Hon'ble Shashi Kant,J.
In the present case a Judicial Officer, of the rank of Additional Civil Judge, residing in well protected residence provided to her in the high security Judges' compound, at Aligarh an area protected under 24 hours police surveillance, has come up with the case that in the intervening night of 02.06.2014, at 12.30 pm, she has been subjected to rape by two of her relatives.
First information report of the said incident has been lodged by her brother Dheeraj Jindal and same has been registered as Case Crime No. 633 of 2014, under Section 458, 328, 354, 376, 323, 324, 307 IPC, Police Station Civil Lines, District Aligarh. On the said FIR in question being lodged against two persons who have been named as accused in the aforesaid case, they have rushed to this Court complaining therein that it is impossible to conceive of a situation that a judicial officer residing in high security area under 24 hours consistent surveillance of police has been subjected to rape. No one has witnessed the incident in question but for the lady in question. It is being asserted that this is a glaring case wherein lodging of FIR is being used as weapon for vengeance to harass the petitioners by all means fair and foul by a lady judicial officer and the local machinery is alive to the situation that the incidence in question is farce and a pretence but as complainant is a judicial officer with closed mind one sided investigation is being carried out without caring to investigate the other side of the story that here a judicial officer has intentionally fabricated evidence of rape whereas no rape has occurred for using the same as weapon of vengeance to harass and victimize the petitioners.
Petitioners have also submitted that law that has been framed for protecting the rights of women, in the present case has been misused with impunity and thus, the very purpose for strengthening of law for protection of women has been frustrated in the peculiar facts of the case and this Court should come to the rescue and reprieve of the petitioners, as it is duty of the investigating agency and the Court, at the end of the day, to find out the real unvarnished truth.
Petitioners have further proceeded to mention that sister of petitioner no. 2 namely Ragani Jindal has been married to Dheeraj Jindal, the informant and she has been having matrimonial discord with her husband and his family members, and as against them FIR in question namely Case Crime No. 28 of 2013 under Sections 498-A, 323, 504, 313 IPC read with Section 3/4 of D.P. Act has been lodged on 14.05.2013 and therein Judicial Officer has also been arrayed as an accused.
It has also been sought to be mentioned that Judicial Officer is living separately from her husband and her daughter and she has got full affiliation with her family members, and in view of this affiliation with her family members, she continues, to support her family members in each of their activity be it fair or foul. Details of matrimonial discord inter se Ragini Jindal and Dheeraj Jindal has been given, including the various proceedings that has been so initiated and in this background, it has been submitted that she by misusing her official position, has come forward to help out her family members and in this background it has been sought to be contended that while she was posted at District Agra she has proceeded against Boby and Babbu Gupta by lodging FIR, pertaining to offences under Sections 307, 452, 504, 506 I.P.C., that they attempted to kill her at her official residence and in the said incident in question petitioners claim that police after investigating the matter, found the case to be false and submitted final report. Petitioners have further contended that not only this another FIR in question has been lodged at Bareilly under Sections 417,468, 120-B, 504 I.P.C. and qua the same writ petition has been filed before this Court wherein interim order has been passed. Petitioners submit that once such is the background of the case, and the Judicial Officer is bent upon to harass and victimise the petitioners by all means fair and foul and with the said frame of mind, she has once again targeted the petitioners and has proceeded to lodge FIR complaining therein that she has been subjected to rape. Petitioners are complaining to this Court on the top of their voice that how a member of judicial fraternity is misusing the judicial position and misusing the legal machinery meant for protecting the women, the case in hand is glaring example of the same and classic illustration of misuse of rape related law. In pith and substance petitioners are putting the judicial officer herself in the dock.
This Court, as the matter was a delicate one and also of utmost importance as judicial officer has come forward complaining that she has been subjected to rape in the Judges' compound at Aligarh and entire prosecution on the other hand was being termed to be malicious and engineered by the petitioners, accordingly this Court passed order on 8.7.2014 which is quoted below:
"On the matter being taken up today, certified copy of the statement recorded under Section 164 Cr. P.C., has been supplied to the Court and same is accepted and taken on record.
In the present case Judicial Officer posted as Additional Civil Judge (Senior Division) in district Aligarh claims that she is victim of rape.
It is being submitted that at earlier point of time also she has proceeded to lodge first information report against the petitioners while she was posted at District Agra in respect of incident, and on investigation being carried out of the said incident, it was found that no such incident has been taken place pertaining to offences under Sections 307, 452, 504, 506 I.P.C., and thereafter another F.I.R. was lodged at Bareilly under Sections 417,468, 120-B, 504 I.P.C., and qua the same writ petition has been filed and interim order has been passed. It has been further submitted that same history has been repeated by once again lodging First Information Report.
This Court is not going into the merit of the case, as process of investigation is on, but as allegations have come forward that incident has taken place in the precints of the judicial officer compound, in view of same, this Court feels it proper that a report of District Judge, Aligarh be also called for in the said matter. Apart from calling report from the District Judge, Aligarh, report be also called for from the Senior Superintendent of Police, Aligarh as to what is status of the on going investigation.
Copy of the writ petition as well as copy of the order be supplied to Registrar General and he is directed by this Court to ask the District Judge/In-charge District Judge, Aligarh, holding the charge of District Judge, Aligarh to make inquiry into the matter and submit report in sealed cover by the next date fixed. Senior Superintendent of Police, Aligarh is directed to file his affidavit in this respect and learned A.G.A. should take necessary action in the matter.
Pursuant to order passed by this Court District Judge, Aligarh has conducted the inquiry and has submitted the report dated 01.08.2014 and the said report has been accepted and is being treated as part of the record.
Short counter affidavit has been filed by the Senior Superintendent of Police and therein he has proceeded to give brief summary of the case as follows:
"A. Date 2.06.2014: first information report was lodged at Police Station Civil Lines, Aligarh.
B. Date 3.6.2014 medical of the victim was conducted Investigating Officer inspected the spot and Investigating Officer tried to record the statement of victim but she denied. Special team of Vidhi Vigyan Prayogshala came by the order of Senior Superintendent of Police, Aligarh.
C. Date 4.6.2014 statement of victim under Section 161 Cr.P.C was recorded by Station Officer, Mahila Thana, Aligarh.
D. Date 6.6.2014 statement of victim under Section 164 Cr.P.C was recorded before learned Magistrate, Aligarh. Arrest warrant has been issued by the learned Court S.S.I, Civil Line tried to arrest the accused persons but in vain.
E. Date 18.6.2014 investigation of the case has been transferred to Incharge Crime Branch.
F. Date 23.6.2014 investigation was taken over by the Incharge Crime Branch.
G. Date 28.6.2014 Incharge Crime Branch taken over the order for compliance of 82 Cr.P.C, who complied by pasting the order 82 Cr.P.C and also handed over it to the family members of the accused persons.
H. Date 1.7.2014 Incharge Crime Branch moved application for taking medical report of the victim at A.M.U Aligarh.
I. Date 5.7.2014 Incharge Crime Branch recorded statement of earlier investigating Officer, Station House Officer, Civil Line Station Officer Mahila Thana and Sub-Inspector Karunanidhi.
J. Date 9.7.2014 Incharge Crime Branch raided at several places in search of accused persons.
Before this Court matter was taken up on 07.08.2014 and on the said date from the side of petitioners following submission were made:
"(i) large scale improvement has been made in the story narrated in FIR lodged by her brother and in the statement made by her under Section 164 Cr.P.C. as in the FIR, theory of attempted rape and of insulating hit in mouth has been mentioned and in statement under section 164 Cr.P.C., designed rape has been introduced and she consuming 'hit' on account of depression.
(ii) Case diary in question reflects that large contingent of PAC force is posted in judges compound and the entire contingent on duty has specifically stated that there has been no illegal entry of any incumbent, the entire night and they never heard of any such incident.
(iii) Multiple scratches has been alleged by victim on her body, and on being asked by Doctor to supply nail clipping, she refused to supply the same, as same would have clearly exposed her.
(iv) In spite of being asked for, she has failed to hand over her mobile so that it could have been sent to FSL.
(v) Most abnormal conduct is that she claims to have been subjected to rape, and in the said night she has sent SMS to Dhirendra and Avinash Pandey, asking to come with TV camera, the next morning, and at no point of time she ever came out to make complaint to her colleagues who were next door neighbour and police personnels posted in the compound.
(vi) Her two friends to whom SMS had been sent are not at all co-operating with the investigation and are not at all handing over their mobile and similarly officer concerned is also not handing over her mobile, and reason is obvious that she would be exposed, as to what was her activity, the entire night and with whom she has been interacting.
On the said submission made, this Court proceeded to pass order giving protection in the matter of arrest that no coercive action be taken against the petitioners in pursuance of the FIR dated 2.6.2014 registered as Case Crime No. 633 of 2014, under Section 458, 328, 354, 376, 323, 324, 307 IPC, P.S.Civil Lines, District Aligarh till the next date fixed. This Court on the said day also proceeded to ask Additional Government Advocate to file affidavit of Senior Superintendent of Police, Aligarh as this Court looking into the gravity of the matter and the background of the case that has been so emerging also asked to find out the possibility, as to whether in the facts of the case, the matter should be got investigated by C.B.I. or not?
Pursuant to order passed by this Court the Investigating Officer filed his counter affidavit in following term "7. That it is submitted that on 3.6.2014 medical examination of the victim was conducted and thereafter, reports were prepared by J.N.Medical College, AMU Aligarh.
8. That it is submitted that on 3.6.2014 recovery memo/Fard of knife, seizer, Hit Container, Maxi, Dari, were made by the then Investigating Officer, and it was duly signed by two witnesses.
9. That it is submitted that on 6.6.2014 statement of prosecutrix, namely Rinku Jindal was recorded in Court of Chief Judicial Magistrate, Aligarh. The statement of prosecutrix was noted down by the deponent in the case diary.
10. That it is submitted that Non Bailable Warrants were obtained by earlier Investigating Officer, from Court concerned against the Accused on 6.6.2014.
11. That it is submitted that the statement of Dhirendra was recorded by the deponent under Section 161 Cr.P.C on 22.07.2014. Dhirendra is a Reporter in News Channel "Sahara" in Aligarh.
12. That it is submitted that the order, under Section 82 Cr.P.C was obtained by the deponent from the concerned Court against accused persons on 28.6.2014 and the same was served upon accused Gopal Gupta on 28.6.2014 and upon accused Pankaj Gupta on 29.6.2014.
13. That it is respectfully submitted that the statement of Sri Avinash Pandey, Sub-Registrar, District and Sessions Court, Aligarh was also recorded by the deponent/Investigating Officer on 9.8.2014"
Counter affidavit has been filed by the Senior Superintendent of Police, once again in following term " The Case investigated into with utmost professionalism, integrity and impartiality, all the direction of Hon'ble SC and HC regarding Crimes against women are being followed and as such no need is felt to transfer the case from the District Police.
Nevertheless if in the opinion of Hon'ble Court the case may be transferred in interest of justice to any agency. The District Police has no objection in that regard. "
Counter affidavit has been filed on behalf of respondent nos. 4 and 5 and therein incident in question has been reiterated and it has been stated that question of expediency of transfer of investigation should also be looked into in the light of relevant facts i.e. the nature of offence which has been committed in complete privacy against the deponent and the statement of prosecutrix recorded under Section 161 Cr.P.C as well as under Section 164 Cr.P.C has to be accepted as truthful and same clearly corroborates the case against the accused-petitioners and the probability factor or corroborative material which are being used and highlighted against her statements, can only be taken note of by a judicial court, during a full fledged trial, while judging or evaluating the same as per golden rule of law applicable.
After pleadings inter se parties have been exchanged, this Court takes up the matter.
Sri Rajiv Lochan Shukla, learned counsel for the petitioners appearing alongwith Sri Awadhesh Kumar Mishra, Advocate submitted before this Court that the facts of the case, as it emanates from record clearly demonstrates and substantiates that in the present case a judicial officer is misusing her judicial position with impunity and not only this, she is misusing the law meant for protection of a women, as such much more duty is cast upon the High Court to see that injustice, if she is right by remotest means may not be done to her as well as injustice may also not be done to the petitioners merely on her whims and fancies and in view of this, this Court in the facts of the case, should come forward, and rise to the occasion, as already indicated above by proceeding to transfer the investigation, as it is bounden duty of Constitutional Courts to protect life and liberty of citizen, failing which issues raised would be meaningless. In view of this, facts of the case does warrant impartial investigation by premier investigation agency such as Central Bureau of Investigation as here testimony of lady in question is highly suspicious one and same creates great doubt qua the incidence in question, as has been alleged by her in the backdrop of the attending circumstances which is inclusive of SMS (Short Message Services) given by her to her male friends asking them to come with TV camera in the next morning, and at no point of time she ever came out to make complaint to her colleagues, who were next door neighbour and the report of District Judge also in so many words suggests that no such incident has taken place, as on the basis of statement of witnesses, it was reflected that no one has seen the incident nor any body has any personal knowledge of the commission of rape, and large scale loopholes and potholes are there in the story set up by her therein and that is why she is trying to wriggle out from impartial investigation and is trying to block the same whereas local police has miserably failed to make proper investigation as well as impartial investigation and on its face value investigation in question is lopsided investigation, accordingly in the facts of the case, for advancing cause of justice, in the ends of justice requisite relief be accorded.
Countering the said submission Sri Syed Ali Murtaza, learned AGA contended that entire material is before this Court and as far as State is concerned, State has no objection as per the affidavit of Senior Superintendent of Police, if investigation in question is transferred to Central Bureau of Investigation and this Court in the facts of the case, may pass appropriate orders, for advancing cause of justice.
Sri Manish Goel, learned counsel for the High Court, who has placed the report of District Judge, contended that the case in hand is one of public importance, as entire judicial fraternity has been shocked after hearing the news of said incident in question and if the allegations are correct same depicts sordid state of affairs and report of the District Judge has been termed by him as independent report and in the light of said report in question it has been stated by him that all the facts should be taken note of while deciding the matter and he has also supported the idea of transferring the investigation but with further request that this Court should monitor the investigation as various guidelines would be required to be issued, as was done in the case of Nadiad case (Delhi Judicial Service Vs. State of Gujrat, 1991 (4) SCC 406) for protecting the personal liberty of judicial officers and here also if there is truth, as is being stated by the judicial officer then certainly guidelines would be required.
Sri Sushil Shukla, Advocate representing respondent nos. 4 and 5 on the other hand contended that here judicial officer has been victimized and her statement made under Section 161 and 164 Cr.P.C are speaking for itself and in view of this, at this juncture and at this stage of proceeding when investigation virtually is being finalized the matter would be unnecessarily further delayed, as such this Court should not come to forward to the rescue of the petitioners and accordingly in the facts of the case this Court should refuse to interfere in the matter. As far as authority of this Court to transfer the investigation from local police to CBI is concerned same has not at all been disputed but it has been suggested and contended that case in hand is not at all falling in the said category, and in the facts of the case, as a Judge has fallen prey to injustice, this Court should ensure speedy justice to her.
After the matter has been heard extensively, this Court proceeds to deal with the arguments, as have been so advanced.
The issue to be addressed is as to whether in the facts of the case investigation in question should be transferred from local police to CBI or not in the ends of justice.
Factual situation on which there is no dispute that incident in question has been alleged to have taken place in the high security judges' compound, an area under 24 hours police surveillance in the midnight and this is also equally true, as has been stated by respondent no. 5 herself that the offence in question has been done in private and but for her there is no other witness to support the crime in question. From the report of District Judge dated 01.08.2014 based on recording of statement of witnesses, it is clearly revealed that no one has seen the incident nor any body has any personal knowledge.
Emphatically from the side of petitioners it has been mentioned that she being a judicial officer should have standard of rectitude, honesty, and integrity and she can not be permitted to act even remotely, unworthy of the office she occupies and her repeated act shows that she is misusing her official position and also misusing the law which she knows are meant for protecting the women and the said laws are being used as weapon for vengeance to harass and victimise the petitioners and the local machinery is dancing to her tune and no attempt or endeavour has been made by them to differentiate a genuine rape case from the false rape case and that is why facts of the case warrants investigation in question to be transferred from local police to CBI as till today totally lopsided investigation has been done in the present case, without there being any element of seriousness involved, to find out the real truth. The investigation in question demanded techniques with scientific advancement such as Polygraph examination; Narco analysis technique and BEAP test etc. to have been utilised but the case in hand has been treated as a routine case and no importance has been given to forensic evidence, and one point programme has been of the investigating agency to effectuate arrest by any means.
From the side of the petitioners to discredit the theory of rape set out by judicial officer it has been pointed out, based on circumstances and record available (i) at the point of time when officer concerned has been taken to hospital, she stated before the Doctor concerned that apart from two men there was one women also whereas in the FIR only both the petitioners have been shown as accused. (ii) large scale improvement has been made in the story narrated in FIR lodged by her brother and in the statement made by her under Section 164 Cr.P.C. as in the FIR, theory of attempted rape and of insulating hit in mouth has been mentioned and in statement under section 164 Cr.P.C., designed rape has been introduced by stating that petitioners were talking amongst themselves not to discharge within and they accordingly did not discharge within and she consuming 'hit' on account of depression has been set up, and conscious of this fact that petitioners presence on the scene cannot be substantiated from forensic evidence, in calculated manner it has been mentioned that their hand had gloves and they had covered up their foot also. (iii) Case diary in question reflects that large contingent of PAC force is posted in judges compound and the entire contingent on duty has specifically stated that there has been no illegal entry of any incumbent, the entire night and they never heard of any such incident. (iv) Multiple scratches has been alleged by victim on her body, and on being asked by Doctor to supply nail clipping, she refused to supply the same, as same would have clearly exposed her and would have substantiated the fact that same was self inflicted. (v) In spite of being asked for, she has failed to hand over her mobile so that it could have been sent to FSL. (vi) Most abnormal conduct is that she claims to have been subjected to rape, and in the said night she has sent SMS to Dhirendra and Avinash Pandey, asking to come with TV camera, in the next morning, and at no point of time she ever came out to make complaint to her colleagues who were next door neighbour and police personnels posted in the compound. (vii) Her two friends to whom SMS had been sent are not at all co-operating with the investigation and are not at all handing over their mobile and similarly officer concerned is also not handing over her mobile, and reason is obvious that she would be exposed, as to what was her activity, in the entire night and with whom she has been interacting. (viii) Conduct of two so called friends, that they have been informed that rape has been committed on her, they never thought in their wisdom to reach the residence of judicial officer, then and there in the night itself to come to her rescue and extend her emotional support, whereas one of them Avinash Pandey appears to be much old family friend, as his name finds place in the FIR lodged at PS Hari Parvat, Agra. (ix) The District Judge, has submitted detailed report examining employees, staff and judicial officers and no one has supported the case, as has been set up by judicial officer, rather all of them have expressed, no knowledge of the incidence in question, and acquiring knowledge of the same in morning.
From the side of respondent nos. 4 and 5, entire emphasis is on the statement made by judicial officer under Section 161 and 164 Cr.P.C.
This Court has proceeded to peruse the affidavit filed by the investigating officer as well as Senior Superintendent of Police and finds that in the present case investigation in question is totally lopsided i.e. one sided and reason appears to be obvious as Judicial Officer is a victim and her statement under Section 161 and 164 Cr.P.C has been got recorded and the Investigating agency is accepting the same as gospel truth without making any endeavour to find out as to what is the actual state of affairs and as to whether incident in question could possibly have taken place as has been alleged keeping in view the fact that incident in question has taken place inside the Judges Compound, wherein but for victim no one has come forward to support the incident in question. The investigation has to be fair judicious, transparent and expeditious to ensure with basic compliance of law i.e to find out as to where the truth lies. Same obligates the Investigating Officer to view the case in hand being investigated from all possible angles i.e. from the perspective of complainant and from the perspective of accused persons also, as ultimate object of investigation is to bring guilty to law as no body stands above law dehors his position and influence in the society. The investigation has to be conducted in manner, that would reflect that every possible measure has been taken to find out the whole truth and to decipher the truth from the web of falsehoods.
In the present case this much is reflected that FIR in question was lodged on 02.06.2014 and on 03.06.2014 medical examination of victim was conducted at J.N. Medical College, AMU, Aligarh wherein there has been total non-cooperation on the part of the judicial officer concerned as she on the said date refused to give her statement under Section 161 Cr.P.C and on the said date special team of Vidhi Vigyan Prayogshala reached on the spot and on 03.06.2014 recovery memo has been prepared and on 06.06.2014 statement of judicial officer has been got recorded wherein she has come up with a case that rape has been committed on her.
Once statement of judicial officer has been got recorded, the investigating agency thought that now it is their duty to arrest the petitioners and accordingly arrest warrant was asked for and same was issued by Court and then exercise to effectuate arrest started. On 18.06.2014 investigation of case has been transferred to Crime Branch and on 23.06.2014 same has been taken over by Crime Branch, and on 28.06.2014 Crime Branch has taken order for action under Section 82 Cr.P.C. The two persons, to whom SMS message has been sent one of them Dharmendra the journalist has been examined on 22.07.2014, and another incumbent Avinash Pandey, Sub-Registrar has been examined on 09.08.2014 and most surprisingly on 12.08.2014, Scientific Officer, Forensic Laboratory Agra, has sent letter mentioning therein that materials recovered have wrongly been sent to Forensic Science Laboratory, Lucknow. The investigation in question, so carried out till date, no where reflects that Investigating Officer tried to find out, as to how such dastardly incident took place when it is highly protected vicinity, the theory of rape as set up in the facts of case can it be termed as manufactured theory i.e that there is false accusation of rape meaning thereby that there is intentional reporting of rape of an alleged victim whereas no rape has occurred in fact; are injuries on her body self inflicted and that is why on the asking of forensic expert she refused to give her nail clippings. Unnatural conduct of victim who is being subjected to rape in high security judges compound sending SMS to her Journalist friend and one another friend informing them that rape has been committed and asking them to come in the next morning with camera etc. and at no point of time, she ever came out to make complaint to her colleagues who were next door neighbour and police personnels posted in the compound then all these attending circumstances ought to have been looked into by the Investigating agency but it appears as victim has been judicial officer the same has been over looked. Not only this in the present case both the incumbents, who have received the SMS, have proceeded to delete the same and have not all been cooperating with the investigation and even the judicial officer has not all handed over her mobile to the local police, and the local police, who has been dealing with the matter, ignored all these aforesaid aspect of the matter and started taking coercive measures of arrest of the petitioners. The story set up by judicial officer has been accepted to be truthful and by placing blind reliance on the same, the investigation has been carried on the same lines totally ignoring the circumstances that were raising the needle of suspicion that in pre concerted manner legal machinery has been misused. Once all these aspect of the matter has been left out then the investigation in question could not be termed as fair and impartial and has to be accepted as vitiated. Much more thorough objective investigation was required and same has not been done and investigation lacks objectivity in the facts of present case.
Once such is the factual situation that has so emerged and fair investigation is also part of the constitutional rights guaranteed under Article 20 and 21 of the Constitution of India, as per the judgement of Apex Court in the case of Babubhai Vs. State of Gujarat reported in (2010) 12 SCC 254. then what further steps should be undertaken to do justice can be understood from paragraphs 32 to 39 of the said judgement, and same is being quoted below:
32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur Vs. State of Punjab AIR 1960 SC 866; Jamuna Chaudhary & Ors. Vs. State of Bihar AIR 1974 SC 1822; and Mahmood Vs. State of U.P. AIR 1976 SC 69).
33. In State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260, this Court has held as under:
"Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ....Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. ....Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power....The word `personal liberty' (under Article 21 of the Constitution) is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily..... An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."
34. In Navinchandra N. Majithia Vs. State of Meghalaya & Ors. AIR 2000 SC 3275, this Court considered a large number of its earlier judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial. Therefore, the court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: "The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence..... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. ....A vitiated investigation is the precursor for miscarriage of criminal justice."
(Emphasis added)
35. In Nirmal Singh Kahlon (supra), this Court held that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India.
36. In Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1, one of us (Hon'ble P. Sathasivam, J.) has elaborately dealt with the requirement of fair investigation observing as under:-
"...... The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India....
It is not only the responsibility of the investigating agency but as well as that 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. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society....
The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation....
The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation.....".
37. This Court in K. Chandrasekhar Vs. State of Kerala & Ors. (1998) 5 SCC 223; Ramachandran Vs. R. Udhayakumar & Ors. (2008) 5 SCC 413; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel & Ors. Vs. State of Gujarat (2009) 6 SCC 332; and Kishan Lal Vs. Dharmendra Bafna (2009) 7 SCC 685 has emphasised that where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re-investigation. "Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."
38. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar Tiwari & Ors. AIR 1970 SC 786).
39. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair. ."
Aforesaid judgment has been followed in the case of Hema Vs. State through Inspector of Police, Madras reported in (2013) 10 SCC 192 wherein Apex Court has once again repeated that the investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner and in case biased investigation or tainted investigation is there then certainly same would never result in fair trial.
Apex Court once again in the case of Manohar Lal Sharma Vs. Principal Secretary 2014 (2) SCC 553 has emphasised that aim of investigation is ultimately to search for truth and bring the offender to book and Court may in appropriate cases intervene to protect personal/property rights of citizens. In the said judgement itself role of police has been discussed as follows.
25. Lord Denning has described the role of the police thus: "In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or 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"
26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book."
Once fair investigation is a right guaranteed under Article 20 and 21 of the Constitution of India then in case there is apprehension of there being unfair investigation then for strong reason said investigation can always be transferred so that real truth may be revealed and as far as authority of this Court to transfer the investigation is concerned, same cannot be doubted as law on the subject has been clarified in the case of State Of West Bengal & Ors vs Committee For Protect,Democratic Rights reported in 2010 (3) SCC 571 wherein Apex Court observed as follows:
70.Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
Said judgement has been followed in the case of K.V. Rajendran Vs. Superintendent of Police reported in 2013 (12) SCC by summarizing the law in respect of transferring of investigation from State to any other independent agency like CBI, by mentioning that same may be done only in rare and exceptional cases, and further where it is necessary to do justice and to instil confidence in the investigation. Relevant extract aforesaid judgement is being reproduced below:
"The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors., AIR 1994 SC 1023; Vineet Narain & Ors., v. Union of India & Anr., AIR 1996 SC 3386; Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC 314; Disha v. State of Gujarat & Ors., AIR 2011 SC 3168; Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors., (2011) 13 SCC 329; and State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364).
Once such are the parameters that has been settled, this Court proceeds to consider as to whether in the facts of the case investigation in question should be transferred to Central Bureau of Investigation or not.
Looking into the facts of the present case that a judicial officer has come forward alleging therein that she has been subjected to rape in the high security Judges' compound an area protected under 24 hours Police surveillance and this Court as the matter pertained to a judicial officer asked the District Judge to conduct inquiry and submit its report and District Judge clearly suggested that none of the judicial officer and none of the police personnels, who are posted in the said area ever come forward to support the case of judicial officer concerned rather each one of the them in their statement made before the District Judge concerned has clearly showed their unawareness of crime in question being committed and that they came to know of the said incident in morning. As per the counter affidavit she is stating that her statement be accepted as gospel truth and based on the same charge sheet should be submitted and accused-persons should be got booked.
Case in hand is one of public importance, inasmuch as on one hand security and safety of judicial officer is involved and on the other hand personal liberty of petitioners is also at stake, as it is being claimed by them, to the top of their voice that they are being framed up by the judicial officer and the theory of rape set up by her is such that no reasonable or prudent man would ever believe the same to be true, and this Court should see and get it investigated as to whether being a judicial officer she is misusing her official position or not by cooking up story of rape being committed on her and as such case in question be transferred from local police to CBI so that clear and truthful picture emerges.
Once here in the present a judicial officer has been subjected to rape inside the judges compound an area protected under 24 hours police surveillance, and this Court in the earlier part of the judgement has concluded that the investigation in question that has been so carried out is totally one sided and investigation in question on its face value is lopsided i.e. one sided, ignoring her conduct that she has refused to hand over the mobile phone; she has refused to supply nail clipping; She has refused recording of statement under Section 161 Cr.P.C on the day of her medical examination; most abnormal conduct has been by sending SMS to Journalist friend and personal friend and change of stand in the FIR and the statement made under Section 164 Cr.P.C as to how designed rape has been committed and straight away coercive measure has been taken.
This Court in the facts of the case concludes that investigation in question till date has not been free, fair and impartial investigation rather it is reflected that it is one sided and the local police dealing with the matter of judicial officer being subjected to rape has submitted various reports and said reports cannot be said to be judicious, fair and transparent in the facts of the case.
Consequently, in the facts of the case once issue of public importance arises i.e as to whether a judicial officer is misusing her official position or there has been large scale security breach in judges compound, leading to rape being committed on a judicial officer from the Courts perspective and point of view both the situations are alarming and has to be viewed with all seriousness, as if rape has been committed, as has been mentioned in the FIR, then it has to be handled with all seriousness, as rape has been termed as one of the most heinous crime against women, as it not only insults womanhood but it violates the dignity of woman and erodes her honour, and on the other hand, if all norms have been broken by a judicial officer, who happens to be a women also by making false accusation of rape by misusing law then this aspect of the matter attains much more significance, as it is not only brings bad name to the judicial fraternity, it also exposes the judicial officer for criminal prosecution to be launched under Sections 182, 195 and 211 IPC, which criminalises any person filing false charge. A noted legal scholar Prof. Alan Dershowitz has given following quote in the said context "Rape is such a serious crime that deliberately brining a false accusation of rape should be an equally serious crime and women are not being punished for those crimes. I believe that being falsely accused of rape is as traumatic as being raped". Meaning thereby that the impact of said calculated act and misuse of law, is that the incumbent, who has been charged for the offence of rape, the offence that he has never committed, his public image is completely ruined and tarnished, and not only he but his entire family has to go through a great pain, and for rest of the life he and his family has to struggle to regain the reputation, then in order to instil confidence in the public mind and in order to do complete justice in between the parties, this Court proceeds to pass order to retain public confidence in impartial working of the state agencies and to ensure the fact that truth should come on surface and no one is over and above the law and no one can be permitted to play with law, this Court proceeds to pass order directing transfer of investigation from local police to Central Bureau of Investigation, accordingly, Senior Superintendent of Police, Aligarh is directed to hand over the entire paper of investigation to the Director, Central Bureau of Investigation New Delhi, and Sri N.I. Zafari, Advocate, who represents CBI before this Court, and who has entered appearance on the asking of the Court, and who has informed this Court that on the entire papers being received by the Director, Central Bureau of Investigation, New Delhi, CBI personnels would proceed to investigate the case from all angles in accordance with law. Accordingly, the case in hand stands transferred to Central Bureau of Investigation for denevo investigation from all angles.
Petitioners at last contended that they would co-operate with the investigation and they should not be mechanically arrested.
Apex Court in the case of Joginder Kumar Vs. State of U.P. 1994 (4) SCC 260 has mentioned that law of arrest is one of balancing individual rights, liberties and individual rights on one hand and individual duties, obligations and responsibilities on other hand. The existence of power is one thing and justification for exercise thereof is another. Arrest cannot be made in routine manner. Para 20 of the aforesaid judgment is quoted below:
No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."
Registration of FIR under Section 154 Cr.P.C. and arrest of accused person under Section 41 are two entirely different concepts. Apex Court in Criminal Writ Petition No.68 of 2008 Lalita Kumar vs. Government of U.P. decided on 12.11.2013 has clearly ruled that it is not correct to say that just because FIR is registered, the accused person can be arrested immediately. In the said judgment itself, as to why legislature has consciously used the expression information in Section 154(1) of the Code as against the expression used in Section 41(1)(a) and (g) where the expression used for arresting person without warrant is "reasonable complaint" or "credible information" has been dealt with as the expression under Section 154(1) of Code is not qualified by the prefix "reasonable" or "credible". In the matter of arrest various safeguards have been provided and once again Joginder Kumar (Supra) has been reiterated in paragraph 99.
Once such is the law, covering the area of arrest, and petitioners have undertaken to co-operate in the investigation, this Court, leaves it open to the discretion of Central Bureau of Investigation authorities to decide, as to whether arrest of petitioners is to be effectuated or not, and in case arrest is to be effectuated, the parameters of effectuating effect, as settled in the case of Joginder Kumar (Supra) be kept in mind and strictly adhered to without being influenced by the steps so undertaken by local police in the matter of effectuating arrest.
As the matter pertains to judicial officer, CBI after concluding the investigation should inform the Registrar General of this Court of the out come of investigation for being placed before the Hon'ble Chief Justice.
With these observations/direction present writ petition stands disposed of.