Karnataka High Court
Manoj Kumar Thakur vs State Of Karnataka on 1 October, 2015
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF OCTOBER 2015
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
WRIT PETITION NO.59438/2014 (GM-RES)
BETWEEN:
MANOJ KUMAR THAKUR
S/O LAT B.N.THAKUR
AGED ABOUT 51 YEARS
WORKING AT ASSISTANT ENGINEER
DEPARTMENT OF ROAD CONSTRUCTION,
STATE JHARKHAND,
R/AT B-52, HARMU HOUSING COLONY,
HARMU, RANCHI - 834 002.
JHARKHAND.
. ...PETITIONER
(BY SRI P.N.HEGDE, ADV. AS AMICUS CURIAE FOR
SRI MANOJ KUMAR THAKUR - PARTY-IN-PERSON)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY PRINCIPAL SECRETARY
DEPARTMENT OF HOME,
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS
NRIPATHUNGA ROAD
2
BANGALORE - 560 001.
3. ASSISTANT COMMISSIONER OF POLICE
C.C.B., SPECIAL ENQUIRY SQUAD, S.T.PET,
BANGALORE CITY, BANGALORE - 560 002.
4. THE DETECTIVE INSPECTOR
H&B SQUAD
CID, CARLTON HOUSE,
PALACE ROAD,
BANGALORE - 560 001.
5. THE DIRECTOR
CENTRAL BUREAU OF INVESTIGATION,
CBI OFFICES,
BELLARY ROAD,
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI B.VISWESWARAIAH, HCGP FOR R1 TO R4;
SRI HEGDE DEVARU GANAPATHI, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE FINAL REPORT SUBMITTED BY THE R3 I.E., THE
REPORT SUBMITTED BY THE ASSISTANT COMMISSIONER
OF POLICE, CCB SPECIAL ENQUIRY SQUAD, S.T.PET,
BANGALORE CITY, BANGALORE DATED 22.08.2014, VIDE
ANN-DD ON FIR NO.125/2014.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23/09/2015 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
RATHNAKALA J., DELIVERED THE FOLLOWING:-
3
ORDER
The petitioner in this petition is praying for quashing the Final 'B' report dated 22.08.2014, submitted by the Assistant Commissioner of Police, C.C.B. Special Enquiry Squad, S.T.Pet, Bangalore City, / third respondent herein vide Annexure 'DD'.
2. To appreciate the prayer made in this petition, it is required to refer to the history of the case:
Petitioner's son by name Prateek Kumar Thakur was a student of Dayanand Sagar College of Engineering and he was studying in 3rd semester of B.E. (Telecommunication). On 13.08.2009, at 1.00 p.m., the petitioner on receiving information from the College authority that his son fell down from the roof of the College and is admitted to hospital for treatment; came to Bangalore immediately along with his family and reached Bangalore at about 10.30 p.m. on the same day. On arriving at Bangalore, he came to know that his son expired immediately after the incident;
the dead body was preserved in Dayanand Sagar Hospital, 4 Bangalore; he was informed by the staff of the College that his son accidentally fell down from 7th floor of the College building. The Kumaraswamy Layout Police registered a case in UDR case No.35/2009 under Section 174 of Cr.P.C. The petitioner requested the police to videograph the postmortem but his request was turned down. Suspecting some fowl play he complained to Kumaraswamy Layout Police Station on 14.08.2009 but they did not register his complaint. However, they proceeded to investigate the matter. On the instruction of the higher police officials, the investigation was taken over by CCB on 28.12.2009. On 21.11.2009, final report was submitted by the Investigating Officer stating that it is the case of accident or suicide but not murder. Aggrieved by the said report the petitioner filed a petition before this Court in W.P.28092/2013 (GM-RES), this Court vide order dated 22.11.2013 allowed the petition and set aside the final report dated 21.10.2010 in UDR 35/2009 and directed the Director General of Police / Second respondent to register the FIR on the complaint 14.08.2009 lodged by the petitioner and entrust the 5 investigation to an efficient officer of the rank of Deputy Superintendent of Police. Accordingly, the 4th respondent / the Detective Inspector, H & B Squard, CID, Bangalore, on conducting investigation has submitted final 'B' report.
3. The petitioner / party-in-person has filed his affidavit venting out his grievance against the final 'B' report.
4. Sri Hegde, Amicus Curiae has filed his written submissions in the matter. His submission is, the Investigating Officer did not attend the lapses pointed out by this Court in W.P.No.28092/2013. The investigation is proceeded as if the Investigating Officer is answering the various queries raised by the petitioner. It is an admitted fact that the injured was firstly taken to the campus hospital of Dayanand Sagar College at 12.05 p.m. of 13.08.2009; he was treated by Dr.Nitin and he was declared dead at 12.55 noon on the same day. It is also a fact that the Sagar Hospital at Jayanagar which is at the distance of 7 to 8 kms. from the college states that the injured was brought to their hospital at 6 11.55 a.m. by Dr.Murali Mohan. There is serious contradiction between two sets of facts which are brought on record. At Dayanand Sagar College Hospital, the left had thumb impression of the victim was taken and Col. S.Kumar has opened the medico- legal register. In the register of Col. S.Kumar there is no averment to the effect that the victim was taken dead to the hospital. It only states that the student fell from the top of the floor. The police registered the case under Section 174 of Cr.P.C stating that the student fell from 7th floor. Now they are showing that inquest was done at KIMS but the Police Inspector has addressed a letter to Assistant Commissioner of Police on 28.12.2009 stating that he visited the mortuary of Sagar Hospital and received the inquest report. The case dairy dated 13.08.2009, reveals that the Police Inspector has conducted the inquest in the mortuary on 13.08.2009. As per one of the report of the Superintendent of Police, the P.S.I got the inquest done at the Sagar Hospital so also the post mortem. But they have suppressed the said fact and prepared another report as if inquest and post mortem are drawn at 7 KIMS. Post mortem is said to have been conducted by Dr.Anand, but he is a signatory to the medico-legal register prepared by Nitin at Dayanand Sagar Campus Hospital. He cannot be working at the same time in two institutions. In the statement given on 28.01.2010, one Robert did not state anything about the malfunctioning of the CCTV in any particular floor of the building from which the deceased is said to have fallen. But on 27.06.2010, in his further statement he has improved his version saying that the CCTV on the 5th and 6th floors were not working. This statement is made to cover up the entire incident in view of the enquiries made by the petitioner. According to the statement of Robert after one month from the date of the incident, CCTV programs were formatted. But according to the Management it was repaired on 17th and 18th of August, 2009. The Management vide letter dated 10.02.2010, replied to the letter sent by the Investigating Officer dated 04.02.2010, has stated that the footage was given to the police station on 17.08.2009. When the Investigating Officer addressed a letter dated 26.03.2010, asking for CCTV footage 8 between 09.00 a.m. to 12.30 p.m. in respect of 1st to 4th floors, suddenly they changed the stand that the footage was not given to police and now it cannot be retrieved. No material is shown by the Management about the repair work of CCTV and details of the payments made. Though the Kumaraswamy Layout Police have received the footage, it is not handed over to CID Police and they claim that they obtained the footage but did not thought it fit to send it to FSL to find out the possibility of tampering. The PSI of Kumaraswamy Layout Police Station reported to his duty on 14.08.2009 at about 08.15 a.m. and at 11.30 a.m. he left the police station and the inquest is said to have been done between 8.30 a.m. to 10.30 a.m. of 14.08.2009. In the inquest report, the presence of one Sukumar is shown but his statement is not recorded in the inquest report. The petitioner obtained the CCTV footage through RTI. He was furnished with the footage which contains the videos of 1st to 3rd floor between 9.45 a.m to 10.16 a.m. and in respect of 4th floor between 9.45 a.m. to 10.06 a.m. and 11.46 a.m. to 12.17 p.m. But no footage is available between 10.16 a.m. to 11.45 a.m. 9 of 4th floor. The time of incident according to the original complaint is just prior to 11.45 a.m. When the petitioner is suspecting the death as homicidal, the Investigating Officer is required to rule out the possibility of homicidal death. The facts noticed above, indicate that there is consorted effort to scuttle the investigation either to protect somebody or to protect the interest of Institution that necessitates to handing over the investigation to specialised agency like CBI.
5. Sri Hegde Devaru Ganapathi, learned Counsel for the fifth respondent submits that in view of the passage of time, at this belated stage it is very difficult to collect the evidence; the CID and the Director General of Police after thorough investigation in pursuance of the directions of this Court, investigated the matter and further investigation is only a waste of public money and public time and serves no purpose. The CBI is already overburdened with the cases. The Apex Court, in CBI Vs. State of Gujarat reported in (2007) 6 SCC 156 and State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal 10 and Others reported in (2010) 3 SCC 571, has held that as a matter of routine investigation should not be entrusted to CBI and the Court shall exercise the powers of entrusting investigation, in situations where it becomes necessary to provide instill and confidence in the investigation and the incident is of the national and international ramification or to do complete justice. Only because the party has leveled allegation against the local police, matter shall not be referred to CBI and it is not a fit case to be investigated by the CBI.
6. In his previous petition W.P.No.28092/2013, also this petitioner had sought for handing over the investigation to CBI in respect of the UDR No.35/2009 of Kumaraswamy Layout Police Station. However, this Court though allowed the petition and set aside the final report submitted in UDR. 35/2009 thereby, closed the 'B' report, directed the Director General of Police to register the FIR on the complaint lodged by this petitioner and to entrust the investigation to the rank of Deputy Superintendent of Police, 11 the allegation made by him against the police as a ground for an investigation by CBI, was not appreciated.
7. Much reliance is placed by the petitioner on the judgment of the Apex Court in Narmada Bai Vs. State of Gujarat and Others reported in (2011) 5 SCC 79, in which case the Apex Court was monitoring the CBI investigation in the matter of a police encounter. The circumstances of the said case have no semblance to the facts on hand. The Constitutional Bench of the Apex Court in the mater of State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal and Others reported in (2010) 3 SCC 571 went in detail on the scope and jurisdiction of the High Court under Article 226 or the Hon'ble Supreme Court under Article 32 of the Constitution of India to direct for investigation of a cognizable offence. It was asserted that such direction is issued in exercise of power of judicial review to protect and enforce fundamental rights in general and Article 21 in particular is valid and not incompatible with the 12 Doctrine of Federal Structure and separation of power. However, it was cautioned that this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility to and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights, on being satisfied that the material discloses a prima facie calling for investigation by CBI.
In another case State of Punjab Vs. Davinder Pal Singh Bhullar and Others along with connected matters, reported in (2011) 14 SCC 770, has held at para No.48, which reads thus:
"48. Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to 13 whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible."
8. Here is the case where the petitioner / a bereaved father is pointing out some discrepancy in the investigation conducted by the CCB Special Enquiry Squad. He suspects one of his relative responsible for the unnatural death of his son but said suspect is not a party here. The Investigating Officer in his final 'B' report has stated that during his enquiry, the FSL specialists on two dates recreated the incident and found "Based on the simulated trials during the reconstruction of the crime scene, study of photographs, spot mahazar, PM reports and CCTV footages at the time of incident and the sequence of events are consistent with the suicidal fall. He opines that the petitioner herein on suspicion that somebody has pushed his son, though there was no supporting material has lodged the complaint. He has examined 14 11 witnesses and had obtained the opinion about the cause of death by presenting the post mortem report and other concomitant documents before the specialists of Victoria Hospital. Their opinion is, the injuries are consistent with a fall from high whether suicidal or homicidal or accidental. It is quite natural for them to opine so, on the basis of the documents placed by them. Though 11 witnesses are examined by the Investigating Officer, nothing fruitful can be elicited in support of the complaint allegation.
9. The extraordinary power of directing for CBI investigation must be exercised sparingly, cautiously and in exceptional situations as observed by the Apex Court in the case of State of West Bengal (supra), otherwise CBI would be flooded with large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. Though the petitioner in his affidavit points out towards short comings of investigation that by itself is not sufficient to quash the entire investigation and Final 'B' Report. The investigation does not admit inference of bias on the part of 15 the Investigating Officer. The petitioner alleges that certain aspects which he had pointed to the Investigating Officer were not at all addressed during the investigation. But it is not the forum to dissect filament vise the grievance of the petitioner viz-a-viz the investigation report. That exercise shall be done by the learned Magistrate before whom the 'B' report is presented. If the circumstances demand, the Magistrate can direct the Investigating Officer for further investigation under Section 173(8) of Cr.P.C. by stipulating a time frame. While parting, I would like to place on record my appreciation to the valuable assistance extended by Sri P.N.Hegde, Amicus Curiae for Sri Manoj Kumar Thakur / party- in-person.
With these observations, the petition is rejected. The fee of Amicus Curiae is fixed at Rs.5,000/-.
Sd/-
JUDGE nvj