Himachal Pradesh High Court
Between: vs Government Of Uttar Pradesh on 3 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NONREPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 3rd DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 3633 OF 2020
Between:
SMT. MEENAKSHI SHARMA,
W/O LATE SH. PRAVEEN SHARMA,
RESIDENT OF C/O H.D. SHARMA,
NEAR J.P. ROAD WAKNAGHAT,
TEHSIL KANDAGHAT, DISTRICT
SOLAN, H.P.
....PETITIONER
(SH. SUDHIR THAKUR, SR. ADVOCATE WITH SH. KARUN
NEGI, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ITS CHIEF SECRETARY.
2. PRINCIPAL SECRETARY (HOME)
GOVERNMENT OF HIMACHAL PRADESH,
H.P. SECRETARIAT, CHHOTA SHIMLA,
TEHSIL & DISTRICT SHIMLA, H.P.
3. SUPERINTENDENT OF POLICE NAHAN,
DISTRICT SIRMOUR, H.P.
...RESPONDENTS
(MR. ASHOK SHARMA, ADVOCATE GENERAL WITH MR.
RAJINDER DOGRA, SR. ADDL. A.G AND MR. SHIV PAL
MANHANS, MR. VINOD THAKUR, ADDL. A.GS.)
Reserved on: 24.11.2021
Decided on: 3.12.2021
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-2-
____________________________________________________________
.
This petition coming on for admission after notice this
day, Hon'ble Mr. Justice Satyen Vaidya, passed the following:
ORDER
The instant petition has been filed for the grant of
following substantive reliefs:
"i. To direct the respondents to refer the matter for
investigation to the Central Bureau of
r Investigation keeping in view of the facts and
circumstances of the case.
ii. To pass an order for the time bound investigation
of the case and to monitor the investigation of the
case and to monitor the investigation of the same
case.
iii. To direct the investigating agency to register an
FIR in the case mentioned above on the basis of
the Rapat No. 15 dated 9.6.2020 Annexure P1".
2. The petitioner is widow of deceased Praveen Sharma. On
9.6.2020 Parveen Sharma, aged about 32 years, was found
unconscious on a steep hill at a place known as "Kundu Nallah,"
near Pairvi Pul, Sanaura, Tehsil Rajgarh, District Sirmour, H.P.,
within the jurisdiction of Police Post, Yashwant Nagar under Police
Station, Rajgarh, District Sirmour, H.P. He was removed to Regional
Hospital, Solan but was declared brought dead. Later it was revealed
from post mortem examination that the deceased had suffered anti
mortem ribs fracture involving 4th, 8th ribs besides ten numbers
external injuries. The cause of death was opined as "irreversible
.
hemorrhage shock secondary to blunt trauma sustained to thorax
region".
3. Petitioner approached this Court after about three
months from the incident for the reliefs as noticed above. Grievance
of the petitioner is that the police despite having noticed
circumstances pointing towards commission of cognizable offence,
failed to discharge its statutory duty under Sections 154 and 157 of
the Code of Criminal Procedure (for short "Code").
4. As per petitioner, her husband was found in
unconscious state at a secluded place far away from his house,
which by no stretch of imagination could be said to be a normal
circumstance. Even though deceased Praveen Sharma was declared
brought dead, the police for the reasons best known to it did not
consider it appropriate to register a case under Section 154 of the
Code. Petitioner further alleged having made complaints in writing to
the SHO as well as to the Superintendent of Police, Sirmour at
Nahan, but without any result.
5. Respondents came forward with the plea that a DDR Nos
11 and 15 were recorded at Police Post Yashwant Nagar on 9.6.2020.
As per respondents, a detailed inquiry was conducted. Post mortem
of deceased was got conducted firstly at Regional Hospital Solan, on
10.6.2020 and subsequently at IGMC, Shimla, on 12.6.2020. The
samples preserved during the post mortem were sent for chemical
.
analysis and report was received on 5.8.2020. It is maintained that
the doctors after post mortem had opined the case of death to be the
result of "irreversible hemorrhage shock secondary to blunt trauma
sustained to thorax region". The said report was finally confirmed by
the doctors even after receipt of report of chemical analysis from
State Forensic Science Laboratory (SFSL). It is further stated that
the police had thoroughly investigated the matter and had even
sought the opinion of forensic expert by getting the spot inspected
from them. The forensic experts also are stated to have opined "the
topography of spot, injuries on the body were consistent with a case of
fall from steep hill of Nalla". Thus, the police maintained the
hypothesis that deceased had a fall from the hill, which caused his
death.
6. We have heard learned counsel for the parties and have
also perused the records.
7. The petition was filed on 11.9.2020. Initially petitioner
had impleaded State through its Chief Secretary, Principal Secretary
Home and Superintendent of Police, Nahan as respondents. As first
response, a status report dated 25.9.2020 was fled in this court
under the signatures of Station House Officer, Rajgarh (SHO). Later a
reply dated 12.10.2020 under the signatures of Superintendent of
Police (SP), Nahan was filed and lastly newly added respondent ASI,
Amar Dutt Sharma (ASI) also filed his personal affidavit dated
.
1.10.2021.
8. As per version of Police, as gathered from above noticed
response(s), chronology of events can be detailed as under:
(i) DDR No.11 was recorded at Police Post (PP)
Yashwantnagar at about 7.35 PM on 9.6.2020. Informant was
the ASI. As per DDR No.11, a telephonic information to the
effect was received from Shri Vidya Nand Sharma, Vice
President, Gram Panchayat, Karganu through Mobile number
9817210142, that a person was lying unconscious about 120
meters above the road in Kundu Nallah, near Pairvi Pul and
request was made for Police help. The ASI accompanying by
other Police officials left for the spot.
(ii) On spot of incidence, Police found one Anil Sharma,
informant Vidya Nand Sharma, Ankit Thakur and Anil Kumar
@ Kaku. Anil Sharma disclosed the name of unconscious
person as Parveen Sharma. He was carried to road side and
then removed to RH Solan in the Car of Ankit Thakur.
(iii) On way to hospital, Anil Sharma disclosed to the ASI
that he along with Parveen Sharma had started from Solan in
the car of Parveen Sharma towards Pairvi Pul. On way he had
purchased a "quarter" of "Magic Moment" (VODKA) and both of
them had consumed the Vodka in equal proportion near
Dungu Nallah. Thereafter Parveen Sharma had expressed need
.
to ease himself out. He had gone towards Dungu Nallah, but
when he did not return for about half an hour Anil Sharma
went in his search and found him unconscious at some
distance. Anil Sharma returned to the car and carried water
bottle, splashed water on Parveen Sharma but could not
succeed. He again returned back on the road where Vidya
Nand Sharma and Ankit Thakur stopped their vehicle on his
request and accompanied him to spot. The information to the
Police was given by Vidya Nand Sharma from his mobile phone
from spot.
(iv) Parveen Sharma was declared brought dead at RH
Solan. Police conducted inquest proceedings. No injuries were
observed on the body of deceased by the ASI. Therefore, he did
not find any evidence of homicide. Body was packed as per
COVID protocol and shifted to mortuary. Police party returned
to PP and DDR No. 15 dated 7.6.2020 was recorded at 11.30
PM.
(v) Next day on 10.6.2020, brother of deceased (Navneet
Sharma) accompanied by other relatives reached the spot early
in morning and requested ASI Amar Dutt to visit the spot. It
was noticed that one big stone was lying in Nallah which
appeared to have dislodged from height of about 9/10 feet and
.
traces to this effect were found.
(vi) Post mortem of deceased was conducted at Regional
Hospital Solan, on 10.6.2020 at 11.45 AM. No external injury
was found on the body of deceased and the same was referred
to IGMC, Shimla for opinion of forensic expert on the cause of
death.
(vii) Body of deceased was tested for COVID before being
taken to IGMC. The report was negative and on 12.6.2020
post mortem was again conducted at IGMC, Shimla and PMR
No. 174 of 2020 was issued. Its perusal revealed as many as
10 external ante mortem injuries on the body as detailed
under:
"(1) red abraded contusion 2cm x 1cm present
over joint above and adjoining to lateral half
of left elbow.
(2) red grazed abrasion 3 cm x 1 cm present
over the posterior aspect of right shoulder
joint.
(3) read grazed abrasion 1 cm x 1 cm present
in the midline of posterior aspect of lower
thorax.
(4) read abraded contusion 2 cm x 1 cm
present over the posterior aspect of right
side of abdomen in middle one inch 5 cm
lethal to midline.
(5) red abraded contusion 4cm x 1 cm present
over the right side of posterior aspect of
.
abdomen 1.5 cm below and lateral to injury
No.4.
(6) red contusion of size 1cm x 1cmpresent
over the anterior aspect of left side of thorax
1.5 cm from midline in 5th intercostal space.
(7) read contusion of size 1.5 cm x 1 cm.
Present over right anterior aspect of thorax
4.5 cm from midline in the 7th inter coastal
space.
(8) red contusion of size 2.5 cm x 1.5 cm
present in the midline over and aspect of
thorax in 7th8th intercostal space.
(9) red contusion of size 2.5 x 1cm present over
anterior aspect of thorax in 7 th 8th
intercostal space 1 cm lateral to injury No.
8 on left side.
(10) red abraded contusion of size 4 cm x 1 cm
present over the left lumber right of anterior
aspect of abdomen 4.5 cm lateral to the
umbilicus".
In addition ante mortem fracture of 4th and 8th ribs
with resultant internal injuries to lungs were also
detected.
(viii) Samples for chemical analysis were preserved and sent
to SFSL, Junga. "Irreversible hemorrhage shock secondary to
blunt trauma sustained to thorax region" was opined as cause
of death provisionally. However, the ASI was verbally informed
.
by Doctors at IGMC Shimla that cause of death was internal
injuries suffered by deceased as a result of fall of some heavy
object on him.
(ix) Statement of Anil Sharma was recorded by the ASI on
12.6.2020, in which he improved from his earlier oral version
and additionally stated that on 9.6.2020, Parveen Kumar had
called him telephonically and asked him to meet outside Bus
Stand Solan as they had to visit place known as "Nagadi". He
accordingly joined Parveen Kumar, who was in his Maruti800
No.HP582392 and went towards "Panch Parmeshwar
Temple". It was about 2 PM, Parveen started talking to some
female from mobile phone of Anil Kumar. On being asked, why
he was not using his own phone, Parveen Kumar had replied
that he was doing so in order to avoid being exposed at home.
When he had gone in search of Parveen Kumar at Kundu
Nallah, he had found him sitting in the company of a female,
who happened to be belonging to nearby village to which Anil
Kumar belonged. He also sat with them for some time and then
was asked to go back to the car by Parveen Kumar. It was
second time when he went in search of Parveen Kumar that he
found him unconscious.
(x) On 15.6.2020, SHO Rajgarh visited the spot with the ASI
.
and Anil Kumar. One Pawan Kumar was also associated as
witness. A heavy stone was stated to have been found on spot
which appeared to have rolled down from uphill a few days
back. The spot, where deceased was sitting with the female,
was identified by Anil Kumar. A packet of condoms, empty
pouches of "lays" and "tobacco" with a hair were found on
spot. The ground was found depressed so as to reveal as
somebody had lied down there. The statement of Anil Kumar
was again recorded, wherein he reiterated the contents of
earlier statement dated 12.6.2020.
(xi) On 16.6.2020 the ASI recorded the statement of the
female who was stated to be with deceased. As per her version,
she had received phone call from some unknown person on
9.6.2020 at about 10 AM and she had found missed calls of
same person at about noon on the same day. At about 4 PM
deceased had given her phone call informing his arrival. She
admitted to have indulged in sexual activity with deceased.
According to her, Anil Kumar, who belonged to the village
which was near to her village, had also visited them. She
further stated that after sexual activity she left for her home
and deceased was still on spot.
(xii) The SFSL vide its chemical analysis report dated
.
5.8.2020 reported that no alcohol/poison was found in the
blood samples of deceased.
xiii) On 14.8.2020, the statement of petitioner was recorded
by police, who expressed her dissatisfaction with the
proceedings and conclusions drawn by Police. On 27.8.2020,
petitioner made a written complaint to SP Nahan.
(xiv) On 29.8.2020, IGMC Shimla, after perusing chemical
analysis report of SFSL, reiterated its opinion dated 12.6.2020
as to cause of death.
(xv) SP Nahan received the complaint of petitioner on
5.9.2020 and forwarded the same to SHO, Rajgarh on
6.9.2020.
(xvi) Instant petition was filed on 7.9.2020 after supplying the
copies of petition to the original respondents on the same day.
(xvii) The Sub Divisional Police Officer (SDPO) Rajgarh on
13.9.2020 requested Director SFSL to inspect the spot. The
team of experts visited the spot on 20.9.2020 and submitted
their report dated 6.10.2020.
(xviii) On 8.10.2020, the SDPO Rajgarh requested IGMC
Shimla to opine the reasons for non detection of alcohol in the
samples of deceased and also the reason for late appearance of
injuries on his body. On 9.10.2020, IGMC opined through
separate communications that due to delay in drawing of
.
samples there was possibility of alcohol not being detected and
regarding injuries it was opined as under:
"The injuries mentioned in PMR No. 174/2020, dated
12.6.2020 on the body of deceased are abrasions and
contusions. Abrasions can be appreciated when they are
dry and contusions may appear as delayed contusions.
"It is possible that these injuries may be better
appreciated at autopsy table."
9. Admittedly, Police did not register First Information
Report under Section 154 Cr.P.C, still it ventured to have roving
inquiry into various aspects of the matter and arrived at firm
conclusion that the deceased appeared to have put his weight on the
stone while descending on the slope, which caused the stone to roll
resulting in fall of deceased and injuries suffered by him.
10. Constitutional Bench of Hon'ble Supreme Court in
Lalita Kumari vs. Government of Uttar Pradesh, 2014 (2) SCC 1,
has stated the law as under:
"119. Therefore, in view of various counter claims regarding
registration or nonregistration, what is necessary is only that the
information given to the police must disclose the commission of a
cognizable offence. In such a situation, registration of an FIR is
mandatory. However, if no cognizable offence is made out in the
information given, then the FIR need not be registered immediately
and perhaps the police can conduct a sort of preliminary verification
or inquiry for the limited purpose of ascertaining as to whether a
cognizable offence has been committed. But, if the information given
clearly mentions the commission of a cognizable offence, there is no
.
other option but to register an FIR forthwith. Other considerations
are not relevant at the stage of registration of FIR, such as, whether
the information is falsely given, whether the information is genuine,
whether the information is credible etc. These are the issues that
have to be verified during the investigation of the FIR. At the stage of
registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a cognizable
offence. If, after investigation, the information given is found to be
false, there is always an option to prosecute the complainant for
filing a false FIR.
120. In view of the aforesaid discussion, we hold:
120.1. Registration of FIR is mandatory under Section 154 of the
Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a
situation.
120.2. If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not
later than one week. It must disclose reasons in brief for closing the
complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence
if cognizable offence is disclosed. Action must be taken against
erring officers who do not register the FIR if information received by
him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to
be conducted will depend on the facts and circumstances of each
.
case. The category of cases in which preliminary inquiry may be
made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in reporting
the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and
the complainant, a preliminary inquiry should be made time bound
and, in any case, it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the
record of all information received in a police station, we direct that
all information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said Diary and the decision to conduct
a preliminary inquiry must also be reflected, as mentioned above".
11. Rule of law is the Constitutional mandate and Police
holds no exception. Section 156 and 157 of the Code empowers
police to investigate cognizable offences without prior authorization
or orders from Magistrate or any other authority, but for that
purpose also compliance of section 154 of the Code is imminent. In
case of noncognizable offences police cannot investigate without
prior authorization from the Magistrate under Section 155 of the
.
Code.
12. The importance and necessity of recording FIR has been
summed up by Hon'ble Supreme Court in the Lalita Kumari supra
as under:
"97. The Code contemplates two kinds of FIRs. The duly signed FIR
under Section 154 (1) is by the informant to the concerned officer at
the police station. The second kind of FIR could be which is
registered by the police itself on any information received or other
than by way of an informant [Section 157(1)] and even this
information has to be duly recorded and the copy should be sent to
the Magistrate forthwith. The registration of FIR either on the basis
of the information furnished by the informant under Section 154 (1)
of the Code or otherwise under Section 157 (1) of the Code is
obligatory. The obligation to register FIR has inherent advantages:
97.1. (a). It is the first step to 'access to justice' for a victim.
97.2. (b) It upholds the 'Rule of Law' inasmuch as the ordinary
person brings forth the commission of a cognizable crime in the
knowledge of the State.
97.3.(c) It also facilitates swift investigation and sometimes even
prevention of the crime. In both cases, it only effectuates the regime
of law.
97.4.(d) It leads to less manipulation in criminal cases and lessens
incidents of 'antedated' FIR or deliberately delayed FIR."
13. We have not been able to convince ourselves as to why
the police believed the version putforth by Anil Kumar in first
instance, especially when he was not consistent and had introduced
the female in the story after two days of his initial version.
Noticeably, Anil Kumar and female belonged to adjoining villages.
Further, police merely recorded the statement of the female and
.
again believed it to be true. As per Anil Kumar, Parveen Kumar had
called the female from his (Anil Kumar's) mobile at about 2PM on
9.6.2020, whereas the female in her statement mentioned the time of
receipt of call at 10 AM on 9.6.2020. The police version is that
numerous calls were made to the female from the mobile number of
Anil Kumar on 8.6.2020 and 9.6.2020 but there is no explanation
about the calls made on 8.6.2020. The material which was disclosed
by Post Mortem Report No. 174 of 2020 of IGMC Shimla, was worth
noticing, when no external injuries were found on the body of
deceased either by ASI Amar Dutt or the autopsy surgeons at RH
Solan. Indisputably, the circumstances in which the deceased was
found lying were not normal. Such conduct of police raises a lot of
questions. The inquest proceedings allegedly held by Police are also
surrounded by suspicion in as much as nothing has been produced
on record to show the necessary information having been sent to the
Executive Magistrate and his involvement thereafter. The expert team
from SFSL visited the spot about three months after the incident and
it can be anyone's guess as to what evidence they could find
especially when the intervening period had been rainy season.
14. In no circumstances, it can be said that the police had
no material to suspect the foul play and apprehension of commission
of cognizable offence. Had it been so, the police would not have
ventured into roving enquiry and should have closed the case in the
.
first instance after duly informing the victim/complainant under
section 157(2) of the Code.
15. The police, however, remained wedged to its stand even
when the petitioner expressed her discontent, vide her statement
dated 15.6.2020, with the proceedings undertaken by the Police and
r to
subsequently approached the Superintendent of Police, Nahan
through written complaint dated 27.8.2020.
police definitely is not in accordance with law.
The conduct of the
16. The Code though invests authorities with powers is also
the Magna Carta for citizens. Rule of check and balance is inherent
in the Code. Laudable purpose is to negate the possibility of misuse
of power or highhandedness of the authorities vested with powers.
On one hand the Code authorises the Police officer to arrest a person
without warrant for cognizable offence(s), on the other section 167
thereof mandates sending of report to the Magistrate without delay
regarding registration of FIR as also commencement of investigation
for cognizable offence(s). Further section 172 of the Code mandates
the police officer to maintain day to day case diary with respect to
investigation undertaken under sections 166 and 167 of the Code.
Thus, nothing is left in the hands of police officer to chose. Still, the
role of the Police, in the instant case acted as a monocratic,
unmindful of its legal obligations. The conduct of Police depicts the
sordid, despotic and nepotic functioning who in most brazen, blatant
.
and contemptuous manner have flouted and defied mandate of law.
17. The proceedings, thus, conducted by the police are not
lawful. In case it is called investigation, it could not have been done
without compliance of section 154, 156 and 157 of the Code and in
case it was inquiry, then it is without jurisdiction as the Code does
not vest the police to hold inquiry in such circumstances.
Assumingly, police could hold inquiry, still it was to follow mandate
of law as per Lalita Kumari (Supra). The material on record suggests
clearly that the conduct of police was not bonafide. The police diaries
have not been maintained in this case, which further places the
conduct of police in the realm of suspicion.
18. The fact of the matter remains that non registration of
FIR by the police and consequent absence of investigation in
accordance with law may have allowed the evidence, if any, to vanish
or dilute, still the law has to take its course. FIR is required to be
registered immediately on the basis of already available information
followed by prompt and expeditious investigation. The question
however arises should the investigation still remain with state police
or should it be undertaken by some other agency?
19. It is well settled that the investigation can be transferred
from local police to CBI only in exceptional cases and not as a
matter of routine. In State of West Bengal and others vs.
.
Committee for Protection of Democratic Rights, West Bengal
and others (2010) 3 SCC 571, a Full Bench of Hon'ble Supreme
Court has held as under:
"70. Before parting with the case, we deem it necessary to emphasize that
despite wide powers conferred by Articles 32 and 226 of the Constitution,
while passing any order, the Courts must bear in mind certain selfimposed
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
leveled some allegations against the local police. This extraordinary power
must be exercised sparingly, cautiously and in exceptional situations where
it becomes necessary to provide credibility and instill 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."
20. Reference can also be made to the judgment passed by
Hon'ble Supreme Court in K.V. Rajendran vs. Superintendent of
Police, CBCID South Zone, Chennai and others (2013) 12 SCC
.
480, wherein it has held as under:
"13. 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 instill 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......
17. In view of the above, the law can be summarised to the effect that the
Court could exercise its Constitutional powers for transferring an
investigation from the State investigating agency to any other independent
investigating agency like CBI only in rare and exceptional cases. Such as
where high officials of State authorities are involved, or the accusation itself
is against the top officials of the investigating agency thereby allowing them
to influence the investigation, and further that it is so necessary to do
justice and to instill confidence in the investigation or where the
investigation is prima facie found to be tainted/biased."
21. In the case of Mithilesh Kumar Singh vs. State of
Rajasthan and others (2015) 9 SCC 795, the Hon'ble Supreme
Court reiterated the legal position as under:
"12. Even so the availability of power and its exercise are two distinct
.
matters. This Court does not direct transfer of investigation just for the
asking nor is transfer directed only to satisfy the ego or vindicate the
prestige of a party interested in such investigation. The decision whether
transfer should or should not be ordered rests on the Court's satisfaction
whether the facts and circumstances of a given case demand such an
order. No hard and fast rule has been or can possibly be prescribed for
universal application to all cases. Each case will obviously depend upon its
own facts. What is important is that the Court while exercising its
jurisdiction to direct transfer remains sensitive to the principle that
transfers are not ordered just because a party seeks to lead the investigator
to a given conclusion. It is only when there is a reasonable apprehension
about justice becoming a victim because of shabby or partisan investigation
that the Court may step in and exercise its extra ordinary powers. The
sensibility of the victims of the crime or their next of kin is not wholly
irrelevant in such situations. After all transfer of investigation to an outside
agency does not imply that the transferee agency will necessarily much less
falsely implicate anyone in the commission of the crime. That is particularly
so when transfer is ordered to an outside agency perceived to be
independent of influences, pressures and pulls that are common place
when State police investigates matters of some significance. The confidence
of the party seeking transfer in the outside agency in such cases itself rests
on the independence of that agency from such or similar other
considerations. It follows that unless the Court sees any design behind the
prayer for transfer, the same must be seen as an attempt only to ensure
that the truth is discovered. The hallmark of a transfer is the perceived
independence of the transferee more than any other consideration.
Discovery of truth is the ultimate purpose of any investigation and who can
.
do it better than an agency that is independent."
22. Recently, the Hon'ble Supreme Court had occasion to
deal with an identical issue in Arnab Ranjan Goswami vs. Union of
India and others (2020) 14 SCC 12 and after exposition of the past
precedents of Hon'ble Supreme Court on the issue, it has been held
as under:
"46. The principle of law that emerges from the precedents of this Court is
that the power to transfer an investigation must be used "sparingly" and
only "in exceptional circumstances". In assessing the plea urged by the
petitioner that the investigation must be transferred to the CBI, we are
guided by the parameters laid down by this Court for the exercise of that
extraordinary power. It is necessary to address the grounds on which the
petitioner seeks a transfer of the investigation. .........."
23. After noticing the above noted exposition of law, we have
no hesitation in holding that, the instant case carves out exceptional
circumstances warranting the matter to be investigated by an
independent investigating agency. We are satisfied that the victim
has no specific design behind the prayer for referring the matter to
CBI, hence the same can only be an attempt to ensure the discovery
of truth, which is the ultimate purpose of any investigation and who
can do it better than the Central Bureau of Investigation which will
have all independence in the facts of the case.
24. The petition is thus allowed. Respondents are directed to
.
forthwith handover all records pertaining to the case to Central
Bureau of Investigation, through its Superintendent of Police,
Railway Board Building, Shimla whereupon, the CBI shall register a
case for commission of cognizable offence under appropriate
provisions of penal law(s) and shall investigate the same in
accordance with law with sufficient promptitude, keeping in view the
peculiar facts and circumstances of the case.
25. Before parting, we deem it fit and proper, keeping in view
the facts of the case, to direct Principal Secretary Home, Government
of Himachal Pradesh to get the conduct and role, of police officials
(having dealt with the matter) i.e. concerned Superintendent of Police
Sirmaur at Nahan, Sub Divisional Police Officer Rajgarh, SHO
Rajgarh and Shri Amar Dutt Sharma incharge Police Post
Yashwantnagar, in dealing with the matter detailed hereinabove,
enquired from an officer not below the rank of Inspector General of
Police particularly keeping in view the dictum of Hon'ble Supreme
Court in Lalita Kumari (supra). The enquiry shall be completed
expeditiously and on priority and in any case not later than
31.12.2021 and the compliance report shall positively be submitted
to this Court on 5.1.2022
26. In light of above discussion, the petition is disposed of
.
with no order as to costs. Pending applications, if any, also stand
disposed of.
(Tarlok Singh Chauhan)
Judge
3rd December, 2021 (Satyen Vaidya)
(kck) Judge
