Reserved
Court No. - 4
Case :- CRIMINAL MISC. WRIT PETITION No. - 18360 of 2018 Petitioner :- Deshraj Singh Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay,Jai Prakash Singh Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Ravindra Nath Kakkar,J.
(Delivered by Hon'ble Ravindra Nath Kakkar, J.) Heard learned counsel for the petitioner and learned A.G.A. for the State.
This writ petition has been filed by the petitioner Deshraj Singh with the following prayer :-
I. Issue writ, order or direction in the nature of mandamus directing the respondent Nos. 2 to 4 to take appropriate action for fair and proper investigation of Case Crime No. 385 of 2018, under Sections 498-A, 304-B, 323, 506, 120- B I.P.C. and Section ¾ D.P. Act, Police Station- Dadri, District- Gautam Budh Nagar.
II. Issue writ, order or direction in the nature of mandamus directing the respondent nos. 2 to 4 to take appropriate coercive action to arrest the accused persons against whom the F.I.R. has been lodged on 16.05.2018 as Case Crime No. 385 of 2018, under Sections 498-A, 304-B, 323, 506, 120-B I.P.C. and Section ¾ D.P. Act, Police Station- Dadri, District- Gautam Budh Nagar.
III. Issue any other appropriate writ, order or direction for which the petitioner be found entitled under the facts and circumstances of the case.
IV. Award cost in favour of the petitioner.
Prosecution story in brief is that First Information Report of this case has been lodged by the complainant Deshraj on 16.05.2018 at 14.50 hours in respect of the incident dated 13.05.2018 at 6.45, as Case Crime No. 385 of 2018, under sections 498-A, 304-B, 323, 506, 120-B IPC and section ¾ D.P. Act alleging therein that the marriage of his daughter was solemnized with Rohit son of Charan Singh on 25.06.2011 but due to non fulfillment of demand of additional dowry, her daughter was subjected to cruelty. Thereafter she was admitted in Mohan Swaroop Hospital, Badlapur, Gautambudh Nagar, where she died on 13.05.2018.
It is also submitted by learned counsel for the petitioner that the daughter of the petitioner namely Guddi was mentally and physically tortured by the respondent authorities, thereafter she become unconscious. It is next contended that on her unconscious condition she was admitted in Mohan Swaroop Hospital, Badlapur, Gautam Budh Nagar where she died on 13.05.2018. It is further submitted that panchayatnama of the dead body was conducted on the same day but respondent nos. 5 to 9 neither came at the place of panchayatnama nor did they participate in the cremation nor the son of the deceased was produced at the time of cremation. It is next submitted that petitioner has moved an application dated 23/25.05.2018 before Senior Superintendent of Police, Gautam Budh Nagar for appointing another Investigating Officer as the Investigating Officer has not taken the statement of witnesses under Section 161 Cr.P.C., which has been filed as (Annexure No. 5) to the affidavit filed in support of the writ petition. It is further argued that wife of the petitioner has also moved an application dated 24.05.2018 before State Women Commission, Lucknow as well as to the Chairperson, National Commission for Women, New Delhi. It is further stated that wife of the petitioner also moved an application dated 3.6.2018 before I.G. (Zone), Gautam Budh Nagar but no action have been taken by the respondents. It is further submitted by learned counsel for the petitioner through the supplementary affidavit filed by him that in the present case the Hon'ble Court was pleased to grant ten days time to seek instruction vide order dated 12.07.2018 but in compliance thereof, learned A.G.A. could not communicate the order to concerned police station as no such instruction could be received by learned A.G.A. (Annexure No. SA-1). It is next submitted that on 14.07.2018, a Sub-Inspector namely Kamal Dev Rana came to the house of petitioner and handed over a notice stating therein that on 16.07.2018, petitioner has to appear before the Circle Officer, Dadri, District Gautam Budh Nagar to get his statement recorded. It is next submitted that petitioner had sent an application on 16.07.2018 to the Circle Officer, Dadri, District Gautam Budh Nagar stating therein that the written statement of the petitioner and other necessary witnesses on oath may be recorded and accepted in the investigation of the aforesaid case (Annexure No. SA-2).
In compliance of the order dated 07.08.2018 passed by this Court, the compliance/progress report has been filed by Sri Nishank Sharma, Circle Officer, Dadri, District Gautam Budh Nagar on 13.08.2018 stating therein that in the present case statement of Dr. P.K. Dhawan, Mohan Swaroop Hospital Badalpur Charity Trust, Gautam Budh Nagar has been recorded. In his statement, Dr. P.K. Dhawan has stated that the deceased Guddi @ Kajal was suffering from rectal cancer with post colostomy status and due to cancer, her life was in danger, which is marked as (Annexure-8) of the compliance report. It is further submitted that in the postmortem report, the cause of death of the deceased could not be ascertained. Hence, viscera was preserved, but in spite of several reminders for providing the viscera report, the same is still awaited.
The crux of the matter before us is that whether investigation of the Case Crime No. 385 of 2018, under Sections 498-A, 304-B, 323, 506, 120-B IPC and Section ¾ Dowry Prohibition Act, Police Station- Dadri, District- Gautam Budh Nagar is being conducted in fair and impartial manner ?
Before proceeding to appreciate this issue, we would like to refer that this petition has been filed at the instance of the victim and not by the accused. It is pertinent to mention that the accused has sufficient opportunity of representation whereas the victim does not have any. Therefore, it is to safeguard the victim's cause that the Court has to step in to ensure fair investigation. The law is well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the court finds it necessary in order to do justice to the parties in order to maintain the confidence in the public mind or where investigation by the investigating agency lacks credibility. In nutshell, if investigation prima facie is found to be tainted or biased then only indulgence of the court is required. It is only when there is a reasonable apprehension that justice is becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extraordinary powers. It follows that unless the Court sees any design behind the prayer for transfer the investigation, the same must be seen as an attempt only to ensure that the truth is discovered. Discovery of the truth is ultimate purpose of any investigation and who can do it better than an independent agency. In the event, a proper investigation is not carried out and relevant evidence which would have been collected by due care and caution is not collected, the victim is sure not to get justice on such faulty investigation. For a fair and impartial investigation, it rests on the Court's decision whether the fact and circumstance of a given case demands indulgence of the Court.
On this background it is relevant to mention that certain procedure contained in the Code of Criminal Procedure, 1973 has not been complied with.
174. Police to inquire and report on suicide, etc.-(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by a machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place, where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other person, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3) [When-
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman.
176. Inquiry by Magistrate into cause of death;-
(1) when the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section 174, the nearest magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police office; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
But in this case neither any executive magistrate made inquiry of suicide nor information was being given of death of the victim. Head Constable had prepared the inquest report of the corpus of the dead body.
The next provision which has not been complied with, is contained in Sections 41 and 41(a) of the Cr.P.C.
The next relevant point which requires fair investigation is with regard to the identity of the victim Guddi. The medical papers are having both the names Guddi as well as Kajal. It also transpires from the photocopies filed in support of the petition that the petitioner moved an application on 23/25.05.2018 before S.S.P., Gautam Budh Nagar complaining against the Investigating Officer and while the petitioner also moved an application on 24.05.2018 before the State Women Commission, Lucknow as well as to the Chair person, National Commission for Women, New Delhi and further wife of the petitioner moved an application dated 7.6.2018 before I.G. (Zone), Gautam Budh Nagar. In spite of submitting these applications to the various authorities, no action has been taken by the respondents, which compels the victim to file this petition against the biased and tainted investigation of the case and relief for fair and impartial investigation has been sought by way of this writ petition before us.
Therefore, in order to ensure fair and proper investigation, it will be in the interest of justice to transfer the investigation of this case from U.P. Police to Central Bureau of Investigation.
In view of the foregoing discussion, this writ petition is allowed.
The investigation of the Case Crime No. 385 of 2018, under Sections 498-A, 304-B, 323, 506, 120-B I.P.C. and Section ¾ D.P. Act, Police Station- Dadri, District- Gautam Budh Nagar, is transferred from the U.P. Police to the Central Bureau of Investigation (C.B.I.). The Investigating Officer of this case shall hand over the case diary and the other material collected by him till date during investigation to the C.B.I. The Director of C.B.I. shall thereafter appoint an officer who shall make every possible endeavour to investigate this case in a fair and impartial manner and complete the investigation as early as possible preferably within a period of two months from the date on which he is entrusted with the investigation of this case.
Order Date :- 29.10.2018 KS