Uttarakhand High Court
Mohammad Yameen vs Union Of India And Others on 19 September, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 303 of 2017
Mohammad Yameen ........Petitioner
Versus
Union of India & others .......Respondents
Ms. Manisha Bhandari and Mr. Sayed Kashif Jafri, Advocates for the petitioner.
Mr. G.S. Sandhu, Government Advocate for the State of Uttarakhand.
Mr. P.C. Petshali, Advocate for respondent nos. 4 to 6.
Mr. Sandeep Tandon, Advocate for the Central Bureau of Investigation.
Dated: 19.09.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
V.K. Bist, J.
Petitioner has approached this Court seeking the following reliefs:
"i) issue a writ, order or direction in the nature of Mandamus transferring the investigation in F.I.R. No. 130/2017, U/s 302, 342, 201 IPC at PS Kashipur, to the Central Bureau of Investigation or any other independent agency;
ii) And in the mean time issue a writ, order or direction in the nature of mandamus directing the Current Investigating Officer to seal the scene of crime so that the same is not compromised any further for the same to be examined by the Forensic teams."
2. The case of the petitioner is as follows:
On 26.02.2017, at about 11:00 a.m., the petitioner's son Ziyauddin (deceased) received a phone call on his mobile no. 7535911033, wherein the respondent no. 5 asked him to come to Police Chowki, Katoratal. The petitioner along with his son Ziyauddin, 2 his brother Saleem and one Mustakeem of village Bailjudi went to Katoratal police chowki at about 11:40 a.m. The respondent no. 4 and other police personnel told the petitioner that there is a report against Ziyauddin that he had eloped with the daughter of Hamid Ali resident of Kazibagh. Ziyauddin was abused and badly beaten by the respondent nos. 4, 5 and other police personnel. He pleaded that he had no role to play in the episode being referred to and that he had not seen the girl even once. He was slapped and was physically abused by all the police personnel present there. This was done in presence of petitioner and his brother. Ziyauddin was then kept in lock up on the night of 26th February, 2017. The family members brought food for him. They tried to talk to him; but, he could hardly speak, as he was so badly beaten up by slapping him over and again. On 27.02.2017, the petitioner along with his brother went to the police chowki to give breakfast to his son, wherein he was told that his son was at P.S. Kotwali. After some time, he was brought back to the police chowki. Petitioner and his brother went to meet him at police chowki and gave him lunch. Thereafter, the deceased was kept in police chowki and was not released. Although, the petitioner and his family member kept requesting the police that the Ziyauddin was innocent yet nothing struck to their deaf ears.
On 28th, sometime in the day, the girl who had allegedly eloped called up on mobile number of the Ziyauddin. She also talked to her father Hamid Ali, who was constantly present along with his son at the police chowki and was also instrumental in the beating of 3 Ziyauddin. That girl spoke to her father that she was safe and fine. She further told that Ziyauddin is innocent and had no role to play in her running away. Inspite of this, Ziyauddin was kept in illegal custody and wrongful confinement. The police personnel insisted that he should contact his friend and get the girl back. He was being constantly tortured by being slapped. The petitioner again went to police station with one local Congress party leader, namely, Yunus Chaudhary for getting his son released but his request for release of Ziyauddin was not accepted. That day, the petitioner again went to police chowki at about 07:30 p.m. to give food to his son. He remained there till 08:00 p.m. Thereafter, at about 08:30 p.m., a white santro car belonging to one Dr. Ashfaq came at police chowki. Same car again came to police chowki at about 10:00 p.m. At about 10:08 p.m. car was again brought at the gate of police chowki in reverse gear. At that time, the lights of the car were switched off. In that car, the body of the petitioner's son was kept. Thereafter, he was taken to L.D. Bhatt Government Hospital. The whole thing is recorded in one of the houses having CCTV camera installed; but, the same was not provided to the Investigating Officer due to threats of police personnel. On next day, i.e. on March 01, 2017, a complaint was lodged by the petitioner in the police station at about 4:22 a.m. in the morning about the murder of his son. F.I.R. was registered as F.I.R. No. 130 of 2017 against police personnel. It is submitted that between, March 01, 2017 to March 03, 2017, the crime scene was compromised and tampered with. The entire evidence 4 was destroyed. The respondent nos. 2 & 3 and others washed the whole room but, in hurry, they forgot to put old newspapers on the table and mistakenly put the newspaper of 01.03.2017, which shows that crime scene was compromised on or after 01.03.2017. The crime scene is to be examined by forensic team. It is also stated that petitioners are receiving continuous threats.
3. While entertaining the writ petition, this Court issued notice to private respondents 3, 4, 5 and 6 and also to Investigating Officer for filing parawise reply. Subsequently, on 11.04.2017, application for impleading Central Bureau of Investigation was allowed by the Court. Private respondents 4, 5 and 6 filed their counter affidavit as well as supplementary counter affidavit. Central Bureau of Investigation also filed counter affidavit. No counter affidavit has been filed by the Investigating Officer. But, in connected Suo Moto PIL No. 21 of 2017- In the matter of Custodial Death of Late Ziyauddin Raza (Minor), Investigating Officer, Mr. B.S. Dhoni has filed an affidavit.
4. Respondent no. 3 is the Station House Officer of P.S. Kotwali, Kashipur, respondent no. 4 is Chowki Incharge of Reporting Outpost, Katoratal and respondent nos. 5 & 6 are constables posted at Reporting Outpost, Katoratal. They are impleaded in private capacity. In the counter affidavit, filed on behalf of respondent nos. 4, 5 & 6 (sworn by Balwant Singh-respondent no. 5), they have denied the allegations made in the writ petition. According to them, on 28.02.2017 a written complaint was given by one Hamid Ali regarding kidnapping of his 5 minor daughter, namely, Moinnisha by Ziyauddin Raja (Ziyauddin). The F.I.R. was registered on the same day at about 07:30 p.m. as F.I.R. No. 128 of 2017. After registering the F.I.R., information was given to Ziyauddin for appearing at Police Chowki Katoratal for investigation. At about 08:10 p.m., respondent no. 5 went to Kashipur Police Station for submitting the copy of F.I.R. and obtaining the F.I.R. number and returned at 09:50 p.m. At about 08:15, Ziyauddin appeared at Police Chowki. Respondent no. 4, Incharge of Police Chowki interrogated Ziyauddin. Then he went to Gurudwara for performing the duty assigned to him by S.H.O. and left Ziyauddin in the custody of respondent no. 6, who alone was present in the Chowki. Around 08:45 p.m., respondent no. 6 left Ziyauddin in the room for sleeping. Thereafter, he became busy in some other work in the Chowki. After some time, he came back and found the door of the room, in which Ziyauddin was, closed from inside. He, with the help of a wire, opened the door, entered inside the room and found that Ziyauddin was hanging on an iron rod. Respondent no. 6 immediately made a phone call to respondent no. 4 and others. Thereafter, family members of Ziyauddin were also informed. The body of Ziyauddin was lodged to the Government Hospital by a private car, where he was found dead. After returning from hospital, respondent no. 4 registered F.I.R. No. 129 of 2017 under Section 309 I.P.C. In the counter affidavit, it is also stated that Ziyauddin had played a role in the absconding of the girl. It is also stated that petitioner tried to cook up the story, which is not supported by any evidence. It is stated that 6 petitioner has not disclosed the name of person on whose house CCTV is installed. Tampering of crime scene is denied. The fact that police is favouring the private respondents is also denied. It is stated that son of the petitioner was involved in a crime in kidnapping of a minor girl and, for saving his skin, he committed suicide. It is also stated that petitioner wants to take revenge from the private respondents by implicating them in a false case of murder. It is also stated in the counter affidavit that there is no police lock up in Kaotratal Chowki and the police chowki is running in three rooms. First room is office of Incharge, second room is a store room and the third room is record room. Second room is also used for keeping accused/ suspected person for investigation/interrogation. The deceased was kept in second room for investigation, where he committed suicide with the help of a rope. It is stated that, during Kanwar mela, for barricading the area, some bundles of rope were used. The bundle of ropes, which remained unused, was lying in second room. It is also stated that in the postmortem report, except ligature mark, no external injury is found on the dead body and symptoms present over the dead body were found as symptoms of suicidal hanging. It is also stated that petitioner is a powerful person, who, with the help of unknown person, easily got the confidential documents of the case. By way of filing the writ petition, he wants to fill up the lacuna of F.I.R. and wants to create pressure upon the investigating agency to file charge-sheet under Section 302 I.P.C. against the private respondents.
75. Supplementary Counter Affidavit on behalf of respondent nos. 4 to 6 has also been filed. In the supplementary counter affidavit, it is stated that the victim of F.I.R. No. 128/2017, namely, Km. Moin-Nisha is recovered by police and her statement under Section 164 Cr.P.C. was recorded before the Magistrate. Translated version of the statement of victim recorded under Section 164 Cr.P.C., annexed with the supplementary counter affidavit is as follows:
"Statement of Victim U/s 164 Cr.P.C.FIR No. 128/2017
U/s 363, 366 I.P.C.
P.S. Kashipur Name- Moin Nisha D/o Hamid Ali Age-17 years Profession-Student of Class XI R/o Police Chowki Kazibag, Kashipur stated on oath.
On 20-1-17, I meet first time with Ziyauddin Raza at Thabra Market and we became friends. On 25-2-2017 he purposed me for marriage but I refused. Then he took me at his house at Bailjudi, where his parents having full knowledge about me. Ziyauddin Raja again on his house purposed me for marriage then I could not refused and gave consent for marriage. Raza's parents also told me that once the marriage is solemnized my parents will also agree and also told that we both have to go anywhere for 7-8 months. Thereafter Raza give me Rs. 1000/- and asked to go Lucknow and said that he will meet her at Lucknow but if we go together, doubt will be arise. Then Raza boarded in the bus going to Moradabad from Charti Chauraha and instructed me to board on the bus of Lucknow from Moradabad. I reached at Lucknow on 26- 2-2017 and made several phone calls to Raza, he told that my father is doubting upon him hence asked me to breaked and through out the cell phone and sim card and I did so but 8 Raza didn't came to Lucknow. I tried several calls to him but his phone became 'Swith Off'. Then on 19-6-2017, I made a phone call to my sister Parveen then my father in the night of 19-9-2017 at 2.00 P.M. reached Lucknow for getting back. I have nothing to say.
Heard and Verified.
Sd/-
The aforesaid statement is recorded word by word on being speaking by victim Moin-Nisha on today 21-6-2017, containing the entire statement of victim.
Sd/-
21-6-17 Niharika Mittal J.M. Kashipur, U.S. Nagar."
6. In their supplementary counter affidavit, the respondents 3 to 6 have also annexed a chart showing data regarding suicide by Indian youth in recent past, to show that suicide is not abnormal thing in India.
7. The Investigating Officer, in his affidavit stated that inquest on the dead body of the son of the complainant was prepared on 01.03.2017 at L.D. Bhatt Government Hospital, Kashipur and same was prepared by Tehsildar Kashipur. Subsequent to the preparation of inquest report, the dead body of the deceased was sent for postmortem. The autopsy was conducted by the panel of the four doctors and, as per the postmortem report; the cause of death is 'Asphyxia due to Ante- Mortem hanging'. Initially, one Inspector, namely, Vipin Chandra Pant was entrusted the investigation of the case. He also sought the report of experts from the Chief Medical Officer, Rudrapur and report of expert Medical Officer from Forensic Department, Government Medical 9 College, Haldwani. As per expert medical opinion, the death of the deceased is due to suicide. After obtaining the said expert report, he arrested the Incharge Police Out Post S.I. Praveen Singh, Constable Virendra Dutt and Constable Balwant Singh on 29.03.2017 in connection with the case in hand. The State Government, vide order dated 17.04.2017, transferred the investigation from local police to C.B.C.I.D. The present Investigating Officer, Mr. B.S. Dhoni was assigned the work of investigation on 02.05.2017. By perusing the record, and progress report, he came to know that on 28.02.2017, one, Hamid Ali had lodged the report regarding abduction of his minor daughter, namely, Moinnisha, aged about 15 years, against the Ziyauddin. The investigation of the case (regarding kidnapping of Moinnisha) was being conducted by Incharge, Koatoratal Police Out Post S.I. Mr. Praveen Singh and for the purpose of interrogation of the accused Ziyauddin, he was kept in the middle room of the Police Out Post, Katoratal. Ziyauddin was under supervision of constable Virendra Dutt (respondent no. 6), but in the meantime, said constable went to toilet and when he came back, found that Ziyauddin is hanging with the iron rod at ceiling of the said room. On the information, the Incharge, Police Out Post, S.I. Praveen Singh and constable Virendra Dutt put down the body of Ziyauddin and took him L.D. Bhatt Government Hospital, Kashipur, where Ziyauddin was got admitted as unknown. Thereafter, S.I. Praveen Singh on same day at about 22:05 hours registered F.I.R. under Section 309 I.P.C., as Case Crime No. 129 of 2017.
10In the affidavit, the Investigating Officer further stated that after taking over the investigation, he called the complainant-petitioner, Mustkeen and Rashid for recording their statements, but all of them refused to give statements and stated that they will give statement in presence of their counsel. Thereafter, he recorded the statement of Sanjay Kumar, Tehsildar, Kashipur. On 22.05.2017, he visited Haldwani jail, in order to record the statement of accused-S.I. Praveen Singh, Constable Virendra Dutt. Both of them did not cooperate. Therefore, statement of both the co accused could not be recorded. Subsequently, he recorded the statement of Constable Harish Sanwal, Constable Jagmohan Singh Negi and Dr. Rajesh Gupta under Section 161 Cr.P.C. On 09.06.2017, he visited the place of incident and thoroughly inspected the room in which incident took place. He also recorded the statement of witnesses, namely Muzaffar Ali, Shabit Hussain, Abdul Wahid, Mehboob Hasan and Jameel under Section 161 Cr.P.C. All these witnesses are the resident of surrounding of Police Out Post Katoratal. In their statements, they have stated that they did not hear any hue and cry between 26.02.2017 to 28.02.2017. .
8. In the counter affidavit, filed on behalf of the Central Bureau of Investigation, it is stated that Central Bureau of Investigation is in acute shortage of the investigating officers and is already over burdened in the investigation of various important cases including the cases referred by the High Courts, Supreme Court as well as on the orders of the Government. The case in hand is not having any inter-state or international 11 ramification, which may require C.B.I. probe in the matter. It is also stated that there are specialized agencies in the State Police Organization which can very well look into the investigation of this case with total impartiality.
9. Ms. Manisha Bhandari, learned counsel for the petitioner submitted that it is a fit case, where investigation should be transferred to Central Bureau of Investigation. She submitted that it is a case where a young boy lost life, who had nothing to do with any crime. He was kept in illegal custody for two and half days and then died under mysterious circumstances inside the police station and in the custody of the police. She submitted that it does not end here. Further, the crime scene was compromised with. False and fabricated evidence have been created in order to make the same look like a case of suicide. The Police Department went a step further to save the real culprit (delinquent police officer) instead of punishing them. She submitted that Uttarakhand Police has a history of custodial deaths, and, biggest example is of Ranveer encounter, where a young boy was brutally murdered in fake encounter. In that case, police personnel involved were punished. Learned counsel for the petitioner further submitted that shoes of the victim were found in the roof of the police station. He did not climb and scale the walls of the police station. In that situation what were his shoes doing on the roof of the police station. He died in the police station and the death is not a natural death. She submitted that possibility of committing suicide at around 08:30 p.m. to 09:00 p.m. inside a small police station, where 12 policemen are present, is zero. She submitted that iron rod on which alleged suicide was committed is at about 18-20 fts. height. She submits that it is virtually not possible that a boy at 08:15 is summoned at Thana and without any reason he makes up his mind to commit suicide and thereafter search a rope and manages to hang himself in a rod, which is around 18 fts. It is her submission that story of suicide is totally false. She also submitted that the postmortem report is managed. The fact that it was not a suicidal death finds support from the fact that no forensic investigation was done to find out any DNA traces available on the rope or surrounding areas. Learned counsel for the petitioner further submitted that on 26.2.2017 a call was made by accused Balwant Singh (respondent no. 5) abusing the deceased and giving threat to him but the location of the victim, CDR of the accused, their location thereafter for the next three days and thereafter on 1st and 2nd of March 2017, was not taken. If same is taken, the thing will be more clear. Further, the voice sample of the accused Balwant Singh was not sent for any forensic examination. No effort was made to seek permission even to start the process of taking his voice sample. She submitted that all these facts clearly show that the police is saving the accused. She further submitted that call details and location of the father of the victim, who received call from the person called Mustakeem, who called petitioner from hospital that the dead body of the Ziyauddin has already been received at the hospital, should be ascertained.
1310. Mr. P.C. Petshali, learned counsel for respondent nos. 4 to 6 submitted that since the deceased was involved in the absconding of a minor girl and committed an offence, he committed suicide inside police station. Now the petitioner wants to take revenge from private respondents by filing false complaint. He submitted that in postmortem report it is clear that death caused due to ante mortem hanging. Therefore, there is no doubt that it is a case of suicide. He also referred a chart annexed with the supplementary counter affidavit and submitted that in India, cases of suicide are rising. He submitted that since the deceased committed suicide, the present case is not a fit case for transferring the investigation to C.B.I. He referred the judgment of this Court in Writ Petition (Crl.) No. 513 of 2015, Iqbal Singh Vs. State of Uttarakhand and others reported in 2016 (2) U.D., 303 and submitted that in that case the Court declined to transfer the investigation to C.B.I. Present case is also identical and should be dismissed.
11. Learned Government Advocate also submitted that investigation is going on in proper manner and there is no need to transfer the same to C.B.I. However, he suggested that matter may be handed over to one of the senior police officers of the State. Mr. Sandeep Tandon, learned counsel for the C.B.I. submitted that C.B.I. is overloaded and the case in hand is not having any inter-state or international ramification, which may require C.B.I. probe in the matter.
1412. In support of her argument, learned counsel for the petitioner referred to paragraph nos. 15 & 16 of the judgment of Hon'ble Apex Court given in the case of Dhananjoy Chaterjee Vs. State of W.B., reported in (1994) 2 SCC 220, paragraph no. 21 of the judgment given in the case of Mehboob Batcha & others vs. State Rep. by Supdt. Of Police, reported in 2011 (7) SCC 45, Paragraph nos. 23, 24, 26 & 48 of the judgment given in the case of Vinay Tyagi vs. Irshad Ali Alias Deepak and others, reported in (2013) 5 SCC 762, paragraph nos. 32,34,37,38.41 of the judgment given in the case of State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, reported in AIR 2010 SC 1476, paragraph nos. 33, 41.3.41.5. 41.7 & 41.8 of the judgment given in the matter of Bharti Tamang vs. Union of India and others, reported in (2013) 15 SCC 578, paragraph nos. 6, 7, 8, 9, 36, 37 & 41 of the judgment given in the matter of Subrata Chattoraj vs. Union of India and others, reported in (2014) 8 SCC 768, paragraph nos. 32, 33, 39, 41, 47, 48, 49, 53, 55 & 65 of the judgment given in the matter of Rubabbuddin Sheikh vs. State of Gujarat and others, reported in AIR 2010 SC 3175, paragraph nos. 32 & 45 of the judgment given in the matter of Babu Bhai vs. State of Gujarat, reported in (2010) 12 SCC 254, paragraph nos. 13, 20 & 21 of the judgment given in the matter of Dharam Pal vs. State of Haryana reported in (2016) 4 SCC 160 and judgment given in the matter of Pooja Pal vs. Union of India (2016) 3 SCC 135. The judgments are discussed/ quoted in following paragraphs.
1513. In the matter of Dhananjoy Chaterjee Vs. State of W.B., reported in (1994) 2 SCC 220, the Hon'ble Apex Court observed that Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
14. In Mehboob Batcha & others Vs. State Rep. by Supdt. of Police, reported in 2011 (7) SCC 45, the Hon'ble Supreme Court expressed its concern about custodial deaths in the following manner:
"21. .........."Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law- enforcing officers is a matter of deep concern in a free society.
In spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and 16 adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder.
Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic `No'.".............. (emphasis supplied)
15. In the matter of Vinay Tyagi Vs. Irshad Ali Alias Deepak and others, reported in (2013) 5 SCC 762, the Hon'ble Apex Court held that fundamental principle of our criminal jurisprudence which is that it is the right 17 of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. This is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases.
16. In State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, reported in AIR 2010 SC 1476, the Hon'ble Apex Court observed that Constitution of India expressly confers the power of judicial review on the Supreme Court and the High Courts under Article 32 and 226 respectively. Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties, which cannot be deprived except according to the procedure established by law. This 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.
17. In paragraph nos. 33, 41.3.41.5. 41.7 & 41.8 of the judgment given in the matter of Bharti Tamang Vs. Union of India and others, reported in (2013) 15 SCC 578, the Hon'ble Apex Court inter alia held as under:
"33. We also wish to refer to some of the decisions relied upon by Mr. Rohatgi learned senior counsel for the petitioner as to how far the grievances of the petitioner can be 18 redressed in this proceedings. In the famous decision of Zahira Habibulla H. Sheikh (supra), this Court has expressed its strong view as to the necessity of courts to be alive to the situations where genuine grievances were brought to its notice for redressal. Paragraphs 54 and 56 are relevant for our purpose and the relevant portions therein read as under:
"54......When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings."
56......"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." Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (Emphasis added) The above principles makes the position clear to the effect that the administration of justice, lethargic action of courts may result in failure of justice 19 and, therefore, when deficiency in investigation or prosecution is visible or can be perceived by lifting the veil and thereby tried to hide the realities the Court should deal with the same with the iron hand appropriately within the framework of law 41.3 If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.
41.5 In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution.
41.7 In appropriate cases even if the chargesheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice.
41.8 In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo."
18 In paragraph 6 of the judgment given in the matter of Subrata Chattoraj vs. Union of India and others, reported in (2014) 8 SCC 768, Hon'ble Supreme Court is held as under:
6. In R.S. Sodhi Advocate v. State of U.P. and Ors. 1994 (Supp) (1) SCC 143 this Court was dealing with a petition under Article 32 of the Constitution of India seeking an independent investigation by the CBI into a police encounter resulting in the killing of ten 20 persons. The investigation into the incident was being conducted at the relevant point of time by an officer of the rank of Inspector General level. The State Government also appointed a one member Commission headed by a sitting Judge of the Allahabad High Court to inquire into the matter. This Court found that since the local police was involved in the alleged encounter an independent investigation by the CBI into what was according to the petitioner a fake encounter, was perfectly justified. This Court held that, however, faithfully the police may carry out the investigation, the same will lack 'credibility' since the allegations against them are serious. Such a transfer was considered necessary so that all those concerned including the relatives of the deceased feel assured that an independent agency was looking into the matter thereby lending credibility to the outcome of the investigation. This Court observed:
"2...We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that 21 those involved in the occurrences, one way or the other, may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice. The writ petition and the review petition stand disposed of by this order."
(emphasis supplied)
19. In paragraph nos. 47, 48 & 49 of the judgment given in the matter of Rubabbuddin Sheikh vs. State of Gujarat and others, reported in AIR 2010 SC 3175, Hon'ble Apex Court held as follows:
47. Having heard the learned senior counsel appearing for the parties and after going through the eight Action Taken Reports submitted by the Police Authorities before this Court and after considering the decisions of this Court cited at the Bar and the materials on record and considering the nature of offence sought to be investigated by the State Police Authorities who are themselves involved in such crime, we are unable to accept that the investigation at this stage cannot be handed over to the CBI Authorities or any other independent agency. We have already discussed the decisions cited by Mr.Mukul Rohatgi, learned senior counsel appearing for the State of Gujarat and have already distinguished the said cases and came to a conclusion that those decisions were rendered when CBI enquiries have already been made and at that stage this Court held that after the charge sheet is submitted, the CBI authorities would not be able to approach this Court or the High Court to have issuance of directions from this Court.
48. In R.S.Sodhi vs. State of U.P. (AIR 1994 SC 38) on which reliance was placed by 22 the learned senior counsel appearing for the writ petitioner, this Court observed :
"We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice, to entrust the investigation to the Central Bureau of Investigation."
(Emphasis supplied)
49. This decision clearly helps the writ petitioner for handing over the investigation to the CBI Authorities or any other independent agency. It is an admitted position in the present case that the accusations are directed against the local police personnel in which High Police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in 23 that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility, however, faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody.
53. In this connection, we may reiterate the decision of this Court in the case of P & H High Court Bar Association (supra) strongly relied on by the learned senior counsel appearing for the writ petitioner. A reference of the paragraph of the said decision on which reliance could be placed has already been made in Para No.32 from which it would be evident that in order to do complete justice in the matter and to instill confidence in the public mind, this court felt it necessary to have investigations through the specialized agency like the CBI.
20. In paragraph nos. 13, 20 & 21 of the judgment given in the matter of Dharam Pal vs. State of Haryana reported in (2016) 4 SCC 160, the Hon'ble Apex Court observed as follows:
"13. On a perusal of the said authority, we really do not find any aspect which would support the stand put forth by the learned counsel for the CBI. On the contrary, as we perceive, the Constitution Bench has laid great emphasis on instilling of faith of the victim and the public at large in the investigating agency. True it is, the facts in the said case were different and related to alleged crimes committed by certain State officials, but the base of confidence in investigation has been significantly highlighted.24
20. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.
21. We may further elucidate. The power to order fresh, de-novo or re-investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in 25 investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "'id'ee fixe" but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law".
21. In paragraph nos. 81 and 82 of Pooja Pal Vs. Union of India & others, reported in (2016) (3) Supreme Court 135, the Hon'ble Supreme Court has observed about fair and proper investigation in the following manner:
"81. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi vs. Irshad Ali @ Deepak and others (2013) 5 SCC 762 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 bring out the truth of the case before the court of competent jurisdiction.
82. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya and others vs. State of Karnataka and others (2012) 7 SCC 407 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 26 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."
22. No doubt, the High Court has power of transferring the investigation from civil police to C.B.I. but, at the same time, we may remind ourselves that High Court, while passing such order, must bear in mind that such power must be exercised sparingly, cautiously and in exceptional situations as held by Hon'ble Supreme Court in the matter of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal & Others reported in (2010) 3 SCC 571.
23. In the facts and circumstances of the case, this Court has to see whether this is a fit case for transferring the investigation to C.B.I. The respondent nos. 4, 5 & 6, against whom, specific allegation is made, have stated in their counter affidavit that F.I.R. against Ziyauaddin was registered at about 07:30 p.m. on 28.02.2017. Thereafter, he was asked to appear at Police Chowki Katoratal and he reached at police chowki at 08:15 p.m. same day. On the other hand, the petitioner in his petition has stated that his son received a phone call from respondent no. 5 on 26.02.2017 at about 11:00 27 a.m. who asked him to reach Police Chowki, Katoratal. He reached there at about 11:40 a.m. on the same day. He was kept in lock up on 26.02.2017 and on 27.02.2017. In view of different version of the petitioner and private respondents, it is not clear that deceased- Ziyauddin was in police custody from 26.02.2017 to 28.02.2017 or not. Further, the case of the petitioner is that on 28.02.2017, the girl, who was said to be kidnapped, talked to the deceased on his mobile number and also talked to her father. The fact that girl talked to the deceased on his mobile number on 28.02.2017 and also talked to her father on the same day and location of Ziyauddin was at police chowki, is a matter of investigation and can only be verified from taking location of the mobile phones of that time.
24. It is the case of the petitioner that on 26.02.2017, petitioner went to police station with Ziyauddin, Saleem and Mustakeem. Again on 28.02.2017, he along with on local Congress party leader, namely, Yunus Chaudhary also went to Police Station for getting his son released. These are the witnesses, who could tell the truth about the presence of the deceased at Police Station from 26.02.2017 to 28.02.2017. But, nothing has been done by the Investigating Officer so far.
25. This Court finds difference in the version of the respondent nos. 4 to 6 and of Investigating Officer. In their counter affidavit, respondents 4 to 6 have stated that on 28.02.2017, at about 08:45 p.m., respondent no. 6 left the deceased- Ziyauddin in the room for sleeping 28 and few minutes after, he came back and found the door of the room was closed from inside and thereafter found the deceased hanging. But, the Investigating Officer, in his affidavit has stated that the respondent no. 6 went to toilet and when he came back, he found Ziyauddin hanging. At the time of hearing, it is submitted by the learned Government Advocate that, in fact, the respondent no. 6 went for toilet and then few minutes after, when he came back he found Ziyauddin hanging. There is no answer to the query, why the deceased hanged himself inside police station. The photograph of the room has also been annexed. It is not known what is actual height of the roof and what is the actual height of the rod on which the rope was put. Investigating Officer has to find answer to this fact. How the deceased put the rope on the rod and hanged himself and whether it is possible for a young boy to put in rope on such height. All these questions are to be answered. Most important query, which is to be answered by the investigation, is that, whether it is possible for a young boy to mentally prepare himself for suicide, make preparation and commit suicide within very short time, as time taken by respondent no. 6 in going to toilet and coming back cannot be more than 5 minutes. We are of the view that so far, the investigating agency has not conducted the investigation in the manner it should have conducted. Even no forensic investigation was done on the articles like rope etc. available at the place of incident. Forensic investigation would have thrown light on the issue of hanging.
2926. The submission of learned counsel for respondent nos. 4 to 6 is that this Court in an identical matter of Iqbal Singh reported in 2016 (2) U.D., 303 has rejected the prayer for transferring the case to C.B.I. He submitted that since the case in hand is also similar, the prayer for transferring the case to C.B.I. should be rejected. We find that in the matter of Iqbal Singh investigation was done by C.B.C.I.D. In that case, ante- mortem injuries were found and on that basis, charge- sheet was filed against police personnel under Sections 304, 330, 348, 34 I.P.C. In that case, as per post mortem report, the heart of the deceased was found congested and weights 393 grams with increase in fibro fatty mass, the thickness of left ventricle wall was found 2mm and the thickness of right ventricle wall as 1 cm. Facts of both the cases are different. In Iqbal Singh's case charge-sheet was filed against the police personnel under Sections 304, 330, 348, 34 I.P.C.
27. Though, it cannot be said that the C.B.C.I.D. will not conduct the investigation in proper manner, but the apprehension of the petitioner is that the C.B.C.I.D. personnel are from the cadre of civil police, and, there is every possibility that they will try to save their own colleagues. This allegation of the counsel for the petitioner may be false, but it is a fact that allegation is against the local police and it is also a fact that deceased died in the custody of local police in mysterious circumstances. Nobody saw him committing suicide inside police chowki. The Hon'ble Supreme Court, in R.S. Sodhi Advocate Vs. State of U.P. and Ors., 1994 (Supp) 30 (1) SCC 143 has observed that, however, faithfully the police may carry out the investigation, the same will lack 'credibility' since the allegations against them are serious. Such a transfer was considered necessary so that all those concerned, including the relatives of the deceased feel assured that an independent agency is looking into the matter thereby lending credibility to the outcome of the investigation. The Hon'ble Supreme Court held that it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. Though, it is said by the private respondents that they are innocent and allegation are false; but, we think that, if they are innocent, in that event, why should they be afraid of matter being investigated by the C.B.I. or any other agency. Similarly, the State Government also should not oppose the matter being transferred to C.B.I., as purpose of investigation is to bring truth before everybody.
28. In view of above discussion, we are of the view that in the present case investigation must be transferred from C.B.C.I.D. to C.B.I. We accordingly, allow the writ petition and direct that investigation be transferred to C.B.I. forthwith. The C.B.I. is directed to take up investigation regarding custodial death of late Ziyauddin and complete the same at the earliest. Since, allegations are against the police personnel, we direct 31 the S.S.P. Udham Singh Nagar to provide necessary protection to the petitioner and his family members during the pendency of investigation.
29. No order as to cost.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
19.09.2017
Navin