Abhishek S/O Leelaram vs State Of Rajasthan
2024 Latest Caselaw 5328 Raj/2

Rajasthan High Court

Abhishek S/O Leelaram vs State Of Rajasthan on 14 August, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:34170]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Criminal Appeal (Sb) No. 943/2024

1.       Abhishek S/o Leelaram, Aged About 20 Years, R/o Gursali
         Ki Dhani Thana Panchayat Dariba Thana Patan District
         Sikar (Accused/ Petitioner Are In District Jail Tonk)
2.       Neeraj S/o Naresh, Aged About 23 Years, R/o Kithana,
         Thana, Chidawa District Jhunjhunu (Accused/ Petitioner
         Are In District Jail Tonk)
                                                                   ----Appellants
                                    Versus
1.       State Of Rajasthan, Through P.p
2.       Pintu S/o Pappulal, R/o Arniya Kankad, Peeplu, Tonk
         District Tonk (Raj)
                                                                 ----Respondents

For Appellant(s) : Mr. V. R. Bajwa, Sr. Advocate with Mr. Sandeep Jain Ms. Savita Nathawat For Respondent(s) : Mr. G. S. Rathore, GA cum AAG with Mr. S. S. Mehla, PP Ms. Kirti Vardhan Singh Rathore Mr. Bharat Singh, ASP, CID(CB) Ajmer Dr. Rajesh Kumar Dr. Om Narayan Meena Dr. Yogendra Chopra Mr. Mohit Balwada Mr. Umashanker Pandey

HON'BLE MR. JUSTICE SAMEER JAIN

Order

Reportable Reserved on:- 25/07/2024 Pronounced on:- 14/08/2024

1. The instant criminal appeal has been filed under Section 14

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 on behalf of the accused-appellants. The

accused-appellants were arrested in connection with FIR No.

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168/2023 registered at Police Station Peeplu, District Tonk for the

offense under Sections 147, 148, 149,302 and 201 of IPC and

3(2)(v), 3(2)(va) of the SC/ST Act.

2. Learned Senior Counsel, Mr. V.R. Bajwa, appearing on behalf

of the accused-appellants, has submitted as under:-

2.1 That the FIR was registered with a delay i.e. three days after

the date of the incident. In this regard, it was averred that the FIR

was registered on 29.06.2023 whereas, the alleged incident is

stated to have occurred on 27.06.2023 at 10:00PM.

2.2 That despite due knowledge, the said delay of three days

was not adequately explained by the complainant-Pintu, who

happens to be the brother of the deceased.

2.3 That the accused-appellants are young students aged 20 and

23 years, with no criminal antecedents whatsoever. They are

merely employees of the MRS Group/lease holder, tasked with the

duty to protect and safeguard the river bed from illegal mining of

sand/bajri.

2.4 That the Medical Board has drawn out the postmortem

report, which when coupled with the panchnama, reflects the

existence and/or infliction of simple injuries on the person of the

deceased, as opposed to any fatal//grievous injuries.

Correspondingly, the cause of death is not attributed to any injury

per se. Rather, the death is stated to have occurred on account of

compression of the deceased's neck associated with the

obstruction of the airway due to contents of vomit.

2.5 That a false and fabricated case is drawn against the

accused-appellants by the prosecution. In this regard, learned

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counsel averred that the FSL Report duly reflects that at the time

of death, the deceased had consumed a significant quantity of

alcohol, estimated value of which was 92.00 mg. from 100 ml.

Therefore, the allegations against the accused-appellants are

unsubstantiated and merely an after-thought.

2.6 That material witnesses, including the brother of the

deceased/complainant, have not supported the story of the

prosecution. No case is made out under Section 302 of IPC. In this

regard, learned counsel submitted that even the fact of

registration of FIR was on account of political pressure from the

jurisdictional MLA/MP, which is also reflected as per the record

before this Court. Therefore, the allegations leveled against the

accused-appellants lack substance.

2.7 That the accused-appellants have been in judicial custody for

a considerable period of time i.e. more than one year, which is an

infringement on their liberties enshrined under Article 21 of the

Constitution of India.

3. Per contra, learned counsel for the complainant, Mr. Mohit

Balwada, contended that the present appeal lacks substance and

therefore, no interference is warranted qua the order impugned

dated 16.04.2024, which is squarely well-reasoned and in

conformity with the settled position of law. In order to elaborate

upon the said contention, learned counsel submitted that the

offense as alleged was targeted, as the deceased belonged to the

marginalized SC/ST community. The deceased was merely 22

years of age. During the commission of the said offense, a cruel

and brutal attack was carried out on the person of the deceased,

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which is reflected by the 14 injuries reflected in the postmortem

report, including the cutting of the deceased's genitals and

tongue.

4. In furtherance of the aforesaid, Mr. Balwada placed reliance

upon the postmortem report, more specifically upon Injury A,

which is stated to be grievous in nature, being the primary cause

of death. In this background, learned counsel argued that despite

said postmortem report, which is rather clear in terms of the

infliction of injuries, the medical opinion so furnished by the State

authorities regarding the cause of death to be on account of

vomit, was vague and contradictory, which in essence casts a

shadow of doubt on the integrity of such report, which appears to

have been formulated on account of the medical expert being

hand-in-glove with the lease holder/sand/bajri mafia. Moreover, on

the aspect of delay in registering the FIR, Mr. Balwada submitted

that the FIR was lodged after a lapse of three days, simply on

account of the fact that the police authorities/administration were

under the undue influence of the sand/bajri mafia, thereby giving

shelter to the accused-appellants. Only when voice was raised by

the jurisdictional public representatives such as the MLA and MP,

the FIR came to be registered.

5. Learned counsel for the complainant further argued that

despite the offense as alleged being squarely covered under the

provisions of Section 34 and 201 of IPC, which are cognizable in

nature and in spite of the police authorities having due knowledge

of the incident alleged to have occurred on 27.06.2023, no due

procedure as envisaged under the provisions of Section 154 and

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174 of Cr.P.C. was followed and rather, the same was glaringly

bypassed for a period of three days. Moreover, a contradictory

stand was taken by the State authorities in the FSL, whereby on

one hand the deceased was claimed to be heavily intoxicated

whereas, on the other hand, it was noted that the deceased had

run away from the site of the incident on 27.06.2023.

6. Furthermore, Mr. Balwada submitted that the cross-FIR

numbering 170/2023, which was filed as a counter to the present

FIR i.e. No. 168/2023, was not transferred to the CID (CB), for

reasons best known to the State authorities, as a result of which,

glaring and vital pieces of evidence such as the

tractor/JCB/vehicles at the site, which were used in the

commission of the murder were tampered with, including burning

of the same and thereby blaming the family of the deceased for

the same. Learned counsel further submitted that right from the

date of the incident in question, the family of the deceased, which

belongs to the SC/ST community, is being pressurized to enter

into a coerced compromise by the bajri mafia, either through

threats or offers of monetary gratification. Therefore, as the family

of the deceased is from a humble background, they have been

unable to contest the proceedings actively. In this regard, learned

counsel submitted that even the police authorities as well as the

mining/transport departments, being hand-in-glove with the bajri

mafia, imposed unwarranted hurdles in the swift and efficient

culmination of the investigation.

7. In this background, learned counsel for the complainant

stressed on the claim that the police authorities in addition to the

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medical board and CID (CB) are all influenced by the bajri

mafia/lease holder alleged in the subject FIR, who is a well-

connected political heavy weight, capable of influencing the

outcome of the investigation and/or tampering with the same,

with his influence, money and power. Learned counsel also

submitted that it is an admitted fact in the investigation that the

police authorities were aiding in the parallel system of

management of the bajri mafia, on account of which, all material

evidences were erased and the cognizable evidence of murder was

not booked in time i.e. after a delay of three days, thereby

vitiating the entire investigation.

8. Culminating the aforesaid submissions, learned counsel for

the complainant averred that the present case is reflective not

only of atrocities against the marginalized SC/ST community, but

also abuse of power which seeps through the State machinery and

vitiates fair investigation in matters of great public significance

and societal safety. Therefore, in light of the tainted investigation

and undue influence/power held by the bajri mafia/lease holder, as

mentioned in the FIR, the complainant/family of the deceased

ought to be provided due protection to contest the matter freely,

sans any threats and/or unwarranted coercion. Lastly, learned

counsel apprised the Court of the fact that in identical

circumstances, this Court in S.B. CRLAS No. 292/2023, dismissed

the appeal/bail of the similarly placed co-accused and the said, in

appeal, came to be upheld by the Hon'ble Apex Court vide order

dated 14.12.2023. Therefore, following judicial discipline, the

instant appeals ought to be dismissed as well.

[2024:RJ-JP:34170] (7 of 27) [CRLAS-943/2024]

9. At this juncture, it is pertinent to note that considering the

foregoing series of events and taking note of the public trust

doctrine, this Court vide order dated 31.05.2024, spelled out the

following directions, namely:-

9.1 National Commission for Scheduled Tribes created under

Article 338 of the Constitution of India and the Rajasthan State

Legal Services Authority were directed under the provisions of

Section 15A to provide all assistance including legal aid and other

help to the complainant/family of the deceased to contest the

matter, especially considering their humble background and the

power imbalance between the contesting parties.

9.2 The State Authorities/Police were directed to bring on record

the roznamcha of the date of the incidence as well as the reason

as to why till date, Section 173(8) supplementary charge-sheet

had not been filed. Clarification/explanation was also sought on

why the matter of the connected FIR i.e. No. 170/2023 registered

at Police Station Peeplu, was not transferred to the CID(CB).

9.3 The medical authorities/officers were directed to appear

before the Court in order to explain the visible inconsistencies

between the post-mortem report and the medical opinion so

furnished.

9.4 An explanation was sought from ACS (Home) for furnishing

due explanation/report regarding the present status of the

investigation and also, as to why despite the categoric directions

of the Hon'ble Apex Court as enunciated in Prakash Singh and

Ors. vs. Union of India and Ors. reported in (2006) 8 SCC 1,

no police complaints authority had been formulated till date.

[2024:RJ-JP:34170] (8 of 27) [CRLAS-943/2024]

10. In compliance of the order dated 31.05.2024, the National

Commission for Scheduled Tribes created under Article 338 of the

Constitution of India, has given directions to the Chief Secretary

for the State to provide legal assistance and other help to the

deceased and his family. Moreover, the Rajasthan State Legal

Services Authority has also appointed a lawyer, namely Shri U.S.

Pandey for contesting and/or representing the complainant before

the trial court. Additionally, ACS (Home) has also filed an affidavit

apprising the Court of the present status of the investigation and

the stage of compliance with the directions enunciated in Prakash

Singh (Supra).

11. At this juncture, it is pertinent to note that during the course

of arguments and after having duly perused through the record

before this Court, looking to the case diary, roznamcha, log-book

and the corresponding investigation details, this Court prima facie

observed certain shades of unfairness, incompetency, shoddiness

in the investigation so conducted by the State authorities in the

offense as alleged, which was capable of tainting and/or

interfering in the trial of the offense altogether. Therefore, this

Court had put forth its prima facie view regarding its willingness to

transfer the investigation in the matter to the CBI for complete,

comprehensive and fair investigation into the allegations leveled.

12. However, on request of learned Senior Counsel, Mr. Bajwa,

appearing for the accused-appellants, an opportunity was afforded

to furnish an explanation as to why the matter ought not to be

transferred to an independent agency, such as the CBI. In this

[2024:RJ-JP:34170] (9 of 27) [CRLAS-943/2024]

background, learned counsel whilst praying for the non-transfer of

investigation, submitted as under:-

12.1 That the matter is of an individual, which does not fall

within the exception carved out for transferring investigation to an

independent agency in the rarest of rare cases.

12.2 That previously, investigation into the matter had

already been referred to CID(CB), which is an independent agency

per se.

12.3 That the Code of Criminal Procedure (Cr.P.C) is a self-

contained code and therefore, every apprehension/objections

voiced by the complainant can be duly considered by the learned

trial court.

12.4 That the matter is presently at the stage of trial and

therefore, reference to CBI at this stage, shall yield arbitrary

results, at a belated stage.

12.5 That the story of the prosecution is weak at best, as all

material witnesses have already turned hostile.

12.6 That two parallel investigations i.e. one conducted by

the CID (CB) and the other, possibly by the CBI, can lead to

contrasting/varying findings, which shall inadvertently delay the

speedy trial, infringing on the accused's rights protected under

Article 21 of the Constitution of India.

13. In support of the foregoing averments voicing objections

against the reference of the present matter to the CBI for fresh

investigation, Mr. Bajwa placed reliance upon the dictum

enunciated in the following judgments, namely State of West

Bengal & Ors. Vs. Committee for Protection of Democratic

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Rights, West Bengal & Ors.: (2010) 3 SCC 571, K.V.

Rajendran Vs. Superintendent of Police, CBCID South Zone,

Chennai & Ors.: (2013) 12 SCC 480, Disha Vs. State of

Gujarat & Anr.: (2011) 13 SCC 337, Shree Shree Ram Janki

Ji Asthan Tapovan Mandir & Anr. Vs. The State of

Jharkhand & Ors.: JT 2019 (5) SC 42, Divine Retreat Centre

Vs. State of Kerala & Ors.: (2008) 3 SCC 542, M.C. Abraham

& Anr. Vs. State of Maharashtra & Ors.: (2003) 2 SCC 649,

Vishwanath Biradar Vs. Deepika & Ors.: SLP (Cri.) No.

4123/2021, State Rep. By The Inspector of Police Vs. M.

Murugesan & Anr.: JT 2020 (1) SC 137 and Satyajit

Banerjeet & Ors. Vs. State of West Bengal & Ors.: JT 2004

(10) SC 27.

14. Lastly, learned counsel for the accused-applicants argued

that the extraordinary powers of this Court enshrined under

Section 482 of Cr.P.C. read with Article 226 of the Constitution of

India, for transferring the matter to the CBI for investigation,

must be exercised sparingly and cautiously, only in exceptional

circumstances. It was averred that such directions for referral in

exercise of the power of judicial review to protect fundamental

rights enshrined under Article 21 of the Constitution of India, does

not go with the doctrine of federal structure and the separation of

powers. Learned counsel submitted that in the present facts and

circumstances, no exceptional and/or supervening circumstance

exists, which may warrant the transfer of investigation to the CBI.

It was lastly submitted that reference to CBI cannot be made

mechanically and/or in a routine manner and therefore, before

[2024:RJ-JP:34170] (11 of 27) [CRLAS-943/2024]

doing so, the Court must examine the complexities which may

arise out of such reference, nature of the offense. However, no

such circumstances arise in the present case, as the primary

responsibility of the investigation agency has duly been discharged

by the CID(CB) and State authorities, and as a result of which,

charge-sheet has been filed against the accused-appellants under

Section 302 of IPC.

15. Whereas, on the aspect of referral of investigation to the

CBI, learned AAG cum GA, appearing for the respondent-State

submitted that CID (CB) is an investigation body of the State, duly

equipped to carry out fair investigation. Moreover, as on date, the

filing of the supplementary charge-sheet under Section 173(8) is

pending and disciplinary proceedings have already been initiated

against the concerned/erring police officials for bypassing the

provisions of Cr.P.C./IPC in registering the FIR timely and non-

maintenance of the log-book and roznamcha. Learned AAG cum

GA also submitted that the medical officers, present in Court, have

voiced that the deceased succumbed to death on account of Injury

A as mentioned in the postmortem report and the vomit was only

incidental and ancillary in nature. The said explanation was also

endorsed by the Medical Board. However, learned AAG cum GA

subsequently withdrew the representation qua the deceased, on

account of conflict of interest with the State.

16. ACS (Home), who marked his presence virtually, also filed an

affidavit before the Court but was unable to furnish any concrete

and/or material clarification on the aspect of constitution of the

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police complaints authority, delay in registering the FIR, non-

transfer of investigation of connected FIR to the CID(CB) etc.

17. Whereas, Mr. U.S. Pandey, counsel appointed by the

Rajasthan State Legal Service Authority to assist the complainant

and Mr. Mohit Balwada, counsel for the complainant, collectively

objected to the apprehensions voiced by the counsel for the

accused-appellants in transferring the investigation to the CBI and

submitted that reference of the present case ought to be made to

an independent agency such as the CBI for weeding out the

biased, unfair, shoddy and incomplete investigation conducted by

the police/State authorities, as spelled above.

18. Heard and considered the arguments advanced by the

learned counsel appearing on behalf of both the sides, scanned

through the voluminous record of the appeal and perused through

the judgments cited at Bar.

19. At the outset, prior to penning down observations on the

contentions raised by the learned counsel for both the sides, this

Court believes it to be absolutely necessary to take note of the

germane considerations and/or stipulations, which ought to be

borne in mind whilst disposing of the appeal/bail and ascertaining

whether or not, the investigation ought to be further referred to

an independent agency, such as the Central Bureau of

Investigation (CBI). The overarching stipulations and/or

considerations, germane to the disposal of the present appeal, are

noted herein-under:-

19.1 That the present appeal has been filed under Section

14 of the Scheduled Castes and Scheduled Tribes Act 1989

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(hereinafter, Act of 1989), both on questions of fact as well as

questions of law.

19.2 That the deceased belonged to a rather marginalized

community, whose financial status was weak at best. The

deceased, who was hardly 22 years of age, is alleged to have been

killed at the behest of the bajri/sand mafia, by birthing a criminal

conspiracy to set an example in the society, in order to protect its

own interests.

19.3 That the postmortem report, as on record, aided by the

submissions advanced by the medical experts before the Court,

such as the doctor, reflects that the deceased succumbed to the

injuries on his body, which were 14 in number, but more

specifically Injury-A, which is stated to be grievous in nature,

being the primary cause of death. The record suggests that the

said injuries on the person of the deceased were not only

gruesome, but agonizingly widespread and brutal, including the

cutting/severing of the tongue and genitals.

19.4 That during the investigation, the provisions enshrined

under Section 15A of the Act of 1989, which provide for the rights

of victims and witnesses, read with the corresponding provisions

enshrined under the Cr.P.C., more specifically Sections 154 and

174, were not followed by the State/police authorities, both in

letter and in spirit, insofar as contrary to the aim and objective of

said provisions, which mandate the immediate registration of FIR's

in cases of cognizable offense(s) such as murder, upon the

receiving of knowledge qua the same, no such timely FIR was

registered. Rather, the subject FIR came to be registered only on

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account of pressure exerted by the jurisdictional MP/MLA, that too

after a significant lapse of three days from the date of the incident

i.e. on 29.06.2023, whereas the incident occurred on 27.06.2023.

19.5 That the untimely registration of the FIR and the

consequent lapse in procedure had the effect of the corpse of the

deceased lying unprotected/neglected for a period of three days,

during which, substantial pieces of evidence and witnesses were

tampered with, which is also reflected from the registration of the

connected/cross-FIR numbering 170/2023, registered by the

owner/lease holder which stated that the vehicles which were used

in the commission of the alleged incident, came to be destroyed

and/or burnt.

19.6 That a shadow of doubt, on the integrity of the

investigation, which was shaky to begin with on account of the

delayed registration of FIR, is also cast on account of the fact that

when reference for investigation by the CID (CB) was made, the

investigation in the connected FIR numbering 170/2023 was not

transferred, which had the effect of birthing two parallel sets of

investigation, despite the nucleus being common and/or

overarching and interconnected.

19.7 That in the subject FIR, specific allegations were leveled

by the complainant regarding special protection being granted by

the police officials to the lease/naka holders and/or bajri mafia,

who had the common intention to commit criminal acts in order to

set an example and safeguard their own interests i.e. preventing

clandestine removal of bajri. Yet, despite such allegations and

without due justification, said individuals were protected by the

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State/police authorities, as a result of which, they were not

charge-sheeted. Moreover, a contradictory approach was adopted

by the police personnel, whereby the names of police officers

mentioned in the FIR were exonerated from the charge-sheet, but

parallelly, disciplinary proceedings were initiated against them for

non-maintenance of roznamcha, non-registration of timely FIR and

upkeep of log-book.

19.8 That qua the lease/naka holders, in spite of the

accused-appellants specifically admitting in their statements to be

the former's employees who were working under their specific

directions, the filing of the supplementary charge-sheet under

Section 173(8) of Cr.P.C. has been kept in abeyance for a

significant period of time, whilst ignoring the provisions of Section

34 of the IPC, which fastens liability on all individuals who act in

furtherance of a common intention. The investigation carried out

by the CID (CB) has duly acknowledged the fact that a parallel

mechanism was adopted by lease holders to take action against

the clandestine removal of bajri, by engaging youth to act on the

whims/directions of the lease holders, which often involved

commission of illegal acts. Despite such findings advanced by CID

(CB), the police authorities, for reasons best known to them,

failed to invoke the provisions Section 34 of IPC against such lease

holders.

19.9 That as per the record before the Court, grave

contradictions are noted between the Medical Report and the FSL

Report, as on one side, the investigation authorities submit that

the deceased before succumbing to his injuries, ran away from the

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site of the incident, whereas on the other hand, the investigation

reveals that the deceased was heavily intoxicated, who died

because of congestion on account of his vomit.

20. Therefore, in light of the foregoing considerations and/or

stipulations, this Court deems it fit to note that the arguments

advanced by the counsel for the accused-appellants, insofar as

they pertained to non-transferring/referring of further

investigation to the CBI, cannot be countenanced by this Court.

Moreover, the reliance placed by learned Senior Counsel for the

petitioners upon the dictum of the judgments noted above, itself

dictates that reference for investigation may be made to

independent agencies in the rarest of rare cases. In sensitive

matters, such as the one before this Court concerning offenses

against marginalized communities (SC/ST), heinous offenses are

alleged to be committed and correspondingly, the investigation

authorities have miserably failed in their task to uphold the tenets

of a fair investigation as stipulated by the Cr.P.C. and the Act of

1989, whereby despite due knowledge of a cognizable offense, no

timely FIR was registered, log-book was not maintained and the

roznamcha was not prepared.

21. At this juncture, this Court deems it appropriate to place

reliance upon the dictum enunciated by the Hon'ble Apex Court in

the judgment of Vinay Tyagi vs. Irshad Ali @ Deepak reported

in (2013) 5 SCC 762. In Vinay Tyagi (Supra), the Hon'ble

Apex Court held that while exercising jurisdiction under Section

482 of Cr.P.C. read with Article 226 of the Constitution of India,

Constitutional Courts can direct fresh and further investigation,

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where it appears that the investigation per se was ex facie unfair

and tainted. The relevant extract of the dictum enunciated in

Vinay Tyagi (Supra) is reproduced herein-under:-

"14. The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173 of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156 of the Code.

15. 'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh

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evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation.

16. However, in the case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle

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of rarest of rare cases would squarely apply to such cases...."

22. In furtherance of the aforesaid, reliance can also be placed

upon the dictum enunciated in Pooja Pal vs. Union of India and

Ors. reported in 2016 (3) SCC 135, wherein the Hon'ble Apex

Court whilst pressing on the possibility of referring the

investigation to the CBI, outlined that the same may be done in

exceptional cases, even when no necessary defect is pointed out

in the erstwhile investigation. The Hon'ble Apex Court stressed on

the accused-appellant's right to a speedy and fair trial whilst

making it clear that the former by itself would not be prejudicial to

the accused, when pitted against the imperative of a fair trial. The

relevant extract of the dictum enunciated in Pooja Pal (Supra) is

reproduced herein-under:-

"44. Be that as it may, the issue that demands to be addressed is the necessity or otherwise of further investigation or reinvestigation by the CBI in view of the overall conspectus of facts and the state of law. Admittedly, more than a decade has elapsed in between, and in the interregnum, successive investigations have been conducted by the state police and CBCID, following which four charge-sheets have been submitted arraigning respondent Nos. 4 and 5 and others as accused with the supporting material gathered in course of the probe to prove the charge levelled against them. It is noticeable as well that the appellant as well has not highlighted any defect, omission or deficiency in the investigation conducted by the CBCID, likely to adversely impact upon the outcome of the trial therefor.

[2024:RJ-JP:34170] (20 of 27) [CRLAS-943/2024]

45. These notwithstanding, it would still be, in our opinion, imperative to examine as to whether for doing complete justice and enforcing the fundamental rights guaranteed by the Constitution, the relief of entrustment of the investigation of the case again to the CBI is grantable or not on its own merits. This is chiefly, in view of the intrepid, audacious and fiendish intrusion of human right by the assassins in broad day light at a public place, by defiantly violating all canons of law and making a mockery of the administrative regime entrusted with the responsibility to maintain an orderly society. The terrorising impact of this incident and the barbaric manner of execution of the offence is also a factor which impels this Court to undertake such a scrutiny in the interest of public safety, a paramount duty entrusted to all the institutions of governance of our democratic polity. This is more so, where a grisly and intimidatory crime impacting upon the public confidence in the justice delivery system as a whole is involved, so as to ensure that such outrageous do not go incautiously, unfathomed and unpunished."

23. Therefore, the key takeaway from the foregoing dictum of

the Hon'ble Apex Court's judgments enunciated in Vinay Tyagi

(Supra) and Pooja Pal (Supra) stipulates that investigation into

an offense must be unbiased, honest, just, complete and in

accordance with law. The entire emphasis of such investigation

must be to accentuate the truth of the matter before the

competent court of jurisdiction. The Court whilst referring the

matter for investigation to be conducted by a novel agency such

as the CBI, must be mindful of the fact that discovery, vindication

[2024:RJ-JP:34170] (21 of 27) [CRLAS-943/2024]

and establishment of truth are the avowed purposes underlining

the existence of courts of justice. A judicial balance must be struck

between the competing forces in a criminal trial i.e. the interests

of the accused and the public and to a great extent that too of the

victim, at the same time not loosing sight of public interest

involved in the prosecution of persons who commit offenses.

24. Therefore, in the facts and circumstances of the present case,

and pursuant to having taken note of the foregoing stipulations

and/considerations noted above, this Court cannot help but take

note of the fact that the investigation so conducted in the offense

as alleged has been unfair, tainted and incomplete, which has

pricked the judicial conscience of this Court.

25. Hence, whilst referring the present case to the CBI for

investigation, this Court deems it appropriate to reiterate that the

investigation conducted by the police authorities and CID (CB) up

until now, cannot be acted upon, as the same is opposed to the

tenets of fair play and justice, for the following reasons, in

addition to those noted above:-

25.1 That the offense as alleged invokes the provisions of

the Act of 1989 as the victim/deceased belonged to the SC/ST

community.

25.2 That as per the postmortem report, 14 injuries in-toto

were reflected on the person of the deceased, out of which Injury-

A on the neck, as explained by the medical expert/doctor, who has

marked appearance before the Court, was fatal and life

threatening. Despite such explanation, the erstwhile medical

opinion placed on record, as furnished by the medical expert, was

[2024:RJ-JP:34170] (22 of 27) [CRLAS-943/2024]

wholly contradictory, as the same in its entirety ruled out the

cause of death to be the injuries, but rather, ascertained the same

to be congestion in the wind pipe on account of vomiting. The

contradiction in the medical report and the corresponding medical

opinion also becomes glaring on account of the fact that the latter,

for reasons best known to the expert, classified the injuries to be

simple in nature, which is agonizing, especially when Injury A on

the neck of the deceased is stated to be life threatening in the

statements made before the Court.

25.3 That during the investigation, the provisions enshrined

under Section 15A of the Act of 1989, which provide for the rights

of victims and witnesses, read with the corresponding provisions

enshrined under the Cr.P.C., more specifically Sections 154 and

174, were not followed by the State/police authorities, both in

letter and in spirit, insofar as contrary to the aim and objective of

said provisions, which mandates the immediate registration of

FIR's in cases of cognizable offense(s) such as murder, upon the

receiving of knowledge qua the same, no such timely FIR was

registered. Rather, the subject FIR came to be registered only on

account of pressure exerted by the jurisdictional MP/MLA, that too

after a significant lapse of three days from the date of the incident

i.e. on 29.06.2023 whereas the incident occurred on 27.06.2023.

25.4 That the investigation, as conducted by authorities until

now, itself admits that the police authorities and State

administration had handed over the charge to private players,

such as the lease holders herein, to protect their own interests

such as the clandestine removal of bajri. In order to do so, such

[2024:RJ-JP:34170] (23 of 27) [CRLAS-943/2024]

lease holders prima facie recruited private players to safeguard

their interests, whist taking the law into their own hands, as is

suggested to have been done in the facts and circumstances of

the present case, with the aid of the accused-appellants before

this Court.

25.5 That in the subject FIR, specific allegations were leveled

by the complainant regarding special protection being granted by

the police officials to the lease/naka holders and/or bajri mafia,

who had the common intention to commit criminal acts in order to

set an example and safeguard their own interests. Yet, despite

such allegations and without due justification, said individuals

were protected by the State/police authorities, as a result of

which, they were not charge-sheeted. Moreover, a contradictory

approach was adopted by the police personnel, whereby the

names of police officers mentioned in the FIR were exonerated

from the charge-sheet, but parallelly, disciplinary proceedings

were initiated against them for non-maintenance of roznamcha,

non-registration of timely FIR and upkeep of log-book.

25.6 That qua the lease/naka holders, in spite of the

accused-appellants specifically admitting to be their employees

who were working under their specific directions, the filing of the

supplementary charge-sheet under Section 173(8) of Cr.P.C. has

been kept in abeyance for a significant period of time, whilst

ignoring the provisions of Section 34 of the IPC, which fastens

liability on all individuals who act in furtherance of a common

intention. The investigation carried out by the CID (CB) has duly

acknowledged the fact that a parallel mechanism was adopted by

[2024:RJ-JP:34170] (24 of 27) [CRLAS-943/2024]

lease holders to take action against the clandestine removal of

bajri, by engaging youth to act on the whims/directions of the

lease holders. Despite such findings advanced by CID (CB), the

police authorities, for reasons best known to them, failed to invoke

the provisions Section 34 of IPC against such lease holders.

25.7 That as per the record before the Court, grave

contradictions are noted between the Medical Report and the FSL

Report, as on one side, the investigation authorities submit that

the deceased before succumbing to his injuries, ran away from the

site of the incident, whereas on the other hand, the investigation

reveals that the deceased was heavily intoxicated, who died

because of congestion on account of his vomit.

25.8 That during investigation, the provisions of the Act of

1989 were violated insofar as no due assistance and aid was

accorded to the deceased's family, as is provided by the mandate

of Section 15A.

25.9 That in a similar factual matrix i.e. in S.B. Criminal

Misc. Bail Application No. 2910/2024, which pertained to an

offense registered at Police Station Sadar District Bundi, wherein

the subject matter was of clandestine removal of bajri and

sand/bajri mafia as well, taking note of the public trust doctrine

and also, the dictum enunciated in T.N. Godavaran

Thirumulkpad vs. Union of India reported in AIR 1997 SC

1228 along with the environmental and economical ramifications

of clandestine removal of bajri and the fact that the sand mafia

was parallelly functioning by taking the police/State authorities

under its political influence, this Court had transferred the

[2024:RJ-JP:34170] (25 of 27) [CRLAS-943/2024]

investigation to the CBI, which also came to be accepted by the

State. Further, as this Court has been made aware, the State even

initiated a drive to curb the clandestine removal of sand/bajri

mafia.

26. Furthermore, during the course of arguments, learned

counsel for the complainant apprised the Court of the fact that

there is threat to the life and liberty of the deceased's family, as

they come from a humble background, and have named

individuals in the FIR who yield significant power and influence in

the society. Therefore, in this background, whilst placing reliance

upon the dictum enunciated in National Human Rights

Commission vs. State of Gujarat and Ors. reported in (2009)

6 SCC 767 and Mahendar Chawla and Ors. vs. Union of India

and Ors. reported in (2019) 14 SCC 615 and taking note of the

Witness Protection Scheme 2018 read with Section 15A and 21 of

the Act of 1989, which provides for the rights of the victims and

witnesses, and taking cumulative note of the dictum enunciated in

Vinay Tyagi (Supra), this Court is of the view that the

investigation in the matter should be referred to the CBI, as the

investigation carried out until now, for the reasons mentioned

above, cannot be acted upon, as the same is tainted, shoddy and

incomplete, thereby casting a shadow of doubt on its integrity and

legitimacy. Accordingly, relying upon the aforesaid, it is also

expected that whilst further investigation is carried out, the

CBI/State shall duly safeguard the interests of the

complainant/deceased's family, in order to prevent witness

tampering and undue/illegal practices.

[2024:RJ-JP:34170] (26 of 27) [CRLAS-943/2024]

27. Therefore, placing cumulative reliance upon the foregoing

observations, this Court deems it appropriate to dismiss the

present appeal, at this stage, whilst directing the CBI to conduct

investigation into the offense as alleged, as the investigation

before this Court, up until now, is incomplete and incapable of

being acted upon in seclusion, for the reasons noted above.

Accordingly, the matter is transferred to the CBI, Regional Unit

Jaipur with immediate effect, in exercise of the powers conferred

under Section 482 Cr.P.C. read with Article 226 of the Constitution

of India.

28. However, looking to the fact that the accused-appellants

have been in judicial custody since a considerable period of time

and the trial is presently ongoing, this Court expects the CBI to

culminate its investigation into the matter within an upper period

of 60 days. The report of the said investigation be submitted

before the concerned Special SC/ST Court having exclusive

jurisdiction as envisaged by Section 14 of the Act of 1989, where

the trial is presently on-going. Meanwhile, no final adjudication be

done until such investigation has culminated. It is made clear that

any observations of this Court shall not prejudice the rights and

merits of either of the sides.

29. Case diaries are returned to the officer present in Court on

behalf of the CID (CB). Any clarifications to be sought, on part of

the CBI, may be presented before this Court, by way of an

appropriate application to that effect.

[2024:RJ-JP:34170] (27 of 27) [CRLAS-943/2024]

30. Therefore, in terms of the aforesaid, the instant appeal is

dismissed. Pending applications, if any, stand disposed of.

(SAMEER JAIN),J

Pooja /1

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