HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 1 CRIMINAL MISC. WRIT PETITION No. - 17626 of 2015 Petitioner :- Smt. Suprabha Tyagi Respondent :- State Of U.P. and 14 Ors Counsel for Petitioner :- Salil Srivastava Counsel for Respondent :- Govt.Advocate, Atul Tej Kulshrestha,N.I. Jafri & CRIMINAL MISC. WRIT PETITION No. - 6897 of 2015 Petitioner :- Smt. Suprabha Tyagi Respondent :- State Of U.P. and 2 Ors Counsel for Petitioner :- Chandrakesh Mishra,Daya Shanker Mishra Counsel for Respondent :- Govt.Advocate Hon'ble V.K. Shukla,J.
Hon'ble Vijay Prakash Pathak,J.
Smt. Suprabha Tyagi w/o Rajbir Singh Tyagi is before us with the following prayer;
a. Issue a writ, order or direction in the nature of mandamus directing/commanding the respondents concerned to entrust the investigation of the present Case Crime No. 443 of 2015 under Sections 147/148/149/504/506/302/120-B IPC at police station Civil Lines, district Muzaffarnagar to the Central Bureau of Investigation (CBI) so that a fair and impartial investigation may be carried out.
b. Issue a writ, order or direction in the nature of mandamus directing/commanding the Central Bureau of Investigation (CBI) to complete the investigation within a time bound period as directed by this Hon'ble Court and or submit a progress report of the investigation before this Hon'ble Court within three months or as directed by this Hon'ble Court.
c. Issue any other writ, order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
d. To award the cost of petition to the petitioner.
The facts and circumstances giving rise to the present petition are that petitioner is the informant/complainant of Case Crime No. 443 of 2015 under Sections 147/148/149/504/506/302/120-B IPC at police station Civil Lines, district Muzaffarnagar wherein son of petitioner Vikrant @ Vickky Tyagi has been done to death in broad day light during the course of evidence before the Court of Additional Sessions Judge, Court No. 10, Muzaffarnagar. The said incident in question has taken place on 16.2.2015 at around 2.30 to 2.45 PM within the Court premises of district Muzaffarnagar, for which an FIR has been lodged on that very day at 3.45 PM and in the said FIR 11 accused persons were named which was inclusive of not only criminals but members of police force also namely Circle Officer Anuj Kumar Pehalwan, Inspector Sachin Malik and Constable Guddu @ Vikas and others.
Petitioner before this Court being mother of deceased has a strong feeling that free, fair and transparent investigation will not at all be carried out and accused persons that is inclusive of a Circle Officer, Inspector and Constable hailing from law enforcing agency are deliberately and intentionally not being arrested by the police and are being given free hand in the matter. Petitioner submits that in this backdrop she has been requesting the authorities concerned for CBI investigation and on the other hand in order to protect the police personnel the investigation in question has been sought to be transferred to CBCID and same has impelled the petitioner to be before this Court with the prayer quoted above.
On the presentation of the writ petition in question we proceeded to ask Sri Imranullah, learned Additional Advocate General, who has been appearing along with Sri Vimlendu Tripathi, Advocate, to produce the entire records that has prompted the State Government to take decision for transferring of the investigation in question and also called for the records of writ petition no. 6897 of 2015, Smt. Suprabha Tyagi Vs. State of U.P. & others, wherein this very petitioner has been before this Court praying therein for free/fair investigation and for effectuating arrest of remaining nine persons and to submit status report.
Pursuant to the directive issued by this Court on 3.8.2015 records have been produced and have been perused by the respective parties and, thereafter, based on the same arguments have been advanced in the present matter as well as connected matter.
Sri Shwetash Agarwal, Advocate, representing the petitioner before this Court, contended that in the present case in a designed manner the State Government has proceeded to exercise its authority of transferring the investigation and same is not at all a bonafide exercise of authority as all attempt and endeavor behind the same is to save the police personnel, who have proceeded to conspire the killing of son of the petitioner. It has also been submitted by him that once major allegations are there against the police personnel then the transferring of investigation in question to CBCID is to influence and prolong the investigation so that matter be get diluted with the passage of time, in view of this, this Court should come to rescue and reprieve of the petitioner by quashing of the order of transferring the investigation to CBCID and by transferring the investigation to CBI in order to instil confidence in the public.
The stand taken by the petitioner has been resisted by the State through Sri Imranullah, Additional Advocate General, by submitting that the records would speak for itself as both the parties i.e. the first informant as well as the representative of accused persons have been expressing no confidence in local police then a conscious decision has been taken to rule out any partiality in the matter to get the matter investigated by an independent agency and, in view of this, the action taken is a bonafide one and writ petition in question, as it has been framed and drawn, be dismissed, accordingly.
Sri Gopal Chaturvedi, Senior Advocate, appearing with Sri Atul Tej Kulshrestha, Advocate, on the other hand contended that this Court should not rely much more on the arguments of the parties rather record in question should be perused and it should be examined as to whether in the facts of the case the order passed is a justifiable order or not and based on the opinion formed this Court is free to pass proper orders for reaching/arriving at the truth.
After respective arguments have been advanced we proceed to examine the facts of the present case. Vicky Tyagi, son of petitioner, who has been killed, has earned notoriety in the field of crime and to his credit there were 50 cases that speaks for itself. The details of the said crimes are as follows;
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DsUnzh; dkjkxkj cjsyh ds ofj"B tsy v/kh{kd ds }kjk 'kklu dks ,d i= [email protected];[email protected] fnukWd 07&07&2008 dks fy[kk x;k ftlesa blds ikl ls dbZ gtkj :I;s ,oa vkifRr lkexzh cjken dh xbZ tks fd tsy ewU;w,y ds f[kykQ ikbZ xbZ Not only this his wife Meenu @ Vandana Tyagi has also get a long history to her credit and same is as follows;
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[email protected] 364] 506 Fkkuk flfoy ykbZu] eqtQ~Qjuxj 2 [email protected] 307]384] 506 Fkkuk ubZ e.Mh] eqtQ~Qjuxj 3 [email protected] 384] 506] 120&ch Fkkuk ubZ e.Mh] eqtQ~Qjuxj 4 [email protected] 302] 120&ch Fkkuk flfoy ykbZu] eqtQ~Qjuxj 5 [email protected] 427] 323] 504 Fkkuk pjFkkoy] eqtQ~Qjuxj 6 [email protected] 364 Fkkuk dksrokyh uxj] eqtQ~Qjuxj 7 [email protected] [email protected] xSxLVj ,DV Fkkuk dksrokyh uxj] eqtQ~Qjuxj 8 [email protected] 302] 147] 148] 149 Fkkuk dksrokyh uxj] eqtQ~Qjuxj 9 [email protected] 323] 504] 506] 429 Fkkuk dksrokyh uxj] eqtQ~Qjuxj 10 [email protected] 147] 148] 224] 225]504] 506] 332] 353] 341 Hkknfo o 7 fdz0 yk0 ,DV Fkkuk flfoy ykbZu] eqtQ~Qjuxj 11 [email protected] 302] 120 ch Fkkuk dksrokyh uxj] eqtQ~Qjuxj 12 [email protected] 302 Fkkuk dksrokyh uxj] eqtQ~Qjuxj 13 [email protected] [email protected] xSaxLVj ,DV Fkkuk dksrokyh uxj] eqtQ~Qjuxj The criminal history of the son of petitioner clearly reflects that he has been in the business of crime wherein violence rules the street; only the strongest survives and your turf can never be big enough. The time for mercy is over, it is to kill or to be killed and once you go down this path there can be no return. Once such has been the life style of the son of the deceased and the factual situation that has so emerged that son of first informant had been accused in Case Crime No. 780 of 2011 wherein in all 8 persons were killed which was inclusive of three children ranging from 2 to 5 years of age and in connection with this case Vickky Tyagi was confined to jail and was facing the trial and during the period when the trial was ongoing, the evidence was being recorded, it is true that he has been brutally done to death before the Court of Additional Sessions Judge, Court No. 10, Muzaffarnagar. Such incidents can never be approved of wherein an accused in custody is being killed in such a daredevil manner and certainly this is a matter of concern for everyone connected with the law enforcement and public order. Once accused is in custody then protection of his life and liberty is the constitutional as well as statutory obligation of the State, and in the present case we would have to concede to this situation that there has been lapses/laxity in providing protection to accused, as had there been adequate alertness and State machinery in its place, such incident in Court premises could have been averted/thwarted, and a life could have been saved.
Earlier also writ petition has been filed, wherein request for fair investigation has been made and in the said writ petition to show and substantiate that investigation in question carried out is free/fair/transparent one, the Investigating Officer filed his affidavit dated 5.5.2015 with following details;
"3. That by means of the present petition, it seems that the petitioner while lodging his grievance alleged therein that the investigation is not being done proper by the present Investigating Officer and specially the fact that apart from two accused persons nine other accused persons are still not arrested and specially the three police personnel as named in first information report.
4. That the present first information report was lodged on 16.2.2015 immediately after getting the investigation the main accused Sagar Malik was arrested and was sent to jail, and further acting swiftly with the investigation another accused Brajveer was arrested on the very next date i.e on 17.2.2015.
5. That thereafter, the statements of all the witnesses, who were present at the place of incident i.e Court room, where recorded including that of the informant, while proceeding ahead with the investigation the police custody remand was sought and the same was granted by the learned Magistrate on 24.2.2015 and thereafter statement of main accused Sagar Malik was recorded. In his confessional statement he confessed that, some family members of co-accused Ranjanveer was killed by Vicky Tyagi earlier and as such co-accused Ranjanveer was inimical to Vicky Tyagi from early point of time. In his statement he further stated that Ranjanveer and his family members contacted his brother Sourabh Malik and while giving him a huge amount entered in a contract to kill Vicky Tyagi. Thereafter the brother of Sagar Malik i.e Saurabh Malik who got the money from Rajanveer provided him the dress of an Advocate, weapon etc and planned the entire murder. The said main accused Sagar Malik confessed to have killed Vicky Tyagi on the instance of bis brother Saurabh who was approached by co-accused Ranjan Veer, but at the same time the story as contained in the first information report with regard to the involvement of the certain police officers in the present case were not disclosed. The specific statement of Sagar Malik was against Ranjanveer and his brother etc but has not alleged that the police personnel were even remotely concerned with the said incident.
6. That on the statement as given by main accused Sagar Malik some other accused were added in the investigation such as Saurabh Malik, Sushil Mooch etc.
7. That the Investigating Officer on 27.2.2015 examined the security in charge of Vicky Tyagi at the time of incident as well as the con. Vikas, however, in the statement of the above mentioned witnesses there was not even whisper about the involvement or presence of the alleged accused police personnel at the place of incident.
8. That on 02.03.2015 statement of informant under Section 164 Cr.P.C was recorded whereby she had supported the version as alleged by her in the first information report except some improvement by her.
9. That on 09.03.2015 the non bailable warrant of accused Ranjanveer, Paramveer , Virendra @ Billu, Sonia and Rajveer were sought and was granted by the learned Magistrate.
10. That since the above accused persons did not surrender, the proceedings under sections 82-83 Cr.P.C was initiated and the order under section 82 Cr.P.C issued on 04.04.2015.
11. That since there was an specific allegation in the first information report that certain police officers such as Sub-Inspector Sachin Malik, C.O. Anuj Kumar and Con. Vikas on 11.02.2015 at about 11.00 p.m. had visited the Police Station Nai Mandi, District Muzafar Nagar while Vickey Tyagi was in custody ( police lock-up) and threatened him with dire consequences, the Investigating Officer of the present case in order to test the genuineness of the case went to concerned Police Station and examined S.S.I. Prabhakar Kentura, who was the Investigating Officer of Case Crime No.1043 of 2014, in which the deceased Vicky Tyagi had conspired to kill the constable of Jail. However, the said Sub-Inspector Prabhakar Kenture who had taken Vicky Tyagi on police custody remand, was examined on 18.4.2015, who in his statement did not whisper about the presence of the above mentioned 3 police personnel at Police Station Nai Mandi at 11.00 p.m. On 11.02.2015.
12. That on the same day Sub-Inspector Satendra Singh was also interrogated by the Investigating Officer who also didn't mentioned the persons of the above mentioned 3 accused police personnel at the police station Nai Mandi on 11.02.2015. It may be pointed out that the Sub- Inspector was the night officer and was deputed at Police Station Nai Mandi on 11.02.2015.
13. That the above mentioned statements were also supported by Con.689 Devendra Kumar Sharma, who also rebutted the allegation as contained in the first information report and stated that none of the police personnel had come during the night of 11.02.2015 as alleged in the first information report.
14. That after taking the statement of the witnesses above named the Investigating Officer in order to test the genuineness of the statement perused the general diary of the concerned Police Station i.e Police Station Nai Mandi, District Muzaffar Nagar, which had absolutely no whisper regarding the visit of 3 police personnel to the Police Station to meet Vicky Tyagi (deceased), on 11.02,2015 at 11.00 p.m. nor the presence of informant was noted in G.D.
15. That since the allegation was very specific against the 3 police personnel in first information report as well as the statement under Section 164 Cr.P.C, the Investigation Officer of the present case in order to do deep rooted investigation, took out the entire criminal history of Vicky Tyagi ( deceased) and after perusing the same found out amongst all the cases in one case being Case Crime No.1043 of 2014 Vicky Tyagi was arrested earlier by Sub-Inspector Sachin Malik and in another case being Case Crime No.390 of 2014 Con. Vikas Kumar had worked out. So far as C.O. Anuj Kumar is concerned he at that point of time was part of S.T.F. team and was assigned the job by the seniors to prove in the above mentioned two cases against Vicky Tyagi. At this stage it may be pointed out that Vicky Tyagi in the above mentioned two cases was not named and during investigation his name had come into light. It seems that the family members of Vicky Tyagi was under impression that C.O. Anuj Kumar who was part of the S.T.F team along with Sachin Malik and Con. Vikas was instrumental for getting name of Vicky Tyagi in the above mentioned case during investigation.
16. That statement of C.O. Anuj Kumar and Con. Vikas kumar was taken on record, whereby they have specifically mentioned the reason as to why their names were taken in the first information report by the informant.
17. That while doing the above mentioned exercise the Investigating Officer was not just making effort to know as to whether there is motive for false implication or not, but during investigation he further found out that all the police personnel who are named in the first information report were somehow connected in some cases, which were pending against Vicky Tyagi. At this stage it will not out of place to mention that the deceased Vicky Tyagi was hardened criminal of western Uttar Pradesh and was having as many as 54 cases against him including approximately 18 cases murder case. To support the aforesaid facts copy of the criminal history at the Vicky Tyagi is being annexed herewith and marked as Annexure-No. SCA-1 to this Short Counter Affidavit.
18. That since there was a specific allegation against the police officers the Investigating Officer of the present case have also entered the statement of Circle Officer Arun Kumr whereby the had stated that on the date of incident i.e 11.02.2015 while being posted at S.T.F. Noida for investigation of case he was going of Saharanpur in Tanishk Show room case, he had also stated that some where in the afternoon while going to Saharanpur he had received a call from another police officer whereby he was apprised about the daredevil murder of Vicky Tyagi. He further stated that he had got instruction from some senior officer to look into the said matter since Vicky Tyagi was a hardened criminal and was indulged into a gang war with other gangster.
19. That while proceeding with the investigation the Investigating Officer of the present case in order to test the genuineness of the version of the first information report went to the police of Police Station Mansoorpur, District Muzaffar Nagar where Con. Vikas was posted on 11.02.2015, after taking out G.D. entry of Police Station Mansoorpur the Investigating Officer of the present case as per record came to know that he had gone police Station Khekra, District Baghpat with the Sub-Inspector Hari Raj, Sub-Inspector Jitendra Kumr Sharma, Con. Mursheed Khan.
20. That since then, from the investigation as done till date, the Investigating Officer cannot gather any evidence except the allegation as contained in the first information report against the accused police personnel, but even then in order to do a fair and impartial investigation he proceeded ahead and further investigated about the involvement of the police personnel as named in the first information report in the present case, however, in order to confirm the motive for Ranjanveer to kill Vicky Tyagi the Investigating Officer of the present case took out the details of some criminal cases, which were pending between them and found more than three cases of 302 I.P.C between family of Ranjanveer and family of Vicky Tyagi. So far as the enmity with police personnel is concerned it was investigated and found that there was absolutely no reason for the police personnel (accused) to involve themselves in the crime in question.
21. That during investigation another important factor, which can prove the incident dated 11.02.2015 was, the presence of two advocates as directed by the learned Magistrate in the order dated 11.02.2015 who had further directed to accompany the accused. After taking the said order of police remand of Vicky Tyagi on record, since the name of the advocates was missing in the order the Investigating Officer went to the counsel of deceased Vicky Tyagi and found that after the said order of police custody remand, an application was preferred by two advocates namely Sri Manoj Sharma and Om Prakash Kaushik, whereby they had requested the Court to appoint them to accompany Vicky Tyagi at the time of police custody remand. The Investigating Officer immediately went to those lawyers and examined them under section 161 Cr.p.C, specific question was put by Investigating Officer to them that if they were present alongwith the deceased on 11.02.2015 then, whether they had seen the informant and her husband at Police Station at about 11.00 p.m. and also whether the 3 police officers as alleged in the first information report had visited Police Station Nai Mandi. The two advocates who were examined did not give proper reply and rather chose to recuse themselves from the said murder case.
22. That the Investigating Officer had put the specific question to informant as well as the advocates present as to whether the alleged threatening which was done by police officers were ever report to only Police Station or any other senior police authorities, and the reply was in negative. The Investigating Officer also tried to found out only such application by Vicky Tyagi complaining about the incident dated 11.02.2015 but no such application was on record or was either given by any person.
23. That it is submitted that till date the only evidence , which is available to the Investigating Officer of the present case against 3 police personnel was only the statement of complainant whereby she alleged that she alongwith her husband was present at the Police Station concerned while his son was in the police lockup. In order to test the genuineness of the allegation of the informant in the present case the Investigating Officer asked specific question to the informant as to whether she was carrying mobile when she was at the Police Station Nai Mandi, which was again replied in negative, not satisfied with the said reply the Investigating Officer took out the mobile number of the informant and immediately sent it for getting the tower details from surveillance the report of surveillance is still awaited.
24. That since the first information report as well as the statement Under Section 164 Cr.P.C. only disclose " Con. Vikas" as an accused. Investigating Officer again recorded the statement of the informant, whereby she gave the details of Con. Vikas, who was posted at Police Station Mansoorpur.
25. That during investigation the G.D. entry of Police Station Mansoorpur, Titawi, Nai Mandi of 11/12.05.2015 was taken out and placed of on record of the investigation.
26. That the Investigating Officer had also taken out the mobile call details record of alleged accused C.O. Anuj Kumar in order to ascertain his present on 11.02.2015 at Police Station Nai Mandi, but as per the C.D.R as received by him of C.O. Anuj Kumar, it was found that on 11.02.2015 he was at Himanchal Pradesh.
27. That it may be also pointed out that so far as other accused persons whose involvement have already been found by the Investigating Officer, as already pointed above the non bailable warrant were procured and thereafter application for proceeding under Section 82 Cr.P.C was filed, which was allowed, and since the accused applicants have not surrendered till date the order under Section 83 Cr.P.C is likely to be passed on 07.05.2015.
28. That the Investigating Officer is trying his level best to arrest other co-accused person and had raided at various places in different cities but the accused could not be arrested. However, the Investigating Officer is likely to arrest the accused person very soon, sine he is not leaving any stone unturned to arrest them.
29. That the Investigating Officer in the present case is doing a very fair investigation and without being biased the investigation is being done against the involvement of each and every accused persons as named in the first information report irrespective of their ranks and posts. The Investigating Officer would have immediately arrested the alleged accused police personnel, if any such evidence would have been collected against them during investigation but as stated above after a thorough and detailed investigation the allegation as contained in the first information report with regard to the police personnel were not found to be correct till date. The Investigating Officer is investigating the case without influenced from any external influence and will definitely arrest the accused irrespective of their ranks and posts, if during investigation their complicity in the present case is found.
30. That the investigation in the present case is still going on and the Investigating Officer is not leaving any stone unturned and will arrest the accused persons are already found involved in the above mentioned murder and will try to close the investigation as soon as possible."
In the present case this much is clear that petitioner was not at all satisfied with the investigation carried out and, accordingly, she has been before this Court with the demand of free, fair and transparent investigation and this Court has also taken note of the fact and therein affidavit has been filed justifying the steps taken in the direction of free/fair/transparent investigation and that was certainly not to the liking of petitioner as it was giving clean chit to police personnel.
Record in question, produced before us, reflects that she has made request before the District Magistrate on 21.2.2015 clearly mentioning therein that she has no hope and trust on the local police as police personnel are siding with the accused persons and investigation is not at all being carried out on correct lines and all attempt has been made to save the real accused persons and, accordingly, recommendation be made to the State Government for getting the matter investigated from CBI. District Magistrate, Muzaffarnagar, on 22.2.2015 referred the request of petitioner to the State Government. Not only this Smt. Usha wife of Rajveer Singh, Advocate, who has also been arrayed as an accused, came up with the case that her husband has been falsely implicated, whereas at the relevant point of time, he was at Supreme Court wherein computerised card has been issued in his favour with dated 16.2.2015, time 15.49.00, and impartial investigation be got carried out by CBCID. Request of Usha Devi has also been referred to the State Government. On the request made on behalf of both the sides the State Government on the request of Usha Devi has called for comments on 2.3.2015 from Senior Superintendent of Police, Muzaffarnagar and on the request of petitioner comments had been called for from Senior Superintendent of Police, Muzaffarnagar on 8.4.2015. Thereafter, report has been submitted mentioning therein that both the parties are expressing no confidence in local police, the matter be transferred to CBCID. The Senior Superintendent of Police, Muzaffarnagar has also made recommendations that both the parties are interest in getting the investigation transferred. The record in question speaks that thereafter on the basis of the recommendations, that have been so made, orders have been passed for transfer of investigation, transferring the same from local police to CBCID.
To say, in the facts of the case, that there is arbitrary exercise of authority cannot be accepted by this Court for the simple reason that there has been request from both the side i.e. petitioner as well as from the side of accused persons levelling charges against local police and requesting therein for transferring of the investigation and it may be true that petitioner has been requesting for transfer of investigation to CBI but the State Government in its wisdom has thought it best not to refer the matter to the CBI rather transferring the same to one of its branches i.e. CBCID.
Free, fair and transparent investigation is the rule of the day and same is part of constitutional rights guaranteed under Article 20 and 21 of the Constitution as per the judgement of Apex Court in the case of Babubhai Vs. State of Gujarat reported in (2010) 12 SCC 254 then what further steps should be undertaken to do justice can be understood from paragraphs 32 to 39 of the said judgement, and same is being quoted below:
32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur Vs. State of Punjab AIR 1960 SC 866; Jamuna Chaudhary & Ors. Vs. State of Bihar AIR 1974 SC 1822; and Mahmood Vs. State of U.P. AIR 1976 SC 69).
33. In State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260, this Court has held as under:
"Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ....Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. ....Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power....The word `personal liberty' (under Article 21 of the Constitution) is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily..... An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."
34. In Navinchandra N. Majithia Vs. State of Meghalaya & Ors. AIR 2000 SC 3275, this Court considered a large number of its earlier judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial. Therefore, the court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: "The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence..... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. ....A vitiated investigation is the precursor for miscarriage of criminal justice."
(Emphasis added)
35. In Nirmal Singh Kahlon (supra), this Court held that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India.
36. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1, one of us (Hon'ble P. Sathasivam, J.) has elaborately dealt with the requirement of fair investigation observing as under:-
"...... The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India....
It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society....
The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation....
The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation.....".
37. This Court in K. Chandrasekhar Vs. State of Kerala & Ors. (1998) 5 SCC 223; Ramachandran Vs. R. Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel & Ors. Vs. State of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs. Dharmendra Bafna (2009) 7 SCC 685 has emphasised that where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re-investigation. "Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."
38. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar Tiwari & Ors. AIR 1970 SC 786).
39. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair. ."
Aforesaid judgment has been followed in the case of Hema Vs. State through Inspector of Police, Madras reported in (2013) 10 SCC 192 wherein Apex Court has once again repeated that the investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner and in case biased investigation or tainted investigation is there then certainly same would never result in fair trial.
Apex Court once again in the case of Manohar Lal Sharma Vs. Principal Secretary 2014 (2) SCC 553 has emphasised that aim of investigation is ultimately to search for truth and bring the offender to book and Court may in appropriate cases intervene to protect personal/property rights of citizens. In the said judgement itself role of police has been discussed as follows.
25. Lord Denning has described the role of the police thus: "In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.
The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants"
26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book."
Once fair investigation is a right guaranteed under Article 20 and 21 of the Constitution of India then in case there is apprehension of there being unfair investigation then for strong reason said investigation can always be transferred so that real truth may be revealed and as far as authority of this Court to transfer the investigation is concerned, same cannot be doubted as law on the subject has been clarified in the case of State Of West Bengal & Ors vs Committee For Protect,Democratic Rights reported in 2010 (3) SCC 571 wherein Apex Court observed as follows:
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. 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."
Said judgement has been followed in the case of K.V. Rajendran Vs. Superintendent of Police reported in 2013 (12) SCC by summarizing the law in respect of transferring of investigation from State to any other independent agency like CBI, by mentioning that same may be done only in rare and exceptional cases, and further where it is necessary to do justice and to instil confidence in the investigation. Relevant extract aforesaid judgement is being reproduced below:
"The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors., AIR 1994 SC 1023; Vineet Narain & Ors., v. Union of India & Anr., AIR 1996 SC 3386; Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC 314; Disha v. State of Gujarat & Ors., AIR 2011 SC 3168; Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors., (2011) 13 SCC 329; and State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364).
Apex Court in the case of Subrata Chattoraj Vs. Union of India, Writ Petition No. 401 of 2013 decided on 09.05.2014 has considered at length the contingencies, in reference of transfer of investigation from State Agencies to C.B.I and in said context has dealt with the Constitution Bench Judgement of Apex Court in the case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others reported in (2010)3 S.C.C. 571, 2010 (3) SCC 571, wherein view has been taken, that while passing any order, the Courts must bear in minds certain self imposed limitations on the exercise of constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Such an order is not to be passed as a matter of routine or merely because party has levelled some allegations against police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national or 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. Ultimately in paragraph 9 of the judgement, on the basis of earlier judgement wherein such power has been exercised has reiterated the earlier noted view by mentioning that power to transfer should be exercised sparingly and with utmost case and circumspection as Apex Court more than once has not directed transfer of cases.
We may at this juncture, also refer to a Division Bench judgement of this Court in the case of Criminal Misc. Writ Petition No. 6973 of 2014, Smt. Vandana Srivastava Vs. State of U.P, decided on 21.03.2014, wherein in reference of exercise of power of transfer of investigation by the higher police officials or by the State Government, following directions have been issued (i) normally there should be no any order of transfer of investigation on an application made by an accused. (ii) Every attempt should be made by the higher police official/State on receipt of an application for transfer of investigation to first ensure that the investigation is done by the concerned Police Station/police authority in a fair and diligent manner. Said directives have been directed to be strictly complied with. (iii) Before passing order of transfer of investigation, report should be called for from Investigating Officer qua the status of investigation and order of High Court, if any (vi) If it is necessary to pass an order of transfer of investigation on the application of an accused, minimum requirement is recording of reasons with reference to the material available.
Looking into the facts of the case what we find from the record is that son of petitioner has been killed in broad day light and that too when evidence in question was being recorded and petitioner has a strong feeling that police personnel have also colluded in the same leading to elimination of her son and she has shown her complete distrust in the local police but with a request to transfer the investigation to CBI and from the side of accused persons also complaint was being made of framing innocent persons, who were not at all on the scene, and in the said circumstances once there has been request from both the sides i.e. petitioner and accused-persons to transfer the investigation and complicity of police personnel was also being complaint of, then in this background, once State Government has taken a conscious decision to transfer the investigation to CBCID, then merely because fingers have been raised against some police personnel it cannot be a ground to accept the request of petitioner for further transferring the investigation to CBI merely on the apprehension that as complicity of police personnel is also there, who ever would be entrusted with investigation would lean in favour of accused persons being member of U.P. Police Force. Such general distrust based on apprehension, even without knowing the name of Investigating Officer cannot be approved of.
At this juncture we proceed to taken note of the fact that in respect of transferring of investigation to CBCID there is a Government Order dated 5.9.1995 and in the said government order the circumstances in which the case in question could be transferred to CBCID has been provided for. The same is as follows;
"12&'kklukns'k la[;k& [email protected]%&iq&3&[email protected]] fnukWd 05&09&1995 ds izLrj&2 esa mfYyf[kr fuEu fcUnq la[;k&1]3]4 ds vuqlkj ;k vU;Fkk foospuk lhchlhvkbZMh dks LFkkukUrfjr fd;s tkus ds vuqlkj ds vkSfpR;iw.kZ dkj.k vFkok lhchlhvkbZMh dks foospuk LFkkukUrfjr fd;s tkus ds dkj.k& 1& vijk/k dh izd`fr bruh tfVy vkSj isphnxh ls Hkjh gks fd LFkkuh; iqfyl ds Lrj ij mldh lgh izdkj ls foospuk fd;k tkuk lEHko u gks& vfHk;ksx esa oknh ,oa izfroknh LFkkuh; iqfyl ls foospuk djkuk ugha pkgrs gSa rFkk vfHk;ksx esa iqfyl foHkkx ds ,d iqfyl mik/kh{kd] ,d mifujh{kd] ,d vkj{kh ukfer gSA 2& vijk/k vUrjkZ"Vzh; jkT; ;k izns'kO;kih ;k vUrj e.Myh;@ifj{ks=h; gks vijk/k ls ifj{ks=h; R;kxh fojknjh ds yksxksa esa jks"k O;kIr gSA 3& ,slh ifjfLFkfr;kW mRiUu gks x;h gksa fd tu lkekU; ds fnekx esa fdlh ekeys dh foospuk dks ysdj LFkkuh; iqfyl dh fu"i{krk ij iz'u fpUg yx x;k gksA"
The case in hand falls within the parameters provided for under said Government Order dated 5.9.1995 as here both parties have expressed distrust in local police and police personnel have also been arrayed as accused, and in this background once such cases are to be enquired by CBCID and accordingly decision has been taken consciously by the State Government, then there is no infirmity in decision making process and there are no exceptional circumstances in hand that would warrant us to pass order for transferring the investigation to CBI.
Consequently, in the facts of the case, the case in hand does not warrant transfer of investigation to CBI and the State Government is not at all at fault when it has proceeded to transfer the investigation to CBCID to provide credibility and instil confidence in the investigation in question.
We, accordingly, ask the local police to handover the entire papers of the case to CBCID and, in the facts of the case, the Investigating Officer should be of the level of Superintendent of Police as investigation in question is to be carried out in reference of role of police officials starting from Circle Officer to Constable in the crime in question and the investigation to be carried out should be free/fair/transparent one with one goal i.e. find out the truth.
Writ petitions are disposed of, accordingly.
Order Date :- 10.8.2015
Shekhar
(Vijay Prakash Pathak,J.) (V.K. Shukla, J.)