NEETU KUMAR NAGAICH versus THE STATE OF RAJASTHAN AND OTHERS

NEETU KUMAR NAGAICH

THE STATE OF RAJASTHAN AND OTHERS

(Writ Petition (Crl.) No. 141 of 2020)SEPTEMBER 16, 2020

[R. F. NARIMAN, NAVIN SINHA ANDINDIRA BANERJEE, JJ.]

Investigation:

De novo investigation – Writ Petition before Supreme Courtseeking transfer of criminal case from State Police to CBI – Allegingseveral deficiencies in the investigation – On direction by SupremeCourt to conclude the investigation within stipulated time, policefiled Closure Report – Held: fair investigation is as much partof Constitutional right guaranteed u/Art. 21 of the Constitution asa fair trial – The Constitutional Court has power to direct de novoinvestigation in exceptional circumstances in order to preventmiscarriage of justice – In the facts and circumstances of the case,entire investigation and the closure report lack bonafide – The interestof justice requires de novo investigation, to sustain the confidenceof the society in the rule of law – Therefore, the Closure Report isset aside and de novo investigation is directed to be conducted by afresh team of investigators of State police – Constitution of India –Art. 21.

Allowing the petition, the Court

HELD: 1. fair investigation is as much part of aconstitutional right guaranteed under Article 21 of theConstitution as fair trial, without which the trial will naturallynot be fair. Normally when an investigation has been concludedand police report submitted under Section 173(2) Cr. P.C., it isonly further investigation that can be ordered under Section173(8) Cr. P.C. But where the constitutional court is satisfiedthat the investigation has not been conducted in proper andobjective manner, fresh investigation with the help of anindependent agency can be considered to secure the ends ofjustice so that the truth is revealed. The power may also be

Aexercised if the court comes to the conclusion that theinvestigation has been done in manner to help someone escapethe clutches of the law. In such exceptional circumstances thecourt may, in order to prevent miscarriage of criminal justicedirect de novo investigation. The power of the constitutional courtto order fresh or de novo investigation could also be exercisedBafter commencement of the trial and the examination of somewitnesses could not be an impediment. [Paras 9 and 12][1020-H;1021-A-C; 1024-G]

Kashmeri Devi v. Delhi Administration, (1988) Suppl.SCC 482 : [1988] 3 SCR 700; Babubhai v. State ofCGujarat, (2010) 12 SCC 254 : [2010] 10 SCR 651;Bharati Tamang v. Union of India, (2013) 15 SCC 578: [2013] 14 SCR 525; Zahira Habibulla H. Sheikh v.State of Gujarat, (2004) 4 SCC 158 : [2004] 3 SCR1050; Pooja Pal v. Union of India, (2016) 3 SCC 135 :D[2016] 11 SCR 560; Dharam Pal v. State of Haryana,(2016) 4 SCC 160 : [2016] 1 SCR 194 – relied on.

2. In the present case, death of the deceased was initiallysought to be passed off as accidental by collision with train orsuicidal due to depression. The F.I.R. under Section 302, IPCEwas registered very much belatedly albeit reluctantly, only at thepersistence of the petitioner and her husband after they repeatedlyapproached the higher authorities. Even thereafter theinvestigation remained at standstill till the filing of the counteraffidavit before this Court with the respondents insisting that thedeath was accidental and that the nature of injuries could notFattribute homicidal death. Earlier the husband of the petitionerhad also petitioned the High Court where the respondents insistedthat the death was accidental in nature. The High Court despitenoticing the long pendency of the investigation took misguidedapproach and passed an open ended order to investigate the caseGand file report. In this manner, the investigation remainedinconclusive for nearly three long years with the investigatingagency sanguine of passing it off as an accidental death withoutcoming to firm conclusion avoiding to complete theinvestigation. It is only when this Court ordered that theinvestigation be concluded within period of two months thatH

suddenly very lengthy investigation closure report has beenfiled taking stand that though the death was homicidal therewas no clue. The closure report is therefore, clear hasty actionleaving much to be desired regarding the nature of investigation,because if detailed investigation had already been done as issought to be now suggested, there is no reason why final reportcould not have been filed by the investigating agency in the normalcourse of events and needed an order to do so from this Court.The entire investigation and the closure report therefore lackbonafide. The interest of justice therefore requires de novoinvestigation to be done, to sustain the confidence of the societyin the rule of law irrespective of who the actors may be. [Para13][1025-C-H; 1026-A-B]

3. Therefore, the closure report is set aside and de novoinvestigation is directed, to be conducted by fresh team ofinvestigators to be headed by senior police officer of the Stateconsisting of efficient personnel well conversant with use ofmodern investigation technology. No officer who was part of theinvestigating team leading to the closure report shall be part ofthe team conducting de novo investigation. Such freshinvestigation must be concluded within maximum period of twomonths. [Para 14][1026-C-D]

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.)No. 141 of 2020.

Under Article 32 of the Constitution of India

Dr. Manish Singhvi, Sr. Adv., Sunil Fernandes, Ms. Astha Sharma,Prastut Dalvi, Ms. Mantika Haryani and Sandeep Kumar Jha, Advs. forthe appearing parties.

1018SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byNAVIN SINHA, J.

1. The deceased aged 21 years, 3rd year student at the NationalLaw University Jodhpur, was the only son of the petitioner. She seeksjustice to unravel the mystery of her son’s homicidal death, dissatisfiedBwith the investigation carried out by the State Police. The investigationhas reached dead end without identification of the offenders. Theprayer in the writ petition is therefore for mandamus to transfer theinvestigation in FIR No.155 of 2018 dated 29.06.2018 registered underSection 302 of the Indian Penal Code at the Mandore Police Station,CJodhpur City, Rajasthan to the Central Bureau of Investigation.2. Shri Sunil Fernandes, learned counsel for the petitioner, submitsthat in the evening of 13.08.2017 the deceased had gone out of thehostel to restaurant situated around 300 meters from the Universitycampus, along with his friends at the University. His dead body wasDfound at 09.00 A.M. the next morning on the railway tracks behind therestaurant. Relying on frivolous stories floated of the deceased havingcommitted suicide due to depression, the University authorities did notregister first information report (hereinafter referred to as ‘the FIR’).The FIR was registered nearly ten months later, on 29.06.2018, aftermuch persuasion by the petitioner and her husband. The casualness andEcallousness of the police is reflected from the fact that neither was thecrime scene sealed nor necessary investigation done with promptitudeby proper examination of relevant witnesses including CCTV footage,and digital footprints, mobile locations etc. and WhatsApp chats duringthe relevant period of time on the day of occurrence. It is difficult toFaccept that the service providers did not provide mobile dump datas oftowers in the location of the incident or that they were convenientlyfound by the police to be “dark zones”.

3. The railway authorities had confirmed, Annexure P-2, that duringthe intervening night approximately five trains had crossed the track andGno engine driver had reported any untoward incident till the body wassuddenly found on the railway track at 09.00 A.M. next morning. Priorto that witness who had gone to answer the call of nature at 06.30A.M. had stated that he did not see any dead body on the railway track.The nature and number of injuries found on the body of the deceasedmake it evident that it was homicidal death and not accidental or suicidalHin nature. The caretaker of the warehouse near the place of occurrence

has not been examined on the frivolous pretext that he was deaf andtherefore unreliable. The excuse that the caretaker could not be reliedupon, because he was deaf, is preposterous.

4. The deceased was not alone but in company of his friends.Strangely, yet there is no evidence how and under what circumstancesand by whom he was murderously assaulted. The deceased is stated tohave returned back to the hostel. The entry register bore his initialssignifying his return to the campus, yet it has been wished away by asimplistic explanation of one of his friends that he had made the entry bymistake. Surely this was matter for further investigation. If the deceasedsubsequently left the hostel premises again alone at 10:30 P.M. therehad to be visuals in the CCTV footage at the gate. No investigation ofmobile locations available in the vicinity at the time of occurrence haseven been attempted by the police.5. The husband of the petitioner had moved the High Court inS.B. Criminal Miscellaneous Petition No.1411 of 2019 dissatisfied withthe manner in which the police was dragging its feet in failing to makeproper investigation, raising serious doubts that efforts were being madeto protect someone. The High Court on 24.02.2020 disposed of the petitiondirecting the Investigating Officer to file the result of the investigation inthe court concerned, reserving liberty to the petitioner to challenge thesame. When nothing transpired again and there was no progress in theinvestigation, the petitioner preferred the instant writ petition on 20thMay, 2020. This Court on 8.07.2020 directed that the investigation mustbe completed within period of two months and the final report be filedin this Court. The investigating officer thereafter in hot haste has filed aclosure report which is thoroughly unsatisfactory and raises morequestions with regard to the nature of investigation done by him, than itseeks to answer. Shri Fernandes sought to persuade us not to allow theclosure report, but to set it aside and order fresh investigation forresolution of the crime and the offender. Pursuant to the order of thisCourt, the petitioner through her lawyer wrote to the Director Generalof Police (Crime) on 10.07.2020 and 11.08.2020 inviting attention toseveral deficiencies in the investigation which yet remained to be inquiredand has not been taken into consideration at all before submitting theclosure report.

6. Dr. Manish Singhvi, learned senior counsel appearing for therespondent State, submitted that inquest proceedings under Section 174

Aof the Code of Criminal Procedure, 1973 (in short, “the Code”) werecommenced promptly. large number of witnesses have been examinedby the Special Investigation Team constituted pursuant to the order ofthe High Court. There has been no deficiency in the investigation. Allpossibilities have been investigated and the necessary evidence collectedand analysed. Despite the best efforts the offenders could not be tracedBor found. There was no occasion for this Court to either direct further orfresh investigation. The closure report may be allowed to be filed beforethe court concerned and the law may take its course.

7. We have considered the submissions on behalf of the partiesand have very carefully gone through the closure report also datedC03.09.2020 filed pursuant to our order dated 8.07.2020. The closure reportaccepts it as homicidal death but concludes that there is no clue whothe offenders were.

8. The deceased is stated to have left the University premisesalong with several friends in the evening of 13.08.2017 at about 07.40DP.M. His dead body was seen the next morning at about 9:00 A.M. onthe railway track passing behind Laxmi Guest House. The body waslying on the track curved at right angle. The deceased had nine veryserious injuries on his person which were found to be ante mortem innature. There was no blood at the place of occurrence, but there wasEblood on his clothes. Only one slipper of the deceased was found at theplace of occurrence. The respondents had contended before the HighCourt and also in the counter affidavit filed before us on 03.07.2020 thatthe death was accidental in nature. The conclusion in the closure reportdated 03.09.2020 then does volte face to acknowledge homicidaldeath with no clue, ruling out an accidental death by collision with aFtrain. It does not leave much to the imagination that the deceased wasnot assaulted at the railway track but elsewhere. Since closure reporthas been submitted which we are being persuaded not to accept, weshall purposefully refrain for detailed analysis of the inherentcontradictions and the inconclusive nature of the investigation as revealedGin the closure report, except to the extent necessary for purposes of thepresent order. We find substance in the submissions made on behalf ofthe petitioner with regard to the deficient nature and manner ofinvestigation carried out by the police leading to the closure report.

9. Normally when an investigation has been concluded and policeHreport submitted under Section 173(2) of the Code, it is only further

investigation that can be ordered under Section 173(8) of the Code. Butwhere the constitutional court is satisfied that the investigation has notbeen conducted in proper and objective manner, as observed inKashmeri Devi vs. Delhi Administration, (1988) Suppl. SCC 482, freshinvestigation with the help of an independent agency can be consideredto secure the ends of justice so that the truth is revealed. The powermay also be exercised if the court comes to the conclusion that theinvestigation has been done in manner to help someone escape theclutches of the law. In such exceptional circumstances the court may, inorder to prevent miscarriage of criminal justice direct de novoinvestigation as observed in Babubhai vs. State of Gujarat, (2010) 12SCC 254. fair investigation is as much part of constitutional rightguaranteed under Article 21 of the Constitution as fair trial, withoutwhich the trial will naturally not be fair. The observations in this contextin Babubhai (supra) are considered relevant at paragraph 45 as follows:

“45. Not only fair trial but fair investigation is also part ofconstitutional rights guaranteed under Articles 20 and 21 of theConstitution of India. Therefore, investigation must be fair,transparent and judicious as it is the minimum requirement of ruleof law. The investigating agency cannot be permitted to conductan investigation in tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice,the court must interfere. In such situation, it may be in the interestof justice that independent agency chosen by the High Court makesa fresh investigation.”

10. In Bharati Tamang vs. Union of India, (2013) 15 SCC 578,relief was sought in writ petition to quash the charge sheet and thesupplementary charge sheet coupled with mandamus for de novoinvestigation by Special Investigation Team of competent persons havingimpeccable credentials to unravel the conspiracy. This Court relied onthe following extract from Zahira Habibulla H. Sheikh vs. State ofGujarat, (2004) 4 SCC 158, as follows:

“33. ….”Courts have to ensure that accused persons arepunished and that the might or authority of the State are not usedto shield themselves or their men. It should be ensured that theydo not wield such powers which under the Constitution has to beheld only in trust for the public and society at large. If deficiencyin investigation or prosecution is visible or can be perceived

by lifting the veil trying to hide the realities or covering theobvious deficiencies, courts have to deal with the same withan iron hand appropriately within the framework of law. It isas much the duty of the prosecutor as of the court to ensurethat full and material facts are brought on record so that theremight not be miscarriage of justice.”

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“37. In the decision of Babubhai v. State of Gujarat, in para 40,this Court held that the scheme of investigation particularly Section173(8) CrPC provides for further investigation and not ofreinvestigation but held in para 42 as under: (SCC p. 272)

“42. Thus, it is evident that in exceptional circumstances,the court in order to prevent the miscarriage of criminaljustice, if considers necessary, may direct for investigationde novo wherein the case presents exceptionalcircumstances.”

38. Therefore, at times of need where this Court finds that anextraordinary or exceptional circumstance arise and the necessityfor reinvestigation would be imperative in such extraordinary caseseven de novo investigation can be ordered.

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41.3. If deficiency in investigation or prosecution is visible or canbe perceived by lifting the veil which try to hide the realities orcovering the obvious deficiency, Courts have to deal with the samewith an iron hand appropriately within the framework of law.

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41.5. In order to ensure that the criminal prosecution is carried onwithout any deficiency, in appropriate cases this Court can evenconstitute Special Investigation Team and also give appropriatedirections to the Central and State Governments and otherauthorities to give all required assistance to such speciallyconstituted investigating team in order to book the real culpritsand for effective conduct of the prosecution.

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41.7. In appropriate cases even if the charge-sheet is filed it isopen for this Court or even for the High Court to direct investigationof the case to be handed over to CBI or to any other independentagency in order to do complete justice.

41.8. In exceptional circumstances the Court in order to preventmiscarriage of criminal justice and if considers necessary maydirect for investigation de novo.”

11. The power of the constitutional court may extend to directingreinvestigation was again noticed in Pooja Pal vs. Union of India, (2016)3 SCC 135, as follows:

“87. Any criminal offence is one against the society at large castingan onerous responsibility on the State, as the guardian and purveyorof human rights and protector of law to discharge its sacrosanctrole responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. The power of the constitutionalcourts to direct further investigation or reinvestigation is dynamiccomponent of its jurisdiction to exercise judicial review, basicfeature of the Constitution and though has to be exercised withdue care and caution and informed with self-imposed restraint,the plenitude and content thereof can neither be enervated normoderated by any legislation.

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90. That the victim cannot be afforded to be treated as an alien ortotal stranger to the criminal trial was reiterated by this Court inRattiram v. State of M.P., (2012) 4 SCC 516, It was postulatedthat the criminal jurisprudence with the passage of time has laidemphasis on victimology, which fundamentally is the perceptionof trial from the viewpoint of criminal as well as the victimwhen judged in the social context.

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96. The avowed purpose of criminal investigation and itsefficacious prospects with the advent of scientific and technicaladvancements have been candidly synopsised in the prefatorychapter dealing with the history of criminal investigation in thetreatise on Criminal Investigation — Basic Perspectives by PaulB. Weston and Renneth M. Wells:

“Criminal investigation is lawful search for people and thingsuseful in reconstructing the circumstances of an illegal act oromission and the mental state accompanying it. It is probingfrom the known to the unknown, backward in time, and itsgoal is to determine truth as far as it can be discovered inany post-factum inquiry.

Successful investigations are based on fidelity, accuracyand sincerity in lawfully searching for the true facts of anevent under investigation and on an equal faithfulness,exactness, and probity in reporting the results of aninvestigation. Modern investigators are persons who stick to thetruth and are absolutely clear about the time and place of an eventand the measurable aspects of evidence. They work throughouttheir investigation fully recognising that even minor contradictionor error may destroy confidence in their investigation.

The joining of science with traditional criminal investigationDtechniques offers new horizons of efficiency in criminalinvestigation. New perspectives in investigation bypass relianceupon informers and custodial interrogation and concentrate upona skilled scanning of the crime scene for physical evidence and asearch for as many witnesses as possible. Mute evidence tellsEits own story in court, either by its own demonstrativeness orthrough the testimony of an expert witness involved in itsscientific testing. Such evidence may serve in lieu of, or ascorroboration of, testimonial evidence of witnesses found andinterviewed by police in an extension of their responsibility to seekout the truth of all the circumstances of crime happening. AnFincreasing certainty in solving crimes is possible and willcontribute to the major deterrent of crime—the certainty thata criminal will be discovered, arrested and convicted.”

12. In Dharam Pal vs. State of Haryana, (2016) 4 SCC 160, itwas noticed that the power of the constitutional court to order fresh orde novo investigation could also be exercised after commencement ofthe trial and the examination of some witnesses could not be animpediment, observing as follows:

“25. ….The power to order fresh, de novo or reinvestigation beingvested with the constitutional courts, the commencement of trial

and examination of some witnesses cannot be an absoluteimpediment for exercising the said constitutional power which ismeant to ensure fair and just investigation. …… It is the boundenduty of court of law to uphold the truth and truth means absenceof deceit, absence of fraud and in criminal investigation realand fair investigation, not an investigation that reveals itself as asham one. It is not acceptable. It has to be kept uppermost inmind that impartial and truthful investigation is imperative. ….”13. Reverting to the facts of the present case, we find that theoccurrence took place in the intervening night of 13.08.2017 and14.08.2017. The inquest proceedings under Section 174 Cr.P.C. wereregistered on 14.08.2017 but remained inconclusive, and now in view ofthe closure report deserves to be consigned. The death of the deceasedwas initially sought to be passed off as accidental by collision with atrain or suicidal due to depression. The F.I.R. under Section 302, IPCwas registered very much belatedly on 29.06.2018, albeit reluctantly,only at the persistence of the petitioner and her husband after theyrepeatedly approached the higher authorities. Even thereafter theinvestigation remained at standstill till the filing of the counter affidavitbefore this Court as recent as 03.07.2020 with the respondents insistingthat the death was accidental and that the nature of injuries could notattribute homicidal death. Earlier the husband of the petitioner had alsopetitioned the High Court where till 20.07.2019 the respondents insistedthat the death was accidental in nature. Unfortunately, the High Courtdespite noticing the long pendency of the investigation took misguidedapproach that the petitioner had not expressed suspicion against any oneand neither had he alleged biased against the Investigating Officer, topass an open ended order to investigate the case and file report. In thismanner, the investigation remained inconclusive for nearly three longyears with the investigating agency sanguine of passing it off as anaccidental death without coming to firm conclusion avoiding to completethe investigation. It is only when we ordered on 08.07.2020 that theinvestigation be concluded within period of two months and the finalreport be placed before us, that suddenly very lengthy investigationclosure report has been filed before us taking stand that though thedeath was homicidal there was no clue. The closure report is therefore,to our mind, clear hasty action leaving much to be desired regardingthe nature of investigation, because if detailed investigation had already

Abeen done as is sought to be now suggested, there is no reason why afinal report could not have been filed by the investigating agency in thenormal course of events and needed an order to do so from this Court.The entire investigation and the closure report therefore lack bonafide.The interest of justice therefore requires de novo investigation to bedone, to sustain the confidence of the society in the rule of law irrespectiveBof who the actors may be.

14. We, therefore, set aside the closure report and direct denovo investigation by fresh team of investigators to be headed by asenior police officer of the State consisting of efficient personnel wellconversant with use of modern investigation technology also. No officerCwho was part of the investigating team leading to the closure report shallbe part of the team conducting de novo investigation. Much time haspassed and there is undoubtedly an urgency in the matter now. Wetherefore direct that such fresh investigation must be concluded within amaximum period of two months from today and the police report be filedDbefore the court concerned whereafter the matter shall proceed inaccordance with law.

15. The writ petition is allowed.

EKalpana K. Tripathy

Petition allowed.