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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 77 OF 2016

(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 1458/2015 )

POOJA PAL .…APPELLANT

Versus

UNION OF INDIA AND ORS. ...RESPONDENTS

J U D G M E N T

AMITAVA ROY,J.

Leave granted.

2.The appellant, widow of slain Raju Pal, who at his death

was a sitting M.L.A. of Uttar Pradesh State Assembly, is before

this court in her relentless pursuit for securing investigation

by the Central Bureau of Investigation (CBI) into the stirring

incident of murderous attack on her husband, snuffing their a

week old marital tie. This is the appellant's second outing

before this forum, she having been relegated earlier to the

High Court, to seek the remedy at the first instance. By the

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decision impugned, the High Court has declined the relief

sought for.

3.We have heard Mr. R. S. Sodhi, learned senior counsel

for the appellant, Ms. V. Mohana, learned senior counsel for

the respondent Nos. 1 & 2, Mr. P.N.Misra, learned senior

counsel for the respondent No. 3 and Mr. Manoj Goel, learned

counsel for the respondent Nos. 4 and 5.

4.The eventful factual backdrop is outlined by the available

pleadings. First the facts as narrated by the appellant. In the

bye-elections to the vacant seat of Allahabad (West) State

Assembly, held in the month of October 2004, the same

having been vacated on the resignation of its incumbent Atiqe

Ahmed, respondent No. 4, he having been elected as a Member

of Parliament from Phoolpur constituency, Allahabad, the

appellant's husband was elected thereto by defeating the

nearest contender Mohd. Ashraf set-up by the Samajwadi

Party. Whereas the appellant’s husband as the candidate of

the Bahujan Samaj Party (for short hereinafter referred to as

“BSP.”) secured 70537 votes against 65713 votes polled by the

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respondent No. 5, the other candidates representing the

Congress and Bhartiya Janta Party fared very poorly in

comparison. According to the appellant, since his defeat, Moh.

Ashraf @ Khalid Azeem the respondent No. 5, along with his

brother Atiqe Ahmed respondent No. 4 as well as the then

Chief Minister of the State had taken the set-back to be a

matter of personal humiliation, defeat and insult so much so

that the respondent No. 4 declared in public that the

candidate elected would not be able to hold the seat for long. It

has been alleged by the appellant that subsequent thereto,

continuous attempts were made to eliminate Raju Pal and that

too with the connivance of the local police and at the

instigation of the respondent No. 4. The appellant has asserted

that as a consequence, the family members and the

supporters of her husband very often were assaulted and

subjected to harassment by arrests by the police and hired

goons engaged by the respondent Nos. 4 and 5 and that their

property and personal belongings were even destroyed.

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5.The appellant alleged as well that the respondent No. 5

was a history sheeter against whom several cases had been

lodged involving the offence of murder, but on account of his

political clout and the following of anti-social elements, no

witness would even dare to give evidence of his nefarious

activities. This was more so, according to the appellant, as he

enjoyed police patronage and protection. The appellant stated

that after the election of her husband as the Member of the

Legislative Assembly on 16.10.2004, three abortive attempts

were made on his life and the properties belonging to him and

his close relatives were ransacked and taken away. The

appellant mentioned that the last attempt on the life of her

husband before the gruesome incident was made on

28.12.2004. Prior thereto amongst others, an attempt was also

made in the month of November, 2004, whereafter Raju Pal

did submit a representation to the Governor of the State on

04.11.2004, following which the said constitutional authority

had directed an inquiry to be made.

Page 5 5

6.According to the appellant though the Governor of the

State had directed that additional security be provided to her

husband, it was not done and instead his existing security

staff was replaced by the State Government. Such was the

animosity as alleged by the appellant, that the State

Government even had withdrawn Raju Pal's official gunners

for whose timely intervention, he survived the attempt on his

life on 28.12.2004 by the hired goons and henchmen of the

respondent Nos. 4 and 5. The appellant has alleged that the

two official gunners of her husband were replaced by others on

the choice of the local police and the desire of the respondent

Nos. 4 and 5 to ensure that Raju Pal does not escape the next

attempt. That in connection with the incident of 28.12.2004,

Raju Pal had lodged a First Information Report with the police

in which he had named these respondents has been stated as

well. This notwithstanding, buckling under political pressure,

the police even deleted the name of respondent No. 5 from the

F.I.R. and made a formality of some investigation.

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7. The appellant has stated that on the date of the incident

i.e. 25.01.2005 at 3 P.M., her husband Raju Pal was travelling

in a vehicle accompanied by his two supporters Sandeep

Yadav and Devi Lal Pal. His two official gunners instead of

accompanying him, and as a part of the conspired plan were

travelling in the second car behind his vehicle. The vehicle in

which the appellant's husband was travelling along with his

friend Singh Sahib and his wife on reaching Amit Deep Maruti

Agency, was intercepted and surrounded by eight persons,

whereupon the respondent No. 5 Mohd. Ashraf shot him in his

head. In course of the shoot-out, Sandeep Yadav, Devi Dayal

Pal and the appellant’s husband were seriously injured and

they eventually succumbed to the injuries. The appellant has

alleged that the official gunners, who were travelling in the car

behind, not only did not intervene or retaliate to save Raju Pal

but had abandoned their vehicle. She has alleged that

reportedly, a conspiracy was hatched in this regard, at the

political level in connivance with the top police officers

including the Station Officer, Dhoomanganj, Shri Parshuram,

C.O. (Police), Civil Lines who were then present at the spot

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alongwith Superintendent of Police (City) & Deputy Inspector

General of Police, Allahabad and Atiqe Ahmad, respondent

No. 4.

8.The appellant has stated as well that the assailants who

were in three different vehicles, left the site of the incident

after resorting to indiscriminate firing, whereupon the persons

present along with the supporters of the injured took Raju Pal

out of the car and tried to rush to the hospital in a

three-wheeler. The appellant has mentioned that as per the

account of the eyewitnesses present and as reported by the

media, the assailants returned and opened indiscriminate fire

on Raju Pal from a close range so as to ensure that he was

dead. That a third attack was made on the injured Raju Pal

from a point plank range before he could reach the hospital,

where he succumbed to his injuries, has been stated in

categorical terms. According to the appellant, though there

were four police stations on the route to the hospital, no police

officer did respond or offer to help the injured or his

companions in their last minute bid to save their lives.

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9.The appellant on the very same date i.e. 25.01.2005

filed the FIR at 4.30 P.M., narrating the incident and also

mentioning clearly, the involvement of the respondent No. 4 as

the brain behind the murder and that the respondent No. 5

had shot Raju Pal in the head. The FIR was registered as

31/2005 dated 25.01.2005 of Dhoomanganj Police Station,

Allahabad, U.P. under Sections 147, 148, 149, 302, 307, 120B

IPC.

10.The incident received rave media coverage as would be

evident from the following extract of a news item of the daily

“Times of India”: (para No. 21of Writ Petition)

“Eyewitnesses said the assailants, who were

about two dozen in numbers, came in two Tata

sumos and opened indiscriminate fire when the

MLA’s vehicle reached the Chaufatka petrol

pump. Pal, who was in the driver’s seat, was hit

several times in the neck, chest and stomach.

His supporters immediately put him in an auto

and rushed him to a private nursing home in

Rain Bagh area. The assailants, however,

continued firing even on the auto to ensure his

death. At the Fire Brigade crossing, the

assailants again opened fire. Just after reaching

the hospital, Pal succumbed to his injuries. Two

police gunners of Pal reportedly escaped from the

scene.

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Though the assailants kept on shooting at Pal on

the entire stretch between Chaufatka and the

nursing home covering four police stations of

Dhoomangang, Cantt. Civil Lines and Kotwali,

the police failed to react.”

11.The appellant has further stated that the body of Raju

Pal was thereafter taken into custody by deploying heavy

police force and thereafter a show of the post mortem was

done hurriedly & secretly at the Swaroop Rani Nehru Hospital

at about 03.15 A.M. in the morning of 25-26/01/2005 without

any information to the appellant or any family member and in

total violation of all norms pertaining to autopsy. The

appellant has stated that purposefully in order to ensure that

the prosecution case is rendered weak, the injuries indicated

in the postmortem report were described in a manner to be

rendered doubtful to have been caused by the two weapons

recovered i.e., one DBBL Gun and one 30 Spring Rifle. The

appellant has thus stated that the charge-sheet that was

eventually submitted was merely an eye-wash to save the

respondent Nos. 4, 5 and their accomplices on one hand and

to rule out the possibility of further investigation by the CBI

and in the process hush up the true facts. According to her,

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the dead body of the Raju Pal was thereafter cremated in the

early morning of 26.01.2005 at Daraganj crematorium, but

neither prior thereto, it was handed to the appellant nor the

ashes were made available to her. As a matter of fact, the

dead body was cremated as if it was an unclaimed body

though the deceased was a sitting Member of the Legislative

Assembly of the State and his identity was well known to all

concerned including the police.

12. Even the representation made by the mother of Raju

Pal on 26.01.2005 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

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the deceased Raju Pal only on 16.1.2005 i.e. hardly a week

before the tragic incident.

13.The appellant has stated as well that having regard to the

perceived involvement of the state administration and the

police in particular, in the perpetration of the crime and their

passive and indifferent disposition in taking steps as required

in law, it was felt by all right minded quarters that

investigation by the C.B.I. was indispensably warranted to

unearth the diabolic plot and identify the persons involved, so

as to ensure an impartial and meaningful enquiry for justice.

In spite of repeated representations, though submitted by the

appellant herself and the then President of the BSP, U.P.

before the Governor, Chief Minister, Chief Secretary etc. of the

State expressing in clear terms that no impartial and

dispassionate probe by the state police was possible in the

facts and circumstances of the case and having regard to the

persons involved, and that the exercise ought to be handed

over to the C.B.I., the same did not meet with any favourable

response.

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14.Instead, as asserted by the appellant, by way of

retaliation to the public outcry against the ruthless and savage

assassination of Raju Pal and his two associates, the police

authorities went berserk in the entire city and they forcibly

trespassed into the houses of such residents, mercilessly

assaulted them, including old women and children, ransacked

their belongings and threatened and intimidated them of dire

consequences if they did not refrain from their agitation for a

C.B.I. inquiry. This high handed action of the police force also

received media coverage, both print and electronic. The writ

petition further discloses that for reasons unfathomable, the

investigation of the incident was soon thereafter transferred

from Station House Officer, Dhoomanganj to a Police Inspector

posted in another police station, in violation of the G.O. No.

DG-7-S (253)/198 dated 21.03.2000.

15.While mentioning that with the installation of the

Samajwadi Party in power, there was an upsurge in the

crimes, the appellant has referred as well to the criminal

antecedents of the respondent No. 5, tracing back to the year

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1979, when he was accused of murdering a contractor in

Bihar. According to her, this respondent has been booked in a

number of cases under Sections 302 and 307 IPC as well as

amongst others, under the Gangster Act, National Security Act

and had been identified also as a member of the interstate

gang in December 2002. Accusing the State Government, the

above notwithstanding, of bestowing its generosity on him as

well as his brother, the appellant has also referred to a list of

20 criminal cases registered against the respondent No. 5 in

which efforts were being made to withdraw the same. The list

of cases, as set-out in the writ petition involves offences inter

alia, under Sections 302, 307, 149, 120B IPC as well as under

the Arms Act and Gangster Act. The appellant has been

candid enough to state in no uncertain terms, that though the

evidence was galore against the respondent Nos. 4 and 5 and

their accomplices in the commission of murder of her

husband, conscious and intentional steps were taken by the

state administration and the police to shield them therefrom

due to political and other influence wielded by them. In

endorsement of this accusation, the appellant has referred to

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as well some excerpts from the writ petition filed by the

Station House Officer Shri Parshuram Singh in Civil Writ

Petition No. 34265/2005 challenging his suspension. This

police officer who was in-charge of the investigation of incident

made serious allegations against the senior police officers in

their attempt to efface evidence against the respondent Nos. 4,

5 and their henchmen in the following terms: (page No. 126 of

Writ Petition)

“25 -That, on 27.01.2005, one of the main

accused Ashraf alias Khalid Azim was arrested

in Lucknow and brought to Allahabad in tight

security two other accused were also arrested

by the petitioner on 30.01.2005, namely

Farhan Ahmed and Ranjeet Pal and a DBBL

Gun and life cartridges were recovered from

their possession. True photo and typed copy of

the F.I.R. and Recovery Memo are collectively

enclosed herewith and marked as Annexure-5,

to this writ petition.

26 - That, the respondent No. 2, Shri Sunil

Kumar Gupta, S.S.P., Allahabad, because of

the reason better known to him, he told to the

petitioner the empty cartridge of thirty spring

rifle not be shown in the G.D. but the petitioner

refused to do so. The respondent No. 2, Shri

Sunil Kumar Gupta, S.S.P., Allahabad, also

told to the petitioner that Ashraf and Atiqe not

be made main accused in the case crime No.

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34/05, Police Station, Dhoomanganj,

Allahabad.

27 - That, on 30.01.2005, on the day of arrest

of Farhan Ahmed and Ranjeet Pal, the

respondent No. 2, Shri Sunil Kumar Gupta,

S.S.P., Allahabad, told to the petitioner these

two accused be kept in curtain (Baparda) do

not produce the accused before media, the

petitioner denied as the accused persons are

local resident and they are publicly known

criminals therefore, no meaning to put them in

curtain.

28-That, the respondent No. 2, Shri Sunil

Kumar Gupta, S.S.P., Allahabad, also, told the

petitioner, the DBBL Gun recovered from the

possession of Farhan Ahmed and Ranjeet Pal

also be changed but the petitioner denied and

showed the same DBBL Gun in the records

which was recovered from their possession.

29 -That, the respondent No. 2, Shri Sunil

Kumar Gupta, S.S.P., Allahabad, has motive to

save the main accused Ashraf and Atiqe Ahmed

from the charge of murder of M.L.A, Raju Pal.

The respondent No. 2, Shri Sunil Kumar

Gupta, S.S.P., Allahabad, handled by the

political leaders of the ruling Samajwadi party

and he was doing in the manner for tempering

the evidence of the murder against the main

accused Ashraf and Atiqe Ahmed as directed by

leaders of ruling Samajwadi Party.

30- But the respondent No. 2, Shri Sunil

Kumar Gupta, S.S.P., Allahabad, suspended

the petitioner in the evening of 30.1.2005,

alleging that the murder of Raju Pal was

occurred and he could not control the

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disturbances after the murder of M.L.A. Raju

Pal.

31 -That, the respondent No. 2, Shri Sunil

Kumar Gupta, S.S.P., Allahabad suspended the

petitioner to help the accused persons as the

respondent No. 2, Shri Sunil Gupta, S.S.P.,

Allahabad, several times told to change the

facts that shows the interest of respondent No.

2, Shri Sunil Kumar Gupta, S.S.P., Allahabad,

in saving accused persons.

32-That, in as much as the investigation which

was being carried out by the petitioner was

transferred to one Inspector, Police Station

Colonelganj Inspector Surendra Singh.

33- That, the one of the main accused Atiqe

Ahmed, Member of Parliament now was

released on bail and he mounted pressure on

respondent No. 2, Shri Sunil Kumar Gupta,

S.S.P., Allahabad, for transferring the

Investigation Officer Inspector Surendra Singh

and transferring the petitioner any other place

ahead from Allahabad.

34- That, the Respondent No. 2, wrote a D.O.

letter on 15.04.2005, to D.I.G. Range, for

transferring the petitioner under suspension

from District Allahabad to any other district,

the respondent No. 2, Shri Sunil Kumar, S.S.P.,

Allahabad, recommended transfer of the

petitioner in the pressure of Atiqe Ahmed,

Member of Parliament who is one of the main

accused in the murder of M.L.A. Raju Pal. True

photo and typed copy of the D.O. letter dated

15.04.2005, of respondent No. 2, is enclosed

herewith and marked as Annexure–6 to this

writ petition.

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35-That, the Colonelganj Inspector

Surendra Singh, who was the Investigating

Officer in this case, was suddenly relieved of all

the responsibilities and has been posted to

Jhansi. At the same time, efforts were on to

ensure the removal of Dhoomanganj Station

Officer the petitioner around the time of the

murder and get him posted to some other

district. The only fault of both these

Investigating Officers was that they did not

succumb to the pressure exerted by their

superiors and went ahead with the

investigation in the right manner _ _ _ _

According to sources, some senior police

officers of the district were putting pressure on

the Investigating Officer to replace the gun with

some other weapon. But the investigator did

not relent and forwarded the recovered pistol

and the gun for a forensic test. The tests

revealed that two of the six empty cartridges,

also found at the scene of crime, had been fired

from the recovered DBBL Gun. All along the

course of the investigation, some senior police

officers had been making efforts to persuade

the investigator to shift the focus of his

investigation from the named accused

Samajwadi Party Member of Parliament Atiqe

Ahmed and his brother Ashraf, and bring into

focus the personal enmity angle of the slain

M.L.A. as the cause behind his murder. The

fact that the police officers of the district were

working under tremendous political pressure

was evident from the way they had been

working.”

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16.On the basis of these foundational facts, the appellant

has prayed for an appropriate writ or a direction in the nature

of mandamus, directing the official respondents to entrust a

fresh investigation into the episode by the C.B.I.

17.As abovestated, the appellant had approached this Court

earlier, seeking its intervention for an appropriate direction for

investigation of the incident by the CBI. This was, to reiterate,

as the appellant nursed a deep rooted impression, in view of

overwhelming sinister background and the sequence of events

culminating in the gruesome murder of her husband, that the

crime had been committed with the tacit support of the police

administration and covert approval of the authorities in power.

In course of the hearing before this Court in the earlier

proceedings afore-mentioned and registered as Writ Petition

(Crl.) Nos. 118-119 of 2005, the learned counsel for the

appellant sought to withdraw the same, so as to enable her to

file an appropriate writ petition before the High Court seeking

the same relief.

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18.By order dated 03.05.2006, the prayer made was allowed,

requiring the appellant to file the writ petition as proposed

before the High Court within a period of two weeks therefrom.

It was observed that if it was so done, till the disposal of the

writ petition, the respondent State would provide necessary

security to the appellant and her mother-in-law (co-appellant

before this Court). Further proceedings of the Trial Court were

ordered to remain stayed till the disposal of the writ petition if

filed within the period of two weeks as permitted and a request

was made to dispose of the same as expeditiously as possible.

In compliance of this order the appellant alone filed a writ

petition which was registered as W.P.(Crl.) No.6209 of 2006

within the time allowed.

19.While the Writ Petition was thus pending, by letter No.-

Home (Police) Section-11, Lucknow

No.2169/6-Pu-11-7-06(writ)/2006 dated 15.05.2007

addressed to the Secretary, Ministry of Personnel, Government

of India, New Delhi, the State Government conveyed its

decision to get the investigation of the case conducted through

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the CBI and requested that the steps be taken accordingly and

to keep the State Government apprised of the action taken.

The consent of the State Government as required under

Section 6 of the Delhi Special Police Establishment Act, 1946

to this effect was also appended to the said letter. As the case

number was wrongly mentioned therein, correction to the said

effect was communicated vide letter

No.Home/Police/Section-11, Lucknow

No.3636/6-Pu-11.05.06 (writ)/2005 dated 14.08.2007.

20.At this stage, in view of this development, a submission

was made on behalf of the State Government before the High

Court, bringing to its notice, the same. Consequently by order

dated 11.07.2007, the High Court being of the view that the

relief sought for in the writ petition had been granted by the

State Government by making a request to the Central

Government to get the case investigated by the CBI, dismissed

the writ petition.

21.As the records would reveal, the appellant on the very

same date i.e. 11.07.2007 filed an application for restoration

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of the writ petition, contending principally that though the

request had been made by the State Government, a decision in

affirmation of the Central Government, agreeing to the

investigation of the case being conducted by the CBI was

awaited and thus the writ petition ought not to have been

dismissed as infructuous. An application was also filed,

requesting the High Court to list the writ petition for

appropriate orders. As the order sheet of the writ proceedings

before the High Court would disclose, the restoration

application was kept pending, awaiting the decision of the

Central Government on the request of the State Government.

The Government of India, Ministry of Personnel and Public

Grievances and Pension (Department of Personnel and

Training) eventually, vide letter No.228/29/2007 - A.V.D Govt.

of India..….1212/PGS/MS/2008 dated 18.01.2008 declined to

get the case investigated by the CBI. The contents of the letter

would disclose that the decision conveyed thereby was

preceded by an inquiry said to have been made by the

concerned Department in consultation with the CBI.

Pendency of the writ petition filed by the appellant, seeking the

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same relief was also referred to as a consideration. It was

mentioned as well, that the State Government had not stated

any other reason to justify the investigation to be conducted

by the CBI. According to the Central Government, the trial of

the case was pending, the proceedings whereof however have

been stayed by the High Court and that there was no

interstate or international ramification of the case so as to

warrant investigation thereof by the CBI.

22.In the wake of the rejection of the request for

investigation of the case by the CBI, the appellant applied for

an amendment of the writ petition, by incorporating the

required facts pertaining to the process related thereto and

also prayed for the annulment of the letter dated 18.01.2008

of the Central Government. In the facts pleaded to that effect,

she averred that during the trial, the respondent Nos. 4 & 5

had threatened the eye witnesses and did impeach the

decision of the Central Government disallowing the request for

investigation of the case by the CBI as mechanical and

prompted by surmises and conjectures. She did furnish as

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well, the particulars of the cases in which the respondent No.4

& 5 had been involved in kidnapping and abduction as well, as

elimination of witnesses who could otherwise withstand their

pressure and displayed courage to disclose the truth in

support of the charge leveled against them. Following the

refusal of the Central Government, the state government,

however shifted the investigation to the CBCID and meanwhile

both the state police and CBCID have submitted chargesheets.

23.Be that as it may, the High Court eventually by the

impugned judgment and order has dismissed the writ petition.

It held the view that if the appellant was not satisfied with the

charge-sheet submitted by the Civil Police as well as the CB

CID and the materials collected by these two agencies in

course of their separate and independent investigation, and is

also of the view that further investigation was required, or that

some additional evidence was to be collected, she was at

liberty to file an application before the Magistrate concerned to

that effect so as to enable the trial court to pass appropriate

orders thereon. It further held that so far as the adduction of

Page 24 24

additional evidence was concerned, the appellant would have

every opportunity to produce the same or ask therefor also by

making an appropriate application at the time of trial.

24.Before adverting to the rival submissions, it would be apt

to notice the pleaded stand of the respondents in substance.

The state government has admitted the incident in which the

appellant’s husband had been assassinated on 25.01.2005

along with two others namely Sandeep Yadav and Devi Dayal

Pal in a shootout. It has not disputed as well, the registration

of the information of the said incident under Sections

148/147/149/302/307 and 120B of the IPC against

respondents No. 4,5 and seven others at Dhoomganj Police

Station. That on 27.01.2005, the state police had arrested

respondent Nos. 4 & 5 in connection of the incident has also

been admitted. The state government has placed on record,

that the state police on the completion of the investigation in

the case has submitted a charge-sheet on 08.04.2005 against

respondent Nos. 4,5 and 9 others together with a list of 27

witnesses.

Page 25 25

25.It disclosed as well that after the submission of the

charge-sheet, the case was committed to the Court of Sessions

and was registered as Session Trial No.24/2006 whereafter,

the trial had begun only to be stayed by this Court on

03.05.2006 vide its order to that effect passed in W.P.(Crl.)

No.118-119 filed by the appellant under Article 32 of the

Constitution of India.

26.It mentioned as well that during the pendency of the writ

petition, filed after the disposal of the proceedings before this

Court, the state government had accorded its sanction for

investigation of this case by the CBI and the communication to

this effect was forwarded to the Ministry of Personnel,

Government of India. That however the Government of India

refused to accede to the request, being of the view that it was

not a fit case for investigation for the CBI was stated as well.

27.According to the state government, on such refusal of the

Central Government, it transferred the investigation of the

case to CB CID which after the completion of the investigation

submitted three charge-sheets on 10.01.2009, 04.04.2009 and

Page 26 26

24.12.2009, adding to the array of accused persons and also

the witnesses in support of the charge.

28.While stoutly denying the allegation of indifference and

apathy to secure an impartial and effective investigation and

instead a tacit support of the offending act, it has asserted,

that having regard to the constricted scope of ordering

investigation of a case by the CBI, no such direction as sought

for is warranted in the facts and circumstances of the case. It

has emphatically asserted that the said police as well as the

CBCID had conducted proper investigations and in the

process, did not spare anyone found involved in the incident.

It has denied in emphatic terms, the involvement of the said

machinery in any conspiracy, its support thereto and

intentional distortions in the investigation to bail out the

culprits of the offence. It pleaded that the dead bodies had

been duly received by the concerned family members and that

cremations of Raju Pal was performed by the one of his first

cousins. It has been stated as well that the postmortem

examination of Raju Pal was undertaken by a panel of doctors

Page 27 27

and that the allegations made by the appellant that the dead

body of her husband was secretly and hastily cremated

without handing over the same to his relations and that the

postmortem examination was deliberately skewed are palpable

falsehood. It also denied the allegation of the appellant that

the respondent No. 4 had sophisticated firearms including

AK-47 and AK-56 had been used in the incident. It disclosed

as well that at the time of his death, there were several

criminal cases registered against Raju Pal including the

offence of murder and attempt to murder and that he had

many enemies who could have shared the motive to liquidate

him.

29.The respondent No. 4 while emphatically denying his

involvement as well as the complicity of his brother in the

incident, in substance accused the appellant of falsely

implicating them as her political rivals and of keeping the

proceedings pending so as to derive political mileage

therefrom. He alleged as well, that the appellant had

deliberately protracted the proceedings inter alia by omitting

Page 28 28

to take necessary steps so as to use the same to promote her

political prospects riding on the sympathy wave induced by

the murder of her husband. The answering respondent has

averred that thereby the appellant has been successful in

getting elected to the State Assembly for two successive terms.

It has been stated further that within a couple of days of the

formation of the Government in the State by the Bahujan

Samaj Party, the State Government did refer the case to the

Central Government for investigation by the CBI and having

failed in its endeavour to do so, they took a conscious

decision to transfer the investigation thereof to the CBCID on

10.12.2008. The answering respondent has emphasized that

the appellant has neither challenged the decision of

transferring the investigation to CBCID nor the charge-sheets

submitted by the said agency on the completion of the said

investigation. According to the answering respondent, the

appellant has also not pointed out any fault or deficiency in

the investigation conducted by the CBCID and that her

insistence for further investigation or reinvestigation by the

CBI is wholly impermissible in law.

Page 29 29

30.The CBI in its turn while reiterating the intervening

developments pertaining to the investigation conducted by the

State Police and the CBCID has pleaded that after a lapse of

10 years from the incident, no purpose would be served by any

investigation by it at this stage. It has averred as well that the

case does not involve any larger public interest or any

interstate or international ramification. That it is already

overburdened with the investigation/inquiry of different cases

entrusted to it by various High Courts and this Court has been

mentioned. It has asserted that having regard to the state of

law laid down by this court and the contingencies in which

investigation by the CBI is called for, the facts and

circumstances of the case do not merit any such direction.

31. In the above contentious premise, Mr. Sodhi has

assiduously argued, that the run up of facts leading to the

merciless murder of the appellant’s husband, the

conspicuous impassive response of the state machinery to

ensure his safety and security as well as the shoddy and

purported investigation by the state police as a casual

Page 30 30

completion of routine formalities, warrant a fair and impartial

probe by the CBI. The learned senior counsel has urged that

the onetime readiness of the State Government to handover

the investigation to the CBI unambiguously reflects its

satisfaction as well of such essentiality to espouse the cause of

even handed justice. According to him, the rejection of the

request of the state government to this effect by the Central

Government is wholly mechanical and without any application

of mind to the factors relevant and germane and thus the

decision to that effect is liable to be adjudged illegal, null and

void. Not only at the point of time when the Central

Government refused to accede to the request for investigation

by the CBI, the Writ Petition filed by the Appellant before the

High Court had been closed, there is nothing on record to even

suggest that any independent endeavour had been made by

the Central Government to make a dispassionate evaluation of

the overall facts thus rendering its decision arbitrary unfair

and unjust. Mr. Sodhi has maintained that not only the

manner in which the daring offence was committed was

shocking to every right minded person of the society; it

Page 31 31

signalled as well, an apparent collapse of the administrative

machinery of a democracy committed to the solemn promise of

guaranteeing protection of life and liberty of its citizens. The

learned senior counsel argued that the cruel and barbaric

crime having been committed in the broad day light in public

view, there are still several eye-witnesses available who are

genuinely willing to testify about the same to bring the real

culprits to book and thus in the interest of fair and impartial

investigation and to obviate any possibility of miscarriage of

justice, it is imperative to entrust the probe to the CBI.

According to Mr. Sodhi, the testimony of the witnesses so far

examined at the trial clearly demonstrate their hostile and

non-cooperative approach which per se suggests that they

must have been won over in between, leaving a bleak chance

for the prosecution to succeed. This unmistakably affirms the

apprehension of the appellant vis-à-vis quality and

authenticity of the investigation undertaken by the state police

and the CBCID, he urged.

Page 32 32

32.The learned senior counsel maintained that if the

formalities of the trial with the materials so far collected in the

investigation are allowed to be completed being unmindful of

the consequences thereof, it would be a travesty of justice and

a servile subjugation of the process of law to the minatory

reflexes of the daring and audacious violators of law.

Reiterating the imputations made in the writ petition vis-à-vis

the role of the state instrumentalities and the police in

particular, as well as the culpability of respondent Nos. 4 & 5,

Mr. Sodhi has argued that entrustment of the investigation to

the CBI would not prejudice the respondents in any manner

and that it would secure the obligatory requirement of a fair,

effective and impartial inquisition, more particularly when

witnesses of the incident are still available, but need to be

appropriately identified, interrogated and assured of their

safety to disclose the truth. Mr. Sodhi has argued that it is a

fit case for the judiciary to intervene both in the individual as

well as social perspectives in order to discourage such

villainous outrages and sustain a just and law abiding

citizenry. He rested his submissions on the following

Page 33 33

decisions: Zahira Habibulla H. Sheikh and Anr. vs. State

of Gujarat and Ors. (2004)4 SCC 158, State of West Bengal

and others vs. Committee for Protection of Democratic

Rights, West Bengal and others (2010)3 SCC 571,

Babubhai vs. State of Gujarat and others (2010)12 SCC

254, Mohd. Hussain alias Julfikar Ali vs. State

(Government of NCT of Delhi) (2012)9 SCC 408, Bharati

Tamang vs. Union of India and others (2013)15 SCC 578.

33.Mr. Misra, learned senior counsel representing the State

not only dismissed emphatically the allegations of tacit

involvement of the administration and the police in the design

and execution of the offence as alleged in order to eliminate

the appellant’s husband, he argued as well, that the decision

to handover the investigation of the case to the CBI does not

only neuter such accusation, but also establish irrefutably the

bona fide of the state government.

34.The learned senior counsel pointed out that in absence of

any allegation whatsoever of the appellant against the

investigation conducted by the CBCID, her persistent requests

Page 34 34

for transferring the investigation to the CBI is fallacious and

unsustainable in law. Mr. Misra has maintained that not only

the insistence for the transfer of the investigation to the CBI,

in the face of successive probes made by the state police and

the CBCID is uncalled for in absence of any deficiency or

defect decipherable therein, it is impermissible as well, at this

belated stage. Mr. Misra has argued that even otherwise such

a transfer of investigation even if allowed, it would be fatal for

the prosecution as at this distant point of time not only the

witnesses would be unavailable and even if available they

would decline to testify. The learned senior counsel has urged

as well that as the trial is pending and the respondent Nos. 4

& 5 and other accused persons are subjected thereto, the

relief sought for by the appellant is prematured as well.

35.Mr. Goel representing respondent Nos. 4 & 5 while

supplementing the assertions made on behalf of the State has

submitted that the introduction of a fresh investigating

agency, at this stage is not only impermissible in law but also

would have the potential of protracting the trial further, in

Page 35 35

violation of the fundamental right to life of his respondents as

guaranteed by Article 21 of the Constitution of India.

Reiterating that the facts do not demonstrate a faulty or

incomplete investigation by either the state police or the

CBCID, the learned counsel has maintained that the appellant

has resorted to this delaying tactics to promote her election

prospects and political future. While underlining that the writ

petition filed by the Investigating Officer Parsuram Singh

alleging pressure on him by his higher ups to misdirect the

investigation, has meanwhile been dismissed on merits, the

learned senior counsel argued that the averments even if

accepted to be true, did in fact vouchsafe the fairness and

impartiality of the investigation conducted by the state police.

Mr. Goel has urged that as the trial is pending, any

intervention of this Court to induct another investigating

agency on the basis of deductions made from the testimony of

hostile witnesses, would amount to unwarranted interference

with the trial which would be highly prejudicial to the parties.

Reiterating that the present initiative of the appellant is clearly

a political vendetta against the private respondents being her

Page 36 36

rivals, the learned counsel has asserted that there is neither

any exceptional circumstance nor any justifiable reason in law

to direct a reinvestigation by the CBI when the trial is

underway. He dismissed the authorities cited on behalf of the

appellant as inapplicable to the facts of the case, being

rendered in the textual facts disclosing vitiation of trials. The

following decisions were cited to buttress the above pleas:

(i)State of West Bengal and others vs. Sampat Lal and

others (1985) 1 SCC 317;

(ii)Vineet Narain and others vs. Union of India and

another (1996) 2 SCC 199

(iii) Union of India and others vs. Sushil Kumar Modi

and others (1998) 8 SCC 661,

(iv)Common Cause, A Registered Society vs. Unon of

India and others (1999)6SCC 667

(v)Secretary, Minor Irrigation & Rural Engineering

Services, U.P. and Others vs. Sahngoo Ram Arya and

Anr. (2002)5 SCC 521

(vi) State of West Bengal and Ors. vs. Committee for

Protection of Democratic Rights, West Bengal and

Ors. (supra)

(vii) Disha vs. State of Gujarat & Ors. (2011)13 SCC 337

Page 37 37

(viii)K.V. Rajendran vs. Superintendent of Police, CBCID

South Zone, Chennai and Ors. (2013) 12 SCC 480

(ix)Hussainara Khatoon & others vs. Home Secretary,

State of Bihar (1980)1 SCC 81

(x)Abdul Rehman Antulay and others vs. R.S. Nayak

and another (1992)1SCC 225

(xi)P. Ramachandra Rao vs. State of Karnataka

(2002)4SCC 578

(xii)Vakil Prasad Singh vs. State of Bihar (2009)3SCC 355

(xiii)Kashmeri Devi vs. Delhi Administration and another

1988 (Suppl.) SCC 482

(xiv)Gudalure M.J. Cherian and others vs. Union of India

and others (1992) 1 SCC 397

(xv)Punjab and Haryana High Court Bar Association,

Chandigarh through its Secretary vs. State of

Punjab and others (1994)1SCC 616

(xvi)Inder Singh vs. State of Punjab and others

(1994)6SCC 275

(xvii)Rubabbuddin Sheikh vs. State of Gujarat and others

(2010) 2 SCC 200

36.Ms. Mohana representing the Union of India endorsed its

decision of not entrusting the investigation to the CBI and

contended that the facts and circumstances did not

convincibly demonstrate any flaw in the investigation

Page 38 38

undertaken by the state police or the CBCID. In support of

this assertion, she relied upon the decisions of this Court in

Committee for Protection of Democratic Rights (supra),

K. Saravanan Karuppasamy and another vs. State of

Tamil Nadu and Ors. (2014) (10) SCC 406, Sudipta Lenka

vs. State of Odisha and Others. (2014) 11 SCC 527.

37. We have extended our anxious consideration to the

competing pleadings and the arguments advanced. The gory

incident in which the appellant’s husband was brutally

gunned down in a public place is indeed harrowing and

alarmingly distressful. Not only the daring act in the broad

day light is condemnable, it sent shock waves among the living

community, wrecking the temper and rhythm of social life and

created a fear psychosis and a scary feeling of lack of security

in all concerned. It is a matter of record that at the relevant

time, the appellant’s husband was a sitting member of the

State Legislative Assembly, having defeated the respondent No.

5, in the bye-elections held a few months prior to his murder.

That at that time, the respondent No. 4, brother of respondent

Page 39 39

No. 5 was a member of the Parliament is also an admitted fact.

In the FIR filed by the appellant soon after the incident, she

named the respondent No. 5 to be the assailant who had shot

Raju Pal in the head, being accompanied by others. She has

alleged therein that respondent No. 4 was the brain behind the

operation and thus was involved in the conspiracy to eliminate

her husband. As referred to hereinabove, it has been averred

by her as well that soon after the bye-elections in which her

husband had been elected, a number of unsuccessful

attempts had been made on him for which he genuinely

sustained an apprehension regarding his safety and security.

That he had repeatedly aired his apprehension to that effect

and had sought remedial measures before the appropriate

authorities, has been pleaded as well. Immediately after the

assassination of her husband, the appellant as well as the

President of the Bahujan Samaj Party, to which he belonged,

also had submitted a spate of representations before the

Governor, Chief Minister, Chief Secretary and other authorities

of the State requesting for entrustment of the investigation of

the case to the CBI as the state police, as perceived by them,

Page 40 40

was found to be patently partisan in their initiatives and

approach in connection therewith. The allegations by the

appellant about laconical autopsy of the dead body without

any notice to her or any other family member of the

deceased, refusal to return the dead body to them and hasty

and secret cremation thereof to remove the otherwise tell tale

clues to identify the assassins have been candidly made. As

these imputations have been denied by the respondents in

their pleadings, we refrain from further dilating thereon.

Similarly, both sides have also alleged registration and

pendency of criminal cases against the appellant’s husband,

respondents No. 4 and 5 involving offences amongst others of

murder, attempt to murder etc.

38.Noticeably, however, the appellant since after the

murder of her husband had been persistently appealing for

investigation by any impartial agency i.e. CBI, expressing

without reservation, her doubts about the genuineness and

bona fide of the probe being conducted by the state police.

She has even alleged the involvement of the state

Page 41 41

administration and the police in the conspiracy to eliminate

her husband and to have remained a mute and inert onlooker

at the time of and after the open diabolic and barbaric

assassination of her husband. It is a matter of record that at

the time of the incident, the Samajwadi Party was in power.

39.It was in this backdrop of events, that the appellant being

appalled and exasperated by the perceived failure of the state

authorities to affirmatively respond to her request for

entrusting the investigation to the CBI and the casual

measurers of the state police in that regard that she

approached this Court with an application under Article 32 of

the Constitution of India for its remedial intervention. By

order dated 3.5.2006, however, this Court, as prayed for on

her behalf, did permit her to file a writ petition before the

High Court seeking an appropriate writ or a direction for

transferring the investigation of the case to the CBI. To

reiterate, during the pendency of the writ petition that was

filed within the time allowed by this Court, on 15.5.2007, the

State Government (by then the Bahujan Samaj Party had

Page 42 42

come to power) decided to hand over the investigation to the

CBI and communicated its decision to the Central Government

for the needful. The High Court, being apprised of this

development, the writ petition was disposed of on 11.7.2007

as in its comprehension, the relief sought for by the appellant

had been granted in view of this decision of the state

government. As the response of the Central Government was

awaited, the appellant on the same very date filed an

application for restoration of the writ petition and as the

records reveal, the said application was kept pending by the

High Court and after the refusal of the Central Government to

accede to the request made by the state government on

18.1.2008, the writ petition was finally disposed of on merits

by the decision impugned hereunder.

40.Though a period of seven years intervened, a perusal of

the record of the writ proceedings, however, does not

demonstrate any deliberate inaction or laches on the part of

the appellant to enter a finding of intentional delay on her part

Page 43 43

to procrastinate the same for extracting any benefit to her

therefrom.

41.This Court, while disposing of the earlier writ petition

being W.P. (Crl.) Nos. 118-119 of 2005 on 3.5.2006 had stayed

the trial of the case which by then had commenced following

the submission of the charge-sheet by the state police on

8.4.2005. During the pendency of the writ petition before the

High Court and consequent upon the refusal by the Central

Government to refer the investigation to the CBI, the state

government entrusted the exercise to CBCID, which on

completion of the drill submitted three charge-sheets on

10.1.2009, 4.4.2009 and 24.12.2009. A conjoint reading of

the charge-sheets submitted by the two investigating agencies

would thus reveal that along with respondent Nos. 4 and 5,

several other persons have been arraigned as accused adding

to the list of those challenged by the state police. Further,

CBCID has also added to the list of witnesses in its

charge-sheets. Corresponding to these final reports submitted

by the investigating agencies, Sessions Trial Case Nos.

Page 44 44

13/2006, 14/2006, 15/2006 and 24/2006 are pending for

analogous trial, the proceedings whereof being presently

stayed pursuant to the order dated 3.5.2006 of this Court in

W.P. (Crl.) Nos. 118-119 of 2005 and thereafter the order

dated 13.2.2015 passed in the present appeal.

42.In the course of the arguments, attention of this Court

has been drawn to the additional documents filed on behalf of

the appellant pertaining to the trial so far held and also the

parallel criminal cases registered on the accusation of threats

being extended to the eye witnesses of the incident. On a

cursory perusal of the testimony of witnesses so far examined

at the trial, it prima facie appears therefrom that though all of

them were present at that time at the spot when the offence

was committed, none of them has identified the accused

persons standing trial including the respondent Nos. 4 and 5

to be/or among the assailants. Some of the witnesses, who

were also injured in the incident, after being declared hostile

by the prosecution, have even resiled from their statements

under Section 161 of the Code made before the police.

Page 45 45

Significantly, however the witnesses have admitted the

occurrence in which the appellant's husband had been shot

at, following which he had succumbed to the injuries

sustained.

43.The additional documents also include a judgment

rendered by the trial court on 2.11.2011 in Sessions Trial No.

749 of 2009, State vs. Ram Chandra Yadav @ Fauji registered

on the complaint filed by one Mahendra Patel @ Budhi Lal

Patel, who in his cross-examination, retraced from the charge

levelled by him against respondent No. 4 and his companions

of having threatened and assaulted him so as to pressurize

him to change his statement made before the police, lest he

and his family be murdered. The complainant Mahendra Patel

also was an eye witness to the incident of 25.1.2005 and had

been driving the Scorpio vehicle which was following the one

in which Raju Pal was travelling. The trial court acquitted the

accused mainly in view of the retraction of the statement of

the complainant and lack of evidence in support of the charge.

Having regard to the present stage of the trial, for obvious

Page 46 46

reasons, we do not wish to offer any comment on any aspect

relatable thereto. It is however noteworthy that some other

witnesses of the prosecution including the appellant are yet to

be examined by the prosecution.

44.Be that as it may, the issue that demands to be

addressed is the necessity or otherwise of further investigation

or reinvestigation by the CBI in view of the overall conspectus

of facts and the state of law. Admittedly, more than a decade

has elapsed in between, and in the interregnum, successive

investigations have been conducted by the state police and

CBCID, following which four charge-sheets have been

submitted arraigning respondent Nos. 4 and 5 and others as

accused with the supporting material gathered in course of the

probe to prove the charge levelled against them. It is

noticeable as well that the appellant as well has not

highlighted any defect, omission or deficiency in the

investigation conducted by the CBCID, likely to adversely

impact upon the outcome of the trial therefor.

Page 47 47

45.These notwithstanding, it would still be, in our opinion,

imperative to examine as to whether for doing complete justice

and enforcing the fundamental rights guaranteed by the

Constitution, the relief of entrustment of the investigation of

the case again to the CBI is grantable or not on its own

merits. This is chiefly, in view of the intrepid, audacious and

fiendish intrusion of human right by the assassins in broad

day light at a public place, by defiantly violating all canons of

law and making a mockery of the administrative regime

entrusted with the responsibility to maintain an orderly

society. The terrorising impact of this incident and the

barbaric manner of execution of the offence is also a factor

which impels this Court to undertake such a scrutiny in the

interest of public safety, a paramount duty entrusted to all the

institutions of governance of our democratic polity. This is

more so, where a grisly and intimidatory crime impacting upon

the public confidence in the justice delivery system as a whole

is involved, so as to ensure that such outrageous do not go

incautiously, unfathomed and unpunished.

Page 48 48

46.The authorities cited at the Bar present the precedential

spectrum of the curial jurisprudence in the context of

entrustment of investigation to an instrumentality other than

the local/state police agencies.

47.In Zahira Habibulla H. Sheikh (supra), commonly

adverted to as “Best Bakery Case” on the theme, the aspects

of perfunctory and partisan role of the investigating agency as

well as improper conduct of the trial involved by the public

prosecutor surfaced for scrutiny. Though the trial was over

resulting in acquittal of the accused persons mainly as the

purported eye-witnesses had resiled from the statements made

by them under Section 161 Cr.P.C. (hereinafter to be referred

to as “the Code”) during the investigation coupled with faulty

and biased investigation and laconical trial, this Court

responded to the request for a fresh trial made by the State

and one of the eye-witnesses, Zahira. It was pleaded inter alia

that when a large number of witnesses have turned hostile, it

ought to raise a reasonable suspicion that they were being

threatened or coerced. Apart from alleging that the

Page 49 49

prosecution did not take steps to protect the star witnesses, it

was contended as well that the trial court had failed to

exercise its power under Section 311 of the Code to recall and

reexamine them as their testimony was essential to unearth

the truth and record a just decision in the case.

48.The casual decision of the public prosecutor to drop a

material witness, a measure approved by the trial court also

came to be criticized. The lapse of non-examination of the

injured eye-witnesses, who were kept away from the trial, was

also highlighted. It was alleged that the partisan witnesses

had been examined to favour the accused persons resulting in

a denial of fair trial.

49.This Court in the above disquieting backdrop, did

underline that discovery, vindication and establishment of

truth were the avowed purposes underlying the existence of

the courts of justice. Apart from indicating that the principles

of a fair trial permeate the common law in both civil and

criminal contexts, this Court underscored the necessity of a

delicate judicial balancing of the competing interests in a

Page 50 50

criminal trial - the interests of the accused and the public and

to a great extent that too of the victim, at the same time not

losing the sight of public interest involved in the prosecution of

persons who commit offences.

50.It was propounded that in a criminal case, the fate of the

proceedings cannot always be left entirely in the hands of the

parties, crimes being public wrongs in breach and violation of

public rights and duties, which affect the whole community

and are harmful to the society in general. That the concept of

fair trial entails the triangulation of the interest of the

accused, the victim, society and that the community acts

through the state and the prosecuting agency was

authoritatively stated. This Court observed that the interests

of the society are not to be treated completely with disdain and

as persona non grata. It was remarked as well that due

administration of justice is always viewed as a continuous

process, not confined to the determination of a particular case

so much so that a court must cease to be a mute spectator

and a mere recording machine but become a participant in the

Page 51 51

trial evincing intelligence and active interest and elicit all

relevant materials necessary for reaching the correct

conclusion, to find out the truth and administer justice with

fairness and impartiality both to the parties and to the

community.

51.While highlighting the courts’ overriding duty to maintain

public confidence in the administration of justice, it was

enunciated as well, that they cannot turn a blind eye to

vexatious and oppressive conduct, discernable in relation to

the proceedings. That the principles of rule of law and due

process are closely linked with human rights protection,

guaranteeing a fair trial, primarily aimed at ascertaining the

truth, was stated. It was held as well, that the society at large

and the victims or their family members and relatives have an

inbuilt right to be dealt fairly in a criminal trial and the denial

thereof is as much injustice to the accused as to the victim

and the society. Dwelling upon the uncompromising

significance and the worth of witnesses in the perspective of a

Page 52 52

fair trial, the following revealing comments of Bentham were

extracted in paragraph 41:

“41. “Witnesses”, as Bentham said: are the eyes and

ears of justice. Hence, the importance and primacy

of the quality of trial process. If the witness himself

is incapacitated from acting as eyes and ears of

justice, the trial gets putrefied and paralysed, and it

no longer can constitute a fair trial. The

incapacitation may be due to several factors like the

witness being not in a position for reasons beyond

control to speak the truth in the court or due to

negligence or ignorance or some corrupt collusion.

Time has become ripe to act on account of

numerous experiences faced by courts on account

of frequent turning of witnesses as hostile, either

due to threats, coercion, lures and monetary

considerations at the instance of those in power,

their henchmen and hirelings, political count and

patronage and innumerable other corrupt practices

ingeniously adopted to smother and stifle truth and

realities coming out to surface rendering truth and

justice to become ultimate causalities. Broader

public and societal interests require that the victims

of the crime who are not ordinarily parties to

prosecution and the interests of State represented

by their prosecuting agencies do not suffer even in

slot process but irreversibly and irretrievably, which

if allowed would undermine and destroy public

confidence in the administration of justice, which

may ultimately pave way for anarchy, oppression

and injustice resulting in complete breakdown and

collapse of the edifice of rule of law, enshrined and

jealously guarded and protected by the

Constitution. There comes the need for protecting

the witness. Time has come when serious and

undiluted thoughts are to be bestowed for

Page 53 53

protecting witnesses so that ultimate truth is

presented before the court and justice triumphs and

that the trial is not reduced to a mockery. The

State has a definite role to play in protecting the

witnesses, to start with at least in sensitive cases

involving those in power, who have political

patronage and could wield muscle and money

power, to avert the trial getting tainted and derailed

and truth becoming a causality. As a protector of

its citizens it has to ensure that during a trial in

court the witness could safely depose the truth

without any fear of being haunted by those against

whom he has deposed.”

52.It was underlined that if ultimately the truth is to be

arrived at, the eyes and ears of justice have to be protected so

that the interest of justice do not get incapacitated in the

sense of making the proceedings before the courts, mere mock

trials. While elucidating that a court ought to exercise its

powers under Section 311 of the Code and Section 165 of the

Evidence Act judicially and with circumspection, it was held

that such invocation ought to be only to subserve the cause of

justice and the public interest by eliciting evidence in aid of a

just decision and to uphold the truth. It was proclaimed that

though justice is depicted to be blindfolded, it is only a veil not

to see who the party before it is, while pronouncing judgment

Page 54 54

on the cause brought before it by enforcing the law and

administer justice and not to ignore or turn the attention away

from the truth of the cause or the lis before it, in disregard of

its duty to prevent miscarriage of justice. That any

indifference, inaction or lethargy displayed in protecting the

right of an ordinary citizen, more particularly when a

grievance is expressed against the mighty administration,

would erode the public faith in the judicial system was

underlined. It was highlighted that the courts exist to do

justice to the persons who are affected and therefore they

cannot afford to get swayed by the abstract technicalities and

close their eyes to the factors which need to be positively

probed and noticed. The following statement in Jennison vs.

Baker, (1972) 1 All ER 997 was recalled:

“The law should not be seen to sit by limply, while

those who defy it go free, and those who seek its

protection lose hope.”

53.It was declared that the courts have to ensure that the

accused persons are punished and that the might or the

authority of the state is not used to shield themselves and

Page 55 55

their men and 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. That if any

deficiency in investigation or prosecution is visible or can be

perceived by lifting the veil covering such deficiency, the

courts have to deal with the same with an iron hand

appropriately within the framework of law was underlined.

54.Referring to its earlier decision in Karnel Singh vs.

State of M.P. (1995) 5 SCC 518, it was reiterated that in a

case of a defective investigation, the court has to be

circumspect in evaluating the evidence and may have to adopt

an active and analytical role to ensure that truth is found by

having recourse to Section 311 of the Code or at a later stage

also resorting to Section 391 instead of throwing hands in the

air in despair. It recalled as well its observations in Ram

Bihari Yadav v. State of Bihar & others, (1998) 4 SCC 517

that the courts are installed for justice oriented mission and

thus if a negligent investigation or omissions or lapses due to

perfunctory investigation are not effectively rectified, the faith

Page 56 56

and confidence of the people would be shaken in the law

enforcing agency and also in the institution devised for

administration of justice.

55.Though, as referred to hereinabove, trial was completed

and the accused persons were acquitted, in the textual facts,

this Court did direct retrial as prayed for, to avoid subversion

of the justice delivery system and ordered the investigating

agency or those supervising the investigation to act in terms of

Section 173(8) of the Code as the circumstances would so

warrant.

56.The observations and the propositions, though made in

the backdrop of a request for retrial, those pertaining to the

essentiality of a fair and complete investigation and trial as

well as the solemn duty of the courts to ensure the

discernment of truth to administer even handed justice as

institutions of trust of public faith and confidence, are in our

estimate, of universal application and binding effect,

transcending the factual settings of a case. An adverse

deduction vis-à-vis the quality of investigation and/a trial

Page 57 57

trivializing the cause of justice, is however the essential

pre-requisite, for such remedial intervention by way of further

investigation, reinvestigation, additional evidence, retrial etc.

to be made objectively but assuredly for the furtherance of the

salutary objectives of the justice dispensing system as

contemplated in law, it being of paramount pre-eminence.

57.This Court in Mohd. Hussain @ Julifikar Ali (supra)

was also seized of a situation imploring for a retrial following

the termination of the prosecution principally on account of

delay, when juxtaposed to the demand for justice in cases

involving grave crimes affecting the society at large. The

offence involved was under Sections 302/307/120B IPC and

Sections 3 and 4 of the Explosive Substances Act, 1908 and

had perpetrated an explosion in a passenger carrying bus.

This Court amongst others recalled its observations in Kartar

Singh vs. State of Punjab (1994) 3 SCC 569 that while

dispensing justice, the courts should keep in mind not only

the liberty of the accused but also the interest of the victim

and their near and dear ones and above all the collective

Page 58 58

interest of the community and the safety of the nation, so that

the public, may not lose faith in the system of judicial

administration and indulge in private retribution. It however

also took note of its ruling in State of M.P. vs. Bhooraji and

others (2001) 7 SCC 679 that a de novo trial should be the

last resort and that too only when such a course becomes

desperately indispensable and should be limited to the

extreme exigency to avert a failure of justice. It noted with

approval the observation in P. Ramachandra Rao (supra)

that it is neither advisable nor feasible nor judicially

permissible to draw or prescribe an outer limit for conclusion

of all criminal proceedings and that the criminal courts are not

obliged to terminate the trial or criminal proceedings merely

on account of lapse of time. That such time limits cannot and

will not by themselves be treated by any court as a bar to

further continuance of the trial or proceedings or to terminate

the same and acquit or discharge the accused, was

emphatically underlined. Reference too was made of the

decision in Zahira Habibulla H. Sheikh (supra).

Page 59 59

58.Vis-à-vis the notions of ‘speedy trial’ and ‘fair trial’ as the

integral constituents of Article 21 of the Constitution of India,

it was observed that there was a qualitative difference between

the right to speedy trial and the right of the accused to fair

trial. While pointing out that unlike the accused’s right of fair

trial, the deprivation of the right to speedy trial does not per se

prejudice the accused in defending himself, it was proclaimed

that mere lapse of several years since the commencement of

prosecution by itself, would not justify the discontinuance of

prosecution or dismissal of the indictment. It was stated in no

uncertain terms, that the factors concerning the accused’s

right to speedy trial have to be counterpoised with the impact

of the crime on the society and the confidence of the people in

the judicial system. It was noted that speedy trial secures

rights to an accused but it does not preclude the rights of

public justice. It was exposited that the nature and gravity of

the crime, persons involved, social impact and societal needs

must be weighed along with the right of the accused to speedy

trial and if the balance tilts in favour of the former, the long

delay in conclusion of trial should not operate against the

Page 60 60

continuation of the prosecution but if the right of the accused

in the facts and circumstances of the case and the exigencies

or situation leans the balance in his favour, the prosecution

may be brought to end. It was held that the guiding factor for

a retrial essentially has to be the demand of justice. It was

emphasized that while protecting the right of an accused to

fair trial and due process of law, the interest of the public at

large who seek protection of law ought not to be altogether

overlooked so much so, that it results in loss of hope in the

legal system. Retrial in the facts of the case was ordered.

59.The content and scope of the power under Article 226 of

the Constitution of India to direct investigation by the CBI in a

cognizable offence, alleged to have taken place within the

territorial jurisdiction of the State, without the consent of the

State Government fell for scrutiny of this Court in Committee

for Protection of Democratic Rights (supra).

60.While examining the issue in the context of the power of

judicial review as embedded in the constitutional scheme, it

was held that no Act of Parliament could exclude or curtail the

Page 61 61

powers of the constitutional courts in that regard. Reiterating,

that the power of judicial review, is an integral part of the

basic structure of the Constitution, it was underlined that the

same was essential to give a pragmatic content to the

objectives of the Constitution embodied in Part III and other

parts thereof. In elaboration, it was held that Article 21 of the

Constitution not only takes within its fold, the enforcement of

the rights of the accused but also the rights of the victim. It

was predicated that the State has a duty to enforce the human

rights of the citizens providing for fair and impartial

investigation, against any person accused of commission of

any cognizable offence. Referring to Section 6 of the Delhi

Special Police Establishment Act, 1946, it was ruled that any

restriction imposed thereby could not be construed to be one

on the powers of the constitutional courts and thus cannot be

taken away or curtailed or diluted thereby. While proclaiming

the supervening powers of the High Court under Article 226 of

the Constitution of India to direct, entrustment of the

investigation to the CBI as in the case involved, this Court

sounded a caveat as well that the very plentitude of such

Page 62 62

power inheres a great caution in its exercise and though no

inflexible guidelines can be laid down in that regard, the same

has to be invoked sparingly, cautiously and in exceptional

situation when it becomes necessary to provide credibility and

to instill confidence in the investigation 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. (emphasis supplied)

61.The facts in Bharati Tamang (supra) seeking de novo

investigation, present somewhat an identical fact situation.

The appellant’s husband, President of a political party was

brutally murdered in public view and in the presence of police

and security personnel by the supporters of the rival party.

The investigation into the sordid incident had been completed.

Alleging that the probe initially held by the state police and

thereafter by the CID and by the CBI were faulty, the prayer

for de novo inquisition was made. Imputation of attempts by

the prosecution to suppress the truth in spite of the fact that

the assailants were identified and named in the FIR and that

Page 63 63

the incident was in effectuation of a deep rooted conspiracy

and preceded by previous threats were made. The CBI in its

pleadings, inter alia, cited,

(i)prevailing law and order situation in the town;

(ii)abscondence of most of the accused persons;

(iii)murder of its informants;

(iv)fear psychosis in the locality and resultant want of

support from the local public

as hindrances to its investigation.

62.On behalf of the appellant, accusation of tardy

prosecution of the case, and free and open movement of the

key accused persons in the city avoiding arrest were made as

well. The plea of the impleaded accused persons that the

appellant after the demise of her husband had initiated the

writ proceedings for political gain was rejected. Their

contention based on Section 319 of the Code that in course of

the trial, on availability of sufficient evidence, any person not

being an accused could be ordered to be tried, was also

negated. The propositions expounded in Zahira Habibulla H.

Sheikh (supra) qua the duty of the court to ensure fair

investigation by remedying the deficiencies and defaults therein

Page 64 64

so as to bring forth full and material facts to prevent

miscarriage of justice were reiterated. It was concluded that

when the courts find extra ordinary or exceptional

circumstances rendering reinvestigation imperative, in such

eventualities even de novo investigation can be ordered. While

ruling that in case of discernable deficiency in investigation or

prosecution, the courts have to deal with the same with iron

hand appropriately with the framework of law, it was

underlined that in appropriate cases even, if charge-sheet was

filed, it was open for the High Court and also this Court to

direct investigation of the case to be handed over to CBI or to

any other agency or to direct investigation de novo in order to

do complete justice, in the facts of the case.

63.Noticing that certain transcripts of some conversations

relating to the incident intercepted by the CBI were awaiting

analysis by the forensic agency as a part of the investigation,

this Court in the ultimate, transferred the case beyond the

territorial limits of the district involved and directed that the

probe be carried out by the CBI to be monitored by its Joint

Page 65 65

Director as named. It was ordered that the CBI would ensure

that all required evidence is gathered by leaving no stone

unturned, so that all accused involved in the offence are

brought for trial to be dealt with in accordance with law. The

trial that had meanwhile commenced was kept in abeyance

pending conclusion of the further investigation by the CBI and

the submission of report before the transferred court as

ordered. Not only in issuing these directions this Court

revisited the imperatives bearing on the duty of the Court to

ensure that criminal prosecution is carried out effectively and

the perpetrators of the crime are duly punished by the

appropriate court of law, it noticed as well some of the factual

features of the case namely;

(i iThe deceased at his death was the President of a

political party.

(iiiThere was a deep rooted rivalry between his party

and another party.

(iiiiThe deceased had organized a meeting of his party

on the date of the incident.

Page 66 66

(iviPolice personnel were present at the place of the

occurrence. Though present, no report thereof

was registered immediately thereafter.

(viWide coverage of the incident by the media.

(viiAvailability of the transcripts of the intercepted

conversations of some of the accused persons and

the office bearers of the rival political party.

64.This Court in Babubhai (supra) while examining the

scope of Section 173(8) of the Code, did recall its observations

in Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1,

that it is not only the responsibility of the investigating agency

but as well as of the courts to ensure, that investigation is fair

and does not in any way hamper the freedom of an individual

except in accordance with law. It underlined, that the equally

enforceable canon of criminal law is that high responsibility

lies upon the investigating agency, not to conduct an

investigation in a tainted and unfair manner and that such a

drill should not prima facie be indicative of a biased mind and

every effort should be made to bring the guilty to law de hors

his position and influence in the society as nobody stands

Page 67 67

above law. It propounded that the word “ordinarily” applied

under Section 173(8) of the Code, did attest that if the

investigation is unfair and deliberately incomplete and has

been done in a manner with an object of helping a party, the

court may direct normally for further investigation, and not for

reinvestigation. It was however added as a sequiter that in

exceptional circumstances, the court in order to prevent the

miscarriage of criminal justice, and if it is considered

necessary, may direct for de novo investigation as well. It was

observed that if an investigation has not been conducted fairly,

the resultant charge sheet would be invalid. It was held as

well, that such investigation would ultimately prove to be a

precursor of miscarriage of criminal justice and the court in

such a contingency would be left to guess or conjecture, as the

whole truth would not be forthcoming to it. It was held that

fair investigation is a part of the constitutional rights

guaranteed under Articles 20 and 21 of the Constitution of

India and thus the investigating agency cannot be permitted to

conduct an investigation in a tainted or biased manner. It was

emphasised that where non-interference of the court would

Page 68 68

ultimately result in failure of justice, the court must interfere

and in the interest of justice choose an independent agency to

make a fresh investigation.

65.In Rubabbuddin Sheikh (supra) as well, though as

many as eight action reports had been submitted by the state

police on the incident of reported murder of the brother of the

petitioner in a fake encounter and the disappearance of his

sister-in-law in which, amongst other, allegedly the

anti-terrorist squad of the state police was involved, a

proceeding was initiated on the basis of a letter addressed to

the Chief Justice of India seeking a direction for investigation

by the CBI. In view of the rival contentions advanced as to the

permissibility or otherwise of the transfer of the investigation

as prayed for, this Court on an in-depth audit of the decisions

rendered by it, did negate the plea that subsequent to the

submission of a charge sheet, the court is not empowered in

any case whatsoever to handover the investigation to an

independent agency like CBI. It was held, having regard to the

parameters outlined by the two sets of authorities on the

Page 69 69

issue, that such a course however would be permissible in an

appropriate case where the facts bearing thereon would

demonstrate lack of proper investigation and vitiations thereof

by factual discrepancies endorsing such a deduction. The

aspect that accusations in the contextual facts were directed

against the local police personnel in which high police officials

of the state had been made accused also did weigh with the

determination. The view taken in Gudalure M.J. Cherian

(supra) that though ordinarily, after the investigation is

completed by the police and charge sheet is submitted to the

court, the investigation ought not to be re-opened by

entrusting the same to a specialized agency like CBI,

nevertheless in a given situation, to do justice between the

parties and to instill confidence in the public mind it may be

warranted, was noted with approval. The overriding

imperative of permitting transfer of investigation to the CBI

was thus acknowledged to be in the advancement of the cause

of justice and to instill confidence in the mind of the victims as

well as the public.

Page 70 70

66.The renderings in Hussainara Khatoon (supra), A.R.

Antulay (supra), P. Ramachandra Rao (supra), Vakil

Prasad (supra), Sampat Lal (supra), Babubhai (supra) and

Common Cause (supra) have been pressed into service on

behalf of the respondent Nos. 4 & 5 to highlight the demand of

speedy trial as a mandate of the fundamental right to life

guaranteed under Article 21 of the Constitution of India.

While emphasizing that speedy trial is the essence of criminal

justice and any delay constitutes denial thereof, it has been

propounded therein, that any procedure which does not

ensure a quick trial cannot be regarded as reasonable, fair or

just and would fly in the face of such cherished constitutional

promise. While observing that the right to speedy trial

encompasses all the stages namely; investigation, inquiry,

trial, appeal, revision and retrial, it was however noted in P.

Ramachandra Rao (supra) that no guidelines for a speedy

trial can be intended to be applied as hard rules or a straight

jacket formula and that their application would depend on the

fact situation of each case, which is difficult to foresee, so

much so that no generalization can be made. It was

Page 71 71

expounded as well in the Sampat Lal (supra) that in spite of

the procedure laid down in the relevant provisions of the

Criminal Procedure Code, a court, in a given case, if is

satisfied that the statutory agency has not functioned in an

effective way or that the circumstances are such that it may

reasonably be presumed or inferred that it may not be able to

conduct the investigation fairly or impartially, the court may

reasonably consider to supplement the procedure.

67.While recalling its observation in State of Bihar and

another vs. JAC Saldanha and others (1980) 1 SCC 554,

that on a cognizance of the offence being taken by the court,

the police function of investigation comes to an end subject to

the provision contained in Section 173(8) of the Code and that

the adjudicatory function of the judiciary commences, thus

delineating the well demarcated functions of crime detection

and adjudication, this Court did recognize a residuary

jurisdiction to give directions to the investigating agency, if

satisfied that the requirements of law were not being complied

with and that the investigation was not being conducted

Page 72 72

properly or with due haste and promptitude. It was reiterated

in Babubhai (supra) that in exceptional circumstances, the

court in order to prevent the miscarriage of criminal justice,

may direct investigation de novo, if it is satisfied that

non-interference would ultimately result in failure of justice.

In such an eventuality endorsement of the investigation to an

independent agency to make a fresh probe may be well

merited. That not only fair trial but fair investigation is also a

part of the constitutional rights guaranteed under Articles 20

& 21 of the Constitution of India and therefore investigation

ought to be fair, transparent and judicious, was reemphasised.

The expression “ordinarily” as used in Section 173(8) of the

Code was noted again to rule that in exceptional

circumstances however, in order to prevent miscarriage of

criminal justice, a court may still direct investigation de novo.

The above postulations being strikingly common in all these

decisions, do pervade the fabric and the content thereof and

thus dilation of individual facts has been avoided.

Page 73 73

68.That the extra-ordinary power of the constitutional

courts under Articles 32 and 226 of the Constitution of India

qua the issuance of direction to the CBI to conduct

investigation must be exercised with great caution was

underlined in Committee for Protection of Democractic

Rights (supra) as adverted to hereinabove. Observing that

although no inflexible guidelines can be laid down in this

regard, it was highlighted that such an order cannot be

passed as a matter of routine or merely because the party has

levelled some allegations against the local police and can be

invoked in exceptional situations where it becomes necessary

to provide credibility and instill confidence in investigation or

where the incident may have national and international

ramifications or where such an order may be necessary for

doing complete justice and for enforcing the fundamental

rights.

69.In Kashmeri Devi (supra), being satisfied, in the

prevailing facts and circumstances that effort had been made

to protect and shield the guilty officers of the police who

Page 74 74

allegedly had perpetrated the offence of murder involved, this

Court directed the Magistrate concerned before whom the

charge sheet had been submitted, to exercise its power under

Section 173(8) of Code to direct the CBI for proper and

thorough investigation of the case and to submit an additional

charge-sheet in accordance with law.

70.In Godalure M.J. Cherian (supra), this Court in a

petition under Article 32 of the Constitution of India, lodged in

public interest, did after taking note of the fact that charge

sheet had already been submitted, direct the CBI to hold

further investigation in respect of the offence involved. In

recording this conclusion, this Court did take note of the fact

that the nuns who had been the victim of the tragedy did not

come forward to identify the culprits and that as alleged by the

petitioners, the four persons set up by the police as accused

were not the real culprits and that the victims were being

asked to accept them to be so. The paramount consideration

for the direction issued was to secure justice between the

parties and to instill confidence in public mind. The same

Page 75 75

imperative did impel this Court to issue a similar direction for

fresh investigation by the CBI in Punjab and Haryana High

Court Bar Association (supra). Here as well the investigation

otherwise had been completed and charge-sheet was

submitted.

71.This Court dealing with the proposition that once a

charge sheet is filed, it would then be exclusively in the

domain of the competent court to deal with the case on merits

in accordance with law and that the monitoring of the

investigation would cease in all respects, held, in particular, in

K.V. Rajendran (supra) in reiteration of the enunciations

aforestated, that though it is ordinarily so, the power of

transferring investigation in rare and exceptional cases for the

purpose of doing justice between the parties and to instill

confidence in the public mind, can be made invoking its

constitutional power available, to ensure a fair, honest and

complete investigation.

72.The precedential ordainment against absolute prohibition

for assignment of investigation to any impartial agency like the

Page 76 76

CBI, submission of the charge-sheet by the normal

investigating agency in law notwithstanding, albeit in an

exceptional fact situation warranting such initiative, in order

to secure a fair, honest and complete investigation and to

consolidate the confidence of the victim(s) and the public in

general in the justice administering mechanism, is thus

unquestionably absolute and hallowed by time. Such a

measure however can by no means be a matter of course or

routine but has to be essentially adopted in order to live up to

and effectuate the salutary objective of guaranteeing an

independent and upright mechanism of justice dispensation

without fear or favour, by treating all alike.

73.In the decisions cited on behalf of the CBI as well, this

Court in K. Saravanan Karuppasamy and Sudipta Lenka,

(supra), recounted the above propositions underpinning the

primacy of credibility and confidence in investigations and a

need for complete justice and enforcement of fundamental

rights judged on the touchstone of high public interest and the

paramountcy of the rule of law.

Page 77 77

74.The judicially propounded propositions on the aspects of

essentiality and justifiability for assignment of further

investigation or reinvestigation to an independent investigating

agency like the CBI, whether or not the probe into a criminal

offence by the local/state police is pending or completed,

irrespective of as well, the pendency of the resultant trial have

concretized over the years, applicability whereof however is

contingent on the factual setting involved and the desideratum

for vigilant, sensitised and evenhanded justice to the parties.

75.The exhaustive references of the citations seemingly

repetitive though, assuredly attest the conceptual consisting in

the expositions and enunciations on the issue highlighting the

cause of justice as the ultimate determinant for the course to

be adopted.

76.A “speedy trial”, albeit the essence of the fundamental

right to life entrenched in the Article 21 of the Constitution of

India has a companion in concept in “fair trial”, both being in

alienable constituents of an adjudicative process, to culminate

in a judicial decision by a court of law as the final arbiter.

Page 78 78

There is indeed a qualitative difference between right to speedy

trial and fair trial so much so that denial of the former by

itself would not be prejudicial to the accused, when pitted

against the imperative of fair trial. As fundamentally, justice

not only has to be done but also must appear to have been

done, the residuary jurisdiction of a court to direct further

investigation or reinvestigation by any impartial agency, probe

by the state police notwithstanding, has to be essentially

invoked if the statutory agency already in-charge of the

investigation appears to have been ineffective or is presumed

or inferred to be not being able to discharge its functions

fairly, meaningfully and fructuously. As the cause of justice

has to reign supreme, a court of law cannot reduce itself to be

a resigned and a helpless spectator and with the foreseen

consequences apparently unjust, in the face of a faulty

investigation, meekly complete the formalities to record a

foregone conclusion. Justice then would become a casualty.

Though a court’s 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

Page 79 79

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 analyzed 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 is to secure justice on the basis of true facts which ought

to be unearthed through a committed, resolved and a

competent investigating agency.

77.As every social order is governed by the rule of law, the

justice dispensing system cannot afford any compromise in

the discharge of its sanctified role of administering justice on

the basis of the real facts and in accordance with law. This is

indispensable, in order to retain and stabilize the faith and

confidence of the public in general in the justice delivery

institutions as envisioned by the Constitution.

78. As succinctly summarised by this Court in Committee

for Protection of Democratic Right (supra), the extra

Page 80 80

ordinary power of the Constitutional Courts in directing the

CBI to conduct investigation in a case must be exercised

sparingly, cautiously and in exceptional situations, when it is

necessary to provide credibility and instill confidence in

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. In our comprehension, each of the

determinants is consummate and independent by itself to

justify the exercise of such power and is not inter-dependent

on each other.

79. A trial encompasses investigation, inquiry, trial, appeal

and retrial i.e. the entire range of scrutiny including crime

detection and adjudication on the basis thereof.

Jurisprudentially, the guarantee under Article 21 embraces

both the life and liberty of the accused as well as interest of

the victim, his near and dear ones as well as of the community

at large and therefore cannot be alienated from each other

with levity. It is judicially acknowledged that fair trial includes

Page 81 81

fair investigation as envisaged by Articles 20 and 21 of the

Constitution of India. Though, well demarcated contours of

crime detection and adjudication do exist, if the investigation

is neither effective nor purposeful nor objective nor fair, it

would be the solemn obligation of the courts, if considered

necessary, to order further investigation or reinvestigation as

the case may be, to discover the truth so as to prevent

miscarriage of the justice. No inflexible guidelines or hard and

fast rules as such can be prescribed by way of uniform and

universal invocation and the decision is to be conditioned to

the attendant facts and circumstances, motivated dominantly

by the predication of advancement of the cause of justice.

80.Any criminal offence is one against the society at large

casting an onerous responsibility on the state, as the guardian

and purveyor of human rights and protector of law to

discharge its sacrosanct role responsibly and committedly,

always accountable to the law abiding citizenry for any lapse.

The power of the constitutional courts to direct further

investigation or reinvestigation is a dynamic component of its

Page 82 82

jurisdiction to exercise judicial review, a basic feature of the

Constitution and though has to be exercised with due care

and caution and informed with self imposed restraint, the

plentitude and content thereof can neither be enervated nor

moderated by any legislation.

81.The expression “fair and proper investigation” in criminal

jurisprudence was held by this Court in Vinay Tyagi vs

Irshad Ali @ Deepak and others (2013)5SCC 762 to

encompass two imperatives; firstly the investigation must be

unbiased, honest, just and in accordance with law and

secondly, the entire emphasis has to be to bring out the truth

of the case before the court of competent jurisdiction.

82.Prior thereto, in the same vein, it was ruled in Samaj

Parivartan Samudaya and others vs. State of Karnataka

and others (2012)7SCC 407 that the basic purpose of an

investigation is to bring out the truth by conducting fair and

proper investigation, in accordance with law and to ensure

that the guilty are punished. It held further that the

jurisdiction of a court to ensure fair and proper investigation

Page 83 83

in an adversarial system of criminal administration is of a

higher degree than in an inquisitorial system and it has to

take precaution that interested or influential persons are not

able to misdirect or hijack the investigation, so as to throttle a

fair investigation resulting in the offenders, escaping the

punitive course of law. Any lapse, it was proclaimed, would

result in error of jurisdiction.

83.That the victim cannot be afforded to be treated as an

alien or total stranger to the criminal trial was reiterated by

this Court in Rattiram and others vs. State of Madhya

Pradesh (2012)4SCC 516. It was postulated that the criminal

jurisprudence with the passage of time has laid emphasis on

victimology, which fundamentally is the perception of a trial

from the view point of criminal as well as the victim when

judged in the social context.

84.This Court in National Human Rights Commission vs.

State of Gujarat and others (2009)6SCC 767 did proclaim

unambiguously that discovery, investigation and

Page 84 84

establishment of truth are the main purposes of the courts of

justice and indeed are raison d’etre for their existence.

85.That the preeminence of truth is the guiding star in a

judicial process forming the foundation of justice had been

aptly propounded by this Court in Maria Margarida

Sequeira Fernandes and others vs. Erasmo Jack De

Sequeira (dead) through L.Rs (2012)5SCC 370. It was ruled

that the entire judicial system had been created only to

discern and find out the real truth and that the Judges at all

levels have to seriously engage themselves in the journey of

discovering the same. Emphasizing that the quest for truth is

the mandate of law and indeed the bounden duty of the

courts, it was observed that the justice system will acquire

credibility only when the people will be convinced that justice

is based on the foundation of the truth. While referring with

approval, the revealing observation made in Ritesh Tewari

and another vs. State of U.P. and others (2010)10SCC 677

that every trial is voyage of discovery in which truth is the

quest, the following passage of Lord Denning scripted in

Page 85 85

Jones vs. National Coal Board (1957) 2 All ER 155(CA) was

extracted in affirmation:

“…It’s all very well to paint justice blind, but she

does better without a bandage round her eyes.

She should be blind indeed to favour or prejudice,

but clear to see which way lies the truth.”

86.A strain of piognance and disquiet over the insensitive

approach of the court concerned in the textual facts in the

context of fair trial in the following observations of this Court

in Vinod Kumar vs. State of Punjab (2015)3 SCC 220

sounds an awakening caveat:

“The narration of the sad chronology shocks the

judicial conscience and gravitates the mind to

pose a question: Is it justified for any

conscientious trial Judge to ignore the statutory

command, not recognize “the felt necessities of

time” and remain impervious to the cry of the

collective asking for justice or give an indecent

and uncalled for burial to the conception of trial,

totally ostracizing the concept that a civilized

and orderly society thrives on the rule of law

which includes “fair trial” for the accused as well

as the prosecution.”

87.The observations though made in the backdrop of

repeated adjournments granted by the trial court, chiefly for

cross-examination of a witness resulting in the delay of the

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proceedings, the concern expressed is of overarching relevance

demanding sentient attention and remedial response. The

poser indeed stems from the indispensable interface of the

orderly existence of the society founded on the rule of law and

“fair trial” for the accused as well as the prosecution. That the

duty of the Court while conducting a trial is to be guarded by

the mandate of law, conceptual fairness and above all its

sacrosanct role to arrive at the truth on the basis of material

brought on record, was reiterated.

88.Adverting to the role of the police to be one for protection

of life, liberty and property of citizens, with investigation of

offences being one of its foremost duties, it was underscored

in Manohar Lal Sharma vs. Principal Secretary and

others (2014)2SCC 532 that the aim of investigation is

ultimately to search for truth and to bring the offendor to

book. The observations of Lord Denning in his rendering in

“The Due Process of Law” First Indian Reprint 1993 page 102

were alluded to at page 553 as under:

“In safeguarding our freedoms, the police play a

vital role. Society for its defence needs a well-led,

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well-trained and well-disciplined force of police

whom it can trust; and enough of them to be able

to prevent crime before it happens, or if it does

happen, to detect it and bring the accused to

justice.

The police, of course, must act properly. They

must obey the rules of right conduct. They must

not extort confessions by threats or promises.

They must not search a man’s house without

authority. They must not use more force than the

occasion warrants.”

89.The avowed purpose of a criminal investigation and its

efficacious prospects with the advent of scientific and

technical advancements have been candidly synopsized in the

prefatory chapter dealing with the history of criminal

investigation in the treatise on Criminal Investigation –

Basic Perspectives by Paul B. Weston and Renneth M.

Wells:

“Criminal investigation is a lawful search for

people and things useful in reconstructing the

circumstances of an illegal act or omission and the

mental state accompanying it. It is probing from

the known to the unknown, backward in time, and

its goal is to determine truth as far as it can be

discovered in any post-factum inquiry.

Successful investigations are based on fidelity,

accuracy, and sincerity in lawfully searching for

the true facts of an event under investigation and

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on an equal faithfulness, exactness, and probity in

reporting the results of an investigation. Modern

investigators are persons who stick to the truth

and are absolutely clear about the time and place

of an event and the measurable aspects of

evidence. They work throughout their

investigation fully recognizing that even a minor

contradiction or error may destroy confidence in

their investigation.

The joining of science with traditional criminal

investigation techniques offers new horizons of

efficiency in criminal investigation. New

perspectives in investigation bypass reliance upon

informers and custodial interrogation and

concentrate upon a skilled scanning of the crime

scene for physical evidence and a search for as

many witnesses as possible. Mute evidence tells its

own story in court, either by its own

demonstrativeness or through the testimony of an

expert witness involved in its scientific testing.

Such evidence may serve in lieu of, or as

corroboration of, testimonial evidence of witnesses

found and interviewed by police in an extension of

their responsibility to seek out the truth of all the

circumstances of crime happening. An increasing

certainty in solving crimes is possible and will

contribute to the major deterrent of crime – the

certainty that a criminal will be discovered,

arrested and convicted.

90.Reverting to the facts, the gruesome and sordid

assassination of the appellant’s husband in broad day light

under the public gaze is not in dispute. As a consequence of

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the murderous assault with firearms and indiscriminate use

thereof, Raju Pal along with two others fell to the bullets.

Records seem to suggest that even prior to the incident,

attempts were made on his life but he survived the same in

view of the timely intervention of the security guards. That

representations were made by him seeking additional

protection and that after his murder, the appellant and the

party higher ups of Raju Pal had persistently appealed,

amongst others, to the Governor and the Chief Minister of the

State for handing over the investigation to the CBI is also

testified by the records.

91.Pleaded imputations of the appellant include deliberate,

uncalled for and mysterious replacement of the earlier sets of

personal security officers/gunners of the deceased, presence of

high police officials near the place of occurrence, indifference

on the part of the state police to act with alacrity, hasty

conduct of the post mortem of the dead body and cremation

thereof without handing over the same to the appellant or any

of his relatives, political pressure on the investigating agency to

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distort the course of the probe and to screen the incriminating

evidence collected etc. One of the Investigating Officers in his

writ petition, questioning his suspension had also pleaded on

oath about the unexpected and unwarranted interference of the

higher ups in the department to withhold evidence gathered in

course of the investigation underway. Though nothing

decisively turn on these accusations, the same having been

refuted by the respondents, the fact remains that the

appellant’s husband had been mercilessly killed by a group of

gun wielding assailants in a public place, in the open view of

all concerned. Such a daring and desperate act did have a

terrorizing impact on the society sending shock waves amongst

all cross sections of the community and received wide coverage

by the media. The incident understandably is not one to be

lightly glossed over or trivialized.

92.The trial on the basis of the investigation completed

hitherto by the state police and the CBCID has remained

stayed by the orders of this Court. Prior thereto however as per

the materials laid before this Court, several eye-witnesses cited

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by the investigating agency have been examined. As the trial is

pending for the present, we refrain from commenting on their

testimony, except that they seem to have resiled from their

statements under Section 161 of the Code. Having regard to

the manner in which the offence had been committed, it is

incomprehensible that there was no eye-witness to the

incident. Thus, if the persons cited as eye-witnesses by the

investigating agency retract from their version made before the

police, then either they have been wrongly projected as

eye-witnesses or they have for right or wrong reasons resiled

from their earlier narration. In both the eventualities, in our

opinion, the investigation has to be faulted as inefficient,

incomplete and incautious with the inevitable consequence of

failure of the prosecution in the case in hand. Such a fall out

also spells a dismal failure of the state machinery as a pivotal

stake holder in the process of justice dispensation to protect

and assure the witnesses of their safety and security so to

fearlessly testify the truth. We would hasten to add that these

observations are by no means suggestive of the complicity of

the respondent Nos. 4 & 5 and other accused persons standing

Page 92 92

trial. These, to reiterate, are farthest from even any

presumptive hypothesis of their involvement in the offence for

the present and are engendered by the concern of possible

failure of justice. If the investigating agencies, as involved,

have not been able to identify and present eye-witnesses of the

incident who would under all circumstance religiously and

devotedly abide by their version about the same, the

shortcoming apparently is in the probe made, sadly reflecting

on the competence, commitment and efficacy of such agencies.

The very fact that this Court had earlier stayed the trial while

permitting the appellant to approach the High Court with the

relief for assignment of the investigation to the CBI does signify

its expectation that the High Court would adopt a sensitive

insight into the issues raised and appropriately address the

same. The pendency of the trial and the examination of the

witnesses so far made thus in our estimate is not a disarming

factor for this Court, to consider the necessity of entrusting the

investigation to the CBI even at this stage. To reiterate, a

decision in this regard has to be induced and impelled by the

cause of justice viewed in the overall facts and circumstances

Page 93 93

attendant on the incident. No inflexible norm or guideline is

either available or feasible.

93.The present factual conspectus leaves one with a choice

either to let the ongoing trial casually drift towards its

conclusion with the possibility of offence going unpunished or

to embark upon investigation belated though, spurred by the

intervening developments, to unravel the truth, irrespective of

the persons involved. As it is, every offence is a crime against

the society and is unpardonable, yet there are some species of

ghastly, revolting and villainous violations of the invaluable

right to life which leave all sensible and right minded persons

of the society shell shocked and traumatized in body and soul.

Such incidents mercifully rare though are indeed exceptionally

agonizing, eliciting resentful condemnation of all and thus

warrant an extra-ordinary attention for adequate remedial

initiatives to prevent their recurrence. In our considered view,

even if such incidents otherwise diabolical and horrendous do

not precipitate, national or international ramifications, these

undoubtedly transcend beyond the confines of individual

Page 94 94

tragedies and militatively impact upon the society’s civilized

existence. If the cause of complete justice and protection of

human rights are the situational demands in such

contingencies, order for further investigation or reinvestigation,

even by an impartial agency as the CBI ought to be a

peremptory measure in the overwhelming cause of justice.

94.Judged in these perspectives, we are of the firm opinion

that notwithstanding the pendency of the trial, and the

availability of the power of the courts below under Sections 311

and 391 of the Code read with Section 165 of the Evidence Act,

it is of overwhelming and imperative necessity that to rule out

any possibility of denial of justice to the parties and more

importantly to instill and sustain the confidence of the

community at large, the CBI ought to be directed to undertake

a de novo investigation in the incident. We take this view,

conscious about the parameters precedentially formulated, as

in our comprehension in the unique facts and circumstances of

the case any contrary view would leave the completed process

of crime detection in the case wholly inconsequential and the

Page 95 95

judicial process impotent. A court of law, to reiterate has to be

an involved participant in the quest for truth and justice and is

not expected only to officiate a formal ritual in a proceeding

farseeing an inevitable end signaling travesty of justice.

Mission justice so expectantly and reverently entrusted to the

judiciary would then be reduced to a teasing illusion and a

sovereign and premier constitutional institution would be

rendered a suspect for its existence in public estimation.

Considering the live purpose for which judiciary exists, this

would indeed be a price which it cannot afford to bear under

any circumstance.

95.In the wake of the above, we are unhesitatingly inclined

to entrust the CBI, with the task of undertaking a de novo

investigation in the incident of murder of Raju Pal, the

husband of the appellant as afore-mentioned. Though a plea

has been raised on behalf of the respondent Nos. 4 and 5 in

particular that this incident has been exploited by the

appellant for her political gains, we are left unpersuaded

thereby, as her achievements in public life must have been

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fashioned by very many ponderable as well as imponderable

factors. In any view of the matter, such a contention, in our

view, is of no consequence or relevance. We would, however

make it abundantly clear that this direction for entrustment of

the investigation to the CBI anew has been made in view of the

exceptional features of the case as overwhelmingly

demonstrated by attendant facts and circumstances

indispensably necessitating the same.

96.We are aware that in the meantime, over a decade has

passed. The call of justice however demands, that the CBI in

spite of the constraints that it may face in view of the time lag,

would make all possible endeavours to disenter the truth

through its effective and competent investigation and submit

the same before the trial court, as early as possible preferably

within the period of six months from today. The clarion call of

justice expects a befitting response from the country’s premier

and distinguished investigating agency. On receipt of the

report by the CBI only, the trial court would proceed therewith

in accordance with law and conduct and conclude the trial

Page 97 97

expeditiously and not later than six months. The interim order

staying the ongoing trial is hereby made absolute.

97.The appeal is thus allowed in the above terms.

….....

…....................................J.

(V. GOPALA GOWDA)

…............................................J.

(AMITAVA ROY)

NEW DELHI;

JANUARY 22, 2016.