Punjab-Haryana High Court
Mrs. Manoj Devi vs State Of Haryana And Others on 25 July, 2012
Crl. Misc. No.M-2492 of 2010 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc. No. M-2492 of 2010 (O&M)
Date of Decision : July 25th, 2012
Mrs. Manoj Devi
.... Petitioner
Versus
State of Haryana and others
.... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. N.S.Shekhawat, Advocate,
for the petitioner.
Mr. P.M. Anand, Addl. A.G., Haryana,
for the State.
VIJENDER SINGH MALIK, J.
Mrs. Manoj Devi, the petitioner has brought this petition under the provisions of section 482 Cr.P.C. with three-fold prayer. She seeks directions,
(i). to respondents No. 1 to 4 to register a criminal case against the officials of District Jail, Narnaul and other persons responsible for killing Surender alias Bablu, the husband of the petitioner, in District Jail, Narnaul during the night intervening 29th and 30th August, 2009;
(ii). to hand over the investigation of the case so registered to some independent investigating agency or to some senior Crl. Misc. No.M-2492 of 2010 2 ..
police official as the jail officials as well as certain influential persons are involved in the crime; and
(iii). to direct the State of Haryana to grant adequate compensation to the petitioner, who is the widow of deceased Surender alias Bablu in view of the law laid down by Hon`ble Supreme Court of India in Nilabati Behera Vs. State of Orissa, 1993 SCC (Crl.) 527.
In addition to the aforesaid three prayers, the petitioner has also sought protection of her life and liberty as also the life and liberty of her old father-in-law and two minor children as they apprehend imminent threat to their life and liberty.
2. By way of her affidavit dated 2.7.2011, she has not only reiterated the stand taken by her in the petition, but has also referred to the developments in this case and has claimed that the police has made no progress in the investigation and has rather expressed its helplessness in the matter and in these circumstances, she has prayed for the investigation of this case to be handed over to Central Bureau of Investigation (CBI) or to some other independent investigating agency in the interest of justice. Briefly put, the petitioner claims as under :
3. The petitioner had been living at village Dhani Jaitpur, Tehsil Bawal, District Rewari with her husband Surender alias Bablu, her aged father-in-law Munni Lal and two minor children. Due to some dispute over a plot, the petitioner and her family decided to sell their land and other properties in village Dhani Jaitpur and to shift to village Sardarpura (Loyal), Tehsil Khetri, District Jhunjhunu (Rajasthan) where she is now Crl. Misc. No.M-2492 of 2010 3 ..
staying with her old father-in-law and two children. The husband of the petitioner, named Surender alias Bablu was involved in a false case bearing FIR No.23 dated 12.3.2008 Police Station Bawal, for an offence punishable under sections 447, 427, 323, 325 and 506 read with section 34 of Indian Penal Code registered on the statement of one Ramesh son of Het Ram, resident of village Dhani Jaitpur. The gensis of this FIR was in a dispute over a plot. The said plot was jointly purchased by family members of the petitioner and the complainant and on the issue of partition, there arose differences leading to the registration of this false case. In the said incident, Surender alias Bablu was injured resulting in two fractures and a cross-version was also registered by the police on his statement on which a challan was also presented for the offence punishable under sections 323, 325 read with section 34 IPC. Due to the aforesaid dispute, Dalip Singh resident of village Dhani Jaitpur was killed by someone. Surender alias Bablu, husband of the petitioner had no concern with the same, but on account of old enmity, he was falsely implicated in a case registered by way of FIR No. 52 dated 19.4.2008 at Police Station Bawal, District Rewari for an offence punishable under sections 302, 307, 452, 120-B read with section 34 IPC and section 25 of the Arms Act. Surender alias Bablu is shown in the incident to have fired shots from a pistol carried by him. As Surender alias Bablu was seriously injured in the incident of 10.3.2008 and had suffered fractures in his right hand as well as left hand, it was not possible for him to fire the shots and for these reasons, his implication in the case was false.
4. The petitioner and her family members are victims of a deep Crl. Misc. No.M-2492 of 2010 4 ..
rooted conspiracy. According to her, Surender alias Bablu was arrested on 30.8.2008 and was confined at District Jail, Narnaul. During his stay at District Jail, Narnaul, a conspiracy was hatched to kill him. Not only certain influential persons but family members of the deceased Dalip were involved in the said conspiracy. Ultimately, during the night intervening 29th and 30th August, 2009, it appeared that liquor was served in the jail premises to Surender alias Bablu, which was either mixed with some insecticide or the same was forcibly administered to Surender alias Bablu after his taking liquor. The fact is that he was found dead in the morning of 30th August, 2009. The officials of District Jail, Narnaul initially tried to hush up the matter, but later on took the dead body of Surender alias Bablu to General Hospital, Narnaul and post-mortem examination was conducted on the dead body on 31.8.2009. Though, the jail officials came to know about the murder of Surender alias Bablu in jail in the morning of 30.8.2009, neither the family members of Surender alias Bablu nor the police had been informed and the jail officials tried to hush up the matter. The police was surprisingly informed at about 3.00 PM and at this time, the police recorded DDR No. 10 dated 30.8.2009 (Annexure P3) at Police Station Narnaul. Even the police proceedings show that telephone call was received by the police at 2.40 PM on 30.8.2009 which makes it apparent that the jail officials intentionally tried to conceal the facts with regard to the custodial death. Even the Duty Magistrate was requested to come, who conducted proceedings under section 176 Cr.P.C. Post-mortem examination on the dead body of Surender alias Bablu was conducted at 8.50 AM on 31.8.2009. Viscera was sent to Pathology department of PGIMS, Rohtak and report on the Crl. Misc. No.M-2492 of 2010 5 ..
same was received on 24.11.2009. As per the report of the Chemical Examiner, Haryana, his viscera tested positive of Organo Phosphorus compound group of insecticides and Ethyl Alcohol. On the basis of this report, the police obtained opinion of the medical experts, as per which the cause of death in the instant case was asphyxia due to Organo- Phosphorus poisoning which was sufficient to cause death in ordinary course of nature. All these things clearly indicate the fact that Surender alias Bablu was killed during the night intervening 29th and 30th August, 2009 in District Jail, Narnaul in pursuance of a well planned conspiracy by certain influential persons. It is further claimed that deceased Dalip Singh in case bearing FIR No. 52 dated 19.4.2008 registered at Police Station Bawal, District Rewari for an offence punishable under sections 302, 307, 452, 120-B read with section 34 IPC and section 25 of Arms Act was closely related to certain influential persons. He had even relations with certain leaders of the ruling party in the State of Haryana. The family members of the deceased, Dalip Singh are claimed to have conspired with the Jail officials and a conspiracy was hatched to kill Surender alias Bablu in which they succeeded finally.
5. It is further alleged that after the murder of Surender alias Bablu, the petitioner and her father-in-law, Munni Lal approached senior officials of the police and requested them to register a case against jail officials and others for causing death of Surender alias Bablu. The petitioner was told every time that enquiry was being conducted and a case would be registered soon. From the report of the Chemical Examiner, it became apparent that liquor was served to the deceased in jail illegally and even poison was given to the deceased. Crl. Misc. No.M-2492 of 2010 6
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6. It is also averred that in the meanwhile, the petitioner and her family members started receiving threats and now, the entire family is living under the shadow of fear. The petitioner made a representation to Superintendent of Police, Narnaul on 26.12.2009 (Annexure P8) for protection of the life and liberty of the petitioner and her family members. She clearly mentioned in the said representation that the persons who killed Surender alias Bablu wanted to kill them also. Even a representation in this regard was made to Superintendent of Police, Rewari, Deputy Commissioner, Rewari and Inspector General of Police, but no action was taken. She also received threats at village Loyal, District Jhunjhunu with regard to which she made a representation to the Station House Officer, Police Station, Khetri Nagar on 8.12.2009. She told the SHO that a person claiming himself to be Sunil Kumar resident of village Gehli and an employee at Police Station, Bawal had told the petitioner not to pursue the case or otherwise she would be eliminated. No protection, so far has been provided to the petitioner or her family members. On the strength of the law laid down by Hon`ble Supreme Court of India in Nilabati Behera's case (supra), the petitioner has sought adequate compensation on the death of her husband. For these reasons, she has made the aforesaid prayers.
7. Written replies to the petition have been filed by respondents No. 1 to 4 by way of affidavit of Sukhbir Singh, Additional Superintendent of Police, Narnaul and by Sanjay Singh, Superintendent, District Jail, Narnaul, respondent No.5. While respondents No. 1 to 4 have denied the averments of the petitioner regarding the genesis of the occurrence in Crl. Misc. No.M-2492 of 2010 7 ..
which her husband and Ramesh were involved, they have also denied Surender alias Bablu to have been murdered during the night intervening 29th and 30th August, 2009 in District Jail, Narnaul. The allegations regarding the attempt of the jail authorities to hush up the matter are also denied. It is claimed that FIR No. 94 dated 25.3.2010 (Annexure :10) has been registered at Police Station City, Narnaul for an offence punishable under sections 302, 328 read with section 120-B IPC with respect to the death of Surender alias Bablu. It is claimed that there is nothing to show that Surender alias Bablu has been murdered. Rather it is claimed to be a case of suicide. According to them, the negligent warders of the jail, namely, Ajit Singh, Head Warder No. 93, Surender Pal, Head Warder No. 129 and Vijay Kumar, Warder No. 1640, who were on duty at the relevant time have been placed under suspension under the orders of Director General of Prisons, Haryana, Panchkula dated 24.2.2010 and departmental proceedings have been initiated against them. Asserting that investigation of the case is going on and that action will be taken accordingly after investigation, the petition is prayed to be dismissed.
8. Respondent No. 5 has claimed that Surender alias Bablu came to be lodged in District Jail, Narnaul on 1.4.2009 on transfer from District Jail, Rewari. According to him, he was undergoing rigorous imprisonment for one year in an Arms Act case No. 439/08. It is further claimed that at the same time, he was facing trial in two cases bearing FIR No.23 dated 12.3.2008 Police Station Bawal, for an offence punishable under sections 447, 427, 323, 325 and 506 read with section 34 IPC and FIR No. 52 dated 19.4.2008 Police Station Bawal, District Crl. Misc. No.M-2492 of 2010 8 ..
Rewari for an offence punishable under sections 302, 307, 452, 120-B read with section 34 IPC and section 25 of Arms Act. Allegations of conspiracy or foul play on the part of the jail officials are denied. It is claimed that on the night of 29th August, 2009, Surender alias Bablu was locked up in room No. 2 alongwith Sandeep, Ajay, Vijay Homram and Rakesh. It is further averred that on 29.8.2009, Munni Lal, father of the deceased came for interview and supplied some raw vegetables to Surender alias Bablu. According to him, as per the statements of other inmates of room No.2, Surender alias Bablu took meals on 29.8.2010 between 10.30 and 11.00 PM and he was normal till he slept. It is denied that the police was informed at 3.00 PM. It is claimed that Mr. R.S.Dhanda, Judicial Magistrate and other police officials had reached at 12.55 PM and the statements of jail officials had been recorded. The factum regarding suspension of the jail warders, on duty during the said night is also asserted. The petition is, consequently, prayed to be dismissed.
9. I have heard Mr. N.S.Shekhawat, learned counsel for the petitioner and Mr. P.M. Anand, learned Additional Advocate General, Haryana, for the State. I have gone through the record carefully.
10. Learned counsel for the petitioner has argued that to begin with, Surender alias Bablu was involved in a case registered at Police Station, Bawal by way of FIR No. 23 dated 12.3.2008 for an offence punishable under sections 447, 427, 323, 325 and 506 read with section 34 IPC by Ramesh. According to him, there was a cross-version of the said case, which was registered by the police on the statement of Surender alias Bablu who had suffered fracture of bones of both of his Crl. Misc. No.M-2492 of 2010 9 ..
hands. According to him, one Dalip Singh was murdered during the night intervening 18th and 19th of April, 2008 and FIR No. 52 dated 19.4.2008 was registered at Police Station, Bawal for an offence punishable under section 302, 307, 452, 120-B read with section 34 IPC and section 25 of Arms Act against Surender alias Bablu. He has further submitted that the parties were fighting over a plot. According to him, Surender alias Bablu was arrested in the said murder case on 30.8.2008. According to him, when he was in custody in the said case at District Jail, Narnaul, he was found dead in the morning of 30.8.2009. He has further submitted that he was taken to the hospital where post-mortem examination was conducted on 31.8.2009.
11. Learned counsel for the petitioner has further submitted that DDR No. 10 was registered at Police Station, City Narnaul at 3.00 PM and the post-mortem examination was conducted on the next day at about 8.50 AM. He has further submitted that the Magistrate went to the jail and conducted enquiry as envisaged under section 176 Cr.P.C. and he has referred to the report of the Magistrate (Annexure P4) which bears 25.11.2009 as a date on it. He has then referred to the report of viscera (Annexure P6) which shows that in the sample of stomach, liver, spleen, kidney etc. Organo-Phosphorus compound group of insecticides was found alongwith Ethyl alcohol. He then referred me to the application made by the police to the doctor at General Hospital, Narnaul and the report made thereon (Annexure P7) vide which it had been opined that the death in this case was due to asphyxia due to Organo- Phosphorous compound group of insecticides poisoning which was sufficient to cause death in the ordinary course of nature and that the Crl. Misc. No.M-2492 of 2010 10 ..
deceased had also consumed alcohol.
12. Learned counsel for the petitioner has further submitted that the petitioner then started getting threats of elimination and on account of the fear, she shifted from village Dhani Jaitpur to village Loyal, District Jhunjhunu, Rajasthan. According to him, after notice of motion was issued in this petition, the police has registered an FIR (Annexure P10). According to him, the police claims Surender alias Bablu to have committed suicide and that there was no foul play in his death. He has referred me in this regard to the written statement of Sanjay Singh, Superintendent, District Jail, Narnaul, respondent No.5. According to him, respondent No. 5 claims in this document that on 29.8.2009, the deceased as well as the other inmates of room No.2 of District Jail, Narnaul took meals between 10.30 and 11.00 PM and he was normal till he slept. According to him, food is not served in jails at 10.30 and 11.00 PM. He has referred me to the written statement of Sukhbir Singh, Additional Superintendent of Police, Narnaul submitted on behalf of respondents No. 1 to 4 and has criticized the same being irresponsible. According to him, in the same the officer is non-committal on various aspects while on others, he has offered denial. He then took me through the status reports filed by way of affidavit of Superintendent of Police, Mohindergarh dated 29.7.2010 and by way of affidavit of Superintendent of Police, Mohindergarh dated 29.10.2010. According to him, even the Director General of Police, Haryana has submitted his affidavit in the matter which is dated 4.2.2011.
13. Learned counsel for the petitioner has further submitted that so far as the first prayer for registration of the case is concerned, the Crl. Misc. No.M-2492 of 2010 11 ..
police has registered a case. According to him, however, the attitude of the police in the matter of protecting the influential persons involved in the murder of Surender alias Bablu, is clear on the record and in view of the same, the investigation is required to be handed over to some independent agency. He has lastly submitted that the Financial Commissioner to Government, Haryana, Jails department has declared compensation in a sum of ` 1.00 lac to have been granted to the kin of the deceased, which is nothing but inadequate. He has submitted that adequate compensation is also required to be awarded.
14. Learned counsel for the petitioner has further submitted that on the last date of hearing, the State counsel was directed to seek instructions qua handing over the investigation of this case to the CBI and that still the State is not coming forward with any such proposal. According to him, if it is a case of suicide, the question would arise as to wherefrom the poison came. According to him, this clearly shows that there had been conspiracy between the jail officials and some private influential persons and in pursuance of that conspiracy, the poison came inside the jail. According to him, had there been no conspiracy, the jail officials would not have been happy in supplying poison to the deceased. According to him, the main question in this case is as to whether the death of Surender alias Bablu is homicidal or suicidal death and an independent agency is required to investigate the matter.
15. Learned State counsel has argued that about the matter of death of Surender alias Bablu in jail, the first inquiry was conducted by the Magistrate under the provisions of section 176 Cr.P.C. and he has found no foul play in his death. According to him, thereafter the Crl. Misc. No.M-2492 of 2010 12 ..
investigation was conducted by Surender Singh, a probationary officer of the police followed by investigation by a senior officer, named Randhir Singh Rana, Deputy Superintendent of Police, Mohindergarh, who had subjected the inmates of room No. 2, District Jail, Narnaul where the deceased was lodged to polygraph test and they gave rational answers which were found to be based approximately upon truth. According to him, the Deputy Superintendent of Police could not find any material from which it could be gathered that the inmates of room No. 2 colluded with outsiders and caused death of Surender alias Bablu by administering poison to him. He has further submitted that thereafter the investigation was handed over to the Special Investigation Team (SIT) headed by Sukhbir Singh, Additional Superintendent of Police, Mohindergarh, but he also could not find any ground to say that Surender alias Bablu was murdered. According to him, no fault can be found with the investigation of the aforesaid officers. He has further submitted that the allegations of the petitioner that a conspiracy was hatched by jail officials and other persons and in pursuance of the same, poison was administered to Surender alias Bablu are quite vague and despite best efforts, the police could not find any material to reach any such conclusion. According to him, there is, therefore, no ground for entrusting the investigation of this case to CBI. He has further submitted that the State has got no objection if the compensation awarded to the petitioner on the death of Surender alias Bablu is enhanced.
16. It is the claim of the petitioner that the petitioner and her family members have been the victims of a deep rooted conspiracy. Her allegations that despite Surender alias Bablu having suffered fractures in Crl. Misc. No.M-2492 of 2010 13 ..
the incident of 10.3.2008, he was involved in the murder of Dalip Singh whose family members in conspiracy with jail officials killed him, convey that the conspiracy was hatched before involving him in the case of murder of Dalip Singh. Thus, the conspiracy is alleged to have been hatched much before the murder of Surender alias Bablu and was there even before he was arrested in the case. The petitioner has claimed in this regard that in the incident dated 18.4.2008, Surender alias Bablu is accused of firing shots from the pistol he was carrying. To make clear the allegations that his involvement in the murder case was under the deep rooted conspiracy, the petitioner has claimed that in the incident of 10.3.2008, Surender alias Bablu was seriously injured and had suffered fractures on the left hand as well as right hand and it was not possible for him to fire shots and so, he was falsely implicated. One thing is clear from these allegations that the conspiracy is alleged to have been hatched before the lodging of report about the death of Dalip Singh and that he was named in the murder of Dalip Singh under that conspiracy.
17. If the conspiracy was so old and was there even before Surender alias Bablu was involved in the murder case, then he was lodged in jail on 30.8.2008 but has been murdered a full one year thereafter. It is not a case of the deceased having been murdered by firing gun-shots at a place outside the jail. In that case, it could be argued that the murder was though committed under the conspiracy, yet only when the murderer got opportunity to do so. Here, Surender alias Bablu was confined in District Jail, Narnaul with effect from 1.4.2009 and earlier to that in District Jail Rewari and if there was any conspiracy to murder Surender alias Bablu, he could have been murdered soon after Crl. Misc. No.M-2492 of 2010 14 ..
his being lodged in the jail and there was no reason for waiting for one year to carry out the plan.
18. Though, it is not to be decided here as to whether Surender alias Bablu was actually involved in the murder of Dalip Singh or not, yet the petitioner claims that Surender alias Bablu was not in a physical condition to fire shots on account of fracture of bones of his both hands. This plea is taken for the court to infer that his involvement in the murder case was not there and that he was involved in the case in pursuance of the conspiracy. So, a brief comment would be required here about this averment because that would be necessary for disposal of this petition.
19. Surender alias Bablu was found to have suffered fracture of right radius and proximal phalanx of left little finger and distal phalanx of left thumb on 10.3.2008. Dalip Singh has been murdered during the night intervening 18th and 19th April, 2008. It means that there was about 40 days' time between the suffering of the above said fractures by Surender alias Bablu and the murder of Dalip Singh and within this period of 40 days, the fractured bones could unite very well.
20. Admittedly, it is a case of death by poisoning. Poison could reach an inmate lodged in a jail in two situations. The first is that the inmate received the poison himself from some person coming for interview with him and in the second situation, it is procured through the jail officials. However, these situations apply only to a case where the poison is taken by the inmate himself. If, as alleged by the petitioner, Surender alias Bablu has been administered poison either deceptively or forcibly, mixing it with alcohol or giving it after Surender alias Bablu became drunk, in that event the conspirator would procure the poison Crl. Misc. No.M-2492 of 2010 15 ..
and if the jail officials are the conspirators, they can very well manage the same.
21. The petitioner becomes specific in her stand with regard to the mode of the deceased consuming poison in her affidavit dated 2.7.2011. On the basis of the report of the Chemical Examiner, she has claimed that poison was mixed in the alcohol and was administered to the deceased. It means that when the liquor mixed with poison was served to the deceased, he was not intoxicated. In that situation, pungent smell of the insecticide could not be concealed from him and the poison mixed with alcohol could not be deceptively given to the deceased. It shows that alcohol mixed with poison could be given forcibly. But, this hypothesis cannot work because if a person is administered poison by force, he would definitely resist the same and the resistance on the one hand and the force used by the assailants on the other hand would leave injuries on the deceased, which were found completely missing from the person of the deceased at the time of post- mortem examination conducted at 8.50 AM on 31.8.2009.
22. Other situation could be that the deceased consumed liquor and after his becoming intoxicated, he was administered the poison. Resistance would still be there unless Surender alias Bablu was dead drunk. There is nothing before the court to say that he was dead drunk. Looking to the case from another angle, in room No. 2 of District Jail, Narnaul, where the deceased was lodged, there had been Rakesh Kumar s/o Godu Ram, Sandeep son of Rajender, Ajay alias Raju son of Ramphal and Vijay Homram whose statements were recorded by the Magistrate. If Surender alias Bablu has been murdered by administering Crl. Misc. No.M-2492 of 2010 16 ..
poison to him, it can either be done by these four inmates or it will have to occur within their knowledge. There is no allegation whatsoever coming from the side of the petitioner of these persons having been related to Dalip Singh (deceased) or being involved in the alleged conspiracy to kill Surender alias Bablu. They are not even found to be related inter-se. So, it does not appear that they would have any motive to administer poison to Surender alias Bablu, the inmate of their room. Even if some other person, say the jail officials, administered poison to Surender alias Bablu, these four inmates would have come to know of this thing and they would have not tried to conceal the role of the jail officials in the said matter. It has clearly come on the record that they were associated with the investigation and were even subjected to polygraph test and the report of polygraph test is that their answers were found to be approximately true.
23. In the FIR, the petitioner has named the people of the opposition party as Mahender Singh, Arvind, Yudhbir, Vikas, Rajender, Ramesh, Phul Singh and Krishan. In her application dated 23.3.2010, she has added the name of one Satpal Singh Dahiya as an influential person in politics. He is said to have been involved in this conspiracy. She has claimed that one prisoner was resident of some place near Nangal Chaudhary and his village was near the village of said Satpal Singh Dahiya. These persons are said to have colluded with the opposite party and gave liquor to her husband mixed with poison.
24. Neither it is mentioned as to what is the status of Satpal Singh Dahiya in political circles nor it is mentioned as to whom he is connected with and in what manner. It is also not mentioned as to how Crl. Misc. No.M-2492 of 2010 17 ..
he is connected with Dalip Singh (deceased). No attempt is made even to give the name of the prisoner alleged to be living in the neighbouring village of Sat Pal Singh Dahiya and there is no method to verify her allegations.
25. It is a case where three enquiries into the matter have been conducted. The first enquiry was conducted by the Magistrate under the provisions of section 176 Cr.P.C., the second by Deputy Superintendent of Police and the third by SIT headed by an Additional Superintendent of Police. It is very easy to claim that the relations of Dalip Singh (deceased) had conspired with people in power to eliminate Surender alias Bablu. Without any details, the said allegation cannot be held convincing and by this allegation alone, it cannot be said that the entire proceedings of the police in investigating the case have been conducted in a partisan manner with a view to protect the culprits.
26. It has been admitted by the police in various replies and status reports that objectionable material passes through the check-point of the jail and reaches the inmates. This is due to negligence of the jail officials for which the disciplinary proceedings are said to have been initiated against the officials on duty. However, in the absence of any allegation as to relationship of the other inmates of room No. 2, where the deceased was lodged at the relevant time, with Dalip Singh or his children and relatives and the relations of the family members of Dalip Singh with people in power, it cannot be said that the poison was administered to the deceased under a conspiracy and that it is a case of murder. No gaps in the investigation of the case by the aforesaid police officials could be pointed out by learned counsel for the petitioner. Crl. Misc. No.M-2492 of 2010 18
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27. In these circumstances, I find no reason to agree with the prayer of the petitioner for entrustment of the investigation of this case to CBI. The prayer for entrustment of the investigation of a case to CBI can also not be allowed on mere asking of a party. It has been laid down by Hon`ble Supreme Court of India in CBI and another Vs. Rajesh Gandhi and another 1997 Crl. L.J. 63, that no one can insist that an offence be investigated by a particular agency. Hon`ble Supreme Court of India in a later decision reported as Sakiri Vasu Vs. State of U.P. and others 2008 (1) R.C.R. (Crl.) 392 has approved this view. Therefore, the prayer for entrustment of the investigation of this case to CBI cannot be allowed.
28. The compensation awarded by the State for the death of Surender alias Bablu in custody in a sum of Rs. 1.00 lac cannot be said to be adequate for any reason. As per the ratio of decision of Hon`ble Supreme Court of India in Nilabati Behera's case (supra), this compensation cannot be held adequate in any manner. In the aforesaid judgment, two remedies are held to have been there for the kin of the deceased in case of a custodial death. The first remedy is said to be constitutional remedy available under Article 32 and Article 226 of the Constitution of India. Compensation on the principle of strict liability can be awarded to the kin of deceased, payable by the State in a petition under the aforesaid articles of the Constitution. However, the other remedy is in tort and that is a civil law remedy. The compensation for violation of fundamental right to life can be granted by Hon`ble Supreme Court of India or the High Court in writ jurisdiction under the aforesaid Crl. Misc. No.M-2492 of 2010 19 ..
articles of the Constitution of India and not otherwise. The petition in hand has been brought by the petitioner under the provisions of section 482 Cr.P.C. which is though an extra ordinary remedy, yet cannot be invoked when there are specific provisions under the Constitution of India for seeking the remedy.
29. With regard to the additional prayer for providing protection to the life and liberty of the petitioner and her family, it can be said that this prayer has been made without any basis. Nothing concrete has come on the record in the shape of any event disclosing any real threat to the life and liberty of the petitioner and her family members. The petitioner with her father-in-law and children has already moved to village Loyal, District Jhunjhunu, Rajasthan and she has already made a prayer there regarding which also she has not placed on record any document to show as to what action they have taken on the same. Nothing is said to have happened to them during the last 2 or 3 years. No submission moreover, was made by learned counsel for the petitioner in this regard at the time of arguments. So, no order is required to be passed in this regard.
30. In these circumstances, the first prayer for registration of the case has already been granted and the petition for the same has become infructuous. The second prayer for entrustment of investigation of the case to CBI or any other independent investigating agency cannot be allowed for the reasons given above and the same is declined. The third prayer cannot be granted in these proceedings and, therefore, the petitioner is relegated to the remedy available to her in terms of decision Crl. Misc. No.M-2492 of 2010 20 ..
in Nilabati Behera's case (supra).
31. The petition is disposed of in the above terms.
(VIJENDER SINGH MALIK) JUDGE July 25th, 2012 som