WP(C)/1315/2021 of KAVITA Vs UNION TERRITORY OF JAMMU AND KASHMIR TH SECRETARY TO GOVT HOME DEPTT. on 31 December 2021

HIGH COURT OF JAMMU& KASHMIR AND LADAKH AT JAMMU

WP(C) No. 1315/2021

Kavita

Pronounced on : 31 .12.2021

…. Petitioner(s)

Through:- Mr. Jagpaul Singh, Advocate. V/s Union Territory of J&K and …..Respondent(s)others Through:- Mr. Raman Sharma, AAG.

CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT

01. The petitioner is the widow of late Kuldeep Singh, who, according to the prosecution, was killed by the accused Anoop Singh against whom the challan titled State vs. Anoop Singh under Section 302 RPC was produced in the Court of Chief Judicial Magistrate, Samba, who committed the same to the court of Sessions Judge, Samba vide order dated 11.01.2019. The petitioner had filed an application in the Court of Sessions Judge, Samba seeking further investigation of the case which was dismissed vide order dated 08.07.2019. Operative part of the order reads as under:- “In view of principle laid down by the Apex Court on the point in issue, this court has no jurisdiction at this stage to order further investigation. However, the law does not preclude the investigating agency to collect further evidence and forward the same to this court. The applicant is at liberty to approach the police concerned or the superior officers of the

02. that:-

I/O with any additional evidence, oral or documentary, she has with her”

The grounds on which the petitioner has filed this petition are

(i) The Investigating Officer received an information on 05.10.2018 but registered FIR No. 0192 only on 18.10.2018 under Section 302 RPC and all other accused persons were arrested on 06.10.2018 but this fact has been concealed;

(ii) The Investigating Officer has investigated the case in an arbitrary and mala fide manner to shield the accused-Anoop Singh, Sandeep Kumar and Jaipal Singh, who had together killed the deceased-Kuldeep Singh;

(iii) The Investigating Officer entered into conspiracy with the accused Sandeep Kumar & Jaipal Singh and agreed with them to array Anoop Singh as accused and other two as witnesses so that they can resile from their deposition and get him acquitted;

(iv) On the night of 3/4 of October, 2018, the deceased spoke the petitioner and told her that the accused were beating him and they wanted to kill him;

(v) The deceased was brought to GMC Jammu for treatment, but against the advice of the doctors, he was discharged and taken to Hissar in such a critical condition that he was declared brought dead by the doctors at District Hospital Hissar.

(vi) The Investigating Officer, who recorded her statement, did not record it correctly, he deliberately omitted the name of Sandeep Singh and Jaipal Singh, who were involved in killing of petitioner‟s husband as told by the deceased to her on her mobile;(vii)Pw-Sandeep Singh took the deceased to the hospital had concealed the fact of murder by stating that the injury was received by the deceased as he fell down from the truck but the fact remains that he was assaulted by the accused alongwith Sandeep Singh and Jaipal Singh by a small cylinder;

(viii) The accused Sandeep Singh and Jaipal Singh wanted the deceased not to survive and acted against the advice of the doctors, not to take him out, as they were warned that the deceased may not withstand/travel from Jammu to Hissar;

(ix) The Investigating Officer cleverly implicated only Anoop Singh of murder by absolving Pws-Sandeep Singh and Jaipal Singh by making them as witnesses;

(x) The petitioner requested him to get her statement recorded under Section 164-A Cr.P.C. but he would not do so and produced the challan without getting her statement recorded by the Magistrate;

(xi) The entire investigation conducted by the Investigating Officer is biased, mala fide as I.O. wanted the accused to be acquitted by introducing Sandeep Singh and Jaipal Singh as prosecution witnesses.

03. available on record.

Heard learned counsel for the parties and perused the material

04. The short and only question involved in this case is whether under Article-226 of the Constitution of India, this Court has jurisdiction to direct re-investigation of the case after the charge has been framed and the trial has commenced, if so on what grounds such order can be passed.

05. The argument of learned counsel appearing for the petitioner is that this Court being constitutional court in exercise of its extraordinary jurisdiction has power to direct the official respondents to reinvestigate FIR No.0192 dated 18.10.2018 in the interest of justice, in case it is found that the case has not been investigated fairly because, as per the law laid down by the Hon‟ble Supreme Court in Babubhai vs. State of Gujarat &

ors., 2010 (12) SCC 254, not only fair trial but fair investigation is also part of the constitutional rights guaranteed under Article-20 and 21 of the Constitution of India. This has been reiterated by the Hon‟ble Supreme Court in Pooja Pal vs Union of India & ors., 2016 (3) SCC 13, holding that it is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India.

06. However, learned AAG has argued that there is no evidence to show that the investigation has not been fair, simply because the statement of the petitioner was not recorded under Section 164-A Cr.P.C. or witnesses Sandeep Singh and Jaipal Singh have not been arrayed as accused, it cannot be said that the investigation is bad.

07. Mr. Jagpaul Singh, learned counsel for the petitioner has submitted written arguments countering the arguments advanced by the learned AAG and it is not necessary to deal with them in view of certain facts, which are not only relevant but quite material for the prosecution which the Investigating Officer has failed to notice.

08. The first ground of challenge is that why the statement of the petitioner-Smt. Kavita wife of deceased Kuldeep Singh has not been recorded under Section 164-A Cr.P.C. As per record, her statement was recorded in Police Station Bari Brahmana on 06.10.2018 in which it is stated that the deceased told her on phone that Sandeep was quarrelling with him and Anoop was helping Sandeep. Thereafter, she spoke to Anoop asking him why they were quarreling. She heard someone asking Anoop to disconnect the phone. Whatever the value of her statement, she first spoke to her husband, while the quarrel was in progress, so she is a material witness and her statement should have been recorded under Section 164-A Cr.P.C. The Investigating Officer recorded her statement under Section 161 Cr.P.C. on 29.10.2018 and she spoke about the quarrel which was told to her on phone by her husband (deceased).

09. The main grievance of the petitioner is that her statement recorded under Section 161 Cr.P.C. is not correctly recorded so her grievance is that had her statement should be recorded under Section 164-A Cr.P.C., she would have given all the details.

10. The learned counsel for the petitioner argued that she complained to IG, who directed the I.O. to get her statement recorded under Section 164-A Cr.P.C. but despite the direction of the I.G., he did not do so. Since the statements of the witnesses have been recorded under Section 161 Cr.P.C., therefore, even if her statement was not recorded under Section 164-A Cr.P.C., it would not make any difference. Moreover, such a lapse itself is not a ground to allow the petition.

11. The examination of the record, however, reveals that serious lapses have been committed by the Investigating Officer. First of all Sandeep had admitted that he was witness to the occurrence then why did Sandeep Kumar alias Singh introduced one Pardeep Kumar, a transporter, in the hospital having Phone No. 90280-43305 from his mobile, who requested Pawan Kumar, who came by their Maruti Car and he & Jaipal put the deceased in the vehicle and Pawan Kumar took them to Govt. Medical College, Bakshi Nagar, Jammu, where the deceased was admitted for treatment as he was unconscious. The allegation that the deceased was admitted as a case of accident due to fall from the truck though it was a false statement. Why this false statement is made, it is not explained by him and the Investigating Officer has ignored this fact completely.

12. The Investigating Officer has seized the small gas cylinder by seizure memo dated 30.10.2021 as Pw-Sandeep Kumar and Jaipal Singh had deposed that the deceased was hit on the head by the accused twice with small gas cylinder so the cylinder is the weapon of offence. The relevant part of post mortem report reads as under:- “In our opinion, the cause of death is due to shock and haemorrhage, as a result of head injury which is sufficient to cause death in an ordinary course of Nature, however, viscera and blood sent medico legal importance the injuries and antemortum in nature.”

13. There is no corresponding injury on the body of the deceased noticed by the Board of Doctors which is quite unusual and if the head injury was due to fall from the truck. But the Investigating officer had to get the opinion of the doctors whether the head injury was possible by fall or by hitting the small gas cylinder, which he did not do.

14. The next lapse is why the deceased was discharged from the Hospital on 04.10.2018 by Sandeep Kumar as recorded in the discharge Slip No. MRD No. 910721 and MLC No. 8172 dated 04.10.2018 at 4:45 pm against the medical advice of Dr. Dogra. No doubt, he gave the reason that it was done on the request of his family members in his statement but there is no evidence about it. There is not a whisper about this in order accepting the request of Sandeep Singh to take the injured deceased to Hissar. Moreover, one CT scan of cervical spine revealed that (i) fracture of left side of the occipital bone; (ii) fracture of left lamina of C4 vertebral body. This was done at the time of admission in Govt. Medical College, Jammu.

15. Why Sandeep Kumar insisted for shifting against the medical advice is mystery. Further, Sandeep Kumar/Singh has stated to the Police that as soon as he found the deceased has become unconscious after he was hit twice on the head by Anoop Singh but he immediately contacted one Pardeep Kumar on his Phone No. 90280-43305 and told him what has happened whereafter he spoke to one from some Gujarat Highway Transport Company and the vehicle arrived within 20 minutes in which the deceased was carried to Govt. Medical College, Jammu. But who is this Pardeep Kumar has not been explained or examined. He has given full details of the incident by Sandeep Kumar.

16. Pw-Pawan Kumar says that between 12 and 1 O‟clock on night of 3/4 October, 2018, he was contacted by one Ravinder S/o Ramesh R/o Panyari Tehsil Panyari, who told him that some drivers have quarreled with each other, one of them has been injured. He went there in his car and found the deceased unconscious. He is the owner of the Truck Transport Company. So he reached in the guest house of Sudhir Industrial Estate Bari Brahmana, and found Kuldeep Kumar lying injured and he was bleeding from the nose. He was put in the Car and drove to Govt. Medical College, Jammu.

17. On his arrival back at Sudhir Factory Bari Brahmana, he found that these persons namely accused-Anoop Singh, Pw-Sandeep Kumar/Singh, Jaipal and out of these, he knew only Ravinder Kumar.

Thereafter he told about the entire occurrence to transporter-Pardeep Kumar on his phone No. 90280-43305 as he was in Pune.

18. He spoke to Gujarat Highway Transport Company on phone and soon after a vehicle arrived in which the injured Kuldeep Singh was carried to Government Medical College. The witness claims to have contacted his family members, who told him to bring the deceased to Hissar. He arranged an Ambulance from Jammu and carried the deceased to Hissar hospital where the doctor declared him „dead‟. But Pawan Kumar, who carried the injured to the hospital in his car says he came there after receiving the phone call of Ravinder R/o Panyari, District Hissar. According to him, he has an office in Bari Brahmana, Jammu where he works in the office of Jammu Haryana Transport Service Company which is registered in his name.

19. It is surprising that according to Ravinder Kumar, he was asked by Pardeep Kumar, owner of Truck No. HR 38-E/9115 to find out what was happened to his driver-Kuldeep Singh, who was injured as he was employed of Gujarat Highway Transport Company. He immediately went near the Truck and found Kuldeep Singh-driver was unconscious, he was bleedings from the nose. Two persons asked him to arrange a vehicle to take the injured to the hospital so he rang up his friend Pawan Kumar to come with his car as one person, who had been injured has to be carried to the hospital. He came with his car and the deceased was taken to Medical Hospital where he was admitted for treatment. After dropping them in the hospital and Pawan Kumar returned while he remained with the injured upto 4 a.m. helping the others to arrange medicines etc.

20. The question arises, who is Pardeep Kumar having Phone No. 90280-43305 why did Sandeep Singh informed him of the occurrence and did he arrange the vehicle also. Why Sandeep Singh/Kumar had requested for arranging the transport when he was in Pune and did he ask Pawan Kumar to arrange for the car.

21. The next question whether the investigation of the case has been fair and if not, the lapses on the part of the Police Investigating Officer are likely to prejudice the case. For example, Sandeep Singh/Kumar told the doctor at the time of admission of the deceased on the intervening night of 3/4 October, 2018 that he was injured due to fall from the truck. This witness has been examined by the I.O., but he was not asked to explain this fact. This fact cannot be ignored in a murder case because the defence will rely on this. Secondly, why the Investigating Officer did not examine Pardeep Kumar in whom Pw-Sandeep Singh/Kumar confided the details of occurrence in presence of Pw-Jaipal Singh S/o Om Parkash, Ravinder Kumar and two more persons including one Jai Parkash. Whether Ravinder Kumar spoke to one Kuldeep Singh on phone No. 90280-43305 could be verified from Pardeep Kumar only. Why the Police Investigating Officer did not include the name of Mst. Kanta wife of Kuldeep Singh in the application filed for recording the statement of material witness before the Judicial Magistrate is a riddle when it is in her statement that the deceased spoke to her when he was being assaulted. Why was her statement not relevant, she was not speaking the truth even after there is conversation between the husband and wife as the same being verified from the call record? This statement comes under the doctrine of res gestae. It was, thus, necessary to get her statement recorded under Section 164-A Cr.P.C. In my opinion, the statement of Pardeep Kumar-Transporter is relevant as he was told about the entire occurrence by Pardeep Kumar. Why Dr. Sourav Dogra, to whom Pw-Sandeep Kumar applied for discharge of the deceased has not been examined is again a mystery.

22. Lastly, in the protest petition filed by Kanta-petitioner herein, IGP and SSP had directed the Investigating Officer to get the statement of complainant recorded under Section 164-A Cr.P.C. vide order dated 26.08.2019. The order of the SSP reads as under:- “DISTRICT POLICE HEADQUARTERS NANDINI HILLS SAMBA SDPO Bari-Brahmna.

No.CB/19/20469/DPOS Dated: 26.08.2019.

Subject : Scope of further investigation in case FIR No. 192/2018 u/s 302 RPC P/S Bari Brahmna. RPC P/S Bari Brahmna.

In continuation to this office letter No. CB/19/19724-25/DPOS dated 19.08.2019 regarding the subject cited above, please find enclosed herewith complaint of Smt. Kavita W/O Late Sh. Kuldeep Singh R/O Balsamand District Hisar, Haryana duly endorsed by worthy IGP Jammu-Zone, Jammu vide No. CB/JZ/PH/Samba-08/2019/26140 dated 26.08.2019, with the remarks to go through the contents of complaint, take necessary action keeping in view the allegations and submit detailed report to this office at an earliest. Statement of complainant may be got recorded before Judicial Magistrate u/s 164-A Cr.P.C. before proceeding further into the investigation of case.

Sr. Superintendent of Police, Samba

Encl:-Ivs”

23. Whatever the reasons for not recording the statement despite the directions by the SSP and IGP. The law being clear as she is a material witness, no justification can satisfy the same.

24. Be that as it may, the investigation of the case has not been conducted in fair manner and it appears that the Investigating Officer was not serious in investigating the case. A murder case requires to be investigated in a manner leaving no room for doubt. The investigation of this case leaves much to be desired as the investigation of the case has been conducted in a very casual manner. It cannot be said that there was no bias because unless there is a bias, such glaring issues cannot be left without answers.

25. As for the powers of the Court under Article-226 of the Constitution are concerned, in case Dharam Pal Vs. State of Haryana & anr., (2016) 4 SCC 160,the Hon‟ble Supreme Court has held as under:- “ 24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional Courts, the commencement of a trial and examination of some witnesses cannot be absolute impediment for exercising the said constitutional power which is meant to ensure a fair and ”just investigation.………………..

26. Similarly, in Neetu Kumar Nagaich Vs. State of Rajasthan (2020) 16 SCC 777, the Hon‟ble Apex Court has held as under:- “10. Normally when an investigation has been concluded and police report submitted under Section 173(2) of the Code, it is only further investigation that can be ordered under Section 173(8) of the Code. But where the constitutional court is satisfied that the investigation has not been conducted in a proper and objective manner, as observed in Kashmeri Devi vs. Delhi Administration, (1988) Suppl. SCC 482, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. In such exceptional circumstances the court may, in order to prevent miscarriage of criminal justice direct de novo investigation as observed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254. A fair investigation is as much a part of a constitutional right guaranteed under Article 21 of the Constitution as a fair trial, without which the trial will naturally not be fair. The observations in this context in Babubhai (supra) are considered relevant at paragraph 45 as follows:

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

27. Their lordships in Babubhai vs State of Gujarat & ors. (2010) 12 SC 254 has also held as under:- “45. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an 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 a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation.”

28. Lastly, the Hon‟ble Supreme Court in „Pooja Pal Vs. Union of India & ors., (2016) 3 SCC 135, has observed as under:- “86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard and fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.

89. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya and others vs. State of Karnataka and others, (2012) 7 SCC 407: [2012] 3 Supreme 656, that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction...

101. Judged in these perspectives, we are of the firm opinion that notwithstanding the pendency of the trial, and the availability of the power of the courts below under Sections 311 and 391 of the Code read with Section 165 of the Evidence Act, it is of overwhelming and imperative necessity that to rule out any possibility of denial of justice to the parties and more importantly to instill and sustain the confidence of the community at large, the CBI ought to be directed to undertake a de novo investigation in the incident. We take this view, conscious about the parameters precedentially formulated, as in our comprehension in the unique facts and circumstances of the case any contrary view would leave the completed process of crime detection in the case wholly inconsequential and the judicial process impotent. A court of law, to reiterate has to be an involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding farseeing an inevitable end signaling travesty of justice. Mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and a sovereign and premier constitutional institution would be rendered a suspect for its existence in public estimation. Considering the live purpose for which judiciary exists, this would indeed be a price which it cannot afford to bear under any circumstance.”

29. In view of the aforesaid and considering the questions involved in this case, the interest of justice requires a de novo investigation be done. I deem it a fit case for de novo investigation by a special team of investigation to be headed by a Senior Police Officer which shall not include any officer who was part of the earlier team. They shall submit the report to the Court of competent jurisdiction within a period of three months from the date copy of the order is produced before the respondents. The said investigation report shall be considered by the trial Court as per law. Till the report is filed, learned trial Court shall not proceed with the trial.

30. Petition allowed.

JAMMU 31 .12.2021 RAM MURTI

(Sindhu Sharma) Judge

Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes