1. Dr. S.C. Mishra is the Chief Medical Officer working in Dr. Ram Manohar Lohia Hospital, New Delhi. His son Abhishek Mishra was studying in B.I.T., Mesra, Ranchi, Jharkhand.
2. On 08.12.2006, he received a telephone call from one Ragini, the daughter of Shri Laloo Prasad Yadav, Union Railway Minister, who is also studying in same college and a college friend of his son, informing him that Abhishek his son got drowned in Dassam Fall.
3. Then the parents of the deceased as well as the relatives of the deceased took flight and came to the spot on 09.12.2006, only on the next day.
4. The body was fished out from Dassam Falls. He found serious cut injuries on the body of the deceased. Without conducting any investigation as to real cause of death, the police hurriedly made an announcement that death was due to drowning.
5. He was informed that Ragini Kumari and two other friends, who accompanied to Dassam Falls, were taken to the Chief Minister's House on 08.12.2006 night. Thereafter, they were not available.
6. The postmortem report also has been hurriedly issued giving opinion that death was due to drowning. Since there were apparent deep injuries on the head, eyes and in one of the legs with deep oval shaped incision with blood stains on his face, lips smashed, ear lobe cut and severe eye injuries, the parents of the deceased felt that it was not a death by drowning in the water, but it appears he was murdered and then thrown into the water.
7. The father of the deceased was treated badly by the police as they were so rude and caused annoyance to him. Consequently, the father felt the local police personnel were not interested in bonafide investigation, but under the political pressure, the police is trying to hush up the matter as if It was a case of drowning.
8. Under the above fear and apprehension, Dr. S.C. Mishra, the Chief Medical Officer, Dr. Ram Manohar Lohia Hospital, New Delhi, being a respectable person, having felt humiliated at the hands of the local police and having lost the confidence in the bonafide of State investigating agency, sent a letter to the High Court on 12.12.2006, addressed to the Chief Justice, mentioning various circumstances over the suspicious death of the deceased, as mentioned above, and also about the biased attitude of the local police, who is acting under the political pressure and requesting for a direction for transfer of investigation to C.B.I. by treating the letter as a writ petition.
9. On the letter being placed for the orders, the Chief Justice directed the Registry to institute suo-motto writ. The matter was placed before the First Bench on 19.12.2006. Notice was issued. The Advocate General was present on the date. After treating the letter as writ petition, Mr. Rajiv Ranjan, counsel practicing in this Court was appointed Amicus Curiae to assist this Court. Mr. Rajiv Ranjan was permitted to contact Dr. S.C. Mishra, the petitioner, to collect further information and instructions so that he could assist the Court effectively. Then the matters were adjourned to 08.01.2007.
10. On 08.01.2007 the petitioner, Dr. S.C. Mishra, was present before this Court. He represented that he has engaged Rajiv Ranjan, who was appointed as Amicus Curiae, as the counsel of his choice and gave all the instructions to him. On the same day, Dr. S.C. Mishra filed an affidavit to the said effect reiterating the contents of the letter enclosed with various documents and photographs and CDs. indicating that there is suspicion over the death of the deceased, his son. As directed, all the copies were handed over to the Advocate General, appearing on behalf of the State to enable him to get instructions and reply from the investigating agency.
11. Initially, Deputy Superintendent of Police, who is a Supervising Officer over the investigation conducted by the Sub Inspector of Police, filed an affidavit mentioning about the stage of the investigation. Further time was given to file a further affidavit. Accordingly, the investigating officer, Sub Inspector of Police, Toppo, also has filed two affidavits thereafter.
12. As directed by this Court, the Advocate General produced the case diary which was written in Hindi as well as its translated version in English.
13. Elaborate arguments were advanced by both the counsels. Both of them filed written submissions as well.
14. Mr. Rajiv Ranjan, the counsel for the petitioner would point out various circumstances in order to indicate that the investigation has not been conducted in a proper manner and there are various suspicious features by which it can be inferred that the investigation is being conducted in different direction in order to suppress the real truth in this case.
15. This has been strongly refuted by the Advocate General, stating that the investigation is in the right direction and effective steps are being taken by the investigating agency to find out the real truth in this case. Learned Advocate General, though, would not question the jurisdiction of this Court to entertain the letter sent by the father of the deceased to take up as a suo motto writ and the power of this Court to give suitable direction for the transfer of investigation by the CBI, would, however, indicate that such a direction can be very rarely given and that too under special circumstances only and those circumstances are not available in this case and as such there cannot be any direction for CBI investigation. He, vehemently and strenuously, contended that the petitioner should trust and repose confidence in the State Police, which is sincerely taking steps to find out the real truth.
16. Before going into the merits of the contentions urged by the counsel for the parties, let us refer to the short facts of the case as called out from the case diary. They are as follows:
(i) Abhishek Mishra, who is the son of Dr. S.C. Mishra, the Chief Medical Officer, Dr. Ram Manohar Lohia Hospital, New Delhi was a final year student of BIT Meshra at Ranchi, Jharkhand.
(ii) Bharat Anand, Vishal Pandey and Miss Ragini Kumari are also studying in the same college. They were his close friends.
(iii) On 08.12.2006 at about 11 a.m., all these four persons went for picnic to see Dassam Fall.
(iv) After spending some time at Dassam Fall, they cooked their lunch and ate there itself.
(v) When they were about to go after packing at about 3 p.m., Abhishek told other friends that he would go for toilet and come back soon.
(vi) As he was late, all the three other friends started searching for him.
(vii) He was not found, but his clothes were found on the stone of lower water pool.
(viii) Some of the villagers told them that they had seen one person drowning in the water pool.
(ix) Therefore, they had suspected that Abhishek Mishra would have slipped into the water pool and drowned.
(x) Thereupon they went to Bundu Police Station and gave the information.
(xi) On receipt of the said information, the Sub Inspector of Police Toppo, Bundu and other officials came to the spot.
(xii) Since the villagers declined to dive into the water pool in the evening time, they went back. Next day the officers went to the spot.
(xiii) At about 1.40 p.m. the body was located and the same was recovered from the water pool.
(xiv) Parents of the deceased as well as his relations came to the spot.
(xv) After preparation of the inquest report, body was handed over to the postmortem.
(xvi) After postmortem the body was handed over to the father of the deceased. Then cremation was done.
(xvii) In the meantime, the Sub Inspector of Police registered the case as unnatural death on 09.12.2006 at about 8 p.m.
(xviii) On 10.12.2006 the Sub Inspector of Police sent intimation to the Sub Divisional Officer, Executive Magistrate under Section 174 of the Code of Criminal Procedure, along with the records.
(xix) Since Dr. S.C. Mishra, the father of the deceased, as indicate above, felt that investigation was not bonafide, he sent a letter to the High Court, which in turn, treated it as a suo moto writ petition.
17. Before proceeding further, let us look into the letter dated 12.12.2006 sent by Dr. Mishra, the petitioner, seeking for the CBI investigation, which has been treated as a writ petition:
Quote
13th December, 2006
To,
The Honourable Chief justice
High court of Jharkhand
Ranchi
Sir,
Your honour I am to inform you that I am the father of deceased son namely Abhishek Mishra, a student of BIT, Mesra, Ranchi, Jharkhand who died on 8th December, 2006 in a mysterious circumstances. It was reported to undersigned telephonically by Ragini at 1520 Hrs that Abhishek got drowned in Dassam fall. After the incident three of his colleagues were taken to CM house and were given comforts till 2200 hrs as told by Ragini Yadav by phone. His friends disappeared after that and didn't even call or visited us during our 48 hrs of the stay in the city till cremation/departure from Ranchi. The body was recovered from the water the next day when we reached using my personal contacts and I was monitoring on telephone every ten minutes and was highly perturbed to atleast get the body of my son. I including my family members and relatives were shocked to inform you that none o f the administrative / police personnel cared to fish out the body nor made any arrangement to do so. The local Police were completely biased, irresponsible, inhuman and totally non cooperative in investigating the case under the political pressure. As a doctor I know that no Post-mortem report can reveal the cause of death within 15 minutes but in case of my son the post-mortem report was immediately flashed on the television just after 15 minutes of entry of the dead body in the (RIMS) Ranchi Medical Hospital. Prima facie it is apparent that the post mortem team were influenced by either the administrators or the concerned politicians. It is not known to undersigned under what circumstances / political pressure the postmortem report was made public within few minutes which normally does not take place in any part of the world. It appears to me that there is some conspiracy going on behind the screen. It is also not known to me whether the police have given any inquest report to the medical officer attending Post-mortem. There were apparent deep injuries on the head, eyes and in one of the legs (with deep oval shaped incision) with blood stain on his face, lips smashed, ear lobe cut and severe eye injury which makes it clear that it was not a death by drowning in the water, rather it appears he was murdered and then thrown in the water, and the best witnesses of the incident were his three close friends who accompanied him for picnic to Dassam Fall. The police neither took pains to search the body of the victim nor were interested to recover the clothes of the body and has not bothered to examine them even after 72 hours of occurrence of the incident and however they were simply interested in his laptop which in turn had no connectivity with the incident. The police (SSP and SP) were so rude and adamant and threatened undersigned that if you will not give me the Laptop we will use force to take it away from you. I fail to understand that why police personnel were not interested in Victims clothing, articles he worn, his wallet, watch etc. (which was missing). It appears that the Laptop of Abhishek may reveal certain facts / truths and the local police / administration were pressing hard to cease Laptop so as to enable them to tamper the files and eliminate some of the relevant datas of the high profile friends.
I have lost confidence in the Jharkhand Government investigating agencies which appears to be highly biased for turning this case as drowning case. It came to my knowledge that my son Abhishek had gone to Dassom fall with Miss Ragini Yadav, daughter of shri Laloo Prasad Yadav, Union Railway Minister, Govt. of India, along with two other boys named Bharat Anand and Vishal Pandey. One of his friend Mr. Bharat Anand was swimming in the pool of water during the period from 1302 Hrs to 1328 hours, however when they knew that Abhishek one of his close friend has slipped why no attempts were made to save his life nor the locals were contacted to save him or flash SOS message to the nearby villagers, Jharkhand administration or fish him out of the water. There are several photographs of Ragini Yadav in the laptop and perhaps the police were informed about the same and this is the only reason for the local police to seize the laptop. It is very much clear from above that the Administration / Police want to give shelter to the accused persons. Abhishek and Ragini had a very close relationship and is widely known amongst the students of BIT, Mesra.
I, therefore, request your honour to interfere in the matter as a custodian of the Justice of the state and direct the CBI to take the investigation in its own hand and bring out the truth.
As, I have lost my only brilliant son who was in the final year of Computer Engineering and Captain of the University Cricket team. The full family is completely shattered and are in deep distress and the last resort/option left with me is to seek your kind favour forgetting the justice. As a broken father, I pray for your honour's kind interference in the matter and get the desired Justice.
I have full faith in your Judiciary and look forward for your kind cooperation for Justice and initiating CBI enquiry on sue --moto basis so that truth prevails.
With warm regards
Yours sincerely
(Dr. S.C. MISHRA)
CHIEF MEDICAL OFFICER
Dr. RAM MANOHAR LOHIA,
NEW DELHI
HOME ADDRESS:
HOUSE NO: 922, SECTOR 40 GURGOAN (HR) PIN NO: 122203
PHONE: 95124-2582922 (r) Mobile: 9810576878 9810576878
Enclosures: Cuttings from the leading National Newspapers and of Jharkhand state
Unquote
18. The perusal of the letter dated 12.12.2006 would indicate the following factors:
(i) The petitioner, Dr. Mishra, is working as Chief Medical Officer, Dr. Ram Manohar Lohia Hospital. His son Abhishek Mishra was studying in B.I.T. Meshra, Ranchi, Jharkhand.
(ii) On 08.12.2006 at about 3.20 p.m. he received telephone call from one Ragini, daughter of Laloo Prasad Yadav, Union Railway Minister, who is also studying in the same college and close friend of his son informing him that Abhishek, his son got drowned in Dassam Fall. It was further informed that after incidence, she and his other two colleagues were taken to the Chief Minister's house.
(iii) Immediately the petitioner and his relations left Delhi and came to Ranchi on 09.12.2006. They came to the spot, but they found that no steps were taken to fish out the body from the Dassam Fall, even though Abhishek was said to have drowned in the pool on 08.12.2006 itself.
(iv) However, after few hours, the body was taken out. Body was found with cut injuries. Immediately the body was taken for postmortem. Within 15 minutes, postmortem certificate was issued showing that the death was due to drowning, even though there were apparent deep cut injuries on head, eyes and legs. Lips smashed and ear lopes were cut.
(v) It is clear from the injuries that it cannot be death due to drowning and it appears that he was murdered and his body was thrown.
(vi) Abhishek had gone to Dassam Fall with Ragini, daughter of Laloo Prasad Yadav, Union Railway Minister along with two other students, Bharat Anand and Vishal Pandey. They did not make any attempt to save his life.
(vii) Abhishek and Ragini had very close relationship. The three close friends, who accompanied Abhishek to Dassam Fall, were taken to Chief Minister's house. Thereafter they disappeared from the scene. They were not available at the scene when parents of the deceased came to the spot. They have not even attended the cremation done after postmortem.
(viii) When the personal belongings of Abhishek were removed by the petitioner from his hostel room, the police threatened him that he will not be allowed to take laptop. The police, from the beginning, did not inform anything to the petitioner with reference to the details of the investigation. The police handled him roughly. They had shown interest only in seizing the laptop. Since they thought that it might contain the photographs of Ragini, the daughter of Laloo Prasad Yadav and Abhishek.
(ix) The petitioner, sincerely, feels that the police, under the pressure of politicians, were not taking proper steps to Investigate in a proper manner. The petitioner has lost hope and confidence in the State investigating agency, which appears to be highly biased. Even before the postmortem, police had arrived at a conclusion that it was a drowning case and the same had been announced through media by the police. No attempt was made by the police as to how the injuries were caused and what was the real cause for death. Only after such announcement, the postmortem report was issued. Thus, even on the first day, the police gave final opinion that it is not the case of murder, and it is only a case of drowning without making an attempt to collect materials further. Therefore, CBI inquiry is needed for finding out the truth.
19. Reiterating all these facts, the petitioner has filed an affidavit, before this Court, requesting for appropriate direction for proper and transparent investigation by CBI. In the affidavit, he has made a specific mention that Ragini Kumari, who is the daughter of Laloo Prasad Yadav, Union Railway Minister and friends, who accompanied him to picnic, after his death, were taken to Chief Minister's residence and immediately, thereafter, the Chief Minister announced to the press and the media that there is no necessity for CBI inquiry as it is a case of drowning. Under those circumstances, he cannot expect any impartial investigation would be done by the State police, especially, when these peoples were taken to the Chief Minister's house immediately after the incidence and thereafter they disappeared.
20. In reply to the said affidavit, the Sub Divisional Police Officer, Bundu, Sanjay Ranjan Singh, who is supervising the investigation done by the Sub Inspector of Police, filed an affidavit. According to him, on the basis of the information given by all the three students of B.I.T., who came to the Bund Police Station, the Station House Officer, Birendra Toppo, Sub Inspector of Police, after entering station diary entry No. 164 dated 08.12.2006 went to the spot accompanied by three informants. After reaching the spot, the Sub Inspector of Police, Toppo, recorded the Fardbeyan from Vishal Pandey, signed by other two friends. On the next day, the body of Abhishek was recovered at 1.40 p.m. After postmortem, the body was handed over to the father of the deceased at about 4.30 p.m. He also further stated in his Affidavit that the investigation is still pending. The laptop has been seized and sent to the Government Examiner and the viscera also has been collected and sent for examination; as such investigation is being done in accordance with the provisions of the Code of Criminal Procedure in order to find out the truth of the case, and therefore, there is no necessity for CBI investigation.
21. The investigating officer, in this case, Birendra Toppo, Sub Inspector also filed an affidavit about the said particulars given in the affidavit of Sub Divisional Police Officer, Bundu. Along with the said affidavit, he also filed a synopsis, containing the various particulars about the materials collected during the course of investigation. According to the synopsis, they not only came to the conclusion through inquest report as well as postmortem report that the death was due to drowning, but also they have found out from the statement of one Asfar Ahmade, the friend of the deceased that Abhishek used to have epileptic attacks.
22. In the light of the above stand taken by the respective parties, let us now refer to various points urged by Mr. Rajiv Ranjan, the counsel for the petitioner raising various queries, highlighting improper investigation conducted by State police in order to substantiate his plea of request for transfer of investigation to CBI:
(i) The photos taken while body was removed from the Falls as well as the inquest report and the postmortem report would show that there were bleeding injuries on the body of the deceased. No attempt has been made by the investigating officer to find out how those cut injuries were caused on the body. As a matter of fact the first inquest report was prepared by the Sub Inspector of Police in the presence of S.K. Pandey and Vikash Tiwari, the relations of the deceased. In that report more details of the injuries were mentioned, but that inquest report has not been produced. Instead they have now produced some other inquest report signed by some other person, which do not show the exact injuries found on the body, as mentioned in the first inquest report or shown in the photos. The original inquest report has been purposely suppressed since it discloses more injuries which have been left out in the second inquest report.
(ii) There is a statement by Vishal Pandey and Bharat Anand, the friends of the deceased as published in the news papers, disclosing that they were taken to the Chief Minister's residence, immediately after the incident along with Ragini, the daughter of Union Railway Minister, i.e., on 08.12.2006 at about 07.00 p.m. This is not denied. There is no reason as to why Bharat Anand, Vishal Pandey and Ragini were taken to the Chief Minister's residence by the police. Thereafter, they were not available either during the course of the inquest conducted at the spot nor at the time of cremation of the body done after postmortem. There is no investigation towards these aspects.
(iii) Immediately, after the body was recovered from the Falls, the Superintendent of Police gave an interview to the media that the death was due to drowning. Thus, opinion has been formed hurriedly by the police even before the postmortem. It is mentioned in the inquest report, prepared by the police, that the injuries found on the body could have occurred due to aquatic animals. This opinion also was given by the police before the postmortem. Thus, it has not at all been investigated with respect to the cause of injuries found on the body of the deceased, such as injuries on the lips, face, eyes, ear, back portion of the head where blood was oozing. Strangely, the postmortem was conducted within 15 minutes and report has been issued hurriedly.
(iv) Even though there is no symptom of drowning, the opinion was given by the postmortem doctor that death was due to drowning. Admittedly the viscera has been sent for analysis. Even without getting opinion report of the viscera experts, the postmortem doctor has hurriedly given opinion that the death was due to drowning. There is no reason as to why police, hurriedly, gave the press statement mentioning a conclusion that death was due to drowning when there were serious injuries present on the body of the deceased without investigating further. Equally, there is no reason as to why the postmortem doctor gave final opinion about the cause of death without waiting for the viscera report when there is no symptom of drowning.
(v) The first information report was lodged on the statement of Vishal Pandey, one of the friends of the deceased at about 4.30 p.m. on 08.12.2006 at the spot. According to him, all of them came to the Dassam Fall on 08.12.2006 at about 11 a.m. They cooked their lunch there itself and they took their lunch at about 2.30 p.m. When they were about to leave the place, the deceased wanted to go for latrine. He went and however, did not turn up. When the friends went in search for him, the local villagers told them that one person was drowning in the downstream. Thus, The incident had occurred at 3 p.m. The death of the deceased was communicated by Ragini Kumari through cell phone to Dr. Mishra, the father of the deceased at about 3.20 p.m. Postmortem indicates that there is 450 grams of digested pasty materials. The doctor's opinion is that he must have taken food three hours prior to death. Therefore, statement of the first informants that they took food at 2.30 p.m. and the incidence occurred immediately, thereafter, cannot be true one. This aspect has not been investigated into.
(vi) Even though the parents of the deceased came to the spot and in their presence body was recovered on 19.12.2006, all the three friends, who accompanied the deceased, were not available on the spot. Dr. Mishra, father of the deceased, made repeated calls to his friends through his cell, but all the three persons did not turn up to the spot. Even though they were close friends of the deceased, they must have come to the father of the deceased to inform him as to what happened. Why this was not done? There is no investigation on this aspect.
(vii) The letters collected by the petitioner, the father of the deceased, from the room of the deceased would disclose that one of the letters was written by Ragini to the deceased person addressing him like her husband. When such an intimate relationship was maintained between Ragini and the deceased, what prevented Ragini to come to the spot to meet Dr. Mishra, the father of the deceased, to tell what happened. There is not even a phone call to the father of the deceased, who came to the spot next day, from any of the three friends. There is no investigation on this.
(viii) Dr. Mishra has got the postmortem report examined through Dr. Gaurav Agarwal. He gave a report indicating different opinion. According to him, the postmortem was hurriedly done and death could not have occurred due to asphyxia due to drowning. Dr. Agarwal has given a clear opinion that if death has occurred due to asphyxia due to drowning, then there would have been signs of asphyxia as well as the presence of water, mud etc. in the respiratory passage and the lungs. Admittedly, there is no mention about presence of these things in the postmortem report. According to him, body had no mark of drowning and the body was not swelling at all. From the injuries, as is apparent from photograph, some of the cut injuries on the face and head must be ante mortem. The eyes and lips were totally smashed. Two teeth had broken. This cannot be possible by a fall into the deep water. The opinion of the postmortem doctor that the injury could have been caused by aquatic lives is highly unlikely, as the body was taken out after 22 hours. As per the medical jurisprudence in order to find out whether the death was due to drowning, the doctor has to conduct diatom test. This was not done. Further blood sample and sample of spleen was not preserved for examination. The injury on the right leg has been ignored in the postmortem.
(ix) The investigation, instead of finding out the real cause of death of the deceased or the cause of various cut injuries found, they have tangently tried to collect some material to indicate that the deceased was suffering from fits. This is not true. He was not suffering from any epileptic fits. Though on one day, some months back, he fainted in the examination hall, immediately he gained consciousness and wrote the examination. Doctors, who examined him, gave an opinion that there is no abnormality in his body. The very fact that the investigating officer has shown some anxiety to collect some material with reference to the health conditions, would show, the investigating agency is bent upon to get something to support their earlier opinion that the death was due to drowning. Hence, the petitioner feels that he may not be able to get justice at the hands of the State Police, who has hurriedly come to the conclusion regarding the cause of the death of the deceased due to political pressure.
23. On these grounds, the counsel for the petitioner would submit that since there are enough materials to indicate that under mysterious circumstances death had occurred and there are unexplained suspicious features in the manner of conduct of investigation by the State Police, it is necessary to get the investigation done by an independent agency like Central Bureau of Investigation to ensure a fair and transparent investigation to find out the truth.
24. In the light of the above grounds, let us now go into the question as to whether it is a fit case for transfer of investigation to the CBI.
25. As indicated above, the learned Advocate General has not chosen to question the powers and jurisdiction of this Court either to treat the letter of the father of the deceased as suo moto writ petition or to give a direction for CBI investigation in preference to the State Police as decided by the Supreme Court in AIR 1985 SC 1985 [State of West Bengal v. Sam pat Lal]. However, the learned Advocate General submitted, only in special circumstances, the extra ordinary power under Article 226 of the Constitution can be exercised for transferring the investigation from the State Police and handing over the same to the CBI. Both the counsel cited number of authorities rendered by the Supreme Court, giving various guidelines for directing for CBI investigation. They are as follows:
(i) In : AIR1971SC1025 [Exen Industries v. Chief Controller of Imports and Exports], the Supreme Court held that:
The High Court, though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution, should not throw it out in limine if a prima facie case was made out for investigation. The High Court could reject the petition only when it takes the view that the authorities whose acts were called in question had not acted improperly or if it felt that the petition raised complicated questions of fact for determination.(ii) In : [1980]1SCR1170 [Shiv Shankar Dal Mill v. State of Haryana], the Supreme Court has held as under:
Para 6 - Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open to the Court, exercising this flexible power, to pass such order such as public interest litigation and equity projects.
Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest....
(iii) In : 1985CriLJ516 [State of West Bengal v. Sampat Lal], the Supreme Court held as under:
The Court can hand over the investigation to CBI only on being prima facie satisfied from the circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed or inferred that the statutory agency cannot be able to discharge its function of investigation fairly and impartially. It is sufficient to indicate that there is residuary jurisdiction left in the Court to give direction to the investigating agency when it is satisfied that the requirements of law are not being complied with and the investigation is not being conducted properly or with a due haste and promptitude.
(iv) The Supreme Court in yet another decision in : 1988CriLJ1800 [Kashmeri Devi v. Delhi Administration and Anr. ] has held as under:
Prima facie the police has acted in a partisan manner to shield the culprits and the investigation of the case has not been done in proper and objective manner. We are, therefore, of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.(v) In : 1994CriLJ1368 [Punjab & Haryana High Court Bar Association v. State of Punjab and Ors. ], the Supreme Court held in the following manner:
In the facts and circumstances of the instant case to do complete justice in the matter and to instill confidence in the public, it is necessary to have a fresh investigation in this case through a specialized agency like the CBI. Therefore, the CSI was directed to take up the investigation of the case.(vi) The next decision is : 1996CriLJ2168 [State of Bihar and Anr. v. Ranchi Zila Samta Party and Anr. ] This is a case where the Patna High Court under Article 226 in Bihar Animal Husbandry Scam Case directed the investigation by the CBI. When the matter was taken up by the Supreme Court, while confirming the order of the High Court, held as follows:
The only controversy between the counsel of either side is whether the High Court, in exercise of its power under Article 226, could take the investigation away from the State Police and entrust it to the Central Bureau of Investigation (CBI).The exercise of power under Article 226 of the Constitution in a public Interest litigation was not to give advantage to a political party or group of people as apprehended by the counsel for the appellants. It was also not to cause a slur on the State Police. It was done to investigate the corruption in public administration, misconduct by the bureaucracy, fabrication of official record and misappropriation of public funds by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real Interference.
(vii) In : 2002CriLJ2942 [Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr.] it was held by the Supreme Court that:
The power of the High Court under Article 226 to direct the inquiry by CBI cannot be disputed, but the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI.Therefore, it is clear that a decision to direct the 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 facie case calling for an investigation by 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.
26. Above observations made by the Supreme Court cited supra would in brief give the following guidelines for the transfer of investigation to the Central Bureau of Investigation:
(i) The power of the High Court under Article 226 of the Constitution to direct the investigation by CBI cannot be disputed, but the said power can be exercised only in case where there is sufficient material to come to a prima facie conclusion that there is a need for such an investigation. Therefore, the direction to direct the inquiry by CBI can only be done if the High Court, after considering the materials on record, comes to a conclusion that such material does disclose a prima facie case calling for investigation by CBI;
(ii) The High Court can hand over the investigation to CBI only on being prima facie satisfied from the circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed that the statutory agency of the State cannot be able to discharge its function of investigation fairly and impartially.
(iii) There is a residuary jurisdiction left in the Court to give direction for transfer of investigation by the State Police to the CBI when it is satisfied that the requirements of law are not being complied with and the investigation is not being conducted properly or with a promptitude.
(iv) If a prima facie case was made out for the transfer of investigation to C.B.I., the High Court cannot decline to exercise its extra ordinary jurisdiction under Article 226 of the Constitution by merely turning it down in limine. When the High Court takes a view that the authorities, whose acts were called in question, it acted improperly, the High Court shall exercise its jurisdiction to order for the investigation by the CBI to do complete justice in the matter and to instill confidence in the public;
(v) There cannot be any doubt that in appropriate cases, the High Court can issue mandamus of that nature. It is true that in most of the cases, the similar orders were passed by the Supreme Court, but that cannot be a stumbling block before the High Court in exercise of its writ jurisdiction. The moot question is whether this case is appropriate case in which such a direction could be issued. In Sampat Lal Case AIR 1985 SC 195 it has been specifically observed that such an order can be made by the High Court when it is prima facie satisfied that the investigation conducted is not proper or done with a promptitude.
27. In this context, we have to mention that in addition to the case diary and the synopsis filed by the police, we thought it fit to summon the records from the Executive Magistrate, namely, Sub Divisional Officer, Ranchi since it is noticed that the case was registered initially as unnatural death case under Section 174 of the Code of Criminal Procedure. Accordingly, we have summoned the same from the Sub Divisional Officer. These records have been received by this Court.
28. We have carefully considered all the records produced by both Advocate General as well as the Sub Divisional Officer and also the documents placed by the counsel for the petitioner before this Court.
29. On a careful analysis of the available records, we are constrained to hold that the investigation has not only been conducted in a way that requirements of law have not been complied with, but also that there are several suspicious circumstances which would indicate that the investigation has been conducted in a slipshod manner and as such the State Machinery in our view has not indulged itself to collect the relevant materials with reference to real cause of death and the consequential factors. As such in the facts and circumstances of the case, we feel that the State agency would not be able to conduct the investigation fairly and impartially.
30. For arriving at such a conclusion, we shall refer to the various circumstances, which are given hereunder:
(i) For a case of suspicious death, the nature of the inquiry in regard to the cause of death, to be conducted by the police as well as the Executive Magistrate, is contemplated under Sections 174 and 176 of the Code of Criminal Procedure.
174. Police to enquire and report on suicide, etc. - (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall made an investigation, and draw up a report of apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3) When -
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do,
he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquestions, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State government or the District Magistrate.
The above provision, namely, Section 174 of the Code of Criminal Procedure would provide that whenever an officer in charge of the Police Station receives information that a person has been killed by an accident or has died under the circumstances arising out of a reasonable suspicion, he shall immediately give intimation to the nearest Executive Magistrate, who is empowered to hold inquest: and thereupon he shall proceed to the place where the body is and shall make the investigation and draw up a report of apparent cause of death describing such wounds, fractures, bruises and other marks of injuries, as may be found on the body. This report shall be signed by the police officer and the other witnesses and the same shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
Section 176 of the Code of Criminal procedure contemplates about the inquiry by the Executive Magistrate, who is empowered to conduct inquiry into the cause of death in addition to the investigation held by the police.
176. Inquiry by Magistrate into cause of death. - (1) When any person dies while in the custody of the police or when the case is of the nature referred to in Clause (i) or Clause (ii) of Sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquest shall, and in any other case mentioned in Sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.
Explanation. - In this the expression 'relative' means parents, children, brothers, sisters and spouse.
(a) Under this Section, the Executive Magistrate, on receipt of the intimation from the Officer-in-charge of the police station, shall go to the spot and hold inquest as he is empowered to hold inquest and record the evidence and in order to discover the cause of death of the deceased, such Magistrate may cause the body to be disinterred and examined. This section also provides that the Magistrate, during the course of inquiry, shall inform the relatives of the deceased, namely, parents, children, brothers, sisters and spouse and shall allow them to remain present at the time of the inquest.
(b) The reading of Sections 174 and 176 of the Code of Criminal Procedure would disclose that an inquiry under Section 176 Cr.P.C. is contemplated by the Magistrate, independently and not jointly by the police officer.
(c) In this matter, admittedly, the Sub Inspector of Police, the Officer-in-Charge of Bundu Police Station, on receipt of information from the first informants, went to the spot, directly, along with the three informants.
(d) The records would show that on the very same evening, i.e., 08.12.2006, the District Magistrate, Sub-divisional Magistrate, who is Executive Magistrate, all came to the spot.
(e) On that day, body was not recovered. The officials came back to the spot next day on 09.12.2006.
(f) The perusal of the records would show that the Executive Magistrate, namely, Sub-divisional Officer was present at the spot, both on 08.12.2006 and 09.12.2006.
(g) It is also clear from the records that the Executive Magistrate was very much present when the body was fished out from the Falls.
(h) Strangely, the Executive Magistrate did not make an attempt to conduct any inquest, as contemplated under Section 176 of the Code of Criminal Procedure nor was there any requisition by the Sub Inspector of Police, the Officer-in-Charge of the police station requesting the Sub Divisional Officer to conduct inquest.
(i) On the other hand, when the Executive Magistrate was present, police officer, alone, conducted inquest. In that inquest report, prepared by the Sub Inspector of Police, the opinion was given by the police that the deceased died due to drowning and the injuries found on the body is due to the eating by the aquatic lives.
(j) In this case, as stated above, when the body was taken out, admittedly, the Sub-divisional Officer, namely, Executive Magistrate was present. The parents, brothers and sisters of the deceased were also present.
(k) Even then the Executive Magistrate did not chose to conduct any inquest to find out the cause of death in the presence of the relatives of the deceased by recording the statements of the witnesses.
(l) There was no reason as to why the Sub Inspector of Police had to hurriedly prepare the inquest report and send the body to the hospital for conducting postmortem without requesting the Executive Magistrate to conduct inquest.
(m) It mandates under Section 176 of the Code of Criminal Procedure that it is an independent inquiry to be done by the Executive Magistrate, by conducting inquest, uninfluenced by the opinion of the police in the inquiry conducted by the police as per Section 174 Cr.P.C.
(n) The object of the provision under Section 176 Cr.P.C is that the inquiry into suspicious death should not depend merely upon the opinion of the police, but there should also be a further check on such police inquiry by enabling the competent magistrate to hold an independent inquiry into the case of suspicious death.
(o) Therefore, there is no reason as to why Sub-divisional Magistrate, namely, the Executive Magistrate, in this case, has not chosen to hold the inquest in the presence of the relatives of the deceased.
(p) The case records would show that immediately after the inquest held by the Sub Inspector of Police, the body was taken to ambulance and thereafter taken to the hospital.
(q) The failure on the part of the Sub-divisional Officer to conduct independent inquiry as to cause of death when the body was available on the spot and when the relatives also were present would make it clear that the required procedure contemplated under Section 176 Cr.P.C. had not been complied with.
(r) There is no reason as to why there was such a flaw on the part of the Sub-divisional Officer, who was present, both on 08.12.2006 and 09.12.2006 at the spot.
(s) He must have conducted inquest when the body was at the spot and when the relatives were present on the spot before the body was sent for postmortem. This was not done.
(t) From the records it was revealed that the Executive Magistrate was standing as a mute spectator without conducting any inquiry. Why? There is no answer in the case diary.
(ii) The first information report was given at 4.30 p.m. on 08.12.2006 by Vishal Pandey to the investigating officer, Sub Inspector of Police, Toppo, Bundu Police Station. This was not only signed by Vishal Pandey, but also by the other two friends, Bharat Anand and Ragini Kumari, who accompanied the deceased Abhishek Mishra.
According to the investigating officer, the information was conveyed by these persons to the Bundu Police Station at about 3.50 p.m.
Thereafter the police came to the spot along with these three persons. At the spot the first information report was prepared.
According to the case diary, the second statement was recorded from Vishal Pandey. In this statement, he stated that two school boys came from the top side and they told them that they had seen one person drowning into the water pool and thereafter they went to the police station.
So the three persons, namely, close friends of the deceased, who accompanied the deceased to Dassam Fall are the main witnesses in this case.
They are the persons who reported the matter to Sub Inspector of Police at about 3.50 p.m. at the police station.
They are the persons who gave first information report at the spot which was recorded by the Sub Inspector of Police at about 4.30 p.m. on 08.12.2006. But, strangely, they were not available thereafter. Next day only the search operations were conducted in the Dassam Falls.
Admittedly, they were not present when the search operations were conducted. They were not examined during the course of inquest. It is not known as to what happened to them subsequent to the registration of the case.
They are the close friends of the deceased. Such being the case, why they were not summoned under Section 175 Cr.P.C. to the spot, again, so that at least they could identify the body of the deceased?
While the search operations was going on, why they did not come to the spot to give further statement in the course of inquest?
Why these so called close friends of the deceased have not cared to meet the parents of the deceased, who came to the spot next day for receiving the body of the deceased?
Neither the Investigating Officer under Section 174 Cr.P.C, nor the Executive Magistrate under Section 176 Cr.P.C. took any effort to procure their presence on the spot on 09.12.2006 either to identify the body or to examine them in the presence of the parents of the deceased.
It is curious to note that when these three persons were close friends of the deceased and these are all three persons, who accompanied the deceased who happened to know about the incident and who can give the actual details about the occurrence, have not chosen to come to the spot. Who instructed them that they need not come to the spot for further inquiry? Who prevented them from coming to the spot while body was taken out from the Falls? Who stopped them from meeting the parents of the deceased at the spot? Where they have gone? There is no answer in the case diary.
(iii) According to the statements of three witnesses, which were recorded by the police, both Ragini and Abhishek were close and intimate friends.
According to them, the moment they saw that Abhishek did not turn up after answering the calls of nature from the Falls, they rushed to the spot and they came to know from the two schools boys that one person was drowning, and then she immediately cried saying that how can she live without him and thereafter she also tried to fall into the water pool, but timely two other friends caught hold of her and prevented her from falling in the water pool and took her aside.
When such an intimate friendship was maintained between Ragini and Abhishek, there is no reason as to why Ragini did not make attempt to meet the father and mother who came next day to the spot to tell them as to what happened.
As per the case diary, on 09.12.2006, the investigating officer and other officers came to the spot. The divers were engaged. They went into the water and recovered the body. At 1.40 p.m., the investigating officer prepared the inquest report in the presence of the local villagers.
According to the witnesses two school students were the eye witnesses, who saw a person was drowning in the water pool.
During the course of inquest only two witnesses, namely, Jahai Munda and Abraham Horo were examined. They were not eye witnesses. Admittedly, those two school students were not examined. As indicated above, these three friends were also not examined.
As per the inquest report prepared by the Sub Inspector of Police, there are injuries on the mouth, right ear, nose, knee etc.
The photos taken at the time of recovering the body from the Falls produced before this Court show that there are bleeding and cut injuries on the mouth, ear, left eye etc.
It is quite strange that even in the same inquest report an opinion of the police officer has been given by the Sub Inspector of Police that death is due to fall in water and drowning.
In the very same report, the investigating officer has written that the injuries found on the body appear to have been caused by a hit against the rocks and eating by fishes and other lives under water.
In column No. 9, as the opinion of the police officer, it has been mentioned as death is due to fall in water and drowning.
This opinion had been formed by the police without getting any statement either from the eye witnesses or from the other witnesses, who accompanied the deceased to the Dassam Falls.
As such the opinion was formed by the police without any material whatsoever. Why there was such a hurry to form such an opinion?
(iv) When the body was taken out at about 1.40 p.m., various officials of BIT, Mesra were present. The Sub Divisional Officer (Executive Magistrate), Sub Divisional Police Officer and other officers were also present. Inquest report does not show that these officers, who identified the body, were examined. Their presence had not been noted in the inquest report.
It is also written in the case diary that the parents of the deceased and one Tiwari, Chairman, RRDA and relations also had come to the spot. They were not examined. It is stated that the parents have refused to give statement, but it is not referred in the panchnama.
It is stated in the case diary that one Kunwar Munda had seen the deceased sitting and going for latrine, but he was not examined by the police at the time of inquest.
Therefore, opinion has been formed by the police without examining the relevant witnesses and without making further investigation.
(v) The body was handed over for postmortem at about 3.45 p.m. The postmortem certificate was issued at 4.30 p.m. giving opinion that death was due to drowning. Even before the postmortem, the police arrived at a conclusion by mentioning in the same inquest report that the injuries found on the body could have been caused due to the aquatic animals.
Why there was such a hurry on the part of the police to come to the conclusion that the injuries could have been caused due to aquatic animals living under water? Why police has not at all investigated with respect to the injuries found on the body of the deceased?
Further the postmortem was conducted within 15 minutes and the opinion of the doctor has been given hurriedly. Admittedly viscera has been sent for analysis. There is no reason as to why postmortem doctor had to give final opinion as drowning without getting analysis report with regard to viscera.
(vi) As a matter of fact, the postmortem did not indicate that there is any water in the respiratory passage which is a symptom of drowning.
But, the police rushed to make a press announcement that the death was due to drowning without investigating the further when no symptoms of drowning was present on the body of the deceased and without waiting for the viscera report, inspite of the fact that there are serious cut injuries on the body of the deceased.
In other words, no investigation was conducted by the officer concerned as to how those injuries found on the various parts of the bodies were caused.
On the other hand, it is stated in the postmortem report that chest cavities contained the blood tinged fluid 75 cc in each side. In the respiratory passage there was blood tinged floathy fluid.
Inspite of the fact that symptoms of drowning are missing, the investigating officer has not chosen to record any statement from the doctor, who conducted postmortem or from any other doctor to get a second opinion.
As a matter of fact, as pointed out by the counsel for the petitioner, Dr. Agarwal stated in his report that if death had occurred due to asphyxia due to drowning, then there would have been signs of asphyxia as well as presence of water, mud etc. in the respiratory passage and the lungs. There are no such symptoms in the lungs or the respiratory passage.
According to the doctor, the body had no mark of drowning, as the body was not swelling at all. He has given a clear opinion that from the injuries as is apparent from the photograph, some of the cut injuries on head and face must be ante mortem. The eyes and slips were totally smashed. Two teeth had broken. This cannot be possible by a fall into the deep water.
As per the medical jurisprudence, in order to find out whether the death was due to drowning, the doctor has to conduct diatom test. This was not done.
Further blood sample and sample of spleen was not preserved for examination.
Admittedly, the investigating officer, as indicated above, has not recorded any statement from the doctor, who conducted regarding these aspects. Even before that, the police personnel was so anxious to give press statement that the death was due to drowning. This conduct of the police investigating agency does not sound well.
(vii) As indicated above, Ragini Kumari was not examined during inquest nor was she present.
The Sub Divisional Officer, the Executive Magistrate, also did not care to take efforts to examine Ragini Kumari.
As a matter of fact, it is stated by one of the witnesses that on 08.12.2006 evening from Dassam Falls, Ragini telephoned Abhishek's father about the drowning of Abhishek.
Thereafter she was not available for examination. It is stated in the case diary that the investigating officer went to her relative's house on 13.12.2006 and recorded her statement. Where was she till then?
In this statement, recorded on 13.12.2006, she stated that after giving the information to the Bundu Police, she again came to the spot with the police and at that time, the Sub Divisional Officer, Deputy Superintendent of Police were present. Then she went to the Chief Minister's House.
Her further statement is so curious. She stated that on 09.12.2006 she proposed to go to Patna through Flight No. IC 809 and went to the airport, when she had checked in, she saw Abhishek's father, Abhishek's mother and his two sisters in the very same flight coming to Ranchi to visit the scene and to receive the body; at that time, she talked to Abhishek's father, one Pandey, Abhishek's relative and also the mother and sisters of the Abhishek. Thereafter, she left for Patna.
This statement alleged to have been recorded by the police cannot be true because, the petitioner, the father of the deceased, had never admitted either in his letter or in his affidavit that Ragini met him at the airport. His specific case is that he came to know of the incident only through the phone call given by Ragini and on the said information, his entire family rushed to Ranchi and Ragini and her friends never met him and explained to him thereafter.
But, it is clear from the case diary that, Ragini left for Patna on 09.12.2006 itself even before the body was recovered. What made her to leave Ranchi Hostel immediately, and to go to Patna, even without any intimation to the police? On whose instructions, she left for Patna without going to Dassam Falls to see the body of the deceased? There is no answer in the case diary.
Admittedly, this prime witness was never examined by the Sub Divisional Officer, who is competent to conduct inquiry under Section 176 Cr.P.C.
Police had not investigated as to why she had to hurriedly go to Patna without helping the parents of the deceased or cooperating with the investigation.
When she went to the airport to go to Patna, she did not know that the body was recovered. In such an event, it is quite strange to note that she had left Ranchi to go to Patna even though she happened to meet the parents of the deceased at the Airport, who came to Ranchi on the telephone call given by Ragini Kumari.
(viii) Yet another strange feature is this. The case diary would indicate that one Anil Kumar Jha, the Assistant Registrar of BIT Mesra was examined by the investigating officer.
According to him, the moment the officials of BIT, Mesra received the news about the death of drowning of the deceased, they went to the spot. The Deputy Commissioner and other officials also went to the spot. When the villagers were not ready to dive into the fail to recover the body, they decided to come back. Then the Deputy Commissioner asked the BIT officials as well as the 3 students, namely, Ragini Kumari and two others to accompany him to his residence.
They went to the residence of the Deputy Commissioner and after reaching there, the Deputy Commissioner called his staff to call Mr. Sanjay, the uncle of Ragini. When Sanjay came to the Deputy Commissioner, he asked Sanjay to take them to the Chief Minister's house.
Thereupon, all of them went to the Chief Minister's House and they discussed the whole matter along with three students with the BIT officials for 3 hours.
The statement of A.K. Jha is available on page 123 of the case diary (translated version).
There is no reason in the case diary as to why these students were brought to the house of the Deputy Commissioner on the same day night, i.e., 08.12.2006.
There is no reason as to why the Deputy Commissioner made arrangements to take them to the Chief Minister's house.
There are no details what was the discussion that had in the Chief Minister's House for 3 hours.
In this context, the announcement of the police to the media that death was due to drowning and also the announcement of the Chief Minister to the media that CBI inquiry is unnecessary assume great significance.
31. From the records, summoned from the Sub-divisional Officer, it is noticed that the first information report of unnatural death registered as Bundu P.S. U.D. Case No. 11/06, on 09.12.2006, was dispatched and received by him only on 10.12.2006.
According to the records from Sub Divisional Officer, it is seen that he recorded the statement of three witnesses Basant Munda, Doman Munda and Sukhdeo Munda on 11.12.2006 and recorded the statements of Kumar Saurabh and Upendra Thakur on 15.12.2006. Upendra Thakur, Rajendra Thakur, Kajru Dhobi and Panchu Kumar on 15.12.2006. He also recorded the statement of Kunwar Munda, Mansid Horo, Kolay Munda and Konta Munda on 18.12.2006.
There are copies of other letters written by the Sub Divisional Officer to the experts for examining the laptop and for examination of viscera and report.
In the case diary, statements of various other persons are available, but those witnesses were not examined by the Sub Divisional Officer.
The important aspect of the matter is that the Sub Divisional Officer has never been requested for examining the three important witnesses, namely, Bharat Anand, Vishal Pandey and Ragini Kumari.
It is revealed from the records that the Sub Divisional Officer has never formed any opinion during his inquiry under Section 176 of the Code of Criminal Procedure.
On the other hand, the investigating officer went on examining several persons in order to collect materials that the deceased used to have epileptic fits.
As a matter of fact, the medical records produced by the petitioner show that Abhishek was not found with any abnormality. Thus, it is clear that investigation has not been done in a proper way. On the other hand they are bent upon collecting some material in order to support their conclusion, which they have arrived at, at the time of inquest even on 09.12.2006.
Admittedly, the Sub Divisional Magistrate, who conducted inquiry under Section 176 Cr.P.C. has not filed any affidavit before this Court. On the other hand it was submitted by the State that the entire investigation is being conducted by the police in a proper way and the investigation is continuing.
32. In view of the above suspicious features, we are unable to say that the adequate measures have been taken by the State agency to make an effective investigation.
It is true that when investigation is handed over to the C.B.I., it may reflect on the State agency, but it should be viewed from yet another angle. Once the credibility of the State Agency is questioned, not only by means of pleadings, but also through materials available on record, placed before this Court, it is better even for the State to voluntarily say that they may not have any interest in continuance of the investigation and CBI can take over the investigation. But, curiously, the stand of the State is that the State must be allowed to continue investigation and the petitioner should repose confidence and trust in the efficiency of the State police agency. We are not able to appreciate the stand taken by the State.
33. Two things are quite disturbing: (i) All the three students, the close friends of the deceased, who accompanied the deceased were not available for interrogation either by the police or by the Sub Divisional Officer during the course of inquest and they have not chosen to help the parents of the deceased in meeting them and consoling them and by attending the inquest and cremation. They simply informed the incident to the police and disappeared. Why? What happened to them? Where have they gone? There is no answer; (ii) even the statement of Assistant Registrar of BIT would disclose that all these persons were taken to the Chief Minister's house on 08.12.2006 night itself, i.e., even before the body was fished out from the Falls; according to him, they discussed with officials in Chief Minister's house for three hours. Why they were taken to the Chief Minister's house? What is the discussion they had in the Chief Minister's House for 3 hours? There is no answer.
34. Therefore, considering the entire approach of the investigating officer and the manner in which the investigation, in the case in hand, had been carried out, it is to be held that we are prima facie satisfied from the circumstances appearing from the records that the State Agency has not worked in an effective way and the circumstances are such that it may reasonably be presumed or inferred that the State Police Agency may not be able to discharge its functions of investigation, fairly and impartially.
35. In such circumstances, which are admitted, as per the case diary, it would be better to allow the independent agency, namely, CBI to take up the investigation to find out the truth. If the CBI is able to find out that the death of the deceased was not due to the drowning but due to the homicide, then further duty for the CBI would be to trace out the culprits. But, the State Police, as indicated above, even at the initial stage has come to the preconceived conclusion that it is a case of drowning. In these circumstances it may not be conducive to allow the State Police Agency to continue to investigation in this case.
36. In the above mentioned backdrop of the case, we feel persuaded to hold that the grievance of the petitioner is well founded. Therefore, we direct the CBI through the Director to take up the further investigation by observing all the formalities as contemplated in the Code of Criminal Procedure after getting statement from the Sub Divisional Officer and continue with the investigation by collecting the relevant materials to find out as to what was the real cause reasons for the death of the deceased, and if it is homicide, who are the culprits behind the scene.
37. The State Government is directed to hand over the entire records relating to this case to CBI and also to provide all necessary facilities to the CBI for the discharge of their duty pursuant to this order.
38. Before parting with, we must make it dear that the observation made in this order are only made for the purpose of dealing with the relief sought for in this case, for handing over the investigation to the CBI. Those observations should not be construed to be on the merits of the case nor should they be construed as finding against any body.
39. It is hereby again made clear that the observations made hereinabove shall not influence the process of investigation in any manner whatsoever and the concerned authorities of the CBI shall proceed with the investigation as per the relevant rules and laws.
40. Accordingly, the CBI is directed to take up further investigation in this case. The Director, CBI is called upon to entrust further investigation of this case to an officer not below the rank of Deputy Superintendent of Police in the CBI and to complete the investigation expeditiously. The copy of the order and relevant papers be forwarded to the Director, CBI for necessary action. The State Government shall provide all necessary facilities in discharge of its dudes pursuant to this order.