Himachal Pradesh High Court
Gurdev Singh Verma vs State Of Himachal Pradesh & Ors on 17 December, 2024
Bench: Tarlok Singh Chauhan, Chief Justice
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.WP No. 19 of 2024 Reserved on: 03.12.2024 Decided on: 17.12.2024 Gurdev Singh Verma. ....Petitioner.
Versus State of Himachal Pradesh & Ors. ...Respondents. Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No For the petitioner : Mr. N.S. Chandel, Sr. Advocate, with Mr. Vinod Kumar Gupta, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Mr. Gobind Korla, Additional Advocate Generals and Ms. Priyanka Chauhan, Mr. Sidharth Jalta and Mr. Arsh Rattan, Deputy Advocate Generals.
1 Whether reporters of the local papers may be allowed to see the judgment? 2
Neutral Citation No. ( 2024:HHC:14597 ) Satyen Vaidya, Judge By way of instant petition, petitioner has prayed for following substantive reliefs:-
(i) Issue a writ in the nature of certiorari seeking quashing and setting aside the arrest of the son of petitioner namely Deepak made in connection with the FIR No. 60 of 2024 dated 01.04.2024 registered at Police Station Balh, District Mandi, H.P. being grossly violative of right and liberty granted under Article 21 of Constitution of India as he has falsely been implicated in the said FIR.
(ii) Issue a writ or direction or order to CBI for investigating the matter in question and to ascertain the truth.
(iii) Issue writ or direction or order if after inquiry false implication is proved, FIR be registered against the erring police officials and son of petitioner Deepak may be compensated for the same.
(iv) Issue writ, direction or order to S.P. Mandi to preserve the call details and tower location of the following numbers and present them before the Hon'ble Court when ordered for:-
1. Deepak Singh Verma (93174-12754)
2. Anurag Sharma (86792-11951)
3. Kartar Singh (85804-09261) 3 Neutral Citation No. ( 2024:HHC:14597 )
4. Sagar Chand ASP Mandi (94180-20803 and 70185-19433)
5. Dev Raj, ASI PP Rewalsar (94180-02139)
6. HC Bhanu, Police Station Balh (98167- 13280)
7. Petitioner (98821-19287)
8. Two number i.e. 62303-94647 and 84939-
57506.
2. The son of petitioner named Deepak Verma along with two others, namely, Kartar Singh and Anurag Sharma (hereafter referred to as Deepak, Kartar and Anurag) are facing trial before learned Special Judge, Mandi, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances, Act (for short, 'the NDPS Act'). All three of them have been charged of being in conscious possession of 287 grams of Chitta/Heroin, while travelling in vehicle bearing temporary registration No. T0124HP866A (Maruti Alto). within the jurisdiction of Police Station Balh (PS Balh), District Mandi, H.P.
3. It is alleged that on 31.03.2024, a police party headed by ASI Dev Raj, incharge Police Post Kalkhar (PP Kalkhar), on prior secret information, 4 Neutral Citation No. ( 2024:HHC:14597 ) apprehended aforesaid vehicle at place near Baba Balak Nath Temple, Banoun. Deepak, Kartar and Anurag were found as occupants of the vehicle. On search of the vehicle 287 grams of Chitta/Heroin was recovered. The case was registered at PS Balh, District Mandi, H.P. vide FIR No. 60/2024, dated 01.04.2024.
4. In this backdrop Deepak, Kartar and Anurag are facing trial, as noticed above.
5. The instant petition has been filed alleging false implication of the accused persons in FIR No. 60/2024. It is alleged that on 31.03.2024, the petitioner had received a call on his mobile phone at about 6:04 PM from mobile number 62303-94647 and he was informed by the caller that two occupants in the vehicle of his son Deepak had been apprehended by the police with Chitta/Heroin. Petitioner had made a request to leave his son, but the caller had asked petitioner to make some arrangement. As per petitioner, he called on mobile number 62303-94647 at 6:06 PM, asking as to what was required to be done by him. In reply, petitioner was asked to arrange for Rs. 1,00,000/-. It is 5 Neutral Citation No. ( 2024:HHC:14597 ) also narrated by the petitioner that the recipient of the call on aforesaid number had also inquired about the location of petitioner and what time was likely to be taken by him to reach place known as Ner-Chowk. Petitioner allegedly had told the caller that it would take at least one and half hours to reach Ner-Chowk as he was to make arrangement for Rs. 1,00,000/- also. On the query of petitioner as to where he had to deliver money, it was replied that he should first reach Ner- Chowk and then again make a contact on the said number.
6. It is further averred that at about 6:15 PM, petitioner had received a missed voice call from mobile number 84939-57506. Petitioner called on the said number at 6:16 PM and was instructed to make further calls on the said number through WhatsApp. He was further required to arrange for the money at the earliest with the threat that otherwise the son of petitioner would be implicated in the case. Petitioner allegedly recorded the aforesaid conversation with the assistance of another mobile number.
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Neutral Citation No. ( 2024:HHC:14597 )
7. It is the case of petitioner that thereafter he made arrangement of Rs. 1,00,000/- and proceeded towards Ner-Chowk with three relatives. At 7:15 PM, another call was received from mobile number 84939-57506 asking petitioner to hurry-up. Petitioner requested the caller to let the petitioner talk to his son but the request was declined on the pretext that once petitioner reached Ner-Chowk he could talk to his son.
8. Petitioner has further alleged that when he along with his relatives was on way to Ner-Chowk, they noticed presence of some police officials on the road near Baba Balak Nath Temple, Banoun, at about 7:15 PM - 8:00 PM. Petitioner stopped the car and narrated the entire incident to one Assistant Sub Inspector of Police (for short 'ASI') and also showed him recording of the call. The name of ASI is disclosed as ASI Dev Raj. As per petitioner, ASI did not pay any attention towards the petitioner and started talking with someone on mobile. He also directed petitioner to report the matter at PS Balh.
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9. On his further journey towards Ner-Chowk, at a distance of about 3-4 Kms from village Sidhwani, petitioner noticed the vehicle of his son approaching from opposite direction. He further noticed that the vehicle was not being driven by his son, rather some stranger was on the wheel with the mask on the face and a Himachali cap on the head. Two more vehicles with Punjab and Chandigarh registration plates were also following the vehicle of Deepak Verma. Immediately thereafter petitioner received a voice call from mobile number 84939-57506 inquiring about his location. Petitioner disclosed his location but the call was disconnected.
10. Petitioner, thereafter allegedly followed the car of his son which was found parked near Baba Balak Nath Temple, Banoun. Petitioner noticed the person driving the car coming out from driving seat. The person conversed something with police officials already present there, who immediately surrounded the vehicle of Deepak Verma. Thereafter, the person who was driving the car of Deepak Verma disclosed his identity 8 Neutral Citation No. ( 2024:HHC:14597 ) as Sagar Chand, Additional Superintendent of Police, Mandi, (for short 'ASP'). Petitioner has also alleged that the ASP was wearing a track suit and while talking to him the ASP had removed his mask and directed the police officials to make Deepak Verma sit on the front seat of the car.
11. Further case of the petitioner is that he made inquiries from ASP as to what was the issue and had received the reply that Chitta/Heroin had been recovered from the occupants of the car. Petitioner had pleaded with the ASP that since his son was only a taxi operator, as such, he should be spared. The ASP allegedly had replied that he had to interrogate Deepak Verma and thereafter he would be released. Petitioner also is stated to have shown to the ASP recording with respect to demand of money but did not receive any attention. Petitioner, thereafter had left for his home and next morning at about 6:00 AM was informed from PS Balh that Deepak Verma was in police custody in connection with FIR No. 60 of 2024 under NDPS Act. 9
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12. Petitioner, on 02.04.2024, made a complaint to SHO, PS Balh with regard to demand of money made from him. Petitioner allegedly made another complaint dated 05.04.2024 to Superintendent of Police, Mandi, apprising him about the entire incident.
13. Petitioner has also averred that he made inquiries from Deepak, Kartar and Anurag, while they were in custody, as to the truth of the matter. It was disclosed to him that Anurag had received a call from an unknown number on 31.03.2024 in presence of Deepak and Kartar making inquiries about purchase of land in District Mandi, H.P., with a further request to meet the caller at Lucky Filling Station Kalkhar. Deepak, Kartar and Anurag reached the given destination in the vehicle (Taxi) of Deepak bearing temporary registration number T0124HP866A. A Honda Accord car bearing registration number HR-26AQ8818 came on the spot from which two persons alighted. The time is alleged to be about 1:30 PM. Anurag allegedly conversed with the occupants of aforesaid car and asked them to see him at 3:00 PM on way to Jahu. At 10 Neutral Citation No. ( 2024:HHC:14597 ) about 4:00 PM, the same Honda Accord car again met Deepak, Kartar and Anurag near Kalkhar. Anurag alighted from car of Deepak and boarded Honda Accord No. HR-26AQ8818 with instructions to Deepak and Kartar to meet him at Om Shanti Bhojnalaya, Kalkhar.
14. As narrated by the petitioner, at about 4.30 PM Deepak and Kartar reached Om Sai Bhojnalaya where Anurag with two other occupants of Honda Accord car was present. On the pretext of Honda Accord car being more spacious and convenient for discussion, all five occupied the said car, which left Sai Bhojnalaya, Kalkhar towards Jahu at about 4.35 PM.
15. Just after two minutes two cars came from Jahu side with registration plates of Punjab and Chandigarh and stopped in front of Honda accord car. From one of these two cars a person in civil dress came out and branded a pistol and pointed the same towards the rear seat occupants of Honda accord car i.e. Deepak, Kartar and Anurag and asked them to sit quiet. The person sitting on the front passenger seat of Honda Accord car got down and was replaced by another 11 Neutral Citation No. ( 2024:HHC:14597 ) person earlier occupying one of other two cars, who also had a pistol in hand. The person, who had threatened the occupants of rear seat of the Honda accord with pistol, also got adjusted on the rear seat.
16. A third person who had mask on face and a Himachali cap also came out from one of the two cars and asked Deepak to handover keys of his vehicle. After receiving the keys, he sat on rear seat of one of the two vehicles and the front passenger who had alighted from Honda Accord also occupied the same car where person with mask had sat.
17. Thereafter, all the vehicles proceeded towards Ner-Chowk side at 4.41 PM. The person wearing mask stopped the car across the road at OM Sai Bhojnalaya and after alighting therefrom went towards Car of Deepak Verma and drove the same to Ner Chowk and parked it at Preet Hotel, Ner Chowk.
18. Deepak, Kartar and Anurag were also taken to Preet Hotel, Ner Chowk, where they came to know that the persons who had brought them to Preet Hotel were Police Officials and the man with Himachal Cap 12 Neutral Citation No. ( 2024:HHC:14597 ) was ASP Sagar Chand. One of the occupants of Honda accord had contacted father of Deepak Verma (petitioner herein) for demand of money from the Preet Hotel when all the Police officials were also present.
19. The petitioner thereafter contacted the owner of Om Sai Bhojnalaya and watched the CCTV footage of dated 31.3.2024. He identified the person who had alighted from one of the cars stopped across the road and had thereafter driven the car of Deepak as the same person whom he had met near Baba Balak Nath Temple, Banon as ASP Sagar Chand.
20. As per his further version, the CCTV footage had revealed that when ASP boarded the car of Deepak Verma, other two cars along with Honda Accord car are also seen moving towards Ner Chowk. Petitioner thereafter is stated to have procured the Hard Disc (HD) from owner of Om Sai Bhojnalaya.
21. It is also the case of petitioner that he intentionally did not disclose about the HD and enquiry made from accused persons to the authorities as he apprehended that police might not force Dhaba owner 13 Neutral Citation No. ( 2024:HHC:14597 ) to destroy the evidence. Petitioner claims to be in possession of the HD and has produced extract thereof by way of Annexure P-5.
22. It is further averred that at Preet Hotel, Ner Chowk Deepak, Kartar and Anurag were kept for about two hours by ASP and were thereafter taken to place near Baba Balak Nath temple Banon.
23. On such basis it is alleged that the Vehicle of Deepak Verma was in possession of ASP from 4.41 PM till 8.15 PM.
24. On the complaint of petitioner an enquiry was initiated and it was during the course of such enquiry that petitioner came to know about another similar incident having taken place at Mandi. FIR 69 /2024 dated 2.4.2024 had been registered at PS Mandi against two persons with allegation of being in possession of 12.66 grams of Chitta. As per Police the said recovery was made on 2.4.2024 at 10 PM. One of the accused therein was Rishi Raj. The father of said accused had also made complaints to the Police with respect to having received extortion calls of similar 14 Neutral Citation No. ( 2024:HHC:14597 ) nature. A case was registered at PS Balh vide FIR No. 70 of 2024 under Sections 385 and 120-B IPC against three persons named Kapil Thakur, Raj Kumar and Deepak.
25. Petitioner shared the CCTV footage of OM Sai Bhojnalaya with Shri Balbir Singh (father of Rishi Raj), who positively identified the two occupants of Honda Accord car as Raj Kumar and Deepak, who were also the accused in FIR 70/2024 PS Balh. The Honda Accord seen in CCTV footage was also identified to be the same car used in the case at Mandi also.
26. Balbir Singh Pathania has also filed CWP 4630 of 2024 before this Court.
27. It is also alleged that ASP Sagar Chand was involved in false implication of the son of petitioner as it was his modus operandi in many more matters. On such allegations, a prayer has been made for getting the matter investigated through an independent agency and for preservation of call details.
28. Reply has been filed by respondents No. 1 to 3 and its contents have been sworn on affidavit by the 15 Neutral Citation No. ( 2024:HHC:14597 ) Superintendent of Police, Mandi (respondent No. 3). It has been submitted that investigation in case FIR No. 60/2024, dated 01.04.2024 of Police Station Balh, District Mandi, H.P. has been completed. The challan has been presented and the accused therein are facing trial before learned Special Judge, Mandi, H.P.
29. The respondents No. 1 to 3 have also highlighted the past criminal record of all the three i.e. Deepak, Kartar and Anurag. It is alleged that Deepak Verma, the son of petitioner had also been involved in case FIR No. 66/2022, dated 10.03.2022, under Sections 20 & 21 of NDPS Act, registered at Police Station Sadar, Hamirpur, H.P. Accused Kartar Singh @ Taru is also alleged to be involved in ten criminal cases, out of which, four are stated to be under NDPS Act. It is further submitted that the police have record of the call details of these persons revealing their continuous contacts with drugs dealers/peddlers. On such assertion, Deepak, Kartar and Anurag have been portrayed as drug addicts/dealers/peddlers or their associates.
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Neutral Citation No. ( 2024:HHC:14597 )
30. The Superintendent of Police, Mandi, is stated to have recorded the statement of ASP Sagar Chand during inquiry allegedly conducted by her. As per said statement, ASP had gone to TTPS, Mandi on 31.03.2024. He had been appointed as Police Nodal Officer for ensuing 18th Lok Sabha General Elections, 2024. He had received an input of illegal liquor being smuggled and had gone towards Balh/Kalkhar area along with his team. On his return from Kalkhar to Ner- Chowk, ASP had seen some police personnel near Baba Balak Nath Temple, Banoun. He had stopped there and met ASI/In-charge Police Post, Rewalsar, who had stopped a car and had been inquiring something. On the asking of ASP, ASI Police Post, Rewalsar, had apprised him about some prior information of Chitta/Heroin in the car and had further disclosed that for such purpose the car was being checked.
31. The ASP is also stated to have disclosed that when he was about to leave Baba Balak Nath Temple, Banoun, petitioner had arrived there with another person in a car from Ner-Chowk side. Petitioner had 17 Neutral Citation No. ( 2024:HHC:14597 ) inquired why the car of his son had been detained and claimed that his son was operating the car as taxi. ASI had also introduced the ASP to the petitioner. As per ASP, petitioner had asserted that Kartar Singh @ Taru was a Chitta supplier and had hired the taxi of his son as a driver. He had pleaded the innocence of his son and had requested to leave him. ASP is stated to have intervened and instructed ASI to look into the grievance of petitioner. The mobile numbers between ASP and petitioner were shared whereafter ASP along with his team left the spot towards Ner-Chowk and petitioner also left towards Kalkhar side.
32. Thereafter, the car of Deepak Verma is stated to have been searched and 287 grams of Chitta/Heroin was allegedly recovered therefrom.
33. The respondents 1 to 3 further have disclosed that on the complaint dated 11.04.2024 of the petitioner, FIR No. 106/2024, under Sections 385 and 120-B of IPC was registered at PS, Balh and investigation had been handed over to Sh. Dinesh Kumar, SDPO, Padhar.
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34. With regard to allegations levelled against ASP, qua the spot proceedings, an inquiry is stated to have been initiated which initially was entrusted to IPS Officer Sh. Tirumalaraju SD Varma. On his transfer, the inquiry was with Superintendent of Police, Mandi, H.P.
35. On registration of FIR No. 106/2024, two persons have been found involved and arrayed as accused. The voice sample of one of them has matched with the voice recorded by petitioner making ransom call.
36. It is also submitted in the reply that the petitioner has levelled many new allegations against ASP and others in the petition, which were never presented before the police and police had no occasion to check the veracity of such allegations.
37. It has also been confirmed by respondents No. 1 to 3 from perusal of the video clips allegedly obtained by petitioner from the HD of CCTV installed in Om Sai Bhojnalaya, Kalkhar that two accused persons, namely Raj Kumar and Deepak, in FIR No. 106/2024 were visible present at Om Shanti Bhojnalaya 19 Neutral Citation No. ( 2024:HHC:14597 ) and were the same persons who were the accused of similar allegations in FIR No. 70/2024 of Police Station Balh, registered on the complaint of Balbir Singh Pathania, whose son was allegedly involved in case FIR No. 69/2024, dated 2024 of Police Station Sadar Mandi.
38. We have heard learned counsel for the parties and have also gone through the record.
39. Noticeably, the petitioner approached this Court by way of instant petition on 19.10.2024. By way of interim order dated 23.10.2024, the Superintendent of Police, Mandi, was directed to procure and preserve the call details and tower location of certain mobile phones, as prayed for, in the petition. Some modification was made in the order dated 23.10.2024 on 05.11.2024 in respect of a couple of mobile phone numbers. The instant petition was also ordered to be listed along with CWP No. 4630 of 2024, which is the petition filed by Balbir Singh Pathania, whose son named Rishi Raj along with another person was alleged to have been found in possession of 12.66 grams of Chitta/Heroin in a case registered vide FIR No. 20 Neutral Citation No. ( 2024:HHC:14597 ) 69/2024, dated 03.04.2024, at Police Station Sadar, Mandi. In CWP No. 4630 of 2024 also the petitioner therein had sought inquiry into the allegations of extortion of money on the pretext of involvement of his son in NDPS case.
40. The Superintendent of Police, Mandi, was required to remain present before this Court on 06.11.2024, when the matter was heard and reserved for judgment. It transpired later that the reply of official respondents would be required for just and proper adjudication of the case. Accordingly, the matter was listed on 12.11.2024 and an opportunity was afforded to the respondents to file reply. In pursuance thereto, reply has been filed by respondents No. 1 to 3.
41. During the course of hearings of the case, we were also shown the video clips from CCTV footage allegedly collected by the petitioner from the Om Shanti Bhojnalaya.
42. On 27.11.2024, the following order was passed by this Court:-
21
Neutral Citation No. ( 2024:HHC:14597 ) "Learned counsel for the petitioner has handed over certain photographs in the Court, which are made part of the case file.
The Director, SFSL, Junga is directed to expedite the report regarding the identification of the person, as is seen in the footage dated 31.3.2024 from 04:41:48 PM onwards upto 4:42:01. The said report be made available on or before the next date of hearing.
List on 3.12.2024."
43. On 03.12.2024, learned Advocate General on instructions apprised the Court that in pursuance to order dated 27.11.2024, though the necessary records and material had been sent to SFSL Junga for requisite analysis but the complete analysis was required to take about six weeks. The matter was then reserved for judgment.
44. At the very outset we make it absolutely clear that we are not exercising extra ordinary writ or inherent jurisdiction to deal with the charges faced by Deepak, Kartar and Anurag in a trial before learned Special Judge in pursuance to FIR No. 60/2024 dated 1.4.2024 registered at PS Balh. The trial against said persons shall proceed unabatedly. We are only and 22 Neutral Citation No. ( 2024:HHC:14597 ) specifically dealing with certain specific aspects related with FIR 106/2024 dated 10.6.2004 registered under sections 385, 120-B IPC at PS Balh. Thus, any observations made herein shall not in any manner prejudice the rights available to prosecution or defence in the trial as per law.
45. As per petitioner he had made first complaint to SHO, PS Balh on 2.4.2024 with respect to extortion call received by him under the threat to implicate his son in a case under NDPS Act and second complaint to the SP Mandi on 5.4.2024. The official respondents have not denied having received such complaints but have stated that SHO PS Balh had received complaint from petitioner on 11.4.2024 and SP Mandi had received the complaint on 6.5.2024.
46. Admittedly, even the first complaint of petitioner disclosed commission of offence under section 385 IPC, but the FIR No. 106/2024, was registered at PS Balh on 10.6.2024, on the basis of first complaint of petitioner itself. According to official respondents first complaint of petitioner was received by SHO, PS Balh 23 Neutral Citation No. ( 2024:HHC:14597 ) on 11.4.2024, then what made them to wait till 10.6.2024 for registration of FIR, has remained unexplained. It gains importance in the peculiar facts of the case where the petitioner in his second complaint, which allegedly was received by SP Mandi on 6.5.2024, had raised serious questions on the conduct of ASP. It was specifically alleged by petitioner that he had seen ASP driving the car of Deepak immediately before the time when it was allegedly apprehended with Chitta near Baba Balak Nath temple, Banon and had thereafter interacted with him at the place of alleged recovery. He had further alleged that ASP at that time was wearing a track suit and a Himachali cap and had mask on the face.
47. The offence under section 385 IPC was a cognizable offence. In such circumstances we find a clear violation of the following mandate of a Constitutional Bench in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1:
"119. Therefore, in view of various counterclaims regarding registration or non- registration, what is necessary is only that the 24 Neutral Citation No. ( 2024:HHC:14597 ) information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the 25 Neutral Citation No. ( 2024:HHC:14597 ) information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which 26 Neutral Citation No. ( 2024:HHC:14597 ) preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 [Ed.: This correction is based on para 120.7 as corrected vide order in Lalita Kumari v. State of U.P., (2023) 9 SCC 695.] . While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time- bound and in any case it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks' time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be 27 Neutral Citation No. ( 2024:HHC:14597 ) mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
48. Looking back at facts, the police have booked two persons namely Raj Kumar and Deepak as accused persons in FIR 106/2024 PS Balh under sections 385, 120-B IPC. It is also admitted by the police that said Raj Kumar and Deepak are also found involved in similar offence vide FIR No. 70/2024 dated 12.04.2024 registered at PS Balh on the complaint of one Balbir Singh Pathania whose son named Rishi Raj was also alleged to have been caught with Chitta by the officials of PS Sadar Mandi on 2.4.2024 and FIR to that effect was registered on 3.4.2024 at PS Sadar Mandi.
49. Raj Kumar and Deepak accused in FIRs 106/2024 and 70/2024 both registered at PS Balh under sections 385 and 120-B IPC have also been admitted to be the persons seen with Honda Accord car No. HR-26AQ8818 outside Om Shanti Bhojnalaya Kalkhar along with Deepak, Kartar and Anurag on 31.3.2024. The same Honda Accord car, according to 28 Neutral Citation No. ( 2024:HHC:14597 ) police, was used by said Raj Kumar and Deepak while commission of offences registered vide FIR No.70/2024.
50. In above backdrop, even the police prima facie has concluded that Raj Kumar and Deepak were present along with Deepak, Kartar and Anurag at Om Shanti Bhojnalaya during day time on 31.3.2024 and on the same day they had committed the offence of extortion by calling petitioner demanding money under the threat of implication of his son in case under NDPS Act.
51. The police have not explained as to how Raj Kumar and Deepak had been aware about the future involvement of son of petitioner in offence under NDPS Act. Admittedly the extortion calls to the petitioner from Raj Kumar and Deepak had preceded the alleged recovery of contraband from the car of son of petitioner.
52. One thing is evidently clear that police have shown reluctance in probing the allegations against the ASP.
53. It has been alleged by petitioner that he had seen ASP driving the car of his son immediately before 29 Neutral Citation No. ( 2024:HHC:14597 ) the alleged apprehension of said car for commission of offence under NDPS Act. Even it is alleged that petitioner had seen ASP alighting from said car of son of petitioner. He has been identified to be the same person who is visible in video clips from CCTV footage allegedly obtained by petitioner from Om Shanti Bhojnalaya, Kalkhar of dated 31.3.2024 opening the door of car of the son of petitioner and driving it towards Ner Chowk.
54. Police has admitted that the ASP was present on the spot of alleged recovery of contraband from the car of the son of petitioner immediately before the time of said recovery. It has also been admitted that ASP had interaction with petitioner. Noticeably, police have not categorically ruled out the allegation that petitioner had seen ASP driving the car of his son. It has also not been ruled out that ASP was also present outside Om Shanti Bhojnalaya during afternoon of 31.3.2024. What was sensed by us during the hearings of the petition that no effort whatsoever was being made to investigate the above noticed angle. Rather, it was pursuant to orders of this Court that the police belatedly are stated to have 30 Neutral Citation No. ( 2024:HHC:14597 ) sent to SFSL the video clips for analysis and identity of ASP.
55. We are of the view that the reluctance shown by police to carry investigation to rule out all possible hypothesis more particularly the angle pointed out, rather alleged by petitioner is sufficient to infer absence of un biased investigations. The delay in lodging the FIR can also not be seen without suspicion.
56. It cannot be ignored that serious allegations with the backing of some kind of tangible material, as possible evidence, have been levelled against a senior police official of the district.
57. In our considered view this amounts to clear violation of fundamental right of victim under article 21 of the Constitution of India. It cannot be forgotten that beyond the legal ramifications, Section 385 IPC casts a long shadow on the psychological and emotional well- being of victims. The fear instilled by the threat of injury can leave lasting scars, necessitating a holistic approach to victim support and rehabilitation more 31 Neutral Citation No. ( 2024:HHC:14597 ) particularly when it relates to alleged involvement of the son of victim in serious offence(s) under NDPS Act.
58. The right of a victim under Article 21 of the Constitution, has been recognised even in the mandate of Constitutional Bench in State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 as under:
"Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
59. Hence, the right of a victim as enshrined under article 21 of the Constitution cannot be offered less value than that of the accused; for that will be antithetic to the provision.32
Neutral Citation No. ( 2024:HHC:14597 )
60. The police have to act dispassionately in a fair manner. Its conclusions have to be based on the evidence collected. In this case, since no independent evidence was collected, the conduct of police cannot be countenanced. In the system governed by rule of law, no one is above law. It is also trite that there is no exception to the fundamental right of life and liberty of a citizen of India except by adoption of due procedure of law.
61. We are not at all oblivious to the repeated cautions sounded with respect to limited and restrictive powers of constitutional courts to direct transfer of investigation to another investigating agency. Reference can be made to a few of the precedents.
(a) State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 "This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or 33 Neutral Citation No. ( 2024:HHC:14597 ) where such an order may be necessary for doing complete justice and enforcing the fundamental rights."
(b) Mithilesh Kumar Singh v. State of Rajasthan, (2015) 9 SCC 795.
12. Even so the availability of power and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court's satisfaction whether the facts and circumstances of a given case demand such an order. No hard-and-fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extraordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such 34 Neutral Citation No. ( 2024:HHC:14597 ) situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily, much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are commonplace when State Police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the Court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent.
62. We have already highlighted the strong evidence indicating gross portrayal of inadequacy by the state Police. The conduct displayed by the Police prima facie can also not be said to be un-biased. There are allegations against the senior police official. Having held violation of fundamental right of the victim at the hands 35 Neutral Citation No. ( 2024:HHC:14597 ) of state law enforcing agency and also to uphold right of discovery of truth, we find it to be a fit case to direct the Director General of Police Himachal Pradesh to transfer the investigation of case FIR No. 106/2024 dated 10.6.2024 registered under sections 385, 120-B IPC to the Superintendent of Police, Central Bureau of Investigation, Shimla, who is also directed to immediately register Crime report in the incident and to carry investigations thereafter to its logical end. The State Police through its DGP is further directed to provide all original records relating to matter in question to the CBI within three days.
63. The CBI shall take into consideration all the allegations levelled by petitioner by way of his complaints made to the State Police from time to time and also averments made in this petition besides any other information as may be required by it.
64. We also direct Principal Secretary Home to conduct an enquiry into the conduct of all concerned Police Officials particularly with respect to violation of 36 Neutral Citation No. ( 2024:HHC:14597 ) mandate in Lalita Kumari supra and report the compliance to this Court on 3.3.2025.
65. The instant petition is disposed of with directions as above.
66. All pending miscellaneous application(s), if any, shall also stand disposed of.
(Tarlok Singh Chauhan)
Acting Chief Justice
(Satyen Vaidya)
17th December, 2024 Judge
(sushma)