IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 101 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE N.N.MATHUR ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? YES 2. To be referred to the Reporter or not? YES 3. Whether Their Lordships wish to see the fair copy JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of the judgement? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? NO 5. Whether it is to be circulated to the Civil Judge? NO -------------------------------------------------------------- DHARMISHTABEN NARENDRASINH ZALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KH BHAYA for Petitioner MR MA BUKHARI, ADDL PUBLIC PROSECUTOR for Respondent No. 1 SERVED for Respondent No. 2 MR MANOJ N POPAT for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE N.N.MATHUR Date of decision: 21/02/97 ORAL JUDGEMENT 1. This Special Criminal Application under Article 226 of Constitution has been registered under Rule 31 of the High Court Amended Rules, 1995 on an application dated 19/1/1996 received through post from Dharmishthaben Narendrasinh Rana, resident of Moti Sarsan, Tal. Santrampur, Dist. Panchmahals. In her application, she has stated that, on 01/11/1995, at about 01.00 hrs at midnight, Mr.M.H.Joshi, PSI, LCB, Godhra, Mr Dineshbhai, police constable and other members of his staff came and took her husband with them in the jeep. Her husband was taken to CID officer and later on, to Government Guest House, at Lunavada and then, in the morning, to Godhra. At about 07.15 a.m., her husband had gone for urinal, police constable Dinesh also accompanied him, at that time, Dinesh came to PSI Mr Joshi and told him that head constable Rana had shot himself. Hearing this, Mr Joshi went to the spot and found Rana lying at the door of urinal. Police constable Dinesh removed the revolver from the spot. The say of the petitioner is that she suspects foul play in the death of her husband. She has also expressed her suspicion that PSI Mr Joshi and police constable Mr Dinesh have murdered her husband and S.D.P.O. Mr Dave has helped them. In view of this, she has sought a high level enquiry or the investigation of the incident. 2. This Court, by order dated 01/02/1996, issued notice to Mr M.H.Joshi, PSI, LCB, Godhra, Mr S.K.Dave, S.D.P.O., Lunavada, Mr Dineshbhai, Police Constable and Ambalal Rana. They were directed to remain present in the Court on 09/02/1996. 3. Shri M.H.Bhaya, Advocate appeared for the petitioner as amicus cury. Shri M.H.Joshi filed affidavit on 11th March, 1996, Shri S.K.Dave filed affidavit on 28th February, 1996, Shri Dineshbhai filed affidavit on 1st March, 1996 and Shri Ambalal also filed affidavit on 11th March, 1996. 4. It is pointed out that, on 01/11/1995, at about 09.00 hrs, PSI, LCB, Mr Joshi lodged the FIR of the incident, at Godhra police station against Narendrasinh Rana for the offence u/s 309 of IPC which was registered as the Cr.R.No. I 293/95 and the investigation was conducted by P.I., Godhra town Shri H.G.Damor. The investigation was supervised by Sub Divisional Police Officer - Godhra and Additional Superintendent of Police, Godhra. The investigation continued upto 29/11/95 by Shri Damore and the same was handed over to P.I. Shri Bhatt, as Shri Damor was transferred out of Godhra town police station and Shri Bhatt was posted vice him. Shri Bhatt continued investigation upto 25th March, 1996. A grievance was made with respect to the delay in investigation and also malafide investigation. Mr M.H.Bhaya, learned counsel, therefore made a request to this Court to give a direction to entrust the investigation to the District Magistrate or Additional D.G.P., CID (Crimes). The investigation was then being conducted by Mr.R.M.Bhabhor, P.I. C.I.D. (Crimes), Godhra. The learned Public Prosecutor on 2/7/86, made a statement before this Court, keeping in view the suspicion pointed out at the police officers, the investigation hereinafter shall be made under the direct supervision of either S.P. or D.I.G., CID Crimes and ultimate report of the investigation shall be submitted to the Court. In view of it, this Court, by order dated 2nd July 1996, directed that the investigation shall be completed and a report shall be submitted on or before 31st August 1996 and the investigation shall be under the direct supervision of the DIG, CID Crimes. Mr Gurudayal Singh, I.G. Police, Crimes, under his report dated 16/09/96 submitted that the allegations against the police officers of committing murder of petitioner's husband is unfounded. He also submitted the report of the investigation conducted by P.I. Shri R.M.Bhabhor, CID Crimes, Panchmahals, at Godhra. Shri H.R.Gehlot, DIG CID Crimes has also filed an affidavit dated 17th October, 1996. After giving the details of the investigation, it is submitted that the investigation was done not to cover up the acts or omissions of any officer. It was also submitted that the conclusion of the investigation is that it was a case of suicidal death. According to him, the reasons for committing suicide is not very clear, but it may be due to the treatment meted out to the deceased by the police, who did not treat the deceased with respect as an informant or member of the police force. 5. A detailed report dated 13/10/1996 has also been placed on record. Mr Gehlot in the report has submitted that the investigation was later on given to Mr B.D.Patel, Dy.S.P., CID Crime dated 27/09/96. Mr Gehlot has also stated that he himself supervised the investigation and examined the witnesses and verified their statements. 6. It is contended by Mr K.H.Bhaya, learned amicus cury that the investigating officer has deliberately overlooked some of very important aspects of the case, which shows that the local police officers are trying to convert the case of murder into a case of suicide. Mr Bhaya has emphasized that the important evidence in the case is the weapon of the offence viz the revolver. At the first instance, there is nothing to show that the deceased Narendrasinh was carrying the pistol with him. Secondly, the pistol was removed from the place of incident by Police constable Dineshbhai. By doing so, the important evidence of finger prints on the pistol has been removed. It is also submitted that there is nothing to show that why the deceased Narendrasinh was called at the odd hours at night at the Guest House. Even the FIR with respect to the information given by Ambalal, for which he was also called, was registered as late as on 5.11.1995. He also submits that the statements of the doctor on its face is false and it appears that he has given a false statement under the pressure of the local police. Mr Bhaya has further emphasized that the deceased Narendrasinh was a post graduate in commerce and young energetic police officer of 29 years and it is impossible to believe that he would have committed suicide for the reason that he was not being well treated by the police officers. 7. Learned counsel has also invited my attention towards one letter dated 9th October 1995 written by the deceased Narendrasinh Rana, Assistant Intelligence Officer, CID addressed to the Director General of Police, CID Intelligence in which it was pointed out that he has learnt that Hemantkumar Dadubhai Barot and his family members are indulged in the activities of Charas, Ganja and Opium etc It was further pointed out that these persons belonging to Lunavada are having excessive wealth. In view of this, the contention is that the deceased Narendrasinh Rana, an honest police officer has been murdered by the said criminals with the help of local police officers i.e. Shri Joshi and constable Mr Dineshbhai, so that their misdeeds may not be exposed. 8. Learned counsel submits that this Court under Article 226 of the Constitution has ample power to direct investigation by independent agency viz. C.B.I. and also direct the State Government to pay compensation as interim measure. He has referred to various decisions. 9. In Smt. Charanjit Kaur v. Union of India AIR 1994 SC 1491, the apex Court, on appreciation of the facts, arrived at the conclusion that the deceased who was officer in the Army died while in service in mysterious circumstances and his death is attributable to and aggravated by the military service. The Court also found that the responsibility of his death is prima facie traceable to the act of criminal omissions and commissions on the part of the concerned authorities. In view of this finding, the court held that the widow of the deceased was entitled to suitable compensation which was assessed at Rs. 6.00 lakhs and also the family pension. It may be stated that in this case, the deceased Mukhbain Singh, a Major in the Army was posted at Kargil on 10/06/1978. He complained of chest pain and was removed to Leh on 16/06/78. The diagnosis made was of Ischemic heart disease. His wife was living at Meerut alongwith her children. On receiving the information of illness of her husband, she with her children, rushed to Leh. After a great deal of persuasion, she and her children were allowed to meet Mukhbain Singh. She found that her husband was lying in a makeshift hospital which was devoid of lifesaving treatment at the relevant time. The condition of her husband was precarious. She requested the Army authorities to airlift him to Ambala or Srinagar Military Hospital for proper treatment. This request was turned down. After a great deal of persuasion, the Army officials agreed to shift her husband from Leh to Ambala and told her that her husband would be airlifted to Ambala on 21/06/78. The petitioner and her husband pleaded with the authorities that she and her children be allowed to accompany him but that request was not acceded to. She was asked to move with her children independently from Leh, and reach Ambala to receive her husband there. On 22/6/78, she alongwith her children reached Srinagar and from there, they reached Udhampur on 23/6/78. On that day, at the Udhampur check post, she was informed that her husband was not "well" and she should return to Leh. The petitioner rushed back to Leh the next day i.e. on 24/06/78. There she received rude shock when she was shown the burnt body of her husband. The authorities did not disclose to her the circumstances under which her husband had received the burns. Later on, she was only given a report of the post-mortem examination conducted by the Army Medical Authorities at Leh which attributed the death to "extensive burns". The only say of the Army authority was that Mukhbain Singh, on his own, did not board the plane on 23/01/78. On that day, he had gone to attend some private business in the cook house and later his charred body was found with 98 per cent burns due to kerosene oil. Under these circumstances, the court found that the matter was required to be investigated at the highest level i.e. to be personally looked into by the Chief of the Army staff. 10. In Smt. Nilabati Behera vs. State of Orissa (1993) 2 SCC 746, a petition was registerred under Article 32 of the Constitution by the Supreme Court on a letter of Smt. Nilabati Behere @ Lalita Behera, wherein she complained the death of her young son Suman Behera aged about 22 years in the police custody. Suman Behera was alleged to have been taken from his home by the police at about 08.00 a.m. on 1st December, 1987 in connection with the investigation of an offence of theft. At about 2.00 p.m. on the next day, on 2nd December, 1987, the dead body of Suman Behera was found on the railway tracks. There were multiple injuries on his body. The police pleaded that Suman Behera managed to escape from the police custody at about 03.00 a.m. on the night between 1st and 2nd days of December, 1987 and he could not be apprehended thereafter inspite of search and his dead body was found on the railway track the next day with multiple injuries which indicated that he was ran over by passing train after he had escaped from police custody. The apex Court directed to the District Judge, Sundargadh in the State of Orissa to hold an enquiry into the matter and submit a report. The District Judge, in his report, found that Suman Behera died on account of multiple injuries inflicted to him while he was in police custody. The apex Court significantly noticed that there was no cogent independent evidence of any search made by the police to apprehend Suman Behera, if the defence of the escape from police custody be true. The medical evidence revealed that the injuries were caused by hard and blunt objects. The medical evidence excluded the possibility of all the injuries to Suman Behera being caused in a train accident, while indicating that all of them could result from merciless beating given to him. The apex Court, on appreciation of the evidence adduced during the enquiry by the District Judge arrived at the conclusion that it was a case of custodial death and Suman Behera died as a result of injuries inflicted upon him while he was in police custody. Considering the number of cases, it was held that the Court under Article 32 and 226 of the Constitution, has a power to award compensation in such proceedings instead of directing the claimants to resort to ordinary process of recovery of damages by action in tort. On the facts of the case, the Court awarded a compensation to a sum of Rs.1,50,000/with the clarification that the award of the compensation in the proceedings would be taken into account for adjustment in the event of any other proceedings taken by the petitioner for recovery of compensation on the same ground, so that the amount to this extent is not recovered by the petitioner twice over. In the view of the Court, there is a statutory recognition of the principle of adjustment u/s 357 (5) of the Code of Criminal Procedure and u/s 141 (3) of the Motor Vehicles Act. 10. In Arvinder Singh Bagga vs. State of U.P. and others (1994) 6 SCC 565, a married woman was alleged to have been raped, was subjected to physical, mental and psychological torture with a view to give a false statement implicating her husband and family members in a case of abduction and forcible marriage thereafter. Her husband and family members were also tortured and humiliated. The apex Court directed to launch prosecution against the erring police officers and to pay a compensation of Rs.10,000/- to the victim woman and her husband and Rs.5,000/- to each of the other victims. 11. In Death of Sawinder Singh Grover, 1994 SCC (CRI.) 1464, on the report submitted by the Additional District Judge, Delhi, it was found that the story given by the police indicating the circumstances leading to the death of Savinder Singh on account of suicidal jump was not truthful. There was a strong suspicion of misfeasance torture. On this facts, the apex Court directed the CBI to ensure that the FIR is registered on the facts as emanating from the order and report of the Additional District Judge and further direction was given to pay a sum of Rs. 2.00 lakhs as ex gratia payment to the widow of the deceased Savinder Singh. It was made clear that in the event of a decree to be passed, the sum of Rs. 2.00 lakhs to be paid as ex gratia shall not be taken into account. 12. In R.S.Sodhi, Advocate vs. State of U.P. 1994 Suppl (1) SCC 143, 10 persons were reported to have been killed in what were described as 'encounters' between the Punjab Militants and the local police. It was prayed that investigation may be directed to be carried out by the Central Bureau of Investigation, having regard to the fact that the accusations are levelled against the local police. This prayer was opposed by the State Government on the ground that a prompt action was taken by appointing a high level officer to enquire into the incident and was promptly transferring the concerned local police so that there may be no possibility of any tampering or interference by them. It was also contended that the investigation in a criminal case is within the exclusive domain of the State Government. Further, the apex Court considered both advisable and desirable as well as in the interest of justice to entrust the investigation to Central Bureau of Investigation forthwith. The Court made it clear that the order would mean no reflection on the credibility of either the local police or the State Government as they have guided been by the larger requirements of justice. 13. However, an attempt was made by filing a writ petition before the apex Court by the Inspector of Police viz. Mohammed Anis, thwarting the implementation of the said order of the Court. It was argued that the order directing the CBI to investigate into the Pilibhit incident is destructive of the exclusive powers of the State of U.P. and is in flagrant disregard of the mandatory provisions of the Code of Criminal Procedure. The attention of the Court was invited to the order dated 10th March 1989 in the Writ Petition No. 531-36 of 1988 Haryana Mahila Sanghathan v. Union of India, wherein the Division Bench referred to question whether the Court can order the CBI to investigate an alleged offence without the consent and orders of the concerned State Government to a larger Bench. The contention that since this issue was awaiting decision by the larger Bench of this Court could not have passed the order, directing the CBI to investigate, was rejected in the case of Mohammad Anis 1994 Suppl. (1) SCC 145. 14. In Inder Singh vs. State of Punjab and others (1995) 3 SCC 702, it was alleged that the Deputy Superintendent of Police, on suspicion that there were in all seven persons in the abduction of his younger brother, forcibly removed them from their farm house and they were subsequently killed. Inspite of the fact that this was reported to Sr. Superintendent of Police and the D.I.G., no serious action was taken. The matter was directed to be investigated by the CBI. Having perused the report of the CBI, the apex Court noticing the indolent attitude of high tanking police officers, deprecated the conduct of the Punjab police as a whole. The Court also directed the disciplinary action against concerned officers who were responsible for delaying registration of the complaint and enquiry thereon. The Court further directed the State of Punjab to pay to the legal representatives of the said seven persons an amount of Rs. 1.50 lakhs. The costs of the petition was quantified at Rs. 25,000/-. 15. The apex Court recently in Shri D.K.Basu vs. State of West Bengal J.T. 1997 (1) SC pg.1, examined the question of custodial death and the torturing by the police in great depth and detail. The Court said that custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent under Article 21 and 22(1) of the Constitution of India required to be jealously and scrupulously protected. The Court laid down requirements to be followed in cases of arrest and detention. Dealing with the question of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of a citizen, the Court said, thus; "Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. the claim of the citizen is based on the principle of the strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be idemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit." 16. In State of Bihar Vs. Ranchi Zila Samta Party JT 1996 (3) SC 751, the question came up before the apex court whether the High Court in exercise of its powers under Article 226 of the Constitution could take the investigation away from the State police and entrust it to CBI. The Court held that the direction given by the High Court entrusting the investigation to CBI was just and proper and calls for no interference. With respect to the parameters of the powers of High Court under Article 226 to direct an investigation to CBI without the consent of the concerned State, the same being a subject matter of reference pending consideration of the Constitution Bench of five Judges, the question was left to be considered and dealt with by the Constitution Bench. 17. A Division Bench of Rajasthan High Court in The State of Rajasthan vs. Phool Chand Garg 1991 CRI. L.J. 125, held that in case the High Court Orders that the case should be investigated by CBI, no consent of the State Government is necessary. The Court relied on a decision of the apex Court in the case of State of West Bengal v. Sampat Lal AIR 1985 SC 195. However, the Court held that, unless there is material on record for the Court to be satisfied that the investigation is not being conducted properly, it should not order the transfer of it. The Court further observed that emotions and surmises can hardly form the proper material to come to the conclusion and there must be specific allegations and material that the investigation is not proceeding on proper lines and that the Investigating Officer is acting in a partisan manner, ignoring the important facts and evidence and only then, the Court should order the transfer of investigation from the local police to the CBI. In para-4 of the said judgement, the Court framed the following guidelines : (i) If an application for transfer of investigation from local police to CBI is given in this Court, notice must be given to the State, the investigation file must be called for perusal and it is not necessary to give any notice to the accused person because the object of investigation is to collect evidence. (ii) Generally, the starting investigating agency i.e.