Manipur High Court
Smt. Surinder Kaur vs The Union Of Indai on 5 October, 2023
SHAMURAILATPAM SUSHIL Digitally signed by SHAMURAILATPAM
SUSHIL SHARMA
SHARMA Date: 2023.10.06 16:48:18 +05'30' Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Writ Appeal No. 86 of 2016
Ref:- W.P.(C) No. 1401 of 2025
Smt. Surinder Kaur, aged about 78 years, widow of late
Kashmir Singh, resident of Village Makhi Kalan,
P.S./P.O. Makhi Kalan, Tahsil Patti, District: Amritsar
(Punjab).
........ Appellant/Petitioner
-Versus-
1. The Union of Indai, through the Secretary,
Government of India, Ministry of Home Affairs,
New Delhi.
2. The Director General, Central Reserve Police
Force (CRPF), C.G.O. Complex, New Delhi.
3. The Commandant, 26th BN. C.R.P.F. C/O 99 APO.
4. Theh State of Manipur, Represented by the
Commissioner/Secretary (Home), Government of
Manipur, Imphal.
........ Respondents
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE MR. M.V. MURALIDARAN
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner :: Mr. Kh. Chonjon, Sr. Adv.
For the Respondents :: Mr. S. Samarjeet, Sr. PCCG
Mr. RK Umakanta, GA
Date of Hearing and
reserving Judgment & Order :: 03.05.2023
Date of Judgment & Order :: 05.10.2023
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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JUDGMENT AND ORDER
(CAV)
(M.V. Muralidaran, Acting CJ)
Heard Mr. Kh. Chonjon, learned senior counsel for
the appellant; Mr. S. Samarjeet, learned Senior Panel Counsel
for Central Government for the respondent Union of India and
Mr.R.K.Umakanta, learned Government Advocate for the
respondent State.
2. This writ appeal is filed against the judgment and
order of the learned Single Judge dated 18.7.2016 made in
W.P.(C) No.1401 of 2016.
3. The appellant is the writ petitioner. She filed the writ
petition for issuance of a writ of mandamus directing the State
respondents to conduct/hold an enquiry through the Central
Bureau of Investigation (CBI) regarding the death of her son
Nishan Singh on 19.11.2022 at the Camp of Battalion at Heavy
Fuel Power Project, Leimakhong, Senapati District, Manipur.
The learned Single Judge dismissed the writ petition.
Challenging the same, the appellant has filed the present writ
appeal.
4. Brief facts which led to the filing of the writ petition
are as follows:
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The appellant's son Nishan Singh joined the 26th
Bn., CRPF on 19.4.2000 as Constable and was posted at
different places from time to time and, at the time when he died
on 19.11.2002, he was posted at the Bn., H.Q., D. Company near
the Heavy Fuel Power Project, Leimakhong, Shri P.K.Sahu and
Shri Dinesh Kumar were the Company Commander and the
Commandant of 26th Bn. respectively. Shri Dinesh Kumar used
to come to the D. Company very often and one day prior to the
death of Nishan Singh, he came to the D. Company and started
staying at the residence of Shri P.K.Sahu when the latter stayed
away from his room. The Quarter Master of the D. Company
Joginder Singh asked Nishan Singh to put a chair inside the room
where Shri Dinesh Kumar was staying and when Nishan Singh
picked up the chair and went inside the room to place it there, he
saw Shri Dinesh Kumar and the wife of Shri P.K.Sahu in an
objectionable condition. When Nishan Singh spread the news
about the illicit relation, both Shri Dinesh Kumar and Shri
P.K.Sahu planned to murder Nishan Singh.
4.1. Accordingly, on 18.11.2022, Shri P.K.Sahu issued
a night pass to Nishan Singh telling him to report in the Unit in
the morning and on the next day when he presented himself in
the Unit at about 7.15 a.m., Havildar Major Ramdarsh Parshad
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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reported to the Company Commander who ordered that Nishan
Singh be produced before him in uniform. When Nishan Singh
presented himself, the Company Commander and Havildar
Major Ramdarsh Parshad who were in civil dress, were sitting
outside the office having a table before them. Shri P.K.Sahu who
forcibly snatched the night pass from Nishan Singh, tore it off and
told Nishan Singh that he had remained outside for the whole
night without his order and since he had violated the law, he
would be punished.
4.2. It is stated that Nishan Singh was made to stand as
a punishment continuously from 8.22 a.m. to 11.35 a.m. torturing
him both physically and mentally under a pre-planned conspiracy
amongst his superior officers and during the interrogation, Shri
P.K.Sahu asked Nishan Singh as to why he went to the room
where and when Commandant Shri Dinesh Kumar and wife of
Company Commander were sitting and then why did he
announce the same to the public and, therefore, Shri P.K.Sahu
told him that he did not want to see him alive. Nishan Singh
replied that having felt himself to be quite unsafe, he had already
informed his parents regarding the threat and that in case
something happened to him, they would be held responsible.
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4.3. It is stated that in the afternoon of the same day i.e.
19.11.2002, the Company Havildar Major asked Nishan Singh to
have his meal and when Nishan Singh went to the barrack for
lunch, Shri P.K.Sahu ordered Constable Mohinder Singh,
Havildar Tajudin, Havildar T.J.Thomas to go and kill Nishan
Singh and, accordingly, they went and started beating him in his
barrack. While Tajudin and Mohinder Singh caught hold of him
from both sides, Havildar Thomas fired at him at his abdomen
from Insas rifle of Mohinder Singh Meena and killed him.
Thereafter, they spread a rumour that Nishan Singh had
committed suicide. When Constable T.P.Gautam reached the
spot of incident, he saw Nishan Singh crying with the bullet injury
and, according to him, there was no rifle present at the spot of
the incident.
4.4. On 20.11.2002, two Sub-Inspectors of Police came
to the place of occurrence for investigation and after
investigation, the investigating team prepared a report and sent
it to various higher authorities. But the IO Shri Kiran Singh was
not satisfied with the version of the CRPF officers. According to
the appellant, after receiving bribe from Shri P.K.Sahu, the
concerned police filed a report under Section 174 Cr.P.C. Shri
Attar Singh, Deputy Commandant ordered to hold a Court of
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Inquiry for which he recorded the statement of witnesses and
after preparing a false report, he handed over the same to the
Commandant. The Inspector General, CRPF did not accept the
enquiry conducted by the Deputy Commandant and re-ordered
for enquiry, but the same report was again submitted. When
some of the Jawans of the Battallion revolted against the killing,
they were threatened by the Commandant not to reveal anything
about the incident.
4.5. According to the appellant, an enquiry was
conducted by the National Human Rights Council, Punjab and
report dated 6.3.2003 was filed with a request that the
investigation be done by the CBI. The copies of the said report
were submitted to various authorities, including the DG, CRPF.
Nothing happened thereafter except that Shri Dinesh Kumar and
Shri P.K.Sahu proceeded on pension from 31.3.2003.
4.6. The petitioner filed Cril. Misc. Case No.14716-M of
2003 under Section 482 Cr.P.C. before the Punjab and Haryana
High Court and the same was dismissed on 17.8.2005 on the
ground that the occurrence took place in the territorial jurisdiction
of Gauhati High Court, it did not find any ground to exercise
inherent powers under Section 482 Cr.P.C. for issuing direction
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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to the respondents to get the case investigated by the CBI or any
other agency. Hence, the appellant has filed the writ petition.
5. The respondents 1 to 3 filed affidavit-in-opposition,
inter alia, stating that whenever Commandant visited D-26
Leimakhong, he never stayed at the residence of Shri P.K.Sahu
and the Commandant used to stay in the Army Guest House.
The story that Nishan Singh saw Commandant and the wife of
Shri P.K.Sahu in objectionable condition is false. The allegation
that HC Tajuddin, HC T.J.Thomas and CT Mahendra Singh
started beating Nishan Singh is simply an imagination as there is
no mark of any scuffle or injury as found in the post mortem
report. The Commandant and the Company Commander never
planned to kill Nishan Singh. He was always found in disturbed
mood due to the fact that he was not being allowed to marry his
brother's sister-in-law. Fear of bad name, guilty consciousness
and fear of punishment forced him to commit suicide.
5.1. It is stated in the affidavit-in-opposition that the
enquiry can be conducted by any agency. There was no pre-
planned conspiracy to kill the Constable Nishan Singh. Nishan
Singh though a young constable has in a brief period of one year,
availed 60 days earned leave on medical grounds and 15 days
of casual leave. When he was suffering from appendicitis,
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Nishan Singh was granted Rs.4000/- from the Welfare Fund of
the Unit to enable him to take proper medical treatment.
6. Mr. Kh. Chonjon, the learned senior counsel for the
appellant submitted that the learned Single Judge while
dismissing the writ petition has failed to take note of the following:
(i) The U.D. Case No.2 of 2002 registered by Saparmeina Police
Station under Section 174 Cr.P.C. dated 19.11.2022 a
prescribed form duly filled in disclosed the name of Shri
P.K.Shahu, Assistant Commandant of D-26 Bn., whose wife was
located by the victim in an objectionable condition while living in
a room of the Battalion with the Commandant Shri Dinesh Kumar
to be complainant of the case as recorded in Column (3) with
endorsement of the Officer-in-Charge of the Police Station about
attachment of the O.E. thereto and also as stated by the police
report, but the O.E. is not available as part of the FIR.
(ii) The U.D. Case No.2 of 2002 is one not taken up by the police
suo motu. The form of the U.D. Case showing it to be made by
the O/C himself has been contradicted by the form of the U.D.
Case and, as such, fabricated as an attempt to fill up the lacuna
of the case.
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(iii) Nowhere in impugned judgment stated about the examination
of Shri P.K.Shahu by the police or Court of Inquiry, as he is the
prime suspect of the offence of murder of Nishan Singh in
custody i.e. in the barrack of the Bn. and his name is mentioned
as complainant of the U.D. Case.
(iv) The order dated February, 2003, which is alleged to be an
order of the Commandant Dinesh Kumar, upon conclusion of the
Court of Inquiry, has stated just on its para 1 about counselling
of Nishan Singh on 19.11.2002 by Shri P.K.Sahu, Office
Commandant of D-26 Bn.
(v) In para 3(b) of the order dated February, 2003, it has been
stated that Shri P.K.Shahu have furnished the report of desertion
of Nishan Singh under Signal dated 18.11.2002 to the Bn. Hq.,
but the signal has not been seized by the police and his
statement has not been recorded.
(vi) The Commandant Shri Dinesh Kumar Singh is also the main
assailant in the murder of Nishan Singh in the barrack and then
how and under what circumstances or upon what special reason
he has been allowed to take part in the Court of Inquiry held for
the death of Nishan Singh.
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7. The learned senior counsel for the appellant further
submitted that the finding of the learned Single Judge in
paragraph 8 of the impugned judgment about the National
Human Rights Council, Punjab not to be a State Human Rights
Commission established under the provisions of the Protection
of Human Rights Act, 1993 and the said Council not to have been
authorised by any authority to investigate into the case and its
report has no authenticity is mere on oral submission of the
respondents and nothing has been produced to establish the
same by the respondents. According to the learned senior
counsel, the National Human Right Council of Punjab has been
established under the authority of the Punjab Legislative
Assembly and, therefore, any enquiry made and the report
submitted by the said Council can be relied upon.
8. The learned senior counsel next submitted that the
learned Single Judge has accepted the power and jurisdiction of
the High Court to issue writ or direction for investigation by the
CBI in appropriate cases to be no longer res integra. However,
with regard to the applicability of the case in Achung Kamei v.
State of Manipur (W.A.No.118 of 1999 dated 12.3.2007), the
learned Single Judge erroneously held that the said decision has
been rendered on its own facts not similar to that of the present
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case. According to the learned senior counsel, the said decision
in W.A.No.118 of 1999 is very much applicable to the case on
hand, as the question involved in the said case is whether the
death of the victim is suicide or murder.
9. The learned senior counsel added that on the
question of non-examination of the materials witnesses like
Harminder Singh, P.K.Sahu, the Company Commandant of D-26
Bn etc. by the police or in the Court of Inquiry is a mala fide
omission of the authority concerned and the same cannot be
imputed against the appellant. The learned Single Judge has
failed to take note of the fact that the appellant was never called
upon or informed of the progress or result of U.D. Case No.2 of
2002 or of the alleged Court of Inquiry thereby she has been
victimised. The learned senior counsel submitted that there is no
proper application of judicial mind by the learned Single Judge
and, therefore, the impugned judgment and order is liable to be
set aside.
10. By placing on record the decision of the Apex Court
in the case of S.N.Sharma v. Bipen Kumar Tiwari, AIR 1970 SC
786, the learned senior counsel argued that the High Court can
issue appropriate writ of mandamus if it is convinced that the
powers of investigation has been misused or the investigating
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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officers of police are found to be exercising their powers mala
fide.
11. It is also the submission of the learned senior
counsel for the appellant that all fundamental rights cannot be
waived. In support, the learned senior counsel placed reliance
upon the decision of the Apex Court in the case of Assam
Sanmilita Mahasangha and others v. Union of India and others,
(2015) 3 SCC 1. Arguing so, the learned senior counsel for the
appellant prayed for ordering CBI investigation regarding the
death of her son Nishan Singh.
12. Per contra, Mr. S. Samarjeet, the learned Senior
Panel Counsel for the respondents 1 to 3 supported the
impugned judgment of the learned Single Judge. He would
submit that the appellant after knowing the death of her son,
ought to have lodged a complaint with the higher authorities or
she could have approached the concerned Magistrate to redress
her grievance. However, the appellant has failed to do so.
13. The learned Senior Panel Counsel would submit
that Nishan Singh was not killed and he committed suicide. It is
true that Shri P.K.Sahu was the Company Commander at the
time of incident and he belongs to the State of Orissa while Head
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Constable T.J.Thomas from Tamil Nadu; Head Constable
Tajuddin from Uttar Pradesh; Mahender Singh Meena from
Rajasthan; Water Carrier N.C.Deka from Assam and Barbar
Thakur from Bihar. The plea of the appellant that the above
personnel were confidants of the Company Commander Shri
P.K.Sahu is accepted to the extent that in a disciplined force as
every subordinates are supposed to obey the lawful orders of his
seniors or Commanding Officers. It does not mean that if a
Commander orders his subordinate to commit a crime, they will
execute the orders of the Commander without considering it as
to whether the orders given to them are lawful orders or
otherwise.
14. The learned Senior Panel Counsel further
submitted that Nishan Singh deserted from camp on 18.11.2002
and reported on his own on 19.11.2022 morning. He was on duty
from 8 to 10 a.m. on 18.11.2002 and thereafter his next duty was
scheduled at 2.00 p.m. on the same day, but he did not turn up
for duty and deserted from the lines in the afternoon. The
Company Commander Shri P.K.Sahu had come to the Battalion
Headquarter on 18.11.2002 at about 8.00 hours to attend Sainik
Sammelan convened by the Commandant and in the absence of
the Company Commander, Nishan Singh had deserted from
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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lines. According to the learned Senior Panel Counsel, Nishan
Singh was not sent out of the Camp in a planned manner as
alleged by the appellant. The fact remains that Nishan Singh
deserted the lines on his own may be in search of hooch and
women as he had been doing in the past also.
15. The learned Senior Panel Counsel added that the
story that Nishan Singh saw Commandant Shri Dinesh Kumar
and the wife of Shri P.K.Sahu in objectionable condition is false
and fabricated and there is no truth in it. It is with the motivated
intention to support the false theory of murder of Nishan Singh
which has no truth at all.
16. Adding further, the learned Senior Panel Counsel
submitted that the allegation that Tajuddin, T.J.Thomas and
Mahender Singh started beating Nishan Singh is imagination as
there is no mark of any scuffle or injury reported in the post
mortem report. Similarly, holding a young and healthy Constable
by two personnel in order to kill him is also not possible especially
seeing the nature of injury. During the scuffle, keeping the rifle
point blank range is also not possible. Nishan Singh shot himself
into his stomach which is easily possible with Insas rifle, as he
was suffering from appendicitis and was an advanced stage.
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17. The learned Senior Panel Counsel submitted that
after examining the materials on record, the learned Single Judge
rightly held that this is not a fit case to direct the CBI to investigate
into the case. The learned Senior Panel Counsel submitted that
direction for investigation can be given only if an offence is prima
facie found to have been committed or a person's involvement is
prima facie established. In the instant case, there is no prima
facie proof that the personnel alleged by the appellant have
committed the crime. The learned Single Judge has rightly came
to the conclusion that there is no sufficient material to come to a
prima facie conclusion that there is a need for such enquiry.
Further, the appellant had not brought out any new material facts.
Since the judgment of the learned Single Judge is well
considered one, no interference is called for. Thus, a prayer has
been made to dismiss the appeal.
18. Mr. RK Umakanta, the learned Government
Advocate appearing for the fourth respondent submitted that
there is no error in the order of the learned Single Judge. Placing
reliance upon the decision of the Apex Court in the case of
Secretary, Minor Irrigation and Rurgal Engineering Services, UP
and others v. Sahngoo Ram Arya and another, (2002) 5 SCC
521, the learned Government Advocate submitted that before
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directing CBI enquiry the Court has to record a prima facie finding
as to the truth of such allegation. In the instant case, the learned
Single Judge after examining the matter in proper perspective,
rightly dismissed the writ petition. Therefore, no interference is
warranted in the impugned judgment and prayed for dismissal of
the appeal.
19. We have considered the rival submissions and also
perused the materials available on record.
20. The case of the appellant is that her son Nishan
Singh, Constable of 26th Bn. CRPF, was killed in the barrack of
the Battalion on 19.11.2002. At the relevant point of time, the
Company Commander of D-Company was one Shri P.K.Sahu
and in the same Company Havidar T.J.Thomas; Havildar
Tejudeen; Constable Mohinder Singh; Water Carrier Deka and
Barbar Thakur were also working. The Commandant of 26 th Bn.
Shri Dinesh Kumar used to come to the D- Company very often
and one day before 19.11.2002, the Commandant Shri Dinesh
Kumar came to the D-Company and after talking with the
Company Commander Shri P.K.Sahu, the Commandant started
living at the residence of Shri P.K.Sahu. When he stayed away
from his room, the Quarter Master of the D-Company asked the
Constable Nishan Singh to put chair inside the room where the
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Commandant Dinesh Kumar stayed. When Nishan Singh picked
up the chair and went inside the room to place it, he saw
Commandant Shri Dinesh Kumar and the wife of Shri P.K.Sahu
in an objectionable condition. The said news of illicit relationship
of the Commandant Shri Dinesh Kumar with the wife of the
Company Commandant was spread by Nishan Singh. Unable to
tolerate the spreading of the news, both Shri Dinesh Kumar and
Shri P.K.Shahu planned to murder Nishan Singh and when
Nishan Singh went to the barrack to take his place for lunch, the
Company Commander ordered Constable Mohinder Singh;
Havildar Tajuddin; Havildar Thomas to go to his barrack and kill
Nishan Singh. Pursuant to the order of the Company
Commander, all the aforesaid three persons started beating
Nishan Singh in his barrack. Havildar Tajuddin and Constable
Mohinder Singh caught hold of Nishan Singh from both sides and
Havildar Thomas fired from Insas rifle of Mohinder Singh from
the point blank range of his abdomen and killed Nishan Singh.
After the incident, all the above personnel spread rumour that
Nishan Singh has committed suicide. On 20.11.2022, two Sub-
Inspectors of Police from Sapermeina Police Station came to the
place of occurrence and investigated the matter and filed a report
under Section 174 Cr.P.C. in U.D. Case No.2 of 2022 disposing
the case.
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21. As could be seen from the records, the appellant
had originally filed the writ petition before the Imphal Bench of
Gauhati High Court on 21.12.2005 for direction to the
respondents to conduct enquiry through CBI qua the murder of
her son on 19.11.2002 at the camp of Battalion at Heavy Fuel
Power Project, Leimakhong of Senapati District.
22. Prior to the institution of the writ petition, the
appellant had approached the National Human Rights Council,
Punjab. The National Human Rights Council, upon enquiry by
examining the witnesses and also collection of information from
the occurrence spot, came to the conclusion that two people of
the Battalion had revolted the killing of Nishan Singh and Nishan
Singh had not committed suicide, but he had been shot dead. In
the report dated 6.3.2003, the National Human Rights Council,
inter alia, stated as under:
"Keeping in view, the conditions of the spot, that,
the main accused in the case is T.J.Thomas, who
has been in connivance of commandant Dinesh
Kumar and Company Commander P.K.Shahu
being decided to be proceeded on pension by 31st
March, is required to be stayed.
All those accused, who have been named as
before, all those above said proceedings done by
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them, along with Commandant Dinesh Kumar and
company Commander P.K.Shahu and all other
officers who are attached to this case directly or
indirectly have clearly violated the Human Rights,
openly, which is in itself, violation of constitutional
section 311, 316 and 321 of the Constitution of
India.
Keeping in view, all the facts (& figures) and
references, the relevant legal actions be taken
against them under Section 302 and all other
relevant sections and the family members of
Nishan Singh and the soul of Nishan Singh be
given justice.
The above detailed references, such as no rifle is
present on the spot of incident (2) The post mortem
report of Nishan Singh showing only one bullet shot
in the body, but three holes found on the spot of
incident. (3) If Nishan Singh would have shot
himself, then the bullet would have moved
upwards, but the bullet has struck the stomach
from the front side, which is clearly evident that the
bullet was struck by staying a little back from the
front side and no blood stain was present on it. (4)
The Company Commander P.K.Shahu to proceed
on leave on the very 3rd day of incident, stresses to
think about it suspiciously. (5) Sending all the
relevant officials forcibly on leave also puts
suspicion in the case.
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Henceforth, not agreeing to it, it is hereby
requested to get this case investigated by some
neutral agency or by C.B.I."
23. Earlier, the appellant had also filed Criminal Misc.
Case No.14716-M of 2003 before the Punjab and Haryana High
Court under Section 482 Cr.P.C. to direct the respondents
therein to conduct the enquiry through CBI regarding the death
of her son who was murdered under a pre-planned conspiracy.
By the order dated 17.5.2005, the Crl. Misc. Case No.14716-M
came to be dismissed by the Punjab and Haryana High Court.
The operative portion of the order reads thus:
"After hearing the counsel for the parties and
going through the record of the case and in view
of the fact that the alleged occurrence took place
in the territorial jurisdiction of Gauhati High Court,
I do not find any ground to exercise the inherent
powers of this Court under Section 482 Cr.P.C.
for issuing directions to the respondents to
conduct the enquiry in the aforesaid alleged
occurrence through CBI or any other agency.
Dismissed."
24. Subsequent to the dismissal of Crl. Misc. Case
No.14716-M, the appellant had filed the present writ petition.
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25. Denying the averments in the writ petition, the
respondents filed affidavit-in-opposition, inter alia, stating that
nobody had fired at Constable Nishan Singh and he himself
committed suicide. It is also the say of the respondents that
Nishan Singh had been indulging in the activity of leaving the
Camp and he was found to have been disturbed due to the fact
that he was not being allowed to marry his brother's sister-in-law.
Apparently fear of bad name, guilty consciousness and fear of
punishment forced him to commit suicide. The enquiry
conducted by the National Human Rights Council, Punjab is not
tenable, as they have not contacted any of the senior officers of
the Department to ascertain the facts.
26. It is pertinent to note that in paragraph 16 of the
affidavit-in-opposition, the respondents 1 to 3 averred that the
enquiry can be conducted by any agency. There was no pre-
planned conspiracy to kill Constable Nishan Singh. In paragraph
16.1 of the affidavit-in-opposition, it has been stated as under:
"16.1 The enquiry can be conducted by any
agency. All the relevant witnesses are in the
Battalion only except Hv. T.J. Thomas and
Thakur retired and Const. T.P.Gautam (Now as
Havildar) in 1376 Bn). CT Mahender Singh
transferred to 165 Bn. Sri Dinesh Kumar
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Commandant transferred to IGP Special Sector
and Sri P.K.Sahu Assistant Commander
transferred to GC CRPF Imphal. They can also
be summoned to depose as and when
required."
(emphasis supplied)
27. Admittedly, the affidavit-in-opposition was sworn by
the then ADIGP Shri Hari Ram Banga way back in the year 2005
itself. When it is the say of the respondents 1 to 3 that enquiry
regarding the murder of the deceased Nishan Singh can be
conducted by any agency, taking note of the averments set out
in the writ petition and more particularly, the averment in
paragraph 16.1 of the affidavit-in-opposition that the enquiry can
be conducted by any agency, if the Writ Court ordered enquiry
through any agency or CBI, the matter would have come to an
end by this time. However, for the reasons best known to the
parties, no such order has been passed and the matter has been
prolonged and, finally on 18.7.2016, the writ petition came to be
dismissed by the learned Single Judge, after a gap of 11 long
years from the date of filing of the affidavit-in-opposition by the
respondents 1 to 3 and 14 years from the date of alleged
occurrence.
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28. The learned Single Judge held that the incident took
place in the barrack of 26th Bn. CRPF on 19.11.2002 and there
is no eye witness to it. The averments made in the writ petition
appear to have been told by Nishan Singh to somebody
immediately prior. The person to whom Nishan Singh might have
talked or narrated about the incident has not come forward to
speak about the same. There is no material on record to
corroborate the averments made in the writ petition about the
objectionable condition in which Nisha Singh has seen his
superior officer and the manner in which Nishan Singh was
caught hold of him by Tajuddin and Mohinder Singh, when
Thomas fired at him.
29. The learned Single Judge fully believed the case of
the respondents to hold that the special report prepared by the
National Human Rights Council, Punjab, cannot be used in
favour of the appellant, as the said Council is not the State
Human Rights Commission. The learned Single Judge further
observed that the statement made in the affidavit sworn by
Harminder Singh is only on hearsay and shall not disclose the
factual position of the case. Observing so, the learned Single
Judge in the impugned judgment held as under:
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"[8] ...... After examining the materials on
record and having heard the learned counsels
appearing for the parties, this court is of the view
that there is no prima facie case and the materials
on record are not sufficient to direct the CBI to
investigate into the case.
The learned counsel appearing for the petitioner
has placed his reliance on the decision rendered
by the Hon'ble Gauhati High Court in the case of
W.P. (C) No.11 of 1999, Smt. Achung Kamei Vs.
State of Manipur & ors. Wherein the Hon'ble High
Court, after examining the materials available on
record and in particular, the report of the
magisterial enquiry and the post-mortem report,
found it to be a fit case and accordingly, direct the
case be investigated by the CBI. But on perusal
of it, it is seen that the decision has been rendered
on its own facts which are not similar to that of the
present case and therefore, it will not apply to the
facts of the present case.
[9] For the reasons stated herein above, the
instant writ petition fails and is accordingly
dismissed with no order as to costs."
30. We slightly differ from the aforesaid view taken by
the learned Single Judge. Admittedly, nothing has been
produced by the respondents to discard the report of the National
Human Rights Council, Punjab. According to the respondents,
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Nishan Singh himself committed suicide due to personal reasons
i.e. the marriage issue and the advanced stage of his
appendicitis.
31. During the course of hearing, we had called for the
original Files and other relevant documents in reference of
CT/GD Nishan Singh of 26 Bn. Pursuant to the order of this
Court, the original Files were produced before us. We have
perused the Files (2 Files - One named as COI file of Late CT
Nishan Singh and another file named as Court of Inquiry File in
R/O of Late CT Nishan Singh (005160602 of D/26 BN CRPF).
The first File contains two set of letters containing allegation
against the Unit officers in connection with the death of Nishan
Singh; office orders dated 27.4.2003 to conduct the Court of
Inquiry and statements of witnesses examined. The second File
contains statements of witnesses, reports of the deceased
officers, medical records, FIR registered by the Saparmaina
Police station, copy of post-mortem report.
32. In the Medical Certificate of Cause of Death, it has
been that 'GUN SHOT WOUND ABDOMEN WITH
HAEMORRHAGEIC SHOCK'. On seeing the said Medical
Certificate, the said words - GUN SHOT WOUND ABDOMEN
WITH HAEMORRHAGEIC SHOCK - appear have been written
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in different ink when compared to the other writings made in the
said certificate. In the said certificate, it has been stated that the
examination was done around 13.30 hours on 19.11.2002. After
examination, the Medical Officer has handed over the body for
post mortem to the Investigating Officer of Sapamaina Police
Station. In the copy of the FIR in UD Case No.2 of 2002
registered at 4.00 P.M. on 19.11.2002, the date of occurrence
and cause of death has been stated as 19.11.2002 at 11.50
hours suicide. This very word "suicide" appearing in the FIR is
highly suspicion, as it is not known how Shri P.K.Sahu, Company
Commandant D-26 CRPF would have come to the conclusion
that Nishan Singh has committed suicide. Though the body of
the deceased Nishan Singh was received by the Investigating
Officer on 19.11.2002, the same was produced for post mortem
on 20.11.2002 at 10.20 A.M. After conducting the autopsy, the
Doctor opined that "death was due to laceration vena cava and
spinal cord resulting from firearm injury of a contact shot suicidal
in nature". The respondents pleaded that Nishan Singh was
suffering from appendicitis and he was in advanced stage, which
is the cause of death. However, the post mortem report speaks
nothing of Nishan Singh's having suffered from appendicitis or of
it being enough to cause his death. Admittedly, the respondents
have failed to produce any document in support of their
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submission that Nishan Singh was suffering from appendicitis.
The aforesaid would slightly disturb our mind that the
respondents have not given the correct picture of the case.
33. Coming to the affidavit of Harminder Singh relied
upon by the appellant, the learned Single Judge held that the
same cannot be taken into consideration, as at the relevant point
of time, Harminder Singh was posted at some other location
which is far away from the place of occurrence.
34. On a perusal of the annexures annexed to the
appeal papers, it is seen that the statement Harminder Singh has
been relied upon by the National Human Rights Council, Punjab
and, in fact, he has been examined by the said Council and
recorded his statement. In para 2 of the affidavit, Harminder
Singh stated that he was posted as driver in 26th Battalion, CRPF.
At the time of swearing affidavit, he was posted as Constable at
E-26 Company situated at K.P.I. District Senapati. In paragraph
3, he has stated that on 19.11.20022 a Sepoy No.005160602
Nishan Singh of D-26 Company was killed with a gun shot by the
Company Commander Mr. P.K. Shahu along with his Jawans
Havaldar T.J. Thomas, Havaldar Tajudeen, Sepoy Mohinder
Singh, B.M.Thakur (Barber), N.C. Deka (Water Carrier) in a pre-
planned conspiracy with the orders of the Commandant of 26 th
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Battalion Sh. Dinesh Kumar. Admittedly, the said affidavit does
not contain the date of swearing. Paragraph 3 of the affidavit is
quoted hereunder for ready reference:
"3. That on 19-11-2002 a Sepoy No.005160602
Nishan Singh of D-26 Company was killed with a
gun shot by the Company Commander Mr. P.K.
Shahu along with his Jawans Havaldar T.J.
Thomas, Havaldar Tajudeen, Sepoy Mohinder
Singh, B.M.Thakur (Barbet), N.C. Deka (Water
Carrier) in a pre-planned conspiracy with the
orders of Commandant of 26th Battalion sh.
Dinesh Kumar."
35. May be while swearing affidavit, Harminder Singh
was posted at a different place, but on the date of occurrence, he
was working in 26th Bn. CRPF and he must have known what is
happening in the Company. In the affidavit, Harminder Singh
categorically stated that the death of Nishan Singh has occurred
in connivance with Shri P.K. Sahu. He has also stated about the
visiting of Shri Dinesh Kumar to the house of Shri P.K.Sahu and
having bad condition of Shri Dinesh Kumar and wife of Shri
P.K.Sahu. Since the Nishan Singh was working as Constable at
26 Bn. and he has been directed to put chair inside the room
where Commandant Shri Dinesh Kumar was staying, there is
every possibility of Nishan Singh seeing the things that occurred
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in the said room and the persons available in the said room and
their position.
36. The appellant mainly contended that when Nishan
Singh spread the news about the illicit relation, both Shri Dinesh
Kumar and Shri P.K.Sahu planned to murder Nishan Singh and,
accordingly, on 18.11.2002, Shri P.K.Sahu issued a night pass
to Nishan Singh directing him to report to the Unit in the morning
and on the next day when he presented at 7.15 A.M., Shri
P.K.Sahu forcibly snatched the night pass from Nishan Singh and
tore it off and asked him to wait outside for whole night. On
19.11.2002, the Havildar Major asked Nishan Singh to have his
meal and when Nishan Singh went to the barrack for lunch, Shri
P.K.Sahu ordered Constable Mohinder Singh, Havildar Tajudin,
Havildar Thomas to go and kill Nishan Singh and, pursuant to the
words/directions of Shri P.K.Sahu, they went and started beating
Nishan Singh in his barrack. While Tajudin and Mohinder Singh
caught hold of Nishan Singh from both sides, Havidar Thomas
fired at him at his abdomen from Insas rifle of Mohinder Singh
and killed him.
37. It appears that qua the occurrence, the Deputy
Commandant ordered to hold the Court of Inquiry in which he had
recorded the statement of witnesses and after preparing
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statements, he handed over the same to the Commandant with
a copy to the Inspector General, CRPF. However, the Inspector
General, CRPF did not accept the enquiry conducted by the
Deputy Commandant and re-ordered enquiry. On 18.2.2003, an
order came to be passed by the Commandant Shri Dinesh Kumar
in the following lines:
"1) No.005160602 Ct Nishan singh committed
suicide with the rifle of No.913243236 Ct
Mahender Singh for which none is to be blamed.
The death is attributed individual's act of
committing suicide. He will be entitled to no other
benefits except DCRG, GPF, GIS, RPF etc. under
normal rules and Dependent pension to the NOK
(mother) if permissible.
2) He will be struck off the strength of this Unit
w.e.f. 19.11.2002 (AN).
3) The one round fired by the late Ct. with the
Insas Rifle Butt No.97 shall be written off.
4) The FIR/Police UD Case No.2/02 dated
19.11.2002 in the Saparmaina Police Station
should be pursued for settlement and firearm
(INSAS Rifle No.16324955 Butt No.97) along with
one magazine with 19 live rounded and one
empty case of 5.56 mm round be obtained back
after settlement of the case."
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38. While ordering so, the Commandant issued the
following precautions:
"i) There is a need to keep a check/watch
specially on young constables so that they do not
go astray and counselling in this regard on a
regular basis should be done for keeping them on
proper track.
ii) Keeping the rifle unattended by the Force
personnel need ot be discouraged in order to
avoid such incidents. Suitable orders in this
regard should be passed.
iii) Platoon Commander and Section Commander
may exercise proper supervision and take
responsibility so that the Cts under their command
are not allowed to fall into bad habits. This needs
to be watched in all coys for which necessary
steps should be taken."
39. Subsequent to the passing of the order dated
18.2.2003, the Commandant Shri Dinesh Kumar constituted a
Court of Inquiry to conduct an enquiry on the following aspects:
"(a) Was there any attempt made by any of
the unit personnel to hide the truth and
conspire to kill Ct. Nishan Singh.
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(b) The role of CT/DVr Harminder Singh,
SI?GD S.D.Shikla and HC/GD Joginder
Singh. Do they have any new facts which are
relevant.
(c) The names of following staff of D/26 have
figured in the complaint. Do they have
anything new or additional facts to submit in
connection with death of Ct. Nishan Singh.
(d) What was the reason of shouting by
CT/Dvr Harminder Singh when he had gone
to D/26 location with Shri Attar Singh D/C and
factors leading to his Act of in-discipline and
gross misconduct.
(e) Role of SI/GD S.D.Shukla in spreading
false propaganda in connection with death of
Ct. Nishan Singh.
(f) Reasons for submitting written statement
by Ct/Dvt Harminder Singh in-front of the so
called Human Right Council members of
Punjab who all visited him and why they did
not meet unit Officers.
40. Though the appellant was not directly aware of what
had happened on the fateful day, she has clearly stated in her
writ petition that her son Nishan Singh while he was alive
informed them about the threat by Shri Dinesh Kumar and Shri
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P.K.Sahu, superior officers of Nishan Singh. The affidavit of the
Harminder Singh, which was referred to by the National Human
Rights Council, Punjab assumes much importance in the present
case, as the said affidavit speaks about the occurrence and
killing of Nishan Singh with a gun shot by the Company
Commander Shri P.K.Sahu along with his Jawans Havildar
Thomas, Havildar Tajudeen, Sepoy Mohinder Singh, Barber
B.M.Thakur and Water Carrier N.C.Deka. The said affidavit
cannot be brushed aside as observed by the learned Single
Judge. That apart, as stated supra, the affidavit also speaks
about the illicit relationship of the Commandant Shri Dinesh
Kumar with the wife of Company Commander. The specific case
of the appellant is that since Nishan Singh spread the news about
the illegal intimacy of Shri Dinesh Kumar with the wife of Shri
P.K.Sahu, both of them have planned to eliminate her son and
such a plea cannot be brushed aside.
41. On a perusal of the records, it is seen that the State
police authorities have not investigated the case properly. In the
case on hand, a complaint dated 19.11.2002 before the
jurisdictional police station has been lodged by the then
Company Commander D-26 CRPF Shri P.K.Sahu and the
jurisdictional police treated the said complaint as UD Case No.2
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of 2002 under Section 174 Cr.P.C. The Investigating Officer has
filed a report under Section 174 Cr.P.C. on 5.7.2003 stating that
since the case is suicidal in nature, the same may be disposed
of. Similarly, the Commandant Shri Dinesh Kumar had ordered
constitution of Court of Inquiry and the Court of Inquiry submitted
a report to the effect that the death of Nishan Singh is only by
suicide. Agreeing with the report of the Court of Inquiry, the
Commandant Shri Dinesh Kumar has passed an order on
18.2.2003 holding that the death is attributed to the individual's
act of committing suicide. The circumstances under which the
complaint lodged by the Company Commander Shri P.K.Sahu
and the constitution of Court of Inquiry by the Commandant Shri
Dinesh Kumar clearly establish that only in order to save their
skin, they have lodged the complaint and constituted the Court of
Inquiry respectively. Since the main allegation itself against the
Commandant Shri Dinesh Kumar and the Company Commander
Shri P.K.Sahu, there is high suspicion in the instant crime. As
rightly argued by the learned senior counsel, the Commandant
Shri Dinesh Kumar cannot take part in the Court of Inquiry held
for the death of Nishan Singh.
42. Admittedly, this is a case where a young Constable
has been killed without any fault and the appellant is an
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unfortunate woman who lost his son at the age of 21 years. In
fact, she is fighting for justice since 2003 by filing various
proceedings. Aggrieved by the slip-shod investigation by the
State police and the collusion of the officials concerned in coming
to the conclusion that the death of her son is suicide, the
appellant has preferred the writ petition under Article 226 of the
Constitution of India seeking a mandamus for investigation by the
CBI.
43. In S.N.Sharma, supra, the Apex Court held that in
appropriate cases an aggrieved person can always seek a
remedy by invoking the power of the High Court under Article 226
of the Constitution of India and the High Court can issue
appropriate writ of mandamus if it is convinced that powers of
investigation have been misused or the Investigating Officers of
Police are found to be exercising their powers mala fide.
44. The respondents cannot canvass delay and laches,
in view of the judgment of the Apex Court in the case of Assam
Sanmilita Mahasangha, supra. In Assam Sanmilita
Mahasangha, supra, wherein the Apex Court held as under:
"32. Tilokchand Motichand v. H.B.Munshi, 1969)
1 SCC 110 is a judgment involving property
rights of individuals. Ramachandra Shankar
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Dodhar v. State of Maharashtra, (1974) 1 SCC
317, also of a Constitution Bench of five judges
has held that the fundamental right under Article
16 cannot be wished away solely on the 'jejune'
ground of delay. Since Tilokchand Motichand
case was decided, there have been important
strides made in the law. Property Rights have
been removed from part III of the constitution
altogether by the Constitution 44th Amendment
Act. The same amendment made it clear that
even during an emergency, the fundamental
right under Article 21 can never be suspended,
and amended Article 359(1) to give effect to this.
In Maneka Gandhi v. Union of India, (1978) 1
SCC 248, decided nine years after Tilokchand
Motichand, Article 21 has been given its new
dimension, and pursuant to the new dimension
a huge number of rights have come under the
umbrella of Article 21 [for an enumeration of
these rights, see Kapila Hingorani (1) v. State of
Bihar, (2003) 6 SCC 1, para 57]. Further, in Olga
Tellis v. Bombay Municipal Corpn. (1985) 3 SCC
545, it has now been conclusively held that all
fundamental rights cannot be waived (at para
29). Given these important developments in
law, the time has come for this Court to say that
at least when it comes to violations of the
fundamental right to life and personal liberty,
delay or laches by itself without more would not
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be sufficient to shut the doors of the court on any
petitioner."
45. The judgment in the case of Assam Sanmilita
Mahasangha, supra, is squarely applies to the case of the
appellant. As stated supra, since the occurrence is of the year
2002, it cannot be contended that this Court has no power to
order re-investigation.
46. Really, the act of the respondent authorities
affected the fundamental rights of the appellant. When some
suspicion has been established in the alleged crime, this Court
cannot shut its eyes.
47. In Dharam Pal v. State of Haryana and others,
(2016) 4 SCC 160, the Apex Court observed that the
Constitutional Courts are envisaged with the power to order
fresh, de novo or re-investigation. In paragraph 25, it has been
held as under:
"25. ..... The power to order reinvestigation
being vested with the Constitutional Courts,
the commencement of a trial and
examination of some witnesses cannot be an
absolute impediment for exercising the said
Constitutional power which is meant to
ensure a fair and just investigation. It can
never be forgotten that as the great ocean
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has only one test, the test of salt, so does
justice has one flavour, the flavour of
answering to the distress of the people
without any discrimination. We may hasten
to add that the democratic set up has the
potentiality of ruination if a citizen feels, the
truth uttered by a poor man is seldom
listened to. Not for nothing it has been said
that sun rises and sub sets, light and
darkness, winter and spring come and go,
even the course of time is playful but truth
remains and sparkles when justice is done.
It is the bounden duty of a Court of law to
uphold the truth and truth means absence of
deceit, absence of fraud and in a criminal
investigation a real and fair investigation, not
an investigation that reveals itself as a sham
one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful
investigation is imperative. If there is
indentation or concavity in the investigation,
can the "faith" in investigation be regarded as
the gospel truth? Will it have the sanctity or
the purity of a genuine investigation? If a
grave suspicion arises with regard to the
investigation, should a Constitutional court
close its hands and accept the proposition
that as the trial has commenced, the matter
is beyond it? That is the "tour de force" of the
prosecution and if we allow outselves to say
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so it has become "idee fixe" but in our view
the imperium of the Constitutional courts
cannot be stifled or smothered by bon mot or
polemic. Of course, the suspicion must have
some sort of base and foundation and not a
figment of one's wild imagination. One may
think an impartial investigation would be a
nostrum but not doing so would be like
playing possum. As has been stated earlier,
facts are self-evidence and the grieved
protagonist, a person belonging to the lower
strata. He should not harbour the feeling that
he is an "orphan under law"."
48. We noticed from the materials available on record
that immediately after the date of occurrence, the Company
Commander Shri P.K.Sahu and other persons who are all said to
have been involved in the alleged crime proceeded on leave.
The same has not been controverted by the respondents. When
suspicion exists, the Court can order fresh enquiry/investigation.
49. In Sahngoo Ram Arya, supra, the Apex Court held:
"5. While none can dispute the power of the
High Court under Article 226 to direct an inquiry
by the CBI, the said power can be exercised
only in cases where there is sufficient material
to come to a prima facie conclusion that there
is a need for such inquiry. It is not sufficient to
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have such material in the pleadings. On the
contrary, there is a need for the High Court on
consideration of such pleadings to come to the
conclusion that the material before it is
sufficient to direct such an inquiry by the CBI.
This is a requirement which is clearly deducible
from the judgment of this Court in the case of
Common Cause (supra). This Court in the said
judgment (AIR 1999 SCW 289 : AIR 1999 SC
2979) at paragraph 174 of the report has held
thus:
The other direction, namely, the direction to
CBI to investigate "any other offence" is wholly
erroneous and cannot be sustained.
Obviously, direction for investigation can be
given only if an offence is, prima facie, found to
have been committed or a person's
involvement is prima facie established, but a
direction to CBI to investigate whether any
person has committed an offence or not cannot
be legally given. Such a direction would be
contrary to the concept and philosophy of
"LIFE" and "LIBERTY" guaranteed to a person
under Article 21 of the Constitution. This
direction is in complete negation of various
decisions of this Court in which the concept of
"LIFE" has been explained in a manner which
has infused "LIFE" into the letters of Article
21.""
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50. The specific case of the appellant is that certain
named persons have committed the offence. At the cost of
repetition, the prayer of the appellant in the writ petition is quoted
hereunder:
"The petitioner humbly prays that Your Lordships
may graciously be pleased to issue direction or
any other appropriate order or writ to the State-
respondents to conduct/hold enquiry through the
Central Bureau of Investigation (CBI) regarding
the death/murder of Constable Nishan Singh
(Constable No.005160602) of the 26th Battalion
C.R.P.F. on 19.11.2002 at the camp of the
Battalion at Heavy Fuel Power Project,
Leimakhong of Senapati District, Manipur, and to
award cost of this application, for the ends of
justice."
51. Thus, it is not the case of direction to conduct CBI
enquiry as to whether any person has committed an offence.
The case of the appellant is that Nishan Singh was killed under
the pre-planned conspiracy hatched by Shri P.K.Sahu and Shri
Dinesh Kumar respectively.
52. In the decision relied upon the learned Government
Advocate in the case of State of West Bengal and other v.
Committee for Protection of Democratic Rights, West Bengal and
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others, (2010) 3 SCC 571, the Apex Court held that 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 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.
53. The Apex Court in the said decision further
observed that the 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 recourses, may find it difficult
to properly investigate even serious cases and in the process
lose its credibility and purpose with unsatisfactory investigations.
54. As observed by the Apex Court, this is case where
an order for conducting the CBI investigation is necessary for
doing complete justice and enforcing the fundamental rights. As
stated supra, the allegations are against the superior officers of
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the deceased. That apart, when the allegations are against the
Commandant and Company Commander, the very same
persons cannot lodge the police complaint and constitute a Court
of Inquiry respectively.
55. The criminal complaint has been closed by filing
report under Section 174 Cr.P.C. and based upon the report of
the Court of Inquiry, the Commandant came to the conclusion
that the deceased died due to suicide. However, the records
produced and/or shown before us are otherwise and there
appears to be a suspicion in the death of Nishan Singh.
56. The learned Single Judge himself observed that it
is indubitably clear that the High Court under Article 226 of the
Constitution of India has the power and jurisdiction to direct the
CBI to investigate into a case, but this power shall be exercised
sparingly, cautiously and only in exceptional situation. This is a
case coming under the exceptional situation and power can be
invoked to direct fresh investigation. More so, clear averments
have been set out in the writ petition.
57. In K.V.Rajendran v. Superintendent of Police,
CBCID South Zone, Chennai, (2013) 12 SCC 480, a three Judge
Bench of the Apex Court held:
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"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
agency like CBI. It has been held that the power
of transferring such investigation must be in rate
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. ...."
58. In Dwarka Nath v. ITO, AIR 1966 SC 81, the Apex
Court observed that Article 226 of the Constitution is couched in
comprehensive phraseology and it ex facie confers a wide power
on the High Courts to mould the reliefs to meet the peculiar and
extraordinary circumstances of the case. Therefore, we have
said the above in regard to the exercise of jurisdiction by the
Supreme Court under Article 32, must apply equally in relation to
the exercise of jurisdiction by the High Courts under Article 226
of the Constitution of India.
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59. In Tirupati Balaji Developers (P) Ltd. V. State of
Bihar, (2004) 5 SCC 1, the Apex Court held that under the
Constitutional scheme as framed for the judiciary, the Supreme
Court and the High Courts both are Courts of record. In a way
the canvas of judicial powers vesting in the High Court is wider,
inasmuch as it has jurisdiction to issue all prerogative writs
conferred by Article 226 of the Constitution of India for the
enforcement of any of the rights conferred by Part II of the
Constitution of India and for any other purpose while the original
jurisdiction of the Supreme Court to issue prerogative writs
remains confined to the enforcement of fundamental rights and
to deal with some such matters, such as Presidential elections or
inter-State disputes which the Constitution does not envisage
being heard and determined by High Courts.
60. Thus, from the aforesaid decisions of the Apex
Court, it is clear that the High Courts are authorised under Article
226 of the Constitution of India to issue directions, orders or writs
to any person or authority, including any Government to enforce
fundamental rights and for any other purpose. In other words,
the right conferred by Article 226 of the Constitution of India can
be exercised not only for the enforcement of fundamental rights,
W.A. No. 86 of 2016 (Ref :- WP(C) No. 1401 of 2005)
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but for any other purpose as well i.e. for enforcement of any legal
right conferred by a statute, etc.
61. At this juncture, the learned Senior Panel Counsel
for the respondents 1 to 3 submitted that the appellant ought to
have lodged a complaint with the higher authorities or she could
have approached the concerned Magistrate to redress her
grievance. But the appellant had failed to do so.
62. It is true that upon receipt of the information about
the incident from Shri P.K.Sahu, a regular U.D. Case No.2 of
2002 was registered by the concerned police station and the
appellant was in the mind that the Investigating Officer would
conduct the investigation as per law. But the Investigating Officer
has filed a final report under Section 174 Cr.P.C. on 5.7.2003 to
the effect that the death of Nishan Singh is suicide.
63. As stated supra, the appellant had also earlier
approached the Punjab and Haryana High Court by filing petition
and Section 482 Cr.P.C. and the same was dismissed on the
ground of territorial jurisdiction. In the facts and circumstances
narrated in the writ petition, the non-approaching of the
concerned Magistrate or the higher officials is not affecting the
case of the appellant. The fact remains that from date of her
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son's death, the appellant is fighting for justice knocking the
doors of various fora, including the High Courts.
64. Considering the given facts and circumstances of
the case, we are of the view that the materials produced by the
parties, more particularly the original files produced by the
respondents, disclose a prima facie case calling for fresh
investigation by CBI as the powers and jurisdiction of CBI for
investigation are confined to any offence or classes of offences
notified by the Central Government. There are many instances
like the instant case in which the CBI has been directed by the
Apex Court and this Court to investigate into various cases. The
Court, being the bulwark of civil liberties of the citizens, has not
only the power and jurisdiction but also an obligation to protect
the fundamental rights guaranteed under Part III in general and
under Article 21 of the Constitution of India.
65. In Nilabati Behera v. State of Orissa, (1993) 2 SCC
746, the Apex Court held:
"35. This Court and the High Courts, being the
protectors of the civil liberties of the citizen, have
not only the power and jurisdiction but also an
obligation to grant relief in exercise of its
jurisdiction under Articles 32 and 226 of the
Constitution to the victim or the heir of the victim
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whose fundamental rights under Article 21 of the
Constitution of India are established to have
been flagrantly infringed by calling upon the
State to repair the damage done by its officers to
the fundamental rights of the citizen,
notwithstanding the right of the citizen to the
remedy by way of a civil suit or criminal
proceedings. The State, of course has the right
to be indemnified by and take such action as
may be available to it against the wrongdoer in
accordance with law - through appropriate
proceedings."
66. It is pertinent to note that as the incident dates back
to the year 2002 and many persons would not be available, this
Court directed the respondents to file an affidavit as to the
relevant persons who are still in service and those who retired
from service but are available and those who are no more who
were listed as witnesses in the Court of Inquiry.
67. Pursuant to the direction of this Court, on
27.9.2022, the DIG Manipur & Nagaland Sector, CRPF, Imphal
has filed an affidavit detailing the persons in service, retired from
service but are alive and who are no more. The details given in
affidavit is extracted hereunder for ready reference:
Sl. IRLA/Force No. Rank & Whereabouts
No. Name
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1 Shri Dinesh Kumar As per PIS, said officer
Comdt., IRLA No.12794 proceeded on
SUPERANNUATION
during the year 2011 from
the rank of IG
2 Shri Krishnan Gopal As per PIS, said officer
Sharma, Dy. Comdt., proceeded on
IRLA No.38117 superannuation during the
year 2015 from the rank of
Commandant.
3 Shri Pradipta Kumar As per PIS, said officer
Sahu, Asstt. Comd. presently posted in the
(Now 2-I/C), (IRLA office of DIG CRPF,
No.5255 Sambalpur (Odisha) w.e.f.
25/09/2022.
4 811160137 HC.GD As per PIS data said
J.T.Thomas individual proceeded on
Voluntary retirement
5 800110286 HC/GD Md. As per PIS data said indvl
Tajudeen Khan proceeded on
superannuation w.e.f.
31.03.2018 from 69 Bn.
6 913243236 CT/GD (NowPresently posted in 35 Bn
ASI/GD) Mohinder Singh
CRPF, Srinagar.
7 941242551 CT/WC
As intimated by 16 Bn vide
Nirmal Chandra Deka signal No.J.II-01/2022-
EC-II dated 19/06/2022,
CT/WC N.C.Deka is
presently posted in 16 Bn
since 04/12/2021 and
individual is under
treatment at Venkateswar
Hospital, New Delhi w.e.f.
03/09/2022.
8 680277099 CT/Barber As intimated by GC Imphal
Brahma Deo Thakur vide signal No.P.III-
3/2022-GC-IMP-Pen
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dated 21/09/2022, CT/BB
Brhma Deo Thakur has
proceeded on
Superannuation
retirement wef
31/12/2003.
9 940260056 CT/Dvr As intimated by 226 Bn
Harminder Singh vide Signal No.J.II-1/2022-
226-EC-II dated
16/09/2022 CT/Dvr
Harminder Singh have
already been proceeded
Voluntary Retirement on
31/08/2017
68. At this juncture, the learned Senior Panel Counsel
for the respondent Union submitted that as the incident took
place in the year 2002 which is more than 21 years, the possibility
of recalling afresh the incident may be remote as the individuals
related with the incident have also advanced in their ages. Since
the occurrence is of the year 2002 i.e. more than 21 years back
and individuals related with the occurrence are age old, it cannot
be contended that the investigation cannot be stopped.
69. Though the learned Single Judge accepted the
power of the High Court in ordering investigation by the CBI, the
learned Single Judge came to a conclusion that there is no prima
facie case and the materials on record are not sufficient to direct
the CBI to investigate into the case. We are of the view that the
appellant has established the prima facie case. In fact, in the
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year 2005 itself, the respondents 1 to 3 agreed to direct to hold
investigation of the case by any agency, which means that the
respondents 1 to 3 have no objection in the year 2005 itself in
directing the CBI to investigate into the matter. However, the
same has not been done at the relevant point of time. Had the
investigation/enquiry been done by any other agency like the CBI
at the relevant point of time as agreed by the respondents 1 to 3,
the reason for the death of Nishan Singh would have come to
light. Now the appellant is aged about 84 years and at the age
of 84 years, she wants to know the cause of death and the reason
for death of her son. The said prayer of the appellant is quite
reasonable and in order to render fair justice to the affected
family, the instant case needs to be investigated by the CBI in
the interest of justice. The nature of bullet shot and the extent of
wound and also the alleged tampering of important documents
stated in this case are to the verified by the investigating agency,
as this Court is not expertise.
70. At this juncture, it is apposite to rely upon the
decision of the Apex Court in the case of Vinay Tyagi v. Irshad
Ali Deepak and others, (2013) 5 SCC 762, wherein it has been
held that "it is well settled canon of criminal jurisprudence that
superior courts have the jurisdiction under Article 226 of the
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Constitution of India to direct further investigation". The Apex
Court explained that 'fresh', 'de novo' and 're-investigation' are
synonymous expressions and the superior Courts are also
vested with the power of transferring investigation from one
agency to another provided the ends of justice demand such an
action. The Apex Court reiterated that in appropriate cases, it is
open to the Court to hand over the investigation to a specialized
agency.
71. It is settled that fair trial is a sine qua non for instilling
faith in the public that the truth behind a crime will be revealed
through an impartial investigation.
72. 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. It is well settled that even after
the filing of the charge sheet the Court is empowered in an
appropriate case to handover the investigation to an independent
agency like the CBI.
73. The case on hand is very pathetic, as the allegation
is against the higher officials of the disciplined force who are
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alleged to have caused death to a newly joined Constable, aged
about 21 years at the time of occurrence. The loss of 21 years
aged boy who joined in the CRPF with huge dream cannot be
tolerated by the mother. Bearing in mind the position of law, as
discussed above and, in the facts and circumstances of the case,
we are of the opinion that this is a fit case to issue direction to
conduct CBI investigation into the alleged crime.
74. For the foregoing reasons, we are of the view that
the judgment and order of the learned Single Judge warrants
interference and the prayer in the writ petition needs to be
considered.
75. In the result,
(i) The writ appeal is allowed.
(ii) The judgment and order of the learned Single
Judge dated 18.7.2016 made in W.P.(C)
No.1401 of 2005 is set aside.
(iii) We direct the Joint Director of CBI, Manipur, to
get the instant case of death of Nishan Singh,
Constable No.00560602, 26th Battalion,
CRPF, at the Camp of the Battalion at Heavy
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Fuel Power Project, Leimakhong of Senapati
District, investigated.
(iv) The Investigating Officer appointed by the
Joint Director of CBI, Manipur, shall be entitled
to take possession of all the records in
FIR/Police UD Case No.2 of 2002 dated
19.11.2002 from the file of Saparmaina Police
Station and also other relevant
records/documents pertaining to the case of
the death of Nishan Singh from the office of the
Inspector General, Manipur & Nagaland
Sector, CRPF, Imphal, Manipur and also from
the other offices for the purpose of fresh
investigation.
(v) On what aspects the fresh investigation shall
be carried out is left to the wisdom of the CBI.
(vi) The fresh investigation be carried out and
completed as early as possible, preferably
within a period of three months from the date
of receipt of a copy of this judgment.
(vii) There will be no order as to costs.
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(viii) The original Files are ordered to be returned to
the learned Senior Panel Counsel with due
acknowledgement.
JUDGE ACTING CHIEF JUSTICE
FR/NFR
Sushil
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