N Criminal Appeal No 280 of 1988
From the Judgment and Order dated 2691986 of the High Court of Delhi in Crl
WP No361 of 1986
RL Panjwani and RD Upadhyay for the Appellant
section Madhu Sudan Rao NL Kakkar and Miss A Subhashini for the Respondents
The following Order of the Court was delivered O R D E R Special leave granted
This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in Delhi Police which is supposed to protect life and liberty of citizens and maintain law and order
There has been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police
Kashmeri Devi the appellant is the unfortunate widow of Gopi Ram deceased who was a tonga driver
On the fateful night of 222381986 two sub inspectors accompanied by two constables visited the house of Sudesh Kumar of Prem Nagar
It is alleged that they started beating Sudesh Kumar
Hearing his shrieks his maternal uncle Gopi Ram deceased came to the spot he tried to intervene whereupon the police men are alleged to have giving him beating also
Gopi Ram and Sudesh Kumar both were arrested and taken to the Police Station Patel Nagar where they were stripped of their clothes and the police men gave them serious beating with the help of iron rods and iron rulers
It is alleged that Gopi Ram succumbed to his injuries at the police station sustained at the hands of Satish Kumar and Rana sub inspectors and Jagmal Singh and Romesh constables while in police custody
It is alleged that thereafter a post mortem was conducted and the dead body of Gopi Ram was cremated without handing over the dead body to the appellant
This incident caused consternation in the locality and on 2381986 a mob surrounded the police station to lodge 703 its protest against the death of Gopi Ram deceased at the police hands Undaunted the Patel Nagar police registered a cause under Section 147148149353332 of the Indian Penal Code against Shankar brother of the deceased who was arrested along with others on 2381986 as they were members of the mob
Sudesh Kumar who had been taken to the police station along with Gopi Ram filed a written complaint at the police Station Patel Nagar on 2381986 making allegations against the two sub inspectors and the constables
In that complaint Sudesh Kumar alleged that as a result of beating by police officers his maternal uncle became unconscious and thereafter the police officers kept on beating him at the police station as a result of which he died
He further alleged that the police officers took the dead body of Gopi Ram to the hospital from there they brought it to another hospital where he was forced to sign blank papers
He named the police officers who were responsible of the death of his maternal uncle
On that complaint a case was registered under Sections 302342 IPC against the police officers of Patel Nagar Police Station but no action was taken against those officers
After some time case was converted to Section 304 IPC for purpose of investigation
The appellant Kashmeri Devi approached the High Court by means of a writ petition under Article 226 of the Constitution for transferring the investigation of the case from the Crime Branch of the Delhi Police to Central Bureau of Investigation
Division Bench of the High Court dismissed the writ petition by its order dated 26th September 1986
Thereupon the appellant approached this Court by means of special leave petition
During the pendency of the special leave petition this court granted time to the respondents twice for filing counter affidavit but the respondents failed to file their counter affidavit
Ultimately on 1141988 Kanwaljit Deol Deputy Commissioner of Police Head Quarters has filed counter affidavit setting out a totally different story
He has stated that on 2381986 the police received information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem Nagar to Ram Manohar Lohia Hospital New Delhi
On receipt of the information from the Hospital one sub inspector of police went to Dr Ram Manohar Lohia Hospital and obtained medical legal certificate of the deceased s Gopi Ram
It is alleged that on a personal search of the deceased s body the police recovered 5 small packets of smack from his pocket
In his affidavit an attempt has been made out to show that Gopi Ram had died on account of alcohol and marphine and not on account of any injuries caused to him by the police and in this connection a story has been set up that Sudesh Kumar had brought the dead body to Dr Ram Manohar Lohia Hospital and on receiving 704 information from the Hospital the police made recovery of smack from the the deceased s pocket
The affidavit is completely silent about the allegations made by the appellant that the Gopi Ram and Sudesh Kumar were arrested taken to the police station and Gopi Ram was beaten to death
The affidavit further refers to some medical report which purports to state that deceased died on account of alcohol and marphine
It is further stated that after taking into consideration the cause of the death given by the Doctor charges were amended to Sections 32334234 IPC and after completing the investigation challan was prepared and the same has been put in the Magistrate s Court
The affidavit of Kanwaljit Deol states that in the absence of evidence the story set up by Sudesh Kumar could not be substantiated
After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case registered on the complaint of Sudesh Kumar
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing
The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint
The Additional Sessions Judge while considering the bail application of Jagmal Singh Constable considered the autopsy report and observed that Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem
The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the postmortem report
The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan
We are in full agreement with the observations made by the learned Sessions Judge
As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from 304 IPC to 32334 IPC
Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner
We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known
705 Since according to the respondents charge sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 1738 Cr
PC to direct the Central Bureau of Investigation for proper and thorough investigation of the case
On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet if any in accordance with law
The appeal stands disposed of accordingly
NVK Appeal disposed of


Summary:
This appeal arose out of a case under the Kerala General Sales Tax Act
The assessee firm assessee had been appointed as distributor by the Travancore Cochin Chemicals Ltd the said company to effect sale of their product under an agreement
In the assessment of the assessee firm for the period 1967 68 under the Kerala General Sales Tax Act final assessment was completed and the turnover as reported by the assessee was accepted and tax levied on that basis
Later the assessing authority alleged that certain transactions in the aforesaid period had been wrongly excluded from the turnover reported by the assessee in the return and the turnover had escaped assessment
The contention of the assessee that the transactions did not constitute sales by the said company to the assessee was rejected by the Assessing Officer and it was held that the said turnover was liable to be included in the taxable turnover as escaped turnover
An appeal by the assessee to the Appellate Assistant Commissioner was dismissed
In second appeal to the Tribunal the Tribunal held that the transactions in question had taken place directly between the said company and the consumers and the assessee was merely an agent of the company and allowed the appeal
The High Court on revision held that the Tribunal was wrong in concluding that the assessee was acting only as an agent in respect of the said transactions between the said company and the consumers and allowed the Revision Application
The assessee firm appealed to this Court by special leave against the decision of the High Court
Dismissing the appeal the Court  HELD Both the parties proceeded on the footing that the transactions in question were effected pursuant to the agreement sub clause a of clause 2 whereof provided that the distributor had the right of sale 880 of the product within the stipulated area
Bulk supplies were effected in waggon load or lorry load by the said company direct to the consumer pursuant to orders booked by the assessee firm
The distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from the said direct dispatches
It was true that the price at which the goods were to be sold to the customers was fixed by the company but that did not lead to the conclusion that the assessee acted merely as an agent of the said company
The mere fact that the manufacturer fixes the sale price by itself cannot lead to the conclusion that the distributor is merely an agent
Under the agreement what the distributor got was described as a rebate and not Commission as is normally expected in an agreement of agency
This is a factor by no means conclusive but to a certain extent indicative of the relationship between the said company and the assessee
More important the supplies were made to the distributor against payment immediate or deferred as provided in the agreement and even when the goods were destined directly to the customer the distributor had to guarantee to arrange the payment as per clause 8
Where there was some time lag between the sending of the goods and the payment the goods were to be insured at the cost of the assessee
This circumstance clearly showed that in respect of the goods dispatched under orders placed by the distributors the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company
In respect of the goods in question despatched through public carriers although the invoices were prepared in the names of the customers of the goods and the goods were consigned to the destination through public carrier booked to self the bills were endorsed and delivered to the assessee
In the light of the agreement these circumstances clearly showed that in respect of these transactions the property in the goods dispatched passed to the distributors on the bills being endorsed and handed over to the distributors
884D H885A D Although the Court had referred to the assessee being described in the agreement as distributor and not as agent and to the fact that what they got was described as rebate and not commission the Court had not treated these circumstances as decisive
But these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties showed that the assessee was not an agent but really a purchaser from the company in respect of the goods in question and the transactions were liable to be included in the turnover of the assessee
885G H886A 881 The Bhopal Sugar Industries Ltd vs Sales Tax Officer Bhopal  and Pollack  Mulla s Commentary on the Sale of Goods  Partnership Acts 4th Edition p 114 referred to