-1- W.P.(Cr.) No. 402 of 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(Cr.) No. 402 of 2021

Jiramani Devi ..... … Petitioner

Versus

1. State of Jharkhand through

Director General of Police, Dhurwa, Ranchi.

2. Superintendent of Police, Latehar.

3. Union of India through Directorate General,

Central Reserved Police Force, Block No. 1

(Central Government Offices), CGO Complex,

Lodhi Road, New Delhi. ..... … Respondents

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Shailesh Poddar, Advocate.

For the State : Mr. Manoj Kumar, G.A.-III.

For the Resp. No. 3 (UOI): Mr. Prashant Vidyarthi, Advocate.

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11/ 14.08.2023 Heard Mr. Shailesh Poddar, learned counsel appearing for the

petitioner, Mr. Manoj Kumar, learned G.A.-III appearing for the State and

Mr. Prashant Vidyarthi, learned counsel appearing for the respondent No.

3 (Union of India).

2. This petition has been filed for a direction to hand over the

case to CBI or Special Branch of CID Officers for further investigation

with regard to the death of the husband of the petitioner namely late

Bramhadev Singh.

3. Mr. Poddar, learned counsel appearing for the petitioner

submits that on 12.06.2021, about 10-11 tribal men of the Piri Village

gathered in front of the house of one Rajeshwar Singh in the morning

(around 8 O’clock) to go for hunting as a part of celebrating ‘Nem Sarhul’,

an annual tribal celebration widely celebrated by the tribals in the State of

Jharkhand. He submits that the tribal villagers as part of the custom and

tradition, hunt small animals from the forest like rabbits, boars etc. to feed

their guests. He further submits that for hunting they used a ‘bhartua gun’,

which is a locally made gun filled with gunpowder before firing and only

a single shot can be fired, which is traditionally used to hunt small animals

and to scare animals to save the crop. He further submits that on the even

day, six people in group of 10-11 people were formed and in one of the

group, Bramhadev Singh was aged about 24 years, the deceased and

husband of the petitioner was there. He submits that the first group, moved

towards the forest for about 50 feet, then suddenly the security personnel

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started firing from the other side without giving any warning. He further

submits that some of the persons saved their lives by way of hiding

themselves behind the mahua tree, Bramhadev, Dinatha and all four raised

their hands by placing the gun on the ground and shouted that they were

common people, not Maoist, and requested not to shoot. Bramhadev by

way of taking out his t-shirt and pant, raised his hands and pleaded to

prove that he was completely innocent villager, but the firing continued.

He further submits that Dinanath Singh was first hit by a bullet in the hand

and then Bramhadev Singh, who is the deceased husband of the petitioner

was hit, who fell on the ground as soon as he was shot. He further submits

that seeing the tragedy, the other persons fled away from the place of

occurrence.

4. Learned counsel appearing for the petitioner further submits

that Bramhadev’s aunt Panpatiya Devi, reached the spot to see Bramhadev,

she was chased away and verbally abused by the security forces. He

further submits that villagers saw that the security force personnel came

from the forest towards the village and lifted Bramhadev Singh and

carried him across the river and the villagers reported that the said

Bramhadev was alive by then, because his hands and feet were trembling.

He further submits that the security forces placed Bramhadev on the

ground across the river and again shot him and the security forces then

changed his cloths, after this Bramhadev is seen wearing a pair of blue

jeans and yellow t-shirt, which has been widely published in the

newspaper as a part of cover-up by the security which amounts to a fake

encounter, upon an innocent villager. He further submits that in these

backgrounds, the petitioner and the elder brother of the victim were

offered an amount of Rs. 30,000/- to Rs. 35,000/- in cash and also

promised a job by the local police and they admitted before the family

members that they had made a mistake and requested them to take the

money and forgive them. He submits that in the aforesaid background, the

local police on seeing that the petitioner was not ready to compromise,

they have given threats and went ahead by way of lodging of a false case,

being Garu P.S. Case No. 24 of 2021 on 13.06.2021 against the six

villagers. He submits that the petitioner has made a complaint against the

police officials and wrote to the Officer-in-Charge of Garu Police Station,

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Latehar, despite of that even after more than five months, the FIR has not

been registered and thereafter the petitioner has been compelled to

approach the learned Chief Judicial Magistrate, Latehar in complaint case

No. 378 of 2021, wherein the learned Chief Judicial Magistrate, Latehar

has been pleased to direct to register the case under Section 156(3)

Cr.P.C., however, the police sat tight over the matter and the FIR was not

registered in spite of the direction of the learned court.

5. When this matter was taken up on 13.01.2022, the following

order was passed, which is quoted hereinbelow:-

“This petition has been taken through

Video Conferencing in view of the guidelines of

the High Court taking into account the situation

arising due to COVID-19 pandemic.

Learned counsel for the petitioner submits

that on 12.06.2021, around 10 to 11 tribal men of

the Piri village gathered in front of the house of

one Rajeshwar Singh in the morning around 8

o'clock to go for hunting as a part of celebrating

'Nem Sarhul', an annual tribal festival widely

celebrated by the tribals in the State of Jharkhand

and suddenly the security force started firing from

the other side without giving any warning. He

further submits that one Bramhadev Singh

(petitioner's husband) was killed in the said

firing. He also submits that when the security

force realised that innocent villager was shot

dead, the security force again assaulted the

victim. He further submits that the wife of the

deceased made representations before the Deputy

Commissioner, Latehar, the Chief Secretary of the

State of Jharkhand and the Director General of

Police, State of Jharkhand. He submits that fair

investigation is not being done.

Let notice be issued upon respondent nos.1

to 3. Mr. Manoj Kumar accepts notice on behalf

of respondent nos. 1 and 2 and Mr. Niraj Kumar

accepts notice on behalf of respondent no.3.

The respondents are directed to file counter

affidavit within four weeks.

Let this matter appear on 17.02.2022.”

6. Non-registration of the FIR, in spite of the order of the learned

Chief Judicial Magistrate, Latehar under Section 156(3) Cr.P.C. was

further considered by this court by order dated 12.05.2022 and the

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supplementary counter affidavit was directed to be filed by the State of

Jharkhand and thereafter only, the FIR, being Garu P.S. Case No. 11 of

2022 was registered against the named accused police officials. It has

further been disclosed that the case has been entrusted to the CID and both

the cases were being investigated by the CID. Further the progress report

was called by this court by order dated 04.07.2023, pursuant thereto,

supplementary counter affidavit has been filed, where in Annexure-D, it

has been admitted that Late Bramhadev Singh died by police bullet,

however, the case has been closed stating therein the mistake of fact being

Garu P.S. Case No. 11 of 2022 and so far as Garu P.S. Case No. 24 of

2021 is concerned, the final form has been submitted in that case also

stating therein that the lack of evidence. In the said Annexure-D, the

request has also been made for proper compensation to the petitioner.

7. Learned counsel appearing for the petitioner submits that

although, the case is registered against the named erring police personnel,

however, by way of Annexure-D, the said case has been closed stating

therein the lack of evidence. He submits that in view of said document, the

case has already been proved of fake encounter, due to which, Bramhadeo

Singh died. He further submits that not only that, he was further tortured

and by way of another shot, he has been put to death. He submits that this

has happened with the innocent villager in the State of Jharkhand, where

promises are being made to protect the Tribals. He further submits that in

view of that it is an admitted fact that death of the deceased Bramhadeo

Singh has occurred due to police bullet and this court may hand over this

matter to the CBI and the petitioner may kindly be provided the suitable

compensation.

8. On the other hand, Mr. Manoj Kumar, learned counsel

appearing for the State submits that the CID has investigated the matter

and thereafter in both the cases, final forms have been submitted stating

therein the mistake of fact and lack of evidence respectively. He submits

that by the said Annexure-D, annexed with the supplementary counter

affidavit, recommendation has been made for proper compensation. He

further submits that in view of that this matter may kindly be disposed of.

9. Mr. Prashant Vidyarthi, learned counsel appearing for the

respondent No. 3 (UOI) submits that so far as CRPF personnel are

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concerned, they were far away from the spot in question, from which, the

deceased was heart.

10. In view of the above submissions of learned counsel

appearing for the parties, the court has gone through the materials

available on record including the counter affidavit as well as the

supplementary counter affidavit and also the contents of the FIR filed by

the police officials and the FIR registered pursuant to the efforts made by

the petitioner herein. In view of Annexure-D, it is an admitted fact that

Bramhadeo Singh died due to bullet injury caused by the police. The FIR

has already been registered against the erring police officials and the case

has been closed saying the mistake of facts and in view of the admitted

position, at least Section 304 IPC is made out, however, the CID has

chosen to come to the conclusion to give a clean chit to the erring police

officials.

11. Article 21 of the Constitution of India was being considered

by the Hon’ble Supreme Court in the case of People’s Union for Civil

Liberties Versus State of Maharashtra & Ors., reported in (2014) 10 SCC

635, with regard to police encounters causing death of causing grievous

injuries, wherein it has been held that such types of cases are required to

thorough investigation by the independent agency and guidelines have

been issued, at para-31 to 31.16, which are quoted hereinbelow:-

“31. In the light of the above discussion and

having regard to the directions issued by the

Bombay High Court, guidelines issued by NHRC,

suggestions of the appellant PUCL, amicus curiae

and the affidavits filed by the Union of India, the

State Governments and the Union Territories, we

think it appropriate to issue the following

requirements to be followed in the matters of

investigating police encounters in the cases of

death as the standard procedure for thorough,

effective and independent investigation:

31.1. Whenever the police is in receipt of any

intelligence or tip-off regarding criminal

movements or activities pertaining to the

commission of grave criminal offence, it shall be

reduced into writing in some form (preferably

into case diary) or in some electronic form. Such

recording need not reveal details of the suspect or

the location to which the party is headed. If such

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intelligence or tip-off is received by a higher

authority, the same may be noted in some form

without revealing details of the suspect or the

location.

31.2. If pursuant to the tip-off or receipt of any

intelligence, as above, encounter takes place and

firearm is used by the police party and as a result

of that, death occurs, an FIR to that effect shall be

registered and the same shall be forwarded to the

court under Section 157 of the Code without any

delay. While forwarding the report under Section

157 of the Code, the procedure prescribed under

Section 158 of the Code shall be followed.

31.3. An independent investigation into the

incident/encounter shall be conducted by the CID

or police team of another police station under the

supervision of a senior officer (at least a level

above the head of the police party engaged in the

encounter). The team conducting

inquiry/investigation shall, at a minimum, seek:

(a) To identify the victim; colour photographs

of the victim should be taken;

(b) To recover and preserve evidentiary

material, including bloodstained earth, hair,

fibres and threads, etc. related to the death;

(c) To identify scene witnesses with complete

names, addresses and telephone numbers and

obtain their statements (including the statements

of police personnel involved) concerning the

death;

(d) To determine the cause, manner, location

(including preparation of rough sketch of

topography of the scene and, if possible,

photo/video of the scene and any physical

evidence) and time of death as well as any pattern

or practice that may have brought about the

death;

(e) It must be ensured that intact fingerprints

of deceased are sent for chemical analysis. Any

other fingerprints should be located, developed,

lifted and sent for chemical analysis;

(f) Post-mortem must be conducted by two

doctors in the district hospital, one of them, as far

as possible, should be incharge/head of the

district hospital. Post-mortem shall be

videographed and preserved;

(g) Any evidence of weapons, such as guns,

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projectiles, bullets and cartridge cases, should be

taken and preserved. Wherever applicable, tests

for gunshot residue and trace metal detection

should be performed.

(h) The cause of death should be found out,

whether it was natural death, accidental death,

suicide or homicide.

31.4. A magisterial inquiry under Section 176

of the Code must invariably be held in all cases of

death which occur in the course of police firing

and a report thereof must be sent to the Judicial

Magistrate having jurisdiction under Section 190

of the Code.

31.5. The involvement of NHRC is not

necessary unless there is serious doubt about

independent and impartial investigation.

However, the information of the incident without

any delay must be sent to NHRC or the State

Human Rights Commission, as the case may be.

31.6. The injured criminal/victim should be

provided medical aid and his/her statement

recorded by the Magistrate or Medical Officer

with certificate of fitness.

31.7. It should be ensured that there is no

delay in sending FIR, diary entries, panchnamas,

sketch, etc. to the court concerned.

31.8. After full investigation into the incident,

the report should be sent to the competent court

under Section 173 of the Code. The trial, pursuant

to the charge-sheet submitted by the investigating

officer, must be concluded expeditiously.

31.9. In the event of death, the next of kin of

the alleged criminal/victim must be informed at

the earliest.

31.10. Six-monthly statements of all cases

where deaths have occurred in police firing must

be sent to NHRC by DGPs. It must be ensured

that the six-monthly statements reach to NHRC by

15th day of January and July, respectively. The

statements may be sent in the following format

along with post-mortem, inquest and, wherever

available, the inquiry reports:

(i) Date and place of occurrence.

(ii) Police station, district.

(iii) Circumstances leading to deaths:

(a) Self-defence in encounter.

(b) In the course of dispersal of unlawful

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assembly.

(c) In the course of affecting arrest.

(iv) Brief facts of the incident.

(v) Criminal case no.

(vi) Investigating agency.

(vii) Findings of the magisterial

inquiry/inquiry by senior officers:

(a) disclosing, in particular, names and

designation of police officials, if found

responsible for the death; and

(b) whether use of force was justified and

action taken was lawful.

31.11. If on the conclusion of investigation the

materials/evidence having come on record show

that death had occurred by use of firearm

amounting to offence under IPC, disciplinary

action against such officer must be promptly

initiated and he be placed under suspension.

31.12. As regards compensation to be granted

to the dependants of the victim who suffered death

in a police encounter, the scheme provided under

Section 357-A of the Code must be applied.

31.13. The police officer(s) concerned must

surrender his/her weapons for forensic and

ballistic analysis, including any other material, as

required by the investigating team, subject to the

rights under Article 20 of the Constitution.

31.14. An intimation about the incident must

also be sent to the police officer's family and

should the family need services of a

lawyer/counselling, same must be offered.

31.15. No out-of-turn promotion or instant

gallantry rewards shall be bestowed on the

officers concerned soon after the occurrence. It

must be ensured at all cost that such rewards are

given/recommended only when the gallantry of

the officers concerned is established beyond

doubt.

31.16. If the family of the victim finds that the

above procedure has not been followed or there

exists a pattern of abuse or lack of independent

investigation or impartiality by any of the

functionaries as abovementioned, it may make a

complaint to the Sessions Judge having territorial

jurisdiction over the place of incident. Upon such

complaint being made, the Sessions Judge

concerned shall look into the merits of the

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complaint and address the grievances raised

therein.

12. In view of the above backgrounds, the court has to ensure that

accused persons are punished and that might or authority of the State are

not used to shield themselves or their men. It should be ensured that they

do not wield such powers, which under the Constitution has to be held

only in trust for the public and society at large. If deficiency in

investigation or prosecution is visible or can be perceived by lifting the

veil trying to hide the realities or covering the obvious deficiencies, courts

have to deal with the same with an iron hand appropriately within the

framework of law. It is as much the duty of the prosecutor as of the court

to ensure that full and material facts are brought on record so that there

might not be miscarriage of justice. The victim cannot be afforded to be

treated as an alien or total stranger to the criminal trial and further not only

fair trial but fair investigation is also part of constitutional rights

guaranteed under Articles 20 and 21 of the Constitution of India.

Therefore, investigation must be fair, transparent and judicious as it is the

minimum requirement of rule of law. The investigating agency cannot be

permitted to conduct an investigation in a tainted and biased manner.

Where non-interference of the court would ultimately result in failure of

justice, the court must interfere. In such a situation, it may be in the

interest of justice that independent agency chosen by the High Court

makes a fresh investigation. Identical was the situation in the case of

Neetu Kumar Nagaich Versus State of Rajasthan & Ors., reported in

(2020) 16 SCC 777 and while considering Section 173 of the Cr.P.C., the

Hon’ble Supreme Court in paras-10 and 11 held as follows:-

“10. Normally when an investigation has been

concluded and police report submitted under

Section 173(2) of the Code, it is only further

investigation that can be ordered under Section

173(8) of the Code. But where the constitutional

court is satisfied that the investigation has not

been conducted in a proper and objective manner,

as observed in Kashmeri Devi v. Delhi

Admn. [Kashmeri Devi v. Delhi Admn., 1988

Supp SCC 482 : 1988 SCC (Cri) 864] , fresh

investigation with the help of an independent

agency can be considered to secure the ends of

justice so that the truth is revealed. The power

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may also be exercised if the court comes to the

conclusion that the investigation has been done in

a manner to help someone escape the clutches of

the law. In such exceptional circumstances the

court may, in order to prevent miscarriage of

criminal justice, direct de novo investigation as

observed in Babubhai v. State of

Gujarat [Babubhai v. State of Gujarat, (2010) 12

SCC 254 : (2011) 1 SCC (Cri) 336] . A fair

investigation is as much a part of a constitutional

right guaranteed under Article 21 of the

Constitution as a fair trial, without which the trial

will naturally not be fair. The observations in this

context in Babubhai [Babubhai v. State of

Gujarat, (2010) 12 SCC 254 : (2011) 1 SCC (Cri)

336] are considered relevant at para 45 as

follows: (SCC p. 272)

“45. Not only fair trial but fair investigation is

also part of constitutional rights guaranteed

under Articles 20 and 21 of the Constitution of

India. Therefore, investigation must be fair,

transparent and judicious as it is the minimum

requirement of rule of law. The investigating

agency cannot be permitted to conduct an

investigation in a tainted and biased manner.

Where non-interference of the court would

ultimately result in failure of justice, the court

must interfere. In such a situation, it may be in the

interest of justice that independent agency chosen

by the High Court [Ganeshbhai Jakshibhai

Bharwad v. State of Gujarat, 2009 SCC OnLine

Guj 12130] makes a fresh investigation.”

11. In Bharati Tamang v. Union of India

[Bharati Tamang v. Union of India, (2013) 15

SCC 578 : (2014) 6 SCC (Cri) 566] , relief was

sought in a writ petition to quash the charge-sheet

and the supplementary charge-sheet coupled with

a mandamus for a de novo investigation by a

Special Investigation Team of competent persons

having impeccable credentials to unravel the

conspiracy. This Court relied on the following

extract from Zahira Habibulla H. Sheikh v. State

of Gujarat [Zahira Habibulla H. Sheikh v. State

of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri)

999] , as follows: (Bharati Tamang case [Bharati

Tamang v. Union of India, (2013) 15 SCC 578 :

(2014) 6 SCC (Cri) 566] , SCC pp. 594-97, paras

33, 37-38 & 41)

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“33. …‘56. … Courts have to ensure that

accused persons are punished and that the might

or authority of the State are not used to shield

themselves or their men. It should be ensured that

they do not wield such powers which under the

Constitution has to be held only in trust for the

public and society at large. If deficiency in

investigation or prosecution is visible or can be

perceived by lifting the veil trying to hide the

realities or covering the obvious deficiencies,

courts have to deal with the same with an iron

hand appropriately within the framework of law.

It is as much the duty of the prosecutor as of the

court to ensure that full and material facts are

brought on record so that there might not be

miscarriage of justice.’ (Zahira Habibulla H.

Sheikh case [Zahira Habibulla H. Sheikh v. State

of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri)

999] , SCC pp. 192-93, para 56)

***

37. In the decision of Babubhai v. State of

Gujarat [Babubhai v. State of Gujarat, (2010) 12

SCC 254 : (2011) 1 SCC (Cri) 336] , in para 40,

this Court held that the scheme of investigation

particularly Section 173(8) CrPC provides for

further investigation and not of reinvestigation

but held in para 42 as under: (SCC p. 272)

‘42. Thus, it is evident that in exceptional

circumstances, the court in order to prevent the

miscarriage of criminal justice, if considers

necessary, may direct for investigation de novo

wherein the case presents exceptional

circumstances.’

38. Therefore, at times of need where this

Court finds that an extraordinary or exceptional

circumstance arise and the necessity for

reinvestigation would be imperative in such

extraordinary cases even de novo investigation

can be ordered.

***

41.3. If deficiency in investigation or

prosecution is visible or can be perceived by

lifting the veil which try to hide the realities or

covering the obvious deficiency, courts have to

deal with the same with an iron hand

appropriately within the framework of law.

***

41.5. In order to ensure that the criminal

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prosecution is carried on without any deficiency,

in appropriate cases this Court can even

constitute Special Investigating Team and also

give appropriate directions to the Central and

State Governments and other authorities to give

all required assistance to such specially

constituted investigating team in order to book

the real culprits and for effective conduct of the

prosecution.

***

41.7. In appropriate cases even if the charge-

sheet is filed it is open for this Court or even for

the High Court to direct investigation of the case

to be handed over to CBI or to any other

independent agency in order to do complete

justice.

41.8. In exceptional circumstances the Court

in order to prevent miscarriage of criminal justice

and if considers necessary may direct for

investigation de novo.”

(emphasis in original)

13. The power of Constitutional Court may extent to direct the re-

investigation was again noticed in the case of Pooja Pal Versus Union of

India & Ors., reported in (2016) 3 SCC 135, which was considered in

para-12 of the aforesaid judgment, which reads as under:-

“12. Even the representation made by the mother

of Raju Pal on 26-1-2005 to the Senior

Superintendent of Police to hand over the dead

body of her son to her for final rites was not

heeded too. All fervent requests and appeals made

by her in this regard failed. The appellant has

alleged that not only she as a widow was given a

chance to have a parting glance of the body of her

husband, the dead bodies were disposed of

hurriedly without any notice to her as well as

other family members of Raju Pal presumably to

wipe off all possible clues in support of the

heinous crime. The appellant was married to the

deceased Raju Pal only on 16-1-2005 i.e. hardly a

week before the tragic incident.”

14. In view of the above, it is now well settled that if a citiz en, ,

who is a de facto complainant in a criminal case alleging commission

of cognizable offence affecting violation of his legal or

fundamental rights against high Government officials or influential

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persons, prays before a Court for a direction of investigation of the said

alleged offence by CBI, such prayer should not be granted on mere asking.

This extraordinary power must be exercised sparingly, cautiously and in

exceptional situations where it becomes necessary to provide credibility

and instil confidence in investigations or where the incident may have

national and international ramifications or where such an order may be

necessary for doing complete justice and enforcing the fundamental rights.

The said question was again the subject matter before the Hon’ble

Supreme Court in the case of Anant Thanur Karmuse Versus State of

Maharasthra & Ors., reported in (2023) 5 SCC 802, where in paras-34,

40, 42 and 48, it has been held as follows:-

“34. In Himanshu Kumar [Himanshu Kumar v.

State of Chhattisgarh, (2023) 12 SCC 592 : 2022

SCC OnLine SC 884] , this Court had occasion to

consider the power of the Court to transfer

investigation to any other independent agency.

After taking into consideration the catena of

judgments on the point, it is reiterated that

investigation may be transferred to CBI only in

“rare and exceptional cases”. In SCC paras 44 to

55, it is observed and held as under:

“44. It is now settled law that if a citizen, who

is a de facto complainant in a criminal case

alleging commission of cognizable offence

affecting violation of his legal or fundamental

rights against high Government officials or

influential persons, prays before a Court for a

direction of investigation of the said alleged

offence by CBI, such prayer should not be

granted on mere asking.

45. A Constitution Bench of this Court,

in State of W.B. v. Committee for Protection of

Democratic Rights [State of W.B. v. Committee

for Protection of Democratic Rights, (2010) 3

SCC 571 : (2010) 2 SCC (Cri) 401] , has made

the following observations pointing out the

situations where the prayer for investigation by

CBI should be allowed : (SCC p. 602, para 70)

“70. … Insofar as the question of issuing a

direction to CBI to conduct investigation in a case

is concerned, although no inflexible guidelines

can be laid down to decide whether or not such

powers should be exercised, but time and again it

has been reiterated that such an order is not to be

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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 instil confidence in investigations

or where the incident may have national and

international ramifications or where such an

order may be necessary for doing complete

justice and enforcing the fundamental rights.

Otherwise CBI would be flooded with a large

number of cases and with limited resources, may

find it difficult to properly investigate even

serious cases and in the process lose its

credibility and purpose with unsatisfactory

investigations.’

46. In the above decision, it was also pointed

out that the same Court in Minor Irrigation &

Rural Engg. Services v. Sahngoo Ram

Arya [Minor Irrigation & Rural Engg.

Services v. Sahngoo Ram Arya, (2002) 5 SCC 521

: 2002 SCC (L&S) 775] , had said that an order

directing an enquiry by CBI should be passed

only when the High Court, after considering the

material on record, comes to the conclusion that

such material does disclose a prima facie case

calling for an investigation by CBI or any other

similar agency.

47. In an appropriate case when the Court

feels that the investigation by the police

authorities is not in … a proper direction, and in

order to do complete justice in the case and if

high police officials are involved in the alleged

crime, the Court may be justified in such

circumstances to hand over the investigation to

an independent agency like CBI. By now it is well

settled that even after the filing of the charge-

sheet the Court is empowered in an appropriate

case to hand over the investigation to an

independent agency like CBI.

48. The extraordinary power of the

constitutional courts under Articles 32 and 226

respectively of the Constitution of India qua the

issuance of directions to CBI to conduct

investigation must be exercised with great caution

as underlined by this Court in Committee for

Protection of Democratic Rights [State of

W.B. v. Committee for Protection of Democratic

-15- W.P.(Cr.) No. 402 of 2021

Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri)

401] as adverted to hereinabove, observing that

although no inflexible guidelines can be laid

down in this regard, yet it was highlighted that

such an order cannot be passed as a matter of

routine or merely because the parties have

levelled some allegations against the local police

and can be invoked in exceptional situations

where it becomes necessary to provide credibility

and instil confidence in the investigation or where

the incident may have national or international

ramifications or where such an order may be

necessary for doing complete justice and for

enforcing the fundamental rights.

49. We are conscious of the fact that though a

satisfaction of want of proper, fair, impartial and

effective investigation eroding its credence and

reliability is the precondition for a direction for

further investigation or reinvestigation,

submission of the charge-sheet ipso facto or the

pendency of the trial can, by no means, be a

prohibitive impediment. The contextual facts and

the attendant circumstances have to be singularly

evaluated and analysed to decide the needfulness

of further investigation or reinvestigation to

unravel the truth and mete out justice to the

parties. The prime concern and the endeavour of

the court of law should be to secure justice on the

basis of true facts which ought to be unearthed

through a committed, resolved and a competent

investigating agency.

50. The above principle has been reiterated

in K.V. Rajendran v. Supt. of Police [K.V.

Rajendran v. Supt. of Police, (2013) 12 SCC 480 :

(2014) 4 SCC (Cri) 578] . Dr B.S. Chauhan, J.

speaking for a three-Judge Bench of this Court

held : (SCC p. 485, para 13)

‘13. … This Court has time and again dealt

with the issue under what circumstances the

investigation can be transferred from the State

investigating agency to any other independent

investigating agency like CBI. It has been held

that the power of transferring such investigation

must be in rare and exceptional cases where the

court finds it necessary in order to do justice

between the parties and to instil confidence in the

public mind, or where investigation by the State

Police lacks credibility and it is necessary for

-16- W.P.(Cr.) No. 402 of 2021

having “a fair, honest and complete

investigation”, and particularly, when it is

imperative to retain public confidence in the

impartial working of the State agencies.”

51. Elaborating on this principle, this Court

further observed : (K.V. Rajendran case [K.V.

Rajendran v. Supt. of Police, (2013) 12 SCC 480 :

(2014) 4 SCC (Cri) 578] , SCC p. 487, para 17)

‘17. … the Court could exercise its

constitutional powers for transferring an

investigation from the State investigating agency

to any other independent investigating agency like

CBI only in rare and exceptional cases. Such as

where high officials of State authorities are

involved, or the accusation itself is against the top

officials of the investigating agency thereby

allowing them to influence the investigation, and

further that it is so necessary to do justice and to

instil confidence in the investigation or where the

investigation is prima facie found to be

tainted/biased.’

52. The Court reiterated that an investigation

may be transferred to CBI only in “rare and

exceptional cases”. One factor that courts may

consider is that such transfer is “imperative” to

retain “public confidence in the impartial

working of the State agencies.” This observation

must be read with the observations made by the

Constitution Bench in Committee for Protection

of Democratic Rights [State of W.B. v. Committee

for Protection of Democratic Rights, (2010) 3

SCC 571 : (2010) 2 SCC (Cri) 401] , that mere

allegations against the police do not constitute a

sufficient basis to transfer the investigation.

53. In Romila Thapar v. Union of

India [Romila Thapar v. Union of India, (2018)

10 SCC 753 : (2019) 1 SCC (Cri) 638] , one of us,

A.M. Khanwilkar, J., speaking for a three-Judge

Bench of this Court (Dr D.Y. Chandrachud, J.

dissenting) noted the dictum in a line of

precedents laying down the principle that the

accused “does not have a say in the matter of

appointment of investigating agency”. In

reiterating this principle, this Court relied upon

its earlier decisions in Narmada Bai v. State of

Gujarat [Narmada Bai v. State of Gujarat, (2011)

5 SCC 79 : (2011) 2 SCC (Cri) 526] , Sanjiv

Rajendra Bhatt v. Union of India [Sanjiv

-17- W.P.(Cr.) No. 402 of 2021

Rajendra Bhatt v. Union of India, (2016) 1 SCC 1

: (2016) 1 SCC (Cri) 193 : (2016) 1 SCC (L&S)

1] , E. Sivakumar v. Union of India [E.

Sivakumar v. Union of India, (2018) 7 SCC 365 :

(2018) 3 SCC (Cri) 49] , and Divine Retreat

Centre v. State of Kerala [Divine Retreat

Centre v. State of Kerala, (2008) 3 SCC 542 :

(2008) 2 SCC (Cri) 9] . This Court observed :

(Romila Thapar case [Romila Thapar v. Union of

India, (2018) 10 SCC 753 : (2019) 1 SCC (Cri)

638] , SCC p. 776, para 30)

‘30. … the consistent view of this Court is that

the accused cannot ask for changing the

investigating agency or to do investigation in a

particular manner including for court-monitored

investigation.’

54. It has been held by this Court

in CBI v. Rajesh Gandhi [CBI v. Rajesh Gandhi,

(1996) 11 SCC 253 : 1997 SCC (Cri) 88 : 1997

Cri LJ 63] , that no one can insist that an offence

be investigated by a particular agency. We fully

agree with the view in the aforesaid decision. An

aggrieved person can only claim that the offence

he alleges be investigated properly, but he has no

right to claim that it be investigated by any

particular agency of his choice.

55. The principle of law that emerges from the

precedents of this Court is that the power to

transfer an investigation must be used

“sparingly” and only “in exceptional

circumstances”. In assessing the plea urged by

the petitioner that the investigation must be

transferred to CBI, we are guided by the

parameters laid down by this Court for the

exercise of that extraordinary power.”

40. Now, so far as the reliance placed upon

the decision of this Court in Vinubhai Haribhai

Malaviya [Vinubhai Haribhai Malaviya v. State

of Gujarat, (2019) 17 SCC 1 : (2020) 3 SCC (Cri)

228] , relied upon on behalf of the respondent-

accused is concerned, it is required to be noted

that in the said decision, this Court was

considering the powers of the Magistrate. Even in

the said decision, it is observed and held that

there is no good reason given by the Court as to

why a Magistrate's powers to order further

investigation would suddenly cease upon process

being issued. It is further observed that power of

-18- W.P.(Cr.) No. 402 of 2021

the police to further investigate the offence

continues right till the stage the trial commences.

It is further observed that Article 21 of the

Constitution demands no less than a fair and just

investigation. In para 42 as such, it is observed

and held as under : (SCC pp. 39-40)

“42. There is no good reason given by the

Court in these decisions as to why a Magistrate's

powers to order further investigation would

suddenly cease upon process being issued, and an

accused appearing before the Magistrate, while

concomitantly, the power of the police to further

investigate the offence continues right till the

stage the trial commences. Such a view would not

accord with the earlier judgments of this Court, in

particular, Sakiri [Sakiri Vasu v. State of U.P.,

(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440]

, Samaj Parivartan Samudaya [Samaj Parivartan

Samudaya v. State of Karnataka, (2012) 7 SCC

407 : (2012) 3 SCC (Cri) 365] , Vinay

Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC

762 : (2013) 4 SCC (Cri) 557] , and Hardeep

Singh [Hardeep Singh v. State of Punjab, (2014)

3 SCC 92 : (2014) 2 SCC (Cri) 86] ; Hardeep

Singh [Hardeep Singh v. State of Punjab, (2014)

3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly

held that a criminal trial does not begin after

cognizance is taken, but only after charges are

framed. What is not given any importance at all in

the recent judgments of this Court is Article 21 of

the Constitution and the fact that the Article

demands no less than a fair and just investigation.

To say that a fair and just investigation would

lead to the conclusion that the police retain the

power, subject, of course, to the Magistrate's nod

under Section 173(8) to further investigate an

offence till charges are framed, but that the

supervisory jurisdiction of the Magistrate

suddenly ceases midway through the pre-trial

proceedings, would amount to a travesty of

justice, as certain cases may cry out for further

investigation so that an innocent person is not

wrongly arraigned as an accused or that a prima

facie guilty person is not so left out. There is no

warrant for such a narrow and restrictive view of

the powers of the Magistrate, particularly when

such powers are traceable to Section 156(3) read

with Section 156(1), Section 2(h) and Section

-19- W.P.(Cr.) No. 402 of 2021

173(8)CrPC, as has been noticed hereinabove,

and would be available at all stages of the

progress of a criminal case before the trial

actually commences. It would also be in the

interest of justice that this power be exercised suo

motu by the Magistrate himself, depending on the

facts of each case. Whether further investigation

should or should not be ordered is within the

discretion of the learned Magistrate who will

exercise such discretion on the facts of each case

and in accordance with law. If, for example, fresh

facts come to light which would lead to

inculpating or exculpating certain persons,

arriving at the truth and doing substantial justice

in a criminal case are more important than

avoiding further delay being caused in concluding

the criminal proceeding, as was held

in Hasanbhai Valibhai Qureshi [Hasanbhai

Valibhai Qureshi v. State of Gujarat, (2004) 5

SCC 347 : 2004 SCC (Cri) 1603] . Therefore, to

the extent that the judgments in Amrutbhai

Shambhubhai Patel [Amrutbhai Shambhubhai

Patel v. Sumanbhai Kantibhai Patel, (2017) 4

SCC 177 : (2017) 2 SCC (Cri) 331] , Athul

Rao [Athul Rao v. State of Karnataka, (2018) 14

SCC 298 : (2019) 1 SCC (Cri) 594] and Bikash

Ranjan Rout [Bikash Ranjan Rout v. State (NCT

of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri)

613] have held to the contrary, they stand

overruled. Needless to add, Randhir Singh

Rana v. State (Delhi Admn.) [Randhir Singh

Rana v. State (Delhi Admn.), (1997) 1 SCC 361]

and Reeta Nag v. State of W.B. [Reeta

Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3

SCC (Cri) 1051] also stand overruled.”

42. Applying the law laid down by this Court

in Dharam Pal [Dharam Pal v. State of Haryana,

(2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259]

and Bharati Tamang [Bharati Tamang v. Union

of India, (2013) 15 SCC 578 : (2014) 6 SCC (Cri)

566] and to do the complete justice and in

furtherance of fair investigation and fair trial, the

constitutional courts may order further

investigation / reinvestigation / de novo

investigation even after the charge-sheet is filed

and the charges are framed. If the submission on

behalf of the accused and even as observed by the

High Court that once the charge-sheet is filed and

-20- W.P.(Cr.) No. 402 of 2021

the charges are framed, there may not be any

order for further investigation/reinvestigation/de

novo investigation is accepted, in that case, the

accused may see to it that the charges are framed

to avoid any fair investigation/fair trial. It would

lead to travesty of justice.

48. Be that as it may, even according to the

State investigating agency, the further

investigation is required. As observed and held by

this Court in the aforesaid decisions, the victim

has a fundamental right of fair investigation and

fair trial. Therefore, mere filing of the charge-

sheet and framing of the charges cannot be an

impediment in ordering further investigation/

reinvestigation/de novo investigation, if the facts

so warrant.

15. Thus, in view of the above judgments, if a Constitutional

Court comes to a conclusion that the investigation has been done in a

perfunctory way and it is only an eyewash, the Constitutional Court is

duty bound to rise to the occasion to pass an appropriate order.

16. In the case in hand, by way of Annexure-D to the counter

affidavit, the CID has itself admitted that the said death has occurred due

to the police firing.

17. It is only when this court has intervened thereafter the order,

passed by the learned Chief Judicial Magistrate, Latehar under Section

156(3) Cr.P.C. was complied by the State and the case was registered, in

which, now it has been admitted that death has occurred due to the firing

of the police that too innocent villager has been killed in the State of

Jharkhand, where it has been claimed that the Tribals are being protected.

The closure report is therefore, is in the mind, a clear hasty action leaving

much to be desired regarding the nature of investigation, because if a

detailed investigation had already been done as is sought to be now

suggested, there is no reason why a final report could not have been filed

by the investigating agency in the normal course of events and needed an

order to do so by the High Court and the court further finds that the

closure report, therefore, lacks bona fide and in the interest of justice, the

court comes to the conclusion that the case is required to de novo

investigation to be done to maintain the confidence of the police upon the

society and to suggest that the Rule of Law is meant for everybody,

-21- W.P.(Cr.) No. 402 of 2021

whoever he may be.

18. Accordingly, this court set aside the closure report, arising out

of Garu P.S. Case No. 11 of 2022 considering that in Annexure-D to the

supplementary counter affidavit, it has been admitted that the death of the

deceased has occurred due to police firing. The fresh team of Investigators

shall be constituted under a senior police official by the Director General

of Police and Secretary, Home Department, Government of Jharkhand

consisting of efficient personnel, well conversant with use of modern

investigation technology also. No officer, who was part of the

investigation team leading to the closure report shall be the part of the

team conducted de novo investigation.

19. Much time has already been lapsed and seeing the urgency in

the matter, the Court directs that such fresh investigation must be concluded

within a maximum period of three months from today and the police report

be filed before the court concerned, thereafter the matter shall proceed in

accordance with law.

20. Seeing the admission made by the police in Annexure-D of the

supplementary counter affidavit that the death of the husband of the petitioner

has occurred due to the police firing, the court further considered that this

court is required to pass the appropriate order to compensate the petitioner

suitably, as such recommendation is also there in Annexure-D to the

supplementary counter affidavit, however, learned counsel appearing for

the respondents-State is not in a position to say about such compensation

in view of Annexure-D to the supplementary counter affidavit. The court

further finds that the State of Jharkhand has already having a policy in this

regard for compensation upon police atrocities and death in police lock-

up, in spite of that only recommendation has been done by Annexure-D to

the supplementary counter affidavit and the compensation has not been

paid as yet. There are lines of judgment on the point of compensation of

the High Courts as well as of the Hon’ble Supreme Court and few of them

speak as under:-

21. In view of the above the Hon’ble Supreme Court in the case

of Joginder Kumar Versus State of U.P. & Ors., reported in (1994) 4 SCC

260, in paras 8 and 9 held as under:-

“8. The horizon of human rights is expanding. At

-22- W.P.(Cr.) No. 402 of 2021

the same time, the crime rate is also increasing.

Of late, this Court has been receiving complaints

about violation of human rights because of

indiscriminate arrests. How are we to strike a

balance between the two?

9. A realistic approach should be made in this

direction. The law of arrest is one of balancing

individual rights, liberties and privileges, on the

one hand, and individual duties, obligations and

responsibilities on the other; of weighing and

balancing the rights, liberties and privileges of

the single individual and those of individuals

collectively; of simply deciding what is wanted

and where to put the weight and the emphasis; of

deciding which comes first — the criminal or

society, the law violator or the law abider; of

meeting the challenge which Mr Justice Cardozo

so forthrightly met when he wrestled with a

similar task of balancing individual rights against

society's rights and wisely held that the exclusion

rule was bad law, that society came first, and that

the criminal should not go free because the

constable blundered. In People v. Defore [242 NY

13, 24 : 150 NE 585, 589 (1926)] Justice Cardozo

observed:

“The question is whether protection for the

individual would not be gained at a

disproportionate loss of protection for society. On

the one side is the social need that crime shall be

repressed. On the other, the social need that law

shall not be flouted by the insolence of office.

There are dangers in any choice. The rule of

the Adams case (People v. Adams [176 NY 351 :

68 NE 636 (1903)] ) strikes a balance between

opposing interests. We must hold it to be the law

until those organs of government by which a

change of public policy is normally effected shall

give notice to the courts that change has come to

pass.”

22. In Kiran Bedi Versus Committee of Inquiry & Anr., reported

in (1989) 1 SCC 494, the Hon’ble Supreme Court has reproduced an

observation in para-25 from the decision in D.F. Marion Versus Davis as

under:-

“25. …….‘The right to the enjoyment of a private

reputation, unassailed by malicious slander is of

-23- W.P.(Cr.) No. 402 of 2021

ancient origin, and is necessary to human society.

A good reputation is an element of personal

security, and is protected by the Constitution

equally with the right to the enjoyment of life,

liberty, and property.’”

23. Further reputation of an individual is an insegregable facet of

his right to life with dignity was the subject matter in the case of

Vishwanath Agrawal Versus Sarla Vishwanath Agrawal, reported in

(2012) 7 SCC 288.

24. The excessive use of force by the police was also the subje ct

matter before the Hon’ble Supreme Court in the case of Delhi Judicial

Service Association Tis Hazari Court, Delhi Versus State of Gujarat &

Ors., reported in (1991) 4 SCC 406, where in para-39 it was held as

under:-

“39. Constitutional hurdles over, now we would

revert back to the incident which has given rise to

these proceedings. The genesis of the

unprecedented attack on the subordinate judiciary

arose out of confrontational attitude of the local

police against the Magistracy in Kheda. The

Chief Judicial Magistrate is head of the

Magistracy in the district. Under the provisions of

Chapter XII of the Code of Criminal Procedure,

1973, he exercises control and supervision over

the investigating officer. He is an immediate

officer on the spot at the lower rung of the

administration of justice of the country to ensure

that the police which is the law enforcing

machinery acts according to law in investigation

of crimes without indulging in excesses and

causing harassment to citizens. The main

objective of police is to apprehend offenders, to

investigate crimes and to prosecute them before

the courts and also to prevent commission of

crime and above all to ensure law and order to

protect the citizens' life and property. The law

enjoins the police to be scrupulously fair to the

offender and the Magistracy is to ensure fair

investigation and fair trial to an offender. The

purpose and object of Magistracy and police are

complementary to each other. It is unfortunate

that these objectives have remained unfulfilled

even after 40 years of our Constitution.

Aberrations of police officers and police excesses

in dealing with the law and order situation have

-24- W.P.(Cr.) No. 402 of 2021

been the subject of adverse comments from this

Court as well as from other courts but it has

failed to have any corrective effect on it. The

police has power to arrest a person even without

obtaining a warrant of arrest from a court. The

amplitude of this power casts an obligation on the

police to take maximum care in exercising that

power. The police must bear in mind, as held by

this Court that if a person is arrested for a crime,

his constitutional and fundamental rights must not

be violated. See Sunil Batra v. Delhi

Administration [(1978) 4 SCC 494 : 1979 SCC

(Cri) 155] . In Prem Shankar Shukla case [(1980)

3 SCC 526 : 1980 SCC (Cri) 815] this Court

considered the question of placing a prisoner

under handcuff by the police. The Court declared

that no prisoner shall be handcuffed or fettered

routinely or merely for the convenience of custody

or escort. The Court emphasised that the police

did not enjoy any unrestricted or unlimited power

to handcuff an arrested person. If having regard

to the circumstances including the conduct,

behaviour and character of a prisoner, there is

reasonable apprehension of prisoner's escape

from custody or disturbance of peace by violence,

the police may put the prisoner under handcuff. If

a prisoner is handcuffed without there being any

justification, it would violate prisoner's

fundamental rights under Articles 14 and 19 of

the Constitution. To be consistent with Articles 14

and 19 handcuffs must be the last refuge as there

are other ways for ensuring security of a prisoner.

In Prem Shankar Shukla case [(1980) 3 SCC 526

: 1980 SCC (Cri) 815] , Krishna Iyer, J. observed:

(SCC p. 529, para 1)

“If today freedom of the forlorn person falls to

the police somewhere, tomorrow the freedom of

many may fall elsewhere with none to

whimper unless the court process invigilates in

time and polices the police before it is too late.”

(emphasis in original)

The prophetic words of Krishna Iyer, J. have come

true as the facts of the present case would show.”

25. In view of the above facts, reasons, discussions and analysis

and also considering Annexure-D to the supplementary counter affidavit,

wherein, it has been admitted that the death of the husband of the

petitioner has occurred due to police firing, the respondents-State shall pay

-25- W.P.(Cr.) No. 402 of 2021

a sum of Rs. 5,00,000/- (rupees five lakhs) in favour of the petitioner

within four weeks from the date of receipt / production of this order and

this shall be implemented through the Home Secretary, Government of

Jharkhand, Ranchi within the aforesaid period.

26. With the above observation and direction at paras-18 and 25

of this judgment, this petition is allowed and disposed of.

(Sanjay Kumar Dwivedi, J.)

Amitesh/-

[A.F.R.]