Allowed

Anita Ahluwailia v. State

Himachal Pradesh HC7 Oct 2010CWP/4123/2010

Case brief

AI extract

What is this about?

High Court reviewed investigation into dowry death where deceased died within seven years of marriage. Court found serious procedural violations under CrPC 174, medical inquest lacunae, and incomplete police inquiry. Held investigation lackadaisical with prima facie case for CBI takeover.

What did the court decide?

FIR challan quashed; investigation handed over to CBI; jurisdiction extended to Shimla Circle; time limits imposed for deputation and completion of investigation.

Anita Ahluwailia Vs State — Cheque Dishonour | Himachal Pradesh HC (2010)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP No. 4123/2010

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Reserved on: 9.9.2010

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Decided on:7.10.2010.

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Anita Ahluwalia ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents.

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Coram

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The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge.

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Whether approved for reporting?¹ Yes.

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For the Petitioner : Mr. G.K. Kaushik, Advocate with Mr. S.L. Kumar and Mr. Navlesh Verma, Advocates.

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For the Respondents: Mr. Ankush Dass Sood, Addl. A.G with Mr. J.K. Verma, Dy. A.G. for respondents No. 1 to 3.

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Mr. Ashok Kumar Thakur vice Mr. Sandeep Sharma, Asstt. Solicitor General of India for respondent

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Mr. Naresh Kumar Gupta, Advocate for respondent No.5.

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Per Justice Rajiv Sharma

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Petitioner’s daughter was married to respondent No.5 on 5.9.2007 at Delhi. She died on 20.6.2009. Police Station, Baddi

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Whether the reporters of the local papers may be allowed to see the Judgment?

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was informed by some unknown person on 20.6.2009 at about 4.30 P.M. about the death. Report was entered at Sr. No. 34 in daily diary. The body of the deceased was taken to E.S.I. Hospital, Nalagarh for post-mortem. The post-mortem was conducted on 21.6.2009. It was opined that the deceased died due to asphyxia due to ante-mortem hanging. The viscera was preserved by the Medical Officer for expert opinion of the Chemical Examiner. Petitioner filed a complaint to the Local Police, on the basis of which FIR No. 104/2009 under section 306 of the Indian Penal Code was registered at Police Station, Baddi. Petitioner approached this Court by way of CWP No. 2408/2009 seeking investigation from independent agency like Central Bureau of Investigation or State C.I.A. and constitution of fresh Medical Board. The investigation was transferred to C.I.A. on 30.7.2009. Respondents were also directed to constitute a Medical Board to examine the post-mortem report in order to ascertain exact cause of death. The Medical Board was directed to supply the report to the newly appointed Investigating Officer. Report dated 7.9.2009 was furnished by the Medical Board to this Court. Petitioner also moved CMP No. 7272 of 2009 seeking transfer of investigation to the Central Bureau of Investigation. The Court after going through the contents of the report filed by the Medical Board of the Indira Gandhi Medical College, Shimla, rejected the same on

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5.11.2009. The doctors could not explain the multiple injuries

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on the face of the girl as per the photographs placed on record. The report was also contrary to Modi’s Medical Jurisprudence and Toxicology (Twenty-second edition]. Thereafter the Court Directed All India Institute of Medical Sciences, Delhi to constitute a Medical Board of doctors not below the rank of Professor to re-examine the history of case and give opinion in a sealed cover vide order dated 5.11.2009. Order dated

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5.11.2009 reads thus:

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“In sequel to previous order, the Doctors are present in Court. We have gone through the contents of the report minutely alongwith other material brought on record by the parties.

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We have interactive sessions with the Doctors. The Doctors could not explain multiple injuries on the face of the girl as per the photographs placed on the record. There are predominately visible signs of injuries on the face of the girl in the photographs.

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The main sign if the cause of death is due to hanging is that neck is found stretched and elongated. The eyes are closed or partly open, and the pupils are usually dilated. In the present case, neither the neck is found stretched nor elongated. It is clear from the photographs placed on the record that the eyes are wide open. This vital aspect is overlooked by the Doctors in the present case. The other sign is that salvia is found dribbling out of an angle of the mouth down on the chin and chest. The saliva in the present case is not coming out of the mouth. It is a sure sign of hanging having taken place after death, as the secretion of saliva being a vital function cannot occur after death. [Modi’s Medical Jurisprudence and Toxicology (Twenty-second edition]. This sign has also been overlooked by the Doctors.

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The Doctors have mentioned in their report that the photographs do not show close up of the face. This finding is perverse. The photographs placed on the record which were also made available by the prosecution to the team of Doctors are clear. The Doctors could not explain presence of clear marks of injuries on the face of the victim. We will restrain ourselves from discussing this aspect further at this stage since it may prejudice the case of the parties either way.

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In view of the observations made hereinabove, we are not satisfied with the report submitted by the team of Doctors. The same is rejected.

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The learned Advocate General has also submitted that the State Government has no objection if the matter is referred to All India Institute of Medical Sciences, Delhi to have second opinion.

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Consequently, the Director, All India Institute of Medical Sciences, Delhi through Shri Sandeep Sharma, learned Assistant Solicitor General of India is directed to constitute the Medical Board of Doctors not below the rank of Professor(s) to re-examine the medical history of this case and to give opinion in a sealed cover. The Medical Board shall be constituted by the Director, All India Institute of Medical Sciences, Delhi within three days from the receipt of copy of order through the office of learned Assistant Solicitor General of India. The report of the Medical Board must be self speaking based on the evidence brought on record till date, including post-mortem report, State Forensic Science Laboratory report, pictures and other connecting evidence/material. It shall be open for the Doctors of Medical Board to visit the spot, if necessary. The State is directed to make available the entire medical record to the Director, All India Institute of Medical Sciences, Delhi in a sealed cover through an Officer not below the rank of Additional Superintendent of Police alongwith certified copy of this order. The report of the Medical Board shall be placed on record in a sealed cover within three weeks from today. Dasti copy.”

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All India Institute of Medical Sciences, Delhi furnished report on 2.1.2010. The Medical Board has taken into consideration the opinion given by the Medical Board constituted by the Indira Gandhi Medical College, Shimla. The Medical Board of All Indian Instituted of Medical Sciences, Delhi was required to give independent opinion wholly uninfluenced by the report of the Medical Board constituted by the Indira Gandhi Medical College, Shimla. This report was also rejected by this Court on 6.1.2010. The Court was constrained to direct the Senior Medical Superintendent of Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi to constitute a fresh Medical Board comprising of senior most members of the faculty of Forensic Medicine and Toxicology. Order dated 6.1.2010 reads thus:

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“In sequel to orders dated 5.12.2009, 8.12.2009 and 24.12.2009, the Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences has submitted report to the Court in a sealed cover. The same was opened in the presence of parties. It is dated 2.1.2010.

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The Medical Board while giving the opinion has also taken into consideration the opinion given by the Medical Board constituted by Indira Gandhi Medical College (IGMC). The purpose of constituting the new Medical Board of the All India Institute of Medical Sciences was to have independent opinion wholly uninfluenced by the earlier report of the Medical Board constituted by Indira Gandhi Medical College (IGMC). The purpose of constituting of Medical Board was also to get independent opinion. Since

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the opinion given by the All India Institute of Medical Science is influenced by the earlier report furnished by the Medical Board constituted by Indira Gandhi Medical College (IGMC), the same is liable to be rejected.

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Accordingly, we reject the report dated 2.1.2010. However, to do complete justice and to know the exact cause of death, we direct the Senior Medical Superintendent of Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi to constitute a fresh Medical Board comprising of Senior most members of the faculty in the Forensic Medicine and Toxicology. The Medical Board to be constituted by the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi shall give its independent opinion. The Superintendent of Police, Baddi is directed to supply the entire record to the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kripalani Hospital) within a period of seven days except two reports, indicated hereinabove. The report shall be submitted by the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kriplani Hospital) within a period of four weeks from today in a sealed cover.”

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In sequel to the order passed by this Court on 6.1.2010, the Department of Forensic Medicine and Toxicology furnished report to this Court on 5.2.2001 (Annexure P-10).

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Mr. G.K. Kaushik and Mr. Navlesh Verma have strenuously argued that no effective investigation has been carried out by the police. It was contended that the police has not complied with section 174 of the Code of Criminal Procedure, 1973. They have also contended that no satisfactory reply has been filed by the respondents on the manner in which the viscera was destroyed. It was further

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contended that the phone call details of respondent No.5 and his family members have not been obtained. According to them, the Police has tried to shield respondent No.5 and in these circumstances they have prayed for handing over the case for investigation to the Central Bureau of Investigation.

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Mr. Ankush Dass Sood, learned Additional Advocate General appearing for respondents No.1 to 3 and Mr. Naresh Kumar Gupta appearing on behalf of respondent No.5 have strenuously argued that the investigation has been carried out in accordance with law and the challan has already been put up. They have also contended that it is only in the rarest of the rare cases that the matter is required to be handed over to the Central Bureau of Investigation.

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We have heard the learned counsel for the parties and have perused the pleadings carefully.

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Age of the daughter of the petitioner at the time of her death was 21 years. It has come in the inquest report that there were injuries on left cheek of the deceased. She has died during the period of seven years of her marriage. In these circumstances, the Police was required to comply with section 174 of the Code of Criminal Procedure, 1973. It is a serious omission on the part of the investigating agency.

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A Division Bench of Bombay High Court in

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Dayaram Chandramohan Kanswal versus Inspector of

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Police Kapurbawdi Police Station, Thane and another , 1997 Crl.L.J. 2713 has held that when a woman dies within seven years, information about suspicious death ought to have been passed over to the nearest Executive Magistrate by police. The Divisional Bench has held as under:

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“4. What was worse and shocking is that the inquest panchanama of the body of the deceased Mangaleshwari was conducted in grave violation of the mandatory provisions of Section 174 of the Code of Criminal Procedure, 1973. Section 174 of the Code of Criminal Procedure dealing with the duties of the police to enquire and report on suicide and other suspicious deaths casts some obligations upon the police officer to immediately give information to the nearest Executive Magistrate empowered to hold inquest. Sub-section (3) of Section 174 of the Code of Criminal Procedure specifically deals with a death of a woman within 7 years of her marriage, which may be either suicidal or homicidal. Section 176 of the Code makes it obligatory on the nearest Executive Magistrate empowered to hold inquests to hold enquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer. This is mandatory where the case is of the nature referred to in clause (I) or clause (ii) of sub0section (3) of Section 174. In so far as they are relevant for our purpose the said provisions reads as under:

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174. Police to enquire and report on suicide etc. (1) and (2).......

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(3) When--

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(I) the case involves suicide by a woman within seven years of her marriage; or

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(II) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that

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some other person committed an offence in

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relation to such woman; or

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(III) to (v)...........

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(4)..........................”

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Section 176 of the Code of Criminal Procedure reads as under:

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176. Inquiry by Magistrate into cause of death:-

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(1) When any person dies while in the custody of the police or when the case is of the nature referred to in clause (I) or clause (ii) of sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquests shall and in any other case mentioned in sub-section (1) of Section 174 any Magistrate so empowered, may hold an inquiry into the cause of death of either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in concluding it which he would have in holding an inquiry into an offence.

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(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case;

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(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.

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(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.

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Explanation : In this section, the expression “relative” means parents, children, brothers, sisters and spouse.” “ 13. In our view, the petitioner has every justification to feel aggrieved about the manner in which the police have carried out the investigation. It is discrepant in

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more than one ways and we may only illustrate a few aspects.

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I) Despite the mandatory provisions of sections 174 and 176 of the Code of Criminal Procedure, no information was given to the nearest Executive Magistrate, though admittedly it was a case of a death of a woman within seven years of marriage and no less than the petitioner, father of the deceased, had alleged harassment and case of dowry death.

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ii) The P.S.I. and even the concerned Secretary Home Department have categorically admitted that there is no practice in Bombay or Thane to comply with the mandatory provisions of sections 174 and 176 of the Code of Criminal Procedure and the Secretary to Government, Home Department has only stated that the matter “needs to be investigated and the reasons for not following the provisions have to be ascertained.” iii) The repeated statements of the petitioner recorded on 6^th and 11^th July, 1996 clearly pointed out an accusing finger towards Bhagwati Prasad the son-on-law and his sister Sulochanadevi and made out a case of dowry death. However, the police were content with initially registering a case of accidental death vide ADR No. 58 of 1996 on 6^th July 1996 and it was as late as on 23^rd July 1996 after the Asstt. Commissioner of Police passed an order on 22^nd July 1996 that the offence under sections 302, 201 read with Section 34 of IPC were registered. iv) Despite the categoric averment made by the petitioner repeatedly and elaborately in the statement of 11^th July, 1996 and 23^rd July 1996 (Ex.A page 13), no offences under section 498A read with Section 306 of IPC have been registered for reasons best know to the Asstt. Commissioner of Police. Though we do not want to make any observations on merits of either the investigation or a possible trial, it is not unusual in such a case that the person who is acquitted of the offence punishable under section 302 may be found guilty of offences punishable under section 498A read with

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section 306 of IPC. These are matters which have to be left to be decided at the trial provided there is a proper investigation into the offences which have been repeatedly alleged. v) The affidavits filed before us leave no doubt in our mind that the investigation is not only not satisfactory but is clearly faulty. The petitioner is justified in making the allegation that the police officers wanted to oblige the accused whosoever the accused may be. We are not indicating anything on the merits of the investigation which we are inclined to order to be held by an independent agency namely by D.C.P. Crime Branch, Thane.”

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When the information was sought by the husband of the petitioner the manner in which the viscera has been destroyed, it has come that it was thrown out since it was smelling. In the reply, it is averred that the viscera was buried. Preservation of viscera was utmost necessary in view of the peculiar facts and circumstances of the case, particularly when, the D.N.A. test was also required to be conducted. The Investigating Officer has filed alongwith the challan, the details of the telephone calls of the period with effect from 1.7.2008 to 30.5.2009. However, there is omission as far as calls made by respondent No.5 or his family members is concerned with effect from 1.6.2009 to 20.6.2009. The police had prepared the inventory of the articles lying in the room. However, supurdari was handed over to the father of respondent No.5. Father of respondent No.5 has been permitted to remove the

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ceiling fan. The police was required to seal the compartment and no access could have been given by the police to the persons, who were not involved in the investigation. The report furnished by the Department of Forensic Medicine and Toxicology (Annexure P-10) is exhaustive and has dealt with almost every important aspect of investigation. The Medical Board has observed the following lacunae in the inquest

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papers:

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a) Scene of death was not properly described, like presence or absence of any platform to tie the ligature around the ceiling fan, presence or absence of disturbance of surrounding furniture in the house.

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b) The inquest papers are silent about who brought down the body of the deceased from hanging position, what was the method used to remove the ligature from the neck of the deceased etc. The investigating police officer has not submitted the ligature material for necessary examination by the medical officer who conducted the postmortem examination.

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c) The investigating police officer has not identified the person who had given information about such death.

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d) The investigating police officer has not investigated the motive or reason before reaching conclusion about suicidal death.

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e) As the age of the victim was only 21 years, then the marriage could have been occurred within 7 years. Under that circumstance, why the investigation was not carried out by a magistrate? Why the postmortem examination was not conducted by a team of doctors by placing such request in the requisition?

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f) The investigating police officer has not requested for preserving nail clippings of the deceased to rule out presence of any foreign tissue/fibres.

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g) The investigating police officer has not requested for preserving scalp hair sample of the deceased to match with any scalp hairs entangled to the alleged ligature material.

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h) If the supplied photographs were taken by the investigating police officer, then why the photographs of ligature mark from other angles were not taken or submitted?”

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The Medical Board observed the following lacunae

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in the post-mortem report and in the supplied photographs:

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a) Ligature mark is not properly described. It is lacking in the exact course of ligature mark, base of the ligature mark, margins of the ligature mark etc.

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b) Post-mortem Report was silent about the injuries on the left cheek and left mandible initially.

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c) In the opinion, initially, there was no answer to the queries asked by the investigating police officer in requisition and inquest papers.

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d) The Medical Officer had not described any signs and symptoms of asphyxia to link it with cause of death.

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e) The Medical Officer had not mentioned that the deceased was wearing underwear also.

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f) The Medical Officer had not mentioned the time of receipt of inquest papers and the dead body and the time of conduction of post-mortem examination.

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Lacunae observed in the supplied photographs:

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a) Photographs are not showing the complete picture of scene of death.

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b) Photographs are not showing the entire course of ligature mark.

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c) Photograph of the front view of the alleged deceased is too hazy and indistinct, hence the ligature mark on the front of neck could not be made out.

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d) No scale had been placed near by the injuries to estimate approximate dimension of the injuries .

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The Medical Board has given the following opinion: “Considering the above mentioned lacunae observed in the inquest papers, post-mortem report and supplied photographs, it is not possible for us to give the exact opinion regarding the cause of death from the supplied materials. However, death having occurred as a result of asphyxia due to hanging could not be ruled out, considering the following findings:

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1) Ligature mark appears to be situated high on the neck of the deceased.

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1. Ligature mark appears to be discontinuous on the left lateral aspect of the neck of the deceased .

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1. The victim was a health adult of average body built. The available records show no head injury, disease or deformity, or intoxication.

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1. As per the postmortem examination report the internal structures of the neck were normal.

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1. Face of the deceased was congested.

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1. No other cause of death has been mentioned in the records.

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We disagree with the opinion given by the medical officer regarding the injuries found on the left cheek and mid-part of left mandible. The injury on the left mandible could have been caused by knot impression of the noose of the ligature. The injury on the left cheek could have been caused by a blunt object having some pattern.

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Board and faintly visible ligature mark on the neck of the deceased is suggestive of use of a soft and broad ligature material, like the alleged ligature material made of bed sheet and dupatta.

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The ligature mark seen on the left side neck of the deceased is not possible by the supplied cable wire.

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The Board has made the following

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recommendations:

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1) “All the photographs showing complete course of ligature mark may be provided to draw a definite conclusion.

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2) Blood stain on the ligature material to be subjected for DNA profiling to link the blood stain to the victim or any other person.

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3) Forensic Science Laboratory may be asked to examine for salivary stain of the victim on the clothes of upper part of the body (T-shirt/Top) as well as on the dupatta part of the supplied ligature material.

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All the members of the medical board are in agreement with the above mentioned opinion and recommendations.”

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It is evident from the report Ex.P-10 that the scene of death was not properly described by the Investigating Officer. The inquest papers were silent about who brought down the body of the deceased from hanging position and what was the method used to remove the ligature from the neck of the deceased. The Investigating Officer has not submitted the ligature material for necessary examination by the Medical Officer, who conducted the post-mortem examination. The Investigating Officer till date has not identified the person who had given information about the death. He has not investigated the motive or reason before

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reaching conclusion about suicidal death and he has also not complied with the mandatory provisions of section 174 of the Code of Criminal Procedure. He has also not requested for preserving nail clippings of the deceased to rule out presence of any foreign tissue/fibres. According to the report, ligature mark was not properly described in the post-mortem report and it was lacking in the exact course of ligature mark, base of the ligature mark, margins of the ligature marks. The post-mortem report is silent about the injuries on the left cheek and left mandible initially. The Medical Officer has not described any signs and symptoms of asphyxia to link it with cause of death. He has not mentioned the time of receipt of inquest papers and the dead body and the time of conducting the post-mortem. According to the report, the photographs were not showing the complete picture of scene of death and also not showing the entire course of ligature mark. According to the opinion, as reproduced hereinabove, ligature mark appeared to be situated high on the neck of the deceased and discontinuous on the left lateral aspect of the neck of the deceased. The Medical Board had asked for the photographs showing complete course of ligature mark and the blood stain on the ligature material to be subjected for DNA profiling to link the blood stain to the victim or any other person. Forensic Science Laboratory was also asked to examine for salivary stain of the victim on the clothes

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of upper part of the body as well as on the dupatta part of the supplied ligature material. The police, till date, has not filed any supplementary affidavit that the recommendations made by the Medical Board vide Annexure P-10 have been complied with

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Their Lordships of the Hon’ble Supreme Court in Central Bureau of Investigation though S.P. Jaipur versus State of Rajasthan and another , (2001) 3 SCC 333 have held that the powers of the High Court under Article 226 of the Constitution of India or the Supreme Court under Article 32 or Article 142 (1) of the Constitution can be invoked, though sparingly, for giving such direction to Central Bureau of Investigation in certain cases. Their Lordships have held as under:

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“14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to the CBI to investigate in certain cases, [vide Kashmeri Devi vs. Delhi Administration and anr. {1988 (Supple.) SCC 482} and Maniyeri Madhavan vs. Sub-Inspector of Police and ors. {1994 (1) SCC 536}]. A two Judge Bench of this Court has by an order dated 10.3.1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

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15. In Mohammed Anis vs. Union of India and ors. {1994 Supple (1) SCC 145} Ahmadi, J. (as his Lordship then was) has observed thus (SCC pp. 148-49, para 6):

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“6. True it is, that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a larger Bench everything does not grind to a halt. The reference to the expression court in that order cannot in the context mean the Apex Court for the reason that the Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or matter pending before it.

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16. As the present discussion is restricted to the question whether a magistrate can direct the CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.”

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Their Lordships of the Hon’ble Supreme Court in Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others versus Sahngoo Ram Arya and another , (2002) 5 SCC 521 have held that the High Court under Article 226 of the Constitution of India can direct an inquiry by the Central Bureau of Investigation against a person only if the High Court after considering the material on record comes to a conclusion that such material does discloses a

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prima facie calling for an investigation by Central Bureau of Investigation or any other similar agency. Their Lordships have held as under:

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“5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by the CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause (supra). This Court in the said judgment at paragraph 174 of the report has held thus : (SCC p.750, para 174)

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"The other direction, namely, the direction to CBI to investigate "any other offence" is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of "LIFE" and "LIBERTY" guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of Article 21."

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6.It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law- abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person

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can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause.”

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The same principles have been reiterated by their Lordships of the Hon’ble Supreme Court in Sakiri Vasu versus State of Uttar Pradesh and others , (2008) 2 SCC 409. Their Lordships have held as under:

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“33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.”

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Their Lordships of the Hon’ble Supreme Court in

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Bhavesh Jayanti Lakhani versus State of Maharashtra

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and others (2009) 9 SCC 551 have reiterated that superior courts have power to issue direction to Central Bureau of

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Investigation to investigate a matter. Their Lordships have held as under:

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“99. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by CBI by the superior courts of the country is permissible. As the law stands, we place on record such directions by the superior courts are permissible.”

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Their Lordships of the Hon’ble Supreme Court in Central Bureau of Investigation and another versus Rajesh Gandhi and another , AIR 1997 SC 93 have held that if the investigation of the local police is not satisfactory, further investigation is not precluded. Their Lordships have held as under:

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“8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2.6.1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the powers and Jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station, on case No.159 of 9.3.1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the

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Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (l) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/1208 and 201 I.P.C. and Section 4 of the Prevention Of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No.159 dated 9.3.1933 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police had not been satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate.”

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The investigation should be fair, cautious and effective. The learned Single Judge of Madras High Court in

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Seethalakshmi versus State of Tamil Nadu and others ,

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1991 Cri. L.J. 1037 has succinctly explained the manner in which the investigation is required to be carried out as under:

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“(i) proceedings to the spot; (ii) ascertainment of facts and the circumstances of the case, (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) examination of various persons including the accused and the reduction of their statements in writing, if the officer thinks fit, (b) search of places and seizure of things considered necessary for investigation and to be produced at the trial, and (v) formation of opinion as to whether on the material collected there is a case to place the accused before a Magistrate for a trial and if so taking the necessary steps for the same by filing charge sheet under S. 173(1) of the Code. The object of the investigation being to collect evidence, the investigating officer has to do all things necessary which he considers relevant and material without committing breach of the mandatory provisions of the Code of Civil Procedure. The investigating police are primarily the guardians of the liberty of innocent persons and a heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. It is of the utmost importance that people entrusted with the investigation must be scrupulously honest and efficient, otherwise cases both of innocent persons being wrongly convicted and of really guilty persons being wrongly let off are likely to occur. It is the duty of the investigation officer to discover the truth and make a relentless pursuit for the truth. Investigation cannot be merely mechanical, and it must be an intelligent

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one. The police in conducting the investigation must act in such a way as to inspire fully confidence in everybody concerned. If upon the completion of the investigation it appears to the police officer that there is no sufficient evidence or reasonable ground , if he may decide to release the suspected accused, if in custody. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he shall take necessary steps therefore u/S. 170 of the Code. In either case, on the completion of the investigation, he has to submit a report to the Magistrate u/S. 173 of the Code in the prescribed form furnishing such details. Thus, the procedure prescribed by the Code enjoins the Police Officer to file a report before the concerned Magistrate and also inform the complainant even if the police officer comes to the conclusion that no case has been made out on the materials collected by him.”

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Their Lordships of the Hon’ble Supreme Court in Nirmal Singh Kahlon versus State of Punjab and others , (2009) 1 SCC 441 have held that fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India, but the State has a larger obligation, i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation. Their Lordships have held as under:

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“28. An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim

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of a crime, thus, is equally entitled to a fair investigation. When serious allegations were made against a former Minister of the State, save and except the cases of political revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose of investigating into the matter. The State for achieving the said object at any point of time may consider handing over of investigation to any other agency including a central agency which has acquired specialization in such cases.”

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Their Lordships of the Hon’ble Supreme Court in Rubabbuddin Sheikh versus State of Gujarat and

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others , (2010) 2 SCC 200 have held that the case can be transferred to C.B.I. for investigation even if the State Police had completed the investigation and charge-sheet had been submitted. Their Lordships have further held that in an appropriate case, the court is empowered to hand over investigation to an independent agency like CBI. Their Lordships have held as under:

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“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

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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 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.

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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.

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56. In Kashmeri Devi vs. Delhi Administration, (supra), this court held that in a case where the police had not acted fairly and in fact acted in partisan manner to shield real culprits, it would be proper and interest of justice will be served if such investigation is handed over to the CBI authorities or an independent agency for proper investigation of the case. In this case, taking into consideration the grave allegations made against the high police officials of the State in respect of which some of them have already been in custody, we feel it proper and appropriate and in the interest of justice even at this stage, that is, when the charge sheet has already been submitted, the investigation shall be transferred to the CBI Authorities for proper and thorough investigation of the case.

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57. In Kashmeri Devi (supra), this Court also observed as follows: -

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"Since according to the respondent charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will

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investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law."

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60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi learned senior counsel appearing for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.”

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Their Lordships of the Hon’ble Supreme Court in State of West Bengal and others versus Committee for

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Protection of Democratic Rights, West Bengal and

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others , (2010) 3 SCC 571 have held that in so far 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. Their Lordships have further held that this

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extraordinary power must be exercised sparingly, cautiously and in exception 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. Their Lordships have held as under:

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“70. Before parting with the case, we deem it 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. In so far as the question of issuing a direction to the 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 the 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.

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71 .In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya &

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Anr.31, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations.

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On perusing the records and after having watched the progress of investigation and after having heard the counsel on both sides, we find that the investigation is conducted in an absolutely lackadaisical manner. The copy of challan was also produced by the learned counsel appearing on behalf of the petitioner. The same prima facie is not in conformity with the provisions of section 173 of the Code of Criminal Procedure. It is an exceptional case necessitating handing over the investigation to Central Bureau of Investigation. The investigation is required to proceed expeditiously. It is required to be done in most independent and objective manner. It should be done in fair and unbiased manner

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Accordingly, in view of the observations made hereinabove, we are of the considered view that the material placed on record calls for a situation warranting investigation by the Central Bureau of Investigation.

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Consequently, the petition is allowed. Challan presented by the police in the Court of Judicial Magistrate 1^st

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Class, Nalagarh pertaining to FIR No. 104/2009 is quashed and set aside. The investigation of FIR No. 104/2009 is handed over to respondent No.4. Investigating Officer is directed to handover the complete records of the case to the Superintendent of Police, Central Bureau of Investigation, Shimla within ten days from today. Thereafter the Superintendent of Police, C.B.I. shall depute an Officer not below the rank of Deputy Superintendent of Police to carry out investigation. The investigation shall be carried out and completed within a period of three months thereafter. The final report under section 173 (2) of the Code of Criminal Procedure shall be filed within another three weeks before the Court of competent jurisdiction.

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(Justice Kurian Joseph), Chief Justice.

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(Justice Rajiv Sharma) Judge.

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7.10. 2010. awasthi

Anita Ahluwailia v. State

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Anita Ahluwailia v. State

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