Patna High Court
Amar Nath Poddar vs The State Of Bihar Through Its ... on 7 April, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.68 of 2021
Arising Out of PS. Case No.-311 Year-2020 Thana- KOTWALI District- Munger
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AMAR NATH PODDAR Son of Shri Hari Lal Poddar Resident of Lohapatti,
Bekapur, Munger, Bihar- 811201.
... ... Petitioner/s
Versus
1. The State of Bihar through its Additional Chief Secretary Having its Office
Situated at- Old Secretariat, Patna- 800001, Email Id- secy-home-
[email protected], Phone No.- 0612-2294050.
2. The Bihar Police through its Director General of Police Having its office
situated at- Police Headquarters, Sardar Patel Bhawan, Nehru Marg, Patna-
800023, Email ID- [email protected], Phone No.- 0612-2217833
3. The Central Bureau of Investigation (CBI), through its Superintendent of
Police, Patna, Bihar Having its office situated at- Dr. S.K. Singh Path, Bailey
Road, Patna- 800022, Email ID- [email protected], Phone No.- 0615-
2235577.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Alakh Alok Srivastava, Adv.
Mr.Manas Prakash, Adv.
For the Respondent/s : Mr. Lalit Kishore, A.G.
Mr. Anjani Kumar, AAG-4
Mr. Nadim Seraj, GP-5
Mr. Shailesh Kumar, AC to GP-5
Mr. Shailendra Kumar Singh, AC to AAG-4
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 07-04-2021
This writ application has been preferred for issuance of
a writ, order or direction in the nature of a writ of mandamus
commanding the respondent no. 3, Central Bureau of
Investigation (in short "C.B.I.") to conduct a free, fair,
independent and effective investigation, in a time bound
manner, under monitoring of this Court; further prayer has been
made to direct respondent nos. 1 and 2 to immediately disburse
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
a compensation of Rs. 5 crore to the petitioner, for the brutal
killing of the young son of the petitioner in the alleged police
firing. Petitioner has prayed for such other order(s) or relief(s)
as may be deemed fit and proper in the facts and circumstances
of the case.
Case of the Petitioner
Briefly stating, it is the case of the petitioner that on
26.10.2020 while his son namely Anurag Kumar, aged about 18
years was peacefully watching the procession of immersion of
Maa Durga idol, he was killed in a police firing. The petitioner
alleged that the police personnel led by the then Superintendent
of Police (S.P.) of Munger, namely, Ms. Lipi Singh was insisting
the procession for hurriedly completing the Maa Durga idol
immersion in the night itself without following the traditional
hierarchical procession which led to a chaos. The son of the
petitioner was present in the immersion procession near DCM
Showroom at Deen Dayal Chowk and he was peacefully
watching the Maa Durga idol immersion procession. He was
completely unarmed and was peacefully standing at that place,
out of his devotion.
The petitioner has alleged that the Munger Police led by
the then S.P. did not follow the procedures provided under the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Bihar Police Manual in the matter of resorting to firing on a
crowd, they indulged in indiscriminate and brutal firing on the
Maa Durga Devi devotees. The petitioner has named one Sushil
Kumar Singh, a police officer, who was officer in-charge of
Basudevpur Outpost and it is alleged that he had fired upon the
son of the petitioner. The petitioner refers to the photographs of
the body of his son lying in his mother's lap to submit that it
was a brutal murder in the hand of the police who resorted to
firing unauthorizedly and without putting a word of caution to
crowd.
The petitioner refers to the video footage which
emerged in the social and electronic media in which few
officials of Munger Police and also a person in white cloth
(later on identified as one Kumar Krishna) were seen brutally
beating the innocent and unarmed Maa Durga devotees near an
idol, in the middle of the road. He has also placed before this
Court the internal report of the Central Industrial Security
Force (hereinafter called 'CISF') which states that the bullet
firing was initiated by Munger Police. A copy of the
newspaper report has been brought on record as Annexure
'4'. It is stated that two days after the alleged incident, the
then S.P., namely, Ms. Lipi Singh and the then
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
District Magistrate were transferred under order of the
Election Commission of India.
Lodgment of F.I.R.
It is stated that on 27.10.2020 the post-mortem of the
petitioner's son was conducted at Sadar Hospital, Munger where
his cause of death was mentioned as injuries caused by firearm.
Petitioner has alleged that while the petitioner was receiving the
body of his son at the Sadar Hospital, Munger, few police
officials of the Munger Police fraudulently and deceitfully
obtained petitioner's signature on a paper. According to him, he
could not even understand the ulterior motive of the police
personnel of Munger Police, however, subsequently the
petitioner came to know that the Munger Police had converted
the said signed document in a complaint and after four days
registered F.I.R. No. 311 of 2020 dated 31.10.2020 at P.S. Sadar,
Kotwali, District-Munger under Section 302/34 I.P.C. and
Section 27 of the Arms Act, in connection with the murder of
the petitioner's son against unknown accused persons.
The petitioner claims that he had been repeatedly
requesting the concerned officials of Munger Police to register
F.I.R. against the guilty police personnel for brutal killing of his
son. It is, then stated that the entire incident of the Munger firing
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
was being inquired into by the Commissioner, Magadh Division
hence vide his complaint dated 31.10.2020, the petitioner
requested the Commissioner, Magadh Division-cum-Inquiry
Officer of Munger firing incident to direct for registration of
F.I.R. against the above named police personnel. A copy of the
complaint dated 31.10.2020 submitted by the petitioner to the
Commissioner, Magadh Division-cum-Inquiry Officer of
Munger firing incident has been enclosed as Annexure '7' to the
writ application.
The petitioner wrote letters in this regard to the various
authorities. It is alleged that despite lapse of two months from
the aforesaid date of brutal killing of the petitioner's son, no
F.I.R. was registered against named policeman or against any
other culprit and no arrest was made in this regard as also no
effective step has been taken by the Munger Police and Munger
Administration to impart justice to the petitioner. In this
background, the present writ application has been preferred.
Mr. Alakh Alok Srivastava, learned counsel assisted by
Mr. Manas Prakash, learned advocate has led the argument on
behalf of the petitioner. Having narrated the entire facts, as
stated above, learned counsel has submitted that the alleged
incident took place as the police personnel led by the then S.P.,
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Ms. Lipi Singh did not follow the procedure and the safeguards
provided under the Bihar Police Manual to control the crowd.
There was no coordination between the district administration
and the district police. The devotees in the immersion
procession were brutally assaulted causing injury to many
persons. Police personnel opened fire on the procession of
devotees, prior to firing police did not resort to any alternative
method to control the crowd, rather the devotees in the crowd
were being mercilessly beaten, here also the mandates provided
under the Bihar Police Manual were not followed.
Learned counsel submits that a free and fair
investigation and trial of the case is a fundamental right of a
victim. Although, in the writ petition, no specific statement has
been made but in course of hearing, learned counsel has made
submissions that because of the political clout and connections
of the then Superintendent of Police, the investigation has not
progressed.
According to him, the then S.P. Ms. Lipi Singh is prima-
facie indulged in excess use of police force on the devotees on
26.10.2020. This has been made one of the grounds (ground
number XIII) in the writ application. It is submitted that there is
a reasonable apprehension in the mind of the petitioner that he is
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
not likely to get justice if the matter is allowed to be
investigated by the Bihar Police.
It is submitted that the enquiry report submitted by the
Commissioner, Magadh Range has been lying with the State
respondent but they have not acted upon the same and no action
has been taken against the erring officials.
It is submitted that the A.S.I. rank officer of Kotwali
P.S. was entrusted with the investigation who did not act at all
for two months. He did not collect any material such as blood
samples from earth and road or CCTV footage from the nearby
places and in fact the procedures required to be followed in
course of investigation of serious cases such as murder/killing
as laid down in the Police Manual have not at all been followed.
As an eye-wash, a team of eight police personnel was
constituted under leadership of the newly transferred S.P. and
directions were issued to the SIT to conduct investigation on
several points but such direction of the supervising authority i.e.
D.I.G., Munger were completely ignored.
It is submitted that the I.O. did not visit the hospital to
record statement of the injured who had been brought to hospital
by their family members. Even the deceased was brought to
hospital by his family only. It was made a 'special report' case
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
on paper but a very shoddy and perfunctory kind of
investigation has been done. The 'special report' cases are
brought to the notice of the senior officers at headquarter level
for information and further inputs but in this case no action was
taken at the headquarter level.
According to the petitioner, the then S.P. Munger and
the I.O./SIT led by the present S.P., Munger have allowed the
crucial evidences to disappear over the period in order to save
the accused police personnel.
Learned counsel has relied upon a number of judgments
of the Hon'ble Supreme Court and has referred the propositions
of law laid down in R.S. Sodhi, Advocate Vs. State of U.P.
1994 (Supplementary) (1) SCC 143, Mohammed Anis Vs.
Union of India and others 1994 Supp (1) SCC 145, West
Bengal and others Vs. Committee for Protection of
Democratic Rights, West Bengal and Ors. (2010) 3 SCC 571;
Narmada Bai Vs. State of Gujarat and Ors. (2011) 5 SCC
79; Rubabuddin Sheikh Vs. State of Gujarat and Ors. (2010)
2 SCC 200 and Ramesh Kumari Vs. State (N.C.T. of Delhi)
and Ors. (2006) 2 SCC 677.
It is his submission that the investigation be entrusted to
an independent agency i.e. C.B.I. and the same be monitored to
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
ensure timely conclusion of investigation and that no
interference at political or executive level takes place in course
of investigation.
One of his grievances of the petitioner is that till date
the State respondents have not provided any ex-gratia or interim
compensation as a solace to the victim family.
Stand of the State respondents.
A counter affidavit has been filed on behalf of
respondent nos. 1 and 2. It is sworn by the Deputy Inspector
General, Human Rights. In the counter affidavit, a stand has
been taken that the Home Department, Govt. of Bihar vide
Memo No. 115 dated 08.10.2020 had issued instructions to
complete the traditional Durga Puja immersion on 25.10.2020
and the District Administration was asked to ensure the
compliance of guidelines issued by the Election Commission of
India to conduct free and fair poll and to ensure that it is not
violated due to any programme related to Durga puja. It is stated
that the District Administration of Munger had issued joint order
vide Memo No. 1716/C, dated 22.10.2020 under the signature
of the then District Magistrate and the then Superintendent of
Police, Munger to complete the traditional Durga Puja
immersion on 25.10.2020 by late night. Annexure 'A' and 'B' to
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the counter affidavit are the copies of the memos referred in the
counter affidavit.
It is stated that on 26th October, 2020, problem of law
and order arose during immersion of God Durga procession.
People participation in procession turned into unlawful and
unruly assembly who started pelting stones and opened fire on
security forces. Some persons received injuries caused by
firearms and hard/blunt substance. According to the counter
affidavit, one person who received firearms injury on his body
was later on identified as son of this petitioner, he was brought
to hospital where he was declared dead. In this connection one
F.I.R. being Kotwali (Munger) P.S. Case No. 298 of 2020 dated
27.10.2020 under Section
147/148/149/323/324/325/326/307/332/333/353/302/120(B),
I.P.C. and Section 27 of the Arms Act was registered on the
basis of written statement of the Sub-Inspector of Police,
Brajesh Kumar Singh, Station House Officer, Mufassil
(Munger) Police Station.
It is stated that one pointed portion of ammunition was
recovered from the body of the injured Chandan Kumar which
has been sent to the Forensic Science Laboratory, Bihar, Patna
for scientific examination vide Memo No. 44 dated 22.02.2021.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
According to the affidavit, three persons, namely Chandan
Kumar, Ashutosh Kumar and Saurabh Kumar were injured in
the incident of stone pelting and firing by assembled crowd
which would be evident from the injury report provided by
Superintendent of the Sadar Hospital, Munger.
According to the counter affidavit, illegal arms were
recovered from the place where unlawful mob had gathered and
subsequently fled away. In this connection Kotwali P.S. Case
No. 299 of 2020 dated 27.10.2020 under Section 25(1-B)A, 26
(1-B), 27 and 35 of the Arms Act has been registered on the
basis of written statement of Sub-Inspector of Police Sushil
Kumar, In-charge, Basudevpur Outpost (Kotwali Police
Station). Annexure 'G' to the counter affidavit is the copy of the
F.I.R. and it shows recovery of one country made pistol and one
loaded country made pistol made of steel and five empty
cartridges of .315 as also one 12 bore cartridge.
It is stated that Munger Police did not resort to firing nor
it was informed by any other police personnel deployed on duty
on the said occasion to have fired but it has come to light during
the investigation of the case that thirteen rounds were fired in
the air by the 'CISF' personnel to control the unlawful mob and
for their self-defence.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
It is further stated that on the basis of video footage one
F.I.R. bearing Kotwali Munger P.S. Case No. 312 of 2020 dated
01.11.2020 has been registered under Section
147/342/323/153(A)/295(A) and 307 of the Indian Penal Code
and this case is also pending investigation. In paragraph '25' of
the counter affidavit it is reiterated that no police had fired
towards or on the devotees of the Maa Durga by police force.
Developments during pendency of the writ petition
This case was listed for the first time before this Court
on 12.02.2021. On going through the order dated 25.01.2021
passed by Hon'ble Supreme Court in SLP (Cr.) No. 36/2021
this Court noticed that Hon'ble Apex Court desired that the case
be decided by this Court preferably within two months. Thus,
with the consent of the parties dates were fixed for completion
of pleadings and hearing. Vide it's order dated 12.02.2021, this
Court called upon the State respondents to file their counter
affidavit with all such materials which they may desire to place
on the record in connection with this case.
It appears that soon after the order dated 12.02.2021, the
R-2 decided to transfer the investigation of this case and the
other three connected cases to the Crime Investigation
Department (C.I.D.) of Bihar police vide letter no.63 dated
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
17.02.2021 and letter no.92 dated 23.02.2021.
In course of hearing, thus, a counter affidavit has been
filed on behalf of the C.I.D. which has been sworn by S.P.
(C.I.D., Bihar, Patna). It discloses that further investigation of
Kotwali P.S. Case No. 298 of 2020 and Case No. 311 of 2020
have been handed over to the C.I.D. and Weaker Section
Division. According to the State respondents the cases are under
investigation by the C.I.D., which specialises in investigation of
complex and heinous cases. It is further stated that C.I.D. has
taken charge of the investigation with effect from 03.03.2021.
A Special Investigation Team (S.I.T.) under the
command of Shri Pramod Kumar Rai, Dy. S.P., C.I.D. has been
constituted vide Memo No. 382/C dated 02.03.2021 and the
Chief Investigation Officer of the S.I.T. has prepared an
investigation action plan for the investigation of the two cases.
High level committee of C.I.D. has reviewed the action plan of
S.I.T. and after reviewing, 53 points investigation plan has been
finalised and handed over to the S.I.T. on 16.03.2021 for
investigation in speedy manner and to submit progress report
within 15 days.
Case lodged against police officers
It is further submitted that Kotwali P.S. Case No. 312 of
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
2020 has been registered against the police officers and
constables including others for alleged high handedness and use
of disproportionate force against the processionists on the basis
of a viral video. In this regard it is stated that as the
investigation progresses and evidences are collected against the
erring official he/she may be made accused in the said case. In
paragraph '12' of the counter affidavit it is stated that the S.I.T.
has been directed to investigate Kotwali P.S. Case No. 311 of
2020 (the case of the petitioner) in the allegations against one of
the police officers who had allegedly killed the son of the
petitioner. The S.I.T. shall also conduct scientific investigation
and would gather information in this regard.
The case diaries and the inquiry report of the
Commissioner, Magadh Division has been provided to this
Court in a sealed cover in order to appreciate the submissions of
the rival parties.
Action taken on the basis of enquiry report
It is stated that in view of the Commissioner's inquiry
report the Home Department vide its' Letter No. 2338, dated
13.03.2021 sought response from eight police officers including
the then Superintendent of Police and General Administration
Department has been requested to obtain response from the then
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
District Magistrate, Munger, the then S.D.O., Sadar Munger and
the then A.D.M., In-charge of the Control Room, Munger.
Case against the key witnesses
As regards the complaint that key witnesses of the
police firing case are being framed in illegal liquor cases by
District police, it is stated in the counter affidavit that vide Bihar
Police Headquarter Memo No. 99, dated 21.03.2021, C.I.D. and
Weaker Section Division has been directed to take over the
investigation of Munger Jamalpur P.S. Case No. 141 of 2020
and direction has been issued to the S.I.T. constituted for
purpose of this case to take over the investigation of the said
case as well.
Submissions of learned Advocate General
At this stage, this Court would record that in course of
hearing learned Advocate General has categorically submitted
that he would not take much effort to defend the way
investigation has been done by Munger Police. The emphasis of
the argument of learned Advocate General is that since the
investigation has been transferred to C.I.D. of Bihar Police and
it is headed by a competent officer such as the present
Additional Director General, this Court in the facts of the
present case need not exercise it's power under Article 226 of
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the Constitution of India to transfer the investigation to C.B.I.
Learned Advocate General submits that instead of
transferring the investigation to C.B.I., this Court may monitor
the investigation, allow six weeks time to the CID to proceed
with the investigation and after perusal of the report of the
C.I.D. if this Court finds that the investigation is not going in
natural direction with adequate speed or that there is any attempt
from any corner to influence the investigation, this Court may
consider passing of appropriate order including order to transfer
the investigation.
Learned Advocate General further submits that until
conclusion of investigation of these cases the present A.D.G. Sri
Vinay Kumar shall not be transferred to any other department
and will be acting fully independent without any interference or
imposition in taking decisions pertaining to the investigation of
these cases. The A.D.G. may constitute/reconstitute the S.I.T.
and in case any officer in police/administration in any rank
posted at Munger is found non-cooperative with the
investigation, on the request of A.D.G., C.I.D., to facilitate
proper investigation the said officer shall be transferred.
In course of hearing when it was pointed out to learned
Advocate General in presence of the A.D.G. Mr. Vinay Kumar
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
that there are some police officers against whom there are
allegations and/or earlier they were connected with the
investigation and it is alleged that they purposely allowed the
evidences to disappear, the learned A.G., in presence of ADG,
CID assures this Court that in course of investigation by the SIT
of CID if it is found that due to laches on the part of the earlier
I.O./SIT of Munger Police the evidences have disappeared, the
CID would take necessary legal action in this regard against
those police officials who might have caused the evidences to
disappear.
The ADG, CID has endorsed the submission of learned
A.G. When it was pointed out to learned A.G. that some of the
police officers who were connected with the earlier
investigation or against whom there are allegations are still
posted in Munger, learned A.G. prayed for a short adjournment
to seek instruction on this issue. On 25.03.2021, the learned
A.G. produced before this Court the memo no.564 dated
24.03.2021 showing transfer of five police officers outside the
district of Munger. As regards the S.P., Munger who was
heading the SIT earlier though time was again taken to seek
instruction but lastly this Court was communicated that the State
respondents are not willing to transfer S.P., Munger, reason
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
advanced for the same is that now the investigation being in the
hand of CID, the S.P. Munger has no role to play in course of
investigation.
Since, it has transpired that the then DIG Munger who
was the supervising authority of case, had issued certain
directions to the I.O./S.I.T. under leadership of S.P. Munger but
those directions were not complied with, the learned A.G.
having realized that there are strong observations of the
supervising authority against the I.O./S.I.T. which is further
reflecting from the manner in which investigation has been done
so far, did not defend the I.O./SIT and rightly so because the
investigation on all such issues which may arise in course of
further investigation by CID/CBI as the case may be are yet not
concluded.
Stand of the ADG, CID
The ADG, CID who has remained present in Court
throughout the hearing of the case has made categorical
submissions that in the present administrative structure of the
CID, it is being headed by an officer in the rank of Director
General of Police and Additional Director General of Police is
the head. The Department acts totally independently through its
own set-up of the senior officers in the rank of I.G., D.I.G., S.P.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
and others who are posted at headquarter level. Whenever any
investigation is taken up by the CID, a team constituted by the
ADG camps at the place of investigation and under continuous
guidance of senior officers and ADG the investigation takes
place. This Court has been informed that the files relating to an
investigation of cases by the CID are not placed before the
Director General of Police or any other authorities and as such
there is no chance of CID coming under pressure from any
corner.
While answering a query of this Court, the ADG, CID
has informed that all 'special report' cases are supervised by the
S.P. and it is he who is the master of the case and it is his baby.
Therefore, it is admitted in course of hearing that earlier SIT
constituted by the DIG, Munger Range was being headed by the
S.P. Munger. As regards the routing of the communications and
instructions to the SIT of the CID, the ADG, CID has informed
that none of the communications and instructions will pass
through the S.P. Munger, though, for purpose of arrest of an
accused or raid at a particular place the CID may require
assistance of the local police administration.
A reading of the Police Manual would show that the
offices of (i) Fingerprint Bureau (ii) Laboratory (iii) Photo
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Bureau (iv) Dog Squad whose branches can be set up in other
districts also, Missing Persons Bureau and Juvenile Aid Bureau
are attached with the CID.
Opposition of the petitioner-apprehension expressed
against C.I.D.
Learned counsel for the petitioner has opposed the
submission of learned Advocate General. Pointing out the
statements made in paragraph '11' of the first counter affidavit
filed on behalf of the State respondents, it is submitted that the
statements made therein support the police version of the case
even though the investigation is yet to come to an end. Learned
counsel submits that it shows the State respondents have made
up their mind to accept the police version hence the C.I.D.
which is under the control of the Government of Bihar is not
likely to conduct an enquiry independently in a free and fair
manner.
It is further submitted that the then S.P. happens to be
close kith and kin to the party head of the ruling party in the
State, thus the petitioner has a reasonable apprehension that
because of her involvement the investigation did not take place
in right direction, no action was taken on the inquiry report of
the Commissioner, Magadh Division for five months.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
It is further submitted that the SIT constituted by C.I.D.
is being headed by a Dy.S.P. rank officer. Thus, there are reasons
to believe that a Dy.S.P. rank officer would not be able to muster
enough courage to examine senior officers in the rank of S.P.
and above.
Reply of learned Advocate General
As soon as the above submissions on behalf of the
petitioner were advanced, learned A.G. rose to make a statement
that what have been stated in paragraph '11' of the first counter
affidavit are being withdrawn. Learned A.G. further submitted
that such statements are incorporated because of mistake in
understanding the instructions. According to him, the State
respondents are duty bound to ensure free and fair investigation
without any preconceived mind. On the issue of the connection
of the then S.P. with the head of the Ruling Party, learned A.G.
submits that there is no material to show that the I.O. has been
influenced by any person so far, moreover these submissions are
being made without there being any statement in the writ
application and without making them party in the writ petition.
Further, as regards the Dy.S.P. rank officer of C.I.D.
heading the investigation, it is submitted that in course of
investigation such officers who are in higher rank shall be
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
questioned by the A.D.G. and other senior officers at
headquarter level and they would be going to 'Munger'
whenever required in connection with the investigation of these
cases.
This Court has been further informed that after taking
over the investigation on 03.03.2021, the SIT, C.I.D. has
recorded statements of some witnesses in video.
Submissions as regards 'Compensation'
On the prayer for the award of compensation to the
petitioner, learned A.G. has submitted that in the present case
the facts reveal that son of the petitioner was there in the
procession and presently the matter is under investigation.
According to him, the facts of the present case would not be
covered within the framework of the scheme of the government
so as to award any ex-gratia or interim compensation to the
petitioner.
Learned counsel for the petitioner has opposed the
stand of the State. It is submitted that the son of the petitioner
was peacefully watching the Maa Durga Idol Immersion
procession. The procession of the local people who were
devotees of Maa Durga was allowed and permitted to proceed
for immersion of Maa Durga idol. It was a religious procession
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
and the devotees who were involved in Pooja at Munger for
decades with lot of reverence and veneration were taken by
surprise as the police indulged in use of excess force in order to
compel the procession to complete immersion of Maa Durga
idol during the night itself. It is submitted that the State
government is granting ex-gratia compensation to the victims of
accident.
It is submitted that the 'CISF' who was available there
in connection with ensuing assembly election was requisitioned
by Munger Police to control the crowd. It is the 'CISF' report
that a quarrel took place between local police and the devotees
and it was Munger Police who had first fired whereafter the
'CISF' personnel had fired 13 rounds in the air. Submission is
that the firing was done unauthorizedly as no Magistrate was
there with the police. The son of the petitioner suffered fire arm
injury. Neither from his possession nor from the place where he
suffered fire firm assault any fire arm or cartridges live or empty
were recovered. Son of the petitioner was not identified
indulging in any violence.
It is his submission that the State having failed to
protect the life of son of the petitioner is liable to pay an
adequate amount of compensation as a solace to the victim
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
family. Learned counsel has relied upon a judgment of the
Hon'ble Apex Court in the case of Association for Protection of
Democratic Rights Vs. State of West Bengal and Ors. reported
in 2007 (4) CHN 842 which relates to the alleged killing of few
agitating farmers in Nandigram (West Bengal) police firing. At
the relevant time while directing CBI investigation in the matter,
the Hon'ble Division Bench of Calcutta High Court had directed
for award of compensation of Rs.5 lacs to each of the lives lost.
Consideration
After hearing learned counsel for the petitioner and
learned Advocate General representing the State respondents as
also on perusal of the materials on the record, this Court prima-
facie observes that till hearing of the writ petition on 12.02.2021
the investigation in the present case had not proceeded in the
natural direction. The records speak for themselves. According
to the answering respondents, the complaint against the firing by
police killing the son of the informant had been made on
27.10.2020. There was no reason for the officer in-charge of the
Kotwali police station to direct it to be entered as a station diary
entry alone. The allegations were pointing out towards
commission of a cognizable offence, therefore the Kotwali
Police was obliged to register the complaint as a First
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Information Report. The F.I.R. registered by the S.I. of Police
Brajesh Kumar Singh giving rise to Kotwali P.S. Case
No.298/2020 and the complaint reportedly lodged by this
petitioner materially differed with each other. Both the F.I.R.
were giving two different versions of the alleged occurrence.
The reluctance on the part of Kotwali Police in registering the
F.I.R. on 27.10.2020 and taking up the investigation from that
angle writs large on the face of the record. The F.I.R. was not
lodged for four days. It is only when the informant submitted a
complaint again on 31.10.2020 with the Commissioner, Magadh
Division who had been sent thereto to enquire into the matter,
the FIR was registered on the same day giving rise to Kotwali
P.S. Case No.311 of 2020.
This Court would not refer or discuss the entries made
in the case diary but can certainly appreciate the facts prima-
facie which are indicating towards the conduct of investigation
in a completely shoddy and perfunctory manner. The FIR
no.311/2020 was registered on 31.10.2020. On 01.11.2020, the
I.O. records the statement of the two witnesses. He however did
not visit the nearby shops himself to find out the CCTV footage.
The I.O. of this case is the same and one person who was
investigating the case lodged by police sub-inspector Brajesh
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Kumar Singh (posted as officer in-charge of Mufassil police
station). The records show that in F.I.R. No.298/2020 registered
on 27.10.2020, after 27.10.2020 no step at all was taken towards
investigation in accordance with the Rules and procedures
prescribed in the Bihar Police Manual. No blood sample was
collected from the spot, the I.O. did not take any trouble to
record the statements of the injured persons and there is no
mention in the case diary that he visited anywhere to record the
statement of the witnesses. After 27.10.2020 for two weeks
nothing was done in the matter and no explanation has been
furnished as to why the case diary were not written for two
weeks.
A perusal of the Rule 164 falling under Chapter IX of
the Bihar Police Manual would make it clear that how the
investigating officer has completely ignored the procedures
required to be followed. For brevity shake, this Court is re-
producing only one paragraph i.e. Rule 164(h)(iv) hereunder:-
"164(h)(iv). If due to some reason, the case
diary cannot be written on any particular day,
on which it should be written the date on
which it is written should be given. At the
same time the reason should also be noted as
to why diaries could not be written in time.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Wrong date should not be written in any
circumstance.
At one place, this Court has noticed that the Deputy
Inspector General of Police, Munger had constituted eight
members Special Investigation Team (In short 'SIT') vide memo
no.1820 dated 01.11.2020 under the leadership of the S.P.
Munger. The SIT was directed to conduct investigation on the
16 points vide memo no.1811 dated 31.10.2020 but the DIG
Munger had to regret that no investigation had taken place as
per his direction. He had issued various directions including to
collect evidences in scientific manner from the place of
occurrence by calling a team from the Forensic Science
Laboratory ( In short 'FSL'); to record the statements of the
police officers/personnel who were posted from Kotwali P.S.,
Mufassil P.S., Purabsarai O.P. and Basudevpur O.P. and the
statements of the members of the Durga Puja Samiti, he had also
directed for collecting the 'CCTV' footage but according to him
not a single direction issued by him was followed. His
observations recorded in connection with the investigation are
clearly indicating that the 'SIT' led by the Superintendent of
Police was not acting as per the direction of the supervising
authority.
This Court has further noticed from the materials on the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
record that doctor who examined one of the injured Chandan
Kumar had taken out one metalic piece from his thigh and the
same was handed over to the I.O. but the same was not sent to
the 'FSL' for almost four months. It is only when this Court
fixed the matter for filing of the counter affidavit, the things
progressed and it is said that the said metalic piece has been sent
to 'FSL' on 22.02.2021. There is nothing on the record to show
that the I.O./SIT led by S.P. Munger requisitioned the services
of the 'FSL' to collect evidences from place of occurrence in
some scientific manner.
Admittedly the arms of the police personnel who were
on duty and against whom there were allegations of firing upon
the mob were not examined. No arms parade took place and
there was no verification of the cartridges. The officers were
allowed to continue as in-charge of the same police station.
These are prima-facie observations of this Court.
As submitted by learned Advocate General and A.D.G.,
CID the investigation would reveal whether due to any laches
on the part of the I.O./SIT the evidences vanished or were
allowed to disappear?
This Court would make it clear that the investigation on
all aspects shall be done independently and the prima-facie
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
observations of this Court shall not cause any prejudice to those
who are likely to be investigated.
The learned Advocate General did not endeavour to
defend the manner in which the investigation has been done by
Munger police. Throughout his argument, learned Advocate
General kept on giving assurance to this Court that if an
opportunity is given to the CID to whom the case has been
entrusted, though belatedly, the CID will conduct investigation
on all the points and issues with the help of the scientific
methods and the truth will be placed before this Court within a
reasonable time. Since a case has also been registered on the
basis of viral video, in course of investigation the allegations of
excesss and unauthorise use of force shall be looked into. Sri
Vinay Kumar, the Additional Director General, CID has
remained present throughout the hearing of the case and he has
answered some of the queries of this Court also. Visibly, he is
also not satisfied with the kind of investigation done by Munger
police. The A.D.G has, however submitted before this Court that
he is now personally supervising the case and 53 points action
plan has been prepared by him, on which investigation has
already begun. This Court has been informed that the statement
of one witness who was claiming to be an eye witness of the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
alleged occurrence has been recorded by CID recently and this
has been video-graphed also.
Administrative structure of C.I.D.
Since the investigation has been transferred to the CID,
this Court thought it just and proper to understand the
administrative structure of the CID. For this purpose, the ADG,
CID was requested to make statements. This Court has been
informed that the CID is a totally independent department which
is now headed by the Additional Director General of Police. It
has its own officers in the rank of I.G., D.I.G., S.P. and Dy.S.P.
etc. who are all posted at the headquarter level. When the case is
transferred to the CID, it is investigated through the team
constituted for this purpose at the headquarter level and the said
team camps at the particular place where investigation is to be
done. In the cases handed over to the CID, final instruction shall
go from the ADG, CID and there will be no interference by
local police.
Question for consideration
Before this Court, at this stage what has, in fact, fallen
for consideration is as to whether this case has to be taken ahead
on an absolute proposition that wherever there is an allegation
against a police personnel of causing injury or death to a person,
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the same should be a matter of investigation by the CBI? If it is
taken as an absolute proposition that all cases in which police
personnel are involved and are likely to be investigated are to be
transferred to the CBI then this case may be transferred to the
CBI.
A glance over the Judicial Pronouncements Handing
Over of Investigation to CBI.
There are series of judgments of the Hon'ble Apex
Court wherein it has been repeatedly held that in the cases
where the investigation has not been conducted in a proper and
objective manner, the Court may consider handing over the
investigation to an independent agency to meet the ends of
justice.
In the case of Vinay Tyagi Vs. Irshad Ali reported in
(2013) 5 SCC 762 the Hon'ble Apex Court observed as under:-
"48. What ultimately is the aim or significance
of the expression "fair and proper
investigation" in criminal jurisprudence? It has
a twin purpose: Firstly, the investigation must
be unbiased, honest, just and in accordance
with law; secondly, the entire emphasis on a
fair investigation has to be to bring out the
truth of the case before the court of competent
jurisdiction....."
In the case of R.S. Sodhi (supra) the Hon'ble Apex
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Court was considering a case where the investigation with
regard to the incident in which 10 persons were reportedly killed
in an alleged encounter between the Punjab Militants and the
local police, investigation was handed over to the officer of the
Inspector General level. The local police officers were also
suspected. In paragraph '2' of the said judgment the Hon'ble
Apex Court observed as under:-
"2.We have examined the facts and
circumstances leading to the filing of the
petition and the events that have taken
place after the so-called encounters.
Whether the loss of lives was on account of
a genuine or a fake encounter is a matter
which has to be inquired into and
investigated closely. We, however, refrain
from making any observation in that behalf;
we should, therefore, not be understood
even remotely to be expressing any view
thereon one way or the other. We have
perused the events that have taken place
since the incidents but we are refraining
from entering upon the details thereof lest it
may prejudice any party but we think that
since the accusations are directed against
the local police personnel it would be
desirable to entrust the investigation to an
independent agency like the Central Bureau
of Investigation so that all concerned
including the relatives of the deceased may
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
feel assured that an independent agency is
looking into the matter and that would lend
the final outcome of the investigation
credibility. However faithfully the local
police may carry out the investigation, the
same will lack credibility since the
allegations are against them. It is only with
that in mind that we having thought it both
advisable and desirable as well as in the
interest of justice to entrust the
investigation to the Central Bureau of
Investigation forthwith and we do hope that
it would complete the investigation at an
early date so that those involved in the
occurrences, one way or the other, may be
brought to book. We direct accordingly. In
so ordering we mean no reflection on the
credibility of either the local police or the
State Government but we have been guided
by the larger requirements of justice. The
writ petition and the review petition stand
disposed of by this order. "
In the case of Mohammed Anis (supra) the Hon'ble
Apex Court was considering a challenge to the judgment of the
Hon'ble Allahabad High Court directing an investigation by the
CBI in the matter of an incident which occurred in the Pilibhit
area in which 10 persons were killed on the spot in the alleged
encounters. The said order was challenged by the police
inspector in public interest. While rejecting the said application,
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
in paragraph '5' of the judgment the Hon'ble Apex Court
observed as under:-
" 5. In the first place it is difficult to
appreciate what public interest the petition
seeks to serve and it is even more difficult
to appreciate how the petitioner's
fundamental rights under Articles 14 and/or
21 of the Constitution can be said to be
violated. Fair and impartial investigation by
an independent agency, not involved in the
controversy, is the demand of public
interest. If the investigation is by an agency
which is allegedly privy to the dispute, the
credibility of the investigation will be
doubted and that will be contrary to public
interest as well as the interest of justice.
This Court was careful enough to state that
its order should not be read as a reflection
on either the local police or the State
Government but that it was actuated by the
sole object of ensuring that the outcome of
the investigation, whatever it be, is not
suspect in the eyes of the people including
the family members of those killed in the
incident. Therefore, it is difficult to
understand how the petition can be said to
be in public interest. What public interest it
seeks to subserve? In fact the averment in
paragraph 1 betrays that the petition is filed
on behalf of U.P. Police to protect "the
interest of the entire police force of U.P."
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
The petitioner nowhere alleges that he was
serving in that area at the time when the
incident occurred. It is, therefore, difficult to
understand how his constitutional right
under Article 14 and/or Article 21 can be
said to have been violated. It is obvious that
the petition is misconceived and is merely
yet another attempt to frustrate the
implementation of the order dated May 15,
1992. In fact such successive attempts on
the part of the U.P. Police only strengthens
the suspicion calling for an independent
investigation. Thus the writ petition is
untenable on this preliminary ground."
In the case of Ramesh Kumari (supra) the controversy
was with regard to non-registration of a case by the police.
There was a case of the appellant that he was in possession of a
piece of land. The Hon'ble High Court had granted stay
protecting his possession which was extended by the order dated
10.09.1997, in presence of the other side. However, respondents
4 to 9 broke open the lock and removed various articles on
09.09.1997 and 10.09.1997. The appellant submitted an
information in this regard to the SHO, Kapashera, but no case
was registered by SHO concerned. The matter was brought to
the notice of the Police Commissioner but without any result.
Having considered the facts and circumstances of the case and
taking note of the statements of the learned Additional Solicitor
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
General the Hon'ble Apex Court directed the CBI to register a
case and investigate the complaint filed by the appellant.
Paragraph '8' of the said judgment is quoted hereunder for a
ready reference:-
" 8. Mr. Vikas Singh, leaned Additional
Solicitor General although vehemently
opposed registration of the case but he fairly
concedes that if at all the case be registered
and investigation is to be carried out, the CBI
would be an appropriate authority to register a
case and investigate. We are also of the view
that since there is allegation against the police
personnel, the interest of justice would be
better served if the case is registered and
investigated by an independent agency like
CBI."
In the case of Rubabbuddin Sheikh (supra) the
Hon'ble Apex Court noticed that there were allegations against
the high police officials of the State of Gujarat and it was
contended that if the investigation is allowed to be carried out
by the local police authorities, all concerned including the
relatives of the deceased may feel that investigation was not
proper and in those circumstances it would be fit and proper that
the writ petitioner and relatives of the deceased should be
assured that an independent agency should look into the matter.
It was also a case in which it was alleged that the brother of the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
petitioner was killed in a fake encounter and his sister-in-law
had gone missing/disappeared at the hands of the Anti-Terrorist
Squad (ATS), Gujarat Police. In paragraph '53' and '54' of the
said judgment the Hon'ble Apex Court observed as under:-
"53. It is an admitted position in the
present case that the accusations are
directed against the local police personnel
in which High Police officials of the State
of Gujarat have been made the accused.
Therefore, it would be proper for the writ
petitioner or even the public to come
forward to say that if the investigation
carried out by the police personnel of the
State of Gujarat is done, the writ
petitioner and their family members
would be highly prejudiced and the
investigation would also not come to an
end with proper finding and if
investigation is allowed to be carried out
by the local police authorities, we feel that
all concerned including the relatives of
the deceased may feel that investigation
was not proper and in that circumstances
it would be fit and proper that the writ
petitioner and the relatives of the
deceased should be assured that an
independent agency should look into the
matter and that would lend the final
outcome of the investigation credibility,
however faithfully the local police may
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
carry out the investigation, particularly
when the gross allegations have been
made against the high police officials of
the State of Gujarat and for which some
high police officials have already been
taken into custody.
54. It is also well known that when police
officials of the State were involved in the
crime and in fact they are investigating
the case, it would be proper and interest
of justice would be better served if the
investigation is directed to be carried out
by the CBI Authorities, in that case CBI
authorities would be an appropriate
authority to investigate the case."
Learned counsel for the petitioner has referred the
judgment of the Hon'ble Apex Court in the case of Rhea
Chakraborty Vs. State of Bihar and Ors. (known as Sushant
Singh Rajput's case) reported in 2020 SCC Online SC 654 to
submit that because in this case the investigation has to take
place with regard to the alleged firing and the CISF personnel
are also likely to be investigated, it would be proper to hand
over the investigation to the CBI.
Case-laws- transfer of investigation is not a matter of routine.
There are judgments of the Hon'ble Apex Court in the
cases of Sujatha Ravi Kiran Vs. State of Kerala & Ors.
reported in (2016) 7 SCC 597=AIR 2016 SC 2277, Prof. K.V.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Rajendran vs. Superintendent of Police, CBCID South Zone,
Chennai & Ors. reported in (2013) 12 SCC 480 and Bimal
Gurung vs Union Of India reported in (2018) 15 SCC 480
saying that transfer of investigation of a case to CBI may not be
done on mere asking. Paragraph '9' from the judgment of the
Hon'ble Apex Court in the case of Sujatha Ravi Kiran (supra)
is quoted hereunder for a ready reference:-
"9. It is well settled that the extraordinary power
of the constitutional courts in directing C.B.I. to
conduct investigation in a case must be exercised
rarely in exceptional circumstances, especially,
when there is lack of confidence in the
investigating agency or in the national interest and
for doing complete justice in the matter. A
Constitution Bench of this Court in State of West
Bengal & Ors. vs. Committee for Protection of
Democratic Rights & Ors. (2010) 3 SCC 571 held
as under:
"69. In the final analysis, our answer to the
question referred is that a direction by the High
Court, in exercise of its jurisdiction under Article
226 of the Constitution, to CBI to investigate a
cognizable offence alleged to have been
committed within the territory of a State without
the consent of that State will neither impinge
upon the federal structure of the Constitution nor
violate the doctrine of separation of power and
shall be valid in law. Being the protectors of civil
liberties of the citizens, this Court and the High
Courts have not only the power and jurisdiction
but also an obligation to protect the fundamental
rights, guaranteed by Part III in general and under
Article 21 of the Constitution in particular,
zealously and vigilantly.
70. Before parting with the case, we deem it
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
necessary to emphasise that despite wide powers
conferred by Articles 32 and 226 of the
Constitution, while passing any order, the Courts,
must bear in mind certain self-imposed
limitations on the exercise of these constitutional
powers. The very plenitude of the power under
the said articles requires great caution in its
exercise. 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. This extraordinary power must be
exercised sparingly, cautiously and in exceptional
situations where it becomes necessary to provide
credibility and instill confidence in investigations
or where the incident may have national and
international ramifications or where such an order
may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise 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."
In the case of K. Saravanan Karuppasamy & Anr. Vs.
State of Tamil Nadu & Ors. reported in AIR 2015 SC 214 the
Hon'ble Supreme Court was considering a writ petition filed by
the petitioners who were alleging beating of the students of Dr.
Ambedkar Government Law College, Chennai by some
miscreants and prayer was made to initiate criminal proceedings
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
against the guilty police personnel as well as the other persons
responsible for the said incident. Petitioners alleged that there
were violation of human rights and dereliction of duty on the
part of police personnel in preventing the incident. The Hon'ble
Supreme Court reiterated paragraph '70' of the judgment of the
Hon'ble Apex Court in the case of State of W.B. (supra).
In the case of Sudipta Lenka Vs. State of Odisha and
Ors. reported in AIR 2014 SC 3418 the Hon'ble Supreme
Court held that in an appropriate case if the Court is satisfied
that on account of the accused being powerful and influential
the investigation has not proceeded in a proper direction or it
has been biased, further investigation may be ordered under
Article 226 of the Constitution of India.
In the case of Bimal Gurung (supra) transfer of large
number of cases were sought for. In the said case a protest was
being made by three different associations of Gorkha Janmukti
Morcha (GJM) against the declaration by the Chief Minister of
West Bengal that one of the three languages in the State would
have to be Bengali. Several FIRs were lodged against the
petitioner and others under the provisions of the Indian Penal
Code and the Prevention of Destruction of Public Property Act;
Arms Act; Unlawful Activities (Prevention) Act, 1967; the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Explosives Act; the WBMPO Act and the National Highways
Act for the offences under Sections 121, 121A, 143, 148, 149,
153A, 186, 189, 323, 324, 325, 326, 307, 332, 333, 353 and 302
I.P.C. It was alleged that one Dawa Bhutia, GJM supporter died
in the shootout. According to petitioner, the Sikkim police had
registered a case against S.P. Kalimpong in the said respect. It
was the case of the police that on specific information when the
police raided a place, during the raid the petitioner and his team
opened fire on the police team and because of the said firing one
S.I. sustained bullet injury and died. Police seized certain arms
and ammunitions.
In the said case, the Hon'ble Supreme Court discussed
the necessary principles as enumerated by the Hon'ble Apex
Court in the matter of exercising jurisdiction by the Apex Court
under Article 32 or the High Court under Article 226 of the
Constitution of India for transferring a criminal case to a central
agency. Paragraph '70' from the judgment of the Hon'ble Apex
Court in the case of State of W.B. (supra) has been quoted. The
Hon'ble Apex Court also referred paragraphs 18, 19 and 24
from the judgment in the case of Dharam Pal Vs. State of
Haryana reported in (2016) 4 SCC 160 and further referred the
judgment in the case of Prof. K.V. Rajendran (supra) which
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
are quoted hereunder for a ready reference:-
"28. The two-Judge Bench of this Court in
Dharam Pal Vs. State of Haryana (2016) 4
SCC 160 while referring to the principles for
transferring investigation has laid down the
following in paras 18, 19 and 24: (SCC pp.168
and 170)
"18. A three-Judge Bench in K.V. Rajendran v.
Supt. of Police reiterating the said principle
stated that: (SCC p. 485, para 13)
'13. ... the power of transferring such
investigation must be in rare and exceptional
cases where the court finds it necessary in order
to do justice between the parties and to instil
confidence in the public mind, or where
investigation by the State police lacks credibility
and it is necessary for having "a fair, honest and
complete investigation", and particularly, when
it is imperative to retain public confidence in the
impartial working of the State agencies.'
19. The Court, after referring to earlier
decisions, has laid down as follows: (K.V.
Rajendran case, SCC p. 487, para 17)
'17. In view of the above, the law can be
summarised to the effect that the Court could
exercise its constitutional powers for
transferring an investigation from the State
investigating agency to any other independent
investigating agency like CBI only in rare and
exceptional cases. Such as where high officials
of State authorities are involved, or the
accusation itself is against the top officials of
the investigating agency thereby allowing them
to influence the investigation, and further that it
is so necessary to do justice and to instil
confidence in the investigation or where the
investigation is prima facie found to be
tainted/biased.'
24. Be it noted here that the constitutional
courts can direct for further investigation or
investigation by some other investigating
agency. The purpose is, there has to be a fair
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
investigation and a fair trial. The fair trial may
be quite difficult unless there is a fair
investigation. We are absolutely conscious that
direction for further investigation by another
agency has to be very sparingly issued but the
facts depicted in this case compel us to
exercise the said power. We are disposed to
think that purpose of justice commands that
the cause of the victim, the husband of the
deceased, deserves to be answered so that
miscarriage of justice is avoided. Therefore, in
this case the stage of the case cannot be the
governing factor."
In the said case the Hon'ble Apex Court noticed that in
a case of protests, hooliganism, vandalism and destruction of
public/private property the State is obliged to maintain law and
order as also to protect life and property of the citizens,
therefore, it has to take necessary steps to contain such agitation
and restore the peace. The petitioner in the said case alleged bias
against the State because he was spearheading an agitation
demanding a separate Statehood, but the Hon'ble Supreme
Court refused to accept the specious pleas of bias against the
State. Paragraph '45' and '46' from the judgment in the case of
Bimal Gurung (supra) are quoted hereunder for a ready
reference:-
"45. The "State" is a political unit vested
with constitutional duties and obligations. The
Governor of the State formally represents the
State in whom the executive Power of the State
is vested and exercised by him either directly or
through officers subordinate to him in
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
accordance with the Constitution of India.
Under Schedule VII List II Entry I of the
Constitution, "public order" is a subject
allocated to the State. All legislative and
executive powers in reference to Public order is
thus vested in the State. There is a Council Of
Ministers with the Chief Minister as the head to
aid and advise the Governor in the exercise of
his functions, except in so far as he is by or
under the Constitution required to exercise his
functions or any of them in his discretion.
46. The State functions through its various
organs consisting of different personnels and
authorities. State functionaries have their own
rights and obligations entrusted to them under
different Statutes governing the field. The Code
of Criminal Procedure is one of such Statutes,
which govern the law relating to criminal
procedure. The authorities and police officers,
who are entrusted different obligations and
functions under the Code of Criminal
Procedure, has to act as ordained by the Code of
Criminal Procedure. It is an obligation of the
police officers to register a First Information
Report when they receive any information
regarding commission of a cognizable offence.
For recording such offences, they are neither
required to await any instructions from any
authority or State nor they have to abdicate their
obligation to register F.I.R. as required by
Cr.P.C. "
The Hon'ble Apex Court had also referred the
judgment of a Two Judge Bench of the Hon'ble Supreme Court
in the case of Anita Thakur Vs. State of J&K reported in
(2016) 15 SCC 525. Although the facts of the said case were
different and those were connected with the holding of
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
demonstration but the task of the police and law enforcing
agency in a situation where mobs go unruly and violant have
been discussed in the said judgment. This Court quotes
paragraph '16' thereof hereunder:-
"16. Before adverting to the issue at hand,
we would like to make some general
remarks about the manner in which these
demonstrations are taking shape. Recent
happenings show an unfortunate trend
where such demonstrations and protests are
on increase. There are all kinds of protests:
on social issues, on political issues and on
demands of various sections of the society
of varied kinds. It is also becoming a
common ground that religious, ethnic,
regional language, caste and class divisions
are frequently exploited to foment violence
whenever mass demonstrations or dharnas,
etc. take place. It is unfortunate that more
often than not, such protestors take to
hooliganism, vandalism and even destroy
public/private property. In the process,
when police tries to control, the
protestors/mob violently target policemen
as well. Unruly groups and violent
demonstrations are so common that people
have come to see them as an appendage of
Indian democracy. All these situations
frequently result in police using force. This
in turn exacerbates public anger against the
police. In Kashmir itself there have been
numerous instances where separatist
groups have provoked violence. In this
scenario, task of the police and law-
enforcing agencies becomes more difficult
and delicate. In curbing such violence or
dispersing unlawful assemblies, police has
to accomplish its task with utmost care,
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
deftness and precision. Thus, on the one
hand, law and order needs to be restored
and at the same time, it is also to be
ensured that unnecessary force or the force
beyond what is absolutely essential is not
used. Policemen are required to undergo
special training to deal with these
situations. Many times the situations turn
ugly or go out of control because of lack of
sufficient training to the police personnel
to deal with violence and challenges to
their authority. There are various
documents in the form of police manual
and even international covenants
proscribing use of unnecessary force and
mandating that force should only be used
when it is absolutely necessary. Even when
used, it should be minimum and
proportional to the situation and its use to
be discontinued as soon as the danger to
life and property subsides."
In the case of Sakiri Vasu Vs. State of U.P. AIR
2008 SC 907:(2008 AIR SCW 309) held as under:-
"This Court or the High Court has power
under Article 136 or Article 226 to order
investigation by the CBI. That, however
should be done only in some rare and
exceptional cases, otherwise, the CBI would
be flooded with a large number of cases and
would find it impossible to properly
investigate all of them."(Emphasis is mine)
Question-answered
In the light of the case-laws discussed hereinabove,
this Court would conclude that there is no absolute proposition
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
requiring transfer of investigation of a case in which police
personnel are allegedly involved unless it becomes necessary to
give credibility and instill confidence in investigation. The
present case is required to be considered keeping in mind that
now investigation is in the hand of 'CID' which is headed by an
Additional Director General of Police. The investigation is no
longer with the Munger police. Presently, there is nothing before
this Court against CID so as to cast a cloud over the credibility
of investigation by the C.I.D. The allegation of firing is against
an officer in the rank of Sub-Inspector/Inspector of Police.
Though, it is alleged that the then S.P. Munger had led the
police and excess use of force was applied under her command,
in the opinion of this Court the investigation in these cases may
proceed under the leadership of an officer in the rank of D.G.P.
i.e. the present ADG, C.I.D. This Court has been informed that
the present ADG, C.I.D.is a competent officer and has already
framed his action plan. This Court has gone through the 53
points action plan prepared by the CID and to this Court it
appears that investigation on those points and such other points
which may be decided by the ADG, C.I.D. in course of
investigation may reveal the truth.
So far as the submission of learned counsel for the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
petitioner that because investigation involves CISF also, it
would only be just and proper to transfer the investigation to a
central agency such as CBI is concerned, this Court would
answer the same but before that paragraph '9' from the
judgment in the case of Rhea Chakraborty Vs.State of Bihar
and Ors. (known as Sushant Singh Rajput's Case) reported in
2020 SCC Online SC 654 is required to be quoted hereunder
for a ready reference:-
"9. Under the federal design envisaged by the
Constitution, Police is a state subject under List
II of Seventh Schedule of the Constitution.
Therefore, investigation of a crime should
normally be undertaken by the concerned state's
police, where the case is registered. There can be
situations where a particular crime by virtue of
its nature and ramification, is legally capable of
being investigated by police from different states
or even by other agencies. The entrustment of
investigation to the CBI is permitted either with
consent of the concerned state or on orders of the
constitutional court. However, investigation of a
crime by multiple authorities transgressing into
the others domain, is avoidable."
In the present case, the alleged occurrence has taken
place at district town Munger in the State of Bihar, therefore it
has to be normally investigated by the Bihar police. Only
because the investigation may involve 'CISF' as well may not
be a plausible ground to transfer the investigation from C.I.D.
to the CBI though it may be done for other reasons as indicated
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
in the various judgments of the Hon'ble Apex Court.
Recently in the case of Arnab Ranjan Goswami
Vs. Union of India & Ors. reported in 2020 SCC Online SC
462, the Hon'ble Supreme Court refused to transfer the
investigation from Mumbai Police to CBI. The Hon'ble Apex
Court once again reiterated that "...The transfer of an
investigation to the CBI is not a matter of routine. The
precedents of this Court emphasise that this is an "extraordinary
power" to be used "sparingly" and "in exceptional
circumstances". 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 by the Constitution Bench in
CPDR, West Bengal that mere allegations against the police
do not constitute a sufficient basis to transfer the
investigation." (Emphasis is mine)
Case distinguished
In the cases on which reliance has been placed by
learned counsel for the petitioner it may be noticed that those
were mostly cases in which large number of persons were
reportedly killed in an alleged encounter between the militants
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
and the local police. In all those cases, the investigation was
still with the local police and there were allegations against
very senior rank police officers whereas in the present case a
significant development has taken place where the State
respondents have handed over the investigation to the 'CID'
which is a separate department headed by an officer in the rank
of Director General of Police, posted as Additional Director
General. The allegations of firing are against the officers in the
rank of Sub-Inspector/Inspector. Further, it cannot be believed,
in absence of a cogent material that a police officer in the rank
of the Director General of Police would not be able to
investigate an officer in the rank of Superintendent of Police. A
Court of law cannot take a view on mere sentiment.
The apprehensions expressed by learned counsel for
the petitioner by pointing out the relationship of the then S.P.
with the head of the Ruling Party of the State has no basis to
stand at this stage. Moreover, in the writ petition there is no
specific statement in this regard and they are not made party in
the present writ application. In the case of Prof. K.V.
Rajendran (supra) a plea of 'bias' was rejected by the Hon'ble
Supreme Court when it was found that the person against whom
plea of 'bias' is being taken has not been made party and he had
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
no notice.
To this Court, the facts situation of the present case are
somehow completely different with that of those cases in which
the Hon'ble Apex Court had directed transfer of investigation to
the CBI. In the present case, the Court has been informed that
there are altogether 17 FIRs which were lodged in different
police stations as regards alleged occurrence. So far as the case
lodged by the petitioner is concerned, it alleges use of excess
force and killing of his son by the police personnel. Whether
such allegations are true, would be the subject matter of
investigation by CID. At the same time the police has lodged
some FIR in which it is alleged that the persons who had
assembled in Maa Durga Idole Immersion had gone violant and
they had allegedly been involved in stone pelting on the police
as also somebody from the procession had fired. There are viral
videos on the basis of which the FIR has been lodged and the
allegations against the police personnel are also being
investigated.
Transfer of investigation- Not 'imperative' at this stage
This Court has prima-facie observed that Munger
police and the SIT constituted for purpose of investigation of the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
case has not acted in natural direction but, in the changed
circumstances where CID is now investigating the case, this
Court in absence of any cogent material is not ready to accept
the spacious plea of learned counsel for the petitioner that the
'CID' is not likely to investigate the case in a free and fair
manner against the police personnel. No material showing
wielding of influence by any person or authority over the 'CID'
has been placed before this Court. Thus, at this stage this Court
is not required to exercise its' discretionary jurisdiction under
Article 226 of the Constitution of India. This Court is, therefore,
of the opinion that the test as laid down by Hon'ble Supreme
Court for purpose of transfer of an investigation is not satisfied
for the present.
This Court is of the view that subject to the directions
contained in this judgment here-in-after the 'CID' having
already assumed the investigation must get an opportunity to act
freely, collect all the evidences and submit its' first report to this
Court within four weeks from today. Since, the learned
Advocate General has requested that the investigation may be
monitored by this Court, taking into consideration his request as
well as the fact that investigation in this case has not progressed
with the desired pace and precision, this Court deems it just and
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
proper to monitor the investigation for the present keeping in
mind the purpose of continuing mandamus in a Court monitored
investigation.
Directions
(i) In the opinion of this Court, in order to ensure free
and fair investigation of the case, the State respondents shall
ensure that all the eight members of the SIT including S.P.
Munger be shifted to some other place for the present within
three days from today. This Court would, however make it clear
that the order to shift them elsewhere be not taken as any
indictment of all those officers by this Court and no adverse
inference shall be drawn against them for this reason alone.
(ii) The CID shall proceed with the investigation of the
case in the natural direction, in accordance with law and submit
its first report in a sealed cover before this Court within a period
of four weeks from today.
(iii) This Court deems it just and proper to direct that
in course of investigation of the cases transferred to the CID, in
order to maintain uniformity and consistency in the matter of
investigation, if the A.D.G. CID finds that any other or all the
connected case(s) is/are required to be investigated
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
simultaneously, he would request the competent authority to
transfer those cases as well to the CID and the same will be
considered forthwith.
(iv) This Court records the statement of the ADG,
CID that the files relating to investigation shall not go to any
other authority as he is not required to seek any
instruction/direction from any other authority. The ADG, CID
shall take all decisions and wherever required the respondent
nos.1 and 2 and all other authorities working under them shall
render full cooperation including administrative assistance, etc.
to the CID.
(v) The ADG, CID shall decide on the constitution of
the SIT as per requirement and wherever required he will
constitute a team of senior officers above the rank of Dy.S.P. to
interrogate the police personnel who are likely to be
investigated.
(vi) The learned A.G. has assured this Court that
during investigation of these cases, the A.D.G., CID Sri Vinay
Kumar shall not be transferred anywhere else. The statement of
learned A.G. shall form part of this order.
Liberty is there to the petitioner to point out to this
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
Court in course of monitoring of the investigation if the
investigation is not going on in the natural direction or that it
has been 'biased' and 'influenced' by any person.
Both the sides will be at liberty to mention the matter as
and when required, if so advised.
Award of Compensation
Having heard learned counsel for the petitioner and
learned Advocate General, this Court finds that the facts
disclosed so far point out an admitted position that the son of the
petitioner was unarmed in the procession, there is no allegation
that he was indulged in any unlawful act, however he has been
killed as a result of the firing which took place on 26.10.2020. It
was certainly an unfortunate incident in which the son of the
petitioner has been killed. Normally, in such cases the State
Government is giving some ex-gratia payments to the victims
who die accidentally leaving it open for him to realise adequate
amount of compensation from the wrongdoer but in this case, as
reported to this Court no compensation at all has been made
available to the petitioner who is admittedly a victim being
father of the deceased. The submissions of learned Advocate
General denying the benefit of compensation to the victim in the
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
facts of the present case would not impress this Court. This
Court has perused the enquiry report of the Commissioner,
Magadh Division and is fully convinced that it is one of those
cases in which the victim is required to be compensated by the
State. This Court would not disclose the contents of the enquiry
report but it's judicial conscience compels it to exercise it's
extra-ordinary power under Article 226 of the Constitution of
India to award a suitable amount of compensation to the
petitioner.
This Court need not go into any discussion on the
power conferred upon this Court under Article 226 of the
Constitution of India to reach out to injustice and make
appropriate orders including directions to pay damages or
compensation. In the case of Dwarka Nath vs. Income-Tax
Officer, Special Circle, D Ward, Kanpur and another
reported in AIR 1966 SC 81, the Hon'ble Supreme Court held
as under:-
"Article 226 is couched in comprehensive
phraseology and it ex facie confers a wide power
on the high court to reach injustice wherever it is
found. A wide language in describing the nature
of the power, the purposes for which and the
person or authority against whom it can be
exercised was designedly used by the
Constitution. The High Court can issue writs in
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the nature of prerogative writs as understood in
England; but the scope of those writs also is
widened by the use of the expression "nature",
which expression does not equate the writs that
can be issued in India with those in England, but
only draws an analogy from them. That apart,
High Courts can also issue directions, orders or
writs other than the prerogative writs. The High
Courts are enabled to mould the reliefs to meet
the peculiar and complicated requirements of this
country. To equate the scope of the power of the
High Court under article 226 with that of the
English courts to issue prerogative writs is to
introduce the unnecessary procedural restrictions
grown over the years in a comparatively small
country like England with a unitary from of
Government to a vast country like India
functioning under a federal structure. Such a
construction would defeat the purpose of the
article itself. But this does not mean that the
High Courts can function arbitrarily under this
Article. There are some limitations implicit in the
article and others may be evolved to direct the
article through defined channels. AIR 1961 SC
1731 and AIR 1954 SC 440 Foll. "
In the case of Air India Statutory Corporation
and others vs. United Labour Union & Ors. reported in
(1997) 9 SCC 377, the Hon'ble Apex Court held " .....The
founding fathers placed no limitation or fetters on the power of
the High Court under Article 226 of the Constitution except self-
imposed limitations. The arm of the Court is long enough to
reach injustice wherever it is found. The court as sentinel in the
qui vive is to mete out justice in given facts..."
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
In the case of Nilabati Behera (Smt.)Alias Lalit
Behera (Through the Supreme Court Legal Aid Committee
Vs. State Of Orissa And Ors. reported in (1993) 2 SCC 746,
the Hon'ble Supreme Court held as follows:-
"...... 'A claim in public law for
compensation' for contravention of human rights
and fundamental freedoms, the protection of
which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and
protection, of such rights, and such a claim based
on strict liability made by resorting to a
constitutional remedy provided for the
enforcement of a fundamental right is 'distinct
from, and in addition to, the remedy in private
law for damages for the tort' resulting from the
contravention of the fundamental right. The
defence of sovereign immunity being
inapplicable, and alien to the concept of
guarantee of fundamental rights, there can be no
question of such a defence being available in the
constitutional remedy. It is this principle which
justifies award of monetary compensation for
contravention of fundamental rights guaranteed
by the Constitution, when that is the only
practicable mode of redress available for the
contravention made by the State or its servants
in the purported exercise of their powers...."
The power of the High Courts under Article 226 to
mould the reliefs so as to compensate the victim has been
affirmed by the Hon'ble Supreme Court on numerous occasions
including in the case of Common Cause, A Registered Society
Vs. Union Of India & Ors. reported in (1999) 6 SCC 667,
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
D.K. Basu Vs. State Of West Bengal reported in (1997) 1 SCC
416 and Rudul Sah vs State Of Bihar & Another reported in
(1983) 4 SCC 141.
In the given facts of this case, the Court is of the
considered opinion that the case of the petitioner was required to
be considered for at least ex-gratia payment at this stage. But the
learned A.G. has taken a categorical stand that the case would
not fit in the criterion to award compensation.
The deceased was a young man aged about 18
years. He got serious injuries while participating in the Maa
Durga Idole Immersion procession. The State had a
responsibility to safeguard the life of a citizen. Whether the son
of the petitioner was killed in the police firing allegedly resorted
by police or by some one else from the crowd are the matters of
investigation but in the facts of this case where enquiry report of
the Commissioner, Magadh Division is available for taking a
prima-facie view the State need not wait for the outcome of the
investigation even as to make available compensation to the
victim. Whether son of the petitioner died as a result of firing by
police or by any miscreants from the mob would not be relevant
for the simple reason that in any case the State had failed to
protect the life of the son of the petitioner who was a spectator in
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the procession of Maa Durga Idole Immersion.
In the case of D.K. Basu (supra), their Lordships of
the Hon'ble Supreme Court had observed as under:-
"44. The claim in public law for compensation
for unconstitutional deprivation of fundamental
right to life and liberty, the protection of which is
guaranteed under the Constitution, is a claim based
on strict liability and is in addition to the claim
available in private law for damages for tortious
acts of the public servants. Public law proceedings
serve a different purpose than the private law
proceedings. Award of compensation for
established infringement of the indefeasible rights
guaranteed under Article 21 of the Constitution is
remedy available in public law since the purpose
of public law is not only to civilise public power
but also to assure the citizens that they live under a
legal system wherein their rights and interests shall
be protected and preserved. Grant of compensation
in proceedings under Article 32 or 226 of the
Constitution of India for the established violation
or the fundamental rights guaranteed under Article
21, is an exercise of the Courts under the public
law jurisdiction for penalising the wrongdoer and
fixing the liability for the public wrong on the
State which failed in the discharge of its public
duty to protect the fundamental rights of the
citizen.
* * * * *
54.Thus, to sum up, it is now a well accepted
proposition in most of the jurisdictions, that
monetary or pecuniary compensation is an
appropriate and indeed an effective and sometimes
perhaps the only suitable remedy for redressal of
the established infringement of the fundamental
right to life of a citizen by the public servants and
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
the State is vicariously liable for their acts. The
claim of the citizen is based on the principle of
strict liability to which the defence of sovereign
immunity is nor available and the citizen must
revive the amount of compensation from the State,
which shall have the right to be indemnified by the
wrong doer. In the assessment of compensation,
the emphasis has to be on the compensatory and
not on punitive element. The objective is to apply
balm to the wounds and not to punish the
transgressor or the offender, as awarding
appropriate punishment for the offence
(irrespective of compensation) must be left to the
criminal courts in which the offender is
prosecuted, which the State, in law, is duty bound
to do. The award of compensation in the public
law jurisdiction is also without prejudice to any
other action like civil suit for damages which is
lawfully available to the victim or the heirs of the
deceased victim with respect to the same matter
for the tortious act committed by the functionaries
of the State. The quantum of compensation will, of
course, depend upon the peculiar facts of each case
and no strait jacket formula can be evolved in that
behalf. The relief to redress the wrong for the
established invasion of the fundamental rights of
the citizen, under the public law jurisdiction is,
thus, in addition to the traditional remedies and not
in derrogation of them. The amount of
compensation as awarded by the Court and paid by
the State to redress the wrong done, may in a given
case, be adjusted against any amount which may
be awarded to the claimant by way of damages in
a civil suit."
In the case of Association for Protection of
Democratic Rights (supra) the Hon'ble Calcutta High Court,
while transferring the investigation of Nandigram police firing
case directed the State government of West Bengal to pay a
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
sum of Rs.5 lakhs a compensation to each of the victims. The
State of West Bengal took a plea that it had paid
compensation to only those who were not involved in
violence against police but ultimately the State government
had to pay compensation to all the injured irrespective of the
claim of the government of their involvement in the violence
against police.
In the present case, there is no allegation that the
petitioner's son was involved in any act of violence. Thus, in
the light of the aforementioned discussions, this Court directs
the State respondents to pay a sum of Rs.10 laks towards
compensation to the petitioner who being the father of the
deceased has remained in mental pains and sufferings and has
to further remain in mental pain as also deprivation in his life
on several counts because of the death of his young son. Let
this amount be deposited in the account of the petitioner
within one month from today. It is, however, left open for the
petitioner to claim further compensation under private law
remedy against the wrongdoer.
Let this matter be listed with the report of the CID after
four weeks.
Patna High Court CR. WJC No.68 of 2021 dt.07-04-2021
The C.I.D. through its Additional Director General be
made party respondent no.4 in the present writ application.
(Rajeev Ranjan Prasad, J)
arvind/-
AFR/NAFR AFR
CAV DATE 06.04.2021
Uploading Date 07.04.2021
Transmission Date
