JUDGMENT Amar Saran, J.
1. We have heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri D.V. Singh learned Counsel for the petitioner, Sri Manish Tewari learned Counsel for the respondent No. 5 and learned AGA and perused the affidavits filed by the parties. This writ petition was filed for the following reliefs:
(a) Issue writ order or direction in the nature of certiorari for quashing the impugned first information report dated 19.4.2006, lodged by the respondent No. 4, as Case Crime No. 62307060121 of 2006, FIR No. 108 of 2006 under Section 326 I.P.C. Police Station Colonelganj District Allahabad (Annexure -1 to the writ petition).
(b) To, issue a writ, order or direction in the nature of mandamus commanding the respondent authorities not to arrest/prosecute the petitioner, nor to adopt any coercive measures, harassment etc, in pursuance of the first information report dated 19.4.2006, lodged by the respondent No. 4 as Case Crime No. 62307060121 of 2006. F.I.R. No. 108 of 2006 under Section 326 I.P.C. Police Station Colonelganj District Allahabad (Annexure - 1 to the writ petition).
(C) Issue writ order or direction in the nature of mandamus directing the Central Bureau of Investigation to investigate the matter of Case Crime No. No. 62307060121 of 2006 F.I.R. No. 108 of 2006 under Section 326 IPC, PS Colonelganj, District Allahabad.
(d) Issue any other suitable writ directions or order which this Hon'ble Court may deem just and proper in the facts and circumstances of the case filed by the petitioner before this Hon'ble Court for redressal of his grievance.
(e) To award the cost of the writ petition to the petitioner.
2. However, at the time of arguments, learned Counsel for the petitioner submitted that he does not press the reliefs '(a)' and '(b)' and he was pressing only relief '(c)', that the matter pertaining to case Crime No. 62307060121 of 2006, FIR No. 108 of 2006, under Section 326, PS Colonel Ganj, District Allahabad, be investigated by the CBI.
3. The facts of this case as disclosed in the FIR were that Ramakant Misra, an ex-MLA, left his home in mohalla Balrampur. Allahabad, for a morning walk at 7 am on 19.4.2006. Near the residence of Siddhartha Gautam, two young men riding on a motorcycle threw acid on him due to some political enmity. As a result of this acid attack, his face and chest were grievously charred and Ramakant Misra fell at the spot. He was taken to Alka Hospital and thereafter a report to this effect was lodged by his son Rajendra Kumar Misra on 19.4.2006 at 9.30 am at police station Colonelganj, Allahabad.
4. It has been mentioned in paragraph 8 of the counter affidavit filed by SI, PS Colonel Ganj, District Allahabad, that after his initial medical examination by a doctor at S.R.N. Hospital at Allahabad on 9.4.2006 at about 10.55 am he was flown to New Delhi and had been admitted to Safdarganj Hospital, New Delhi. It has further been mentioned in the said paragraph that the statement of Ramakant Misra was recorded on 23.4.2006 by Sri P.D. Meena, ASI, at the Safadarjang Hospital, New Delhi.
5. In the said statement Ramakant Misra is said to have disclosed that the acid was thrown on him by the petitioners, Gulab Singh and Deepak Patel and that they were accompanied by a third person. The said statement was recorded by Sri Meena after obtaining a certificate of fitness of the injured from the concerned doctor. Ramakant Misra died on 8.6.2006 at Safdarjang Hospital in New Delhi and after his death the case was converted into one under Section 302 IPC by CD No. 16 of 2006. A writ petition was thereafter filed by the petitioners before this Court in which the following orders were passed staying the arrest of the petitioners by a Division Bench on 2.6.2006:
Heard learned Counsel for the petitioners and learned Additional Government Advocate representing respondent Nos. 1, 2 and 3. He prays for and is granted a week's time to file counter affidavit. Respondent No. 4 may also file counter affidavit within the same time. Petitioner will have three days thereafter for filing rejoinder affidavit. Petitioner will take steps for service of the notice on respondent No. 5 by speed post. Office will hand over Dasti Notice to the counsel for the petitioner for serving respondent No. 5 fixing a date after one week.
The petitioner shall not be arrested in Case Crime No. 62307060121 of 2006, under Section 326 IPC, Police Station Colonelganj, district Allahabad till 20th June, 2006.
Put up on 20th June, 2006.
6. On 21.6.2006 another Division Bench extended the order staying arrest till 5.7.2006. On 5.7.2006, however, as our Bench was informed that the charge-sheet had been submitted and the order has already taken cognizance in the matter, we rejected the prayer for stay of arrest and directed surrender of the petitioners forthwith. The following orders were passed by our Bench on 5.7.2006:
Heard Sri S.P.S. Raghav, learned Senior Advocate, Sri V.S. Misra, learned Government Advocate and Sri Manish Tiwari, learned Counsel for the complainant.
Learned A.G.A. informs that the charge-sheet has been submitted and the Magistrate has already taken cognizance.
Sri S.P.S. Raghav submits that he wants an adjournment for arguing on the point whether the investigation can be transferred to any other agency or not.
The prayer for extending the stay of arrest of the petitioners is rejected. They are directed to surrender forthwith.
List this case on 18.7.2006.
Office is directed to provide a copy of this order to the Government Advocate within 24 hours.
7. It appears that thereafter the petitioners approached the Hon'ble Apex Court which passed an order on 28.7.2006 extending the order staying arrest until further orders were passed by the High Court. The Hon'ble Apex Court was pleased to pass the following orders on 28.7.2006:
The interim protection of arrest granted by this Court on 18th July, 2006, will continue until further orders are passed by the High Court.
The High Court is requested to hear the matter on 2nd August, 2006 or on a date soon thereafter, as may be convenient to it.
8. It appears that one important consideration before the Apex Court for passing the aforesaid order was that one of the learned Counsel for the petitioner Sri D.V. Singh, had circulated a letter seeking adjournment on account of his mother's illness which had been granted but the stay was vacated by our order dated 5.7.2006. It may be clarified that Sri S.P.S. Raghav, learned Senior Advocate, appeared for the petitioners on 5.7.2006 as is mentioned in our order of that date and, thereafter, the prayer for stay of arrest was rejected. Furthermore, Sri S.P.S. Raghav had himself submitted that he wanted an adjournment for arguing on the point whether the investigation could be transferred to any other agency or not, and another date (18.7.2006) was fixed for hearing the petitioners on the point of transfer of investigation. However, as the charge-sheet had been submitted this Court was of the opinion that no purpose would be served in permitting the arrest of the accused to remain stayed as the petitioners could now be arrested for securing their attendance before the Court concerned where it was open for them to seek bail. Normally after submission of charge sheets this Court refuses to interfere in its extraordinary jurisdiction under Article 226 of the Constitution due to the availability with the petitioner of alternative remedies by approaching the lower Court for appropriate relief, or by applying to this Court for quashing Criminal proceedings under Section 482 Cr.P.C. or in its Revisional jurisdiction, if so advised.
9. Thereafter the case came up before us on 10.8.2006 when an adjournment was sought by Sri D.V. Singh as he stated that the matter on that date would be argued by Sri V.P. Srivastava, Senior Advocate, and the case was directed to be put up on 11.8.2006. On 11.8.2006, Sri V.P. Srivastava, stated that his client wanted to make an application before Hon'ble the Chief Justice for placing the matter before another Bench. We directed that the case be put up on 18.8.2006 after obtaining appropriate orders, if any, from the Hon'ble the Chief Justice. However, it appears that Hon'ble Senior Judge, finding no sufficient ground for transferring the case in the application, rejected it by an order dated 17.8.2006.
10. Thereafter, the case came up before us and we heard the matter and reserved the judgment on 18.8.2006.
11. It was argued by Shri V.P. Srivastava, learned Senior Advocate that the petitioners had been implicated in a mala fide manner at the instance of the ruling party as wife of petitioner No. 1 and mother of petitioner No. 2 Smt. Keshari Devi was the Chairperson of the Zila Panchayat, Allahabad from 2000-6.1.2006 and as she had been elected on a ticket of the Bahujan Samaj Party, the members of the Samajwadi Party had left no stone unturned for her removal from the said post. There was an allegation of four persons having been kidnapped during the Panchayat Adhyaksha elections on 6.1.2006 in respect of which an FIR had been lodged by Smt. Keshari Devi under Section 364 IPC. Effort was also made for removal of Smt. Keshari Devi and she even had filed writ petitions before this Court, which were decided in her favour. Out of malice, Shri Rewati Raman Singh, the Member of Parliament of Samajwadi Party, from Allahabad prevailed upon the deceased, who was an Ex-M.L.A. of Samajwadi Party to nominate the husband and son of Smt. Keshari Devi as the accused.
12. The FIR did not name the petitioners as the accused, but their names were revealed belatedly after ten days.
13. It was further contended by Shri Srivastava that according to the FIR two boys were riding a motorcycle, who threw acid on Shri Ramakant Mishra. Petitioner No. 1 Gulab Singh who was the 55 year old husband of Smt. Keshari Devi and father of the other petitioner Deepak could not come in the category of boys. Also there were reasons for questioning the reliability of the statements given to the investigating officer at Safdarganj Hospital, New Delhi which were being used as dying declarations, and that some statement that the deceased had given in Allahabad before he was flown to Delhi appears to have been suppressed in order to implicate the petitioners.
14. It is also suggested that the deceased had some illicit relations with a lady teacher and he was probably made victim of the acid attack on account of such relations. Some newspapers reports have been cited in support of his claim. The insinuation was that acid attacks are usually made by youngsters in cases of sexual jealousy or malice and acid attacks are not usually made against political opponents.
15. It was argued by the learned Government Advocate that the deceased had given a statement to Sri P.D. Meena, a police officer of the Delhi police about the complicity of the two accused and there was no reason for the said officer to falsely implicate the petitioners, as he would not be under the sway of the ruling party in U.P. Furthermore, there are no allegations about the fairness of the investigation by the investigating officer, hence there was little reason justifying transfer of the investigation to the C.B.I. especially as a charge sheet had even been submitted in the case. The statements of the deceased to the police officer (P.D. Meena) of the Safdarjang outpost and to the investigating officer from Allahabad who had proceeded to Delhi stood in the position of dying declarations, which had been recorded after the opinions of the doctor as to the fitness of the deceased to give the statements had been recorded. There was no reason for the petitioners being nominated as the accused if other persons had committed the crime.
16. After reserving judgment and on examining the petition, the counter and rejoinder affidavits, we felt that for appreciating the rival contentions of the parties further hearing in the matter, and a perusal of the case diary was needed. We therefore again heard the matter on 10.10.2006 and 12.10.2006.
17. After re-hearing of the matter and after perusal of the case diary in exercise of our powers under Section 172(2) Cr.P.C, for the reasons given below we arrive at the conclusions that there are too many inconvenient unanswered questions that prima facie give rise to suspicion in the mind of the Court about the fairness and impartiality of the investigation, hence it is appropriate that this case be investigated by the CBI.
18. The reasons for our conclusion are one, that immediately after the incident, no disclosure was made by the deceased Rama Kant Misra, who appears to have been conscious at that stage, about the identity of his assailants. What was stated in the F.I.R. lodged on 19.4.2006 was that on the same date at 7 a.m., two boys had hurled acid on Rama Kant Mishra and he was in great pain. Even when he was admitted to the Anand hospital and thereafter to the Alka hospital and then taken to the Swaroop Rani Nehru hospital later where his medical examination was done on 19.4.2006 (at 10.55 a.m.), there is no mention that he was unconscious or that he was incapable of giving a statement. As per the report of the Swaroop Rani Nehru hospital the deceased had received 39% corrosive burns, although the same were described as grievous in nature.
19. The earlier Investigating Officer Tej Bahadur Singh recorded the statement of Indra Nath Misra, the son of Rama Kant Misra on 22.4.2006. He also stated that his father had only disclosed that two boys had come and thrown acid on him and thereafter fled away. Even when he was specifically questioned as to the identity of the assailants, Indra Nath Misra had replied that the same was not disclosed by the deceased. A supporter of Rama Kant Misra, one Ramji Pandey was also examined by the Investigating Officer on 22.4.2006. He also stated that the deceased did not disclose the identity of the persons, who had thrown acid on him. Likewise Navraj Kali wife of Rama Kant Misra when she was examined on 23.4.06 by the first Investigating Officer did not state that the deceased had disclosed the names of the two unknown boys, who had hurled acid on him.
20. However there appears to have been a complete somersault of this version when the deceased is said to have made a disclosure to Sri P.D. Meena A.S.I., in charge of the Safdarjang outpost, New Delhi who is alleged to have examined him on 23.4.2006, and to the newly appointed assisting officer SI V.N. Mishra when he examined him on 26.4.06 at 6.45 p.m. in the burns ward in Safdarjang Hospital. The statement of the deceased to SI P.D. Meena was that when he was returning after his morning walk on the date of incident, at 7 a.m. two or three men had poured acid on him and run away. To the specific query as to what were their names, the deceased answered that they were Gulab Singh and Deepak Patel and a third companion was accompanying them. He was also seeking legal action against these persons after investigation. In his alleged 161 Cr.P.C. statement to Sri Vishambhar Nath Tiwari, S.I. which was recorded on 26.4.2006 at 6.45 p.m. at the hospital, he had furnished further details and disclosed that on 19.4.2006 at 7 a.m. when he was returning after his morning walk, two persons on a motorcycle, Deepak Patel and Gulab Singh Patel and one unknown person threw some chemical on him with the object of murdering him. He was first taken by his son Rajendra Kumar Misra and other family members to Swaroop Rani Nehru hospital, but as he was referred by the doctor to the Burns Ward in Safdarjang hospital New Delhi, he was brought by his son Rajendra Kumar Misra to Delhi and was admitted at Safdarjang hospital in the same evening, where he was being treated. Significantly in that statement he had mentioned that at that time he was feeling better and that he was giving the statement in the presence of his son Rajendra Kumar Misra and that action should be taken against the culprits.
21. Two, there is also some substance in the contention of the petitioners' counsel that Gulab Singh, who was the 55 year old father of Deepak Patel and husband of Smt. Keshari Devi, who was the ex-Zila Panchayat Adhyaksh and belonging to the Bahujan Samaj Party and a practicing advocate and the second petitioner Deepak Patel who was their son and political aspirant could not by any stretch of imagination be described as young boys as had been mentioned in the FIR and earlier prosecution version. It is also puzzling how two assaillants of the FIR are now being described as two or three persons in the new version, which was sought to be developed in this examination of the deceased dated 23.4.06.
22. Three, there also does not appear to be any direct enmity of the petitioners either personal or political with the deceased as they were not shown to have contested elections against each other and even Smt. Keshari Devi, wife of petitioner Gulab Singh had not contested any election against Rama Kant Misra. We also wonder whether the deceased who was a 70 year old was not a spent force politically, and could be considered an impediment in the bid of the petitioner Deepak to be elected MLA from Bara on a BSP ticket. Significantly in paragraph 11 of the counter-affidavit filed by the informant Rajendra Kumar Mishra son of the deceased it is also stated that there was no direct enmity of the petitioners and the deceased although it was being contended in the said paragraph that there was no reason for the false implication of the petitioners. The petitioners are also not shown to have any criminal antecedents. Therefore apparently there is no reason for these two persons to hurl acid on the deceased. The suggestion of the learned Counsel for the petitioners that the members of the Samajwadi Party were bitterly opposed to Smt. Keshari Devi who had been engaged in a continual political battle with the Samajwadi Party, and for this reason her family members had been falsely implicated in this case cannot be brushed aside without further scrutiny. It has been mentioned in the writ petition that from the year 2000 to 6.1.2006, Smt. Keshari Devi had been chairperson of the Zila Panchayat Allahabad. In the election 2000 she had defeated S.P. candidate (Samajwadi Party) Smt. Uma Devi by a big margin of 12 votes. Smt. Uma Devi had petitioned the Chief Minister of U.P. for removal of Smt. Keshari Devi under Section 29 of the U.P. Kshetra Zila Panchayat Adhiniyam. As a show cause notice for her removal had been issued on 19.2.04, Smt. Keshari Devi had filed a writ petition in the High Court (Writ Petition No. 2835 of 2004). By order dated 1.7.2004, the High Court had stayed the operation of the notice dated 19.2.2004 and restrained the State Government from interfering with her functioning as Adhyaksha Zila Panchayat. The Special Appeal No. 554 of 2004 preferred by the State Government against the order of the High Court dated 1.7.2004, was allowed on 12.7.2004. Against the said order an S.L.P. was filed before the Supreme Court, which vide its interim order dated 6.8.2004, had stayed the operation of the order of the Division Bench of the High Court. Even after the State appeared in the S.L.P. and filed impleadment application seeking vacation of interim order, the Supreme Court confirmed the interim order. However, it was alleged that due to extraneous considerations, the State Government passed an order on 30.7.2005 removing her from the office of Adhyaksha of the Zila Panchyat. The said order dated 30.7.2004 was challenged by Smt. Keshari Devi by filing Writ Petition No. 53754 of 2005, which was finally allowed by the High Court by a detailed order dated 18.8.2005. The High Court has held in that order that the impugned action suffered from malice in fact and law. As the said order of the High Court was not implemented and Smt. Keshari Devi had not been reinstated, she had filed a contempt application No. 2741 of 2005, in which notices had been issued to the opposite parties. Smt. Keshari Devi had again filed nomination for contesting the election for the office of Adhyaksha Zila Panchayat, Allahabad as the nominee of the B.S.P., but fearing rigging during the impending elections she had made a representation to the State Election Commission for ensuring free and fair election by appointing an impartial observer to avoid any possibility of use of money and muscle power. She had made another representation dated 21.12.2005 that there was a conspiracy to cause damage to her and her family members and prayed for adequate security for herself. She had alleged that the Ruling party was bent upon wrecking political vendetta against her, and she had even expressed anxiety that her supporters would be implicated in false criminal cases and detained to prevent them from casting their votes in her favour. On the date of election on 6.1.2006, 4 persons, who were supporting Smt. Keshari Devi, were kidnapped and a report under Section 364 IPC was lodged on 6.1.2006 against Mahesh Singh, a local M.L.A. owing allegiance to Samajwadi Party. These facts are detailed in the petition filed on behalf of the petitioners. There is merely a bald denial of these averments in the writ petition in the counter affidavit filed on behalf of the State, which simply mentions that these matters relate to Smt. Keshari Devi and not to the petitioners. Even in the counter-affidavit filed by the informant Rajendra Kumar Mishra there is no specific denial of these allegations but it is only stated that general allegations of victimization have been made and it has not been substantiated as to who in the Ruling party was seeking to victimize the petitioners. In our opinion in view of the grave antagonism against Smt. Keshari Devi, ex-chairperson of the Zila Panchayat belonging to the BSP and the SP leadership, as is evinced in the various petitions and legal battles that have been fought, the circumstances of the case require an independent probe as to whether the petioners who are the husband, and the son of Smt. Keshari Devi have been falsely implicated and framed in the case by the minions of the ruling party in order to teach her a lesson and to harm her politically. As the allegations in this case are of interference in the investigation by the State government at the behest of the Ruling party, it is only an investigation by a central investigating agency like the CBI which can resolve and clear up the issue.
23. Four, the circumstances how the revised statements of the deceased were given to the police at Delhi, which are now being sought to be read as dying declarations also give rise to some suspicion. We note that after the subsequent junior Investigating Officer Sri Vishambhar Nath Tiwari reached Safdarjang hospital in Delhi, on several occasions he was refused permission to record the statement of Rama Kant Misra as according to the doctors on duty in-charge of the burns ward of the hospital he was unfit for giving his statement. Even the S.D.M. posted at Delhi refused to record the statement, though on the ground that in his view as the crime had been committed in Allahabad, only an Allahabad Magistrate had jurisdiction. On an order of the A.C.P., S.I V.N. Mishra learnt that Sri P.D. Meena had recorded the statement of Rama Kant Misra on 23.4.2006 after the deceased was described fit to give a statement by an opinion of Dr. Harish Chandra Dondiyal on 23.4.2006 at 4.30 p.m. Prior to that the report prepared by the doctors at the time of the admission of the deceased into the Safdarjang hospital on 19.4.06 at 8.45 p.m. was being treated as the statement of the deceased. Interestingly enough in the said medico-legal report it was only mentioned that somebody had thrown unknown chemical on the deceased and he had got homicidal chemical burns, and the names of the assailants were not mentioned. The report prepared at the Safdarjang Hospital on 19.4.06 also notes that the deceased was conscious and oriented. When SI Vishambhar Nath Tiwari who had been deputed by the S.S.P. to proceed to Delhi to record the statement of the deceased arrived there on 24.4.2006 at 10 a.m., and approached the patient to record his statement along with A.S.I. Sri P.D. Meena in the I.C.U. Ward No. 22, Bed No. 12, the doctor on duty declined to grant permission. Again on 3.40 p.m. Dr. T. Sudhir Kumar, Senior resident also refused permission to record the statement on 24.4.2006. It is a little puzzling as to what were the circumstances leading to Sri P.D. Meena recording the statement on 23.4.2006, and how that permission had suddenly been granted by Dr. Harish Dhondial declaring him fit for giving his statement on 23.4.06 at 4.30 pm. when earlier consistently permission was being refused. Even on subsequent times and dates, i.e. on 24.6.06 and 25.4.06 the deceased was declared unfit to give his statement by different doctors on duty in the Burns ward until Dr. Harish Dhondiyal, accorded permission to SI V.N Mishra, the junior I.O. from Allahabad to record the statement of the deceased on 26.6.06 at 6.45 pm when even at 10.45 a.m. on 26.4.2006 a doctor had opined that the patient was unfit for giving his statement. This contention also cannot be lightly brushed aside without examination whether the deceased, who was a 70 year old politician, who had been taken to Delhi with the help of the minions of the ruling party by a State plane, wanted to oblige them and had deposed at their desire against the husband and son of Smt. Kesari Devi, of the BSP who had been proving a big thorn in the side of the Ruling Party.
24. As the deceased did not die immediately after his statement,, but he expired only after over one and a half months on 8.6.06 at the Safdarjang hospital, so his statement could not be said to be one which was given immediately before his death, which would then have stood on a higher pedestal because of a presumption that a person expectant of his imminent death is unlikely to utter a falsehood. As mentioned above in his alleged 161 Cr. P. C. statement to Sri Vishambhar Nath Tiwari, S.I. which was recorded dated 26.4.2006 at 6.45 p.m. at the Safdarjang Hospital, the deceased had himself stated that at that time he was feeling better (i.e he may have been hopeful of recovery) and that he was giving the statement in the presence of his son Rajendra Kumar Misra and that action should be taken against the culprits. Prima facie for all the above mentioned reasons, especially the circumstance that immediately after the incident, as per the depositions of his son Indranath Mishra, his wife Navraj Kali and supporter Ramji Pandy recorded in the case diary, the deceased had claimed that he was attacked by unknown persons and the prosecution has not brought on record circumstance to show that he was not in a position to speak, and also as to whether the deceased had made any statement before the doctors or a Magistrate at Allahabad on 19.4.06, his alleged 161 Cr.P.C. statements at Delhi cannot be treated as dying declarations of unassailable quality, which can be uncritically accepted. It was also pointed out above that no S.D.M. of Delhi was prepared to record his statement, as the S.D.M. claimed that the matter related to Allahabad, and the S.D.M. of Allahabad had jurisdiction in the matter. Again apart from the permission granted by the same Dr. Harish Chandra Dondiyal to SI V.N. Tiwari at 6.45 p.m. on 26.4.2006 and earlier by the same doctor on 23.4.06. at 4.30 p.m. to SI PD Meena of the Safdarjang out post, there does not appear to be any endorsement of any other doctor at any other time permitting the recording of the deceased's statement when they were approached on several occasions. These circumstances raise suspicions in the mind of the Court which need further probe by an independent agency.
25. Five, the learned Government Advocate has contended that the petitioner has not at all questioned or impeached the independence of the investigating officer who conducted the investigation of this case. This submission is not quite correct. We are a little puzzled as to why the sub-inspector who proceeded to Delhi to record the statement of the deceased at the Safdarganj Hospital was riot Tej Bahadur Singh, who initially commenced the investigation of the case and was even recording the statements of the witnesses and making entries in the case-diary on 19.4.06, 20.4.06, 21.4.06, 22.4.06, 23.4.06., 28.4.06 and 30.4.2006. What is it that impelled the DIG Allahabad Region and the SSP, Allahabad to send SI V.N. Tewari (as junior investigating officer) by an order dated 22.4.06 to record the statement of the deceased Ramakant in Safdarjang Hospital and not the then investigating officer Tej Bahadur Singh. Also the sudden withdrawal of investigation from Tej Bahadur Singh and its being handed over to SI Vimal Kumar Mishra on 20.5.06, was rather perplexing, especially when SI Tej Bahadur Singh had recorded the statements and taken on record affidavits of 11 persons who had sworn that Deepak Singh, petitioner No. 2, had gone along with 50 persons to Lucknow on 19.4.2006 at 6.15 am and he was interviewed at 11 am at BSP office as he was seeking a ticket for the Bara Vidhan Sabha MLA seat. Was the State trying to ensure that the investigation proceeded only on a pre-decided line? These are puzzling questions of which there are no clear answers in the case diary, and which require further investigation. SI Vimal Kumar Mishra also apart from making efforts to arrest the petitioner, which he was prevented from doing by the orders of this Court dated 2.6.2006 staying the arrests of the petitioners has only recorded the statements of 2 or 3 servants of the deceased, Chintamani Yadav and Jhullur, on 7.6.2006 who were earlier given only the role of bringing home the injured, Ramakant, from the road in front of Vijay Sinha's house where he was lying after the incident and to whom the injured had not disclosed the names of the assailants initially. However, according to the statements recorded by this investigating officer on 7.6.06 after 3 or 4 days they overheard Deepak Singh Patel and Gulab Singh Patel, who resided in their mohalla, saying that they had thrown acid on Ramakant Misra and that would bring an end to his political career. This investigating officer has also recorded the statement of another domestic Meena who also stated that after 3 or 4 days she had overheard in the Mohalla that Gulab Singh Patel and Deepak Singh had thrown acid on Ramakant Misra and the deceased had later on disclosed to her that the said two persons had thrown acid on him. No such averment was contained in her earlier statement recorded 22.4.2006. An attempt to bring such extra judicial confessions and hearsay evidence on record does suggest an over-enthusiasm on part of the new investigating officer Vimal Kumar Mishra to hastily prepare a charge-sheet against the petitioners on 9.6.06 under Section 302 IPC after recording the statements of the sons of the deceased Rajendra Kumar Mishra, informant and Indranath Mishra, so that he could move the High Court for vacation of stay. This he did successfully when our bench vacated the earlier stay order on 5.7.06 when we were informed that a charge sheet had been submitted, but it was only due to the orders of the Apex Court in the SLP dated 28.7.06 that the stay of arrest was allowed to continue until final disposal of this writ petition by the High Court.
26. It appears that thereafter investigation was transferred from Sri Vimal Kumar to SI Sri V.K. Srivastava, who commenced investigation against one unknown third accused, but possibly because inspite of our earlier order dated 5.7.2006, vacating the stay of arrest this investigating officer could not succeed in arresting the petitioners, the investigation may have been transferred to SI S.K. Singh on 8.7.2006. We can only wonder about the reasons for the shifting of investigation to different investigating officers.
27. SI S.K. Singh has nominated two additional accused persons, Dipu @ Veer Pratap Singh Patel and Devraj Singh Patel. The former under Section 302 IPC and the latter under Section 120B IPC on 2.10.2006. The basis for implicating these accused persons were the statements of one Bachcha Lal Yadav, and one Ravi Kumar Devi which this investigating officer claims to have recorded on 17.7.2006 (i.e. three months after the crime). Baccha Lal Yadav stated that he was running a small dairy in Mumfordganj, Allahabad and he would go to different places to distribute milk. At the time of incident (i.e. at 7 am) he was standing at the house of Siddhartha Gautam to give him milk. The deceased was returning from his morning walk. Because he was very old, he was walking slowly. At that time a motorcycle, carrying three persons, came from the northern side. One of the motor cycle riders was Gulab Singh husband of Zila Panchayat chairperson Smt. Kesari Devi's husband. The motorcycle was being driven by Dipu. Then the petitioner Deepak who was sitting in the middle threw acid contained in a bottle on Ramakant Misra and the deceased started writhing in pain as a result of the attack. After that this witness proceeded further towards the house of the District Zila Panchayat chairperson Kesari Devi. In front of that house he saw Deepak's friend Devraj Singh Patel who had been staying in their house starting his motorcycle which went past this witness. After that a similar dramatic statement of Ravi Kumar Dhobi has been recorded by the investigating officer who claims to be pressing clothes on his thela at the time of incident. Then he saw the deceased returning from his walk when three persons came on a motorcycle. The riders Veer Pratap @ Dipu who was the nephew of Smt. Kesari Devi and the petitioners Gulab Singh and Deepak dismounted the motor cycle and followed the deceased. Petitioner Deepak hurled acid on the face of the deceased. Then they mounted the motorcycle whose engine was kept running and fled away. After that he started going away with his thela. As he went past Smt. Kesari Devi's house who lived in the same area, he saw Devraj Singh Patel, who is a party-man of Smt. Kesari Devi's party, starting his motorcycle and crossing him. Because he was a poor person, he had not disclosed about the incident earlier.
28. Within two days thereafter on 19.7.06 this investigating officer arrested Dipu and Devraj Singh near the house of Smt. Kesari Devi and claims to have immediately recorded their confessional statements. Veer Pratap @ Dipu admitted to being a distant relation of Smt. Kesari Devi and that he had entered into a conspiracy with Gulab Singh, Deepak Patel and their party associate Devraj Singh that the deceased who was an obstacle to the political aspirations of Deepak be eliminated. He had, accordingly stayed in the night preceding 19.4.2006 at the residence of Smt. Kesari Devi where they asked Devraj Singh, their party-man, to obtain acid. At the time of incident Deepak, Gulab and Dipu followed the deceased when he was going for morning walk and threw acid on him. Dipu was driving the motorcycle.
29. In his alleged confessional statement Devraj Singh had stated that he was closely attached to the Ex-Zila Panchayat Chairperson, Smt. Keshari Devi who had helped him in his work as a contractor when she was the chairperson, and presently he had charge of the BSP party in the Bara Vidhan Sabha area. 6 or 7 days prior to the murder of Ramakant Mishra this accused Devraj had entered into a conspiracy with Gulab Singh and Deepak Singh husband and son of Smt. Keshari Devi that it was settled that Deepak would be given the BSP ML A ticket for the Bara Vidhan Sabha constituency and as Ramakant Mishra who had a following in that area would prove an impediment and hence Gulab Singh, Deepak, Deepu etc. entered into a well thought out conspiracy to eliminate Ramakant Mishra. As he was close to the family hence Gulab Singh, Deepak etc. entrusted him with the task of obtaining the acid for the incident and for keeping a watch on Ramakant when he left for his morning walk. He had done these things and was now begging for forgiveness.
The investigating officer also claims to have taken steps for recording the statement under Section 164 Cr.P.C. of these two accused persons and it is not impossible in the circumstances that this belated involvement of these two persons, particularly Dev Raj Singh (who has been charge sheeted only under Section 120B IPC) was done in order to turn him into an approver.
30. In the parcha dated 9.6.06, when he prepared the charge sheet against the petitioners, the I.O. Vimal Kumar Mishra notes that some persons had suggested that the deceased may have faced the acid attack because of his illicit relations or because of some dispute with some employee in his office. However no investigating officer apart from the first I.O., Tej Bahadur Singh has conducted any investigation to explore the probability of these leads. The first I.O. had recorded the statement of one Lavkush Shukla, a resident of Nani, Allahabad, whose wife was teaching in the College in Kaurihar run by the deceased on 23.4.06 and who stated that he was very obliged to the deceased for having given his wife a job in his college. He also admitted that his wife used to sometimes visit the house of the deceased and stay with them when she was proceeding up and down between Naini and Kaurihar. But no further steps were taken to explore this lead, or to examine whether any of the young relations or admirers of the lady threw acid on the deceased as it is insinuated that acid throwing is usually resorted to by youngsters from malice or sexual jealousy. Nor has any investigation been done by any I.O. on the possibility of any of the employees of the deceased's college being hostile to him and committing this crime. Likewise only the first I.O. has recorded statements and taken affidavits of witnesses on record in support of the plea of alibi set up by the petitioner Deepak. The next I.O. Vimal Kumar appears to have hurriedly submitted a charge sheet against these two petitioners, perhaps with the object of getting the orders staying their arrests vacated and he was partly successful in this effort when we passed the order dated 5.7.06 vacating the stay on arrest granted earlier on submission of the charge sheet. However it was only on the intervention of the Apex Court by its order dated 28.7.06 that our order dated 5.7.06 was modified and the stay of arrest directed to continue until this Court finally disposed of the matter on merit. Thereafter a subsequent investigating officer S.I. S.K. Singh has roped in two of the close political supporters of the petitioners, Dipu @ Veer Pratap and Dev Raj Patel against whom a charge sheet has been hastily submitted in somewhat suspicious circumstances. It is for all these reasons that we think that an impartial investigation by the CBI alone will lead to the bottom of the truth. In Jamuna v. State of Bihar it has been held that the duty of the investigating officer is not only to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth.
(6) An investigation by the CBI is also warranted because the veracity and reliability of a crime about which evidence is available in Allahabad and Delhi, and where the reliability of the investigation conducted by the local police needs to be evaluated, can be more effectively conducted by an independent Central Investigating Agency. In Smt. Ramwati v. State of U.P. 2001 (42) ACC 751 a D.B. consisting of Hon'ble G.P. Mathur and Hon'ble S.K. Jain have observed that investigation by the CBI or CB CID may be justified if the crime has international, inter-state or inter-divisional ramifications.
31. It has been fairly conceded by the learned Counsel for the complainant and the learned AGA that there is no fetter on this Court directing investigation by the CBI and that no sanction from the State is required for ordering such an investigation. In this connection it has also been observed by the Apex Court in State of West Bengal v. Sampat Lal and Ors. in paragraph 13:
The question has not been recanvassed before us and it has been accepted by Counsel for all the parties including the Additional Solicitor General that while Section 6 of the Delhi Special Police Establishment Act, 1946 ('Act' for short) would require the consent of the State Government before jurisdiction under Section 5 of that Act is exercised by officers of that establishment, when a direction is given by the Court in an appropriate case, consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and Counsel for the parties rightly did not dispute this position. In this views, the impugned order of the learned single Judge and the appellate decision of the Division Bench appointing DGI, CBI to inquire into the matter would not be open to attack for want of sanction under Section 6 of the Act.
32. It has sagaciously been observed by the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. 2004 Cri. L.J. 2018 that simply because further investigation may cause a little delay in the trial of a case cannot provide any reason for not issuing a direction for further investigation if the circumstances warrant such a course, and in view of Section 173(8) Cr.P.C the mere submission of a charge sheet also cannot ipso facto preclude further investigation, if defects of investigation are noted. It would be useful here to quote paragraphs 11,12, and 13 of the said law report in extenso.
11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Om Prakash Narang and Anr. v. State (Delhi Admn.) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during the course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.
33. The learned AGA has placed reliance on the decision of the Apex Court in Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. 2002 (3) AWC 2509 (SC) for the proposition that in the absence of any prima facie case an order for investigation by the CBI should not be made. In paragraph 6 of the said law report the Apex Court has observed: "6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or the CBI to find out whether he has committed any offence or is living as a law abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima face case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause (supra)."
34. The decision relied upon by the learned AGA does not render much assistance to the prosecution as in that case a roving enquiry had been ordered by the High Court in the conduct of a minister by the CBI even in the absence of any prima facie material for justifying transfer of the investigation to the CBI. In the present case after closely examining the case diary in exercise of our powers under Section 172(2) Cr.P.C we have reached a conclusion as shown above that a prima facie case is disclosed for getting further investigation made into the matter by the CBI.
35. Moreover, such a direction for investigation of the CBI can only be passed by this Court because a Magistrate or other subordinate Sessions Court lacks the power to direct investigation by CBI. In view of the circumstances enumerated above it is directed that the CBI investigates into the crime on the following aspects:
(a) Whether the petitioners were actually involved in the crime.
(b) If the CBI comes to the finding that the petitioners or the other nominated accused were not involved in the commission of the crime, it must also try to find out as to who were the real assailants who had committed the crime, and whether the petitioners have been framed and who were the persons or officials involved in this frame up.
36. As the ramifications of this case are grave, in both eventualities, whether the investigation conducted by the local police is found to be fair and above board or it is found to be unreliable, we think that the circumstances call for a direction to the Director CB CID to get this matter investigated by a competent senior officer of the CBI of unimpeachable integrity who is impervious to influence.
37. We hope and trust that the CBI will endeavour to conclude this investigation within 3 months and in the event of some further time being required, it will be open to apply to the concerned lower Court where the matter is pending for extension of time, which has the option whether to grant time or not and whether to stay proceedings or to proceed with the hearing of the case in the meanwhile, keeping in mind that the trial in the case should not be unnecessarily held up.
38. Before parting we may observe that the observations hereinabove and the extensive reference to the case diary has only been done for arriving at a decision whether investigation in the matter be conducted by the CBI. The same shall not affect the independent powers of the CBI to investigate the matter. It may take all action for arrest, interrogation or other necessary steps for investigation against the suspects as it considers appropriate. Likewise the lower courts shall not be affected by these observations in its independent conduct of the trial of this case or in the assessment of the evidence adduced.
39. Interim order, if any, stands vacated.
40. Copy of this order may be given to the learned Government Advocate and the Counsel for the CBI and the parties within 48 hours for compliance.
41. With these observations, this petition is allowed as above.