Full Judgement
Pooja Pal Vs. Union of India and Ors.
[Criminal Appeal No. 77 of 2016 arising out of Special Leave Petition (CRL.) No. 1458/2015]
AMITAVA ROY,J.
1. Leave granted.
2. The appellant, widow of slain Raju Pal, who at his death was a sitting M.L.A. of Uttar Pradesh State Assembly, is before this court in her relentless pursuit for securing investigation by the Central Bureau of Investigation (CBI) into the stirring incident of murderous attack on her husband, snuffing their a week old marital tie. This is the appellant's second outing before this forum, she having been relegated earlier to the High Court, to seek the remedy at the first instance. By the decision impugned, the High Court has declined the relief sought for.
3. We have heard Mr. R. S. Sodhi, learned senior counsel for the appellant, Ms. V. Mohana, learned senior counsel for the respondent Nos. 1 & 2, Mr. P.N.Misra, learned senior counsel for the respondent No. 3 and Mr. Manoj Goel, learned counsel for the respondent Nos. 4 and 5.
4. The eventful factual backdrop is outlined by the available pleadings. First the facts as narrated by the appellant. In the bye-elections to the vacant seat of Allahabad (West) State Assembly, held in the month of October 2004, the same having been vacated on the resignation of its incumbent Atiqe Ahmed, respondent No. 4, he having been elected as a Member of Parliament from Phoolpur constituency, Allahabad, the appellant's husband was elected thereto by defeating the nearest contender Mohd. Ashraf set-up by the Samajwadi Party.
Whereas the appellant's husband as the candidate of the Bahujan Samaj Party (for short hereinafter referred to as "BSP.") secured 70537 votes against 65713 votes polled by the respondent No. 5, the other candidates representing the Congress and Bhartiya Janta Party fared very poorly in comparison. According to the appellant, since his defeat, Moh. Ashraf @ Khalid Azeem the respondent No. 5, along with his brother Atiqe Ahmed respondent No. 4 as well as the then Chief Minister of the State had taken the set-back to be a matter of personal humiliation, defeat and insult so much so that the respondent No. 4 declared in public that the candidate elected would not be able to hold the seat for long.
It has been alleged by the appellant that subsequent thereto, continuous attempts were made to eliminate Raju Pal and that too with the connivance of the local police and at the instigation of the respondent No. 4. The appellant has asserted that as a consequence, the family members and the supporters of her husband very often were assaulted and subjected to harassment by arrests by the police and hired goons engaged by the respondent Nos. 4 and 5 and that their property and personal belongings were even destroyed.
5. The appellant alleged as well that the respondent No. 5 was a history sheeter against whom several cases had been lodged involving the offence of murder, but on account of his political clout and the following of anti- social elements, no witness would even dare to give evidence of his nefarious activities. This was more so, according to the appellant, as he enjoyed police patronage and protection. The appellant stated that after the election of her husband as the Member of the Legislative Assembly on 16.10.2004, three abortive attempts were made on his life and the properties belonging to him and his close relatives were ransacked and taken away.
The appellant mentioned that the last attempt on the life of her husband before the gruesome incident was made on 28.12.2004. Prior thereto amongst others, an attempt was also made in the month of November, 2004, whereafter Raju Pal did submit a representation to the Governor of the State on 04.11.2004, following which the said constitutional authority had directed an inquiry to be made.
6. According to the appellant though the Governor of the State had directed that additional security be provided to her husband, it was not done and instead his existing security staff was replaced by the State Government. Such was the animosity as alleged by the appellant, that the State Government even had withdrawn Raju Pal's official gunners for whose timely intervention, he survived the attempt on his life on 28.12.2004 by the hired goons and henchmen of the respondent Nos. 4 and 5.
The appellant has alleged that the two official gunners of her husband were replaced by others on the choice of the local police and the desire of the respondent Nos. 4 and 5 to ensure that Raju Pal does not escape the next attempt. That in connection with the incident of 28.12.2004, Raju Pal had lodged a First Information Report with the police in which he had named these respondents has been stated as well. This notwithstanding, buckling under political pressure, the police even deleted the name of respondent No. 5 from the F.I.R. and made a formality of some investigation.
7. The appellant has stated that on the date of the incident i.e. 25.01.2005 at 3 P.M., her husband Raju Pal was travelling in a vehicle accompanied by his two supporters Sandeep Yadav and Devi Lal Pal. His two official gunners instead of accompanying him, and as a part of the conspired plan were travelling in the second car behind his vehicle. The vehicle in which the appellant's husband was travelling along with his friend Singh Sahib and his wife on reaching Amit Deep Maruti Agency, was intercepted and surrounded by eight persons, whereupon the respondent No. 5 Mohd. Ashraf shot him in his head.
In course of the shoot-out, Sandeep Yadav, Devi Dayal Pal and the appellant's husband were seriously injured and they eventually succumbed to the injuries. The appellant has alleged that the official gunners, who were travelling in the car behind, not only did not intervene or retaliate to save Raju Pal but had abandoned their vehicle. She has alleged that reportedly, a conspiracy was hatched in this regard, at the political level in connivance with the top police officers including the Station Officer, Dhoomanganj, Shri Parshuram, C.O. (Police), Civil Lines who were then present at the spot alongwith Superintendent of Police (City) & Deputy Inspector General of Police, Allahabad and Atiqe Ahmad, respondent No. 4.
8. The appellant has stated as well that the assailants who were in three different vehicles, left the site of the incident after resorting to indiscriminate firing, whereupon the persons present along with the supporters of the injured took Raju Pal out of the car and tried to rush to the hospital in a three-wheeler. The appellant has mentioned that as per the account of the eyewitnesses present and as reported by the media, the assailants returned and opened indiscriminate fire on Raju Pal from a close range so as to ensure that he was dead. That a third attack was made on the injured Raju Pal from a point plank range before he could reach the hospital, where he succumbed to his injuries, has been stated in categorical terms. According to the appellant, though there were four police stations on the route to the hospital, no police officer did respond or offer to help the injured or his companions in their last minute bid to save their lives.
9. The appellant on the very same date i.e. 25.01.2005 filed the FIR at 4.30 P.M., narrating the incident and also mentioning clearly, the involvement of the respondent No. 4 as the brain behind the murder and that the respondent No. 5 had shot Raju Pal in the head. The FIR was registered as 31/2005 dated 25.01.2005 of Dhoomanganj Police Station, Allahabad, U.P. under Sections 147, 148, 149, 302, 307, 120B IPC .
10. The incident received rave media coverage as would be evident from the following extract of a news item of the daily "Times of India": (para No. 21of Writ Petition) "Eyewitnesses said the assailants, who were about two dozen in numbers, came in two Tata sumos and opened indiscriminate fire when the MLA's vehicle reached the Chaufatka petrol pump. Pal, who was in the driver's seat, was hit several times in the neck, chest and stomach. His supporters immediately put him in an auto and rushed him to a private nursing home in Rain Bagh area.
The assailants, however, continued firing even on the auto to ensure his death. At the Fire Brigade crossing, the assailants again opened fire. Just after reaching the hospital, Pal succumbed to his injuries. Two police gunners of Pal reportedly escaped from the scene. Though the assailants kept on shooting at Pal on the entire stretch between Chaufatka and the nursing home covering four police stations of Dhoomangang, Cantt. Civil Lines and Kotwali, the police failed to react."
11. The appellant has further stated that the body of Raju Pal was thereafter taken into custody by deploying heavy police force and thereafter a show of the post mortem was done hurriedly & secretly at the Swaroop Rani Nehru Hospital at about 03.15 A.M. in the morning of 25- 26/01/2005 without any information to the appellant or any family member and in total violation of all norms pertaining to autopsy. The appellant has stated that purposefully in order to ensure that the prosecution case is rendered weak, the injuries indicated in the postmortem report were described in a manner to be rendered doubtful to have been caused by the two weapons recovered i.e., one DBBL Gun and one 30 Spring Rifle.
The appellant has thus stated that the charge-sheet that was eventually submitted was merely an eye-wash to save the respondent Nos. 4, 5 and their accomplices on one hand and to rule out the possibility of further investigation by the CBI and in the process hush up the true facts. According to her, the dead body of the Raju Pal was thereafter cremated in the early morning of 26.01.2005 at Daraganj crematorium, but neither prior thereto, it was handed to the appellant nor the ashes were made available to her. As a matter of fact, the dead body was cremated as if it was an unclaimed body though the deceased was a sitting Member of the Legislative Assembly of the State and his identity was well known to all concerned including the police.
12. Even the representation made by the mother of Raju Pal on 26.01.2005 to the Senior Superintendent of Police to hand over the dead body of her son to her for final rites was not heeded too. All fervent requests and appeals made by her in this regard failed. The appellant has alleged that not only she as a widow was given a chance to have a parting glance of the body of her husband, the dead bodies were disposed of hurriedly without any notice to her as well as other family members of Raju Pal presumably to wipe off all possible clues in support of the heinous crime. The appellant was married to the deceased Raju Pal only on 16.1.2005 i.e. hardly a week before the tragic incident.
13. The appellant has stated as well that having regard to the perceived involvement of the state administration and the police in particular, in the perpetration of the crime and their passive and indifferent disposition in taking steps as required in law, it was felt by all right minded quarters that investigation by the C.B.I. was indispensably warranted to unearth the diabolic plot and identify the persons involved, so as to ensure an impartial and meaningful enquiry for justice. In spite of repeated representations, though submitted by the appellant herself and the then President of the BSP, U.P. before the Governor, Chief Minister, Chief Secretary etc. of the State expressing in clear terms that no impartial and dispassionate probe by the state police was possible in the facts and circumstances of the case and having regard to the persons involved, and that the exercise ought to be handed over to the C.B.I., the same did not meet with any favourable response.
14. Instead, as asserted by the appellant, by way of retaliation to the public outcry against the ruthless and savage assassination of Raju Pal and his two associates, the police authorities went berserk in the entire city and they forcibly trespassed into the houses of such residents, mercilessly assaulted them, including old women and children, ransacked their belongings and threatened and intimidated them of dire consequences if they did not refrain from their agitation for a C.B.I. inquiry. This high handed action of the police force also received media coverage, both print and electronic. The writ petition further discloses that for reasons unfathomable, the investigation of the incident was soon thereafter transferred from Station House Officer, Dhoomanganj to a Police Inspector posted in another police station, in violation of the G.O. No. DG-7-S (253)/198 dated 21.03.2000.
15. While mentioning that with the installation of the Samajwadi Party in power, there was an upsurge in the crimes, the appellant has referred as well to the criminal antecedents of the respondent No. 5, tracing back to the year 1979, when he was accused of murdering a contractor in Bihar. According to her, this respondent has been booked in a number of cases under Sections 302 and 307 IPC (Indian Penal code, 1860) as well as amongst others, under the Gangster Act, National Security Act and had been identified also as a member of the interstate gang in December 2002. Accusing the State Government, the above notwithstanding, of bestowing its generosity on him as well as his brother, the appellant has also referred to a list of 20 criminal cases registered against the respondent No. 5 in which efforts were being made to withdraw the same.
The list of cases, as set-out in the writ petition involves offences inter alia, under Sections 302, 307, 149, 120B IPC as well as under the Arms Act and Gangster Act. The appellant has been candid enough to state in no uncertain terms, that though the evidence was galore against the respondent Nos. 4 and 5 and their accomplices in the commission of murder of her husband, conscious and intentional steps were taken by the state administration and the police to shield them therefrom due to political and other influence wielded by them. In endorsement of this accusation, the appellant has referred to as well some excerpts from the writ petition filed by the Station House Officer Shri Parshuram Singh in Civil Writ Petition No. 34265/2005 challenging his suspension. This police officer who was in-charge of the investigation of incident made serious allegations against the senior police officers in their attempt to efface evidence against the respondent Nos. 4, 5 and their henchmen in the following terms: (page No. 126 of Writ Petition)
"25 -That, on 27.01.2005, one of the main accused Ashraf alias Khalid Azim was arrested in Lucknow and brought to Allahabad in tight security two other accused were also arrested by the petitioner on 30.01.2005, namely Farhan Ahmed and Ranjeet Pal and a DBBL Gun and life cartridges were recovered from their possession. True photo and typed copy of the F.I.R. and Recovery Memo are collectively enclosed herewith and marked as Annexure- 5, to this writ petition.
26 - That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, because of the reason better known to him, he told to the petitioner the empty cartridge of thirty spring rifle not be shown in the G.D. but the petitioner refused to do so. The respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, also told to the petitioner that Ashraf and Atiqe not be made main accused in the case crime No. 34/05, Police Station, Dhoomanganj, Allahabad.
27 - That, on 30.01.2005, on the day of arrest of Farhan Ahmed and Ranjeet Pal, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, told to the petitioner these two accused be kept in curtain (Baparda) do not produce the accused before media, the petitioner denied as the accused persons are local resident and they are publicly known criminals therefore, no meaning to put them in curtain.
28-That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, also, told the petitioner, the DBBL Gun recovered from the possession of Farhan Ahmed and Ranjeet Pal also be changed but the petitioner denied and showed the same DBBL Gun in the records which was recovered from their possession.
29 -That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, has motive to save the main accused Ashraf and Atiqe Ahmed from the charge of murder of M.L.A, Raju Pal. The respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, handled by the political leaders of the ruling Samajwadi party and he was doing in the manner for tempering the evidence of the murder against the main accused Ashraf and Atiqe Ahmed as directed by leaders of ruling Samajwadi Party.
30- But the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, suspended the petitioner in the evening of 30.1.2005, alleging that the murder of Raju Pal was occurred and he could not control the disturbances after the murder of M.L.A. Raju Pal.
31 -That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad suspended the petitioner to help the accused persons as the respondent No. 2, Shri Sunil Gupta, S.S.P., Allahabad, several times told to change the facts that shows the interest of respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, in saving accused persons. 32-That, in as much as the investigation which was being carried out by the petitioner was transferred to one Inspector, Police Station Colonelganj Inspector Surendra Singh.
33- That, the one of the main accused Atiqe Ahmed, Member of Parliament now was released on bail and he mounted pressure on respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, for transferring the Investigation Officer Inspector Surendra Singh and transferring the petitioner any other place ahead from Allahabad.
34- That, the Respondent No. 2, wrote a D.O. letter on 15.04.2005, to D.I.G. Range, for transferring the petitioner under suspension from District Allahabad to any other district, the respondent No. 2, Shri Sunil Kumar, S.S.P., Allahabad, recommended transfer of the petitioner in the pressure of Atiqe Ahmed, Member of Parliament who is one of the main accused in the murder of M.L.A. Raju Pal. True photo and typed copy of the D.O. letter dated 15.04.2005, of respondent No. 2, is enclosed herewith and marked as Annexure-6 to this writ petition.
35- That, the Colonelganj Inspector Surendra Singh, who was the Investigating Officer in this case, was suddenly relieved of all the responsibilities and has been posted to Jhansi. At the same time, efforts were on to ensure the removal of Dhoomanganj Station Officer the petitioner around the time of the murder and get him posted to some other district. The only fault of both these Investigating Officers was that they did not succumb to the pressure exerted by their superiors and went ahead with the investigation in the right manner _ _ _ _ According to sources, some senior police officers of the district were putting pressure on the Investigating Officer to replace the gun with some other weapon. But the investigator did not relent and forwarded the recovered pistol and the gun for a forensic test.
The tests revealed that two of the six empty cartridges, also found at the scene of crime, had been fired from the recovered DBBL Gun. All along the course of the investigation, some senior police officers had been making efforts to persuade the investigator to shift the focus of his investigation from the named accused Samajwadi Party Member of Parliament Atiqe Ahmed and his brother Ashraf, and bring into focus the personal enmity angle of the slain M.L.A. as the cause behind his murder. The fact that the police officers of the district were working under tremendous political pressure was evident from the way they had been working."
16. On the basis of these foundational facts, the appellant has prayed for an appropriate writ or a direction in the nature of mandamus, directing the official respondents to entrust a fresh investigation into the episode by the C.B.I.
17. As abovestated, the appellant had approached this Court earlier, seeking its intervention for an appropriate direction for investigation of the incident by the CBI. This was, to reiterate, as the appellant nursed a deep rooted impression, in view of overwhelming sinister background and the sequence of events culminating in the gruesome murder of her husband, that the crime had been committed with the tacit support of the police administration and covert approval of the authorities in power. In course of the hearing before this Court in the earlier proceedings afore-mentioned and registered as Writ Petition (Crl.) Nos. 118-119 of 2005, the learned counsel for the appellant sought to withdraw the same, so as to enable her to file an appropriate writ petition before the High Court seeking the same relief.
18. By order dated 03.05.2006, the prayer made was allowed, requiring the appellant to file the writ petition as proposed before the High Court within a period of two weeks there from. It was observed that if it was so done, till the disposal of the writ petition, the respondent State would provide necessary security to the appellant and her mother-in-law (co- appellant before this Court). Further proceedings of the Trial Court were ordered to remain stayed till the disposal of the writ petition if filed within the period of two weeks as permitted and a request was made to dispose of the same as expeditiously as possible. In compliance of this order the appellant alone filed a writ petition which was registered as W.P.(Crl.) No.6209 of 2006 within the time allowed.
19. While the Writ Petition was thus pending, by letter No.- Home (Police) Section-11, Lucknow No.2169/6-Pu-11-7-06(writ)/2006 dated 15.05.2007 addressed to the Secretary, Ministry of Personnel, Government of India, New Delhi, the State Government conveyed its decision to get the investigation of the case conducted through the CBI and requested that the steps be taken accordingly and to keep the State Government apprised of the action taken. The consent of the State Government as required under Section 6 of the Delhi Special Police Establishment Act, 1946 to this effect was also appended to the said letter. As the case number was wrongly mentioned therein, correction to the said effect was communicated vide letter No.Home/Police/Section-11, Lucknow No.3636/6-Pu-11.05.06 (writ)/2005 dated 14.08.2007.
20. At this stage, in view of this development, a submission was made on behalf of the State Government before the High Court, bringing to its notice, the same. Consequently by order dated 11.07.2007, the High Court being of the view that the relief sought for in the writ petition had been granted by the State Government by making a request to the Central Government to get the case investigated by the CBI, dismissed the writ petition.
21. As the records would reveal, the appellant on the very same date i.e. 11.07.2007 filed an application for restoration of the writ petition, contending principally that though the request had been made by the State Government, a decision in affirmation of the Central Government, agreeing to the investigation of the case being conducted by the CBI was awaited and thus the writ petition ought not to have been dismissed as infructuous. An application was also filed, requesting the High Court to list the writ petition for appropriate orders. As the order sheet of the writ proceedings before the High Court would disclose, the restoration application was kept pending, awaiting the decision of the Central Government on the request of the State Government.
The Government of India, Ministry of Personnel and Public Grievances and Pension (Department of Personnel and Training) eventually, vide letter No.228/29/2007 - A.V.D Govt. of India......1212/PGS/MS/2008 dated 18.01.2008 declined to get the case investigated by the CBI. The contents of the letter would disclose that the decision conveyed thereby was preceded by an inquiry said to have been made by the concerned Department in consultation with the CBI. Pendency of the writ petition filed by the appellant, seeking the same relief was also referred to as a consideration.
It was mentioned as well, that the State Government had not stated any other reason to justify the investigation to be conducted by the CBI. According to the Central Government, the trial of the case was pending, the proceedings whereof however have been stayed by the High Court and that there was no interstate or international ramification of the case so as to warrant investigation thereof by the CBI.
22. In the wake of the rejection of the request for investigation of the case by the CBI, the appellant applied for an amendment of the writ petition, by incorporating the required facts pertaining to the process related thereto and also prayed for the annulment of the letter dated 18.01.2008 of the Central Government. In the facts pleaded to that effect, she averred that during the trial, the respondent Nos. 4 & 5 had threatened the eye witnesses and did impeach the decision of the Central Government disallowing the request for investigation of the case by the CBI as mechanical and prompted by surmises and conjectures. She did furnish as well, the particulars of the cases in which the respondent No.4 & 5 had been involved in kidnapping and abduction as well, as elimination of witnesses who could otherwise withstand their pressure and displayed courage to disclose the truth in support of the charge leveled against them. Following the refusal of the Central Government, the state government, however shifted the investigation to the CBCID and meanwhile both the state police and CBCID have submitted chargesheets.
23. Be that as it may, the High Court eventually by the impugned judgment and order has dismissed the writ petition. It held the view that if the appellant was not satisfied with the charge-sheet submitted by the Civil Police as well as the CB CID and the materials collected by these two agencies in course of their separate and independent investigation, and is also of the view that further investigation was required, or that some additional evidence was to be collected, she was at liberty to file an application before the Magistrate concerned to that effect so as to enable the trial court to pass appropriate orders thereon. It further held that so far as the adduction of additional evidence was concerned, the appellant would have every opportunity to produce the same or ask therefor also by making an appropriate application at the time of trial.
24. Before adverting to the rival submissions, it would be apt to notice the pleaded stand of the respondents in substance. The state government has admitted the incident in which the appellant's husband had been assassinated on 25.01.2005 along with two others namely Sandeep Yadav and Devi Dayal Pal in a shootout. It has not disputed as well, the registration of the information of the said incident under Sections 148/147/149/302/307 and 120B of the IPC against respondents No. 4,5 and seven others at Dhoomganj Police Station. That on 27.01.2005, the state police had arrested respondent Nos. 4 & 5 in connection of the incident has also been admitted. The state government has placed on record, that the state police on the completion of the investigation in the case has submitted a charge-sheet on 08.04.2005 against respondent Nos. 4,5 and 9 others together with a list of 27 witnesses.
25. It disclosed as well that after the submission of the charge-sheet, the case was committed to the Court of Sessions and was registered as Session Trial No.24/2006 whereafter, the trial had begun only to be stayed by this Court on 03.05.2006 vide its order to that effect passed in W.P.(Crl.) No.118-119 filed by the appellant under Article 32 of the Constitution of India.
26. It mentioned as well that during the pendency of the writ petition, filed after the disposal of the proceedings before this Court, the state government had accorded its sanction for investigation of this case by the CBI and the communication to this effect was forwarded to the Ministry of Personnel, Government of India. That however the Government of India refused to accede to the request, being of the view that it was not a fit case for investigation for the CBI was stated as well.
27. According to the state government, on such refusal of the Central Government, it transferred the investigation of the case to CB CID which after the completion of the investigation submitted three charge-sheets on 10.01.2009, 04.04.2009 and 24.12.2009, adding to the array of accused persons and also the witnesses in support of the charge.
28. While stoutly denying the allegation of indifference and apathy to secure an impartial and effective investigation and instead a tacit support of the offending act, it has asserted, that having regard to the constricted scope of ordering investigation of a case by the CBI, no such direction as sought for is warranted in the facts and circumstances of the case. It has emphatically asserted that the said police as well as the CBCID had conducted proper investigations and in the process, did not spare anyone found involved in the incident.
It has denied in emphatic terms, the involvement of the said machinery in any conspiracy, its support thereto and intentional distortions in the investigation to bail out the culprits of the offence. It pleaded that the dead bodies had been duly received by the concerned family members and that cremations of Raju Pal was performed by the one of his first cousins. It has been stated as well that the postmortem examination of Raju Pal was undertaken by a panel of doctors and that the allegations made by the appellant that the dead body of her husband was secretly and hastily cremated without handing over the same to his relations and that the postmortem examination was deliberately skewed are palpable falsehood.
It also denied the allegation of the appellant that the respondent No. 4 had sophisticated firearms including AK- 47 and AK-56 had been used in the incident. It disclosed as well that at the time of his death, there were several criminal cases registered against Raju Pal including the offence of murder and attempt to murder and that he had many enemies who could have shared the motive to liquidate him.
29. The respondent No. 4 while emphatically denying his involvement as well as the complicity of his brother in the incident, in substance accused the appellant of falsely implicating them as her political rivals and of keeping the proceedings pending so as to derive political mileage therefrom. He alleged as well, that the appellant had deliberately protracted the proceedings inter alia by omitting to take necessary steps so as to use the same to promote her political prospects riding on the sympathy wave induced by the murder of her husband. The answering respondent has averred that thereby the appellant has been successful in getting elected to the State Assembly for two successive terms.
It has been stated further that within a couple of days of the formation of the Government in the State by the Bahujan Samaj Party, the State Government did refer the case to the Central Government for investigation by the CBI and having failed in its endeavour to do so, they took a conscious decision to transfer the investigation thereof to the CBCID on 10.12.2008. The answering respondent has emphasized that the appellant has neither challenged the decision of transferring the investigation to CBCID nor the charge-sheets submitted by the said agency on the completion of the said investigation. According to the answering respondent, the appellant has also not pointed out any fault or deficiency in the investigation conducted by the CBCID and that her insistence for further investigation or reinvestigation by the CBI is wholly impermissible in law.
30. The CBI in its turn while reiterating the intervening developments pertaining to the investigation conducted by the State Police and the CBCID has pleaded that after a lapse of 10 years from the incident, no purpose would be served by any investigation by it at this stage. It has averred as well that the case does not involve any larger public interest or any interstate or international ramification. That it is already overburdened with the investigation/inquiry of different cases entrusted to it by various High Courts and this Court has been mentioned. It has asserted that having regard to the state of law laid down by this court and the contingencies in which investigation by the CBI is called for, the facts and circumstances of the case do not merit any such direction.
31. In the above contentious premise, Mr. Sodhi has assiduously argued, that the run up of facts leading to the merciless murder of the appellant's husband, the conspicuous impassive response of the state machinery to ensure his safety and security as well as the shoddy and purported investigation by the state police as a casual completion of routine formalities, warrant a fair and impartial probe by the CBI. The learned senior counsel has urged that the onetime readiness of the State Government to handover the investigation to the CBI unambiguously reflects its satisfaction as well of such essentiality to espouse the cause of even handed justice.
According to him, the rejection of the request of the state government to this effect by the Central Government is wholly mechanical and without any application of mind to the factors relevant and germane and thus the decision to that effect is liable to be adjudged illegal, null and void. Not only at the point of time when the Central Government refused to accede to the request for investigation by the CBI, the Writ Petition filed by the Appellant before the High Court had been closed, there is nothing on record to even suggest that any independent endeavour had been made by the Central Government to make a dispassionate evaluation of the overall facts thus rendering its decision arbitrary unfair and unjust.
Mr. Sodhi has maintained that not only the manner in which the daring offence was committed was shocking to every right minded person of the society; it signalled as well, an apparent collapse of the administrative machinery of a democracy committed to the solemn promise of guaranteeing protection of life and liberty of its citizens. The learned senior counsel argued that the cruel and barbaric crime having been committed in the broad day light in public view, there are still several eye-witnesses available who are genuinely willing to testify about the same to bring the real culprits to book and thus in the interest of fair and impartial investigation and to obviate any possibility of miscarriage of justice, it is imperative to entrust the probe to the CBI.
According to Mr. Sodhi, the testimony of the witnesses so far examined at the trial clearly demonstrate their hostile and non-cooperative approach which per se suggests that they must have been won over in between, leaving a bleak chance for the prosecution to succeed. This unmistakably affirms the apprehension of the appellant vis-Ã -vis quality and authenticity of the investigation undertaken by the state police and the CBCID, he urged.
32. The learned senior counsel maintained that if the formalities of the trial with the materials so far collected in the investigation are allowed to be completed being unmindful of the consequences thereof, it would be a travesty of justice and a servile subjugation of the process of law to the minatory reflexes of the daring and audacious violators of law.
Reiterating the imputations made in the writ petition vis-Ã -vis the role of the state instrumentalities and the police in particular, as well as the culpability of respondent Nos. 4 & 5, Mr. Sodhi has argued that entrustment of the investigation to the CBI would not prejudice the respondents in any manner and that it would secure the obligatory requirement of a fair, effective and impartial inquisition, more particularly when witnesses of the incident are still available, but need to be appropriately identified, interrogated and assured of their safety to disclose the truth.
Mr. Sodhi has argued that it is a fit case for the judiciary to intervene both in the individual as well as social perspectives in order to discourage such villainous outrages and sustain a just and law abiding citizenry. He rested his submissions on the following decisions: Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004)4 SCC 158, State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others (2010)3 SCC 571, Babubhai vs. State of Gujarat and others (2010)12 SCC 254, Mohd. Hussain alias Julfikar Ali vs. State (Government of NCT of Delhi) (2012)9 SCC 408, Bharati Tamang vs. Union of India and others (2013)15 SCC 578.
33. Mr. Misra, learned senior counsel representing the State not only dismissed emphatically the allegations of tacit involvement of the administration and the police in the design and execution of the offence as alleged in order to eliminate the appellant's husband, he argued as well, that the decision to handover the investigation of the case to the CBI does not only neuter such accusation, but also establish irrefutably the bona fide of the state government.
34. The learned senior counsel pointed out that in absence of any allegation whatsoever of the appellant against the investigation conducted by the CBCID, her persistent requests for transferring the investigation to the CBI is fallacious and unsustainable in law. Mr. Misra has maintained that not only the insistence for the transfer of the investigation to the CBI, in the face of successive probes made by the state police and the CBCID is uncalled for in absence of any deficiency or defect decipherable therein, it is impermissible as well, at this belated stage. Mr. Misra has argued that even otherwise such a transfer of investigation even if allowed, it would be fatal for the prosecution as at this distant point of time not only the witnesses would be unavailable and even if available they would decline to testify. The learned senior counsel has urged as well that as the trial is pending and the respondent Nos. 4 & 5 and other accused persons are subjected thereto, the relief sought for by the appellant is prematured as well.
35. Mr. Goel representing respondent Nos. 4 & 5 while supplementing the assertions made on behalf of the State has submitted that the introduction of a fresh investigating agency, at this stage is not only impermissible in law but also would have the potential of protracting the trial further, in violation of the fundamental right to life of his respondents as guaranteed by Article 21 of the Constitution of India. Reiterating that the facts do not demonstrate a faulty or incomplete investigation by either the state police or the CBCID, the learned counsel has maintained that the appellant has resorted to this delaying tactics to promote her election prospects and political future.
While underlining that the writ petition filed by the Investigating Officer Parsuram Singh alleging pressure on him by his higher ups to misdirect the investigation, has meanwhile been dismissed on merits, the learned senior counsel argued that the averments even if accepted to be true, did in fact vouchsafe the fairness and impartiality of the investigation conducted by the state police. Mr. Goel has urged that as the trial is pending, any intervention of this Court to induct another investigating agency on the basis of deductions made from the testimony of hostile witnesses, would amount to unwarranted interference with the trial which would be highly prejudicial to the parties. Reiterating that the present initiative of the appellant is clearly a political vendetta against the private respondents being her rivals, the learned counsel has asserted that there is neither any exceptional circumstance nor any justifiable reason in law to direct a reinvestigation by the CBI when the trial is underway.
He dismissed the authorities cited on behalf of the appellant as inapplicable to the facts of the case, being rendered in the textual facts disclosing vitiation of trials. The following decisions were cited to buttress the above pleas: State of West Bengal and others vs. Sampat Lal and others (1985) 1 SCC 317; Vineet Narain and others vs. Union of India and another (1996) 2 SCC 199 Union of India and others vs. Sushil Kumar Modi and others (1998) 8 SCC 661, Common Cause, A Registered Society vs. Unon of India and others (1999)6SCC 667 Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others vs. Sahngoo Ram Arya and Anr. (2002)5 SCC 521 State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors. (supra) Disha vs. State of Gujarat & Ors. (2011)13 SCC 337 K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai and Ors. (2013) 12 SCC 480 Hussainara Khatoon & others vs. Home Secretary, State of Bihar (1980)1 SCC 81 Abdul Rehman Antulay and others vs. R.S. Nayak and another (1992)1SCC 225 P. Ramachandra Rao vs. State of Karnataka (2002)4SCC 578 Vakil Prasad Singh vs. State of Bihar (2009)3SCC 355 Kashmeri Devi vs. Delhi Administration and another 1988 (Suppl.) SCC 482 Gudalure M.J. Cherian and others vs. Union of India and others (1992) 1 SCC 397 Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary vs. State of Punjab and others (1994)1SCC 616 Inder Singh vs. State of Punjab and others (1994)6SCC 275 Rubabbuddin Sheikh vs. State of Gujarat and others (2010) 2 SCC 200
36. Ms. Mohana representing the Union of India endorsed its decision of not entrusting the investigation to the CBI and contended that the facts and circumstances did not convincibly demonstrate any flaw in the investigation undertaken by the state police or the CBCID. In support of this assertion, she relied upon the decisions of this Court in Committee for Protection of Democratic Rights (supra), K. Saravanan Karuppasamy and another vs. State of Tamil Nadu and Ors. (2014) (10) SCC 406, Sudipta Lenka vs. State of Odisha and Others. (2014) 11 SCC 527.
37. We have extended our anxious consideration to the competing pleadings and the arguments advanced. The gory incident in which the appellant's husband was brutally gunned down in a public place is indeed harrowing and alarmingly distressful. Not only the daring act in the broad day light is condemnable, it sent shock waves among the living community, wrecking the temper and rhythm of social life and created a fear psychosis and a scary feeling of lack of security in all concerned.
It is a matter of record that at the relevant time, the appellant's husband was a sitting member of the State Legislative Assembly, having defeated the respondent No. 5, in the bye-elections held a few months prior to his murder. That at that time, the respondent No. 4, brother of respondent No. 5 was a member of the Parliament is also an admitted fact. In the FIR filed by the appellant soon after the incident, she named the respondent No. 5 to be the assailant who had shot Raju Pal in the head, being accompanied by others. She has alleged therein that respondent No. 4 was the brain behind the operation and thus was involved in the conspiracy to eliminate her husband.
As referred to hereinabove, it has been averred by her as well that soon after the bye-elections in which her husband had been elected, a number of unsuccessful attempts had been made on him for which he genuinely sustained an apprehension regarding his safety and security. That he had repeatedly aired his apprehension to that effect and had sought remedial measures before the appropriate authorities, has been pleaded as well. Immediately after the assassination of her husband, the appellant as well as the President of the Bahujan Samaj Party, to which he belonged, also had submitted a spate of representations before the Governor, Chief Minister, Chief Secretary and other authorities of the State requesting for entrustment of the investigation of the case to the CBI as the state police, as perceived by them, was found to be patently partisan in their initiatives and approach in connection therewith.
The allegations by the appellant about laconical autopsy of the dead body without any notice to her or any other family member of the deceased, refusal to return the dead body to them and hasty and secret cremation thereof to remove the otherwise tell tale clues to identify the assassins have been candidly made. As these imputations have been denied by the respondents in their pleadings, we refrain from further dilating thereon. Similarly, both sides have also alleged registration and pendency of criminal cases against the appellant's husband, respondents No. 4 and 5 involving offences amongst others of murder, attempt to murder etc.
38. Noticeably, however, the appellant since after the murder of her husband had been persistently appealing for investigation by any impartial agency i.e. CBI, expressing without reservation, her doubts about the genuineness and bona fide of the probe being conducted by the state police. She has even alleged the involvement of the state administration and the police in the conspiracy to eliminate her husband and to have remained a mute and inert onlooker at the time of and after the open diabolic and barbaric assassination of her husband. It is a matter of record that at the time of the incident, the Samajwadi Party was in power.
39. It was in this backdrop of events, that the appellant being appalled and exasperated by the perceived failure of the state authorities to affirmatively respond to her request for entrusting the investigation to the CBI and the casual measurers of the state police in that regard that she approached this Court with an application under Article 32 of the Constitution of India for its remedial intervention. By order dated 3.5.2006, however, this Court, as prayed for on her behalf, did permit her to file a writ petition before the High Court seeking an appropriate writ or a direction for transferring the investigation of the case to the CBI.
To reiterate, during the pendency of the writ petition that was filed within the time allowed by this Court, on 15.5.2007, the State Government (by then the Bahujan Samaj Party had come to power) decided to hand over the investigation to the CBI and communicated its decision to the Central Government for the needful. The High Court, being apprised of this development, the writ petition was disposed of on 11.7.2007 as in its comprehension, the relief sought for by the appellant had been granted in view of this decision of the state government.
As the response of the Central Government was awaited, the appellant on the same very date filed an application for restoration of the writ petition and as the records reveal, the said application was kept pending by the High Court and after the refusal of the Central Government to accede to the request made by the state government on 18.1.2008, the writ petition was finally disposed of on merits by the decision impugned hereunder.
40. Though a period of seven years intervened, a perusal of the record of the writ proceedings, however, does not demonstrate any deliberate inaction or laches on the part of the appellant to enter a finding of intentional delay on her part to procrastinate the same for extracting any benefit to her therefrom.
41. This Court, while disposing of the earlier writ petition being W.P. (Crl.) Nos. 118-119 of 2005 on 3.5.2006 had stayed the trial of the case which by then had commenced following the submission of the charge-sheet by the state police on 8.4.2005. During the pendency of the writ petition before the High Court and consequent upon the refusal by the Central Government to refer the investigation to the CBI, the state government entrusted the exercise to CBCID, which on completion of the drill submitted three charge-sheets on 10.1.2009, 4.4.2009 and 24.12.2009.
A conjoint reading of the charge-sheets submitted by the two investigating agencies would thus reveal that along with respondent Nos. 4 and 5, several other persons have been arraigned as accused adding to the list of those challenged by the state police. Further, CBCID has also added to the list of witnesses in its charge-sheets. Corresponding to these final reports submitted by the investigating agencies, Sessions Trial Case Nos. 13/2006, 14/2006, 15/2006 and 24/2006 are pending for analogous trial, the proceedings whereof being presently stayed pursuant to the order dated 3.5.2006 of this Court in W.P. (Crl.) Nos. 118-119 of 2005 and thereafter the order dated 13.2.2015 passed in the present appeal.
42. In the course of the arguments, attention of this Court has been drawn to the additional documents filed on behalf of the appellant pertaining to the trial so far held and also the parallel criminal cases registered on the accusation of threats being extended to the eye witnesses of the incident. On a cursory perusal of the testimony of witnesses so far examined at the trial, it prima facie appears therefrom that though all of them were present at that time at the spot when the offence was committed, none of them has identified the accused persons standing trial including the respondent Nos. 4 and 5 to be/or among the assailants. Some of the witnesses, who were also injured in the incident, after being declared hostile by the prosecution, have even resiled from their statements under Section 161 of the Code made before the police. Significantly, however the witnesses have admitted the occurrence in which the appellant's husband had been shot at, following which he had succumbed to the injuries sustained.
43. The additional documents also include a judgment rendered by the trial court on 2.11.2011 in Sessions Trial No. 749 of 2009, State vs. Ram Chandra Yadav @ Fauji registered on the complaint filed by one Mahendra Patel @ Budhi Lal Patel, who in his cross-examination, retraced from the charge levelled by him against respondent No. 4 and his companions of having threatened and assaulted him so as to pressurize him to change his statement made before the police, lest he and his family be murdered. The complainant Mahendra Patel also was an eye witness to the incident of 25.1.2005 and had been driving the Scorpio vehicle which was following the one in which Raju Pal was travelling. The trial court acquitted the accused mainly in view of the retraction of the statement of the complainant and lack of evidence in support of the charge. Having regard to the present stage of the trial, for obvious reasons, we do not wish to offer any comment on any aspect relatable thereto. It is however noteworthy that some other witnesses of the prosecution including the appellant are yet to be examined by the prosecution.
44. Be that as it may, the issue that demands to be addressed is the necessity or otherwise of further investigation or reinvestigation by the CBI in view of the overall conspectus of facts and the state of law. Admittedly, more than a decade has elapsed in between, and in the interregnum, successive investigations have been conducted by the state police and CBCID, following which four charge-sheets have been submitted arraigning respondent Nos. 4 and 5 and others as accused with the supporting material gathered in course of the probe to prove the charge levelled against them. It is noticeable as well that the appellant as well has not highlighted any defect, omission or deficiency in the investigation conducted by the CBCID, likely to adversely impact upon the outcome of the trial therefor.
45. These notwithstanding, it would still be, in our opinion, imperative to examine as to whether for doing complete justice and enforcing the fundamental rights guaranteed by the Constitution, the relief of entrustment of the investigation of the case again to the CBI is grantable or not on its own merits. This is chiefly, in view of the intrepid, audacious and fiendish intrusion of human right by the assassins in broad day light at a public place, by defiantly violating all canons of law and making a mockery of the administrative regime entrusted with the responsibility to maintain an orderly society. The terrorising impact of this incident and the barbaric manner of execution of the offence is also a factor which impels this Court to undertake such a scrutiny in the interest of public safety, a paramount duty entrusted to all the institutions of governance of our democratic polity. This is more so, where a grisly and intimidatory crime impacting upon the public confidence in the justice delivery system as a whole is involved, so as to ensure that such outrageous do not go incautiously, unfathomed and unpunished.
46. The authorities cited at the Bar present the precedential spectrum of the curial jurisprudence in the context of entrustment of investigation to an instrumentality other than the local/state police agencies.
47. In Zahira Habibulla H. Sheikh (supra), commonly adverted to as "Best Bakery Case" on the theme, the aspects of perfunctory and partisan role of the investigating agency as well as improper conduct of the trial involved by the public prosecutor surfaced for scrutiny. Though the trial was over resulting in acquittal of the accused persons mainly as the purported eye- witnesses had resiled from the statements made by them under Section 161 Cr.P.C. (hereinafter to be referred to as "the Code") during the investigation coupled with faulty and biased investigation and laconical trial, this Court responded to the request for a fresh trial made by the State and one of the eye-witnesses, Zahira.
It was pleaded inter alia that when a large number of witnesses have turned hostile, it ought to raise a reasonable suspicion that they were being threatened or coerced. Apart from alleging that the prosecution did not take steps to protect the star witnesses, it was contended as well that the trial court had failed to exercise its power under Section 311 of the Code to recall and reexamine them as their testimony was essential to unearth the truth and record a just decision in the case.
48. The casual decision of the public prosecutor to drop a material witness, a measure approved by the trial court also came to be criticized. The lapse of non-examination of the injured eye-witnesses, who were kept away from the trial, was also highlighted. It was alleged that the partisan witnesses had been examined to favour the accused persons resulting in a denial of fair trial.
49. This Court in the above disquieting backdrop, did underline that discovery, vindication and establishment of truth were the avowed purposes underlying the existence of the courts of justice. Apart from indicating that the principles of a fair trial permeate the common law in both civil and criminal contexts, this Court underscored the necessity of a delicate judicial balancing of the competing interests in a criminal trial - the interests of the accused and the public and to a great extent that too of the victim, at the same time not losing the sight of public interest involved in the prosecution of persons who commit offences.
50. It was propounded that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the concept of fair trial entails the triangulation of the interest of the accused, the victim, society and that the community acts through the state and the prosecuting agency was authoritatively stated. This Court observed that the interests of the society are not to be treated completely with disdain and as persona non grata. It was remarked as well that due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case so much so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
51. While highlighting the courts' overriding duty to maintain public confidence in the administration of justice, it was enunciated as well, that they cannot turn a blind eye to vexatious and oppressive conduct, discernable in relation to the proceedings. That the principles of rule of law and due process are closely linked with human rights protection, guaranteeing a fair trial, primarily aimed at ascertaining the truth, was stated. It was held as well, that the society at large and the victims or their family members and relatives have an inbuilt right to be dealt fairly in a criminal trial and the denial thereof is as much injustice to the accused as to the victim and the society. Dwelling upon the uncompromising significance and the worth of witnesses in the perspective of a fair trial, the following revealing comments of Bentham were extracted in paragraph 41:
"41. "Witnesses", as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political count and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate causalities.
Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slot process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness.
Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert the trial getting tainted and derailed and truth becoming a causality. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he has deposed."
52. It was underlined that if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interest of justice do not get incapacitated in the sense of making the proceedings before the courts, mere mock trials. While elucidating that a court ought to exercise its powers under Section 311 of the Code and Section 165 of the Evidence Act judicially and with circumspection, it was held that such invocation ought to be only to subserve the cause of justice and the public interest by eliciting evidence in aid of a just decision and to uphold the truth. It was proclaimed that though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is, while pronouncing judgment on the cause brought before it by enforcing the law and administer justice and not to ignore or turn the attention away from the truth of the cause or the lis before it, in disregard of its duty to prevent miscarriage of justice.
That any indifference, inaction or lethargy displayed in protecting the right of an ordinary citizen, more particularly when a grievance is expressed against the mighty administration, would erode the public faith in the judicial system was underlined. It was highlighted that the courts exist to do justice to the persons who are affected and therefore they cannot afford to get swayed by the abstract technicalities and close their eyes to the factors which need to be positively probed and noticed. The following statement in Jennison vs. Baker, (1972) 1 All ER 997 was recalled: "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."
53. It was declared that the courts have to ensure that the accused persons are punished and that the might or the authority of the state is not used to shield themselves and their men and it should be ensured that they do not wield such powers, which under the Constitution has to be held only in trust for the public and society at large. That if any deficiency in investigation or prosecution is visible or can be perceived by lifting the veil covering such deficiency, the courts have to deal with the same with an iron hand appropriately within the framework of law was underlined.
54. Referring to its earlier decision in Karnel Singh vs. State of M.P. (1995) 5 SCC 518, it was reiterated that in a case of a defective investigation, the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 of the Code or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It recalled as well its observations in Ram Bihari Yadav v. State of Bihar & others, (1998) 4 SCC 517 that the courts are installed for justice oriented mission and thus if a negligent investigation or omissions or lapses due to perfunctory investigation are not effectively rectified, the faith and confidence of the people would be shaken in the law enforcing agency and also in the institution devised for administration of justice.
55. Though, as referred to hereinabove, trial was completed and the accused persons were acquitted, in the textual facts, this Court did direct retrial as prayed for, to avoid subversion of the justice delivery system and ordered the investigating agency
