WPCRL/1682/2020
2023 Latest Caselaw 1353 UK

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                   HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                          AND
                        HON'BLE SRI JUSTICE RAKESH THAPLIYAL

                 WRIT PETITION (CRL) NO. 1682 OF 2020
                                17TH MAY, 2023
BETWEEN:
Pushplatakhera                                                   .....Petitioner.
And

State of Uttarakhand & others                                    ....Respondents.

Counsel for the Petitioner : Ms. Shoumita Nag, learned counsel.

Counsel for the State : Mr. J.S. Virk, learned Deputy Advocate General with Mr. R.K.

Joshi, learned Brief Holder.

Counsel for the Respondent No.2 : Mr. Lalit Sharma, learned counsel.

Counsel for the Respondent No.3 : Mr. Kuldeep Parihar and Ms. Devika Tiwari, learned counsels holding brief of Ms. Pooja Tiwari, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

We have heard learned counsels and proceed to

dispose of this writ petition.

2. The petitioner has preferred the present writ

petition to seek a direction to the Central Bureau of

Investigation (for short 'CBI') to investigate FIR No. 659/2008

(Case No.138 of 2016), u/s 365/302 IPC and FIR

No.657/2008, u/s 325/302 IPC, both registered at P.S.

Kotwali, Haridwar, Uttarakhand, in view of the directions

issued by this Court, in its judgment dated 01.06.2010, in

Habeas Corpus Petition No.12 of 2008.

3. The petitioner's brother, namely Rakesh Pahuja,

who was the resident of Delhi, went to Mussoorie and,

thereafter, to Haridwar along with his wife Veena Pahuja,

daughter Preeti and son Paras, apart from Ms. Priyanka, who

was the daughter of respondent no.3. Respondent no.3 is the

brother of Veena Pahuja.

4. It appears that Rakesh Pahuja, while staying at a

Dharamshala, at Haridwar, spoke on his mobile phone with

respondent no.3 on the night of 25.06.2008. Thereafter,

there was no contact with Rakesh Pahuja, and others

accompanying him, and no trace of them was found. Even the

vehicle, in which they were travelling, was not located, ever.

Consequently, respondent no.3 lodged the aforesaid two FIRs'

at P.S. Kotwali, Haridwar, Uttarakhand.

5. It appears that they were investigated, and a

closure report in relation to FIR No.659/2008 was filed on

21.07.2012, which was also accepted by the learned

Additional C.J.M. on 09.12.2017 during the National Lok

Adalat. However, there was no settlement recorded in relation

to FIR No.657/2008, u/s 325/302 IPC, registered at P.S.

Kotwali, Haridwar. At this stage, Mr. Virk states that, even in

respect of FIR No.657/2008, a final report was filed, and was

accepted. Mr. Virk has, in this regard, referred to the General

Diary entry.

6. It appears that even before the aforesaid

developments qua the two FIRs' took place, respondent no.3

made a letter petition to this Court with regard to the

aforesaid persons going missing while travelling in a Maruti

Zen car bearing registration No.HR 26-B 9605 from Haridwar,

and the FIRs not being properly investigated. He sought

transfer of investigation of these cases to the CBI. That letter

petition was converted into a Habeas Corpus Petition by this

Court, being Habeas Corpus Petition No.12 of 2008. The said

Habeas Corpus petition was taken up by this Court for

disposal and vide its order dated 01.06.2010, the Division

Bench of this Court, passed the following order:-

"The factual position expressed in the instant Habeas Corpus Petition depicts, that five members of the same family went missing on 25.06.2008. The aforestated five members were traveling in a Maruti Zen car bearing registration No. HR 26-B 9605. The details of the investigation, produced by the learned counsel for the respondent in Court today, also notices telephonic conversation(s) with those, who had gone missing, over mobile phone bearing Nos. 09212168044, 09953031828. These mobile telephones were in possession of the missing persons. Originally, investigation was marked to the CB-CID.

The efforts made by the CB-CID did not prove to be effective. It is, therefore, that this Court, by a motion Bench order dated 24.02.2010, required the Director General of Police, Uttarakhand, to nominate an officer of his choice, to investigate into the matter. Mrs. Vimla Gunjiyal, Sector Officer, CB-CID, holding the rank of Addl. Superintendent of

Police, was nominated by the Director General of Police, Uttarakhand, to investigate into the matter.

2. We have spoken to the officer, nominated by the Director General of Police, Uttarakhand, who is present in Court today. From the investigation made by her, it seems to us that despite her best efforts, no positive clues could emerge, on the basis of which, either the family members, or the car in which they were traveling, or their other goods, can be traced.

3. We are also informed, that a complaint in this behalf was made to the National Human Rights Commission, which has also been pursuing the matter with the Uttarakhand police. In the ultimate analysis, having failed to arrive at any effective result, the CB-CID has recommended, that the investigation in this case be conducted by the Central Bureau of Investigation, through a communication dated 25.02.2010. The State Government, accordingly, has also issued a notification dated 06.05.2010 in this behalf. The matter seems to have passed into the hands of the Central Bureau of Investigation.

4. Since now, we hope, the matter will be examined by the Central Bureau of Investigation, there is nothing further left for us to do, whereby we can pursue investigation in respect of loss of humans as well as property, depicted in the opening part of this order.

5. In the aforesaid circumstances, we consider it just and appropriate to dispose of the instant petition. While doing so, however, as a safeguard, we consider it just and appropriate to grant liberty to the petitioner to move a miscellaneous application, in case, the Central Bureau of Investigation declines to conduct further investigation into the matter. 6. The instant petition stands disposed of accordingly. File pertaining to investigation, received in sealed cover, was opened and examined and has been returned back to the learned counsel for the respondent for onward transmission to the concerned authority."

7. It appears that the order passed by this Court, on

01.06.2010, was not communicated to respondent no.3, and

he was not aware of the fact that the State Government had

issued a notification on 06.05.2010, transferring the

investigation to the CBI.

8. The petitioner has preferred the present writ

petition in the year 2020 alleging that, despite the directions

issued by this Court, as aforesaid, the investigation had not

been conducted by the CBI, and Case FIR No.589/2008 had

been closed in a Lok Adalat with the consent of respondent

no.3. She has also sought to make allegations against

respondent no.3. These allegations have been denied by

respondent no.3, and learned counsel for respondent no.3

submits that the reason for making of the said allegations is

the property dispute in relation to the estate left by Rakesh

Pahuja and others.

9. A counter-affidavit has been filed on behalf of the

CBI, wherein the CBI has disclosed that the Ministry of

Personnel, PG and Pension (Department of Personnel and

Training) vide its letter dated 08.09.2011 denied to transfer

the case to CBI with the remarks that 'the matter is already

three years old and probability of findings any clues is very

remote and there seems to be no ground for CBI to take up

the investigation'. The said respondent has placed on record

the communication dated 08.09.2011, issued by Government

of India, Ministry of Personnel, PG and Pensions (Department

of Personnel and Training), which reads as follows:-

"I am directed to refer to your letter No.123/XX(1)166/CBI/ Investigation/ 2010 dated 6.5.2010 on the above mentioned subject.

2. The matter was considered in this Department in consultation with the CBI who has informed that the matter is already three years old and probability of finding any clues is very remote. There seems to be no ground for CBI to take up the investigation. Moreover, the agencies of the State Government are competent to investigate the case and they have adequate resources to do so.

3. In view of the above, it is not considered feasible for CBI to take over the investigation of this case. Therefore, the request of the State Government is regretted."

10. It would have been in the fitness of things for the

CBI to place the said communication dated 08.09.2011 before

this Court by moving an application in the disposed of Habeas

Corpus Petition. However, that was not done. Resultantly,

neither the petitioner in the Habeas Corpus Petition No.12 of

2008, i.e. respondent no.3 herein, nor the present writ

petition ever became aware of the fact that despite the

investigation notification issued by the State for transfer of

investigation in the FIRs', the case had not been taken up for

investigation by the CBI.

11. The submission of learned counsel for the

petitioner, as well as learned counsel for respondent no.3, is

that the matter has been trivialized by the State Government

and by the CBI. It is a very serious matter since five

members of a family suddenly went missing, and there is no

trace of them, as well as the vehicle in which they were

travelling, i.e. Maruti Zen bearing registration No.HR 26-B

9605. They were also using mobile phones, and it is not clear

whether the call records and location of the said mobile

phones was ever investigated into.

12. From the reading of the judgment dated

01.06.2010, passed in Habeas Corpus Petition No.12 of 2008,

it is clear to us that the Court was also inclined to transfer the

investigation to the CBI, looking to the gravity of the

situation. The State Government had itself issued a

notification dated 06.05.2010, and therefore, it is abundantly

clear that the State Government was also willing that the

investigation should be handed over to the CBI. In this

background, the action of the CBI to decline to take up the

case for investigation, despite the order of the Court, was

unfortunate. As aforesaid, the least they could have done was

to approach this Court for recall of the judgment dated

01.06.2010. Merely because the case was old, was no reason

for the CBI not to take up the case for investigation, once a

notification was issued by the State, and the order has been

passed by the Court. It is not for the CBI to investigate only

easy cases, and pick low hanging fruits.

13. Learned counsel for the petitioner has also

submitted that there are some serious infirmities in the FIRs

as well as in the investigation conducted by the CB-CID of the

State. She states that even the correct mobile numbers of the

missing persons were not disclosed in the FIR. This, and all

other aspects of the matter, need to be thoroughly

investigated.

14. We, therefore, dispose of this writ petition with a

direction to the CBI to forthwith take up the investigation of

the aforesaid two FIRs' in right earnest.

15. However, we shall continue to monitor the

investigation conducted by the CBI, at last till we are satisfied

that the CBI had started investigation in right earnest.

16. Let a status report be filed by the CBI in relation to

the investigation conducted by it henceforth before the next

date.

17. For that purpose, list on 11.10.2023.

18. We, however, make it clear that filing and

acceptance of the closure reports during the National Lok

Adalat, or otherwise, shall not come in the way of the CBI in

investigating both the aforesaid Case FIRs'.

19. The CB-CID shall handover the complete records of

the two cases, as aforesaid, to the CBI, as and when

requisitioned.

20. We direct the State Government to render all

assistance to the CBI in the matter of conduct of

investigation.

21. Pending application, if any, also stands disposed of.

22. Let certified copy of this order be issued to learned

counsels for the parties within 24 hours, as per Rules.

(VIPIN SANGHI, C.J.)

(RAKESH THAPLIYAL, J.) Dated: 17th May, 2023 NISHANT