Allahabad High Court
Vijay Pal Singh Tomar vs State Of U.P. & 6 Others on 2 March, 2017
Author: Dilip B Bhosale
Bench: Dilip B. Bhosale, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 20.02.2017 Delivered on 02.03.2017 Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 17381 of 2016 Petitioner :- Vijay Pal Singh Tomar Respondent :- State Of U.P. & 6 Others Counsel for Petitioner :- Amit Daga Counsel for Respondent :- G.A.,A.S.G.I.,Amit Misra,G.S. Chaturvedi (Ac),Rajesh Mishra WITH Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 14226 of 2016 Petitioner :- Ashwini Kumar Upadhyay Respondent :- State Of U.P. & Another Counsel for Petitioner :- In Person,Ashwini Kr. Upadhyay Counsel for Respondent :- C.S.C.,A.G.A.,Saurabh Srivastava WITH Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 16229 of 2016 Petitioner :- Kshama Dubey Respondent :- Union Of India Ministry Of Home & 3 Others Counsel for Petitioner :- Amit Saxena Counsel for Respondent :- G.A.,A.S.G.I.,Amit Misra WITH Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 15374 of 2016 Petitioner :- All India Peoples Front Thru' Its Spokes Person S.R.Darapuri Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- Manoj Kumar Kushwaha,N.K. Mishra Counsel for Respondent :- G.A. WITH Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 16361 of 2016 Petitioner :- Ajay Kushwaha Respondent :- Union Of India Thru' Principal Secy. & 4 Others Counsel for Petitioner :- Indra Mani Tripathi Counsel for Respondent :- G.A.,A.S.G.I.,Amit Misra WITH Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 17414 of 2016 Petitioner :- Maneesh Kumar Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Achyut Jee,V.P. Srivastava Counsel for Respondent :- G.A.,A.S.G.I.,Amit Misra,S.K.Pal Hon'ble Dilip B. Bhosale,Chief Justice Hon'ble Yashwant Varma,J.
(Per: Yashwant Varma, J.) This batch of writ petitions having raised common issues for the consideration of this Court have been taken up, with the consent of parties for final disposal together. For the purposes of ease of reference, we propose to designate Criminal Writ PIL No. 17381 of 2016 Vijay Pal Singh Tomar Vs. State of U.P. and others as the lead petition.
All these petitions raised issues relating to an incident which occurred at Mathura on 2 June 2016 wherein in the course of proceedings initiated by the police authorities to rid a public park of illegal encroachers led to the death of 28 persons. Amongst the deceased were the Station House Officer, Farah, Santosh Kumar Yadav and Mukul Dwivedi, the S.P. City. These petitions have sought the transfer of the investigation and all proceedings in relation to the said incident to the CBI for a fair and impartial enquiry. Amongst the petitions that we have heard is also Criminal Misc. Writ Petition No. 15374 of 2016 All India Peoples Front Vs. State of U.P. which has sought the following two primary reliefs:
"(i) Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing to appoint the a special investigation team to investigate the role of the Chief Minister along with its cabinet and administrative officers in their involvement or omission in the incident dated 2.6.2016 at Jawaharbagh, Mathura in the interest of justice.
(ii) Issue a writ of mandamus appointing the special investigation team to investigate the following grabbing or illegal allotments of the land belongs to the State of U.P. and take consequential action:-
(a) Land extending 280 acre at Mathura known as Jawaharbagh in which huge amounts of the arms and explosives was gathered under the leadership of the Ram Vriksha Yadav and battle was fought between the grabbers and police resulting the causality of both side."
Although in the said writ petition as framed certain other reliefs are also sought, we note that before us only the reliefs extracted herein above were pressed. The common refrain in all these writ petitions is the abject failure on the part of the State administration as well as the police authorities at Mathura to take requisite and timely steps for avoiding the seemingly unnecessary loss of lives which occurred on 2 June 2016. It is further asserted that even after the incident, the police authorities undertook a wholly inept investigation which has culminated in the filing of a charge sheet against as many as 101 persons. The petitioners have urged that the police has failed to collect and gather evidence sufficient to warrant the conviction of persons charged with the offences and that all this was an outcome of a shoddy and unscientific investigation. It is alleged that the so-called investigation and the filing of a charge sheet has paid only lip service and could not be said to be a fair and impartial investigation undertaken in order to bring the guilty to book. It is urged that a great disservice and a failure of justice is likely to occur if the investigation even at this stage is not transferred to an independent agency to identify the guilty and to charge them with the crimes which stood committed on 2 June 2016. The other important aspect which has been highlighted and reiterated by the learned counsels appearing in support of these writ petitions was the unfathomable apathy and inaction which came to afflict the State Government and saw it remaining a mute spectator to events which unfolded right from March 2014. It was asserted that the continued illegal occupation of a huge swathe of land in the middle of an important city such as Mathura was with the overt patronage of high State officials, who refused to act despite various intelligence inputs. It was contended that the permissive occupation of a public park by the encroachers despite the repeated objections and entreaties for assistance by the local administration clearly points to an umbrella of protection accorded to these encroachers by persons in power. Before proceeding further however, it would be relevant to notice some salient background facts.
From the record that has been placed before us and the pleadings of parties, it appears that one Ram Briksha Yadav along with a band of supporters came to occupy Jawahar Bagh, a public park straddling over 280 acres in the heart of Mathura city on or about March 2014. The squatters and illegal encroachers grew over a period of time and despite numerous interventions by the district administration, they refused to vacate the public park. This unauthorised and illegal occupation seems to have incensed the local populace of Mathura also. The occupation by Ram Briksha Yadav and his followers advanced to an extent where State Government offices situate within the precincts of the park came to be forcefully occupied and government records also destroyed. The record indicates that this occupation became so entrenched that a large number of illegal structures came to be raised and established in the park, electricity drawn illegally by these squatters and huge food grains and essential commodities depots established therein. These squatters appear to have obtained domestic gas connections and in one sense came to establish an independent township itself within a public park. While we shall refer to the various communications exchanged between the Government officials in detail a little later, it becomes pertinent to note at this stage that the officers of the Horticulture Department also alleged that as many as 3000-4000 trees within the public park come to be felled by these encroachers and used as fuel for cooking and other purposes.
A public interest litigation being PIL No. 28807 of 2015 Vijay Pal Singh Tomar Vs. State of U.P. came to be instituted in this Court highlighting the illegal occupation of a public park by Ram Briksha Yadav and his followers and sought the issuance of a writ commanding the State respondents to have the park evicted from the illegal occupation of the members of Swadhin Bharat Vidhik Satyagrah and Swadhin Bharat Subhash Sena (the groups which came to be formed by Ram Briksha Yadav and his followers). On 20 May 2015, this writ petition came to be disposed of by a Division Bench of the Court in the following terms:
"Public parks are meant and dedicated for use of members of the public as a recreational area. The utilisation of these parks for any other purpose alien or extraneous to its use as a recreational area would be in violation of the Master Plan. In Km. Zoya Junaid and others Vs. State of U.P. and others, the Division Bench of this Court has observed as follows:
"Public parks, playgrounds and open spaces constitute a valuable facet of the environment. The right to life under Article 21 of the Constitution incorporates within it the right to a clean and healthy environment including in the urban areas of the country where there is a rapid decline in the quality of the environment and the State is no exception. There is a rapid deterioration of the environment and open spaces and recreational areas are becoming rapidly extinct. Rampant development is threatening the existence of gardens and recreational areas which constitute the lungs of the cities. Article 48-A which forms part of the Directive Principles of State policy requires the State to protect and improve the environment and to safeguard the forests and wild life of the country. Similarly, Article 51-A incorporates a fundamental duty of every citizen to protect and improve the natural environment.
The enactment of the State Legislation, which we have referred to earlier, for the preservation and reservation of parks, playgrounds and open spaces is in relation to the fundamental right to have a clean and healthy environment under Article 21 and an acknowledgment of the obligation which is cast upon the State by the Directive Principles of State policy. Hence, there can be no manner of doubt that an area which is earmarked as a playground, park or open space cannot be utilized for any other extraneous purpose. Secondly, we are categorically of the view that it would not be open for the State to allow a public park or playground, as in the present case, to be commercialised by permitting the holding of such exhibitions.
However, insofar as the present year is concerned, the Court cannot be oblivious to the fact that at present though a considerable amount of public money has been spent on the beautification of the Company Garden including the levelling of the land, the construction of a boundary wall and a walking path, but it is still not fully developed. The petitioners have come before the Court when barely a few weeks are left for the holding of the exhibition."
Having regard to the statement of law laid down by this Court, we are of the view that the authorities of the State including the Principal Secretary (Home), District Magistrate, Mathura and Senior Superintendent of Police must take all necessary steps and precautions to ensure that a public park is not allowed to be encroached upon in this manner. The rule of law has to be preserved. Unless a strong message is sent out, it would only result in a situation where a violation of law is encouraged by permitting an encroachment on public spaces in violation of the law.
Accordingly, we direct the respondents to inquire into the matter and take appropriate action in accordance with law expeditiously.
The petition is, accordingly, disposed of. There shall be no order as to costs."
The order of the Division Bench having not been complied with led to Vijay Pal Singh Tomar initiating proceedings in contempt by filing Contempt Application (Civil) No. 342 of 2016. On this petition notices came to be issued on 22 January 2016. An affidavit of compliance in the said proceedings was filed by the then District Magistrate, Mathura wherein he referred to the various steps which were sought to be taken by the District Magistrate right from January 2014 without bearing any fruit. This affidavit also referred to various communications addressed by the district administration to the Principal Secretary in the Department of Home, Government of U.P. for making available necessary police force, fire tenders and other equipment so that persons encroaching the park be removed and evicted therefrom. The District Magistrate in paragraph 9 of the affidavit of compliance further stated that the resources available with the administration alone may not be enough to maintain or control the law and order situation that may spring into being during the course of the operation for removal of encroachments. He referred to his last communication dated 20 February 2016 again addressed to the Principal Secretary detailing the requirement of additional police force and other equipment in order to fortify the district administration to undertake the removal of encroachments. The District Magistrate in his affidavit sought four months time to remove encroachments upon this public park. From the further material brought on record of these proceedings and more particularly the affidavit filed on behalf of the State respondents in Criminal Writ PIL No. 17381 of 2016, we note that a video conference appears to have been held between the Principal Secretary Home, the Director General of Police and other officials on 31 May 2016 to chalk out a strategy to effect removal of encroachments. Some of the important directions/decisions taken in this meeting were that special attention would be focused to ensure minimal loss of life and that in the course of the operations, the police would use only Lathis and sticks in order to control the encroachers. It was also resolved that the authorities would make an effort to convince the illegal encroachers initially to leave the park voluntarily. The second important decision taken was to video graph the entire operation from the beginning to the end. The meeting also resolved to use drones to oversee the entire operation and to lastly ensure zero casualties.
It is in the above backdrop that the incident which occurred on 2 June 2016 is liable to be viewed. From the statements of some of the police personnel who were involved in the operation undertaken on 2 June 2016 recorded under Section 161 Cr.P.C. and placed before us, the following facts also emerged. The Senior Superintendent of Police in his statement places the entry of these encroachers into the park as 15 March 2014. He further states that on 1 June 2016 considering a large meeting/rally which was proposed to be held, he had also issued oral directions for the deployment of adequate force in the district. He is also stated to have issued instructions to the Station House Officers to recce the area and apprise him of the actual position on the ground. In his statement, he further avers that a team of administrative officials also entered the premises of the Jawahar Bagh so as to make an effort to try and resolve the situation and to make an effort to convince the squatters to leave the park peacefully. The statement further records that upon entry in the park premises this team was accosted by Ram Briksha Yadav, Chandan Bose, Rakesh Babu Gupta accompanied by as many as 1000 persons who surrounded the team armed with Lathis and threatened to attack the team. Upon seeing the belligerent attitude of these persons, the team of administrative officials was forced to retreat. The Senior Superintendent of Police further states that one Jawahar Bagh Sangharsh Samiti had also come to be formed comprising of persons who were incensed with the activities of these squatters and illegal encroachers inside the public park. The members of this Samiti were presumably local residents of Mathura. They are stated to have gathered on 1 June 2016 itself seeking to take out a procession to the park and forcefully evict Ram Briksha Yadav and its followers. Upon the intervention of the local administration, this confrontation was avoided and the Samiti resolved not to proceed further and held out an ultimatum that in case the police and district administration is unable to rid the park of these squatters by 03 June 2016, they would themselves forcefully ensure the eviction of the squatters. On 2 June 2016, the incident itself unfolded wherein the police appears to have surrounded certain focal points of entry and exit and commenced operations to evict the illegal encroachers from the park. These operations as described in the statement of the S.S.P. appear to have commenced on or about 5 pm on 2 June 2016. As per his statement, the police team is stated to have sought to demolish a portion of the boundary wall of the park in order to create independent avenues for ingress. Having made the said entry, the encroachers were warned with the use of hailers and loudspeakers to peacefully leave the park precincts. Immediately upon these steps being taken, the police team is stated to have been attacked by a mob comprising of 1500-2000 people armed with Lathis, sticks and country made pistols. This group is stated to have attacked the police team with the use of Lathis, sticks, rods and fired upon the police team with country made weapons. This mob is also stated to have attacked the S.P. City, Mukul Dwivedi with Lathis, sticks and iron rods as a result of which he received grievous injuries. At this stage, the fire brigades present on the scene are said to have used water cannons and the police authorities also resorted to the use of teargas, rubber bullets anti-riot and pump action guns. The situation appears to have escalated thereafter when Ram Briksha Yadav exhorted his followers to attack the police force with their weapons and also to set fire to depots where food grains and gas cylinders were stored. During this firing by the encroachers, the Station House Officer is stated to have met his death. The miscreants then on the exhortation of Ram Briksha Yadav set ablaze the depots established by them resulting in a huge fire spreading in the area and also in the explosion of gas cylinders present therein. As per this statement as many as 175 cylinders were present in these depots. As the situation escalated and news of the incident spread in the city, local residents also started collecting on the scene and persons from inside the park who were trying to escape were caught by the members of the public beaten up mercilessly and some are also stated to have died on account thereof. Surprisingly, the SSP in this statement avers that in the action taken by the police, no encroachers or squatters died as per his information. According to the SSP from amongst the charred bodies found on the scene, one was identified to be that of Ram Briksha Yadav by his follower Swami Harnath Singh. This basic description of the events is reiterated in the statements of the C.O. City Chakramani Tripathi and C.O. PS Kotwali, Sanjay Jaiswal. The statement of the latter two officials did not however, describe the circumstances in which the SP City met his death although they do evidence and record the manner in which the SHO concerned succumbed to bullet injuries. It is also pertinent to bear in mind that the statements of the aforementioned three persons appear to have been recorded only towards the end of August 2016 although the incident itself had occurred on 2 June 2016. The operations noted above had commenced at 5:00 pm whereas the first information report is stated to have been lodged on or about 8:30 pm. In this incident 28 persons are said to have died. Of these, we were informed and apprised that only the SHO died of bullet injuries. Leaving the SP, City aside all the other victims are said to have succumbed to burn injuries. As per the statement of the learned Advocate General, seven persons were arrested on the spot during the incident as it unfolded and before the first information report came to be lodged. The police authorities thereafter are stated to have arrested 38 persons on or about 9 pm and another 30 persons on or about 11 pm on 2 June 2016 itself. On 4 June 2016, 26 further accused are stated to have been arrested while fleeing from the precincts of Jawahar Bagh. The persons arrested at 9 pm and 11 pm on 2 June 2016 as well as the further 26 accused who were arrested on 4 June 2016 were not arrested on the spot. On repeated queries addressed to the learned Advocate General, we were only informed that these persons were arrested nearby and in the vicinity of the park. The sample arrest memos which were shown to us were not evidenced in the presence of any independent witnesses. According to the petitioner, the number of persons charge sheeted was 104 of which three died in police custody and one was declared as juvenile. Although there is some dispute inter partes as to the number of persons who are stated to have died in custody, it is not disputed that one Pinku Chauhan died on 10 June 2016 while in the custody of the police. No magisterial enquiry in respect of this death as envisaged under section 176 Cr.P.C. was or has been ordered. The only recoveries effected by the police from the accused was 39 country made weapons of different calibers. Upon the charge sheet having been submitted and on a request made in this behalf by the learned counsels for the petitioners, we had also with the consent of the learned Advocate General granted permission to these counsels to inspect the relevant record. The case diary and other material which is stated to run into as many as 3000 pages was duly inspected by the learned counsel appearing for the petitioners. It was upon completion of this exercise that the matter itself was taken up for final hearing.
While we propose to deal with the rival contentions hereafter, we are constrained to note that repeated opportunities were granted to the learned Advocate General to demonstrate the complicity and involvement of any one of the charge sheeted accused in the incident in question. Despite repeated opportunities granted in this regard, the learned Advocate General thought it fit not to avail of the same and made no effort to demonstrate before us the manner in which the involvement of any of the charge sheeted accused was sought to be established from the evidence gathered during the course of the investigation. We also granted ample opportunity to the learned Advocate General to demonstrate before us from the record as to how the investigation conducted by the police authorities could be said to be fair and comprehensive. These issues arose on account of the fact that it was alleged that the investigating team had clearly botched the investigation process by failing to demarcate and sanitise the scene of crime, failed to attach articles of clothing of the arrested accused, no test identification parade having been undertaken and even the seizure memos of weapons not having been drawn up in accordance with law. To all the above issues, no satisfactory answer or explanation was proffered by the learned Advocate General. We do however, place and record a caveat to the above observation. Our observations are neither intended to nor are liable to be viewed as a definitive expression of opinion on the guilt of the charge sheeted accused. These observations have been made primarily as a prelude to the consideration of the issue as to whether the investigation carried out by the police authorities was comprehensive, dealt with all aspects of the incident and whether all the guilty had come to be charged. We proceed to dilate upon these aspects hereafter.
The primary contention advanced by the learned counsels for the petitioners touched upon the veracity of the investigation process undertaken by the police. It was contended that the entire case diary shows and evidences a complete lack of effort to collect cogent and reliable evidence to establish the guilt of the charge sheeted accused. It was alleged that the police authorities appear to have only tried to cover up their misdeeds by filing a charge sheet against as may as 101 persons without having collated evidence and material to establish the complicity of the accused. It was further urged that even the identification of the main accused Ram Briksha Yadav was wholly unreliable inasmuch as evidently the body was found in a charred state and clearly beyond any means of recognition. Despite this admitted state of affairs, in the submission of learned counsel for the petitioners, the police authorities rested their case only on the ocular statement of one person. It was alleged that the process of DNA identification was also not undertaken till the hearing commenced on this batch of writ petitions. It was brought to our notice that it was only during the course of hearing that the State respondents are said to have arrested the relative of Ram Briksha Yadav and commenced the process of DNA examination only thereafter. Learned counsel for the petitioner urged that the failure on the part of the police authorities to seize and attach articles and clothing from the scene of crime or from the body of the accused persons has clearly rendered the entire investigation process faulty and unreliable. Learned counsel contended that even the seizure of weapons is wholly unreliable and that till date no ballistic reports have been obtained or placed on the record. It was their submission that the entire investigation was faulty and an attempt to cover up a massive security lapse and to draw curtains down on an operation which was undertaken without the requisite consideration of manpower and equipment required for the same. It was then submitted that this Court would be fully justified in invoking its extra-ordinary powers conferred by Article 226 of the Constitution to refer the entire matter for a fresh/further investigation by the CBI bearing in mind the nature of allegations which have been levelled in the writ petitions against the local administration as well as the higher officials of the State. It was contended in this regard that the record would indicate that despite repeated requests and entreaties of the local administration, Ram Briksha Yadav and his followers were permitted to illegally occupy a public park and that the State took no steps whatsoever to act upon the repeated intelligence inputs which were addressed to it right from the beginning of 2014 itself. All this, in the submission of learned counsels for the petitioners, is clearly indicative of a larger unseen force which was either according protection to the squatters or at least failing to grant permission to the local administration to proceed and take coercive action against such persons. It was in this light submitted that neither the local administration nor the State Government could be entrusted with the task of undertaking a further investigation in the matter.
Countering the said submissions, the learned Advocate General contended that the Criminal Procedure Code places a complete and comprehensive mechanism for controlling and guiding investigation as well as conferring supervening powers of supervision and monitoring upon the Court of Sessions and the Magistrate. It was contended that even after the filing of the chargesheet it would be open to the concerned Magistrate by virtue of the powers conferred by Section 173(8) of the Cr.P.C. to direct a further investigation. Learned Advocate General then contended that the Court which would undertake the trial is further armed with the powers conferred by Section 319 Cr.P.C. and could always direct the presence of a person to stand trial along with other charge sheeted accused. In view of the above, it was his submission that a direction at this stage to the CBI to undertake a further/fresh investigation would only stall and unnecessarily delay the judicial process. Referring to the scope of a constitutional court to direct an investigation by the CBI unfettered by the restrictions placed by the provisions of the Delhi Special Police Establishment Act, 1946, the learned Advocate General submitted that every error or omission in an investigation would not justify this Court exercising its constitutional power to transfer the investigation to the CBI. In this connection, learned Advocate General referred to the decisions of the Supreme Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. And Others Vs. Sahngoo Ram Arya And Another1 , Sakiri Vasu Vs. V. State of Uttar Pradesh And Others2 , T.C. Thangraj Vs. V. Engammal And Others3 , K.V. Rajendran Vs. Superintendent of Police, CBCID South Zone, Chennai And Others4, K. Saravanan Karuppasamy And Another Vs. State of Tamil Nadu And Others5, Mohd. Haroon And Others Vs. Union of India And Another6. It was his contention that in light of the principles enunciated in the aforementioned judgments, the investigation undertaken in respect of the incident would not fall in the category of the extra-ordinary and exceptional circumstances which may warrant the transfer of an investigation to the CBI.
We must further record the submission of the learned Advocate General made towards the closure of hearing on this batch of writ petitions to the following effect. The learned Advocate General submitted that although the investigation conducted by the police authorities may not be liable to be characterised as perfect, comprehensive or without fault, this Court can still in the interest of justice, permit the State Government to constitute a Special Investigation Team (SIT) to undertake an independent and further investigation. He submitted that such a team could undertake further investigation and its proceedings can be duly monitored by this Court, thus obviating the need for the transfer of the investigation to the CBI. In this connection, he also placed for our consideration the names of certain officers who according to him were officers of impeccable credentials and having sufficient experience to undertake a further investigation under the directions of this Court.
Before embarking upon the process of consideration of the rival submissions noted above, it becomes apposite and necessary to delineate the two basic aspects which arise in the facts of the present case. The first, of course, stems from the unfortunate incident which took place on 02 June 2016. The second and equally important aspect for consideration relates to the circumstances surrounding the occupation of the public park right from March 2014 till the date when the operations were carried out by the police authorities, the failure to act upon the various intelligence reports and inputs in its possession, the inexplicable delay in undertaking action to rid the park of illegal encroachments and the permissive blind eye attitude adopted in respect of this occupation by a group of persons who showed scant regard to the authority of the State and the rule of law.
Having laid the backdrop, we proceed to record our conclusions herein after. The first issue relates to the nature of the investigation process undertaken by the police authorities and whether the same can be said to have met the requirements of a fair, impartial and comprehensive investigation. The second issue which would arise in case we were to hold in respect of the first issue in the negative, would be whether circumstances exist and warrant the exercise of the constitutional power vesting in this Court to direct a fresh investigation by an independent agency such as the CBI.
It is trite to note that the quintessential duty and obligation of a court of law trying a crime is its quest to unearth and establish the truth. The pursuit to ferret out the truth underlying a crime is the seminal and primary objective of a court of law. This duty which stands cast upon the court is primarily to preserve and maintain the faith and confidence of the populace in the justice delivery system. It is the duty of a constitutional court to oversee whether an investigation carried out by the police is fair, comprehensive and complete. An investigation carried, out must while answering the above attributes, be judged not just from the angle of ensuring a speedy trial to the accused but also from the angle of the victim(s) and the public at large. While the accused demands a speedy trial by virtue of Article 21 of the Constitution, a necessary concomitant to the above right of the accused is the expectation of society as a whole as to whether the investigation has been carried out and concluded in a fair and impartial manner and instills confidence. The manner in which the investigation is carried out must be equal handed and satisfy both aspects of the issue for each of them are but two sides of the same coin. The age old myth of the lady of justice being blindfolded is now recognised as being only representative of the court being oblivious of the identity of the party before it. The blindfold is not meant to shackle or reduce the court to the status of a mute and silent spectator and jettison its primary role and purpose as a sentinel for upholding the laws and administering justice. The establishment of the truth is an essential attribute of the administration of justice function of a court of law. In the course of discharge of this essential function the court must necessarily balance and weigh the competing interests of a speedy trial and fair investigation. One may in this connection aptly recall the observations of the Supreme Court in Zahira Habibulla H. Sheikh Vs. State of Gujarat7:-
"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it.......
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all-comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial.
54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice......
56. As pithily stated in Jennison v. Backer [(1972 (1) All ER 997 : (1972) 2 QB 52 : (1972) 2 WLR 429 (CA)] :(All ER p. 1006d) "The law should not be seen to sit 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. (See Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble (2003 (7) SCC 749) : [(2002) 7 SCC 749 : 2003 SCC (Crl) 1918.])."
(emphasis supplied) This aspect was eloquently dealt with by the Supreme Court in Pooja Pal V Union of India8 in the following terms:-
"63. Vis-à-vis the notions of "speedy trial" and "fair trial" as the integral constituents of Article 21 of the Constitution of India, it was observed in Mohd. Hussain Case [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408 : (2012) 3 SCC (Crl.) 1139] that there was a qualitative difference between the right to speedy trial and the right of the accused to fair trial. While pointing out that unlike the accused's right of fair trial, the deprivation of the right to speedy trial does not per se prejudice the accused in defending himself, it was proclaimed that mere lapse of several years since the commencement of prosecution by itself, would not justify the discontinuance of prosecution or dismissal of the indictment. It was stated in no uncertain terms, that the factors concerning the accused's right to speedy trial have to be counterpoised with the impact of the crime on the society and the confidence of the people in the judicial system. It was noted that speedy trial secures rights to an accused but it does not preclude the rights of public justice. It was exposited that the nature and gravity of the crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former, the long delay in conclusion of trial should not operate against the continuation of the prosecution but if the right of the accused in the facts and circumstances of the case and the exigencies or situation leans the balance in his favour, the prosecution may be brought to end. It was held that the guiding factor for a retrial essentially has to be the demand of justice. It was emphasized that while protecting the right of an accused to fair trial and due process of law, the interest of the public at large who seek protection of law ought not to be altogether overlooked so much so, that it results in loss of hope in the legal system. Retrial in the facts of the case was ordered." (emphasis supplied) Now the principles upon which a constitutional court must weigh the demand for transfer of an investigation to the CBI or any other independent agency have been articulated in a plethora of judgments handed down by the Supreme Court. That the power of a constitutional court does not stand fettered by the provisions of the Delhi Special Police Establishment Act, 1946 was so declared by a Constitution Bench in State of West Bengal V Committee for Protection of Democratic Rights9. We without burdening this judgment with too many precedents on the subject choose to highlight only the following observations made in Pooja Pal which has noticed the entire body of precedent on the issue and reiterated the following principles:-
"65. Referring to Section 6 of the Delhi Special Police Establishment Act, 1946, it was ruled in Committee for Protection of Democratic Rights case [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] that any restriction imposed thereby could not be construed to be one on the powers of the constitutional courts and thus cannot be taken away or curtailed or diluted thereby. While proclaiming the supervening powers of the High Court under Article 226 of the Constitution of India to direct entrustment of the investigation to CBI as in the case involved, this Court sounded a caveat as well that the very plentitude of such power inheres a great caution in its exercise and though no inflexible guidelines can be laid down in that regard, the same has to be invoked sparingly, cautiously and in exceptional situation when it becomes necessary to provide credibility and to instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.
(emphasis supplied)
83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in the Article 21 of the Constitution of India has a companion in concept in "fair trial", both being in alienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency."
Their Lordships then went on to observe:-
"84. As every social order is governed by the rule of law, the justice dispensing system cannot afford any compromise in the discharge of its sanctified role of administering justice on the basis of the real facts and in accordance with law. This is indispensable, in order to retain and stabilize the faith and confidence of the public in general in the justice delivery institutions as envisioned by the Constitution.
85. As succinctly summarised by this Court in Committee for Protection of Democratic Right [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401], the extra ordinary power of the Constitutional Courts in directing the CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not interdependent on each other.
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice." (emphasis supplied) In various decisions while sounding a note of caution of the need to exercise the said power not as a matter of routine and in exceptional situations alone, it has been held that such a power may be exercised in the following circumstances:
(a) to provide credibility to the investigation
(b) to instil confidence in the investigation
(c) to prevent miscarriage of criminal justice
(d) where the incident has national or international ramifications
(e) for ensuring complete justice
(f) for enforcement of fundamental rights While the above may not be an exhaustive list of factors which a court may take into consideration, these have been enunciated by the precedents handed down by the Supreme Court as being relevant for determination of the issue formulated by us.
Having noted the broad parameters based upon which which the two issues framed by us merit determination, we proceed to deal with the merits.
As noted above, although a voluminous charge sheet has been filed in the proceedings, despite repeated requests and opportunities, the learned Advocate General did not demonstrate the complicity of the charge sheeted accused in the commission of offences. We had on repeated occasions, requested the learned Advocate General to demonstrate from the record the complicity of any one charge sheeted accused so as to test for ourselves the nature of evidence gathered and evaluate the quality of the investigation undertaken. This opportunity was neither availed of nor were we referred to any evidence in this respect. The manner and circumstances in which the charge sheeted accused were arrested and charged with the crime, the recovery of arms, the nature of the seizure memo have all raised serious doubts about the credibility of the investigation. Despite most of the witnesses being government employees, no statements under section 164 CrPC have been recorded. We enter this observation bearing in mind the fact that although the incident is of 02 June 2016, the official witnesses were forced to make their statements under section 161 CrPC only after repeated entreaties of the Investigating Officer and that too upon instructions being issued by the superior officers. There was no attachment or seizure of clothing, no DNA sampling was consequently undertaken. The place of occurrence was neither sanitised nor a scientific investigation undertaken. The charred body of the leader of this group of encroachers was identified on the basis of ocular examination alone. The DNA testing procedure was started only after hearing commenced on this batch of writ petitions. The statements of the various police personnel which were placed before us do not explain the circumstances surrounding the death of the SP City. Although he is stated to have been accosted by a mob with lathis, sticks and iron rods none of the perpetrators of this ghastly attack are named or identified. The more serious issue which has astounded us is the circumstances which led to his death despite the presence of a huge posse of police personnel. The instructions formulated in the video conference convened by the Principal Secretary Home envisaged the entire operation being video graphed. No such evidence was produced before us nor relied upon by the learned Advocate General. Assuming such evidence does exist, we were neither informed nor apprised of any identification exercise having been undertaken on the basis thereof. The SSP in his statement refers to various encroachers being accosted by a mob outside and being done to death. These were not victims of the police attack. They appear to have been lynched to death by a frenzied and incensed mob. No material was brought to our attention of whether this aspect as borne out from the statement of the SSP was ever investigated. All this would indicate that the investigation far from instilling confidence in the general public has left much to be desired. In order to appreciate the observations entered above, we catalogue some of the questions put to the learned Advocate General to which no satisfactory answer was proffered. The prominent questions which we posed in the course of the hearing of the petitions are as under:
(1) Why did the State Government not constitute a SIT/SIC for conducting investigation in the case which attracted the attention of all concerned not only in the State of Uttar Pradesh but all over India and, perhaps, at international level also, having regard to the magnitude of the offence in which 27 persons died.
(2) Why no efforts, whatsoever, were made to identify most of the deceased till the charge sheet was filed and even thereafter.
(3) Whether the persons who had occupied Jawahar Bagh had patronage and, if not, how could about 3000 persons led by Ram Briksh Yadav stay for more than two years.
(4) If they did not have any support or patronage, how were they getting gas cylinders, electric supply, water supply inside the park so as to maintain about 3000 people in a public park and why these supplies were not cut-off.
(5) Why the Government did not take any action despite the fact that lot of employees, who were working in the offices in the park, were driven away and those offices were encroached by the unauthorised occupants.
(6) If the State Government was worried of loss of life and/or the Government never wanted any loss of life, why did the District/State administration, including police authorities, allow the figure of 100-200 persons, who had initially entered the park, to rise to 3000 and odd till the date of the incident.
(7) Why at the inception, when 100-200 persons had unauthorizedly occupied the park in 2014, no steps were taken to drive them out.
(8) Why after the arrest of hundred persons within less than 12 hours, no efforts were made to arrest the other persons who were named earlier in various reports submitted by the district administration to the State Government.
(9) Why despite the reports submitted by the district administration to the State Government from time to time naming some persons to be the main persons including Ram Briksh Yadav, efforts were not made to arrest those persons.
(10) Whether those persons, even now, have political patronage and, if yes, who are the persons trying to protect them.
(11) Why, at the time of arrest of accused persons, their clothes were not attached, which, perhaps, could have helped the prosecution to establish their presence at the scene of offence. Even the memorandum of arrest does not show whether their clothes were having blood stains.
(12) Why clothes of the deceased were not attached and sent for chemical analysis.
(13) Why efforts were not made to find out who were helping, directly or indirectly, the unauthorized occupants of Jawahar Bagh.
(14) Why test identification parade was not conducted, though it was possible, so as to identify the persons who actually participated in the alleged incident, including killing of two police officers in the incident.
(15) Why statements of some important persons, like District Magistrate, Superintendent of Police etc were not recorded immediately after the incident even though they were witness to the incident.
These and several other questions not only remained unanswered but no efforts were made by the investigating agency to conduct an investigation in respect thereof, for reasons best known to them. Even in the course of hearing of this petition, none of the questions could be answered satisfactorily by the Advocate General even after instructions from the officers who were present in the Court.
The continuance of proceedings on the basis of this flawed, incomplete, unscientific investigation would result in a travesty of justice. In fact, to put the record straight we must record here that the learned Advocate General more or less admitted that the investigation was flawed and was plagued by various evident shortcomings. His submission towards the end of hearing for constitution of a Special Investigation Team (SIT) was in fact a tacit admission of an incomplete and non comprehensive investigation which had failed to inspire confidence in the general public.
The more fundamental issue which has bothered us and upon which we have ruminated long is the circumstances surrounding the permissive occupation of the public park for more than two years. This act was not an ordinary occurrence or aberration. This was a direct affront to the authority of the State. No rights in our constitutional scheme are liable to be viewed in absolutist terms. We are tempted to recall the following observations of the Supreme Court in State of Maharashtra V Nasimkhan Ahmad Khan Mali Khan10 "In this case, the learned Appellate Judge did not take into consideration the age or the physical or mental conditions of the offenders. So far as the character of the accused is concerned, he could have considered it only in the context of what they did on the day of the occurrence. There was no other material before him. The offences committed by them show that they are desperate characters. The only thing that the learned Appellate Judge can be said to have considered is the circumstance in which the offences were committed. The fact that there was a call for strike is no ground for arson and assault of a grievous character. No section of the society can be permitted to take law into its own hand. There are ways to remedy social injustices. No individual can take upon himself the right to remedy any wrong done to him. It is impossible to have an orderly society, if we take to the ways of the jungle. There may be a genuine desire to change the present social order but that must and can be done through the instrumentalities of the State. In the final analysis, it is the people of this country through their representatives that must decide the social goals. If social wrongs are sought to be remedied in the streets then there can be neither peace nor progress. Without progress the attainment of social justice is impossible. Under our Constitution the Rule of Law has been made our way of life. It is a fallacy to think that Rule of Law and the law of the jungle can co-exist."
Again in Ramlila Maidan Incident In Re11, the Supreme Court observed:-
"39. There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without considering the significance of the duty. The true source of right is duty. When the courts are called upon to examine the reasonableness of a legislative restriction on exercise of a freedom, the fundamental duties enunciated under Article 51-A are of relevant consideration. Article 51-A requires an individual to abide by the law, to safeguard public property and to abjure violence. It also requires the individual to uphold and protect the sovereignty, unity and integrity of the country. All these duties are not insignificant. Part IV of the Constitution relates to the directive principles of the State policy. Article 38 was introduced in the Constitution as an obligation upon the State to maintain social order for promotion of welfare of the people. By the Constitution (Forty-second Amendment) Act, 1976, Article 51-A was added to comprehensively state the fundamental duties of the citizens to complement the obligations of the State. Thus, all these duties are of constitutional significance."
" 239. Security of the State", "law and order" and "public order" are not expressions of common meaning and connotation. To maintain and preserve public peace, public safety and public order is unequivocal duty of the State and its organs. To ensure social security to the citizens of India is not merely a legal duty of the State but a constitutional mandate also. There can be no social order or proper State governance without the State performing this function and duty in all its spheres.
240. Even for ensuring the exercise of the right to freedom of speech and assembly, the State would be duty-bound to ensure exercise of such rights by the persons desirous of exercising such rights as well as to ensure the protection and security of the people i.e. members of the assembly as well as that of the public at large. This tri-duty has to be discharged by the State as a requirement of law for which it has to be allowed to apply the principle of reasonable restriction, which is constitutionally permissible."
As the records would indicate, the organisation headed by Ram Briksh Yadav and thousands of his supporters came to forcibly occupy the huge precincts of a public park. Although the petitioners alleged that they were permitted to occupy the Jawahar Bagh consequent to permission granted by the district administration, this fact was denied by the respondents. Be that as it may, the fact remains that this group of encroachers and squatters came to occupy a public park for a period of two years without any State intervention. The occupation of the park over a period of time metamorphosed into the creation of an independent township in open defiance to the authority of the State. Despite numerous intelligence inputs starting right from June 2014 no effective steps were taken by the authorities of the State. These intelligence reports documented the steady increase in the number of encroachers and underlined the growing magnitude of the complexities which the district administration perceived it would face in case it took steps for eviction of the illegal encroachers. The gist of the intelligence inputs which find mention in the communication of the District Magistrate dated 11 February 2015 are as follows:
29 April 2014 Notices are issued to Ram Briksha Yadav and other illegal encroachers by the Horticulture Department to show cause why steps be not taken for their eviction and also in respect of an incident which occurred on 18/19 April 2014 when they are stated to have broken the locks of the record room and ferreted away Government records and caused loss of Rs. 7.50 lakhs.
7 June 2014 An FIR is lodged against Mahipat Singh, Ghanshyam Verma and 15 other persons in respect of the aforementioned incident.
20 June 2014 The local intelligence unit informs the district administration of the various FIRs lodged in different districts of the State against Ram Briksha Yadav and his followers.
6 September 2014 The LIU apprises the district administration of the illegal activities being undertaken by Ram Briksha Yadav and his followers right from 15 March 2014. It also refers to a meeting between Ram Briksha Yadav, his followers and the City Magistrate accompanied by the SHO, City and Sadar in an attempt to convince the encroachers to leave the public park. It records that Ram Briksha Yadav unequivocally stated that so long as his demands are not met his group would not leave Jawahar Bagh. He is further alleged to have stated that it is open to the administration to arrest him and his followers and that he is not afraid of any such step that may be taken.
10 November 2014 The LIU notes that Ram Briksha Yadav has filed certain proceedings before the District Judge, Mathura against Pankaj Baba, Jai Gurudeo, Ram Pratap Singh and Umakant Tiwari. It further notes that approximately 800-900 persons are residing within the park premises having made 125-150 shanties. It notes that they are illegally extracting electricity from connections meant for Government offices situate therein and that they have also installed generators. They further refer to groups of squatters armed with sticks and other weapons who continuously man all entry points of the park and do not permit outsiders to enter Jawahar Bagh. It refers to a ''Bhandara' being convened daily by Swadhin Bharat Subhash Sena in which all illegal encroachers inside the park participate.
27 November 2014 The LIU notes the steady increase in the number of persons illegally occupying the park having risen to 1200-1500 and that these persons are arriving not just from different districts of the State but also from the States of MP, Haryana and Punjab. It refers to a steady increase in the number of persons illegally occupying the park and notes that in case no steps are taken immediately to remove them, then in the future the number of encroachers is likely to increase and any steps taken then for their ejectment would lead to a law and order situation.
29 November 2014 LIU again reports the steady increase in the number of persons illegally occupying the park and the establishment and construction of various temporary toilets in its precincts by these persons. It also refers to the encroachers accosting ordinary residents of the area and that despite repeated requests of the police authorities and officers of the Horticulture Department, they remain unrelenting and continue to occupy the park illegally. It also refers to armed persons belong to the group led by Ram Briksha Yadav guarding the premises on a continuous basis thus preventing outsiders from entering. It notices the establishment of submersible pumps for drawing water and the continue unauthorised extraction of electricity. It reiterates the steady increase in the number of squatters from those, who had initially entered the park and sounds a note of caution yet again that in case no steps are taken to remove them then in the future, a law and order situation would clearly arise and result in disturbance of peace in the area.
22 January 2015 The communication notes of an effort made by the district administration to convince the squatters to leave the park premises and that the team of officials being attacked by the group led by Ram Briksha Yadav leading to the members of the team suffering injuries and consequently being forced to retreat from the park.
23 January 2015 The number of illegal encroachers inside the park is noted to have risen to 3000-3200. The LIU also refers to the illegal encroachers arriving not just from different districts of the State and States referred to above but also from Jharkhand. The number of hutments is noted to have increased to 300-350. It notes that all the shanties and hutments have since been identified by name and number and that the occupation has taken the shape of a colony. It notes that the illegal encroachers are using the park precincts for defecation thus raising a serious health hazard. It notes the usage of water resources and electricity of the Government offices situate within the precincts of the park and the Government offices and areas appurtenant thereto being occupied by them.
25 January 2015 The LIU notes the presence of a large number of women and children residing along with the followers of Ram Briksh Yadav and the display of a complete lack of respect for authority by the encroachers. It also records there perception of a large number of illegal weapons and arms being in the possession of these persons. It again raises the issue of the need to formulate an appropriate strategy and the need for requisitioning of additional police force in order to effect the eviction of the squatters.
5 February 2015 The District Magistrate deputes a team of officials to inspect the Jawahar Bagh. In the meeting Ram Briksh Yadav described his followers to be the true inheritors of the Azad Hind Fauj and alleged that the death of Jai Gurudev was a myth. He announced that he did not acknowledge Reserve Bank of India or the Indian currency. The number of illegal encroachers was estimated to be between 5000-6000. It estimates the food stored by them to be sufficient for at least 15 days. The team records that a whole colony has come to be established inside the park. It notices the presence of 10-12 vehicles inside the park including luxury SUV's, backup generators and loaders. It records that the lawns of Jawahar Bagh have been completely destroyed and immense damage inflicted upon the trees within the park. It notes the establishment of primary schools, health dispensaries, homeopathic doctors and persons using laptops.
11 February 2015 The Collector catalogues all the above intelligence inputs and emphasizes the growing specter of a show down between the encroachers and the administration. It speaks of some hidden agenda underlying the entire occupation. It highlights the security risk surrounding the occupation of the park considering that it was situate within the cantonment limits and the presence of the offices of the CMO, District Magistrate, Chief Development Officer, District Court, District Prisons and Officers colony. It notes the failure of all efforts made by the district administration to seek a peaceful resolution and the attacks on police and administration officials an indication of their evil motives and designs. It notes the presence of important and sensitive offices and installations within the peripheral distance of 1 km from the park and emphasizes that prompt police action is warranted.
As would be evident from the above narration of facts set forth in the various communications exchanged at the level of the district administration and the State Government, the situation steadily and over a period of time, spiraled totally out of control leaving the district administration in a sense of total helplessness. Although the major miscreants and leaders had been identified and FIR's registered no coercive action was taken. In fact some of the persons whose names find mention in the intelligence reports are not even named in the charge sheet. What efforts were made during the course of the investigation process to apprehend these persons, if at all, was not disclosed. The steady increase and entrenchment of the encroachers led to what can at best be described as an occupation by elements who exhibited scant regard to the laws and authority of the State. Their open defiance to the district administration, repeated attacks on officers and staff, the forcible occupation of government buildings and offices within the park, the destruction of government records, felling of as many as three thousand trees, their establishment of food and supply depots unfolded under the gaze of an entire district and the State. These intelligence inputs had commenced even before the High Court issued directions on a PIL in May 2015 and the earliest complaint of which reference appears on the record is of June 2014. Surprisingly all these intelligence inputs were not acted upon at all. They have been detailed in the communication of the District Magistrate Mathura dated 11 January 2015 addressed to the Principal Secretary Intelligence (Home) referred to above. Subsequent communications too fell on deaf ears. The various FIR's lodged in the interregnum also do not appear to have been pursued with vigor. It was a situation which reminds us of the phrase "Nero fiddled while Rome burnt". The State Government despite the repeated requests for aid from the district administration maintained an inexplicable and eerie silence. Although this Court by its order dated 18 July 2016 called upon the State to produce all material explaining the above apparent inaction, no such material was produced or referred to us nor was any such material brought on record by way of the affidavits filed on behalf of the State respondents. The allegations leveled in the writ petitions alluding to some higher power restraining action by the district administration have gained and gathered wind as a result of the evident unfathomable inertia and inaction on the part of the State. There appears to have been an abject failure on the part of the State Government to discharge its constitutional obligation and duty to protect its citizenry and preserve the rule of law. Whether this was mere inaction, indulgence or a permissive blind eye are issues which merit further investigation. To think that such an occupation in this time and age could unfold in a society which stands pledged to the Constitution and the rule of law is unthinkable. This aspect which is inherently and intrinsically connected to the unfortunate incident which occurred on 2 June 2016 clearly warrants a fuller investigation. Since the role of the State Government and its officials shall directly fall for scrutiny and in depth examination, we are of the considered view, that investigation of this angle also, forms a ground for entrustment of the investigation to an outside agency. We arrive at this conclusion undeterred by the constitution of a Commission of Enquiry by the State Government on 7 June 2016 bearing in mind the inherent limitations of such an enquiry initiated under the Commissions of Inquiry Act, 1952.
It is for the above reasons and aspects of the issue noted above that we find ourselves unable to accept the suggestion of the learned Advocate General for constitution of a Special Investigation Team (SIT) at this stage. The suggestion for constitution of a SIT made only at the fag end of hearing also does not commend acceptance for the reason that this power inhering in the State Government was liable to be exercised at any point of time after the incident. The State Government however chose not to constitute such a team for over eight months after the incident and proceeded to submit a charge sheet in Court without entrusting investigation to such a team. In any view of the matter, since the action of the State itself falls for scrutiny we find ourselves unconvinced that such a team would either ferret out the truth or be in a position to dispassionately enquire into the aspects noted above.
We may now refer to the judgments relied upon by the learned Advocate General while opposing the transfer of investigation to the CBI. In Secretary, Minor Irrigation & Rural Engineering the learned Advocate General placed reliance upon the following passage:
"6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if 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 CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause, a Registered Society v. Union of India & Ors.
7. Just to point out that there is no prima facie finding by the High Court, while directing an inquiry by the impugned order, we would like to extract the following few sentences.......... While directing an inquiry by CBI, the High Court, as stated in the judgment of this Court in the case of Common Cause (supra), must record a prima facie finding as to the truth of such allegations with reference to the reply filed. In the instant case, we have noticed that the High Court has merely proceeded on the basis of the averments made in the petitions without taking into consideration the reply filed and without expressing its prima facie opinion in regard to these allegations. This having been not done, we find it necessary that the judgment impugned should be set aside and the matters be remanded to the High Court to consider the pleadings of the parties and decide whether the material on record is sufficient to direct the inquiry by the CBI. While doing so, it will take into consideration not only the allegations made in the writ petitions but also the reply given by the Minister. After such an exercise if the Court still thinks that the allegations require a further investigation by CBI then it may do so after recording a prima facie finding which, of course, will be for the limited purpose of directing an inquiry."
As is evident from the passage emphasised by us, the issue which was highlighted was the necessity of the High Court forming a prima facie opinion on the requirement of entrustment of the investigation to the CBI. We have already recorded our detailed reasons as to why the entrustment of the investigation to the CBI is a necessary imperative. Similarly the judgment in Sakiri Vasu is clearly distinguishable as would be evident from the following passage:
"31. No doubt the Magistrate cannot order investigation by CBI vide CBI vs. State of Rajasthan [(2001) 3 SCC 333 : 2001 SCC (Cri) 524], but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
32. In the present case, there was an investigation by the GRP, Mathura and also two courts of inquiry held by the army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry." (emphasis supplied) Similarly K.V. Rajendran was a case where a transfer to the CBI was sought almost 15 years after the date of the incident and by the time the officer against whom allegations had been made had been transferred. T.C. Thangraj emanated from an allegation of cheating in the procurement of a loan of Rs. 3 lakhs. In this view of the matter the Supreme Court held that the case did not fall within the category of "exceptional situations" warranting transfer to the CBI. The judgment of the Supreme Court in Mohd. Haroon upon which much emphasis was laid by the learned Advocate General does not advance the case of the State respondents any further. This was a case where the Supreme Court took cognisance of the incident within days of its occurrence, where the State had promptly constituted an SIT, had undertaken an investigation in a fair, impartial and scientific manner duly monitored by the Supreme Court and had painstakingly demonstrated to the satisfaction of the Supreme Court that the charge sheeted accused were duly identified, false allegations duly enquired into and falsely implicated persons removed from the array of the accused. It was on an overall conspectus of the said facts that the Supreme Court turned down the prayer for transfer of investigation to the CBI. This is evident from the following observations:-
"116. It is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled from their villages and had taken refuge in various relief camps and noted their problems by taking list of such persons staying in camps and getting their mobile numbers. SIC also recorded the statements of the complainants and witnesses.
118. In respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etc.
119. We have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons.
120. In respect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that through their Public Prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bail.
121. In the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunder."
For all the aforesaid reasons we find ourselves unable to accede to the submission of the learned Advocate General for entrustment of further investigation to a SIT and hold that there exists sufficient ground for transfer of the investigation to the CBI.
While parting we may also deal with the submission of the learned Advocate General regarding the powers of a Magistrate under section 173 of the CrPC as well as the powers of the Court under section 319 thereof.
Insofar as the first submission is concerned, while we do not for a moment doubt the jurisdiction of the Magistrate to initiate a further investigation under section 173 (8) of the Criminal Procedure Code, he would obviously be dependant upon the same police machinery which has already undertaken the investigation. Additionally we have highlighted the independent issues which arise for investigation and further scrutiny which cannot be entrusted to the State Government for reasons recorded herein above. In fact these aspects do not even form part of the criminal proceedings of which the Magistrate is in seisin.
The submission based upon section 319 CrPC also does not advance the case of the State any further. The scope and extent of power conferred by section 319 is no longer res integra and stands authoritatively ruled upon by a Constitution Bench of the Supreme Court in Hardeep Singh V State of Punjab12 wherein it was observed as under: -.
78. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.
83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court."
(emphasis supplied) From the above it is apparent that this power conferred on the court during the course of trial, cannot and does not sufficiently safeguard the apprehensions expressed above nor would it enable the court concerned to remedy the defects and shortcomings which we have noticed above.
We may lastly refer to the objection taken by the learned Advocate General to the bona fides of one of the public interest litigants and his submission that since he represented the interests of a political party a petition at his instance should not be entertained. We find from the record that his petition had initially itself been entertained by a coordinate Bench. Even otherwise since there are other petitions before us seeking similar reliefs in respect of which no such objection is taken or urged, we need not dilate or rule upon this submission at all.
We accordingly allow the prayers made in this batch of writ petitions for transfer of the investigation to the CBI. The CBI shall constitute two independent teams comprising of adequate number of officers of which one will investigate and submit a fresh report with regard to the incident which occurred at Jawahar Bagh on 02 June 2016 bearing in mind the observations made herein above. The DGP Police U.P. shall ensure that all relevant records are made available to the team by the investigating officer and that all cooperation is extended to the team by all concerned. The second team shall undertake a comprehensive investigation with regard to the unexplained inaction on the part of the State Government to take appropriate and prompt action on the intelligence inputs and communications addressed by the district administration. The investigating team shall be granted access to all relevant records available with the State Government in order to enable it to undertake an in depth probe on this aspect and identify persons, if any, responsible for dereliction of duty or stalling action by the district administration. The CBI is granted two months time to complete the investigation in light of the observations made and directions issued herein above and submit its report in sealed cover before this Court. Till such time as the re-investigation is completed by the CBI, the further trial proceedings before the Court in which the charge sheet has been submitted shall remain stayed subject to further orders of this Court.
List this batch of petitions for further direction on 2 May 2017.
Order Date :- 2.3.2017 LA/-
(Dilip B Bhosale, CJ.) (Yashwant Varma, J.)