Allahabad High Court
Atul Gupta & Anr. vs Union Of India Through Ministry Of ... on 18 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1996
Bench: Anil Kumar, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 9 Case :- MISC. BENCH No. - 4858 of 2020 Petitioner :- Atul Gupta & Anr. Respondent :- Union Of India Through Ministry Of Home,New Delhi & Ors. Counsel for Petitioner :- Dilip Kumar Pandey,Akhilesh Kumar Counsel for Respondent :- G.A.,A.S.G. Hon'ble Anil Kumar,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri Dilip Kumar Pandey, learned counsel for petitioners, Sri S.P. Singh, learned A.G.A. and perused the record.
By means of the present writ petition, the petitioners have prayed for a direction to opposite parties to made the fair and proper investigation by transferring the investigation of Crime No. 17/2020 U/s 302, 201, 323, 506 I.P.C., Police Station Harchandpur, District Raibareli by other competent investigating agency/Central Bureau of Investigation, heard quarter at New Delhi, to protect them from undue harassment as they have been implicated in present case due to political pressure in order to protect the actual culprits.
Sri Dilip Kumar Pandey, learned counsel for petitioners while pressing the said relief submits that respondent No. 8/Dilip Kumar Gupta has lodged an F.I.R. dated 02.02.2020, Case Crime No. 17/2020 U/s 302, 201, 323, 506 I.P.C., Police Station Harchandpur, District Raibareli.
In pursuance to the said F.I.R. investigation has been conducted and during investigation Sections 364 & 120B of I.P.C. has been added.
He further submits that although the petitioner has been arrested on 02.02.2020 but in the arrest memo, date of arrest was mentioned as 05.02.2020 at about 05.45. In this regard he has placed reliance on the document annexed as Annexure Nos. 2 &3 of the writ petition (arrest memo and general diary). Thereafter, respondents constituted a team headed by respondent No. 4 which has not only arrested the petitioners but allegedly recovered an Omni Car No. UP32 HS 1346 and three empty bottle of Chloroform as well as five litre empty cane (PIPIYA).
In order to support his argument, learned counsel for petitioners submits that in respect to the said incident, in the media report, serious objection against the investigation made by investigating team, has been reported and it was also published by the media that present case required to be investigated by the one most reputed agency i.e. C.B.I. since the victim was the student of Mahabir Degree College, Harchanpur, Raibarelli and a clerk is absconded.
And one more video has been viral on social media in which the reporter has recorded the statement of victim's father who has specifically raised finger upon the alleged arrest and further stated that the innocent may not be sufferred but after giving the said statement due to political pressure the voice of the informant has been shut.
He further submits that the petitioner was arrested by the police on 02.02.2020 at 4.00 p.m. from their house situated at Ahorwa Bhawani, Police Station - Shivratanganj, District - Amethi as such the father of the petitioner has sent an e-mail to the respondent No. 3 indicating that his son might be implicated in grave offence.
AS the petitioners do not confess their guilt. So on 04/05.02.2020 in the custody police has applied third degree treatment on them and also raided to the house of the petitioner in mid-night of 04-5.02.2020 and arrested entire family members as well as close relatives and all of them have been subjected to third degree treatment in front of the petitioners and compelled to confess the guilt. Ultimately the petitioners have confessed the guilt and other recover material has been collected by the police.
Thereafter, investigating team has not made the investigation in letter and spirit since their object was only to arrest the person. The said act has been done by the invstigating team to protect the actual culprits and to arrest the innocent persons are arrested and confined in detention without any cause which is apparent from the article published in different daily Newspapers.
Accordingly, counsel for the petitioners submitted that arrest of the petitioners by the police from their house on 02.02.2020 is illegal which can be verify by the C.C.T.V. available in the village of the petitioners in the various banks like Gramin Bank, Bank of Baroda, State Bank of India, UCO Bank.
Further, the investigating team has not indicated the location of victim by her mobile which may helpful in the investigation and also not indicate whether the victim carried the mobile phone or not and the last call detail of the victim is also not been recovered which reveal that the investigating team in not acting the letter of spirits leaving material evidence hence such act is not in accordance of law and absolutely violating the law.
The accused persons are the muscle man and succumbed to manage the police authority, not to do a fair and proper investigation but facilitating the actual accused person, in order to implicate the innocent people. So, in the present case the local police has not done investigation in a proper manner, but with colourable exercise of power in order to protect the real culprits and in violation of Government Order dated 05.09.1995 which laid down the certain conditions to be followed while conducting the investigation, which reads as under:-
"1. The nature of the crime is so complicated and involved that it is not possible for the local police to properly investigate the cae.
2. The crime has international, inter-State or interdivision ramifications.
3. The local conditions are such due to which it has become difficult for the civil police to investigate the case fairly.
4. Such conditions have arisen due to which a doubt is created in the mind of general public that the local police is not investigating the case fairly."
So, in view of the abovesaid facts, investigation in the presetn case may be transferred from the Investigating Officer by the Local Police to the Central Bureau of Investigation.
In support of his argument, learned counsel for petitioners submits that the Courts and in particular the High Courts are the guardians of the life and liberty of the citizens and if there is any favour or deliberate misuse of the authority vested in the Investigating Authority, the High Court or the Supreme Court may certainly step into correct such injustice or failure of justice.
When on the failure of the administrative machinery a mandamus can be directed to be issued by this Court to grant relief to the victim to which he/she was entitled from the authorities. (vide. Kedar Narayan Parida & Ors. Vs. State of Orissa & Anr., 2009 (9) SCC 538).
He further submits that the purpose of Cr.P.C. is to facilitate the enquiry and investigation into the commission/omission of the crimes. No person or State Officer can take technical pleas which does not sub-serve the interest of investigation or fails to protect the victim of heinous crime. Since it will send a wrong and devastating message in the society and would directly facilitate the cause of the accused in the instant case and the inaction of the Investigating Agency in bringing the culprit to the book.
Learned counsel for the petitioners also argued that it is now well settled that Article 21 of our Constitution takes within its fold not only the enforcement of rights of the accused but also the rights of a victim. The State has a duty to enforce the human rights of a citizen by providing for a fair and impartial investigation against any person accused of the commission of a cognizable offence. Accordingly, when an investigation is found to be unfair or biased, the situation has to be corrected either by approaching the criminal courts for issuance of appropriate directions to the investigating authority or by seeking a transfer of the investigation to another agency for, otherwise, the unfair investigation would make a mockery of the criminal justice system.
In support of the abovesaid arguments, learned counsel for the petitioners placed on reliance on the judgment given by Hon'ble Apex Court in the case of State of West Bengal & Ors. Vs. Committee for pretyection of Democratic Rights, West Bengal & Ors. - (2010) 3 SCC 571, the issue that came up for consideration before a Constitution bench of the Supreme Court was whether a High Court can direct a CBI investigation without the consent of the State Government concerned especially when the scheme of our Constitution prohibits encroachment by the Union upon a matter which exclusively falls within the domain of a State Legislature like Public order, Police etc. The Court answered the question in affirmative by holding that under Article 226 of our Constitution, a High Court can direct the CBI to investigate a cognizable offence, alleged to have been committed within the territory of a State, without the consent of the State, and that such a direction would not impinge upon the federal structure of the Constitution or violate the doctrine of separation of powers.
In addition to abovesaid facts, learned counsel for petitioners has also placed reliance on the following judgment and order passed by this Court in Misc. Bench No. 68 of 2015 (Mohand Murari Srivastava & Others Vs. Superintendent of Police, District Raibareli and others, dated 03.08.2015, on reproduction reads as under:-
"1. In the court proceedings the investigating agency was directed to verify genuineness of Annexure-2 which is a document signed by the complainant/private respondent and the petitioner and others. In the agreement document (Annexure-2) respondent Priyanka has admitted to having a love affair with one Pankaj Thakur and long association with the said person.In this document Priyanka further undertakes put an end to the affair, in the interest of matrimonial life. Petitioner the husband accepted the explanation of his wife.
2. The asserted case of the petitioners is that Priyanka did not put an end to the love affair and continued to interact with Pankaj Thakur. When the petitioners' side objected, impugned criminal proceedings have been initiated.
3. Although the agreement document has been verified and contents thereof have been admitted by Priyanka during investigation proceedings, it is being concluded that the petitioners have committed the offence.
4. Shri R.K.Dwivedi, learned Additional Government Advocate has assured the court that Superintendent of Police District Raebareli shall personally look into the matter and thereafter formulate an opinion whether offence has been committed or not. The investigating agency would consider the possibility of false implication in view of malice carried by the complainant.
5. In view of the above, the petition is directed to be listed on 17.8.2015. Superintendent of Police, Raebareli is directed to go through the order sheet of the court, contents of Annexure-2 i.e agreement document dated 17.7.2013 and take into account the relevant facts and circumstances and thereafter finalise investigation. It be ensured that innocent persons are not allowed to be persecuted.
6. Interim direction to continue till the next date of listing.
7. It is made clear that charge-sheet shall not be filed in the Court till next date of listing. Investigation, however, may go on.
8. Superintendent of Police Raebareli to file affidavit."
In Misc. Bench No. 68 of 2015 (Mohand Murari Srivastava & Others Vs. Superintendent of Police, District Raibareli and others, dated 14.09.2015, on reproduction reads as under:-
"1.Order dated 27.3.2015 reads as under:-
"It has been pleaded that petitioner no.1 was married to the added respondent, Smt. Priyanka Srivastava. The marriage did not succeed because Smt. Priyanka Srivastava was having relations with one Pankaj Thakur. Faced with these circumstances, settlement document dated 17th July, 2013 was drawn. The document has been placed on record as Annexure-2.
In the contention of learned counsel for the petitioners, Smt. Priyanka Srivastava continued her relation with the said person. Petitioner no. 1 has filed divorce petition. Aggrieved thereby, impugned criminal proceedings bearing Case Crime No. 1481 of 2014, under Section 498-A IPC. and Section 3/4 Dowry Prohibition Act, police station Mill Area, district Rae Bareli have been initiated. It has been pleaded that the petitioners have not committed any wrong.
Station House Officer, police station Mill Area, district Rae Bareli is directed to verify the genuineness of Annexure-2 and file his report by the next date of listing.
Let notice be issued to respondent no. 3 and added respondent through Chief Judicial Magistrate concerned returnable by 1st May, 2015.
Till next date of listing petitioners shall not be taken into custody. Petitioners shall, however, join in investigation as and when required by the investigating officer.
List on 1st May, 2015."
2.Counter affidavit filed on behalf of prosecuting agency dated 12.5.2015 records that Annexure-2 is a genuine document.
3.Arrest of the petitioners was stayed by this Court. It is apparent and admitted by Sri Mohit Gupta, S.P. Raebareli who is present in Court that proper and qualitative/fair investigation has not been conducted. Neither Annexure-2 has been taken into account by the prosecuting agency nor the fact that a divorce petition had been filed prior to initiation of criminal proceedings has been taken into account. Under the circumstances, an enquiry has been ordered against the former Investigating Officer. A new Investigating Officer has been appointed. Sri Mohit Gupta has brought it to the notice of the Court that charge-sheet has been filed and an application for further investigation was filed which, however, has been declined by the Magistrate.
4.We have taken into account the stand of the senior most police officer in the district, as also the fact that document Annexure-2 has been found to be genuine, which however has been ignored by the Investigating Officer. Surely the document was required to be considered by the Investigating Officer, considering the nature of dispute.
5.We hereby direct further investigation in the matter. The investigation would be concluded, preferably within one month. The Magistrate concerned is directed not to take cognizance of the offence till the date of next listing.
6. Service Report Re:- respondents 3 & 4 is not available.
7.Let respondents 3 & 4 be served through fresh process, returnable on 7.10.2015.
8.List on 7.10.2015.
9. Arrest of the petitioners shall remain stayed till the next date of listing.
10. Let an affidavit be filed on or before 7.10.2015.
11. Let a copy of this order be conveyed to Magistrate concerned.
12. Let a copy of this order be released under the signatures of the Bench Secretary."
Needless to mention herein that on 20.02.2020 this Court in the instant matter has passed an order, relevant portion reads as under:-
"Heard learned counsel for the petitioners, Sri S.B. Pandey, learned Assistant Solicitor General of India, assisted by Sri Varun Pandey, learned counsel for respondents No. 1 and 9 and learned A.G.A. for respondents No. 2 to 7.
By means of the present writ petition the petitioner has prayed for following main relief:-
"Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to hold the fair and proper, speedy investigation of the First Information Report dated 02.02.2020 lodged by the opposite party no.8 at case crime No. 17/2020 U/s- 302,201,323,506 I.P.C Police Station Harchandpur, District Raibareli contained in Annexure No.1 to the writ petition."
An objection has been raised by opposite party to the effect that writ petition filed on behalf of accused is not maintainable.
In the matter in question, learned A.G.A. has relied on the law laid down by Hon'ble Apex Court in State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others, (2010) 3 SCC 571.
Accordingly, after taking into consideration the law laid down by the Hon'ble Apex Court as stated hereinabove and looking into the facts and circumstances of this case, we hereby direct the learned A.G.A. to seek instructions in the matter in question regarding stage of the investigation, by the next date of listing.
Further the investigating officer is also directed to appear before this Court on the date fixed along with relevant record (case diary).
List/put up on 5.3.2020."
In pursuance to the said direction, Sri Anil Kumar Singh, Station House Officer, P.S. Harchanpur, District Raebareli along with case diary of the case is present.
Sri S.P.Singh, learned A.G.A. on the basis of relevant document/ case diary submits that initially an F.I.R. has been lodged by the complainant registered as Crime No. 17/2020 U/s 302, 201, 323, 506 I.P.C., Police Station Harchandpur, District Raibareli inter alia stating therein that on 01.02.2020 his daughter (victim/Vanshika @ Ruchi) who is pursuing study from Mahavir Degree College went to college, however, she has not returned back. On 02.02.2020 on WhatsApp he has seen the photograph of a burnt girl who has been found in the area of Than Harchanpur District Raebareli and after seeing the photograph, he and his wife went there and on the basis of cloth they identified that burnt body is of their daughter /Vanshika @ Ruchi.
It is further submitted by learned A.G.A. that in the F.I.R. Atul Gupta/petitioner No. 1 made a proposal with Km. Vanshika @ Ruchi for marriage, however, she refused, so he beaten her and also given threat that he will kill her, so there is all possibility that she has been killed by Atul Gupta/petitioner No. 1.
Learned A.G.A. on the basis of F.I.R. submitted that investigation has been done by the Investigating Officer/team constituted for the said purpose and recovery has been done on the pointing out of the petitioner in accordance with law.
In this regard, reliance has been placed on the various documents and on the general diary which were also perused by us.
Learned A.G.A. further submitted that during investigation, additional charge under Section 364, 120B I.P.C. has been added and name of others co-accused (i.e. petitioner No. 2 and Anjali ) have also been added.
And at the instance of accused/Atul Gupta Omni Car No. UP32 HS 1346 and three empty bottle of Chloroform as well as five litre empty cane (PIPIYA) were recovered which were used in committing the crime.
Accordingly, it is submitted by learned A.G.A. on the basis of case diary that investigation in the present case has been done by the Investigating Officer/team constituted in proper and fair manner.
We have heard learned counsel for parties and gone through the record.
We have also carefully perused the case diary which has been produced before us by the officer concerned.
Before deciding the controversy involved in the present case, we feel appropriate to state certain judgments as pronounced by Hon'ble the Apex court on the point in issued;-
(a) In the case of State of West Bengal & Ors Vs. Sampat Lal and others, 1985(1) SCC 317, Hon'ble the Apex Court on the point in issued held as under:-
"The procedure laid down in the Code is clear and definite. It may be that in a given case the Court on being prima facie satisfied from 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 or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the procedure, but as we have already indicated, there was no adequate material on the record for the learned single G judge to be satisfied that the facts warranted appointment of a Special officer.
Borooah, J. did not describe the DIG, CBI as a Special officer. It is in the judgment of Pyne, J. that we find reference to this term. In his judgment Pyne, J. noted;
"In view of what has been stated here in before and in the facts and circumstances of the case, I appoint Deputy Inspector General, Central Bureau of Investigation as the Special officer in this case."
(underlining is by us) Having thus appointed him as a Special officer, he proceeded to indicate that the Special officer will make an enquiry about the correctness of the facts, allegations and inferences contained in the reports of 'Secret Eye' dated the 8th and the 14th May 1983 as well as those in the two letters of the respondents both dated 1 June, 1983, copies whereof are Annexures A' and 'B' respectively to the affidavit of Bappaditya Roy affirmed on 20th June, 1983, and in the reports published in the two issues of Ananda Bazar Patrika dated May 12 and 18, 1983. Sen, J. in his separate judgment made it clear that under the order proposed to be passed, the CBI or other agency of the Central Government was not being entrusted with the job of investigation.
Investigation into the allegations had already been undertaken and the papers which have been produced before us indicate that the first information lodged with the police was a missing report dated March 21, 1983. Even when such a report had been given contemporaneous steps were taken to trace the two missing boys. the dead bodies were recovered from the railway track on the following day and were independently dealt with as the link between the information about missing of the two boys and the two dead bodies had not been established at that point of time. Autopsy was conducted in due course and as the dead bodies had not been claimed by any relation, the same had been duly disposed of through the contractor for unclaimed bodies. For the first time, on 5th and 6th April, 1983 the link was established when the relatives of the two deceased boys went two Bandel GRPS and identified the clothes kept at the police station to be those that had been worn by the missing boys, and the photographs of the dead boys placed the matter beyond dispute that the two young boys whose dead bodies had been recovered from the railway track and which had been cremated were the missing boys. The parents of the boys met the Chief Minister on April 8, 1983. The Chief Minister issued directions to the police for proper investigation.
It is stated that on April 14, 1983, the Chief Minister made a statement on the floor of the Assembly wherein he had Indicated that the incident appeared to be a case of suicide and not murder. This statement of the Chief Minister was subjected to a lot of criticism in the columns of the newspapers as also in the body of the letters under reference. In course of hearing Mr. Chatterjee produced before us the official text of the Chief Minister's statement. It appears that he had only said that the Investigation carried on up to that stage appeared to indicate that it was a case of a suicide. It may not be out of place to point out that the Doctor conducting post-mortem examination had opined that it could be a case of suicide. Obviously the statement on the floor of the Legislative Assembly was on the basis of that medical report which was apparently available to the Chief Minister.
'Inquiry' and 'investigation' are statutory terms defined in the Code. We were told in the course of hearing by counsel for the parties that under the West Bengal Police Manual the terms have different meanings given to them. It is not necessary for our purpose to go into the question any further. By whatever name the work entrusted to the Special officer be called, there can be no dispute that he was required to ascertain facts from the witnesses and documents, if any, in regard to the death of the two boys. This process necessarily involved a fact finding inquiry by ordinarily tapping the same sources as the investigating agency was expected to contract. This, therefore, necessarily involved a duplicate investigation.
The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the Court into police investigation has not been approved. This question arose before a Division Bench of three judges in an appeal carried by the same State of West Bengal in the case of State of West Bengal Vs. S.N. Basak,[1963] 2 S.C.R. 52 Kapoor, J. quoted with approval the observations of the Judicial Committee in the case of king Emperor v. Khwaja Nazir Ahmad, [1944] L.R. 71, where the Privy Council observed:
"The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions being when a charge is preferred before it, and not until then. It has A sometimes been thought that s. 561A (now s. 482) has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it , should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act."
The Court added: "With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord." on a finding that the High Court had exceeded jurisdiction in interfering with the investigation, the appeal of the State of West Bengal was allowed.
The question again arose in the case of s.N. Sharma v. Bipin Kumar Tiwari & Ors. [1970] 3 S.C.R. 946 on this occasion the Court was called upon to examine the scope of magisterial power. After referring to the relevant sections, the Court concluded that:
"The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case The power of the police to investigate has been made independent of any control by the Magistrate."
Then came the case of State of Bihar v. J.A.C. Saldanha & ors. [1980] 2 S.C.R. 1 6 In a peculiar set of fact this Court was again called upon to adjudacte upon the scope of judicial interference over investigation. Speaking on this aspect of the matter, Desai,J. spoke for the Division Bench thus:
"There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the l offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under s. 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in s. 173 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to. law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in field or crime detection and its subsequent adjucation between the police and the Magistrate."
The observation of the Privy Council which we have already extracted were again quoted with approval, Desai, J. adding:
"This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not be interfered with by the judiciary."
(underlining ours) This seems to have been the well accepted judicial opinion on the subject. It is appropriate at this stage to refer to a later decision of this Court which has been relied upon by the Division Bench of the High Court, being the case of Bhagwat Singh v. Commissioner of Police, Delhi [1983] 3 S.C.C. 344. That case arose out of what is now being described as the notorious bride burning incidents. Investigation had come to an end and a conclusion of the case being one of suicide had been reached. At this stage the Minister of State of Home Affairs in the Government of India (the case related to the Union Territory of Delhi) had taken a decision to entrust the investigation again to the C.B.I. A writ petition was filed before this Court making allegations against the police authorities with reference to the investigation. The conclusion of the investigating agency that it was a case of suicide was challenged. This Court clearly indicated:
"It is not possible in this case, nor indeed would it be right for us to do so, to enter into the question whether Gurinder Kaur committed suicide or was murdered. That is a matter which is properly involved in the trial of a criminal charge by a court possessing jurisdiction. We are concerned here only with an examination of the question whether, after being informed of Gurinder Kaur's death, the police authorities conducted themselves as law and justice required of them."
The Court after dealing with the material placed before it, came to the conclusion:
"Two inferences follow irresistibly from the material before us. One is that the investigation by the police following the occurrence was desultory and lackadaisical, and showed want of appreciation of the emergent need to get at the truth of the case.. The other inference which disturbs us is that the entries in the police case diary (set forth in the annexure to the counter-affidavit on the record) do not a appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a document.
The haphazard maintenance of a document of that:
status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained. We think it to be of the utmost importance that the entries in a police case diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity..' The Court concluded by observing:
"We have referred to some of the important features of the case. We have done so not for the purpose of determining whether the girl was murdered or had committed suicide, but solely with the object of drawing attention to the manner in which the investigation of the case was conducted. Disappointing as it may seem to those who have desired the institution of criminal action on the basis that a crime has been committed, we do not think that on the material before us we can go that far. The investigation of the case was transferred from the police administration of Delhi to the Central Bureau of Investigation at the instance, we understand, of the petitioner. We hope and trust that this investigation has been completed. If not we would request the Central Bureau of Investigation to complete the investigation within three months from today and take such action as may be warranted by the result of the investigation. " Nothing has been said in this decision which runs counter to the well settled proposition laid down by the Judicial Committee of the Privy Council and approved on three occasions by this Court."(See. Central Bureau of Investigation through S.P., Jaipur Vs. State of Rajasthan, 2001 (3) SCC 333 )
(b) In the case of Disha Vs. State of Gujarat & Ors.2011 (13) SCC 337, Hon'ble the Apex Court on the point in issued held as under:-
"8. In Kashmeri Devi v. Delhi Admn. & Anr., AIR 1988 SC 1323, this Court held that the magistrate can direct CBI to investigate a case, after charge sheet has been filed, by exercising his powers under Section 173 (8) Cr.PC. It was stated accordingly:-
"Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge- sheet has been submitted to exercise his powers under Section 173 (8) CrPC to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly."
9. In Gudalure M.J. Cherian v. Union of India, (1992) 1 SCC 397, this Court however, held that the power of directing investigation by CBI after chargesheet was filed, should not ordinarily be used, but only when necessary. The investigation having been completed by the police and charge-sheet submitted to the court, it is not for this Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like CBI.
Same view has been reiterated by this Court in Punjab & Haryana High Court Bar Assn., Chandigarh through its Secretary v. State of Punjab & Ors. AIR 1994 SC 1023.
10. In R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38, this Court examined the case where the accusations were directed against the local police personnel. The Court held that it would be desirable to entrust the investigation to an independent agency like the CBI so that all concerned including the relatives of the deceased may feel assured that an independent agency was looking into the matter and that would lend the final outcome of the investigation credibility.
However faithfully the local police may carry out the investigation, the same would lack credibility since the allegations were against them.
11. This Court refused to direct the investigation by the CBI, after the charge sheet was filed in Vineet Narain & Ors. v. Union of India & Anr. AIR 1996 SC 3386.
12. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits in accordance with law.
(See : Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661).
13. Relying on the observations in Union of India v. Sushil Kumar Modi (supra), this Court in Rajiv Ranjan Singh '' Lalan' (VII) v. Union of India,(2006) 6 SCC 613, reiterated that the Court does not have the power to direct the CBI to investigate a matter after the chargesheet was filed.
14. The above three cases i.e. of Vineet Narain, Sushil Kumar Modi and Rajiv Rajan Singh were differentiated in a recent judgment by this Court in Rubabbuddin Sheikh v. State of Gujarat & Ors., AIR 2010 SC 3175, wherein this Court held:-
"Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI."
15 In Ashok Kumar Todi v. Kishwar Jahan & Ors., (2011) 3 SCC 758, this Court dealt with a case in which Kishwar Jahan, mother of the deceased Rizwanur Rahman approached the High Court to transfer the investigation of his death from local police to CBI expressing her apprehension that State police would not conduct investigation fairly because her son had contracted inter-religion marriage with the daughter of a very affluent and influential businessman, who had very close relationship with high police officials. She produced sufficient material to establish the nexus between the main accused and top police officials. This court considering the reasonable apprehension in her mind about fair investigation by the State CID, directed CBI to investigate the cause of death of Rizwanur Rahman. (See also: and Narmada Bai v. State of Gujarat, JT 2011 (4) SC 279).
16. Thus, it is evident that this Court has transferred the matter to CBI or any other special agency only when the Court was satisfied that the accused had been very powerful and influential person or State authorities like high police officials were involved and the investigation had not proceeded with in proper direction or it had been biased. In such a case, in order to do complete justice and having belief that it would lend the final outcome of the investigation credibility, such directions have been issued."
(c) In the case of Sasi Thomas Vs. State & Ors., 2006 (12) SCC 421, Hon'ble the Apex Court on the point in issued held as under:-
"The question has again been considered by this Court in Rajiv Ranjan Singh ''Lalan (VIII) and Another v. Union of India and Others, [(2006) 6 SCC 613] wherein referring to Union of India v. Sushil Kumar Modi [(1998) 8 SCC 661, this Court opined:
"It is thus clear from the above judgment that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end and thereafter, it is only the court in which the charge- sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Seection 173 (8).
38. We respectfully agree with the above view expressed by this Court. In our view, monitoring of the pending trial is subversion of criminal law as it stands to mean that the court behind the back of the accused is entering into a dialogue with the investigating agency. Therefore, there can be no monitoring after the charge-sheet is filed."
(d) In the case of State of West Bengal & Ors Vs. Committee for Protection of Democratic Rights, West Bengal and Others, 2010 (3) SCC 571 Hon'ble the Apex Court on the point in issued held as under:-
"39.The paramountcy of the right to "life" and "personal liberty" was highlighted by the Constitution Bench in Kehar Singh (supra). It was observed thus:
"To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ."
40.In Minerva Mills (supra), Y.V. Chandrachud, C.J., speaking for the majority observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation,Article 32 will be drained of its life blood. Emphasising the significance of Articles 14, 19 and 21, the learned Chief Justice remarked:
"74. Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31-C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual."
41.The approach in the interpretation of fundamental rights has again been highlighted in M. Nagaraj (supra), wherein this Court observed as under:
"This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part- III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as a fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India28, this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court inA.K. Gopalan v. State of Madras 29. Artilce 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that 'procedure established by law' means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India 30 that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further AIR 1962 SC 305 AIR 1950 SC 27 (1978) 1 SCC 248 held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees."
42.Thus, the opinion of this Court in A.K. Gopalan (supra) to the effect that a person could be deprived of his liberty by `any' procedure established by law and it was not for the Court to go into the fairness of that procedure was perceived in Maneka Gandhi (supra) as a serious curtailment of liberty of an individual and it was held that the law which restricted an individual's freedom must also be right, just and fair and not arbitrary, fanciful or oppressive. This judgment was a significant step towards the development of law with respect to Article 21 of the Constitution, followed in a series of subsequent decisions. This Court went on to explore the true meaning of the word "Life" in Article 21 and finally opined that all those aspects of life, which make a person live with human dignity are included within the meaning of the word "Life".
43.Commenting on the scope of judicial review vis-`-vis constitutional sovereignty particularly with reference to Articles 14, 19 and 21 of the Constitution, in I.R. Coelho (supra), this Court said:
"There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constitutional amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati case (supra) has to apply."
While observing that the abrogation or abridgement of the fundamental rights under Chapter III of the Constitution have to be examined on broad interpretation so as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure, the Court explained the doctrine of separation of powers as follows: (SCC p.86- 87, paras 64-66) "...[i]t was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter 6).
There Montesquieu writes, "When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty ... Again, there is no liberty, if the judicial power be not separated from the legislative and executive."
Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government.
Alexander Hamilton in The Federalist No.78, remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people:
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution.
By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
Montesquieu finds that tyranny pervades when there is no separation of powers:
"There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."
The Court further observed: (SCC pg.105, paras 129- 130) "Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.
Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure - rule of law, separation of power - the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure."
Conclusions:
44.Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity.
Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the 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 the 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 there being any statutory provision acting as a restriction on the powers of the Courts, 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.
45.In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the 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 the Constitution nor violate the doctrine of separation of power and shall be valid in law. 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 21 of the Constitution in particular, zealously and vigilantly.
46.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. In so far as the question of issuing a direction to the 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 extra-ordinary 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 the 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."
Now, reverting to the facts of the present case and taking into considration the pleadings as made by petitioners and from the perusal of the case-diary, the position which emerged out is that on 02.02.2020 an F.I.R. was lodged in case Crime No. 17/2020 U/s 302, 201, 323, 506 I.P.C., Police Station Harchandpur, District Raibareli and in pursuance of the same, an investigation was done, thereafter an investigating team was also constituted and on the basis of investigation Sections 364 & 120B of I.P.C. has been added.
From the perusal of the F.I.R., it transpires that after receiving information, in investigating team has prepared site-plan and also recovered the items for which fard was made which has been duly signed by two independent witnesses.
During investigation, the police has also recorded the statement of Anjali Srivastava, which reads as under:-
"अंजलि श्रीवास्तव पुत्री मदन लाल श्रीवास्तव निवासी शांति नगर क़स्बा व् थाना बछरावां रायबरेली उम्र करीब २० वर्ष अस्थायी पता ग्राम चांदनी थाना मोहमदाबाद जिला गाजीपुर बदरियाफ़्त पूछताछ पर बता रही है कि दिनांक ०१.०२.२०२० को मई कॉलेज गयी थी मेरे साथ वंशिका भी गई थी कॉलेज से हम दोनों साथ निकले वंशिका ने अपना सामान मुझे दे दिया और कहा कि घर पर दे देना तभी अतुल गुप्ता व् अन्य २ लोग चार पहिया वाहन से आये और वंशिका को बैठा कर लेकर चले गए | अतुल वंशिका से प्यार करता था अक्सर मुलाकात होती रहती थी | एक बार उसने वंशिका को मारा पीटा था तथा जान से मारने कि धमकी भी दिया था साहब मै डर गई थी इसलिए वंशिका के घर में रायबरेली जाने वाली बात बता दिया था | प्रश्न १ : जब तुम्हे सब कुछ मालूम था तो क्यों नहीं बताया उत्तर १ साहब मुझे नहीं मालूम था कि अतुल गुप्ता उसे मार डालेगा | मै भी उससे बातचीत करती थी | प्रश्न २: यह बात आपने क्यों छुपाया उत्तर २: साहब मै डरी हुई थी | प्रश्न ३: तुम्हारी बातचीत अतुल गुप्ता से होती थी उत्तर ३ : हाँ, वह वंशिका का रिश्तेदार भी है | यही मेरा बयान है | मुझ थानाध्यक्ष द्वारा अंजलि तथा अंजलि के परिवारवालों को हिदायद दी गई कि अंजलि कहीं बाहर नहीं जाएगी आवश्यकता पड़ने पर अंजलि का पुनः बयान अंकित किया जायेगा | बयान अंकित कराते समय अंजलि काफी घबराई हुई थी | "
Further, from the perusal of the case-diary, the position which emerged out is that investigation has been done by the investigating team in a proper manner and there is no illegality or infirmity in doing the same, so taking into consideration the said facts as well as the law on the point as stated hereinabove, this Court under Article 226 of the Constitution of India can pass an order directing an enquiry by C.B.I. only when after considering the material on record comes to the conclusion that such matter discloses a prima facie case calling for investigating by C.B.I. or any other similar agency (See. Minor Irrigation & Rural Engg. Services, U.P. Vs. Sahngoo Ram Arya, 2002 (5) SCC 521 ), we do not find any adequate material on the basis of which the relief as claimed by the petitioner for transferring the case to C.B.I. may be granted.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
Order Date :- 18.06.2020 Ravi/