Judgment:
N.N. Mathur, J.
1. This special criminal application under Article 226 of the Con- stitution has been registered under Rule 31 of the High Court Amended Rules, 998 on an application dated 19.1.1996 received through post from Dharmishtaben Narendrasinh Rana, resident of Moti Sarsan, Tal. Santrampur, Dist. Panchmahals.
In her application, she has stated that on 1.11.1995, at about 1.00 hrs. at midnight, M.H. Joshi, P.S.I., L.C.B., Godhra, Dineshbhai, police constable and other members of his staff came and took her husband with them in police jeep. Her husband was taken to C.I.D. office and later on, to Government Guest House, at Lunavada and then, in the morning, to Godhra. At about 7.15 a.m., her husband had gone for urinal, police constable Dinesh also accompanied him at that time, Dinesh came to P.S.I. Joshi and told him that head constable Rana had shot himself. Healing this, Joshi went to the spot and found Rana lying at the door of urinal. Police constable Dinesh removed the revolver from the spot.
The say of the petitioner is that she suspects foul play in the death of her husband. She has also expressed her suspicion that P.S.I. Joshi and constable Dinesh have murdered her husband and S.D.P.O. Dave has helped them. In view of this, she has sought a high level enquiry for the investigation of the incident.
2. This court, by order dated 1.2.1996, issued notice to M.H. Joshi, P.S.I., L.C.B., Godhra, S.K. Dave, S.D.P.O., Lunavada, Dineshbhai, police constable and Ambalal Rana. They were directed to remain present in the court on 9.2.1996.
3. Mr. M.H. Bhaya, Advocate appeared for the petitioner as amicus curiae, M.H. Joshi filed affidavit on 11.3.1996 and S.K. Dave filed affidavit on 28.2.1996. Dineshbhai filed affidavit on 1.3.1996 and Ambalal also filed affidavit on 11.3.1996.
4. It is pointed out that on 1.11.1995, at about 9.00 hrs., L.C.B. Joshi lodged the F.I.R. of the incident, at Godhra Police Station against Narendrasinh Rana for the offence under Section 309 of Indian Penal Code which was registered as the Cr. No. I.R. 293 of 1995 and the investigation was conducted by P.I., Godhra town, H.G. Damor. The investigation was supervised by Sub-Divisional Police Officer, Godhra and Additional Superintendent of Police, Godhra. The investigation continued up to 29.11.1995 by Damor and the same was handed over to P.I. Bhatt, as Damor was transferred out of Godhra town police station and Bhatt was posted vice him. Bhatt continued the investigation up to 25.3.1996. A grievance was made with respect to the delay in investigation and also mala fide investigation. Mr. M.H. Bhaya, learned Counsel, therefore, made a request to this Court to give a direction to entrust the investigation to the District Magistrate or Additional D.G.P., C.I.D. (Crimes). The investigation was then being conducted by R.M. Bhabhor, P.I., C.I.D. (Crimes), Godhra. The learned Public Prosecutor on 2.7.1986, made a statement before this Court, keeping in view the suspicion pointed out at the police officers, the investigation hereinafter shall be made under the direct supervision of either S.P. or D.I.G., C.I.D. Crimes and ultimate report of the investigation shall be submitted to the court. In view of it, this Court, by order dated 2.7.1996, directed that the investigation shall be completed and a report shall be submitted on or before 31.8.1996 and the investigation shall be under the direct supervision of the D.I.G., C.I.D. Crimes.
Gurudayal Singh, I.G. Police, Crimes under his report dated 16.9.1996 submitted that allegations against the police officers of committing murder of petitioner's husband are unfounded. He also submitted the report of the investigation conducted by P.I. R.M. Bhabhor, C.I.D. Crimes, Panchmahals, at Godhra.
H.R. Gehlot, D.I.G., C.I.D. Crimes has also filed an affidavit dated 17.10.1996. After giving the details of the investigation, it is submitted that the investigation was done not to cover up the acts or omissions of any officer. It was also submitted that the conclusion of the investigation is that it was a case of suicidal death. According to him, the reason for committing suicide is not very clear, but it may be due to the treatment meted out to the deceased by the police, who did not treat the deceased with respect as an informant or member of the police force.
5. A detailed report dated 13.10.1996 has also been placed on record, Gehlot in the report has submitted that the investigation was later on given to B.D. Patel, Dy. S.P., C.I.D. Crime on 27.9.1996. Gehlot has also stated that he himself supervised the investigation and examined the witnesses and verified their statements.
6. It is contended by Mr. M.H. Bhaya, learned amicus curiae, that the investigating officer has deliberately overlooked some of very important aspects of the case, which shows that the local police officers are trying to convert the case of murder into a case of suicide. Mr. Bhaya has emphasised that the important evidence in the case is the weapon of the offence, viz., the revolver. At the first instance, there is nothing to show that the deceased Narendrasinh was carrying the pistol with him. Secondly, the pistol was removed from the place of incident by police constable Dineshbhai. By doing so, the important evidence of finger prints on the pistol has been removed. It is also submitted that there is nothing to show that why the deceased Narendrasinh was called at the odd hours at night at the Guest House. Even the F.I.R. with respect to the information given by Ambalal, for which he was also called, was registered as late as on 5.11.1995. He also submits that the statement of the doctor on its face is false and it appears that he has given a false statement under the pressure of the local police. Mr. Bhaya has further emphasised that the deceased Narendrasinh was a postgraduate in commerce and young energetic police officer of 29 years and it is impossible to believe that he would have committed suicide for the reason that he was not being well treated by the police officers.
7. Learned counsel has also invited my attention towards one letter dated 9.10.95 written by the deceased Narendrasinh Rana, Assistant Intelligence Officer, C.I.D. and addressed to the Director General of Police, C.I.D. Intelligence in which it was pointed out that he has learnt that Hemant-kumar Dadubhai Barot and his family members are indulged in the activities of charas, ganja and opium etc. It was further pointed out that these persons belonging to Lunavada are having excessive wealth. In view of this, the contention is that the deceased Narendrasinh Rana, an honest police officer has been murdered by the said criminals with the help of local police officers, i.e., Joshi and constable Dineshbhai, so that their misdeeds may not be exposed.
8. Learned counsel submits that this Court under Article 226 of the Constitution has ample power to direct investigation by independent agency, viz., C.B.I, and also to direct the State Government to pay compensation as interim measure. He has referred to various decisions.
9. In Charanjit Kaur v. Union of India 1994 ACJ 499 (SC), the Apex Court, on appreciation of the facts, arrived at the conclusion that the deceased who was officer in the army died while in service in mysterious circumstances and his death is attributable to and aggravated by the military service. The court also found that the responsibility of his death is prima facie traceable to the act of criminal omissions and commissions on the part of the concerned authorities. In view of this finding, the court held that widow of the deceased was entitled to suitable compensation which was assessed at Rs. 6,00,000 and also the family pension. It may be stated that in this case, the deceased Mukhbain Singh, a Major in the army was posted at Kargil on 10.6.1978. He complained of chest pain and was removed to Leh on 16.6.78. The diagnosis made was of ischaemic heart disease. His wife was living at Meerut along with her children. On receiving the information of illness of her husband, she with her children, rushed to Leh. After a great deal of persuasion, she and her children were allowed to meet Mukhbain Singh. She found that her husband was lying in a makeshift hospital which was devoid of life-saving treatment at the relevant time. The condition of her husband was precarious. She requested the army authorities to airlift him to Ambala or Srinagar Military Hospital for proper treatment. This request was turned down. After a great deal of persuasion, the army officials agreed to shift her husband from Leh to Ambala and told her that her husband would be airlifted to Ambala on 21.6.1978. The petitioner and her husband pleaded with the authorities that she and her children be allowed to accompany him but that request was not acceded to. She was asked to move with her children independently from Leh and reach Ambala to receive her husband there. On 22.6.78, she along with her children reached Srinagar and from there, they reached Udhampur on 23.6.1978. On that day, at the Udhampur check post, she was informed that her husband was not 'well' and she should return to Leh. The petitioner rushed back to Leh the next day, i.e., on 24.6.1978. There she received rude shock when she was shown the burnt body of her husband. The authorities did not disclose to her the circumstances under which her husband had received the bums. Later on, she was only given a report of the post-mortem examination conducted by the army medical authorities at Leh which attributed the death to 'extensive burns'. The only say of the army authority was that Mukhbain Singh, on his own, did not board the plane on 23.6.1978. On that day, he had gone to attend some private business in the cook house and later his chaired body was found with 98 per cent burns due to kerosene oil. Under these circumstances, the court found that the matter was required to be investigated at the highest level, i.e., to be personally looked into by the Chief of the Army Staff.
10. In Nilabati Behera alias Lalita Behera v. State of Orissa 1993 ACJ 787 (SC), a petition was registered under Article 32 of the Constitution by the Apex Court on a letter of Nilabati Behera alias Lalita Behera, wherein she complained the death of her young son Suman Behera aged about 22 years in the police custody. Suman Behera was alleged to have been taken from his home by the police at about 8.00 a.m. on 1.12.1987 in connection with the investigation of an offence of theft. At about 2.00 p.m. on the next day, 2.12.87, the dead body of Suman Behera was found on the railway tracks. There were multiple injuries on his body. The police pleaded that Suman Behera managed to escape from the police custody at about 3.00 a.m. on the night between 1st and 2nd days of December, 1987 and he could not be apprehended thereafter in spite of search and his dead body was found on the railway track the next day with multiple injuries which indicated that he was run over by passing train after he had escaped from police custody.
The Apex Court directed the District Judge, Sundargadh in the State of Orissa to hold an enquiry into the matter and submit a report. The District Judge, in his report, found that Suman Behera died on account of multiple injuries inflicted on him while he was in police custody. The Apex Court significantly noticed that there was no cogent independent evidence of any search made by police to apprehend Suman Behera, if the defence of the escape from police custody was true. The medical evidence revealed that the injuries were caused by hard and blunt object. The medical evidence excluded the possibility of all the injuries to Suman Behera being caused in a train accident, while indicating that all of them could result from merciless beating given to him.
The Apex Court, on appreciation of the evidence adduced during the enquiry by the District Judge arrived at the conclusion that it was a case of custodial death and Suman Behera died as a result of injuries inflicted upon him while he was in police custody. Considering the number of cases, it was held that the court under Articles 32 and 226 of the Constitution has a power to award compensation in such proceedings instead of directing the claimants to resort to ordinary process of recovery of damages by action in tort. On the facts of the case, the court awarded a compensation of Rs. 1,50,000/- with the clarification that the award of the compensation in the proceedings would be taken into account for adjustment in the event of any other proceedings taken by the petitioner for recovery of compensation on the same ground, so that the amount to this extent is not recovered by the petitioner twice over. In the view of the court, there is. a statutory recognition of the principle of adjustment under Section 357(5) of the Code of Criminal Procedure and under Section 141(3) of the Motor Vehicles Act.
11. In Arvinder Singh Bagga v. State of U.P. 1995 ACJ 320 (SC), a married woman was alleged to have been raped, was subjected to physical, mental and psychological torture with a view to give a false statement implicating her husband and family members in a case of abduction and forcible marriage thereafter. Her husband and family members were also tortured and humiliated. The Apex Court directed the State Government to launch prosecution against all the erring police officers and to pay a compensation of Rs. 10,000/- each to the victim woman and her husband and Rs. 5,000/- to each of the other victims.
12. In re: Death of Sawinder Singh Grover 1994 SCC (Cri) 1464, on the report submitted by the Additional District Judge, Delhi, it was found that the story given by the police indicating the circumstances leading to the death of Sawinder Singh on account of suicidal jump was not truthful. There was a strong suspicion of misfeasance torture. On these facts, the Apex Court directed the C.B.I, to ensure that the F.I.R. is registered on the facts as emanating from the order and report of the Additional District Judge and further direction was given to pay a sum of Rs. 2,00,000/- as ex gratia payment to the widow of the deceased Sawinder Singh. It was made clear that in the event of a decree to be passed, the sum of Rs. 2,00,000/- to be paid as ex gratia shall not be taken into account.
13. In R.S. Sodhi v. State of U.P. 1994 Suppl (1) SCC 143, ten persons were reported to have been killed in what were described as 'encounters' between the Punjab militants and the local police. It was prayed that investigation may be directed to be carried out by the Central Bureau of Investigation, having regard to the fact that the accusations are levelled against the local police. This prayer was opposed by the State Government on the ground that a prompt action was taken by appointing a high level officer to enquire into the incident and promptly transferring the concerned local police so that there may be no possibility of any tampering or interference by them. It was also contended that the investigation in a criminal case is within the exclusive domain of the State Government. Further, the Apex Court considered both advisable and desirable as well as in the interest of justice to entrust the investigation to Central Bureau of Investigation forthwith. The court made it clear that the order would mean no reflection on the credibility of either the local police or the State Government as they have been guided by the larger requirements of justice.
14. However, an attempt was made by the filing a writ petition before the Apex Court by the Inspector of Police, viz., Mohammed Anis, thwarting the implementation of the said order of the court. It was argued that the order directing the C.B.I, to investigate into the Pilibhit incident is destructive of the exclusive powers of the State of U.P. and is in flagrant disregard of the mandatory provisions of the Code of Criminal Procedure. The attention of the court was invited to the order dated 10.3.1989 in Haryana Mahila Sangathan v. Union of India, Writ Petition Nos. 531-36 of 1988, wherein the Division Bench referred the question whether the court can order the C.B.I, to investigate an alleged offence without the consent and orders of the concerned State Government to a larger Bench. The contention that since this issue was awaiting decision by the larger Bench, this Court could not have passed the order, directing the C.B.I, to investigate, was rejected in the case of Mohammand Anis 1994 Suppl (1) SCC 145.
15. In Inder Singh v. State of Punjab 1995 ACJ 1063 (SC), it was alleged that the Deputy Superintendent of Police, on suspicion that there were in all seven persons in the abduction of his younger brother, forcibly removed them from their farm house and they were subsequently killed. In spite of the fact that this was reported to Sr. Superintendent of Police and D.I.G., no serious action was taken. The matter was directed to be investigated by the C.B.I. Having perused the report of the C.B.I., the Apex Court noticing the indolent attitude of high ranking police officers, deprecated the conduct of the Punjab police as a whole. The court also directed the disciplinary action against concerned officers who were responsible for delaying registration of the complaint and enquiry thereon. The court further directed the State of Punjab to pay to the legal representatives of each of the said seven persons an amount of Rs. 1,50,000. The cost of the petition was quantified at Rs. 25,000/-.
16. The Apex Court recently in D.K. Basu v. State of West Bengal, JT 1997(1) SC 1, examined the question of custodial death and the torturing by the police in great depth and detail. The court said that custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent under Articles 21 and 22(1) of the Constitution of India are required to be jealously and scrupulously protected. The court laid down requirements to be followed in cases of arrest and detention. Dealing with the question of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of a citizen, the court said, thus:
Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of the strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.
17. In State of Bihar v. Ranchi Zila Samta. Party, JT 1996 (3) SC 751, the question came up before the Apex Court whether the High Court in exercise of its powers under Article 226 of the Constitution could take the investigation away from the State police and entrust it to C.B.I. The court held that the direction given by the High Court entrusting the investigation to C.B.I, was just and proper and calls for no interference. With respect to the parameters of the powers of High Court under Article 226 to direct an investigation to C.B.I, without the consent of the concerned State, the same being a subject-matter of reference pending consideration of the Constitution Bench of five Judges, the question was left to be considered and dealt with by the Constitution Bench.
18. A Division Bench of Rajasthan High Court in State of Rajasthan v. Phool Chand Garg 1991 Cri LJ 125, held that in case the High Court orders that the case should be investigated by C.B.I., no consent of the State Government is necessary. The court relied on a decision of the Apex Court in the case of State of West Bengal v. Sampat Lal AIR 1985 SC 195. However, the court held that unless there is material on record for the court to be satisfied that the investigation is not being conducted properly, it should not order the transfer of it. The court further observed that emotions and surmises can hardly form the proper material to come to the conclusion and there must be specific allegations and material that the investigation is not proceeding on the proper lines and that the Investigating Officer is acting in a partisan manner, ignoring the important facts and evidence and only then, the court should order the transfer of investigation from the local police to the C.B.I. In para 4 of the said judgment, the court framed the following guidelines:
(i) If an application for transfer of investigation from local police to C.B.I. is given in this Court, notice must be given to the State, the investigation file must be called for perusal and it is not necessary to give any notice to the accused person because the object of investigation is to collect evidence.
(ii) Generally, the starting investigating agency i.e., the officer of the police where the F.I.R. is lodged, should be allowed to continue the investigation and on being satisfied on material on record that the investigating officer is not conducting the investigation on proper lines and is trying to save the real accused, this Court should transfer the investigation from the local police to C.B.I.
(iii) The transfer of the investigation from local police to the C.B.I, should not be made merely on asking.
(iv) In case charge-sheet is filed and cognizance is taken by the Magistrate, then proper course for the court will be to direct the concerned Magistrate, if necessary, to proceed under Section 173(8), Criminal Procedure Code. But in case the court is satisfied that there is prima facie proof against the person against whom neither charge-sheet has been filed nor cognizance has been taken, the case is not of serious nature, the court after giving notice to the aforesaid person may make the appropriate order, and any order in respect of further investigation shall be considered to be an order made under Section 173(8), Criminal Procedure Code.
19. From the reading of the various decisions referred to above, it clearly emerges that the custodial death being a serious crime, as soon as such incidents are reported, the higher authorities should promptly act and must ensure that the investigation is conducted with promptitude by an independent investigation agency so that all concerned including the relatives of the deceased may feel assured that the independent agency is looking into the matter without the influence of the local police. Howsoever faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. If the higher police authority does not act promptly, it may form a reasonable ground for the members of the family of victim to suspect a foul play therein and this may be a ground for the courts to consider for transfer of the investigation to an independent investigating agency. Though once High Court orders that the case should be investigated by C.B.I., no consent of the State Government under Section 6 of the Delhi Special Police Establishment Act is necessary, but the High Court would not exercise such powers just for asking. The power is to be exercised with great care, caution and circumspection. The C.B.I, is a premier investigating agency of the country and unless there are compelling reasons and there is no option available, it should not be unnecessarily overloaded, otherwise this may affect its efficiency. There are number of other agencies in the State itself which can investigate without being influenced by the local police.
20. With respect to the award of monetary compensation against the State in case of a custodial death, in addition to the traditional remedy, a compensation can be awarded as an interim measure in writ jurisdiction in a fit and suitable case. It depends upon facts of each case. If the court finds prima facie that the death is traceable to act or omission of concerned authorities, it would be just and proper to award a suitable compensation as an interim measure.
21. Reverting to the facts of the present case, it is evident that though the incident took place on 1.11.1995, the investigation was conducted by H.G. Damor, P.I., Godhra up to 29.11.1995. Thereafter, the investigation was taken up by Bhatt, who conducted the same up to 25.3.1996. Thus, the investigation was with the local police for almost five months. Even thereafter, no promptness is shown in the investigation.
22. What causes me considerable distress is that though two senior police officers, viz., Manoj Agarwal, A.S.P., Dahod and Anil Pratham, D.S.P. who were immediately available in Godhra, did not act promptly and make any efforts for the investigation being conducted by an independent agency, which could provide credit to the investigation. Not only this, even when this Court directed the investigation to be conducted under the direct supervision of the D.I.G., Crime Branch, it was not done till the court reminded him to do so. This conduct of the higher police authorities has provided a reasonable ground to the family members of the deceased to suspect a foul play in the incident. I deprecate this sort of indolent attitude of the higher police authorities. They were expected to act as more matured and seasoned officers.
23. However, having read the report submitted by one H.R. Gehlot, Deputy Inspector General of Police, C.I.D. Crime Branch, Gujarat State, I am satisfied that no mala fides can be attributed to the investigating agency or on the part of the C.I.D., Crimes, State of Gujarat. It is neither proper nor advisable for me to say more with respect to the merits of the case, as to whether it is of murder or of a suicide, as it may otherwise prejudice the further investigation, enquiry or trial.
24. Now dealing with the question of interim compensation, I am of the view that the petitioner is entitled to the same. Even if the case of the police is accepted on its face value, a tentative reasonable inference can be drawn that deceased was subjected to mental and psychological torture, which had led to the unfortunate incident of alleged suicide. The deceased Narendrasinh was a young man of 29 years with a qualification of M.Com. He was posted as the Assistant Intelligence Officer, C.I.D. Intelligence, at Lunavada. An officer of this rank was called by the local police at an awkward time, i.e., about 1.00 to 2.00 a.m. (midnight). He was asked to accompany the police inspector to the Guest House where senior police officers were camping. It appears that Narendrasinh was agitated because of this be haviour and, therefore, he approached the D.S.P., but he was turned out without hearing. Not only this, the D.S.P. asked other police officers arrogantly as to how the said police man could enter in his room. He was asked to sit in the room of the peon for the whole night and in the morning, he was not even allowed to go to his residence and was directed to accompany them for going to Godhra. He was insulted and humiliated, for no cause. Though it may not strictly construe an offence abetting the suicide, but such sort of arrogant be haviour of the police officers definitely leads to mental and psychological torture. I have no doubt in my mind that if the police officers would have acted with tact and would have shown a little respect to the deceased who was not an accused in the case and was a member of Police Force, the unfortunate incident could have been avoided. In view of this, the young widow is entitled to an interim compensation.
25. The deceased Narendrasinh was 29 years old. He was qualified as M.Com. and was holding the office of the Assistant Intelligence Officer, C.I.D. Intelligence, this indicates that he had a promising career. I am informed that petitioner is being paid family pension at the rate of Rs. 432/- per month. She has also been paid due provident fund, gratuity, etc., and some amount from Police Welfare Fund. Considering the facts of the case, some justice can be done if the young widow is paid Rs. 2,00,000/- as compensation by way of interim measure. It is, however, clarified that the compensation awarded would be taken into account for adjustment in the event of any other proceedings taken by the petitioner for recovery of compensation on the same ground. This will not affect any other liability of the respondents or any other persons flowing from unnatural death of Narendrasinh Rana.
26. Before parting with, I place on record 'word of appreciation' for Mr. M.H. Bhaya, learned Counsel who has appeared as an amicus curiae and has rendered best legal assistance to this Court.
27. In view of the aforesaid, this special criminal application is partly allowed. While prayer with respect to the transfer of investigation is declined, it is directed that the petitioner shall be paid a sum of Rs. 2,00,000/- (Rupees two lakh only) as a measure of interim compensation within a period of two months from the date of receipt of the writ. This amount shall be deposited in the office of the Registrar of the High Court of Gujarat, at Ahmedabad. On depositing of this amount, the Registrar shall invest the said amount of Rs. 2,00,000/- in any scheduled bank in the petitioner's name initially for a period of three years, during which she would receive only the interest payable thereon. After three years, the further orders shall be obtained from this Court either for the reinvestment of the principal amount or for being paid to the petitioner. The Collector, Panchmahals, at Godhra will ensure the compliance of this order and report to the Registrar of this Court within a period of three months. Rule made absolute to the aforesaid extent with costs quantified as Rs. 5,000/-, out of which, a sum of Rs. 3,500/- shall be paid to the learned Counsel Mr. M.H. Bhaya.