Allahabad High Court
Seema Singh vs State Of U.P. And 5 Others on 25 February, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- CRIMINAL MISC. WRIT PETITION No. - 23368 of 2018 Petitioner :- Seema Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rajesh Pratap Singh Counsel for Respondent :- G.A.,Gyan Prakash Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Custodial death of an undertrial in a District Jail when he was allegedly kept in High Security Barack, Cell No.2 has been questioned. Prem Prakash Singh @ Munna Bajrangi was murdered by a life convict and that too, within less than 12 hours of said undertrial brought to District Jail, Baghpat from District Jail, Jhansi. Almost a dozen bullets were pumped in his body. This incident has caused loss of confidence to the wife of late undertrial upon Police Administration in the State of U.P. and has given rise to this writ petition.
2. This writ petition under Article 226 of Constitution of India has been filed by Seema Singh W/o of late Prem Prakash Singh @ Munna Bajrangi (hereinafter referred to as 'Slained Undertrial') with a prayer to issue a writ of mandamus commanding Central Bureau of Investigation (hereinafter referred to as 'CBI') (respondent-6), to conduct enquiry/investigation regarding killing of petitioner's husband in District Jail, Baghpat on 9th July, 2018. She has further sought a writ of mandamus commanding that till investigation is transferred to CBI (respondent-6), entire record pertaining to Case Crime No. 377 of 2018 registered at Police Station-Khekra, District-Baghpat on 9th July, 2018 be sealed.
3. Facts in brief, as disclosed in writ petition, are that, petitioner's husband was implicated in the murder of Krishna Nand Rai, which occurred on 29th November, 2005. Petitioner's husband was arrested in October 2009 and since then he was in jail, till he was murdered in District Jail, Baghpat on 9th July, 2018. Petitioner's husband contested Assembly Election in 2012 as joint candidate of Apna Dal and Peace Party, from Madiyahu Seat, District-Jaunpur. He was opposed by one Dhananjay Singh, who is having a long criminal history and had turned a politician. Petitioner also contested unsuccessfully Assembly Election in 2017 as an independent candidate from Madiyahun, District-Jaunpur. Her husband was planning to contest General Parliamentary Election from Jaunpur Constituency. Political opponents of petitioner's husband hatched a conspiracy to eliminate him. In furtherance thereof one Pushpjeet Singh, who was brother in law of petitioner's husband, was murdered on 5th March, 2016 at Vikas Nagar, Lucknow. In respect thereof, First Information Report (hereinafter referred to as 'FIR') being Case Crime No. 0057 of 2016 was registered at Police Station-Vikas Nagar, District Lucknow. Pushpjeet Singh was an advocate and used to do pairvi of the cases of petitioner's husband. Thereafter, Mohammad Tariq started doing pairvi of cases pertaining to petitioner's husband pending in different courts. He was also murdered on 1st December, 2017. In respect thereof, FIR being Case Crime No. 1512 of 2017 under Sections 302 and 120B I.P.C. was registered at Police Station-Gomti Nagar, District-Lucknow.
4. Petitioner's husband was lodged in District Jail, Jhansi, which is a high security jail, where her husband's opponents could not manage to reach and succeed in their plan of eliminating petitioner's husband. Under patronage of Smt. Alka Rai w/o late Krishnanand Rai, a sitting Member of Legislative Assembly (hereinafter referred to as ' MLA') from Bhartiya Janta Party, allegations were levelled that petitioner's husband has murdered Pushpjeet Singh. He was accordingly nominated as an accused and trial is going on. Transfer of petitioner's husband from District Jail, Jhansi to District Jail Pilibhit was planned, as it was convenient for Smt. Alka Rai, who was sitting MLA of Bhartiya Janta Party to execute her sinister plan there. The aforesaid transfer from District Jail, Jhansi to District Jail, Pilibhit was challenged before Lucknow Bench of this Court by filing Civil Misc. Writ Petition (Misc. Bench) No.9034 of 2015. Vide order dated 08.04.2016, the aforesaid writ petition was dismissed. The order reads as under:
"1. The petition seeks issuance of a writ in the nature of mandamus directing the respondents to transfer the petitioner to District Jail Sultanpur.
2. Counter Affidavit is available on record. Paragraphs 9 and 10 of the counter affidavit read as under:
"9. That the averments made in paragraph 5 of the writ petition are false and misleading. Trial in several cases are pending in various districts due to which petitioner has to attend the court proceedings at District Varanasi, Jaunpur, Gautambudh Nagar and Delhi etc. During his travelling from the Jail to the Trial Court, the petitioner has to make a night-halt at various adjoining districts of the Trial Court, when the date fixed in the matter is quite nearby.
10. That in reply to the averments made in paragraph 6 of the writ petition, it is admitted that the Proposal dated 17.12.2014 for transfer of 5 under trial prisoners was sent from the Jail Headquarters to the State Government. The grounds mentioned in the said proposal are based on correct fact. The District Magistrate, Sultanpur/Superintendent of Police, Sultanpur wrote a joint letter dated 02.12.2014 addressed to the Principal Secretary (Home), Government of U.P., Lucknow highlighting this fact that there is a rival group between various under trial prisoners at District Jail, Sultanpur. Due to which the petitioner along-with several other under trial prisoners was recommended to be transferred to various other jails. A copy of the Joint letter dated 02.12.2014 addressed to Principal Secretary (Home), Government of U.P. Lucknow is attached herewith as Annexure CA-1."
3.None has appeared on behalf of the petitioner to prosecute the case.
4. Having gone through the order-sheet, we find that none appeared for the petitioner on 15.02.2016. On 09.03.2016, learned counsel for the petitioner sought time.
5. We, further find that rejoinder affidavit has not been filed to controvert the assertions made on behalf of the respondent - State, portion of which has been extracted above.
6. The petition is dismissed."
(Emphasis Added)
5. Aforesaid order dated 08.04.2016 was challenged in Special Leave to Appeal (Crl.) No. 203 of 2017 before Supreme Court. On 5th May, 2015, Court passed following order:
" Order Prima facie, it appears that the petitioner has been transferred from Jhansi To Pilibhit by order dated 07.04.2017, in contravention of three orders of the court of Chief Judicial Magistrate, Varanasi dated 01.02.2013 and 11.05.2015 and Special Judge, Gangster Court, Jaunpur dated 21.03.2015/10.04.2015.
We direct that the petitioner be lodged in the Central Prison Jhansi until further orders.
This order is without prejudice to such action for which the Superintendent of Prisons may be liable.
Application for directions stands disposed of accordingly."
(Emphasis added)
6. Thereafter, one S.T.F. Officer, namely Ghanshyam Yadav, visited District Jail premises at Jhansi on 9th March, 2018 and hatched a plan of elimination of petitioner's husband. Petitioner's husband got information of the aforesaid plan, hence moved an application before Additional Sessions Judge, Court no.4, Varanasi in Session Trial 157 of 1999 where he was being tried. Contents of application are as under:
" izkFkhZ@ vfHk;qDr fuEufyf[kr fuosnu djrk gS%& 1& ;g fd izkFkhZ eqdnek mijksDr ds lEcU/k esa Jheku th ds U;k;ky; dh U;kf;d vfHk{kk esa gS ,oa tuin dkjkxkj >kalh esa mls fu:) j[kk x;k gSA 2& ;g fd l= ijh{k.k mijksDr esa vfHk;kstu lk{; gsrw fnukad 21&03&2018 dh frfFk fu;r gSA 3& ;g fd vkt fnukad 09&03&2018 dks tuin dkjkxkj >kalh tgka izkFkhZ fopkjk/khu canh ds :i esa fu:) j[kk x;k gS] esa nks ,l0Vh0,Q0 ds yksx dkjkxkj esa vk, vkSj mUgksus dkjkxkj esa fu:) dqN vfHk;qDrks cfUn;ksa ls eqykdkr dj mUgs lkft'k esa ysdj izkFkhZ dh gR;k dk "kM;U= j[kk vkSj ,d lkfp'k ds rgr izkFkhZ ds Hkkstu esa fo"kkDr inkFkZ feyk dj vFkok fdlh vU; rjhds ls izkFkhZ dh gR;k dkjkxkj esa vUnj dj nsus dks dgkA 4& ;g fd izkFkhZ ds thou ij xEHkhj [krjk mRiUu gks x;k gSA "The applicant/accused prays as under:
1. That the applicant, in connection with the aforesaid case, is in the judicial custody of the learned court and he has been kept detained in District Jail - Jhansi.
2.That in the aforesaid sessions trial, 21.03.2018 is fixed for the prosecution evidence.
3. That, on 09.03.2018 two STF personnel came to the District Jail - Jhansi, where the applicant is detained as an under-trial prisoner; and they met, and conspired with, some accused detainees in the jail, to kill him; and they instructed for the applicant to be killed in the prison itself by adding poison to his food or by any other means.
4. That a serious life threat is looming large over the applicant's life." (Emphasis added) (English Translation by Court)
7. There upon Additional Sessions Judge, Court No.4, Varanasi passed order dated 9th March, 20148, which reads as under;
vfHk;qDr izse izdk'k flag mQZ eqUuk ctjaxh us vius vf/koDrk ds ek/;e ls izkFkZuki= 146 [k bu dFkuksa ds lkFk izLrqr fd;k fd og mijksDr izdj.k esa ftyk dkjkxkj] >kalh esa fu:) gSA vkt fnukad 09-03-2018 dks nks ,l0Vh0,Q0 ds dehZ dkjkxkj esa vk;s vkSj fu:) dqN cfUn;ksa dks lkft'k esa ysdj vfHk;qDr ds Hkkstu esa fo"kkDr inkFkZ feykdj mldh gR;k dk "kM;a= fd;kA mDr ,l0Vh0,Q0 ds dehZ;ksa ds dkjkxkj esa vkus&tkus dk QqVst lh0lh0Vh0oh0 esa dSn gks x;kA mls vk'kadk gS fd mldh gR;k dkjkxkj esa dh tk ldrh gSA v/kh{kd] ftyk dkjkxkj] >kalh ds mkjksDr dFkuksa ds lEcU/k esa foLr`r izkFkZuki= dh izfr layXu dj tfj, QSDl vkt gh Hksth tk;s rFkk jftLV~h Hkh tkjh fd;k tk;sA i=koyh esa vfxze frfFk 21-03-2018 fu;r gSA i=koyh fu;r frfFk dks is'k gSA "Through his counsel, the accused Prem Prakash Singh @ Munna Bajrangi submitted an application (146 Kha) with the submissions that he is detained in district jail - Jhansi in connection with the aforesaid mater. Today i.e. 09.03.2018, two STF personnel came to the jail and they conspired with some detainees and plotted to kill him by adding poison to his food. CCTV footage of the aforesaid STF personnel coming in and going out are recorded. He apprehends his being murdered in the jail.
With regard to the aforesaid statements, a fax with a copy of the application and a registered post be sent to the Superintendent, District Jail, Jhansi today itself.
The case stands date fixed for 21.03.2018. The records be put up on the fixed date. (Emphasis added) (English Translation by Court)
8. After having failed in their attempts, another plan was hatched wherein one Lokesh Dixit, Ex-MLA from Baghpat made a complaint dated 25th September, 2017 to Superintendent of Police, Baghpat stating that he has been given life threats for extortion by an unknown person. Aforesaid complaint was registered as Case Crime No. 854 of 2017 under Sections 386, 506 I.P.C. at Police Station-Baghpat, District-Baghpat. District Police, Baghpat under the pressure of Ruling Political Party of the State of U.P., implicated petitioner's husband in aforesaid Case Crime No. 854 of 2017 under Sections 386 and 506 I.P.C. Chief Judicial Magistrate, Baghpat passed order dated on 13.06.2018 under Section 267 Cr.P.C. to ensure presence of petitioner's husband in the Court of Magistrate at Baghpat on 14.06.2018.
9. In the meantime, various complaints were made before Sessions Court where Sessions Trial is pending, and also Superior Authorities namely Director General of Police, U.P., Lucknow, Chairman, Human Rights Commission, New Delhi, Chief Justice, Supreme Court, New Delhi, Principal Secretary, Home, Lucknow, U.P., Prime Minister, Government of India, New Delhi, etc.
10. Apprehending plan of Smt. Alka Rai W/o late Krishnanand Rai, sitting MLA from Bhartiya Janta Party and other political parties, who were helping her to eliminate petitioner's husband in one or the other manner, repeated requests were made to ensure safety of petitioner's husband. Letters are on record which we may discuss at a later stage whereever it is necessary.
11. The State Machinery under political pressure of Ruling Party, made attempt to move petitioner's husband to District Jail, Baghpat in order to execute their plan. Apprehending danger to live, petitioner's husband filed Writ Petition No. 4287 of 2017 (Under Article 227) challenging order/process issued under Section 267 Cr.P.C. by Chief Judicial Magistrate, Baghpat in Case Crime No.854 of 2017 on the ground that there is serious life threat to him and earlier his rivals got succeeded in getting him transferred to District Jail, Pilibhit, which attempt was foiled due to order of Supreme Court wherein petitioner's husband was directed to be lodged at District Jail, Jhansi, but now, in a clandestine manner, again his movement from District Jail, Jhansi to District Jail, Baghpat has been planned.
12. On 29th June, 2018, petitioner organized a Press Conference where she expressed fear and life threat to her husband if he is shifted out of Jhansi District, Jail. She appealed to the Government not to shift him out of Jhansi Jail as he is also medically unfit. Petitioner was suspicious of U.P. Special Task Force that they are helping other gangsters in their sinister plan to kill her husband.
13. Ignoring all these requests and serious apprehensions shown by petitioner and her husband and in order to execute evil plan of mighty political opponents, petitioner's husband was taken in an Advanced Life Support Ambulance from District Jail, Jhansi to District Jail, Baghpat on 8th July, 2018. He reached there at night around 9.00 PM. In the morning of 9th July, 2018, at 6.00 AM, in District Jail, Baghpat one life convict Sunil Rathi, pumped 10 Bullets into the body of petitioner's husband from a pistol, which is said to have been recovered from water tank alongwtih two Magazines and 22 live Cartridges. Interestingly, no CCTV Camera was working at the time when incident took place and according to authorities, place of incident was a blind spot. Out of ten Bullets, three hit head of petitioner's husband and he died on the spot. Jail Authorities thereafter lodged F.I.R. being Case Crime No. 377 of 2018 at Police Station-Khekra, District-Baghpat under Section 302 I.P.C. against Sunil Rathi, a life convict. Three inquiries/investigations also commenced; one by Jail Authorities; second, a Magisterial Enquiry and third, a Judicial Enquiry. While judicial enquiry was underway, present writ petition was filed.
14. Petitioner has pleaded that the story set up by Jail Authority regarding killing of petitioner's husband is apparently false. Fact is that influential persons belonging to Ruling Party, in collusion with Police Authorities and gangsters have executed the plan of elimination of petitioner's husband. The entire incident was pre-planned. Lokesh Dixit, Ex-MLA, who lodged report of extortion, has no such financial status inasmuch as his Income Tax Return for Financial year 2016-17 is only for Rs.4,24,900/- Further, to contradict the said version, petitioner in paragraph-25 has stated as under:
" That as per the state version the petitioner's husband was eliminated due to the sudden dispute with Sunil Rathi but circumstances says otherwise, the assailants have firstly fired targeting the forehead region of the petitioner's husband and thereafter photos of the dead body was taken and it got viral through social media/whatsapp and thereafter he was again shot targeting his chest area and again photos were taken and got viral; it indicates that the offenders were provided sufficient time to complete the job; they shot the petitioner's husband and forwarded the photos to the real conspirators and on their instructions more bullets were pumped in the chest region of the d eceased and again photos were sent to them through social media; the entire state story is silent about the person who took the photos of the deceased at the time of his elimination, the state version reveals that only Sunil Rathi is responsible for the murder but photos taken in two intervals well proved the presence of the others at the time of crime scene."
(Emphasis added)
15. Petitioner has also been informed that Rajeev Shukla, Jail Superintendent of District Jail, Jhansi was not ready to send petitioner's husband to District Jail, Baghpat due to poor health condition of petitioner's husband and life threat but he was put under heavy pressure. Therefore, Rajeev Shukla, Jail Superintendent, Jhansi proceeded on leave when petitioner's husband was moved from District Jail, Jhansi to District Jail Baghpat i.e. on 8th July, 2018. Even Baghpat's Jail Superintendent was on leave when petitioner's husband was taken to District Jail, Baghpat. Petitioner after receiving information of brutal murder of her husband, rushed to District Jail, Baghpath and attempted to lodge report but Police Officials refused to do so on the ground that Tehrir would be taken after concluding post-mortem. However, after post-mortem, dead body of petitioner was put into an Ambulance and it started moving towards District Jaunpur. Petitioner, at that point of time, had no option but to accompany Ambulance. Hence petitioner's complaint was not registered at Baghpat. She, even thereafter, made all efforts to get F.I.R. lodged but due to Higher Official's indulgence, same was not registered. Every time, petitioner was informed that a report has already been lodged on the information of Jailor, Uday Pratap Singh, therefore, second report cannot be registered for the same incident.
16. All these facts, show that there is a well planned manipulation on the part of Senior Authorities of the State Government and they were hand in glove with resourceful Politician and Gangsters. Brutal murder of petitioner's husband was not a result of sudden altercation with a life convict as claimed by Jai authorities. Their story is a blatant lie. State Authorities are not explaining, how Sunil Rathi, a life convict, got in his possession pistol/ firearm in Jail Campus. Since affluent and resourceful Political persons, that too, belonging to Ruling Political Party, Senior Police Officials and State Machinery, at various level, are involved in hatching up the murder of petitioner's husband, petitioner has a serious apprehension that no impartial and in-depth inquiry would be conducted. It is in these circumstances, matter requires to be investigated by an independent Agency and that too, an Agency having no control of State Government of U.P. Therefore, it has been prayed that investigation be directed to be conducted CBI.
17. Petitioner has also requested Respondent-1 to refer investigation to CBI, but in vain. Copy of the letters is filed collectively as annexure 17 to the writ petition. These letters are addressed to Chief Minister of State of U.P.; Chief Secretary, State of U.P., Chief Secretary Home, State of U.P. and Director General of Police, State of U.P. However, none has even responded and paid no heed despite the fact that a custodial death has taken place.
18. Initially, a short counter affidavit was filed on behalf of Respondent-5, which was sworn by Shiv Prakash Singh, Inspector, Police Station-Khekra, District-Baghpat in which it is admitted that petitioner's husband was incarcerated in District Jail, Jhansi but allegations of conspiracy regarding murder of petitioner's husband have not been admitted on account of lack of knowledge. He has, however, stated that Case Crime No. 854 of 2017 was registered at Police Station-Baghpat; Chief Judicial Magistrate, Baghpat passed an order under Section 267 Cr.P.C. for appearance of petitioner's husband in the Court of Magistrate; in complainace thereof, petitioner's husband was taken to District Jail, Baghpat on 8th July, 2018. After his murder, it is also admitted in the counter affidavit that an F.I.R. being Case Crime No. 377 of 2018 under Section 302 I.P.C. was registered at Police Station-Khekhra, District-Baghpat and investigation thereof is pending. It is also stated that a Magisterial Enquiry was directed by District Magistrate, Baghpat. Pursuant thereto, Additional District Magistrate (Finance and Revenue) was nominated to conduct inquiry. Another judicial enquiry was set up by District Judge, Baghpat, to be conducted by Chief Judicial Magistrate, Baghpat. With regard to health condition of deceased i.e. petitioner's husband, it is stated in paragraph 21 of short counter affidavit that Dr. Anand Kumar Dwivedi and Dr. Ahilesh of District Hospital, Jhansi as well as Dr. Ram Swaroop Srivastava (posted in Jail) were consulted and thereafter, petitioner's husband was taken from District Jail Jhansi to District Jail, Baghpath in an Advanced Life Support Ambulance. Written report (Tehrir) given by petitioner was entered in General Diary on 09.07.2018 and it is part of investigation. With regard to investigation, it is stated that statements of 35 witnesses were recorded and Sunil Rathi (life convict), who shot at Slained Undertrial confessed his guilt. It is also stated that fair and impartial investigation is being conducted with due diligence.
19. Looking into the seriousness of the allegations made by petitioner, this Court called for a personal affidavit of respondent-4. In reference thereto, a short counter affidavit was filed, sworn by Sri B. K. Verma, Deputy Inspector General Jail Allahabad Range, Allahabad, also holding charge of Senior Superintendent, Central Jail, Naini, Allahabad, in which he stated that petitioner's husband was brought from District Jail, Jhansi to District Jail, Baghpat pursuant to order of Chief Judicial Magistrate passed on 07.07.2018 in Case Crime No. 854 of 2017. It is also stated that after murder of petitioner's husband, Government prima facie found culpability of four officials, who were suspended vide order dated 09.07.2018. These are Uday Pratap Singh, Jailor; Shivaji Yadav, Deputy Jailor; Arjendar Singh, Jail Head Warder, and Madhav Kumar, Jail Warder. A preliminary departmental enquiry was conducted by D.I.G. Jails Agra Range, Agra., (who was also holding charge of Meerut Range). He submitted report on 17.07.2018. Uday Pratap Singh Jailor, Shivaji Yadav Deputy Jailor and Suresh Bahadur Singh Deputy Jailor were found guilty. Thereafter, vide Office Memo dated 08.08.2018, Sri Ashish Tewari, Jail Superintendent, Kanpur Nagar was appointed Enquiry Officer to conduct regular departmental enquiry. Further, after the incident, State Government vide order dated 10.07.2018 constituted a High Level Three Members Committee comprising Former Director General of Police (prison) Sri Sulkhan Singh, Former A.D.G. (Prison), Sri Hari Shankar Singh and Assistant Inspector General (Prison) Dr. Sharad. Instructions have also been issued to implement strictly directions contained in Government Order dated 25.10.2013 regarding inspection of prisons by District Magistrate and Senior Superintendent of Police. The Enquiry regarding suspicious culpability is underway.
20. Considering aforesaid, this Court on 15th July, 2019 passed the following order:
"Heard Sri O.P. Singh learned Senior Advocate assisted by Sri Rajesh Pratap Singh learned counsel for the petitioner, Sri S.K. Pal, learned Additional Government Advocate assisted by Sri A.R. Chaurasiya and Sri J.K. Upadhaya, learned A.G.A for the State, Sri Ram Dular learned counsel for respondent no. 6.
Learned Government Advocate has pointed out that in compliance of order dated 21.05.2019 affidavit of compliance has been filed by Deputy Inspector General of Jail, Prayagraj, Range, Prayagraj which is on record.
Paragraph no. 4 of the said affidavit shows that an inquiry was conducted by Deputy Inspector General of Jail, Agra Range, Agra and submitted a report and in pursuance of the said report a departmental proceeding was initiated against the then Jailor of District Jail, Baghpat namely Udai Pratap Singh, who was found to be guilty and he was terminated from his service on 21.06.2019, a copy of the termination order passed by the Director General, Jail Administration and Reforms Services, U.P. Lucknow is annexed as annexure no. 2 to said affidavit. It further transpires from the said affidavit that departmental proceedings were also initiated against Head Jail Warden, namely, Arjendra Singh and Jail Warden, namely, Madhav Kumar in which they were also found to be guilty, hence they were also terminated from service on 24.04.2019. It is stated in the said affidavit of compliance that so far as other inquiry which is to be conducted by the District Judge and the District Magistrate are concerned, and same are still pending.
It is very disturbing that though the deceased who was stated to be a man of criminal antecedents has been done to death inside the jail by one Sunil Rathi, who was also confined in jail in another case for which F.I.R was registered under section 302 IPC as case crime no. 0377 of 2018 against him, a copy of the same has been annexed on page nos. 43 to 45 to this writ petition, but the murder of the husband of the petitioner namely Munna Bajrangi inside the jail appears to be in a pre-planned manner for which the involvement of the other persons including the jail officials etc is also suspected for which a fair investigation is requires.
Learned Government Advocate has stated that he may be allowed some time to ensure that whether the erring Officials, who have been found guilty during the departmental inquiry and their services have been terminated, have been arrayed as accused in the present case or not. He states that if they are found involved for murder of the deceased Munna Bajrangi then they would be definitely arrayed as accused in the present case.
The incident which has taken place in jail is a daring act which shakes the conscience of the Society as well as inmates of the jail and their family members.
Thus, the Chief Secretary of the State, U.P. Lucknow is directed to file his personal affidavit in the matter stating therein as to why investigation of the case be not handed over to C.B.I for impartial investigation to bring to task the real culprits involved in crime alongwith Sunil Rathi who is stated to have shot dead the deceased in jail. He shall also inform the Court about the status/progress of the investigation of the case which was registered against Sunil Rathi by the informer, by the next date fixed and whether any jail authorities have also been arrayed as an accused in the present case.
List the matter on 29 July 2019.
Let the copy of this order be given to learned Government Advocate for its compliance."
21. Pursuant to above, personal affidavit has been filed by Sri Anup Chandra Pandey, Chief Secretary, Lucknow, U.P. Therein he has reiterated the factum of registration of Case Crime No. 377 of 2018 under Section 302 I.P.C. by Uday Pratap Singh, Jailor after murder of petitioner's husband by Sunil Rathi, a life convict, in District Jail, Baghpat. The Senior Sub Inspector, Rajnish Kumar, Police Station-Khekhra investigated and on the pointing out of Sunil Rathi, weapon of crime was recovered from the gutter in Jail. Another F.I.R. being Case Crime No. 368 of 2018 was registered at Police Station Khekhra under Section 28/27 Arms Act, 1959, District Baghpat. After investigation, a charge-sheet number 392 of 2018 was submitted against Sunil Rathi on 05.10.2018. Investigation of Case Crime No. 378 of 2018 has also resulted in charge-sheet no. 368 of 2018 submitted in the Court on 03.09.2018. Chief Judicial Magistrate has taken cognizance in both the matters and committed the same to Court of Sessions Judge, Baghpat for trial on 05.12.2018. Trial of both matters is going on where charges have been framed. On the complaint of petitioner, investigation against the persons, not named in F.I.R. i.e. Dhananjay Singh, Pradeep Kumar Singh, G. N. Singh, Mairaj and Vikas @ Raja was conducted but their involvement or complicity in the crime in question has not been found. As per report of Superintendent of Police, Baghpat, no Jail Authorities or Police Personnel were found involved in the crime in question. However, Director General of Police, U.P. has been directed to pursue investigation in the matter vide leter dated 31.07.2017. It is lastly stated that since all attempts for fair investigation and trial have been made, hence there is no necessity to refer the matter for investigation to C.B.I.
22. Heard Mr. O.P. Singh, learned Senior Counsel assisted by Mr. Rajesh Pratap Singh, learned counsel for petitioner, Mr. M. C. Chaturvedi, learned Senior Counsel assisted by Mr. S. K. Pal, learned Government Advocate and Mr. Sanjay Kumar Yadav, Advocate holding brief of Mr. Gyan Prakash, learned counsel for C.B.I.
23. Sri O.P. Singh, learned Senior Counsel appearing for petitioner contended that there is no attempt on the part of authorities concerned to collect information as to how firearms reached inside the Jail Premises and became available to Sunil Rathi, a life convict, whereby petitioner's husband was murdered; apprehension of life threat to petitioner's husband was already complained to Sessions Judge, Varanasi, where petitioner's husband was being tried and Court passed orders in this regard but matter was not given serious attention by Authorities concerned and they did not take any effective steps to protect life of petitioner's husband. This was deliberate and a conscious act on the part of authorities, who were in the process of executing their own sinister plan. Video Conferencing was made compulsory in District jails but why, Video Conferencing at Jhansi Jail, was not possible, is a matter of enquiry. Petitioner's husband was transferred to Baghpat Jail. No investigation has been made in the case as to how, matter proceeded so fast that on 7th July, 2018, Chief Judicial Magistrate passed order under Section 267 Cr.P.C. and on the very next day, i.e. 8th July, 2017 petitioner's husband was transferred in a sophisticated Ambulance, meant for transfer of a critical patient. He was made to travel in an ambulance carrying Life Support System since petitioner's husband was not well and such Ambulance covered 500 kilometers distance by road and reached at Baghpat in the night. In the early morning of 09.07.2017 at 6.00 AM, he was murdered.
24. It cannot be doubted that petitioner's husband was an accused and undertrial for an offence under Section 302 I.P.C., a heinous crime. However, this fact itself does not give a licence to Police or any other authority to adopt extra judicial and unconstitutional method of getting rid of such accused. The person charged for a criminal offence can be punished after following procedure laid down in law and that too, by a Competent Forum. In the present case, striking feature is that two persons, are said to have been doing pairvi of cases of petitioner's husband, and both were murdered at Lucknow itself sometime before murder of petitioner's husband. In the F.I.R. lodged i.e. Case Crime No. 0057 of 2016 registered at Police Station-Vikas Nagar, District Lucknow, after murder of Pushpjeet Singh, Advocate, specific allegations have been made against relatives of Late Krishnanand Rai (MLA), in respect of whose murder criminal trial was going against petitioner's husband.
25. Similarly on murder of Sri. Mohd. Tariq, in the F.I.R., i.e. Case Crime No. 1512 of 2018 under Section 302 and 120B I.P.C. dated 01.12.2017, it was clearly stated that his murder has connection with the double murder of Pushpjeet Singh and his friend. Some persons was also named in the aforesaid F.I.R.
26. An attempt was earlier made to transfer petitioner's husbnd from District Jail, Jhansi to District Jail, Pilibhit vide order dated 07.04.2014 but Supreme Court vide order dated 05.05.2017 directed that petitioner's husband shall be lodged in Central Jail, Jhansi and continue to be detained at Jhansi Jail. Thereafter, we find that several applications were filed by petitioner's husband in the Court of Sessions Judge, Court no.4, Varanasi where Sessions Trial No. 157 of 1999 was pending. In those applications, petitioner's husband categorically stated that some members of S.T.F. are conspiring to murder him in Jail and there is serious apprehension to his life. We find that taking note of his applications, Sessions Judge, Court No. 4, Varanasi vide order datged 9th March, 2018 sought report from Superintendent, District Jail, Jhansi. Since report was not submitted, hence on 21st March, 2018, Additional Sessions Judge, Court No.4, Varanasi passed order, requiring Superintendent, District Jail, Jhansi to explain why action for non-compliance of Court's order be not taken against him and a separate case be not lodged against him. The matter was again taken up by Additional Sessions Judge, Court No. 4, Varanasi on 23rd April, 2018 and he observed that since long time, Video Conferencing facility is not available in District Jail, Jhansi, therefore, presence of petitioner's husband on the date fixed before Sessions Court is necessary. However, Court granted permission to petitioner's husband to be accompanied by an advocate on his own and also directed that on the date fixed, petitioner's husband shall be produced in Court at Varanasi in adequate security.
27. Petitioner's husband was suffering with certain disease, for which proper treatment was not available in Jail. Sessions Court, vide order dated 09.05.2018, sought comments / reports from Inspector General, Jail. Petitioner's husband, however, continued to make complaints against various officials of State Government and also local authorities that they are threatening him and there is serious apprehension to his life.
28. Then, all of a sudden, we find that, FIR was lodged at Baghpat being Case Crime No. 854 of 2017 under Sections 386, 506 I.P.C. at Police Station-Baghpat, District-Baghpat dated 25.09.2017. Informant/ Complainant, Lokesh Dixit, former MLA, District Baghpat stated that he is a Former Legislator and his brother Narayan Dixit is an Authorized Contractor in Railway Department. Both were sitting at Kamdhenu Dairy on 22.09.2017 at 3.09 PM when they received a call from Mob. No. 7860595544 and an unknown person, giving reference of earlier conversation threatened Lokesh Dixit that, if he did not pay ransom, he would be killed. Entire conversation, was recorded by Informant in his Mob. No. 9999933773. Aforesaid report was registered at Police Station, Baghpat. No material has been placed on record as to how aforesaid threat and Mobile Number was related to petitioner's husband. Police, however, submitted charge-sheet under Section 368 and 506 I.P.C. against petitioner's husband and thereupon, Magistrate issued notice under Section 267 Cr.PC. directing presence of petitioner's husband on 14th June, 2018 in the Court of Chief Judicial Magistrate.
29. About this situation, which was created, as alleged, following a conspiracy and with an intention to murder petitioner's husband, petitioner sent a complaint dated 28.06.2018 to Principal Secretary, which is at page 103 of writ petition and other authorities like Prime Minister, Chief Justice, Supreme Court of India etc.
30. In the letter dated 25 July 2019, Annexure -1 to the personal affidavit of Chief Secretary U.P., it is stated that Superintendent of Police, Baghpat has said that in the investigation made in Case Crime No. 854 of 2017 on the report of Lokesh Dixit, Ex-MLA, Baghpat, Investigating Officer after electronic surveillance found Mob. No. 7860595544 registered in the name of Sultan Ali S/o Ali Kadir , R/o L-60 A, Fateh Ali Ka Tatab, P.S.-Alam Bag, Charbag, Lucknow. He (Sultan Ali) was arrested on 30.09.2017. During interrogation, Sultan Ali stated that he was working for Munna Bajrangi i.e. petitioner's husband. He also stated that he collects money from various Contractors at Varanasi and remits money collected to Munna Bajrangi. In furtherance of this collection, Munna Bajrangi and his accomplices Surendra Kaliya and Sanjay Rao made demand of a ransom from Lokesh Dixit and also threatened him of life in case of non-payment. Investigating Officer stated that on enquiry, he found that all three were working for Munna Bajrangi, who was detained in District Jail, Jhansi. In the circumstances, in order to comply with the order of Chief Judicial Magistrate, Baghpat, Munna Bajrangi was brought from District Jail, Jhansi to District Jail, Baghpat alongwith Police Officials on 8th July, 2018 where they reached in the night at around 9.00PM. In consultation with Superior Authorities and Sri Uday Pratap Singh, Jailor, he was lodged in Cell No.2, which is a High Security Barack of District Jail, Baghpat. In the morning at 6.00AM of 9th July, 2018, Sunil Rathi, a life convict, lodged in District Jail, Baghpat is alleged to have opened fire upon Munna Bajrangi and murdered him. It is said that Sunil Rathi accepted his crime and also on his pointing out, murder weapon i.e. Pistol was recovered from Gutter alongwith two Magazine and 22 live cartridges. From the place of incident, 10 empty cartridges were recovered. Interestingly, it is also stated that in Forensic examination of recovered Pistol and Cartridges, vide report dated 23.07.2018, it has been found that recovered weapon was not used in the crime i.e. murder of Munna Bajrangi. Therefore, recommendation was made for re-examination to Forensic Science Laboratory, Lucknow.
31. The facts stated above, when summarized lead to some unanswered questions, hence they need to be probed. For sake of convenience, they are summarized as under:
(i) Munna Bajrangi, (undertrial slained accused) was undergoing criminal trial in Sessions Court at Varanasi on the charge of murder of Krishnanand Rai, a sitting MLA who was murdered on 29th November, 2005. He was representing Mohamdabad Assembly Constituency of District Ghazipur and belonged to Bhartiya Janta Party.
(ii) On 7th April, 2017, he (Munna Bajrangi) was sought to be transferred from District Jail Jhansi to District Jail Pilibhit. Supreme Court stayed this order and directed to lodge Munna Bajrangi in Central Prison Jhansi, by order dated 5th May, 2015.
(iii) Wife of Late Krishnanand Rai i.e. Smt. Alka Rai contested Assembly Elections from Mohmdabad Constituency, District Ghazipur, wherefrom her husband was MLA and elected in 2017 from Ruling Party of the State of U.P. i.e. Bhartiya Janta Party. Thereafter things changed rapidly.
(iv) On 25th September, 2017, a report was lodged by Lokesh Dutt Dixit, a Former MLA of Baghpat at Police Station-Baghpat i.e. Case Crime No. 854 of 2017, alleging that he was threatened and directed to pay ransom by an unknown person. Information of Mobile Number wherefrom he received call, was also given to Police. In furtherance of investigation, Baghpat Police, found mobile number registered in the name of one Sulatan Ali of Lucknow. He was arrested on 30.09.2017. On interrogation, Sultan Ali claimed that he was working for Munna Bajrangi as an agent for collecting ransom money from Contractors at Varanasi. The demand was made from Lokesh Dutt Dixit by Munna Bajrangi and his accomplices Surendra Kaliya and Sanjay Rao. Police submitted charge-sheet under Sections 368 and 506 I.P.C. in the Court of Chief Judicial Magistrate, Baghpat.
(v) Munna Bajrangi made a complaint dated 9th March, 2018 that on the same day i.e. 9th March, 2018, Ghanshyam Yadav, S.T.F. Officer visited District Jail premises at Jhansi alongwith another and met some prisoners to plan his murder.
(vi) Sessions Judge immediately took note of the said complaint and directed to send a copy of the application by Fax to Superintendent District Jail, Jhansi and fixed the matter on 21st March, 2018.
(vii) Superintendent District Jail, Jhansi did not submit any report, hence, Additional Session Judge, Court No.4, Varanasi, where trial was pending, sought explanation from Superintendent District Jail, Jhansi, as to why an inquiry be not conducted for non-compliance of court's order against him.
(viii) On 23rd April, 2018, Trial Court at Varanasi noted that Video Conferencing facility at Jhansi was not working, hence left with no option, he directed to produce Munna Bajrangi in Civil Court at Varanasi but with adequate security.
(ix) In the meantime petitioner and her slained husband both continued to make complaints apprehending threat to life of Munna Bajrangi in the hands of authorities on account of involvement of Smt. Alka Rai, who was elected in 2017 and belongs to Ruling Party in the State of U.P.
(x) On 13th June, 2018, Chief Judicial Magistrate, Baghpat passed an order for presence of Munna Bajrangi in his Court, exercising power under Section 267 Cr.P.C. and Jailor District Jail, Jhansi was directed to comply the said order.
(xi) On 7th July, 2018 another order was passed, since earlier order was not compiled with.
(xii) Munna Bajrangi was really ill, otherwise there was no reason to make him travel in an Advanced Life Support Ambulance, which is normally used for carrying critical patients. However, his health condition was ignored and he was brought from District Jail, Jhansi to District Jail Baghpat. Why no information of his bad health was given to Chief Judicial Magistrate, Baghpat, is not clear from record.
(xiii) Be that as it may, it is an admitted case of respondents that Munna Bajrangi reached District Jail, Baghpat at about 9.00PM. On 08.07.2018. At that time, normally the prisoners, kept in jail, are sent to Cells and they do not move around in the Jail Premises.
(xiv) Munna Bajrangi, as per own case of respondents, was kept in District Jail, Baghpat in a High Security Barack, Cell No.2. What kind of High Security Barack it was, when Cell in which Munna Bajrangi was kept, was not covered by CCTV Camera and it is said that it was a blind spot. We could not understand that when according to respondents Munna Bajrangi was a kingpin, hard core criminal and he was to be kept in High Security Cell, still it was not within the approach of CCTV Camera and therefore, CCTV Camera Control Room had no continuous surveillance on Munna Bajrangi or his Cell.
(xv) Sunil Rathi shot dead Munna Bajrangi in the morning at 6.00AM. When and where Snil Rathi could meet Munna Bajrangi, how he came to know that Munna Bajranig has been brought to Baghpat Jail and where he was kept and also wherefrom he got firearm, are all questions which have not been answered by respondents.
(xvi) Further, Sunil Rathi had a firearm and he could fire 10 bullets. No jail guard reacted to prevent Sunil Rathi from continuous firing and / or to save Munna Bajrangi.
(xvii) Respondents claim that on the pointing out of Sunil Rathi, weapon of crime, i.e., pistol was recovered from Gutter in Jail. But, Forensic Report shows that the recovered weapon is not the one whereby Munna Bajrangi was shot. This shows that weapon used by Sunil Rathi was taken away or got disappeared and where it has gone, and who made it to disappear, there is a complete silence.
(xviii) However, in the Jail Campus itself, several firearms were available inasmuch as another firearm was recovered by Jail Assistant/Investigating Officer on the pointing out of Sunil Rathi.
(xix) When Sunil Rathi opened fire upon Munna Bajrangi and fired 10 shots continuously, why Jail Guards could not immediately reach the spot and how Sunil Rathi could get enough time to hide/conceal alleged weapon of crime by throwing it in gutter; the weapon of assault has not been recovered, whereby murder was committed and who has managed disappearance of actual weapon of crime is shrouded in mystery.
32. There are more questions, which remain unanswered. The manner in which things have taken place create more suspicion about involvement of high and resourceful persons who have big access not only with Jail Authority but even big criminals lodged therein. The apprehension shown by Munna Bajrangi and his wife i.e. petitioner, almost more than an year back, has been proved true and this requires serious response from concerned authorities.
33. In the above background, we find it strange to notice that though repeated complaints were made by petitioner's husband as well as petitioner stating, therein that life of Munna Bajrangi is in danger and relatives of Late Krishnanand Rai, in whose murder charge, Munna Bajrangi was tried in Sessions Court, Varanasi which includes Smt. Alka Ray, a legislator of Ruling Party of the State i.e. Bhartiya Janta Party are behind it. Still, no serious enquiry was made in respect of those allegations. It also could not be explained that when Munna Bajrangi reached Special Cell No.2 of Baghpat Jail, having arrived therein in the night around 9.00 PM, how Sunil Rathi got information of his arrival; how he could get a firearm and reached the Cell when Munna Bajrangi was lodged in a High Security Cell and that too, in the early morning at 6.00AM and opened fire. Munna Bajrangi was complaining of his life being in danger. An attempt made to transfer him from District Jail Jhansi to District jail Pilibhit was foiled by Supreme Court. It has not been explained as to what necessitated or prompted eventualities to transfer slained undertrial Munna Bajrangi from District Jail, Jhansi to District Jail, Pilibhit. Role of authorities and particularly, circumstances, in which a firearm became available to a life convict namely Sunil Rathi, lodged in District Jail, Baghpath has been left untouched during investigation. Report of Superintendent of Police, Baghpat shows that in a cursory manner, some superficial enquiry was made and that too, in the Jail. We are told in Court that Munna Bajrangi, in fact, had a long history of crime and a big Mafiya/Don, who indulged in crime of kidnapping, ransom and murder etc. If that be so, it was very more important for respondents and Police Authorities concerned to take extra care so that life of Munna Bajrangi might not be in danger and he might not be terminated in the manner as it has been done.
34. Looking into the entirety of the facts and circumstances, we find it a fit case for having an in-depth, impartial and fair investigation by an independent agency from outside the State of U.P.. It is, therefore, appropriate to direct investigation by C.B.I.
35. With regard to the power of this Court for directing investigation by C.B.I., a Constitution Bench in State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571, in paragraph 68 (vii) has said:
" 68 (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of three being any statutory provision acting as a restriction on the powers of the Court, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion would not amount to infringement of either the doctrine of separation of power or the federal structure."
36. In the above case, as a final analysis, Court has said that a direction by High Court in exercise of its jurisdiction under Article 226 of Constitution to CBI to investigate a cognizable offence, alleged to have been committed within the territory of a State, without the consent of that State, will neither impinge upon the federal structure of Constitution nor violate the doctrine of separation of power and shall be valid in law. Court further held:
" Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
37. Court has also observed that looking to the fact that the capacity of establishment of CBI is limited, therefore, Court should have a self-imposed limitation and direction for investigation by CBI should not be exercised in a routine manner, merely because party has levelled some allegations against local police. This extraordinary power should be exercised sparingly, cautiously and in exceptional situation, where it becomes necessary to provide credibility and instill confidence in investigation or where the incident may have national and international ramification or where such an order may be necessary for doing complete justice and enforcing fundamental rights.
38. In K.V. Rajendran Vs. Superintendent of Police CBCID South Zone, Chennai & Ors, (2013) 12 SCC 480, while reiterating power of High Court to direct investigation by an independent Investigating Agency like C.B.I., Court has held that where investigation has been completed and charge sheet has been filed, 'ordinarily' superior Courts should not reopen investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law.
39. The above caution is not absolute but Court has said that 'ordinarily' it should not be done. In the present case, we find that there are exceptional circumstances justifying investigation by C.B.I. Various aspects connected with petitioner's husband's brother, who was in Jail at the time of his murder, have not been investigated. Petitioner's apprehension that no investigation on those aspects has taken place on account of tacit patronage of Higher Officials of State, is not unfounded. It is a case where investigation by CBI, in our view, is necessary to instil confidence in public, more particularly, where it is a case of custodial death.
40. In Dharam Pal Vs. State of Haryana & Ors, (2016) 4 SCC 160, Court reiterated that the power of Constitutional Court to direct investigation or re-investigation is not circumscribed by any limitation. If Court finds it necessary to meet ends of justice, it can direct further investigation or re-investigation as the case may be. Court said that purpose of justice demands that miscarriage of justice is avoided. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation, a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in investigation, such investigation cannot be supported where a grave suspicion arises with regard to the investigation, and a Constitutional Court cannot shut its eyes, close its hands and accept the proposition that as the trial has commenced, the matter is beyond it.
41. In Dharam Pal Vs. State of Haryana & Ors (supra), Supreme Court held that:-
"......in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an "orphan under law"
42. In Bimal Gurung Vs. Union of India & Ors, (2018) 15 SCC 480, Court in para 29, held that:
"29. The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran vs. Supt. Of Police, (2013) 12 SCC 480, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii)where investigation prima facie is found to be tainted/biased."
(Emphasis added)
43. In view of above discussion, we have no hesitation in holding that the prayer made by petitioner for directing an investigation by an independent investigating agency, like CBI deserves to be allowed. The matter requires an in-depth and that too impartial, fair and independent investigation to go to the root of the matter as to how and in what manner, petitioner's husband has been murdered in custody and whether a detained convict, who committed murder is a face of deeper conspiracy and behind him who are the other persons, actually involved and guilty of crime, are all such aspects, which require to be investigated by CBI.
44. Accordingly, we direct CBI to register a case and make investigation in the manner in which petitioner's husband namely Prem Prakash Singh @ Munna Bajrangi has been murdered in District Jail Baghpat and all other aspects including those noted above. While investigating, various aspects of the matter, it shall also investigate into the question as to what were the real circumstances in which petitioner's husband was transferred to Baghpat Jail and within less than 12 hours, his murder took place in District Jail Baghpat. Role of Administrative and other Authorities in the matter and also, whether Sunil Rathi, actually caused death of petitioner's husband or it is a wider conspiracy shall also be examined.
45. CBI Shall proceed with investigation expeditiously and first progress report shall be submitted to the Court for its perusal on 20th April, 2020. Only for the purpose of perusal of C.B.I. Progress report, matter shall be listed on 20th April, 2020.
46. Writ petition is disposed of with above directions.
Order Date :- 25.2.2020 YK