Madhya Pradesh High Court
Smt. Sadhana Singh Tomar vs The State Of Madhya Pradesh on 3 October, 2017
1 W.P.No. 1803/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ANAND PATHAK
WRIT PETITION NO. 1803 OF 2016
Smt. Sadhana Singh Tomar & Anr.
Versus
State of M.P. and Ors.
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Shri MPS Raghuvanshi, learned counsel for the petitioners.
Shri Ashish Saraswat, learned GA for the respondents/State
Shri Vivek Khedkar, learned Assistant Solicitor General for
respondent No. 5-CBI.
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ORDER
(Passed on this 3rd day of October, 2017) Present petition has been filed by the petitioners against the respondents seeking independent investigation of murder of their son Ashish Tomar, through, Central Bereau of Investigation (CBI), who according to them has been murdered allegedly by miscreants during the intervening night of 27-28 of May, 2015.
2. Petitioners are husband and wife and petitioner No.1 is a house wife whereas, petitioner No. 2 is working as Principal of Government Higher Secondary School, Bhopal. Their son, Ashish Tomar aged about 24 years, was working a Relationship Manager in HDFC Bank and was posted at Branch Sironj, District Vidisha since April, 2015. He was residing in a rented room of Landlord- Rambabu Soni, at Manshapurn Colony, Ward No. 7, Sironj, District Vidisha. Usually on every Saturday and Sunday as well as on holidays, he used to visit and stay with his parents at Bhopal. On 23rd May, 2015 (Saturday), son of petitioners came to Bhopal and stayed with them up to morning on 25 th May, 2015. On 2 W.P.No. 1803/2016 the said morning, petitioner No. 2 advised his wife to accompany their son because their son was not feeling well on that day, but because of a call came from one Manish Sharma, who was working with the petitioner as Relationship Manager in the same Bank,he gave his consent for coming back to Sironj. Meanwhile, during the conversation, it appeared that son of petitioner conveyed the said fellow about his visit with his mother which was disliked by the Manish Sharma and he insisted him to come down alone,therefore, the son of petitioners left Bhopal and arrived at Sironj in the morning of 25 th May, 2015. It is alleged that on 25 th and 26th May, 2015, Manish Sharma stayed alongwith the son of petitioners at his residence / rented house where on 27 th May, 2015, Manish Sharma took the son of petitioners to the house of one Irfan Gauri. Around 10.06 in the night, petitioner No. 1 received a call of her son on her mobile wherein the son behaved abnormally and told his mother about his plan to go for dinner alongwith some bank employees. However, he did not disclose any reason for his abnormal behaviour despite asking from his mother. Ultimately on 28/5/2015, when petitioner No. 2 was on his way from Gwalior to Jhansi, he received a call about his son and as per the information provided, his son met with an accident and same compelled the petitioner No. 2 to reach Sironj, where, he came to know about the mysterious circumstances relating to death of his son. The first intimation relating the incident was given to the police by the landlord Rambabu Soni and on that basis a case under Section 302 of IPC was registered against unknown persons. Petitioners have got certain photographs of the dead body which was found nearby to the house of Rambabu Soni, in which petitioners' son was residing on rent. These photographs raised an apprehension of the petitioners about the cause of death. Investigation Officer and Police proceeded on the assumption of suicide, which is not accepted at all by the petitioners,due to peculiar circumstances involved in the case. The glaring aspects according to petitioner in the incident 3 W.P.No. 1803/2016 remained as under:-
(i) it appears that dead body was found lying parallel to the shutter of the house, thus, it is impossible for a person to commit suicide by jumping from the roof of the house as concluded by the police authorities so far;
(ii) the width of the projection of the house is about 3 and half feet and the position of dead body was parallel to the house, below the said projection. This further makes the suicide theory improbable because on a jump from roof,the body would never be found parallel to the shop but it may be in a differently placed position;
(iii) the body carried mud particles with it; whereas, the surface on which the dead body was found was cemented surface and therefore, presence of mud particles raise doubts about the suicide theory;
(iv) number of injuries were found on the naked body of the deceased (son of petitioners) including on the wrists and thighs which substantiate murder theory as according to petitioners, possibility of brutal beating of their son cannot be ruled out;
(v) police found certain hair over the iron rods on the projection of house but the belongings of such hair have not been ascertained. It was not investigated whether such hair were of the person lying over the floor or not, nor DNA test was conducted in this regard. Further call details of the deceased were not properly investigated as the same would have thrown sufficient light, but deliberately it has been suppressed so that the investigation could not reach to a logical conclusion.
(vi) Slippers of the deceased were found lying under the head of dead body which raises a doubt because after falling below, slippers cannot be arranged in such a manner wherein it may be placed under the head of deceased.
(vii) The cloth found over the body was only chest garment (Baniyan; in common parlance) and rest of the body was without any clothe. Thus, same makes the 4 W.P.No. 1803/2016 suicide theory doubtful because it is improbable for a person to do suicide without wearing even lower under garment.
(viii) Viscera was not sent for medical examination.
(ix) Call details of mobile phones of the persons named as suspects,by the petitioners have not been obtained, searched and scrutinized by the police authorities.
Therefore, on the basis of aforesaid illustrative omissions, petitioners raised the doubts about the correct course of investigation as well as direction of the investigation because according to them, the police did not conduct the proper investigation and therefore, they are not getting justice for the brutal death of their son. Respondents are trying to protect the accused persons and therefore, respondents are not conducting investigation logically and forensically. He prayed for a CBI enquiry in the matter as according to petitioner, it is the only remedy left for bringing the truth to the fore. Learned counsel for the petitioner relied upon the decisions of Hon'ble Apex Court in the matter of Central Bureau of Investigation through S.P., Jaipur Vs. State of Rajasthan and Anr., (2001) 3 SCC 333 to submit that for proper investigation , the aggrieved person can approach the Court under Article 226 of the Constitution of India for CBI enquiry because no other remedy is left with the petitioners. Through another judgment in the matter of Samaj Parivartan Samudaya and Ors. Vs. State of Karnataka and Ors., (2012) 7 SCC 407, petitioners' counsel contends that the court can direct for CBI enquiry even after filing of challan. He further relied upon the decision of this Court in the matter of Kedarnath Sharma Vs. Union of India & Ors., 2008 (1) MPHT 233; wherein, the Court has directed CBI to conduct investigation. According the counsel for petitioners, investigation is not completed and charge-sheet has not been filed yet
4. Per contra, learned counsel for the State opposed the prayer made by the petitioners through the reply filed by the 5 W.P.No. 1803/2016 respondents and tried to contend that they have taken all precautions in the investigation and the suspected persons have been interrogated and their statements have been recorded. Call details have been taken from the deceased's mobile and no such evidence has figured out which could lead them to any accused person. Respondents also referred the fact that CCTV footage of HDFC Bank where deceased was working was also seen but no such fact came out regarding murder. The respondents also sent the mobile of the deceased for forensic analysis and in the report received it has been referred that the media and photos available in various folders have been retrieved from the mobile and has been given to the investigating officers. Similarly mobile phone could not be analyzed as the media could not be initiated due to non-functioning of the battery. According to respondents, during investigation, no such location or evidence could be found which could establish that the deceased has been murdered. According to them, the investigation suggest that the deceased committed suicide. On the basis of postmortem report and report of medico legal examination, respondents submits that no case for interference is made out for handing over the investigation to CBI. Counsel appearing for respondents/State prayed for dismissal of the petition.
5. Learned counsel for respondent No. 5-CBI also opposed the prayer made by the petitioners. He submits that petitioners have a remedy under Section 174 and 176 of Cr.P.C. CBI has already flooded with cases and it is virtually impossible for them to conduct CBI enquiry. He relied upon the decision of Hon'ble Apex Court in the matter of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and Ors., (2016) 6 SCC 277 and submits that alternative remedy is available to the petitioners to approach the concerned Magistrate for redressal of their grievance. He prayed for dismissal of the petition.
6. Heard learned counsel for the parties at length and perused the record.
6 W.P.No. 1803/20167. Here in the present case, petitioners are mother and father of the deceased and so aggrieved by the death of their son under mysterious circumstances. For last two years, petitioners tried to make all endeavours to get the investigation done forensically and / or scientifically so that real culprits may come to books. Parents in the present case are victims of crime and their efforts towards access to justice is justifiable as well as justiciable. United Nation's declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power also recognizes their rights and State's duty towards redressal of their grievances.
8. In the present case in the intervening night of 27-28 th May, 2015, son of petitioners found dead near his rented house. From the very beginning, petitioners have shown their apprehension before the respondents about the company of Manish Sharma, Irfan Gauri, Chand Khan and Rajesh Baghel as the allegations suggest that police has not analyzed CD of the mobile phone of the deceased till date. The compliance report field by respondents is very procedural, less forensic. What respondents are saying about their investigation may turn out to be truth but does not evoke credence and confidence at this stage. Right and Fair investigation is the duty of the respondents and one of the essential components of rule of law. Police authorities are primarily entrusted with following prime duties:- (i) maintaining law and order and (ii) crime investigation.
9. The process, manner and level of investigation should be such which may suggest the true investigation of crime rather than a paper formality.
10. In the present case, certain instances have been described by the petitioners in their petition memo as well as during the course of arguments which are yet to be answered, like: (i) the position of the body lying at the time of first information,
(ii) mud particles found alongwith body, whereas, the surface was cemented and therefore, raised doubt about the suicide theory,
(iii) number of injuries found on the naked body of the deceased 7 W.P.No. 1803/2016 including on the wrist and thigh which defy the suicide theory prima facie and suggest brutal beating and possibly murder theory; (iv) width of the projection of the house and the possible position of the body after hitting the surface, (iv) DNA of hair/flesh found on the iron rod on the projection of the house does not matching with the hair / flesh of deceased and the position of slippers of the deceased which were arranged systematically under the head of the deceased, (vi) bare body with only chest garment smacks doubt as no reasonable man may take such drastic steps with such bare body, (vii) viscera was not sent for medical examination and last but not the least and certainly one of the strongest links is (viii) call details of deceased as well as the persons named by the petitioners, neither obtained nor searched nor closely scrutinized by the police authorities.
11. This Court certainly cannot sit over the course of investigation as an arbitrator, whether adopted rightly or otherwise, but from the lacunas as projected by the petitioners, can certainly raise a doubt about the intention of the investigation of the investigating officer. It is the duty of the investigating officer to investigate the crime from all possible nook and corners of suspicion and information and such sincerity and endeavor appears to be lacking in the investigation.
12. Hon'ble Apex Court in the case of Central Bureau of Investigation through S.P., Jaipur (supra) held that powers under Article 226 of the Constitution of India can be invoked for giving directions to CBI to investigate in certain cases though sparingly.
13. In the case of Samaj Parivartan Samudaya (supra) as well as in the case of Kedarnath Sharma (supra), Hon'ble Apex Court as well as this Court have held that if prima facie, the enquiry and investigation being conducted by CID and the attitude of the State Government is found to be not in conformity with the requirement of proper investigation in the matter, then interest of justice requires that the investigation should be done by 8 W.P.No. 1803/2016 an independent agency, which is not influenced by any manner whatsoever either by the State Government or the local police authority.
14. It is well settled in law that in a given case, if the material indicates prima facie irregularity in the matter of investigation, the High Court has power to order for investigation by CBI or by any independent agency. These principles are enumerated in the judgments of the Hon'ble Apex Court in the matter of R.S.Sodhi Vs. State of U.P. and Others, AIR 1994 SC 38, Secretary, Minor Irrigation & Rural Engineering services U.P. and Ors. Vs. Sahngoo Ram Arya and Anr., AIR 2002 SC 2225, State of Bihar and Anr. Vs. Ranchi Zila Samta Party and Anr., AIR 1996 SC 1515 and Mohammed Anis Vs. Union of India and Ors., 1994 Supp. (1) SCC 145.
15. After considering the principles laid down in all these judgments, there cannot be any iota of doubt that in a given case jurisdiction in a writ petition under Article 226 of the Constitution of India can be exercised by this Court for ordering investigation by CBI or an independent agency.
16. From the fact situation of the case, it appears that allegations of the petitioners are only in respect of local police and especially the investigating officer / authority. Petitioners have not raised any doubt regarding other agencies of the State Government. Similarly, this is not such an exceptional case for which CBI can be burdened. The case in hand can be investigated by the other authority / agency of the State Government.
17. As per the submission of the petitioners, investigation has not completed yet and charge-sheet has not been filed.
18. From fact situation as well as apprehension of the petitioners, it is apparent that investigation needs to be improved and properly conducted. Therefore, this Court deem it appropriate to direct the Director General of Police to appoint a senior police officer; either Senior Superintendent of Police or Deputy Inspector 9 W.P.No. 1803/2016 General of Police as he may feel appropriate by constituting a Special Investigating Team (SIT) headed by Senior Superintendent of Police or Deputy Inspector General of Police. The said team will take over the charge of the investigation from the investigating officer and would be at liberty to appoint any other officer from the SIT so constituted for carrying out the investigation under its guidance and supervision. It is expected from the Director General of Police to constitute SIT with the team members, including the leader of the Team, should be of impeccable integrity and away from the local influence of the case in hand. The said SIT would conduct the investigation afresh on all points including the doubts expressed by the petitioners. It is further expected from the Director General of Police that the SIT would be constituted within a period of 15 days from the date of receipt of certified copy of this order and thereafter the investigation would be completed as expeditiously as possible, in accordance with law and would file the charge-sheet and ensure follow up action in accordance with criminal law. It is further made clarified that this Court has not expressed any doubt over the involvement of any person or institution in the case in hand. The investigation shall be carried out independently, objectively and without being influenced by any extraneous considerations. During the investigation, cooperation of the petitioner can be sought by the said team. After completion of investigation and filing of charge-sheet / final report (as the case may be) report would be submitted to the Registry of this Court for perusal of this Court in Chamber.
19. Office is directed to send a copy of this order to Director General of Police, Bhopal for information and compliance.
20. With the aforesaid directions, petition stands disposed of.
(Anand Pathak) Judge jps/-