Jharkhand High Court
Tapati Paul vs The State Of Jharkhand on 27 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 146 of 2009
Tapati Paul ..... Petitioner
Versus
1. The State of Jharkhand
2. Director General of Police, Government of Jharkhand, Ranchi
3. Superintendent of Police (AHD/CBI), Ranchi
4. Central Bureau of Investigation, New Delhi ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner: M/s M. M. Pal (Sr. Adv.), Mahua Palit, Leena Mukherjee, Ruby Pandey For the Respondents: Mr. Ravi Kerketta, A.C to S.C (L&C)
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59/27.04.2018 The present writ petition has been filed for issuance of direction upon the Central Bureau of Investigation (C.B.I) to take up the investigation of U.D Case No. 11 of 2008 dated 08.10.2008 of Sector-IV Police Station, Bokaro Steel City.
2. The factual background of the case, as stated in the writ petition is that the son of the petitioner, namely, Joydeep Paul (now deceased) was working as a Senior Manager, CRM (M) at Bokaro Steel Plant, Bokaro, Jharkhand and he was residing in Quarter no. 7166, Sector IV-F, P.S- Bokaro Steel City, Bokaro, Jharkhand. On 07.10.2008, the petitioner got information that her son Joydeep Paul was in serious condition due to fatal accident. Having received the said information, the petitioner along with her husband and others rushed to Bokaro where they were informed that her son had committed suicide in the night of 06.10.2008. The petitioner along with others reached Quarter No. 7166, Sector- IV F where the deceased used to reside along with his wife Smt. Panchali Paul and a minor son, namely Sayantan Paul. Panchali Paul, the wife of the deceased, gave written information of the incident to the Officer-in-Charge, Sector-IV P.S, Bokaro Steel City on 08.10.2008.
3. As per the contents of the written report of Panchali Paul, on 06.10.2008 at about 9:30 PM, she asked the deceased to come alongwith her to a nearby Puja Pandal, but he told her to wait for some time. Thereafter, the deceased started having alcoholic drink. At about 11.00 PM, Smt. Panchali Paul told the deceased that she alongwith her son would be going to Puja Pandal. Thereafter, she returned from the Puja Pandal at about 12.30 A.M and knocked the door, 2 however, the deceased did not open the door. She thought that the deceased had drunk too much and as such she again went back to the Puja Pandal and stayed there for the whole night. In the morning, she returned home and knocked the door again, but the door was not opened. Thereafter, one person peeped inside the room with the help of a ladder and found that her husband was hanging with the ceiling fan through a bed sheet. On the basis of the information of Smt. Panchali Paul, U.D Case No. 11 of 2008 was lodged and the same was sent to the Court of the Sub-Divisional Officer, Chas Bokaro.
4. The husband of the petitioner made a representation before the Chairman of the Steel Authority of India Limited as well as the Director General of Police, Government of Jharkhand on 06.12.2008, and subsequently also highlighted that the investigation of U.D Case No. 11 of 2008 was not being done properly. He thus requested for a thorough investigation of the matter. Thereafter, the husband of the petitioner made another representation dated 02.02.2009 before the Superintendent of Police (AHD)/CBI, Ranchi requesting the CBI to look into the matter and take appropriate steps. However, the representations of the petitioner were not responded which gave rise to filing of the present writ petition.
5. Mrs. M. M. Pal, the learned Sr. counsel appearing on behalf of the petitioner, while arguing the writ petition, has insisted for referring the matter to the Central Bureau of Investigation by highlighting the following discrepancies in the investigation done by the State Police:-
(i) The ligature used for hanging was the most vital thing for investigating a case of death due to hanging only which could have proved the probability or improbability of ante-mortem preparation for death due to hanging, but the investigating officer did not make any seizure thereof. When the petitioner reached the quarter of the deceased at Bokaro, she found one piece of ligature hanging from the ceiling fan and the other piece lying on the floor.
Those two pieces of the ligature (a bed sheet of double size) with blood stains were not seized by the police. The petitioner had kept those pieces with herself. Subsequently, during the pendency of this case, the same were handed over to the investigating agency. 3
(ii) The police had not examined all the important witnesses including the close friends of the deceased either during search operations or during inquest. No effort was made to examine the witnesses in presence of the parents of the deceased.
(iii) The I.O neither recorded the statement of the informant nor of any other person acquainted with the deceased as well as the persons of the locality who had immediately reached the place of occurrence.
(iv) The I.O neither drew any sketch map of the place of occurrence nor seized the mobile phones of the deceased and his wife, to collect informative statements from the mobile company(ies) to ascertain as to with whom the deceased had talked after 12 midnight on 06.10.2008 and with whom the informant had talked on 06.10.2008 onward.
(v) As regards the post-mortem report, the learned Sr. counsel highlighted the following infirmities:-
(a) It was found that the feet of the deceased were not clearly off the floor and his knees were not flexed, but the doctor's opinion on that point is silent.
(b) Contents of the stomach were not examined to opine about the time of death.
(c) In the post-mortem report, the period of death has been shown as 40 Hrs. before the post-mortem time. The post-mortem was conducted at 3.35 PM on 08.10.2008, and if the opinion of the doctor is taken to be true, the death took place between 11 PM -
11.30 PM on 06.10.2008 but not later than 11.30 PM, which is not the correct fact.
(d) Cervical vertebrae were not examined to find out whether there was any fracture or not. Moreover, there is no opinion regarding venous congestion. No ligature mark was found around the neck above thyroid cartilage between the larynx and the chin. The neck was not found stretched and elongated. No petechial haemorrhage was found on the face. The eyes were not open, the pupils were not dilated and the tongue was not swollen and blue at the base.
(e) No saliva was found to be dribbling or to have dribbled out of an angle of the mouth down on the chin and the chest which could have otherwise indicated a clear ante-mortem sign of death by hanging while the deceased was alive.
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(f) No opinion regarding turgescence of genital organs was given. No seminal fluid at Urethral Meatus was found.
(g) No urine or faeces was found. There was no petechial sign in the Rectal Mucosal areas.
(h) The viscera was not sent for the required test.
(i) No examination regarding venous congestion and cervical vertebrae was done to find out whether there was any fracture or not. The time of death is not correct as the deceased made phone calls after midnight.
6. It is further submitted that two mobile phones bearing nos. 09798501268 and 09431732787 belonging to the deceased as well as the mobile phone of the deceased's wife Smt. Panchali Paul bearing No. 09430152373 were not seized, though these were the most important articles for the investigation of the death of the petitioner's son. It is further submitted that as per the photograph retained by the Officer-in-Charge, Sector-IV Police Station, Bokaro Steel City, it was seen that the new bed cover was used for hanging purpose which was not even seized, rather it was left in the said quarter (house), which was kept by the petitioner. The said report is also silent on the point that the feet of the deceased were not clearly off the ground and his knees were not flexed. It is further submitted that Section 174 of the Cr.P.C, 1973 confers power to the police to enquire into and report on the case of suicide etc., and the police is required to immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests and to proceed to the place where the body of the deceased is lying, and there, in presence of two or more respectable inhabitants of the neighbourhood, is required to make investigation and draw up a report of the apparent cause of death describing such wounds, fractures, bruises and other mark of injury as may be found on the body and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. However, in the present case, the procedure for proper investigation was not followed as neither the Executive Magistrate made any inquest in spite of the mandatory provisions of Sections 174 & 176 of Cr.P.C, 1973 nor the police requisitioned the Executive Magistrate to conduct 5 the inquest. The prime witness was not examined either by the Executive Magistrate or by the Investigating Officer. Thus, the proper investigation was not done in this case.
7. The learned Sr. counsel for the petitioner empathetically submitted that October 6, 2008 was the day of "Saptami" (Durga Puja). On that day, the deceased had talked to his parents through his mobile phone No. 9798501268 in the night hours after 10 PM and he had also talked to some persons of Bokaro known to him after 12 midnight through the said mobile phone. The deceased was found quite happy, pleased and joyful while talking to the petitioner, and therefore, it is not believable that soon thereafter, he would commit suicide. Even the viscera of the deceased were not sent for forensic examination in time. In support of her contentions, the learned Sr. counsel for the petitioner has put reliance on the following judgments:-
(i) Court On Its Own Motion Vs. State Of Jharkhand reported in 2007 (1) JLJR 571
(ii) 2014 (1) JBCJ SC 415
(iii) Joshinder Yadav Vs. State of Bihar reported in 2014 (4) SCC 42
(iv) State of Gujarat Vs. Kishanbhai etc. reported in 2014 (5) SCC 108
8. Per-contra, the learned counsel appearing on behalf of the respondent- State of Jharkhand submits that after perusing the written information of the wife of the deceased, namely Panchali Paul, and looking to the place of incident, the case prima facie appeared to be of suicide and as such U.D Case No. 11 of 2008 was registered. The said written report was also signed by the father and the brother of the deceased. The investigating officer recorded the statements of the neighbours of the deceased who stated that the deceased was a permanent employee of Bokaro Steel Plant and on 06.10.2008, he committed suicide by hanging himself with the ceiling fan through a bed sheet tied on his neck. It is further submitted that the post-mortem examination of the dead body of the deceased was conducted by Dr. Ram Naresh Prasad at Sub- Divisional Hospital on 08.10.2008 who opined that the cause of death was asphyxia due to hanging. Thus, having taken into consideration the written 6 report of Panchali Paul, the statements of neighbours and the opinion of the doctor as expressed in the post mortem report, the investigating officer submitted the final report on 29.07.2010 under the supervision of senior police officers. It is further submitted that after the filing of the present writ petition, the case was reopened, but the Superintendent of Police, Bokaro also did not find any irregularity and/or illegality in the investigation thererin. It is also submitted that initially, one Sri Fransis Indwar, Sub-Inspector was the investigating officer of the case, who had collected and preserved the viscera, however, he was killed in a maoist attack and hence the delay caused in sending the viscera to the forensic laboratory was not deliberate.
9. Heard the learned counsel for the parties and perused the relevant materials available on record. It transpires that after the filing of the present writ petition, this Court continued to monitor the case. Vide order dated 19.04.2010, the Superintendent of Police, Bokaro was directed to go through the record and pass necessary orders so that a fair, proper and impartial investigation could be done.
10. In compliance of the order dated 19.04.2010, the Superintendent of Police, Bokaro supervised the matter and filed the counter affidavit dated 02.02.2012 stating that initially the investigation was taken up by the Sub- Inspector Francis Indwar and after his death, the same was handed over to the Assistant Sub-Inspector Narendra Kumar Jha vide order No. 1934/V.O dated 11.11.2009 who perused the written report of Panchali Paul which was duly witnessed by the father of the deceased Sri Dipajyoti Paul, brother of the deceased Rajdip Paul and maternal uncle of the deceased Manick Taran; and thereafter, he prepared the death observation report. He also visited the place of occurrence and recorded the statements of the witnesses namely Krishna Kant Sharma, Kailash Murty, J.P. Singh, Sanjay Panda, Manas Sarkar residing in the vicinity of the place of occurrence who all stated that the deceased had committed suicide on 06.10.2008 by hanging himself with the ceiling fan by tying a bed sheet on his neck. It has been further stated in the counter affidavit 7 that the post-mortem examination of the deceased was conducted on 08.10.2008 by Dr. Ram Naresh Prasad who also found the cause of death as asphyxia due to hanging. The charge sheet has been submitted in this case on 29.07.2010 under the supervision of the senior police officers. Thus, the Superintendent of Police did not find any irregularity and/or illegality in the investigation.
11. The matter again came before this Court on 27.03.2012 and it was observed in paragraph 4 of the order as under:-
"On being satisfied with the post mortem report that it was a case of suicide, the concerned investigating officer stopped the investigation and submitted his report. But till date, the reason behind the death of Joydeep Paul has not been surfaced. It is true that the Police did not take steps nor interrogated the near and dear as well as co- employees. The call details of the Mobile phone of the deceased was also not verified. In this backdrop of the case, I feel that further investigation is required to find out the truth behind the death of the deceased. Therefore, the officer incharge of the Police Station concerned is directed to do further investigation to find out the truth behind the death of the deceased Joydeep Paul. The Superintendent of Police concerned shall supervise the investigation himself and communicate the progress to this Court within eight weeks."
12. Thereafter, the Superintendent of Police, Bokaro vide letter dated 02.07.2012, directed the concerned officer to reinvestigate the U.D Case No. 11 of 2008 to find out the true reason of death. Accordingly, the U.D Case No. 11 of 2008 was reinvestigated and the statements of two witnesses, namely Satyendra Kumar Singh and Sanjay Panda were recorded but both the witnesses did not disclose the reason of death. Subsequently, the Superintendent of Police, Bokaro ordered the investigating officer of the case along with the Assistant Sub-Inspector N.K Jha to go to Silchar (Assam) for further investigation of the case. Thereafter, the investigating officer went to Silchar (Assam) and recorded the statements of Deep Jyoti Paul (the father of the deceased), Tapti Paul (the petitioner) on 07.10.2012 and the statements of Devraj Dutta (brother-in-law of the deceased), Papadi Dutta (wife of Devraj 8 Dutta) and Panchali Paul (wife of the deceased) on 08.10.2012, 09.10.2012 & 10.10.2012 respectively. The Superintendent of Police, Bokaro again reviewed the U.D Case No. 11 of 2008 and instructed the Officer-in-Charge to go to Silchar (Assam) for further investigation, and thereafter, the statements of Deep Jyoti Paul (the father of the deceased), Devraj Dutta (brother-in-law of the deceased) and Tapti Paul (mother of the deceased-the petitioner) were again recorded on 31.05.2013. The statement of Panchali Paul, wife of the deceased, was recorded on 01.06.2013. The Superintendent of Police, Bokaro reviewed the case on 08.06.2013 and raised the following points which needed investigation:-
(a) Opinion of the Civil Surgeon on post mortem report should be sought in respect of the points raised by the deceased's family members.
(b) The seized viscera should be sent to forensic laboratory for forensic examination.
(c) The call details including CDR of the mobile phones of the deceased and his wife should be obtained. The statements of the persons who talked to the deceased and his wife on or before the alleged incident should also be recorded.
(d) The bed sheet used for hanging should be sent to forensic laboratory, Ranchi for examination of the blood stains on the same.
13. The matter was again heard by this Court on 10.05.2013 and it was observed that the line of investigation taken up by the investigating agency was not in the right track as they were moving towards the same direction in which they had made the investigation previously.
14. The Superintendent of Police, Bokaro again reviewed U.D Case No. 11 of 2008 on 08.06.2013 and raised some points for investigation and thereafter the viscera and bed sheet were sent to forensic laboratory for examination. The Deputy Superintendent of Police, Bokaro submitted the progress report in connection with U.D Case No. 11 of 2008 vide office Memo No. 825/City dated 10.07.2013 stating that based on the opinion expressed by the doctor in the post-mortem report and the statements of the witnesses recorded by the investigating officer during the course of investigation as well as the circumstances of the case, the cause of death of the deceased Joydeep Paul 9 was asphyxia due to hanging and the reason of death was probably excessive consumption of alcohol and family disputes.
15. The matter was again listed before this Court on 09.01.2015 wherein it was observed that as per the report of the F.S.L, the human blood was detected on the piece of cloth (bed sheet) and the blood group was identified as 'AB' and accordingly the investigating officer was directed to verify the blood group of the deceased as well as his family members.
16. Pursuant to the order dated 09.01.2015, the respondents filed the counter affidavit stating that the blood groups of the deceased Joydeep Paul, his son Shayantam, father Dipajyoti Paul, mother Tapti Paul and brother Rajeep Paul are A+ve and his wife's (Mrs. Panchali Paul) blood group is O+ve. It has further been stated that none of the blood groups of the close family members is matching with the blood group of the human blood detected on the piece of cloth (the part of bed sheet) being 'AB' as per the FSL report.
17. The stand of the respondent-State is that the wife of the deceased namely Panchali Paul in the written report has stated that her husband committed suicide by hanging and the said written report was also witnessed by the father (D.J Pal), the brother (Rajdip Pal) and the maternal uncle (Manick Taran) of the deceased. In the post-mortem report also, the doctor has opined that the cause of death is asphyxia due to hanging. After the occurrence, the police had visited the place of occurrence and had recorded the statements of the neighbours of the deceased and they had also stated that the deceased committed suicide by hanging himself with the ceiling fan tying bed sheet on his neck.
18. I have also perused the provisions of Sections 174 and 176 of the Cr.P.C, 1973 which provide the procedure for enquiry in the cases of suicide. The said provisions read thus:-
"174. Police to enquire and report on suicide, etc. -
(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an 10 accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall made an investigation, and draw up a report of apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate. (3) When -
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless. (4) The following Magistrates are empowered to hold inquest, namely, any District Magistrate or Sub-
divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State government or the District Magistrate.
176. Inquiry by Magistrate into cause of death. -
(1) When any person dies while in the custody of the police or when the case is of the nature referred to in Clause (i) or Clause (ii) of Sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquest shall, and in any other case mentioned in Sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
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(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.
Explanation. - In this the expression "relative" means parents, children, brothers, sisters and spouse.
(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing."
19. Section 174 of the Cr.P.C, 1973 provides that whenever an Officer-in- Charge of the Police Station receives information that a person has been killed in an accident or has died under the circumstances arising out of a reasonable suspicion, he shall immediately give intimation to the nearest Executive Magistrate who is empowered to hold inquest, and thereupon, he shall proceed to the place where the body of such deceased person is lying, and there, in presence of two or more respectable inhabitants of the neighbourhood, shall make the investigation and draw up a report of apparent cause of death describing such wounds, fractures, bruises and other marks of injuries, as may be found on the body and stating in what manner, or by what weapon or instrument (if any), such marks appeared to have been inflicted. The said report shall be signed by the police officer and the other witnesses and the same shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate. Further, Section 176 of the Cr.P.C, 1973 contemplates about the inquiry by the Executive Magistrate, who is empowered to conduct inquiry into the cause of death either instead of, or in addition to the investigation held by the police officer. The Executive Magistrate, on receipt of the intimation from 12 the Officer-in-Charge of the police station, shall go to the spot and hold inquest as he is empowered to do so and record the evidence and in order to discover the cause of death of the deceased, such magistrate may cause the body to be disinterred and examined. The provisions of these Sections also provide that during the course of inquiry, the magistrate shall inform the relatives of the deceased, namely, parents, children, brothers, sisters and spouse and shall allow them to remain present at the time of the inquest/enquiry.
20. The procedure prescribed under Section 174 of the Cr.P.C, 1973 is mandatory in nature, and thus, it was the duty of the police officer to inform the nearest Executive Magistrate about the death caused due to suicide, and thereafter the police officer should have examined the matter and prepared a report about the apparent cause of death and the wounds found in the body of the deceased (if any) with related details. The report prepared by the police officer should have been signed and sent by him to the District Magistrate or the Sub-Divisional Magistrate.
21. Further, as per Section 176 of the Cr.P.C, 1973, in a case referred under sub-section (1) of Section 174 of the Cr.P.C, 1973, the nearest Magistrate is empowered to hold an inquiry either instead of, or in addition to the investigation held by the police officer, about the cause of death. However, in the present case, though the death was found prima facie to be a case of suicide, yet the investigating officer did not inform the nearest Executive Magistrate for enquiry despite the said action being mandatory under Section 174 of the Cr.P.C. The conduct of the investigating officer shows that he proceeded to investigate the case in a casual manner without following the due procedure prescribed under the law. The learned counsel appearing on behalf of the respondents has tried to justify the action of the investigating officer by contending that the wife of the deceased had submitted the written report stating that the deceased committed suicide by hanging himself and the said report was also witnessed by the father, the brother and the maternal uncle of the deceased. The said contention of the learned counsel for the respondents is 13 not acceptable as it was the duty of the investigating officer to follow the due procedure prescribed for investigation of the cases of suicide etc. The investigating officer neither tried to find out the reason of death nor made any effort to find out other reasonable possibilities of the cause of death. The other deficiency which transpires in the investigation of this case is that the investigating agency neither preserved the viscera in proper manner nor the same were sent to the forensic laboratory in time.
22. I have perused the relevant procedure prescribed for the Medico Legal Autopsy as contained in Modi: A Text Book of Medical Jurisprudence and Toxiicology, 24th Edition, Reprint 2012, Section 1: Medical Jurisprudence, Chapter 12, Post-Mortem examination, last paragraph of Page 309, which is reproduced as under:
(III) PERSERVATION OF VISCERA AND OTHER ARTICLES IN CASES OF SUSPECTED POISONING AND RULES FOR TRANSMITTING THE CHEMICAL EXAMINER AND FORENSIC SCIENCE LABORATORY In fatal cases of suspected poisoning, the material should be preserved for chemical analysis in clean, wide-mouthed, white glass bottles, fitted with glass stoppers, are of about one litre capacity and have serial numbers etched into the glass of both the bottles and of the stoppers. These are issued to the medical officers from the Chemical Examiner's office.
23. In the present case, it has been noticed that the viscera of the deceased were kept in the plastic jar and the same were sent to the forensic laboratory for examination after more than 4 years and 9 months from the date of death, which is a serious lapse on the part of the investigating agency.
24. I have also perused the judgments cited by the learned Sr. counsel for the petitioner as well as the other relevant judgments of the Hon'ble Supreme Court wherein the guidelines for transferring the cases to the CBI have been elucidated.
25. In the case of Joshinder Yadav Vs. State of Bihar reported in (2014) 4 SCC 42, the Hon'ble Supreme Court has held as under:-
"25. We must note that this is the third case which this Court has noticed in a short span of two months 14 where, in a case of suspected poisoning, viscera report is not brought on record. We express our extreme displeasure about the way in which such serious cases are dealt with. We wonder whether these lapses are the result of inadvertence or they are a calculated move to frustrate the prosecution. Though the FSL report is not mandatory in all cases, in cases where poisoning is suspected, it would be advisable and in the interest of justice to ensure that the viscera is sent to the FSL and the FSL report is obtained. This is because not in all cases there is adequate strong other evidence on record to prove that the deceased was administered poison by the accused. In a criminal trial the Investigating Officer, the Prosecutor and the Court play a very important role. The court's prime duty is to find out the truth. The Investigating Officer, the Prosecutor and the Courts must work in sync and ensure that the guilty are punished by bringing on record adequate credible legal evidence. If the Investigating Officer stumbles, the Prosecutor must pull him up and take necessary steps to rectify the lacunae. The Criminal Court must be alert, it must oversee their actions and, in case, it suspects foul play, it must use its vast powers and frustrate any attempt to set at naught a genuine prosecution. Perhaps, the instant case would have been further strengthened had the viscera been sent to the FSL and the FSL report was on record. These scientific tests are of vital importance to a criminal case, particularly when the witnesses are increasingly showing a tendency to turn hostile. In the instant case all those witnesses who spoke about poisoning turned hostile. Had the viscera report been on record and the case of poisoning was true, the prosecution would have been on still firmer grounds.
26. Having noticed that, in several cases where poisoning is suspected, the prosecuting agencies are not taking steps to obtain viscera report, we feel it necessary to issue certain directions in that behalf. We direct that in cases where poisoning is suspected, immediately after the post-mortem, the viscera should be sent to the FSL. The prosecuting agencies should ensure that the viscera is, in fact, sent to the FSL for examination and the FSL should ensure that the viscera is examined immediately and report is sent to the investigating agencies/courts post haste. If the viscera report is not received, the concerned court must ask for explanation and must summon the concerned officer of the FSL to give an explanation as to why the viscera report is not forwarded to the investigating agency/court. The criminal court must ensure that it is brought on record."
26. In the case of State of Gujarat Vs. Kishanbhai Etc. reported in 2014 (5) SCC 108, the Hon'ble Supreme Court has held as under:- 15
"22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.
23. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or 16 temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."
27. In the case of State of West Bengal Vs. Committee for Protection of Democratic Rights, reported in (2010) 3 SCC 571, the Hon'ble Supreme Court has held as under:-
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. 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 where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a 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."
28. In the case of Minor Irrigation & Rural Engg. Services, U.P. Vs. Sahngoo Ram Arya reported in (2002) 5 SCC 521, the Hon'ble Supreme Court has held as under:-
17
"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause. This Court in the said judgment at paragraph 174 of the Report has held thus:
"174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'LIFE' and 'LIBERTY' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21."
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 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 "its" and "buts" and thought it appropriate that the inquiry should be made by 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."
29. In the case of State of Punjab Vs. Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770, the Hon'ble Supreme Court has held as under:-
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"74. This Court in Disha v. State of Gujarat &Ors., (2011) 3 SCC 337, after considering the various judgments of this Court, particularly, in VineetNarain&Ors. v. Union of India &Anr., AIR 1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661; Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India, (2006) 6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat &Ors., AIR 2010 SC 3175;
and Ashok KumarTodi v. KishwarJahan&Ors., (2011) 3 SCC 758; held that the court can transfer the matter to the CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State Authorities like high police officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.
75. 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 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."
30. Learned Division Bench of this Court in the case of Court On Its Own Motion Vs. State Of Jharkhand & Ors. reported in 2007(1) JLJR 571 has held thus:-
"25. Above observations made by the Supreme Court cited supra would in brief give the following guidelines for the transfer of investigation to the Central Bureau of Investigation:
(i) The power of the High Court under Article 226 of the Constitution to direct the investigation by CBI cannot be disputed, but the said power can be exercised only in case where there is sufficient material to come to a prima facie conclusion that there is a need for such an investigation. Therefore, the direction to direct the inquiry by CBI can only be done if the High Court, after considering the 19 materials on record, comes to a conclusion that such material does disclose a prima facie case calling for investigation by CBI;
(ii) The High Court can hand over the investigation to CBI only on being prima facie satisfied from the circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed that the statutory agency of the State cannot be able to discharge its function of investigation fairly and impartially.
(iii) There is a residuary jurisdiction left in the Court to give direction for transfer of investigation by the State Police to the CBI when it is satisfied that the requirements of law are not being complied with and the investigation is not being conducted properly or with a promptitude.
(iv) If a prima facie case was made out for the transfer of investigation to C.B.I., the High Court cannot decline to exercise its extra ordinary jurisdiction under Article 226 of the Constitution by merely turning it down in limine. When the High Court takes a view that the authorities, whose acts were called in question, it acted improperly, the High Court shall exercise its jurisdiction to order for the investigation by the CBI to do complete justice in the matter and to instill confidence in the public;
(v) There cannot be any doubt that in appropriate cases, the High Court can issue mandamus of that nature. It is true that in most of the cases, the similar orders were passed by the Supreme Court, but that cannot be a stumbling block before the High Court in exercise of its writ jurisdiction. The moot question is whether this case is appropriate case in which such a direction could be issued. In SampatLal Case AIR 1985 SC 195 it has been specifically observed that such an order can be made by the High Court when it is prima facie satisfied that the investigation conducted is not proper or done with a promptitude."
31. In view of the aforesaid judgments, the legal position can be summarized to the effect that the High Court should exercise its Constitutional powers conferred under Article 226 for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases such as: where high ranking State authorities are involved or the accusation itself is against the top officials of the State investigating agency thereby allowing them to influence the investigation, and further if it seems so necessary to do justice and to instill confidence in the public, or where the investigation is prima facie found to be tainted/biased.
32. In the present case, none of the officials of the State investigating 20 agency have been prima facie found involved in influencing the investigation, rather it is a case in which the investigating agency proceeded to investigate the case in a casual/lethargic manner with a preconceived notion and presumption that it is a clear case of suicide.
33. Now the position is that as per the report of the Forensic Laboratory, the viscera of the deceased have been found decomposed, and thus, one of the valuable evidences got destroyed due to the lethargic attitude of the investigating agency. The blood sample taken from the bed sheet has been found to be human blood of group 'AB' whereas the deceased and his other family members have different blood groups, which raises a question regarding the nature of death of the deceased. However, the said bed sheet was not seized by the police from the place of occurrence, rather the same was seized from the possession of the petitioner on a much later date. The CDR of the mobile phones of the deceased and of the informant could not be obtained from the mobile companies as the same were not asked by the State Police in time. Under the aforesaid circumstances, even if the case is referred to the CBI, it will not serve any useful purpose, as most of the valuable evidences capable of revealing the truth behind the unnatural death of the petitioner's son have got destroyed by now. Hence, the next aspect for consideration in the present case is as to what order can be passed to meet the ends of justice.
34. On perusal of the record, it transpires that U.D Case No. 11 of 2008 was lodged on the basis of the information of Panchali Paul that her husband committed suicide by hanging himself with a ceiling fan. The police investigated the case and submitted its final report. However, the petitioner was not convinced with the final report of the police and as such she filed the present writ petition for referring the matter to the CBI alleging that the State investigating agency did not carry out the investigation properly as was required under law. By the order of this Court, the investigation was reopened and CDR of the mobile phone No. 9798501268 was obtained wherein it was found that on the date of the alleged occurrence at about 11.00 PM to 12.00 midnight, the 21 deceased had talked to his friend, namely Jaideep Paul at Culcutta. Jaideep Paul, in his statement, admitted the said fact and disclosed that the deceased had asked him to come to Bokaro where they would have fun. It was also found that at about 00.17 hours, the deceased had talked to one Shankar Prasad Yadav, who was the Chargeman at BSL Plant in relation to some technical fault in the plant machinery. However, so far as the CDR details of the mobile phones of the deceased and of Panchali Paul are concerned, the same could not be collected, as by the time the Investigating Officer sought CDR details from the concerned mobile company(ies), the case was more than one year old, and as such, the mobile company(ies) expressed their inability to provide the same.
35. During the re-investigation, the police recorded the statement of Manas Sarkar, a family friend of the deceased, who stated that on the date of the occurrence, he along with his family had gone to the house of the deceased to celebrate the birthday of the son of the deceased, and thereafter, all except the deceased went to see Durga Puja Pandals. On returning back home, Panchali Paul found the main door of the house closed and then she and her son came to his house and stayed there till the next morning. When the door was opened even in the morning, they peeped through the window and found that the deceased was hanging with a ceiling fan. During the said re-investigation, the police found that the deceased was a habitual drinker and, on the date of the incident also he had consumed liquor. The police, further, found that the deceased and the informant used to quarrel with each other due to the drinking habit of the deceased.
36. The entire investigation done by the police would suggest that initially when the police got the information about the unnatural death of the deceased, the procedures laid down under Sections 174 & 176 of the Cr.P.C were not followed, and the case was casually investigated merely relying upon the statement of the informant. Even if it is assumed that the petitioner and others had not raised any suspicion regarding the manner of death of the deceased, the investigating officer was duty-bound to perform his duty in accordance with 22 law. Due to his lethargic approach, the valuable evidences either got destroyed or came under suspicion by efflux of time. Moreover, despite the direction of this Court for reinvestigation of the matter, the suspicion cannot possibly be culled out, as the evidences were not collected by the investigating agency by following the due procedure prescribed under the law.
37. It should be pointed out at this juncture that especially in the case of suicide, it is imperative for the investigating agency to disabuse its mind from arriving at a tentative conclusion that the death was suicidal in nature. This however does not mean that after proper investigation the investigating agency may not reach the same conclusion. What is intended to be emphasized here is that the conclusion should be based on proper collection of the evidence in the manner prescribed in the Code of Criminal Procedure, 1973. There are aspects which militate against the theory of suicide. Normally one would not commit suicide unless there are strong and compelling reasons for it. Ordinarily there has to be a very pressing motive behind every case of suicide.
38. Though the petitioner being the mother of the deceased is a natural/real victim of the case, cannot be truly compensated as she has lost her son at a relatively young age, yet to make the investigating agency realize that it should not be repeated in future, it seems necessary that appropriate action should be taken against the erring officer(s) who are responsible for such an imprecise and casual investigation.
39. The facts and circumstances of this case also prompts this Court to find out some solution to curb the inaction or collusive attitude of the subordinate police officers in the cases of suspicious death. It has been seen that invariably in prima facie cases of unnatural death, the blood samples of the deceased or the accused are not properly collected and preserved to be matched with the blood found on the articles like garments, means of offence, etc. Moreover, in the cases of suicide, the clues available at the spot in the form of hair, finger prints, foot-prints, etc. are also not collected and sent for forensic examination in all cases to discover the truth. The doctors posted in the casualties and 23 emergency wards of the hospitals are not given proper orientation as to which important details should be recorded in the medical report to be prepared by them. In many such cases, the doctors conducting autopsies do not thoroughly examine the injuries found on the body of the deceased to match those with the articles used in the commission of offence. Proper arrangements are still lacking for prompt analysis of the viscera, etc.
40. Thus, this Court is of the considered view that the investigations in the cases of suspicious death should be scientific instead of old-fashioned personalized investigations by subordinate police officers which gives ample chance for manipulations and paddings in criminal cases seriously eroding the credibility of the police as a result of which even the Courts have started viewing the evidences collected by the prosecution with circumspection. The credibility of investigating agencies has to be saved by improving the standards of investigation. One way to improve the situation is to have more emphasis on scientific investigation by associating scientists in the process of investigation of the cases of suspicious death so that the truth is discovered leaving no shadow of doubt.
41. In view of the discussions made herein above and in the facts and circumstances of the case, the present writ petition is disposed of with the following directions:-
(i) The Director General of Police, Jharkhand shall personally look into the matter and initiate administrative proceeding against the police personnel who were involved in the investigation of this case and fix responsibility upon the erring ones.
(ii) The Government of Jharkhand through the Home Secretary is directed to pay compensation of Rs. 5,00,000/- (Rupees five lakhs) to the petitioner being the natural victim of the case who has suffered immense mental agony over the years due to casual investigation by the State investigating agency.
(iii) The Home Secretary, Government of Jharkhand shall issue 24 appropriate direction to all the investigating officers not to deal with the cases of unnatural death in causal manner and to make endeavour to find out all the probabilities of death. In that course, they shall follow the procedures prescribed under the law as well as to give more emphasis on scientific investigation. Especially in the prima facie cases of suicide, the investigating officer shall disabuse his mind of the tentative conclusion that the same is of suicide. He shall also find out the motive of committing suicide.
(iv) The Home Secretary, Jharkhand is also directed to ensure that there should be periodical orientation programme for the investigating officers as well as the doctors conducting post-mortem examination/autopsy so as to guide them regarding the manner/procedure in which, the cases of unnatural death should be dealt with, and if necessary, to issue the appropriate circulars in this regard.
(RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 27.04.2018 Satish/A.F.R