Punjab-Haryana High Court
Harjinder Singh vs The State Of Punjab And Others on 15 October, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-912 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM M-912 of 2011 (O&M)
Date of Decision: October 15, 2012
Harjinder Singh
... Petitioner
Versus
The State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1. Whether Reporters of the local papers may be allowed to see the judgment ?.
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. C.S. Bakshi, Advocate,
for the petitioner.
Ms. Jaspreet Kaur, AAG, Punjab.
Mr. R.S. Cheema, Sr. Advocate with
Mr. K.S. Nalwa, Advocate,
for respondent No.4.
Mr. Sumeet Goel, Standing Counsel,
for CBI - respondent No.5.
Paramjeet Singh, J.
The instant petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the "Cr.P.C.") for protection of life and liberty of the petitioner, handing over the investigation to respondent No.5 - Central Bureau of Investigation CRM M-912 of 2011 2 (hereinafter referred to as the "CBI") and for other reliefs on the ground that respondent no.4, who is presently an MLA from Mohali and who is also named as the main conspirator and abettor in FIR No. 56, dated 19.12.2010, under Sections 302, 307, 148, 149, 120-B IPC and Sections 25 and 27 of the Arms Act, registered at Police Station Balongi, District S.A.S. Nagar is maneuvering the investigation on account of which the police is not arresting the real accused and are continuously harassing the petitioner and forcing him to enter into a compromise with respondent No.4 and his brother Amarjit Singh @ Jeeti.
Brief facts as narrated in the FIR are that petitioner/complainant-Harjinder Singh made a statement that on 18.12.2010, at about 9.15 PM, his cousin Gurpreet Singh had gone to take documents from vehicle bearing No. PB-65-F-3737 belonging to Sadhu Singh, uncle of the complainant. After some time, they heard commotion. On hearing that petitioner/complainant along with his brother Harpreet Singh, father Rattan Singh, sister Kulwinder Kaur and uncle Amrik Singh went towards the house of Kulwant Singh. The complainant party noticed that Kulwant Singh, Sarpanch and others were quarrelling with Gurpreet Singh. Kulwant Singh and his brother Dilbar Singh armed with .12 bore rifles, Jatinder Singh son of Kulwant Singh having pistol, Amarjit Singh @ Jitti also having pistol and some more persons were also present in the courtyard of Kulwant Singh's house. Upon seeing the complainant party, Kulwant Singh raised a lalkara that the complainant party be not spared. Kulwant Singh fired a shot with his gun, which hit Rattan Singh on his CRM M-912 of 2011 3 head. Dilbar Singh also fired from his rifle, which hit on left leg, right ankle and back of the complainant. Complainant took his father Rattan Singh behind the vehicle. Accused persons fired more fires upon the complainant party with intention to kill them. In this firing, Harpreet Singh sustained injuries on his right wrist and leg. Amrik Singh also sustained injuries on his both legs. Gurpreet Singh sustained injuries on his head, left and right thighs. Kulwinder Kaur also sustained injuries on her leg. Thereafter, the complainant party raised hue and cry. On hearing this, Surjit Singh and Sadhu Singh, uncles of the complainant reached the spot. On seeing them, the accused persons entered into their house with their respective weapons. Injured were taken to the Civil Hospital, Phase-4, Mohali, where Rattan Singh, father of the complainant was declared dead and Kulwinder Kaur was admitted for her treatment, whereas the other injured were referred to PGI, Chandigarh.
Notice of motion was issued. Respondent Nos. 1 to 3 did not file any parawise reply to the contents of the petition, however, an affidavit of Senior Superintendent of Police, S.A.S. Nagar (Mohali) has been filed. In his affidavit, it is submitted that report was sought from S.P. (D) wherein he has mentioned that this is a case of version and cross-version between the parties and on the same day, Dilbar Singh-accused, opposite party has got recorded his statement in the Fortis Hospital and on the basis of the same, cross version was registered under Sections 307, 452, 148, 149 IPC against eight accused. A Special Investigation Team (hereinafter referred to as the "SIT") of Superintendent of Police (Detective), D.S.P CRM M-912 of 2011 4 (Head-quarter), DSP (D), S.I. Gurcharan Singh, Incharge C.I.A., Kharar and SHO, P.S. Balongi was constituted by the S.S.P. Vide order dated 19.12.2010 in order to make sure the expeditious and prompt investigation of the present case. During the course of investigation, statements under Section 161 Cr.P.C. were recorded by the SIT. Medical records of the injured were taken. In the main case, accused Dilbar Singh and Kulwant Singh were arrested and in the cross case, Jasbir Singh son of Sadhu Singh was arrested. Another accused Harjinder Singh had joined investigation but he was on anticipatory bail. The allegations against the local police levelled with regard to partial and unfair investigation in this petition have been vehemently denied. It is admitted that a representation dated 28.12.2010 was made to the SSP by the complainant wherein it was alleged that on 27.12.2010 five unidentified persons came to his house with weapons and threatened him not to make statement against MLA and his brother. These allegations were, however, found to be false by SSP as stated in his reply. Another representation was received after the filing of the present petition. It is submitted in the reply that SIT is conducting investigation in the present case impartially and absolutely in accordance with law. Investigation in this case is in progress.
Respondent No.4 filed a separate reply and has taken the preliminary objection that present petition is not maintainable and is a gross abuse of the process of the Court and there is concealment of facts by the petitioner. The petition is not maintainable as there are other appropriate remedies available with the petitioner under the Code of CRM M-912 of 2011 5 Criminal Procedure. It is alleged that there is concealment of facts and the petitioner has deliberately not reproduced or placed on record the complete FIR. Moreover, the petitioner has prayed in this petition for cancellation of cross version and the cross version has not been deliberately placed on record. It is submitted that respondent no.4 was in Delhi on 18.12.2010 at the time of occurrence. It is also submitted that Amarjit Singh, brother of respondent No.4 and Kulwant Singh were also not present at the place of occurrence as they were attending the reception of son of Major Harbans Singh Bains at West Wood, Zirakpur. Although, it is admitted by respondent No.4 that he is sitting MLA but because he does not belong to the ruling party, he cannot exercise his influence over the police.
Respondent No.5 - CBI submitted its reply mentioning that the Punjab police is well-equipped and have trained Investigating Officers in CIA Staff and Crime Branch. There are vast resources at command of State Police and it can better handle the case if supervised closely by senior officers of known reputation. It is also stated in reply that in view of the guidelines laid down by the Hon'ble Supreme Court in State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571, this case ought not to be transferred to CBI.
Various misc. applications were filed by the petitioner to which reply has been filed by respondent Nos. 1 to 3.
I have heard learned counsel for the parties and perused the record.
CRM M-912 of 2011 6
Learned counsel for the petitioner contended that respondent no.4 - Balbir Singh Sidhu, real brother of Amarjit Singh @ Jeeti is local M.L.A. and he is the main planner of conspiracy and had abetted the murder of the father of the petitioner. The accused are moving freely whereas the police authorities are pressing upon the petitioner's side to effect compromise. Learned counsel for the petitioner further contended that the genesis of the murder and the motive behind it is the greed of Kulwant Singh, Dilbar Singh and others for the land which is subject matter of dispute between the parties since 2007. Labh Singh, father of Kulwant Singh and Dilbar Singh, who died in the year 2010, had filed a civil suit seeking permanent injunction restraining the deceased father of the petitioner and his three brothers from interfering in the ownership and possession of the land which allegedly belongs to Labh Singh and his family. Labh Singh could not even show prima facie case in his application under Order 39 Rules 1 and 2 read with Section 151 CPC, which was declined vide order dated 20.08.2007 (Annexure P/1). Appeal was preferred against that order, which was also dismissed by the learned Additional District Judge, Mohali vide order dated 18.04.2009 (Annexure P/2). Thereafter, Labh Singh preferred revision petition in this Court against the order of the learned Trial Court, as well as, the learned Lower Appellate Court, which was also dismissed vide order dated 08.05.2009 (Annexure P/3). Learned counsel for the petitioner further argued that having sought the political refuge, the legal heirs of Labh Singh devised a novel method to teach the petitioner's family a lesson of a lifetime and to CRM M-912 of 2011 7 grab the property which they could not take in due course of law. The accused murdered the father of the petitioner at the behest of respondent no.4. Respondent no.4 is instrumental in sheltering the accused including his brother Amarjit Singh.
Learned counsel for the petitioner further argued that due to the pressure of respondent no.4 being MLA, proper investigation is not being carried out. In connivance with the police authorities, Dilbar Singh got himself admitted in Fortis Hospital, Mohali, with alleged gunshot injuries and allegedly to establish a cross-version case. Reference to the injuries allegedly inflicted upon Dilbar Singh with gunshot as reported by the doctor has been made. It is submitted that the size of the injury is 0.5 x 0.5 cm with ragged edges (irregular margin), there was no charring of the edges seen. X-ray did not show up any bullet or pellet inside. There was no other apparent injury anywhere else in the body. The injury alleged on the person of Dilbar Singh were superficial in nature and there was no apparent neuro or vascular deficit. Learned counsel for the petitioner further argued that the petitioner is not expecting fair and just investigation. In view of the settled principle of law, every victim is entitled to a fair investigation and not only the fair trial. This is integral part of the constitutional scheme. Respondent No.4 is wielding considerable political influences being an MLA and is pressurizing the police as a result of which no fair and proper investigation is being carried out. There is a blatant disregard to the provisions of law. Since, there is no law for protecting the prosecution witness, the petitioner is seeking remedy CRM M-912 of 2011 8 under Section 482 Cr.P.C. Life and liberty of the petitioner, witnesses and other family members of the petitioner is at stake due to the influence of respondent No.4. It is also argued that on 27.12.2010, five unidentified persons came to the farm house of the petitioner. They were armed with rifles, swords and other weapons. They had come in a silver colour Bolero Jeep, whose number plate was removed. Surjit Singh, paternal uncle of the petitioner and his son Gurpeet Singh who had suffered gunshot injuries during the incident were also present at the spot. Those persons have threatened the petitioner and Surjit Singh that they will have to suffer if they did not make a statement absolving the MLA and his brother in the murder case. They also threatened that the entire family will be eliminated. Out of those persons, two persons were having revolvers. They put revolvers on the temples of the petitioner and Surjit Singh and asked them to sign on blank papers or else they would kill them. The petitioner and Surjit Singh being frightened did whatever was told to them to do. These persons forcibly took their signatures on 5 blank papers and thereafter went away in their jeep after constantly threatening them. The petitioner and Surjit Singh reported this matter to the police officers of Police Station Balongi, but no action was taken. Thereafter, petitioner sent a representation dated 28.12.2010 (Annexure P/4) to the Senior Superintendent of Police, Mohali, narrating the entire incident and expressing fear of elimination at the hands of respondent No.4 and sought protection. The petitioner wrote to D.G.P., Punjab vide application dated 04.01.2011 (Annexure P/5), but no action was taken.
CRM M-912 of 2011 9
In view of the above said facts, learned counsel for the petitioner further submitted that the petitioner is entitled to protection of life and liberty of the petitioner, witnesses and his family members and prayed that special investigation team be constituted which should be headed by a Senior IPS Officer since the local MLA is involved or in the alternative be transferred to CBI. He also made a prayer for cancelling the cross version created at the instance of Dilbar Singh, one of the accused. Learned counsel for the petitioner further submitted that during the pendency of this petition, the petitioner had moved various criminal misc. applications to indicate that the investigation was not carried out in an impartial and fair manner in spite of the fact that Senior Superintendent of Police, Mohali has filed an affidavit dated 15.02.2011 that investigation would be conducted impartially and in a fair manner. The culprits would be brought to book. Learned counsel for the petitioner made reference to the averments in CRM No.64837 of 2011 specially para no.3 of this CRM wherein it is mentioned that two witnesses have specifically named respondent No.4 and their affidavits (Annexures P/8 and P/9) were handed over to the Special Investigation Team, but to the knowledge of the petitioner, the same have been removed. Learned counsel for the petitioner further made reference to para no.2 in CRM No.21509 of 2011, wherein it is specifically mentioned that Special Investigation Team was being headed by SP (Detective) Mohali and subsequently the officer heading the Special Investigation Team was suspended and the investigation came to a halt. The credentials of the said officer heading the Special Investigation CRM M-912 of 2011 10 Team were not worthy of fair investigation. This fact is very much clear as the challan was presented against Kulwant Singh and Dilbar Singh whereas no reference was made with regard to the role of respondent no.4, his brother Amarjit Singh @ Jeeti and Jatinder Singh son of Kulwant Singh. It is nowhere mentioned that what action has been taken against other accused other than presenting of challan. The challan only mentions that enquiry is pending. Reference to challan paper (Annexure P/7) has been made by the learned counsel for the petitioner.
Learned counsel for the petitioner further made reference to CRM No.9256 of 2011 to point out how the investigation conducted was unfair. Dilbar Singh, prime accused was arrested on 24.12.2010. Weapon used by him during the occurrence was not recovered. Surprisingly even no remand for a single day was sought. No custodial interrogation was conducted by the police. The alleged weapon recovered from Kulwant Singh on 24.12.2010 was not sent to Ballistic Laboratory. Counsel has levelled other allegations that police was outrightly helping the accused party. Learned counsel for the petitioner further made reference to CRM No.57633 of 2012 whereby Annexures P/13 and P/14 have been placed on record. Annexure P/13 is with regard to the discharge application moved by the police authorities for discharge of Kulwant Singh, which has been dismissed by the learned Trial Court vide order dated 10.09.2012 (Annexure P/13) and Annexure P/14 is the order passed in CRR No. 239 of 2012 whereby revision preferred by accused - Kulwant Singh challenging the order of framing the charge has been dismissed by this Court vide CRM M-912 of 2011 11 order dated 25.01.2012 (Annexure P/14).
In the end, learned counsel for the petitioner vehemently contended that the manner in which the investigation was carried out clearly indicates that it was not fair, impartial and expeditious investigation. The police has helped the accused party to the maximum extent and has even instigated them to create a cross version.
Learned counsel for the petitioner has relied upon judgments of the Hon'ble Supreme Court in the cases of State of Punjab vs. Central Bureau of Investigation and others, AIR 2011, Supreme Court, 2962, Kedar Narayan Parida and others vs. State of Orissa and another, 2009 (4) R.C.R. (Criminal) 479, Narmada Bai vs. State of Gujarat and others, (2011) 5 Supreme Court Cases, 79, Samaj Parivartan Samudaya and others vs. State of Karnataka and others, 2012 (3) R.C.R. (Criminal) 788, M/s Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, AIR 1998, Supreme Court, 128(1), and judgments of the this Court in the cases of Davinder Singh vs. State of U.T., Chandigarh and another, CRM M-11415 of 2010, decided on 22.09.2010, Charan Singh Chahal vs. State of Haryana and others, CRM M-37656 of 2006, decided on 21.04.2010 and Punjab and Sind Bank vs. State of Punjab and others, CRM M-34998 of 2009, decided on 21.09.2011.
Learned senior counsel for respondent no.4 has vehemently opposed the contentions raised by the learned counsel for the petitioner. He raised a preliminary objection in his reply that petition under Section 482 Cr.P.C. is not maintainable for transferring the investigation to another CRM M-912 of 2011 12 agency. Learned senior counsel further contended that investigating agency cannot be changed midstream after filing of challan against some of the accused. Learned Senior Counsel for respondent no.4 has relied upon judgments of the Hon'ble Supreme Court in the matters of Divine Retreat Centre vs. State of Kerala and others, (2008) 3 Supreme Court Cases 542, para nos. 40, 41, 50 to 53 and 56, State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571, para nos. 68 and 70, D.Venkata Subramanian and others vs. M.K. Mohan Krishanmachari and another, (2009) 10 SCC 488, Para Nos. 18, 19, 28, 33 and 34, State of Punjab vs.Davinder Pal Singh Bhullar and others, 2012 (1) RCR (Criminal) 126 (SC), Para nos. 44 to 48, and judgment of the High Court of Himachal Pradesh in the case of Virbhadra Singh and another vs. State of H.P. And others, CR.MMO No.107 of 2009, decided on 3.9.2010, para Nos. 45, 48 and 49.
Learned senior counsel for respondent no.4 has vehemently contended that the petitioner had filed this petition in January 2011, but it was intentionally lingered on one pretext or the other. He had made references to the orders dated 18.05.2011, 24.01.2012, 09.05.2012, 17.07.2012, 06.09.2012 and 13.09.2012, to contend that the petitioner has been intentionally seeking adjournments to prolong the decision of this petition.
Learned senior counsel for respondent no.4 has further contended that reply has been filed by the various respondents to CRM No. CRM M-912 of 2011 13 21509 of 2011. Deputy Superintendent of Police, Kharar, District SAS Nagar has filed reply on behalf of respondent Nos. 1 to 3. In the said reply, the police authorities have vehemently denied all the allegations leveled against the police and it is submitted that the challan against two persons namely Kulwant Singh and Dilbar Singh was presented and in a cross version case, challan against one accused namely Jasbir Singh was presented. Accused Amrik Singh, Surjit Singh, Harpreet Singh and Sadhu Singh were found innocent. It is also submitted that Chairman of the Special Investigation Team was suspended. Thereafter, Sh. Harpreet Singh, SP City-I, who was given additional charge of SP (D), S.A.S. Nagar, became head of the Special Investigation Team. Thereafter, one Sh. Bhupinder Singh Sidhu, PPS was deputed as SP (D), S.A.S. Nagar, Mohali, who is the head of the Special Investigation Team. It is also mentioned in the reply that enquiry against Amarjit Singh alias Jeeti, Balbir Singh Sidhu, MLA and Jatinder Singh son of Kulwant Singh is pending. For that reason, they had not been challaned. During the further investigation, Balbir Singh Sidhu, respondent No.4 was found innocent as no evidence could be found against him by the Special Investigation Team. It is also submitted in the reply that Jatinder Singh was found present at the spot but it transpired that he was locked inside the room and did not participate in the occurrence. It is also submitted that if Jatinder Singh would have participated in the crime, he must have received injuries, therefore, he was also declared innocent. So far as Amarjit Singh is concerned, it was concluded that he was present in the marriage party of CRM M-912 of 2011 14 one Amanpreet Singh Bains son of Harbans Singh Bains and his version was supported and proved by a CD and CFSL report. Thereafter, during the further investigation, a supplementary challan was presented wherein even Kulwant Singh was found innocent on the basis of CD and CFSL report.
Learned senior counsel for respondent no.4 further contended that the investigation is the prerogative of the investigating agency and it cannot be changed at the instance of the complainant. Learned senior counsel has made reference to the nature of various injuries on the person of Dilbar Singh and the cross version wherein Dilbar Singh admitted that he had fired in his self-defence. No other person was involved. Learned senior counsel has further contended that Kulwant Singh has been found innocent by the police, although his discharge application and criminal revision have been dismissed.
I have considered the rival contentions of the learned counsel for the parties and perused the authorities cited by the parties.
In the light of the arguments raised by the learned counsel for the parties, I first proceed to decide the issue of maintainability of the present petition under Section 482 of the Code.
So far as issue of maintainability of the petition under Section 482 Cr.P.C. with regard to the transfer of investigation is concerned, it has been considered by the Hon'ble Supreme Court in various judgments. Learned Senior counsel for respondent no.4 has cited judgment in Divine Retreat Centre (supra) wherein scope of inherent power conferred on the High Court under Section 482 Cr.P.C. was considered and contended that CRM M-912 of 2011 15 in the said judgment, it was held that Section 482 Cr.P.C. does not confer any power on the High Court but only saves the inherent power possessed by it prior to enactment of Cr.P.C. The jurisdiction under Section 482 Cr.P.C. is not an unlimited arbitrary jurisdiction. The power under this Section shall be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down under Section 482 Cr.P.C. In the said judgment, three circumstances have been retreated under which inherent power can be exercised, namely (i) to give effect to an order under the Cr.P.C. (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Reference has been made by the Senior counsel for respondent no.4 to para no.39 of the said judgment to contend that investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII Cr.P.C. High Court in exercise of its inherent jurisdiction cannot change the IO in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis.
Learned Senior counsel for respondent No.4 has also made reference to the State of West Bengal (supra), wherein it was held that restriction imposed on the power of the Central Government under Section 6 of the Delhi Special Police Establishment Act, 1946, to extend powers and jurisdiction on the scope of the CBI to a State only with consent of Government of that State, would not mutatis mutandis apply to CRM M-912 of 2011 16 constitutional courts exercising power of judicial review under Article 226 or 32 of the Constitution of India. Issue of personal life and liberty, as well as, fair and impartial investigation was also considered in the said judgment. However, the contention of the learned Senior counsel is that the ratio of the judgment in the State of West Bengal (supra) applies to proceedings under Article 226 of the Constitution and not to proceedings under Section 482 Cr.P.C. For these reasons, learned Senior counsel for respondent no.4 contends that the constitutional provisions cannot be violated by exercising power under Section 482 Cr.P.C. The Constitution is supreme and is binding on everybody.
Learned Senior counsel for respondent no.4 has also relied upon judgment in the matter of Virbhadra Singh (supra) to contend that investigating agency cannot be changed midstream.
I have considered all these authorities cites by the learned Senior counsel for respondent No.4.
Hon'ble Supreme Court in State of Punjab vs. Central Bureau of Investigation (supra) has considered the State of West Bengal's case (supra) and ultimately has come to a conclusion in para no.18 as under:
"In the recent case of State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others [(2010) 3 SCC 571 : (AIR 2010 SC 1476 : 2010 AIR SCW 1829)] a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under CRM M-912 of 2011 17 Article 226 of the Constitution, has cautioned that the extra ordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 of the Cr.P.C. to direct investigation by the CBI for securing the ends of justice.
In the facts and circumstances of this case, however, the High Court has held that the State local police was unable to carry out investigation into the cases and for securing the ends of justice the investigation has to be handed over to the CBI. In other words, this was one of those extra ordinary cases where the direction of the High Court for investigation by the CBI was justified."
It would be appropriate to mention that case of Divine Retreat Centre (supra) is distinguishable on the ground that in that case suo motu notice was taken on anonymous complaint and the investigation was transferred to CBI by the High Court. In those circumstances, the Hon'ble Supreme Court specifically held that High Court in exercise of its inherent jurisdiction cannot change the IO in the midstream and appoint any agency of its own choice to investigate into a crime. In view of the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Central Bureau of CRM M-912 of 2011 18 Investigation(supra) I have no hesitation in holding that this Court has jurisdiction under Section 482 Cr.P.C. to issue direction for transfer of investigation of the case to the CBI in appropriate cases.
Now, I proceed to examine whether present is a fit case for transfer of investigation from State Police to CBI. In the present case, State police has not filed any parawise reply to the petition denying the averments and only affidavit has been filed, it means respondent Nos. 1 to 3 are not denying the averments in the petition. In this case, the learned counsel for the petitioner has been able to point out the following points to show that investigation was not fair and impartial:-
(1) Dilbar Singh, prime accused was arrested on 24.12.2010.
Weapon used by him during the occurrence was not recovered. Surprisingly even no remand for a single day was sought. No custodial interrogation was conducted by the police.
(2) The weapon allegedly recovered from Kulwant Singh on 24.12.2010 was not sent to Ballistic Laboratory for examination.
(3) Moreover, there are allegations that police was outrightly helping the accused party. Earlier, the challan was presented against Dilbar Singh and Kulwant Singh, thereafter, report under Section 173(8) of the Code was submitted and discharge application moved by the police authorities for discharge of Kulwant Singh. The said application has been CRM M-912 of 2011 19 dismissed by the learned Trial Court vide order dated 10.09.2012. Criminal revision filed before this Court against the dismissal of the discharge application has also been dismissed vide order dated 25.01.2012.
(4) It is pertinent to mention that two persons, namely, Amarjit Singh and Kulwant Singh have been declared innocent on the basis of CD and CFSL report on the ground that they were attending marriage ceremony at a place away from the place of occurrence. The distance between the place of occurrence and place of marriage is alleged to be only 25 kms and the time required to reach at such distance cannot be calculated in a mathematical manner. Kulwant Singh is a Sarpanch and is having a vehicle 25 kms distance is not a much distance to be covered in a vehicle.
(5) Jatinder Singh has only been shown innocent in spite of recording a finding that he was present at the spot but he was locked in a room.
(6) In spite of giving a specific affidavit filed in this Court by the Senior Superintendent of Police that proper Special Investigation Team would be constituted for impartial, fair and expeditious investigation, an officer namely Sh. Pritam Singh, S.P. (D) was appointed to head the investigation who was subsequently suspended for his misconduct and corruption charges in other cases. Special Investigation Team CRM M-912 of 2011 20 was headed by a person who was not having worthy credentials for carrying out an impartial investigation. (7) The police had relied upon the cross version in favour of accused party and during investigation had come to conclusion that Dilbar Singh had allegedly caused injuries on six persons, out of which one has died. As per the FIR, four persons were armed with weapons. Respondents failed to point out how to six persons injuries have come from one fire- arm. Nor the nature of injuries inflicted by the pallets have been determined whether they are from the .12 bore firearm or from pistols. As per the challan, recovery of .12 bore firearm and .32 bore pistol and cartridge have been recovered. (8) Investigation has not been carried out in a scientific manner.
The blood smeared earth lifted from the place and the house has not been got compared by way of DNA profiling to ascertain where the incident had occurred and whose blood was there at those places.
(9) There are specific allegations that the statements of the witnesses have not been recorded even affidavits of two witnesses have been removed from the records.
(10) Admittedly, respondent no.4 - Balbir Singh Sidhu is a local MLA for second tenure and certainly yields some influence. Although the said MLA does not belong to ruling party and belongs to Congress party but keeping in view the fact that CRM M-912 of 2011 21 earlier Congress party was in power, the police is likely to oblige the MLA. He and his brother has been named in the FIR. Respondent No.4 has mentioned as conspirator and abetter of the offence.
(11) It is specifically noticed here that cross version is also required to be investigated for the reason that one person allegedly has received simple injuries on the side of accused whereas number of persons have received injuries on side of complainant party in the FIR case which included a woman, namely, Kulwinder Kaur. The facts and circumstances suggest that the complainant party had come to the spot for the reason that Kulwant Singh and his brother were fighting with Gurpreet Singh, cousin of the complainant. The motive is also prima facie clear from the fact that civil suit was filed by Labh Singh, father of Dilbar Singh and Kulwant Singh accused in relation to some land.
The above facts are indication of genuine apprehension in the mind of the petitioner qua fair and impartial investigation. The circumstances prima facie reveal that there has been no fair and impartial investigation.
The Hon'ble Supreme Court in the case of Narmada Bai (supra) has held that the investigation must be impartial and fair. In these circumstances, investigation in the present case is required to be transferred. Hon'ble Supreme Court in the matter of Minor Irrigation & CRM M-912 of 2011 22 Rural Engineering Services, U.P. And Ors v. Sahngoo Ram Arya and Anr., (2002) 5 SCC 521, had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.
In the light of the above settled position of law and the material referred herein above, I am prima facie satisfied that there is sufficient material to come to a prima facie conclusion that investigation is needed to be conducted by an independent agency. In these circumstances, I deem it fit and appropriate that the investigation of this case be transferred to CBI which will investigate the version narrated in the FIR as well as cross version.
In view of the above discussion, the police authorities of the State of Punjab are directed to hand over all the records of the present case to respondent No.5 - CBI within one week from the date of receipt of a certified copy of this order and CBI shall investigate all aspects of the case relating to the death of Rattan Singh and injuries to the other persons as well as the cross version set up by the Dilbar Singh and file report to the Court concerned having jurisdiction within a period of four months from the date of taking over of the investigation from the police authorities of the State of Punjab. I also direct the police authorities of the State of Punjab to cooperate with the CBI authorities in conducting the investigation. Any observations made in this order is only for the limited CRM M-912 of 2011 23 purpose of deciding the issue whether investigation is to be handed over to CBI or not and shall not be construed as an expression of opinion on the merits of the case.
Accordingly, petition succeeds and is allowed in the above terms.
October 15, 2012 [Paramjeet Singh] vkd Judge