Jharkhand High Court
Jiramani Devi vs State Of Jharkhand Through on 14 August, 2023
-1- W.P.(Cr.) No. 402 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 402 of 2021
Jiramani Devi ..... ... Petitioner
Versus
1. State of Jharkhand through
Director General of Police, Dhurwa, Ranchi.
2. Superintendent of Police, Latehar.
3. Union of India through Directorate General,
Central Reserved Police Force, Block No. 1
(Central Government Offices), CGO Complex,
Lodhi Road, New Delhi. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Shailesh Poddar, Advocate.
For the State : Mr. Manoj Kumar, G.A.-III.
For the Resp. No. 3 (UOI): Mr. Prashant Vidyarthi, Advocate.
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11/ 14.08.2023 Heard Mr. Shailesh Poddar, learned counsel appearing for the
petitioner, Mr. Manoj Kumar, learned G.A.-III appearing for the State and
Mr. Prashant Vidyarthi, learned counsel appearing for the respondent No.
3 (Union of India).
2. This petition has been filed for a direction to hand over the
case to CBI or Special Branch of CID Officers for further investigation
with regard to the death of the husband of the petitioner namely late
Bramhadev Singh.
3. Mr. Poddar, learned counsel appearing for the petitioner
submits that on 12.06.2021, about 10-11 tribal men of the Piri Village
gathered in front of the house of one Rajeshwar Singh in the morning
(around 8 O'clock) to go for hunting as a part of celebrating 'Nem Sarhul',
an annual tribal celebration widely celebrated by the tribals in the State of
Jharkhand. He submits that the tribal villagers as part of the custom and
tradition, hunt small animals from the forest like rabbits, boars etc. to feed
their guests. He further submits that for hunting they used a 'bhartua gun',
which is a locally made gun filled with gunpowder before firing and only
a single shot can be fired, which is traditionally used to hunt small animals
and to scare animals to save the crop. He further submits that on the even
day, six people in group of 10-11 people were formed and in one of the
group, Bramhadev Singh was aged about 24 years, the deceased and
husband of the petitioner was there. He submits that the first group, moved
towards the forest for about 50 feet, then suddenly the security personnel
-2- W.P.(Cr.) No. 402 of 2021
started firing from the other side without giving any warning. He further
submits that some of the persons saved their lives by way of hiding
themselves behind the mahua tree, Bramhadev, Dinatha and all four raised
their hands by placing the gun on the ground and shouted that they were
common people, not Maoist, and requested not to shoot. Bramhadev by
way of taking out his t-shirt and pant, raised his hands and pleaded to
prove that he was completely innocent villager, but the firing continued.
He further submits that Dinanath Singh was first hit by a bullet in the hand
and then Bramhadev Singh, who is the deceased husband of the petitioner
was hit, who fell on the ground as soon as he was shot. He further submits
that seeing the tragedy, the other persons fled away from the place of
occurrence.
4. Learned counsel appearing for the petitioner further submits
that Bramhadev's aunt Panpatiya Devi, reached the spot to see Bramhadev,
she was chased away and verbally abused by the security forces. He
further submits that villagers saw that the security force personnel came
from the forest towards the village and lifted Bramhadev Singh and
carried him across the river and the villagers reported that the said
Bramhadev was alive by then, because his hands and feet were trembling.
He further submits that the security forces placed Bramhadev on the
ground across the river and again shot him and the security forces then
changed his cloths, after this Bramhadev is seen wearing a pair of blue
jeans and yellow t-shirt, which has been widely published in the
newspaper as a part of cover-up by the security which amounts to a fake
encounter, upon an innocent villager. He further submits that in these
backgrounds, the petitioner and the elder brother of the victim were
offered an amount of Rs. 30,000/- to Rs. 35,000/- in cash and also
promised a job by the local police and they admitted before the family
members that they had made a mistake and requested them to take the
money and forgive them. He submits that in the aforesaid background, the
local police on seeing that the petitioner was not ready to compromise,
they have given threats and went ahead by way of lodging of a false case,
being Garu P.S. Case No. 24 of 2021 on 13.06.2021 against the six
villagers. He submits that the petitioner has made a complaint against the
police officials and wrote to the Officer-in-Charge of Garu Police Station,
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Latehar, despite of that even after more than five months, the FIR has not
been registered and thereafter the petitioner has been compelled to
approach the learned Chief Judicial Magistrate, Latehar in complaint case
No. 378 of 2021, wherein the learned Chief Judicial Magistrate, Latehar
has been pleased to direct to register the case under Section 156(3)
Cr.P.C., however, the police sat tight over the matter and the FIR was not
registered in spite of the direction of the learned court.
5. When this matter was taken up on 13.01.2022, the following
order was passed, which is quoted hereinbelow:-
"This petition has been taken through
Video Conferencing in view of the guidelines of
the High Court taking into account the situation
arising due to COVID-19 pandemic.
Learned counsel for the petitioner submits
that on 12.06.2021, around 10 to 11 tribal men of
the Piri village gathered in front of the house of
one Rajeshwar Singh in the morning around 8
o'clock to go for hunting as a part of celebrating
'Nem Sarhul', an annual tribal festival widely
celebrated by the tribals in the State of Jharkhand
and suddenly the security force started firing from
the other side without giving any warning. He
further submits that one Bramhadev Singh
(petitioner's husband) was killed in the said
firing. He also submits that when the security
force realised that innocent villager was shot
dead, the security force again assaulted the
victim. He further submits that the wife of the
deceased made representations before the Deputy
Commissioner, Latehar, the Chief Secretary of the
State of Jharkhand and the Director General of
Police, State of Jharkhand. He submits that fair
investigation is not being done.
Let notice be issued upon respondent nos.1
to 3. Mr. Manoj Kumar accepts notice on behalf
of respondent nos. 1 and 2 and Mr. Niraj Kumar
accepts notice on behalf of respondent no.3.
The respondents are directed to file counter
affidavit within four weeks.
Let this matter appear on 17.02.2022."
6. Non-registration of the FIR, in spite of the order of the learned
Chief Judicial Magistrate, Latehar under Section 156(3) Cr.P.C. was
further considered by this court by order dated 12.05.2022 and the
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supplementary counter affidavit was directed to be filed by the State of
Jharkhand and thereafter only, the FIR, being Garu P.S. Case No. 11 of
2022 was registered against the named accused police officials. It has
further been disclosed that the case has been entrusted to the CID and both
the cases were being investigated by the CID. Further the progress report
was called by this court by order dated 04.07.2023, pursuant thereto,
supplementary counter affidavit has been filed, where in Annexure-D, it
has been admitted that Late Bramhadev Singh died by police bullet,
however, the case has been closed stating therein the mistake of fact being
Garu P.S. Case No. 11 of 2022 and so far as Garu P.S. Case No. 24 of
2021 is concerned, the final form has been submitted in that case also
stating therein that the lack of evidence. In the said Annexure-D, the
request has also been made for proper compensation to the petitioner.
7. Learned counsel appearing for the petitioner submits that
although, the case is registered against the named erring police personnel,
however, by way of Annexure-D, the said case has been closed stating
therein the lack of evidence. He submits that in view of said document, the
case has already been proved of fake encounter, due to which, Bramhadeo
Singh died. He further submits that not only that, he was further tortured
and by way of another shot, he has been put to death. He submits that this
has happened with the innocent villager in the State of Jharkhand, where
promises are being made to protect the Tribals. He further submits that in
view of that it is an admitted fact that death of the deceased Bramhadeo
Singh has occurred due to police bullet and this court may hand over this
matter to the CBI and the petitioner may kindly be provided the suitable
compensation.
8. On the other hand, Mr. Manoj Kumar, learned counsel
appearing for the State submits that the CID has investigated the matter
and thereafter in both the cases, final forms have been submitted stating
therein the mistake of fact and lack of evidence respectively. He submits
that by the said Annexure-D, annexed with the supplementary counter
affidavit, recommendation has been made for proper compensation. He
further submits that in view of that this matter may kindly be disposed of.
9. Mr. Prashant Vidyarthi, learned counsel appearing for the
respondent No. 3 (UOI) submits that so far as CRPF personnel are
-5- W.P.(Cr.) No. 402 of 2021
concerned, they were far away from the spot in question, from which, the
deceased was heart.
10. In view of the above submissions of learned counsel
appearing for the parties, the court has gone through the materials
available on record including the counter affidavit as well as the
supplementary counter affidavit and also the contents of the FIR filed by
the police officials and the FIR registered pursuant to the efforts made by
the petitioner herein. In view of Annexure-D, it is an admitted fact that
Bramhadeo Singh died due to bullet injury caused by the police. The FIR
has already been registered against the erring police officials and the case
has been closed saying the mistake of facts and in view of the admitted
position, at least Section 304 IPC is made out, however, the CID has
chosen to come to the conclusion to give a clean chit to the erring police
officials.
11. Article 21 of the Constitution of India was being considered
by the Hon'ble Supreme Court in the case of People's Union for Civil
Liberties Versus State of Maharashtra & Ors., reported in (2014) 10 SCC
635, with regard to police encounters causing death of causing grievous
injuries, wherein it has been held that such types of cases are required to
thorough investigation by the independent agency and guidelines have
been issued, at para-31 to 31.16, which are quoted hereinbelow:-
"31. In the light of the above discussion and
having regard to the directions issued by the
Bombay High Court, guidelines issued by NHRC,
suggestions of the appellant PUCL, amicus curiae
and the affidavits filed by the Union of India, the
State Governments and the Union Territories, we
think it appropriate to issue the following
requirements to be followed in the matters of
investigating police encounters in the cases of
death as the standard procedure for thorough,
effective and independent investigation:
31.1. Whenever the police is in receipt of any
intelligence or tip-off regarding criminal
movements or activities pertaining to the
commission of grave criminal offence, it shall be
reduced into writing in some form (preferably
into case diary) or in some electronic form. Such
recording need not reveal details of the suspect or
the location to which the party is headed. If such
-6- W.P.(Cr.) No. 402 of 2021
intelligence or tip-off is received by a higher
authority, the same may be noted in some form
without revealing details of the suspect or the
location.
31.2. If pursuant to the tip-off or receipt of any
intelligence, as above, encounter takes place and
firearm is used by the police party and as a result
of that, death occurs, an FIR to that effect shall be
registered and the same shall be forwarded to the
court under Section 157 of the Code without any
delay. While forwarding the report under Section
157 of the Code, the procedure prescribed under
Section 158 of the Code shall be followed.
31.3. An independent investigation into the
incident/encounter shall be conducted by the CID
or police team of another police station under the
supervision of a senior officer (at least a level
above the head of the police party engaged in the
encounter). The team conducting
inquiry/investigation shall, at a minimum, seek:
(a) To identify the victim; colour photographs
of the victim should be taken;
(b) To recover and preserve evidentiary
material, including bloodstained earth, hair,
fibres and threads, etc. related to the death;
(c) To identify scene witnesses with complete
names, addresses and telephone numbers and
obtain their statements (including the statements
of police personnel involved) concerning the
death;
(d) To determine the cause, manner, location
(including preparation of rough sketch of
topography of the scene and, if possible,
photo/video of the scene and any physical
evidence) and time of death as well as any pattern
or practice that may have brought about the
death;
(e) It must be ensured that intact fingerprints
of deceased are sent for chemical analysis. Any
other fingerprints should be located, developed,
lifted and sent for chemical analysis;
(f) Post-mortem must be conducted by two
doctors in the district hospital, one of them, as far
as possible, should be incharge/head of the
district hospital. Post-mortem shall be
videographed and preserved;
(g) Any evidence of weapons, such as guns,
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projectiles, bullets and cartridge cases, should be
taken and preserved. Wherever applicable, tests
for gunshot residue and trace metal detection
should be performed.
(h) The cause of death should be found out,
whether it was natural death, accidental death,
suicide or homicide.
31.4. A magisterial inquiry under Section 176
of the Code must invariably be held in all cases of
death which occur in the course of police firing
and a report thereof must be sent to the Judicial
Magistrate having jurisdiction under Section 190
of the Code.
31.5. The involvement of NHRC is not
necessary unless there is serious doubt about
independent and impartial investigation.
However, the information of the incident without
any delay must be sent to NHRC or the State
Human Rights Commission, as the case may be.
31.6. The injured criminal/victim should be
provided medical aid and his/her statement
recorded by the Magistrate or Medical Officer
with certificate of fitness.
31.7. It should be ensured that there is no
delay in sending FIR, diary entries, panchnamas,
sketch, etc. to the court concerned.
31.8. After full investigation into the incident,
the report should be sent to the competent court
under Section 173 of the Code. The trial, pursuant
to the charge-sheet submitted by the investigating
officer, must be concluded expeditiously.
31.9. In the event of death, the next of kin of
the alleged criminal/victim must be informed at
the earliest.
31.10. Six-monthly statements of all cases
where deaths have occurred in police firing must
be sent to NHRC by DGPs. It must be ensured
that the six-monthly statements reach to NHRC by
15th day of January and July, respectively. The
statements may be sent in the following format
along with post-mortem, inquest and, wherever
available, the inquiry reports:
(i) Date and place of occurrence.
(ii) Police station, district.
(iii) Circumstances leading to deaths:
(a) Self-defence in encounter.
(b) In the course of dispersal of unlawful
-8- W.P.(Cr.) No. 402 of 2021
assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal case no.
(vi) Investigating agency.
(vii) Findings of the magisterial
inquiry/inquiry by senior officers:
(a) disclosing, in particular, names and
designation of police officials, if found
responsible for the death; and
(b) whether use of force was justified and
action taken was lawful.
31.11. If on the conclusion of investigation the
materials/evidence having come on record show
that death had occurred by use of firearm
amounting to offence under IPC, disciplinary
action against such officer must be promptly
initiated and he be placed under suspension.
31.12. As regards compensation to be granted
to the dependants of the victim who suffered death
in a police encounter, the scheme provided under
Section 357-A of the Code must be applied.
31.13. The police officer(s) concerned must
surrender his/her weapons for forensic and
ballistic analysis, including any other material, as
required by the investigating team, subject to the
rights under Article 20 of the Constitution.
31.14. An intimation about the incident must
also be sent to the police officer's family and
should the family need services of a
lawyer/counselling, same must be offered.
31.15. No out-of-turn promotion or instant
gallantry rewards shall be bestowed on the
officers concerned soon after the occurrence. It
must be ensured at all cost that such rewards are
given/recommended only when the gallantry of
the officers concerned is established beyond
doubt.
31.16. If the family of the victim finds that the
above procedure has not been followed or there
exists a pattern of abuse or lack of independent
investigation or impartiality by any of the
functionaries as abovementioned, it may make a
complaint to the Sessions Judge having territorial
jurisdiction over the place of incident. Upon such
complaint being made, the Sessions Judge
concerned shall look into the merits of the
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complaint and address the grievances raised
therein.
12. In view of the above backgrounds, the court has to ensure that
accused persons are punished and that might or authority of the State are
not used to shield themselves or their men. It should be ensured that they
do not wield such powers, which under the Constitution has to be held
only in trust for the public and society at large. If deficiency in
investigation or prosecution is visible or can be perceived by lifting the
veil trying to hide the realities or covering the obvious deficiencies, courts
have to deal with the same with an iron hand appropriately within the
framework of law. It is as much the duty of the prosecutor as of the court
to ensure that full and material facts are brought on record so that there
might not be miscarriage of justice. The victim cannot be afforded to be
treated as an alien or total stranger to the criminal trial and further not only
fair trial but fair investigation is also part of constitutional rights
guaranteed under Articles 20 and 21 of the Constitution of India.
Therefore, investigation must be fair, transparent and judicious as it is the
minimum requirement of rule of law. The investigating agency cannot be
permitted to conduct an investigation in a tainted and biased manner.
Where non-interference of the court would ultimately result in failure of
justice, the court must interfere. In such a situation, it may be in the
interest of justice that independent agency chosen by the High Court
makes a fresh investigation. Identical was the situation in the case of
Neetu Kumar Nagaich Versus State of Rajasthan & Ors., reported in
(2020) 16 SCC 777 and while considering Section 173 of the Cr.P.C., the
Hon'ble Supreme Court in paras-10 and 11 held as follows:-
"10. Normally when an investigation has been
concluded and police report submitted under
Section 173(2) of the Code, it is only further
investigation that can be ordered under Section
173(8) of the Code. But where the constitutional
court is satisfied that the investigation has not
been conducted in a proper and objective manner,
as observed in Kashmeri Devi v. Delhi
Admn. [Kashmeri Devi v. Delhi Admn., 1988
Supp SCC 482 : 1988 SCC (Cri) 864] , fresh
investigation with the help of an independent
agency can be considered to secure the ends of
justice so that the truth is revealed. The power
-10- W.P.(Cr.) No. 402 of 2021
may also be exercised if the court comes to the
conclusion that the investigation has been done in
a manner to help someone escape the clutches of
the law. In such exceptional circumstances the
court may, in order to prevent miscarriage of
criminal justice, direct de novo investigation as
observed in Babubhai v. State of
Gujarat [Babubhai v. State of Gujarat, (2010) 12
SCC 254 : (2011) 1 SCC (Cri) 336] . A fair
investigation is as much a part of a constitutional
right guaranteed under Article 21 of the
Constitution as a fair trial, without which the trial
will naturally not be fair. The observations in this
context in Babubhai [Babubhai v. State of
Gujarat, (2010) 12 SCC 254 : (2011) 1 SCC (Cri)
336] are considered relevant at para 45 as
follows: (SCC p. 272)
"45. Not only fair trial but fair investigation is
also part of constitutional rights guaranteed
under Articles 20 and 21 of the Constitution of
India. Therefore, investigation must be fair,
transparent and judicious as it is the minimum
requirement of rule of law. The investigating
agency cannot be permitted to conduct an
investigation in a tainted and biased manner.
Where non-interference of the court would
ultimately result in failure of justice, the court
must interfere. In such a situation, it may be in the
interest of justice that independent agency chosen
by the High Court [Ganeshbhai Jakshibhai
Bharwad v. State of Gujarat, 2009 SCC OnLine
Guj 12130] makes a fresh investigation."
11. In Bharati Tamang v. Union of India
[Bharati Tamang v. Union of India, (2013) 15
SCC 578 : (2014) 6 SCC (Cri) 566] , relief was
sought in a writ petition to quash the charge-sheet
and the supplementary charge-sheet coupled with
a mandamus for a de novo investigation by a
Special Investigation Team of competent persons
having impeccable credentials to unravel the
conspiracy. This Court relied on the following
extract from Zahira Habibulla H. Sheikh v. State
of Gujarat [Zahira Habibulla H. Sheikh v. State
of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri)
999] , as follows: (Bharati Tamang case [Bharati
Tamang v. Union of India, (2013) 15 SCC 578 :
(2014) 6 SCC (Cri) 566] , SCC pp. 594-97, paras
33, 37-38 & 41)
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"33. ...'56. ... Courts have to ensure that
accused persons are punished and that the might
or authority of the State are not used to shield
themselves or their men. It should be ensured that
they do not wield such powers which under the
Constitution has to be held only in trust for the
public and society at large. If deficiency in
investigation or prosecution is visible or can be
perceived by lifting the veil trying to hide the
realities or covering the obvious deficiencies,
courts have to deal with the same with an iron
hand appropriately within the framework of law.
It is as much the duty of the prosecutor as of the
court to ensure that full and material facts are
brought on record so that there might not be
miscarriage of justice.' (Zahira Habibulla H.
Sheikh case [Zahira Habibulla H. Sheikh v. State
of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri)
999] , SCC pp. 192-93, para 56)
***
37. In the decision of Babubhai v. State of
Gujarat [Babubhai v. State of Gujarat, (2010) 12
SCC 254 : (2011) 1 SCC (Cri) 336] , in para 40,
this Court held that the scheme of investigation
particularly Section 173(8) CrPC provides for
further investigation and not of reinvestigation
but held in para 42 as under: (SCC p. 272)
'42. Thus, it is evident that in exceptional
circumstances, the court in order to prevent the
miscarriage of criminal justice, if considers
necessary, may direct for investigation de novo
wherein the case presents exceptional
circumstances.'
38. Therefore, at times of need where this
Court finds that an extraordinary or exceptional
circumstance arise and the necessity for
reinvestigation would be imperative in such
extraordinary cases even de novo investigation
can be ordered.
***
41.3. If deficiency in investigation or
prosecution is visible or can be perceived by
lifting the veil which try to hide the realities or
covering the obvious deficiency, courts have to
deal with the same with an iron hand
appropriately within the framework of law.
***
41.5. In order to ensure that the criminal
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prosecution is carried on without any deficiency,
in appropriate cases this Court can even
constitute Special Investigating Team and also
give appropriate directions to the Central and
State Governments and other authorities to give
all required assistance to such specially
constituted investigating team in order to book
the real culprits and for effective conduct of the
prosecution.
***
41.7. In appropriate cases even if the charge-
sheet is filed it is open for this Court or even for
the High Court to direct investigation of the case
to be handed over to CBI or to any other
independent agency in order to do complete
justice.
41.8. In exceptional circumstances the Court
in order to prevent miscarriage of criminal justice
and if considers necessary may direct for
investigation de novo."
(emphasis in original)
13. The power of Constitutional Court may extent to direct the re-
investigation was again noticed in the case of Pooja Pal Versus Union of
India & Ors., reported in (2016) 3 SCC 135, which was considered in
para-12 of the aforesaid judgment, which reads as under:-
"12. Even the representation made by the mother
of Raju Pal on 26-1-2005 to the Senior
Superintendent of Police to hand over the dead
body of her son to her for final rites was not
heeded too. All fervent requests and appeals made
by her in this regard failed. The appellant has
alleged that not only she as a widow was given a
chance to have a parting glance of the body of her
husband, the dead bodies were disposed of
hurriedly without any notice to her as well as
other family members of Raju Pal presumably to
wipe off all possible clues in support of the
heinous crime. The appellant was married to the
deceased Raju Pal only on 16-1-2005 i.e. hardly a
week before the tragic incident."
14. In view of the above, it is now well settled that if a citizen, ,
who is a de facto complainant in a criminal case alleging commission
of cognizable offence affecting violation of his legal or
fundamental rights against high Government officials or influential
-13- W.P.(Cr.) No. 402 of 2021
persons, prays before a Court for a direction of investigation of the said
alleged offence by CBI, such prayer should not be granted on mere asking.
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 and international ramifications or where such an order may be
necessary for doing complete justice and enforcing the fundamental rights.
The said question was again the subject matter before the Hon'ble
Supreme Court in the case of Anant Thanur Karmuse Versus State of
Maharasthra & Ors., reported in (2023) 5 SCC 802, where in paras-34,
40, 42 and 48, it has been held as follows:-
"34. In Himanshu Kumar [Himanshu Kumar v.
State of Chhattisgarh, (2023) 12 SCC 592 : 2022
SCC OnLine SC 884] , this Court had occasion to
consider the power of the Court to transfer
investigation to any other independent agency.
After taking into consideration the catena of
judgments on the point, it is reiterated that
investigation may be transferred to CBI only in
"rare and exceptional cases". In SCC paras 44 to
55, it is observed and held as under:
"44. It is now settled law that if a citizen, who
is a de facto complainant in a criminal case
alleging commission of cognizable offence
affecting violation of his legal or fundamental
rights against high Government officials or
influential persons, prays before a Court for a
direction of investigation of the said alleged
offence by CBI, such prayer should not be
granted on mere asking.
45. A Constitution Bench of this Court,
in State of W.B. v. Committee for Protection of
Democratic Rights [State of W.B. v. Committee
for Protection of Democratic Rights, (2010) 3
SCC 571 : (2010) 2 SCC (Cri) 401] , has made
the following observations pointing out the
situations where the prayer for investigation by
CBI should be allowed : (SCC p. 602, para 70)
"70. ... Insofar as the question of issuing a
direction to CBI to conduct investigation in a case
is concerned, although no inflexible guidelines
can be laid down to decide whether or not such
powers should be exercised, but time and again it
has been reiterated that such an order is not to be
-14- W.P.(Cr.) No. 402 of 2021
passed as a matter of routine or merely because a
party has levelled 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 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 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.'
46. In the above decision, it was also pointed
out that the same Court in Minor Irrigation &
Rural Engg. Services v. Sahngoo Ram
Arya [Minor Irrigation & Rural Engg.
Services v. Sahngoo Ram Arya, (2002) 5 SCC 521
: 2002 SCC (L&S) 775] , had said that an order
directing an enquiry by CBI should be passed
only when the High Court, after considering the
material on record, comes to the conclusion that
such material does disclose a prima facie case
calling for an investigation by CBI or any other
similar agency.
47. In an appropriate case when the Court
feels that the investigation by the police
authorities is not in ... a proper direction, and in
order to do complete justice in the case and if
high police officials are involved in the alleged
crime, the Court may be justified in such
circumstances to hand over the investigation to
an independent agency like CBI. By now it is well
settled that even after the filing of the charge-
sheet the Court is empowered in an appropriate
case to hand over the investigation to an
independent agency like CBI.
48. The extraordinary power of the
constitutional courts under Articles 32 and 226
respectively of the Constitution of India qua the
issuance of directions to CBI to conduct
investigation must be exercised with great caution
as underlined by this Court in Committee for
Protection of Democratic Rights [State of
W.B. v. Committee for Protection of Democratic
-15- W.P.(Cr.) No. 402 of 2021
Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri)
401] as adverted to hereinabove, observing that
although no inflexible guidelines can be laid
down in this regard, yet it was highlighted that
such an order cannot be passed as a matter of
routine or merely because the parties have
levelled some allegations against the local police
and can be invoked in exceptional situations
where it becomes necessary to provide credibility
and instil confidence in the investigation or where
the incident may have national or international
ramifications or where such an order may be
necessary for doing complete justice and for
enforcing the fundamental rights.
49. We are conscious of the fact that though a
satisfaction of want of proper, fair, impartial and
effective investigation eroding its credence and
reliability is the precondition for a direction for
further investigation or reinvestigation,
submission of the charge-sheet ipso facto or the
pendency of the trial can, by no means, be a
prohibitive impediment. The contextual facts and
the attendant circumstances have to be singularly
evaluated and analysed to decide the needfulness
of further investigation or reinvestigation to
unravel the truth and mete out justice to the
parties. The prime concern and the endeavour of
the court of law should be to secure justice on the
basis of true facts which ought to be unearthed
through a committed, resolved and a competent
investigating agency.
50. The above principle has been reiterated
in K.V. Rajendran v. Supt. of Police [K.V.
Rajendran v. Supt. of Police, (2013) 12 SCC 480 :
(2014) 4 SCC (Cri) 578] . Dr B.S. Chauhan, J.
speaking for a three-Judge Bench of this Court
held : (SCC p. 485, para 13)
'13. ... 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
-16- W.P.(Cr.) No. 402 of 2021
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."
51. Elaborating on this principle, this Court
further observed : (K.V. Rajendran case [K.V.
Rajendran v. Supt. of Police, (2013) 12 SCC 480 :
(2014) 4 SCC (Cri) 578] , SCC p. 487, para 17)
'17. ... 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
instil confidence in the investigation or where the
investigation is prima facie found to be
tainted/biased.'
52. The Court reiterated that an investigation
may be transferred to CBI only in "rare and
exceptional cases". One factor that courts may
consider is that such transfer is "imperative" to
retain "public confidence in the impartial
working of the State agencies." This observation
must be read with the observations made by the
Constitution Bench in Committee for Protection
of Democratic Rights [State of W.B. v. Committee
for Protection of Democratic Rights, (2010) 3
SCC 571 : (2010) 2 SCC (Cri) 401] , that mere
allegations against the police do not constitute a
sufficient basis to transfer the investigation.
53. In Romila Thapar v. Union of
India [Romila Thapar v. Union of India, (2018)
10 SCC 753 : (2019) 1 SCC (Cri) 638] , one of us,
A.M. Khanwilkar, J., speaking for a three-Judge
Bench of this Court (Dr D.Y. Chandrachud, J.
dissenting) noted the dictum in a line of
precedents laying down the principle that the
accused "does not have a say in the matter of
appointment of investigating agency". In
reiterating this principle, this Court relied upon
its earlier decisions in Narmada Bai v. State of
Gujarat [Narmada Bai v. State of Gujarat, (2011)
5 SCC 79 : (2011) 2 SCC (Cri) 526] , Sanjiv
Rajendra Bhatt v. Union of India [Sanjiv
-17- W.P.(Cr.) No. 402 of 2021
Rajendra Bhatt v. Union of India, (2016) 1 SCC 1
: (2016) 1 SCC (Cri) 193 : (2016) 1 SCC (L&S)
1] , E. Sivakumar v. Union of India [E.
Sivakumar v. Union of India, (2018) 7 SCC 365 :
(2018) 3 SCC (Cri) 49] , and Divine Retreat
Centre v. State of Kerala [Divine Retreat
Centre v. State of Kerala, (2008) 3 SCC 542 :
(2008) 2 SCC (Cri) 9] . This Court observed :
(Romila Thapar case [Romila Thapar v. Union of
India, (2018) 10 SCC 753 : (2019) 1 SCC (Cri)
638] , SCC p. 776, para 30)
'30. ... the consistent view of this Court is that
the accused cannot ask for changing the
investigating agency or to do investigation in a
particular manner including for court-monitored
investigation.'
54. It has been held by this Court
in CBI v. Rajesh Gandhi [CBI v. Rajesh Gandhi,
(1996) 11 SCC 253 : 1997 SCC (Cri) 88 : 1997
Cri LJ 63] , that no one can insist that an offence
be investigated by a particular agency. We fully
agree with the view in the aforesaid decision. An
aggrieved person can only claim that the offence
he alleges be investigated properly, but he has no
right to claim that it be investigated by any
particular agency of his choice.
55. 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 CBI, we are guided by the
parameters laid down by this Court for the
exercise of that extraordinary power."
40. Now, so far as the reliance placed upon
the decision of this Court in Vinubhai Haribhai
Malaviya [Vinubhai Haribhai Malaviya v. State
of Gujarat, (2019) 17 SCC 1 : (2020) 3 SCC (Cri)
228] , relied upon on behalf of the respondent-
accused is concerned, it is required to be noted
that in the said decision, this Court was
considering the powers of the Magistrate. Even in
the said decision, it is observed and held that
there is no good reason given by the Court as to
why a Magistrate's powers to order further
investigation would suddenly cease upon process
being issued. It is further observed that power of
-18- W.P.(Cr.) No. 402 of 2021
the police to further investigate the offence
continues right till the stage the trial commences.
It is further observed that Article 21 of the
Constitution demands no less than a fair and just
investigation. In para 42 as such, it is observed
and held as under : (SCC pp. 39-40)
"42. There is no good reason given by the
Court in these decisions as to why a Magistrate's
powers to order further investigation would
suddenly cease upon process being issued, and an
accused appearing before the Magistrate, while
concomitantly, the power of the police to further
investigate the offence continues right till the
stage the trial commences. Such a view would not
accord with the earlier judgments of this Court, in
particular, Sakiri [Sakiri Vasu v. State of U.P.,
(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440]
, Samaj Parivartan Samudaya [Samaj Parivartan
Samudaya v. State of Karnataka, (2012) 7 SCC
407 : (2012) 3 SCC (Cri) 365] , Vinay
Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC
762 : (2013) 4 SCC (Cri) 557] , and Hardeep
Singh [Hardeep Singh v. State of Punjab, (2014)
3 SCC 92 : (2014) 2 SCC (Cri) 86] ; Hardeep
Singh [Hardeep Singh v. State of Punjab, (2014)
3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly
held that a criminal trial does not begin after
cognizance is taken, but only after charges are
framed. What is not given any importance at all in
the recent judgments of this Court is Article 21 of
the Constitution and the fact that the Article
demands no less than a fair and just investigation.
To say that a fair and just investigation would
lead to the conclusion that the police retain the
power, subject, of course, to the Magistrate's nod
under Section 173(8) to further investigate an
offence till charges are framed, but that the
supervisory jurisdiction of the Magistrate
suddenly ceases midway through the pre-trial
proceedings, would amount to a travesty of
justice, as certain cases may cry out for further
investigation so that an innocent person is not
wrongly arraigned as an accused or that a prima
facie guilty person is not so left out. There is no
warrant for such a narrow and restrictive view of
the powers of the Magistrate, particularly when
such powers are traceable to Section 156(3) read
with Section 156(1), Section 2(h) and Section
-19- W.P.(Cr.) No. 402 of 2021
173(8)CrPC, as has been noticed hereinabove,
and would be available at all stages of the
progress of a criminal case before the trial
actually commences. It would also be in the
interest of justice that this power be exercised suo
motu by the Magistrate himself, depending on the
facts of each case. Whether further investigation
should or should not be ordered is within the
discretion of the learned Magistrate who will
exercise such discretion on the facts of each case
and in accordance with law. If, for example, fresh
facts come to light which would lead to
inculpating or exculpating certain persons,
arriving at the truth and doing substantial justice
in a criminal case are more important than
avoiding further delay being caused in concluding
the criminal proceeding, as was held
in Hasanbhai Valibhai Qureshi [Hasanbhai
Valibhai Qureshi v. State of Gujarat, (2004) 5
SCC 347 : 2004 SCC (Cri) 1603] . Therefore, to
the extent that the judgments in Amrutbhai
Shambhubhai Patel [Amrutbhai Shambhubhai
Patel v. Sumanbhai Kantibhai Patel, (2017) 4
SCC 177 : (2017) 2 SCC (Cri) 331] , Athul
Rao [Athul Rao v. State of Karnataka, (2018) 14
SCC 298 : (2019) 1 SCC (Cri) 594] and Bikash
Ranjan Rout [Bikash Ranjan Rout v. State (NCT
of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri)
613] have held to the contrary, they stand
overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Admn.) [Randhir Singh
Rana v. State (Delhi Admn.), (1997) 1 SCC 361]
and Reeta Nag v. State of W.B. [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3
SCC (Cri) 1051] also stand overruled."
42. Applying the law laid down by this Court
in Dharam Pal [Dharam Pal v. State of Haryana,
(2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259]
and Bharati Tamang [Bharati Tamang v. Union
of India, (2013) 15 SCC 578 : (2014) 6 SCC (Cri)
566] and to do the complete justice and in
furtherance of fair investigation and fair trial, the
constitutional courts may order further
investigation / reinvestigation / de novo
investigation even after the charge-sheet is filed
and the charges are framed. If the submission on
behalf of the accused and even as observed by the
High Court that once the charge-sheet is filed and
-20- W.P.(Cr.) No. 402 of 2021
the charges are framed, there may not be any
order for further investigation/reinvestigation/de
novo investigation is accepted, in that case, the
accused may see to it that the charges are framed
to avoid any fair investigation/fair trial. It would
lead to travesty of justice.
48. Be that as it may, even according to the
State investigating agency, the further
investigation is required. As observed and held by
this Court in the aforesaid decisions, the victim
has a fundamental right of fair investigation and
fair trial. Therefore, mere filing of the charge-
sheet and framing of the charges cannot be an
impediment in ordering further investigation/
reinvestigation/de novo investigation, if the facts
so warrant.
15. Thus, in view of the above judgments, if a Constitutional
Court comes to a conclusion that the investigation has been done in a
perfunctory way and it is only an eyewash, the Constitutional Court is
duty bound to rise to the occasion to pass an appropriate order.
16. In the case in hand, by way of Annexure-D to the counter
affidavit, the CID has itself admitted that the said death has occurred due
to the police firing.
17. It is only when this court has intervened thereafter the order,
passed by the learned Chief Judicial Magistrate, Latehar under Section
156(3) Cr.P.C. was complied by the State and the case was registered, in
which, now it has been admitted that death has occurred due to the firing
of the police that too innocent villager has been killed in the State of
Jharkhand, where it has been claimed that the Tribals are being protected.
The closure report is therefore, is in the mind, a clear hasty action leaving
much to be desired regarding the nature of investigation, because if a
detailed investigation had already been done as is sought to be now
suggested, there is no reason why a final report could not have been filed
by the investigating agency in the normal course of events and needed an
order to do so by the High Court and the court further finds that the
closure report, therefore, lacks bona fide and in the interest of justice, the
court comes to the conclusion that the case is required to de novo
investigation to be done to maintain the confidence of the police upon the
society and to suggest that the Rule of Law is meant for everybody,
-21- W.P.(Cr.) No. 402 of 2021
whoever he may be.
18. Accordingly, this court set aside the closure report, arising out
of Garu P.S. Case No. 11 of 2022 considering that in Annexure-D to the
supplementary counter affidavit, it has been admitted that the death of the
deceased has occurred due to police firing. The fresh team of Investigators
shall be constituted under a senior police official by the Director General
of Police and Secretary, Home Department, Government of Jharkhand
consisting of efficient personnel, well conversant with use of modern
investigation technology also. No officer, who was part of the
investigation team leading to the closure report shall be the part of the
team conducted de novo investigation.
19. Much time has already been lapsed and seeing the urgency in
the matter, the Court directs that such fresh investigation must be concluded
within a maximum period of three months from today and the police report
be filed before the court concerned, thereafter the matter shall proceed in
accordance with law.
20. Seeing the admission made by the police in Annexure-D of the
supplementary counter affidavit that the death of the husband of the petitioner
has occurred due to the police firing, the court further considered that this
court is required to pass the appropriate order to compensate the petitioner
suitably, as such recommendation is also there in Annexure-D to the
supplementary counter affidavit, however, learned counsel appearing for
the respondents-State is not in a position to say about such compensation
in view of Annexure-D to the supplementary counter affidavit. The court
further finds that the State of Jharkhand has already having a policy in this
regard for compensation upon police atrocities and death in police lock-
up, in spite of that only recommendation has been done by Annexure-D to
the supplementary counter affidavit and the compensation has not been
paid as yet. There are lines of judgment on the point of compensation of
the High Courts as well as of the Hon'ble Supreme Court and few of them
speak as under:-
21. In view of the above the Hon'ble Supreme Court in the case
of Joginder Kumar Versus State of U.P. & Ors., reported in (1994) 4 SCC
260, in paras 8 and 9 held as under:-
"8. The horizon of human rights is expanding. At
-22- W.P.(Cr.) No. 402 of 2021
the same time, the crime rate is also increasing.
Of late, this Court has been receiving complaints
about violation of human rights because of
indiscriminate arrests. How are we to strike a
balance between the two?
9. A realistic approach should be made in this
direction. The law of arrest is one of balancing
individual rights, liberties and privileges, on the
one hand, and individual duties, obligations and
responsibilities on the other; of weighing and
balancing the rights, liberties and privileges of
the single individual and those of individuals
collectively; of simply deciding what is wanted
and where to put the weight and the emphasis; of
deciding which comes first -- the criminal or
society, the law violator or the law abider; of
meeting the challenge which Mr Justice Cardozo
so forthrightly met when he wrestled with a
similar task of balancing individual rights against
society's rights and wisely held that the exclusion
rule was bad law, that society came first, and that
the criminal should not go free because the
constable blundered. In People v. Defore [242 NY
13, 24 : 150 NE 585, 589 (1926)] Justice Cardozo
observed:
"The question is whether protection for the
individual would not be gained at a
disproportionate loss of protection for society. On
the one side is the social need that crime shall be
repressed. On the other, the social need that law
shall not be flouted by the insolence of office.
There are dangers in any choice. The rule of
the Adams case (People v. Adams [176 NY 351 :
68 NE 636 (1903)] ) strikes a balance between
opposing interests. We must hold it to be the law
until those organs of government by which a
change of public policy is normally effected shall
give notice to the courts that change has come to
pass."
22. In Kiran Bedi Versus Committee of Inquiry & Anr., reported
in (1989) 1 SCC 494, the Hon'ble Supreme Court has reproduced an
observation in para-25 from the decision in D.F. Marion Versus Davis as
under:-
"25. .......'The right to the enjoyment of a private
reputation, unassailed by malicious slander is of
-23- W.P.(Cr.) No. 402 of 2021
ancient origin, and is necessary to human society.
A good reputation is an element of personal
security, and is protected by the Constitution
equally with the right to the enjoyment of life,
liberty, and property.'"
23. Further reputation of an individual is an insegregable facet of
his right to life with dignity was the subject matter in the case of
Vishwanath Agrawal Versus Sarla Vishwanath Agrawal, reported in
(2012) 7 SCC 288.
24. The excessive use of force by the police was also the subject
matter before the Hon'ble Supreme Court in the case of Delhi Judicial
Service Association Tis Hazari Court, Delhi Versus State of Gujarat &
Ors., reported in (1991) 4 SCC 406, where in para-39 it was held as
under:-
"39. Constitutional hurdles over, now we would
revert back to the incident which has given rise to
these proceedings. The genesis of the
unprecedented attack on the subordinate judiciary
arose out of confrontational attitude of the local
police against the Magistracy in Kheda. The
Chief Judicial Magistrate is head of the
Magistracy in the district. Under the provisions of
Chapter XII of the Code of Criminal Procedure,
1973, he exercises control and supervision over
the investigating officer. He is an immediate
officer on the spot at the lower rung of the
administration of justice of the country to ensure
that the police which is the law enforcing
machinery acts according to law in investigation
of crimes without indulging in excesses and
causing harassment to citizens. The main
objective of police is to apprehend offenders, to
investigate crimes and to prosecute them before
the courts and also to prevent commission of
crime and above all to ensure law and order to
protect the citizens' life and property. The law
enjoins the police to be scrupulously fair to the
offender and the Magistracy is to ensure fair
investigation and fair trial to an offender. The
purpose and object of Magistracy and police are
complementary to each other. It is unfortunate
that these objectives have remained unfulfilled
even after 40 years of our Constitution.
Aberrations of police officers and police excesses
in dealing with the law and order situation have
-24- W.P.(Cr.) No. 402 of 2021
been the subject of adverse comments from this
Court as well as from other courts but it has
failed to have any corrective effect on it. The
police has power to arrest a person even without
obtaining a warrant of arrest from a court. The
amplitude of this power casts an obligation on the
police to take maximum care in exercising that
power. The police must bear in mind, as held by
this Court that if a person is arrested for a crime,
his constitutional and fundamental rights must not
be violated. See Sunil Batra v. Delhi
Administration [(1978) 4 SCC 494 : 1979 SCC
(Cri) 155] . In Prem Shankar Shukla case [(1980)
3 SCC 526 : 1980 SCC (Cri) 815] this Court
considered the question of placing a prisoner
under handcuff by the police. The Court declared
that no prisoner shall be handcuffed or fettered
routinely or merely for the convenience of custody
or escort. The Court emphasised that the police
did not enjoy any unrestricted or unlimited power
to handcuff an arrested person. If having regard
to the circumstances including the conduct,
behaviour and character of a prisoner, there is
reasonable apprehension of prisoner's escape
from custody or disturbance of peace by violence,
the police may put the prisoner under handcuff. If
a prisoner is handcuffed without there being any
justification, it would violate prisoner's
fundamental rights under Articles 14 and 19 of
the Constitution. To be consistent with Articles 14
and 19 handcuffs must be the last refuge as there
are other ways for ensuring security of a prisoner.
In Prem Shankar Shukla case [(1980) 3 SCC 526
: 1980 SCC (Cri) 815] , Krishna Iyer, J. observed:
(SCC p. 529, para 1)
"If today freedom of the forlorn person falls to
the police somewhere, tomorrow the freedom of
many may fall elsewhere with none to
whimper unless the court process invigilates in
time and polices the police before it is too late."
(emphasis in original)
The prophetic words of Krishna Iyer, J. have come
true as the facts of the present case would show."
25. In view of the above facts, reasons, discussions and analysis
and also considering Annexure-D to the supplementary counter affidavit,
wherein, it has been admitted that the death of the husband of the
petitioner has occurred due to police firing, the respondents-State shall pay
-25- W.P.(Cr.) No. 402 of 2021
a sum of Rs. 5,00,000/- (rupees five lakhs) in favour of the petitioner
within four weeks from the date of receipt / production of this order and
this shall be implemented through the Home Secretary, Government of
Jharkhand, Ranchi within the aforesaid period.
26. With the above observation and direction at paras-18 and 25
of this judgment, this petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
