Crl. Misc. not M 1095.of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Misc. not M 1095.of 2010 (O&M) Date of decision:
12. 08.2013 Harkrishan Sarohi (dead through Sito Devi (widow) ........ Petitioner Versus State of Haryana and others .......Respondents Coram: Hon'ble Mrs. Justice Rekha Mittal -.- Present: Mr. G S Gandhi, Advocate for the petitioner Mr. Anupam Sharma, AAG, Haryana -.- 1. Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporter or not?.
3. Whether the judgment should be reported in the Digest?. Rekha Mittal, J.The petitioner, invoking jurisdiction of this Court under 482 of the Code of Criminal Procedure (for short, ‘the Code’), prays for entrusting the investigating in case FIR No.27 dated 18.01.2010 to the Central Bureau of Investigation (for short, ‘CBI’). The brief facts of this case as alleged are that Ashok Kumar son of the petitioner was employed as a technician with TATA Indicom. The Towers of TATA Indicom and BSNL were established at the Mata Gate, Kaithal. Parmod Kumar Rana and Krishan, Security Guard are working on the Tower of TATA Indicom and Vinod, a Guard was on duty on the BSNL Tower. On 15.01.2010, Ashok Kumar came to the house to take meal at Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 2 about 08.30 pm. At about 9/9.15 pm, he received a call on his mobile No.9896804164 from Parmod Kumar Rana from Mobile No.9215084518 asking Ashok Kumar to come to the Tower at Mata Gate Kaithal, immediately. At about 10.00 pm, Parmod Kumar Rana came to the house of the petitioner and informed his son Vijay to accompany him as Ashok Kumar was lying unconscious. On reaching the spot, Vijay found that face of Ashok Kumar was soaked with blood. Ashok Kumar was taken to Govt. Hospital, Kaithal in the vehicle of Jagdish, where the doctor declared him dead and sent intimation to the Police. The post mortem was conducted on the dead body on 16.01.2010 and the doctor opined the cause of death 'shock and haemorrhage due to various injuries described including head injury, which are ante mortem in nature and sufficient to cause death in the normal course'. However, viscera and blood sample was sent for ascertaining poisoning or alcoholism. Counsel for the petitioner submits that despite receipt of intimation by the police from the Hospital, the police failed to register a case under Section 302/34 of Indian Penal Code (in short, 'IPC'). The petitioner approached the SHO, Kaithal, for registration of case, but he did not take any action. The criminal case was registered after two days of the occurrence with the intervention of the Deputy Commissioner, Kaithal as the petitioner submitted an application dated 18.01.2010 (Annexure P4). The petitioner nominated three persons, namely, Parmod Kumar Rana, Krishan, Security Guard and Vinod, Security Guard as accused, but they were not arrested in the case. The petitioner submitted a request for transfer of investigation to CBI, vide application dated 01.02.2010 (Annexure P7), but the investigation was transferred to CIA Staff. It is further argued that Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 3 neither during investigation conducted by the local police not by the CIA Staff, any effort was made to recover the belongings of the deceased, like TATA Indicom mobile phone, personal diary, ATM Car, Identity Card and memory card, in possession of the deceased at the relevant time. It is further submitted that the petitioner (since deceased) recorded a conversion of accused Krishan, which was translated in English (Annexure R-2), a perusal thereof would reveal that Parmod, Vinot and Krishan are guilty of committing murder of Ashok Kumar, but they have not been booked in the crime due to failure of the investigating agency to collect material pieces of evidence. The last submission made by counsel is that as the petitioner has lost his young, energetic and healthy son, murdered by Parmod and others, action of the accused amounts to infringement of fundamental rights of life of the victim/deceased which requires investigation of the case to be handed over to CBI to unearth the crime and to punish the culprits. Per contra, counsel for the respondents argues that the petitioner failed to produce any evidence that Parmod and others against whom the petitioner expressed his suspicion had any grievance against the deceased to kill him. Parmod, Krishan and Vinod, the alleged suspects, were thoroughly interrogated on several occasions, but nothing has been elicited during their searching interrogation to point an accusing finger towards them, warranting their arrest or charging them with the crime. All the three persons were subject to Polygraph (lie detector) on 27.05.2010 but in view of the report of FSL, Madhuban (Haryana), no meaningful polygrams could be obtained in respect of Vinot and Krishan and analysis and evaluation of polygram in respect of Parmod Kumar did not reveal deceptive responses. The recorded conversion in the CD produced by the Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 4 petitioner before the Court was got transcripted from the Cyber Branch and its English translation (Annexure R2) does not reveal any role attributable to the alleged suspects. The investigation of the case was transferred to CIA Staff on 17.02.2010, acceding to the request of the petitioner. The alleged suspects were interrogated by Inspector Jaimal Singh, CIA Kaithal on 24.02.2010, but nothing fruitful could be elicited to implicate them in the crime. Later, Jeet Kumar and his wife Mumtesh staying near the place of occurrence and alleged to have seen the crime were also subject to polygraph test, but without any result. The opinion of the doctors who conducted the post mortem examination was sought if the injuries found on the person of the deceased could be sustained due to entangle of chadder/shawl worn by the deceased at the time of occurrence and as per the said opinion those injuries could be sustained due to entangle of shawl of the deceased in the generator. Information was received from the Electricity department that on the date of occurrence, there was power cut between 8.30 pm to 10.00 pm to examine whether generator was on and the deceased had gone to put the generator off due to restoration of power at about 10.00 pm as stated by the alleged suspects. The investigation was conducted by the Special Investigation Team (SIT), constituted for the purpose, but nothing tangible came out on fore to implicate the suspects in the crime. It is argued with vehemence that every endeavour was made by different investigating officers/agencies to find out any material whether the alleged suspects had any role to play in the unfortunate death of Ashok Kumar, but the facts collected during investigation pointed out consistently that Ashok Kumar sustained injuries in an accidental occurrence as his shawl got entangled in the generator as he had gone to the generator room to switch Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 5 off the generator, on restoration of power at about 10.00 pm. I have heard counsel for the parties and perused the records. A perusal of the allegations levelled by the petitioner would reveal that the petitioner avers that “due to some personal undisclosed grudge”. Ashok Kumar was killed by Parmod, Krishan and Vinot in pursuance of a conspiracy hatched by them. The petitioner, an unfortunate father of the deceased, died during pendency of the proceedings. He remained alive till 21.05.2011 for a period of more than one year since death of Ashok Kumar on the intervening night of 15/16.01.2010. The petition was filed in April, 2010, three months after the occurrence. The petitioner failed to point out any material to substantiate his plea that Parmod and others had any grievance much less a serious one to enter into a conspiracy to kill the deceased. The petitioner did not raise an accusing finger towards Parmod and others until he submitted an application dated 18.01.2010 to the Deputy Commissioner, Kaithal. The petitioner has placed on record an application dated 16.01.2010 purported to be addressed to the SHO, Police Station Kaithal but there is no endorsement in regard to its receipt by the said authority. The grievance of the petitioner that the police was obliged to lodge an FIR under Section 302 IPC on receipt of information from the Hospital with regard to sustaining of injuries by Ashok Kumar and his subsequent death, is untenable, because by that time, there was no information with the police raising any suspicion with regard to his death being homicidal. The petitioner made a request for transfer of investigation to CIA Staff and his applications dated 23.01.2010 and 11.02.2010 (Annexure Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 6 P6 and P7, respectively), in this regard, were duly considered and the investigation was transferred to CIA Staff. The petitioner has alleged inaction on the part of the investigating officer(s), but he has not alleged bias actuated by malice or mala fide. The persons alleged to be author of the crime are also employees of TATA Indicom and BSNL, working on the Towers as Guard or otherwise. There is nothing on record to suggest that they had the capacity to wield influence with the police much less actual wielding of influence. Parmod Kumar and others were interrogated on different occasions by different agencies. They were subject to Polygraphy test on 27.05.2010, but without any result. The doctors, who conducted post mortem examination on the dead body expressed opinion that possibility of sustaining injuries as described in the post mortem report due to entangling of shawl and subsequently sustaining of injuries due to strike against the generator and/or against the hard surface, cannot be ruled out. The CD containing conversion between the petitioner and Krishan accused, produced before this Court on 30.06.2010 (CRM 1095.of 2010) was handed over to Inspector Jaimal Singh, CIA Staff. The conversion was got transcripted from the Cyber Branch and its English translation (Annexure R-2) was placed on record. Subsequent thereto, on 04.02.2011, this Court passed an order after going through the status report dated 29.11.2010, submitted by DSP, Headquarter. A relevant extract of order dated 04.02.2011 reads as follows:- “As per the affidavit dated 29.11.2010, the cause of death could be an accident by entangling with the generator set. The Senior Superintendent of Police, Kaithal Bimbra Mohan Lal is directed to file detailed report of the cause of 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 7 death in the form of affidavit within a period of ten days.”
. In response thereto, Simardeep Singh, Superintendent of Police, Kaithal, submitted a status report. A relevant extract from the report is extracted herein below:-
“6. That on material came about during investigation that anybody has caused the death of Ashok Kumar or has placed any role in that. Except the statement of petitioner, no material eye witnesses have supported his version not any circumstantial evidence indicates that deceased was murdered by any body. From the material available on the file, it strongly indicates that Ashok Kumar died as a result of accident by entangling his chadder in the belt of the generator set.”
. On 29.04.2011, this Court passed an order and relevant extract thereof is quoted thus:- “Learned counsel for the petitioner at this stage states that he has not joined an investigation and there were certain minot discrepancies. This Court is of the view that the direction be given to the police in permitting the petitioner to join the investigation and filed their status report and it is further directed that the investigation will be carried out under the supervision of Superintendent of Police.”
. In compliance of the said order, status report was submitted by Simardeep Singh, Superintendent of Police, Kaithal. A relevant extract from the report is reproduced herein below:-
“3. That the petitioner was accordingly Bimbra Mohan Lal 2013.08.30 17:00 served notice under Section 160 Cr.P.C. on I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M”
21. 05.2011 through his son Vijay, who assured that the petitioner, will join investigation on 22.05.2011. On the next morning, it was intimated in CIA Kaithal that petitioner had expired. So the petitioner could not join investigation. However, the case has been investigated thoroughly by various investigating officers by joining all relevant persons in investigation. But every time the matter reached to the conclusion that Ashok Kumar died due to accident by entangling his chadder in the belt of the generator set. The case is being investigated under my close supervision since my posting as Superintendent of Police, Kaithal.”
. As noticed earlier, Harikrishan Sarohi, petitioner died on 21.05.2011 and his widow, Sito Devi, was allowed to pursue the petition in place of her husband. An application was submitted by Sito Devi (CRM 4821.of 2011). The following order was passed by this Court on 12.09.2011:- “Learned State counsel submits that investigation of the case is still pending. However, petitioner is required to be associated by the investigating officer. He submits that statement of the petitioner Sito Devi shall be recorded by the investigating officer. The investigating Officer shall go to the residence of the petitioner to get her version. To come up on 04.11.2011. Henceforth, investigation of the case shall be monitored by Deputy Inspector General of Police, Ambala Range. A status report be filed on or before the next date of hearing.”
. Again, a status report was filed by Balbir Singh, Inspector Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 9 General of Police, Karnal Range, Karnal. A relevant extract thereof, reads as follows:-
“5. That on 16.12.2011, the deponent directed the Superintendent of Police, Kaithal to constitute a Special Investigation Team headed by a Dy. S P to investigate case FIR No.27 dated 18.01.2010 under Section 302/34 IPC, PS City Kaithal, under the direct supervision of Superintendent of Police, Kaithal. Thereafter, the SIT had examined the case file along with all the evidences and statements which came on then file, they visited the scene of crime carried out the spot inspection again and examined the witnesses but no new evidence could come on record.
6. That on 19.12.2011, the deponent has transferred further investigation of this case in the interest of justice from District Kaithal to District Kurukshetra. Accordingly, a team headed by Shri Bhupinder Singh, HAP, DSP (HQ), Kurukshetra is investigating the case.
7. That in regard to investigation of case FIR No.27 dated 18.01.2010, Police Station City, Kaithal, a status report has been sent in this office by Shri Simardeep Singh, IPS, Superintendent of Police, Kaithal. The copy of the same is attached as Annexure R-1.”
. Again, a status report was filed by Simardeep Singh, Superintendent of Police, Kaithal. A relevant extract thereof reads as follows:- “2.That during the hearing of the case on 12.09.2011, Hon'ble High Court has directed to join Sito Devi wife of the petitioner in the Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 10 investigation of the case. In compliance of the Hon'ble High Court order Sito Devi wife of petitioner was accordingly served notice under Section 160 Cr.P.C. on 02.11.2011 to join in the investigation and she joined in the investigation and recorded her statement under section 161 Cr.P.C. on 02.11.2011.
3. That in compliance of the order of the Hon'ble High Court, the Inspector /General of Police, Karnal Range, Karnal has constituted a special investigation team head by Shri Nirapjeet Singh, HPS, DSP/AEC, Kaithal on 16.12.2011 to further investigate case FIR No.27 dated 18.01.2010 under Section 302/34 IPC, P S City Kaithal. The SIT examined the case file in detail along with all the evidences and statements which had come on the file. They visited the scene of crime on 17.12.2011, did the spot inspection again and examine the witnesses but no new evidence could come on record. The case has not been transferred outside Kaithal District and a new SIT headed by Shri Bhupinder Singh HPS, DSP/HQ, Kurukshetra has been constituted to further investigate the case on the order of Inspector General of Police, Karnal Range, Karnal, on 19.12.2011. The investigation, in the case thus is still going on.”
. Subsequent thereto, another status report dated 07.03.2012 was submitted by Bhupinder Singh, DSP, Headquarter, Kurukshetra. A relevant extract thereof reads as follows:-
“2. That this Hon'ble Court vide order dated 12.09.2011 directed that investigation of this case shall be monitored by concern Inspector Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 11 General of Police. Inspector General of Police, Karnal Range, Karnal for conducting investigation fairly transferred the investigation of this case from District Kaithal to Kurukshetra on 19.12.2011. A special investigation team headed by the deponent, SI Jagdish Chander, ASI Satish Kumar and HC Virender Kumar as member was constituted vide order dated 29.12.2011.
3. That the special investigation team after studying the file started the investigation of this case and on 29.12.2011 joined in investigation from complainant side Sito Devi wife of petitioner, Raghbir Singh and Jagdish brother of the petitioner, Naresh Kumar son of the petitioner who reached to the spot just after the incident. They do not bring any new fact to the notice of investigation team in addition to what they have already stated in their statements before the Kaithal Police. They did not bring on record any new fact which indicates criminal intent of any person in the death of Ashok Kumar.
4. That the special investigation team also joined in investigation, alleged accused Parmod Kumar, Vinot Kumar, Krishan, Jeet Ram and his wife Mamtesh on the same day. From their statements also nothing new could be extracted. They all stated that Ashok Kumar deceased had gone to the generator room for putting of the generator set when supply of the electricity was restored. Suddenly, they noticed that Ashok was lying in injured condition in the entrance of the generator room. They informed about it to the brother of deceased family namely Naresh. When Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 12 he was taken to hospital he was firstly found serious and then was declared dead. From their investigation also no new incriminating thing came out against them or any other person regarding the death of Ashok.
5. That special investigation team also collected information from Sub Divisional Officer, UYHBVN, Kaithal about the cut in the electricity supply on 15.01.2010 between 08.25 pm to 22.01 pm. It fortified the fact that Ashok deceased had gone to the generator room for stopping the generator set when the electricity supply was restored, at the time of alleged incident.
6. That the special investigation team has also interrogated all the alleged accused again on 27.01.2012 and 15.02.2012 but no incriminating material had come out against them. Pervious investigation officers were also joined in the investigation but no fruitful result could be extracted. All available evidence indicates that death of Ashok Kumar took place due to accident but investigation has not yet concluded. Before reaching to conclusion other aspects of the case is yet to be investigated, for which time may kindly be granted. Lastly, the latest report was submitted by Nirmal Singh, DSP, City Thanesar/Incharge Special Investigation Team which contains the entire investigation conducted after order dated 12.09.2011 was passed by this Court and the concluding paras 11, 12 and 13 of this report reads as follows:-
“11. That during investigation record from Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 13 the office of UHBVN, regarding the supply of electricity was collected and it was found that on 15.01.2010 the electricity supply was discontinued between 08.30 pm to 10.01 pm. This corroborate the fact that after restoration of electricity generator was to put off.
12. That during investigation no weapon was found from the place of occurrence, nothing has came out in the investigation that any weapon was used in causing the death of Ashok Kumar. From the examination of 'chadar' which was wrapped on deceased at the time of death it was found that it was torn from many places. It was also smeared with blood and has marks of oily carbon on it. Blood was found on the inner side of shutter of generator room. Indicates the way in which the incident might have taken place.
13. That from all the investigation consistent story came out that Ashok had gone to stop the generator as the electricity supply has started. He was seen by the Parmod, Krishan and Vinot entering into the generator room. It was also pointed out to them by the eye witness Gagandeep who had come to urinate back side of his shop that Ashok had fallen, when they saw him he was lying half outside and half inside of generator room. He was wearing a chader which was torn and having blood and oil carbon strain. Initially, the alleged accused tried to shift Ashok on motorcycle to hospital but when he was found serious, they informed to the parents of the deceased and shifted him to the hospital in car. In this process they received blood stains on their cloths. There was no previous dispute between deceased and accused. Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 14 The theory of accident by entangling of chadar in the generator set substantiate from the material collecting during the investigation. No material during investigation came out that anybody cause the death of Ashok Kumar or had played any role except the statement of the petitioner, who was not present at the spot. Nobody supported their version. There is no circumstantial evidence that Ashok was murdered by any body. From the material on the file, it strongly appears that Ashok Kumar had died as a result of accident by entangling his chadar in the belt of generator set. The case has been investigated from all possible aspects. But the cancellation report dated 25.06.2010 filed by the SHO City Kaithal is found substantiated in the investigation conducted by the Special Investigation Team.”
. From perusal of various reports submitted from time-to-time, no such inference can be drawn that the investigating officers sided with the suspects or tried to hide their criminality. Counsel for the petitioner has failed to point out that the investigating officers failed to investigate the case from a particular angle which could lead to clue qua involvement of Parmod and others in the death of Ashok Kumar. There is nothing on record to suggest that the investigating officers intentionally or otherwise allowed wastage of time or any material evidence to go ununoticed. There is also no material on record to show that the investigating officers had any reason to shield the alleged suspects not they (suspects) were in a position to influence the investigation, so that their criminality is not brought on the surface. The petitioner has made a prayer for transferring the Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 15 investigation to CBI. In the case of 'State of West Bengal and others v. The Committee for Protection of Democratic Rights, West Bengal and others', (Civil appeal Nos. 6249-6250 of 2001, decided on 17.02.2010), Hon'ble the Supreme Court arrived at its conclusions detailed in para 43 of the judgment. In para 45 of the judgment, the Hon'ble Court in the final analysis, while answering the question referred to it, held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution not violate the doctrine of separation of power and shall be valid in law. However, in para 46, the Hon'ble Court has given a word of caution while exercising plenary power under Articles 32 and 226 of the Constitution in the following words:-
“46. 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 Bimbra Mohan Lal passed as a matter of routine or merely 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 16 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. A perusal of the observation made by Hon'ble the Apex Court makes it apparent that order for transfer of investigation to CBI, 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 for the purpose mentioned hereinabove. Keeping in view the entire gamut of facts and circumstances discussed hereinabove, I do not find that the present case falls within the parameters laid down by Hon'ble the Supreme Court to transfer investigation of the case in hand to CBI. However, it is unfortunate that the petitioner lost his young son in an unfortunate occurrence and he himself died during pendency of the proceedings before this Court. In the result, the petition is dismissed. However, the legal heirs of the deceased shall be at liberty to take resort to appropriate proceedings, Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. not M 1095.of 2010 (O&M) 17 in accordance with law. (Rekha Mittal) Judge 12.08.2013 mohan Bimbra Mohan Lal 2013.08.30 17:00 I attest to the accuracy and integrity of this document Chandigarh