In further averments of the petition, the aforesaid story put fourth in second press note that "the alleged accused, Ramesh Yadav had demanded some money from Chandrika Rai, on his refusal for the same, he had murdered Chandrika Rai and at that time his wife Durga Rai and children, Jalaj Rai and Nisha Rai were sleeping. After killing Chandrika Rai, he had murdered these three persons by assaulting on their forehead with the Kamani Patta and Iron Pipe and also used the scissor and fork in murder of Nisha Rai because she was struggling." Such projected story was apparently suspicious, because of all the deceased were not only major but were having good health as they could not be murdered by one person and it could also not be assumed that none of them had made any noise. In such circumstance, the projected story of press note that Ramesh Yadav assaulted 4-5 times to every deceased by Kamani Patta and Iron Pipe and also used scissor and fork in murder of Nisha Rai could not be prima facie believed to draw the interference that only Ramesh Yadav had committed the murder of four persons.
12. Apart from the aforesaid, the prosecution did not collect finger prints of the culprits from the entire house. The investigation, to trace out the weapon or articles used by the accused to open the Almirah and 6 other lockers, was also not carried out with proper approach. As per investigation carried out, the dead body of Jalaj Rai was lying on his bed having the injuries on his head but from the photograph, it is clear that there was no sign to assault on his head. There was no blood stains on his white colour shirt. So in such a situation, the entire investigation from the initial stage was not fair.
13. The process of investigation adopted by the Police was not only suspicious and shallow but also not trustworthy. After arresting Ramesh Yadav the Assistant Public Prosecutor moved an application before the Judicial Magistrate for grant of permission to carry out the Brain Mapping Test of such accused for which he was also ready. Considering such application, the Magistrate had permitted such agency to carry out the Brain Mapping Test of such accused but subsequent to such permission, the Investigation Agency had not taken any step to carry out such Brain Mapping test of the accused.
14. In view of the available evidence the approach of the Police investigation was neither natural nor reliable. According to the postmortem report of Nisha Rai, besides the injuries on her head, deep scratches on her legs were found, the same could have been caused on holding her legs tightly by some one and on making the assault on her head by another person. As the Police had also admitted that in her murder, various things, the iron rod, scissor and fork were used. In the available, scenario it appears that more than six persons were involved in the alleged crime and the impugned incident was directly or indirectly connected with the aforesaid kidnapping case of Anant Jharia and was the revengeful reaction either of such accused of kidnapping case or of the persons of Bhoo Mafia and Coal Mafias.
15. It is beyond imagination that a servant who is graduate B.Sc. can commit the murder of entire family of his employer including the minor children. It is also stated that the investigation of the case was not carried out fairly on the correct line, therefore, the case requires fresh investigation through some independent agency like CBI to trace out the 7 actual culprits of the crime to send them behind the bars. It is further stated that in view of the aforesaid shallow and weak type of Police investigation, the petitioners and other different organizations had submitted their respective representations before the competent authorities of the State, including the Chief Minister, Director General of Police, Home Minister with the request to carry out the investigation of the impugned crime through independent agency, like the Central Bureau of Investigation. Copies of the same are annexed with the writ petition as Annexure P-7.
16. It appears from the record of writ petition that the impugned order of dismissing the petition has been passed at the initial stage of the case without calling or filing any response/return on behalf of authorities of respondent nos. 1 to 4, so also without calling the case diary of the impugned case, as we have not found any averment in the impugned order showing that any averment of the response/ return and the circumstances of the case diary were taken into consideration. The entire order of the learned Single Bench appears to be based only on the averments of the petition as well as of the papers annexed with the same.
17. Being dis-satisfied with the dismissal order of the petition, the petitioners nos. 2 and 1 with their respective Intra Court Appeals have come to this court. In their respective appeal memos besides the aforesaid grounds, some additional ground : that in the available scenario of the case the charge sheet filed against said accused Ramesh Yadav being based on improper investigation and contrary to procedure with intention to save the real culprits, is not sustainable, is also taken in the writ appeal no. 20/2013. Such ground is also raised on the basis of alleged extra judicial confession of the impleaded accused Ramesh Yadav before some Advocate, in which he categorically stated the names and particulars of the other culprits alongwith their acts with whom he had committed the alleged crime.
818. In response of in both the appeals, on behalf of the authorities of respondent nos. 1 to 4 by filing the separate return, it is stated that the learned Single Bench has thoroughly considered the FIR and investigation carried out by the Police for recording the finding that no extra ordinary circumstances are prevailing in the matter, as would lead to an opinion that the investigation should be held by CBI and in such premises dismissed the writ petition in a speaking manner. It is further stated that at the threshold the answering respondents hereby raise a preliminary objection with regard to maintainability of two different writ appeals against the impugned order as the same amounts to sheer abuse of process of law. Pursuant to it, it is stated that against the impugned order only one appeal is sufficient which has already been filed by the petitioner no. 1, i.e. W.A. No. 803/2012, then W.A. No. 20/2013 deserves to be dismissed. In W.A. No. 20/2013, the authorities of respondents by filing the concise return have adopted the return filed in W.A. No. 803/2012. In further averments of the return of W.A. No. 803/2012 interalia, by justifying the FIR registered at the initial stage, only for the offence punishable under Section 460 of IPC against the unknown persons stated that subsequently Section 302 of IPC was also invoked in the matter. In further averments, it is stated that in any case fresh investigation of the impugned case through Central Bureau of Investigation is neither necessary nor required.
19. Shri Adarshmuni Trivedi, learned Sr Adv assisted by Shri S.K. Mishra, learned counsel for the appellant of W.A. No. 20/2013 and Shri Parag Chaturvedi, learned counsel for the appellant of W.A. No. 803/2012 after taking us through the record of writ petition alongwith the impugned order, so also the grounds of the appeals mentioned therein argued that while passing the impugned order the grounds, raised by the petitioners in the petition, were not considered with proper approach by the learned Single Bench. The process of investigation adopted by the Police was questioned in the writ petition on various grounds but the same were neither examined nor considered, as such the learned Single Bench has 9 not considered the matter keeping in view the settled propositions and the provisions enacted by the legislature in that regard. In continuation they said that the learned Single Bench under its majesty was bound to consider the material circumstances of the case, according to which after receiving the information that dead bodies of four persons were lying at the different places of the house of deceased Chandrika Rai, the Police had reached to such place and prima facie had found that all four persons had died due to the injuries caused by some others. In such premises, it was the apparent case of culpable homicide amounting to murder of four persons, inspite that the FIR was registered against unknown person only for the offence punishable under Section 460 of IPC and not for the offence of Section 302 of IPC alongwith the other Sections in which offence of dacoity with murder is made punishable. They further said that according to the case of prosecution, after reaching the Police to the place of occurrence had registered four different inquest intimations of such dead bodies. According to them though the sign of fatal injuries were found on all such corpus, inspite but the offence of Section 302 of IPC was not registered. It was further said that all the dead bodies were sent to the hospital on next day to carry out their autopsy, where the same were carried out and probably their postmortem reports were might have been prepared by the Doctors and the same were given to the Police either on the same day or the subsequent day. In such reports, the cause of death of all the deceased was stated to be shock and hemorrhage due to the injuries found on their bodies and in such premises, the same were homicidal death. Inspite that for a longer period for the reasons best known to the Investigating Officer or its superior authority the offence of Section 302 of IPC was neither invoked nor inserted in the case diary, the same was invoked in the first week of March 2012. In continuation, it was said that after commencement of the investigation on 18.2.2012, the respondent no. 3, Superintendent of Police had organized a press conference on 24.2.2012 and issued a press note contending that the kidnappers of Hemant Jharia, son of Anant 10 Jharia, had committed the alleged murders and out of them the Police had arrested two persons namely Vidhya Niwas Tiwari and Amit singh who had also confessed their crime, but subsequent to this press note the investigation agency had taken "u" turn and in the second press conference, organized by the respondent no. 3 on 29.2.2012 issued another press note contending that on collecting the evidence, it was revealed that Ramesh Yadav, the Driver of the deceased had murdered the entire family of Chandrika Rai. In view of such contradictory press note, it is apparent that in order either to save the real culprits or with intention not to make efforts to find out the real culprits the then Investigating Agency as well as STF of the State have manipulated the investigation or with some ulterior motive to save the real culprits have changed the line of investigation. Looking to the scenario of the occurrence, it could not be deemed that four persons were murdered only by aforesaid one person, Ramesh Yadav. There was no motive with the Driver to commit the murder of four persons of the same family as he had not have any enmity with any of the deceased. They also said that according to such subsequent investigation, Ramesh Yadav had entered by breaking the house with intention to commit robbery, then ornaments worn by the wife of Chandrika Rai should not have been found on her body but the same were found on her dead body and if he had committed theft of other ornaments from the Almira, then the same was probably broken by some implements but for that no evidence was collected in the Investigation. Challenging the act of Police changing the line of investigation, they said that as per prosecution, Ramesh Yadav had confessed to commit the impugned crime. If such confession was the only criteria to implead him as sole accused in the case, then why the earlier two arrested accused namely Vidhya Niwas Tiwari and Amit singh who had also confessed the offence as per press note of respondent no. 3 dated 24.9.2012 were given the clean chit by the Police. All these material questions require answer by carrying out fair investigation through some independent agency. He said that the prosecution has failed to establish 11 prima facie reasons either in the charge sheet or before this court that why the fingers prints of the culprits were available at the place of occurrence, but were not collected in the initial investigation to trace out the actual culprits and to carry out the fair investigation. Counsel further said the Investigation Officer on the basis of the collected evidence had decided to carry out the Brain Mapping Test of the impleaded accused Ramesh Yadav and in that dimension by filing the application he had obtained permission from the court of the Judicial Magistrate, inspite that such test was not carried out. Accordingly, such order of the Judicial Magistrate has also not been complied with by the Investigating Agency. He further said that it is undisputed position in the matter that deceased Chandrika Rai being dynamic journalist of the town, had disclosed the illegal activities of many persons involved in the illegal mining and/or working as Coal and Bhoo Mafias. He had also collected some material and important information regarding kidnappers of Hemant Jharia, who had kidnapped him for the ransom. On his information, various offences were registered against the persons involved in illegal minings or other activities as Bhoo and Coal Mafias so also other white collar criminals. On his report and publication, some tenders of such persons relating to the mines were also cancelled by the State Authorities. So involvement of such persons or their criminal conspiracy in committing the murder of entire family of Chandrika Rai could not be ruled out. The initial investigation was started by the local Police on that line but subsequently after some days either under some political pressure or/and with some ulterior motive, the entire line of investigation was changed. In such premises, he said that even on filing the charge sheet on the basis of such improper and incomplete investigation, the real culprits have not been brought before the court to hold the trial and send them behind the bars. They further said that in such a scenario, it is apparent that the local Police and the STF had filed the impugned charge sheet without without carrying out the proper investigation of the crime, therefore, the trial of the case on such charge sheet should not be 12 permitted. They further said that looking to such improper conduct of the State Agency in investigation to assure the appellants as well as the residents of Umariya at large that the investigation of the case is being/ has been carried out by the independent agency on the right dimension by making efforts to bring the real culprits before the court of law for their prosecution a fresh investigation of the impugned case through some independent agency of the outside of the State, like Central Bureau of Investigation is necessary and prayed to set aside the impugned order and allow their writ petition with appropriate direction. They also placed their reliance on the decisions of the Apex Court in the matter of West Bengal Vs. Criminal Protection of Domestic Rights reported in 2010, Vol. 3, SCC 571, and in the matter of Nirmala Singh Khalanand and others Vs. State of P.B. reported in 2009 , Vol. 1, SCC 441.
20. On the other hand responding the aforesaid arguments by justifying the impugned order, Shri Piyush Dharmadhikari, learned Govt. Adv said that the same being based on proper appreciation of the available factual matrix is in conformity with law, it does not require any interference at this stage. In continuation he said that immediately after receiving the information, the Police went to the spot and thereafter registered the inquest reports with respect of all four murders and during investigation, the progress of the same was shown by issuing the different press notes on the basis of collected evidence by the investigating agency upto the then stage of investigation. In the available circumstances, subsequent to beginning investigation and issuing a first press note, on collecting the other evidence in further investigation, changing the line of investigation became necessary and that is why after issuing the first press note by respondent no. 3, such line of investigation was changed to another dimension also. As such on collecting the further evidence, there was no option with the investigation agency except to change the line and proceed with further investigation. He also said that in order to carry out the fair investigation, the matter was also made over to the S.T.F., the 13 special agency constituted by the State of M.P. to assist and carry out the fair investigation of the serious cases like the impugned case. The investigation carried out with the assistance of such agency could not be questioned on the flimsy grounds raised by the appellants in the petition as well as by their counsel. He further said that after registering the crime no. 50/12 on 18.2.2012 for the offence punishable under Section 460 of IPC against unknown persons, during the course of investigation on establishing the ingredients of Section 302 of IPC, such Section was also invoked at later stage on 3.3.2012. In this regard he also referred the affidavit of C.R. Patel, one of the Investigating Officer of the Crime No. 50/12, filed in compliance of the order dated 16.8.2013 in W.A. No. 803/2012. He further said, that the investigation has been carried out by the investigating agency in accordance with the procedure prescribed under the law, therefore, the charge sheet filed on such investigation could not be a subject matter of the judicial review and in such premises, the fresh investigation through C.B.I. is not required. He further submitted that in the impugned investigation carried out with the assistance of S.T.F. if there are some lacuna left in the same, then by virtue of Section 156 (3) and Section 173 (3) of Cr.P.C. the concerning Magistrate is empowered to take cognizance, on such issue and can give appropriate direction to carry out the investigation or supplementary investigation. In such premises, the appellants could have approached or may approach such forum and prayed to affirm the impugned order by dismissing both the appeals. He also placed his reiliance on the decision of the Apex Court in the matter of T.C. Thangaraj Vs. V. Engammal and others reported in (2011), 12, SCC, 328.
21. Having heard the counsel at length, we have carefully gone through the writ petition alongwith the annexed papers, the impugned order and the grounds raised in the appeal memos, so also the returns of the State authorities alongwith the aforesaid affidavit of Shri C.R. Patel one of the Investigation Officers of the crime. Apart from these papers, we have also carefully gone through the case diary of the impugned crime.
1422. Undisputedly after holding investigation by Police with the assistance of the S.T.F. the charge sheet has already been filed by State prosecution agency against the impleaded accused Ramesh Yadav alleging that he being in need of money and demanded the same, from Chandrika Rai, and on his refusal to give the same under such revenge he had murdered the entire family of Chandrika Rai. According to such charge sheet, the impleaded accused has confessed his act of committing the murders of aforesaid four persons and at his instance, some articles connecting him with the crime have also been recovered. The the counsel assisted apprised us that on the basis of said charge sheet the trial of the case is pending against impleaded accused, Ramesh Yadav before the Sessions Court of Umariya.
23. Before proceeding further, we deem fit to examine the matter from the case diary of the crime and undisputed papers annexed with the petition. On perusing the same, we have found the following circumstances:-
(i) On information of Mithlesh Rai, the brother of the deceased Chandrika Prasad that dead bodies of aforesaid four persons having the fatal injuries are lying in the house of Chandrika Rai at P.S. Umariya, instead to register the crime for the offence of Section 302 of IPC, the crime no. 50/12 was registered against the unknown persons for the offence of Section 460 of IPC. It shows that inspite the information of murder of such persons either with intention to conceal the incident or to protect the actual culprits the offence of Section 302 of IPC was not registered at the initial stage.
(ii) Regarding unnatural death of such four persons, their different inquest were registered under Section 174 of Cr.P.C. and the dead bodies were sent to the hospital on next day to carry out autopsy. Inspite that the offence of Section 302 of IPC was not invoked.
(iii) After carrying out the postmortem of such dead bodies, the concerning Doctors had prepared their postmortem reports on the same day, i.e. 19.2.2012 and probably such reports were handed over to the 15 Police on the same day or day subsequently. In such report the cause of death of all the corpus was commonly stated as under:-
"In our opinion the cause of death was shock as a result of severe hemorrhage and the injuries to vital organ like brain, all injuries are anti mortem in nature."
From the aforesaid opinion of Doctors within three days from the date of incident, it was revealed that such persons had died with homicidal death as a result of ante mortem fatal injuries caused to them by others. Inspite, that offence of Section 302 of IPC was not invoked for a longer period.
(iv) The respondent no. 3, Superintendent of Police, Umariya had organized a press conference on 24.2.2012 and issued a press note (Ann. P-5) annexed with the writ petition. In such press note after stating various facts of the case including registration of the crime for the offence of Section 460 of IPC, it was apprised to the Press Reporters that in investigation on obtaining the call details of the suspicious mobile calls it was revealed that Amit Singh, one of the accused of kidnapping case of Hemant Jharia was the accused of the crime. On which after taking him in custody in the kidnapping case, on carrying out his interrogation, he had confessed that he alongwith Home guard Soldier, Vidhya Niwas Tiwari, Sunil, Manish Kori, Harendra Singh and Raj were involved in the kidnapping case of Hemant Jharia, on which such other accused were also arrested. In further interrogation carried out by an officer of S.T.F., A.I.G. Shri Arvind Tiwari, said Vidhya Niwas Tiwari and Amit Singh had confessed their involvement in the murder of Chandrika Rai and his family members. In such press report, it was also stated that yesterday on 23.2.2012, Additional DGP, S.T.F., Sanjay Choudhari came to Umariya and after taking the information of aforesaid carried out investigation, was satisfied with the aforesaid interrogation of the Vidhyaniwas Tiwari, in which he had stated that Chandrika Rai came to know that they had 16 kidnapped Anant Jharia and on account of that Chandrika Rai was blackmailing with a threat to expose them and due to such reason they had to leave Anant Jharia without taking any ransom. It is also stated that Amit Singh used to visit the house of Chandrika Rai to carry out the electricity work and in such premises, he was acquitted with the situation of the deceased's house. In such press note, it was further stated that due to aforesaid activities of Chandrika Rai, blackmailing Vidhyaniwas Tiwari and Amit Singh with the threat to expose them in kidnapping case, they accompanied with their unknown friends entered into the house of Chandrika Rai between 10.30 to 1 o'clock in the intervening night of 17-18/2/2012 and murdered the entire family of Chandrika Rai.
(v) In the return of the State - authorities filed as a response in these appeals the issuance of the aforesaid press note dated 24.2.2012 has not been denied. So in such premises, prima facie inference could be drawn that investigating agency of the State had already collected the evidence in initial investigation against Vidhyaniwas Tiwari, Amit Singh and their unknown friends regarding their involvement in the impugned crime of four murder, inspite that none of them was arrested because we have not found any arrest memo of any of such persons or the memorandum recorded by the Police on disclosing the aforesaid information by said Vidhyaniwas Tiwari and Amit Singh. If they were arrested and such papers were prepared, then why the same are not available in the case diary. It shows that during investigation with some ulterior motive best known to the investigation agency, the case diary of the crime has also been tempered.
(vi) The factum of collection of the aforesaid information and evidence by the investigating agency in initial investigation appears to be correct from the Parcha of the case diary dated 22.2.2012 as on backside of this parch having page no. 170 of the case diary, it is stated that interrogation of Amit Singh and other persons connected with him was carried out and the inquiry of their mobile calls through cyber technic is being carried out by the STF but till writing such purcha, the above 17 mentioned accused had not given any special information. It is apparent that any report of STF regarding inquiry of the mobile call details carried out through the cyber technic are not annexed with case diary. In such premises, it could be assumed that no effort to collect or obtain such material evidence was made by the investigating agency. In the lack of such report, the impugned investigation of the State agency could not be said to be fair and impartial.
(vii) In the investigation prima facie, it has come in the case diary that deceased Chandrika Rai was a renowned journalist of Umariya and had published so many news and articles in the newspapers to expose the persons involved in the illegal mining, so also against bhoo mafias, coal mafias and on such information the concerning authorities had also taken the actions against some persons and registered the cases against them and on some occasions cancelled the tenders of such type of persons and on account of that white collar persons having status in the society had serious enmity with Chandrika Rai. But it appears that in such dimension no effort was made to carry out the investigation.
(viii) In the course of investigation, the information regarding withdrawal of the money Rs.3000/- from the account of deceased Chandrika Rai from the ATM through his ATM Card was received, on which after obtaining the clips of CCTV of such ATM from the concerning bank, it was found that implicated accused Ramesh Yadav had withdrawn such sum through ATM Card and only on that count the line of entire investigation was centralized against Ramesh Yadav and no effort was made by the prosecution agency to find out the involvement of the above mentioned or other persons in causing the alleged murder of four persons, either separately or accompanied with Ramesh Yadav. In the available circumstances, Ramesh Yadav may be one of the accused and even on that count the line of investigation should not have been stopped by the Investigating Agency against the aforesaid or other unknown persons but it is apparent from the case diary that subsequent to obtaining 18 the aforesaid CCTV footage, the process of investigation of the case to find out the other culprits or the actual culprits was stopped.
(ix) On going through the subsequent press note issued by the respondent no.3, Superintendent of Police, Umariya on dated 29.2.2012, (Ann. P-6) with the petition, it is apparent that by this press note, the authorities of the Police and the Investigation Agency had taken a "u" turn and stated that on collecting the evidence in the course of investigation regarding aforesaid ATM Card and CCTV footage whereby Rs.3000/- was withdrawn by the accused Ramesh Yadav through the ATM card of the deceased, it has been revealed that only Ramesh Yadav had murdered all the aforesaid four persons and he had also confessed to commit such crime and the articles used by him in the incident and stolen from the house of occurrence have been recovered at his instance with further information that due to temptation of money, he murdered the entire family of Chandrika Rai. It is apparent from para 2 of subsequent press note (Ann. P-6) that a day before of such press note, Shri S.K. Raut, the then Director General of Police of M.P. visited Umaria in connection of this case and after inspecting the place of occurrence and looking to the seriousness of the offence immediately constituted a special team to resolve the mistry of such serious offence. Names of some other senior Police Officials of the State are also stated in such press note. In such premises, and it appears that only after the visit of said high official, the line and dimension of investigation was entirely changed. But commencing sufficient reasons to change the line of investigation are not available in the case diary.
(x) In view of aforesaid two different versions of the Police in the course of investigation by interval of 4-5 days shows that for the reasons best known to the STF or the local Police agency involved in the investigation that why they had not continued further investigation of the case against whom they have found prime facie reliable information for committing the alleged offence for which according to the press note the interrogated accused Vidhyaniwas Tiwari and Amit Singh have also 19 confessed the same. Such situation gives sufficient circumstance to draw an inference against the fairness of Stage Agency in carrying out the investigation.
(xi) We have also found in the case diary that as many as three used condoms with some substance inside of them were found at the place of the incident and dead body of one woman and one girl were also found in the injured conditions with anti mortem fatal injuries and as per averments of page no. 143 of the case diary such condoms were sent to FSL but we have not found any report in the case diary given by the FSL after carrying out the chemical examination of the same. In this regard some averments are made by the Investigating Officer on the parch of the case diary, dated 2.3.2012. In such premises, the question rises why such report was not obtained and if it was obtained then why the copy of the same has not been kept with the case diary even if the same was filed alongwith the charge sheet. In such situation, it seems that probably some other offence relating to the women was also committed by the concerning culprits. In such premises, the report of chemical examination of such condoms was also relevant to proceed with the investigation of the crime with another dimension. But in that dimension no effort was made by the investigating agency.
(xii) It is also apparent from the parcha of case diary dated 1.3.2012 that the investigating agency itself was not sure that only the impleaded accused Ramesh Yadav was involved in the alleged crime because in such parcha, it is stated that memorandum of Ramesh Yadav is being prepared in presence of three witnesses, because on arising the occasion, if some of the witnesses are found to be involved in committing the alleged offence, then their names could be deleted from the list of prosecution witnesses.
(xiii) Apart from the aforesaid, it is apparent from the parcha of the case diary dated 7.3.2012 that investigating officer was directed by the Senior Police Officials to obtain permission from the court to carry out Brain Mapping Test of the impleaded accused, Ramesh Yadav because on 20 arising the occasion, the same would be necessary, on which the investigating officer had taken such permission in writing from the concerning court on the same day, i.e. on 7.3.2012. Inspite of that for the reasons best known to the investigating agency or its superior officers, for which no reasons are stated in the case diary, such test of the impleaded accused was not carried out, till filing the charge sheet. We deem fit to mention here that the impleaded accused Ramesh Yadav had also given his consent to carry out such test inspite that the same was not carried out. It gives circumstance to draw a prima facie inference that to avoid fair investigation such test was not carried out.
(xiv) It is apparent that till 3.3.2012 inspite availability of cogent and clear circumstance from the date of registration of the crime, such Section was not invoked and after twelve days, on 3.3.2012 such Section of 302 of IPC at the direction of senior officials was invoked. Such conduct of the Investigating Agency gives circumstance to draw an inference that State Investigation Agency had not remained fair in holding the investigation of the crime impartially.
24. Keeping in view the aforesaid position of the case diary on perusing the impugned charge sheet filed by the prosecution against alleged accused, Ramesh Yadav, we have found that the investigation agency even after taking the assistance of the S.T.F. or prior to it had not taken any pain to investigate the matter on the proper line and dimension and in such premises, the impugned investigation carried out by the State Agency and its filed charge sheet could not be said to be fair and impartial.
25. In view of the aforesaid circumstances of the case diary, it is apparent that investigation was not conducted and continued in the right dimension for which it was initially started. It appears that for one reason or another just to save the real culprits of the incident with some ulterior motive after beginning the initial investigation on right dimension only after some days with intention to complete the formalities of investigation to file the charge sheet, the entire line of investigation was 21 changed and the real culprits against whom prima facie evidence was collected at the initial stage, before releasing the first press note by respondent no. 3, who had also admitted about commission of such crime, were left free and only Ramesh Yadav, Driver of the deceased has been impleaded as accused and was charge sheeted. Infact in the light of aforesaid lacunas left by the investigation agency of the local Police as well as of the S.T.F. the investigation carried out by such agencies could not be said to be fair and impartial. Infact such agency had failed to investigate the matter fairly completely and impartially.
26. In the available circumstances of the case, we are of the considered view that aforesaid act of the local Police of the State as well as of the S.T.F. had not given a healthy massage to the appellants or the related persons of the family of the deceased, so also the citizens of the town of Umaria and the community of journalists at large.
27. The fair and impartial investigation of a crime is condition precedent and obligation on the part of any investigating agency, the same has not been carried out by the State Agencies in the impugned case of brutal murder of four persons of the entire family of Chandrika Rai. As per available record of the case diary, stated above, the fair investigation on right dimension has not been carried out and by such act the actual culprits have been saved by the Investigation Agency. Consequently the appellants had rightly lost their faith at large on the system and such situation is not tolerable. As per settled position of law every citizen of this country has right to get fair investigation of the case and justice free from any bias and polluted act of the State authorities including the investigating agency. In such premises, it is held that the investigation of the crime has not been carried out by the State Agency with correct approach fairly and impartially keeping in view all probable dimensions. Therefore, to keep and intact the faith of the appellants and people at large in the existing system in the available circumstances, we are of the considered view that the impugned crime requires fresh investigation through some independent agency of the 22 outside of the State, i.e. Central Bureau of Investigation established under the Delhi Special Police Establishment Act and the same is ordered.
28. True it is that in the normal circumstances, the investigation of the criminal case carried out by the State Agency could not be a subject matter of the juridical review in the writ jurisdiction of this court but where there special facts and circumstances are involved, thereby the right of any citizen either he is the accused or the victim has/have been violated by the authorities, then certainly this High Court has jurisdiction to rectify such mistake under Article 226 of the Constitution of India by judicial review. It is settled proposition of law that justice should not only be done but it should be appeared that the same is being done and it has been done. Such approach is of this court is fully based on the principle laid down by the Constitutional Bench of the Apex Court presided over by five Hon'ble Judges in the matter of State of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal reported in (2010), 3 SCC 571 in which it was held as under:-
"68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows :
(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 23 include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(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 the 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 the 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 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 the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
24(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) ...............................................................................
"69 In the final analysis, our answer to the question referred is 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 will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liabilities of the citizens, this Court and the High Courts have not only 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, zealous and vigilantly."
Thus, the High Court has jurisdiction and give direction to carry out the investigation afresh through independent agency like Central Bureau of Investigation even without consent of the State.
29. So far other case laws cited by the parties, stated above are concerned, it is suffice to say that this Bench does not have any dispute regarding the principles laid down in the same but the same being distinguishable on facts, in the available circumstances of the case at hand are neither applicable nor helping to the State's authorities of the respondents.
30. True it is that the CBI is already overburdened with the investigations and the enquiries of the various high profiles cases of the national and international ramifications and in such premises, on the basis 25 of available infrastructure of the CBI it may be difficult for it to carry out the investigation of the impugned case but in order to maintain the faith of the people at large in the system, so also to protect the right of the citizens like appellants, the investigation of the impugned serious case of four murder out of them one Chandrika Rai was allegedly renowned journalist and was fighting with different Mafias and politicians as stated above is necessary through CBI and, therefore, the same is ordered.
31. In view of aforesaid, the impugned order of the learned Single Bench being perverse is not sustainable. Consequently by allowing these appeals, the same is set aside and pursuant to it, the writ petition filed by the petitioners is allowed with the following directions: -
"The Director General of Police, Madhya Pradesh alongwith its subordinate officers, i.e. Inspector General of Police and Deputy Inspector General of Police of Umariya Range alongwith Superintendent of Police, Umariya are directed to send the case diary of impugned Crime No. 50/2012 alongwith all connected documents and copy of this order to the Head Quarter of Central Bureau of Investigation within 30 days through special messenger to hold fresh investigation of Crime No. 50/2012 in compliance of this order and pursuant to it, the Director of Central Bureau of Investigation is directed to take appropriate steps to carry out the investigation of the aforesaid crime afresh without influencing from the investigation carried out and the charge sheet filed by the State Agency and submit its report or charge sheet as the case may be, before the appropriate court within ninety days from the date of receipt of the case diary alongwith the copy of this order from the aforesaid State Authorities so also under intimation to this Court and till filing the charge sheet or the report in this regard before the appropriate court, the further trial of the sessions case based on the charge sheet filed by the State Agency against Ramesh Yadav is hereby stayed and shall be subject to filing the fresh charge sheet by the Central Bureau of 26 Investigation On filing of such charge sheet, it shall be deemed to be quashed. "
32. Both the writ appeals are allowed, as indicated above. Original copy of this order is being placed in W.A. No.20 of 2013 with a direction to the office to place its photocopy with the record of W.A. No. 803 of 2012.
There shall be no order as to cost.
(KRISHN KUMAR LAHOTI) (U.C.MAHESHWARI)
JUDGE JUDGE
27
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR WRIT APPEAL NO.803 OF 2012 Division Bench :- Hon. Justice Shri Krishn Kumar Lahoti & Hon. Justice Shri U.C. Maheshwari Santan Rai @ Pappu Rai Versus.
The State of M.P. and others ORDER ( 01.2014) For the reasons stated in the order passed in Writ Appeal No. 20 of 2013 (Mithlesh Rai Vs. State of M.P. and others ), this appeal is also allowed.
On being asked a certified copy of this order, office is directed to supply a certified copy of the order from the record of W.A. No. 20 of 2013.
(KRISHN KUMAR LAHOTI) (U.C.MAHESHWARI)
JUDGE JUDGE