IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C.No.5677 of 2009 Kundan Prasad Singh, son of Late Bhagwat Prasad Singh, M/s Maruti Service Centre, Near Old Arvind Mahila College, P.S. Kadam Kuan, Patna, Bihar. ……… Petitioner. Versus 1. Union of India, through its Secretary, Ministry of Home Affairs, Govt. of India, New Delhi-110001. 2. State of Maharastra through its Chief Secretary, Govt. of Maharastra, Mumbai. 3. Central Bureau of Investigation, Head Quarter, New Delhi. 4. The Commissioner of Mumbai Police, Office of the Commissioner of Mumbai Police, Opp. Crawford Market, D.N. Road, Mumbai. 5. State of Bihar through its Chief Secretary, Govt. of Bihar, Secretariat, Patna. …. Respondents. -------- For the petitioner : Mr. Shailendra Kumar Sinha, Advocate. For respondent no.1 : Mr. P.L. Jaiswal, Central Govt. counsel. Mr. Vibhakar Kumar, A. C. to C.G.C. For respondent nos.2 & 4 : Mr. Ahsanuddin Amanullah, Advocate. For respondent no.3 : Mr. Bipin Kumar Sinha, Advocate. For respondent no.5 : Mr. Sunil Kumar Mandal, S.C. 24 Dr. Abdus Shakoor, A. C. to S. C. 24. ---------- P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN O R D E R 12. 23.09.2011 This writ petition has been filed by the petitioner for directing the respondents to get the investigation done by the Central Bureau of Investigation or judicial probe into killing of Rahul Raj son of the petitioner in a fake encounter by the Mumbai Police on 27th of October, 2008. 2. Learned counsel for the petitioner claimed that he is the father of deceased Rahul Raj who was killed in Mumbai on 27.10.2008 - 2 - by the police in broad-day-light which was in complete violation of Article 21 of the Constitution of India without any rhyme or reason as he was neither a criminal, nor a terrorist, nor any such case is made out against him. 3. Learned counsel for the petitioner further stated that Rahul Raj was a simple and peace loving boy who was never involved in any criminal activity during his entire life time. He did his schooling from Devi Dayal High School and Intermediate from Ram Mohan Roy Seminary, Patna which he passed with flying colours. Thereafter, he did his diploma in Radiology from Indian Institute of Health Education and Research, Patna. He was a resident of Kadamkuan one of the mohallas of the town of Patna and Kadamkuan Police Station had given a certificate that he never had any criminal antecedents. 4. Learned counsel for the petitioner further stated that Rahul Raj went to Mumbai on 26.10.2008 looking for a job to get some experience, whereafter Rahul‟s ultimate aim was to return to Patna and establish a Radiology lab in Patna. However, the said boy while his stay at Mumbai was shot dead on 27.10.2008 by a Mumbai Police in a fake encounter. Learned counsel for the petitioner submitted that after the aforesaid killing, the Deputy Chief Minister of Maharastra, namely Sri R.R.Patil who also held the Ministry of Home portfolio very broadly claimed that whatever the police did was appropriate and if anyone used a bullet, obviously he got a bullet. He further stated that similar heartless statements were made by High Level Police Officers of Mumbai police also which showed insensitivity and bias against the boy. In this - 3 - connection, he relied upon media reports attached to this writ petition as Annexure-2. 5. Learned counsel for the petitioner also stated that inspite of repeated requests, Mumbai police authorities have neither provided post- mortem report, forensic report, CD of Post-mortem report, nor they produced the items recovered from the possession of Rahul Raj at the time of incident and from his hotel room. In the said circumstances, the petitioner feeling disheartened with the Mumbai Police Authorities sent a detailed representation dated 01.12.2008 to the Chief Minister of Maharastra and the Police Commissioner of Mumbai asking for certain documents, namely copy of F.I.R. registered at the police station; Doctor‟s report with respect to injuries found on the body of Rahul Raj; list of material recovered from the possession and room of Rahul Raj; report of Mumbai Police; statements under Section 161 of the Code of Criminal Procedure of eye witnesses; post mortem report; Forensic report; ballistic report, Panchnama of gun for gunshots and all other documents pertaining to killing of Rahul Raj, but neither any reply was given to the aforesaid representation, nor any official of State of Maharastra contacted the petitioner. 6. Learned counsel for the petitioner further claimed that from the aforesaid facts and also from the reports on various news channels corroborated about the conspiracy in the killing of Rahul Raj only because he was a Bihari and the authorities wanted to show that they were making all efforts to safeguard a certain politician of Maharastra having a series of criminal cases against him and being famous for his notoriety - 4 - and for that purpose Rahul Raj has been made sacrificial lamb. Learned counsel for the petitioner also states that in Maharashtra no one can raise any objection either against the police or against such a politician and if any one, specially a Bihari, raises even a genuine objection he will be made victim of an encounter and/or the goons of the said politician would liquidate him. He also averred that to conceal the guilt, the respondents have annexed cooked up post mortem report and statements (annexed to the counter affidavit), although there was no occasion for any such statement by any one and it was merely for the purpose of depicting brutal murder of a innocent boy as an encounter of a criminal and to top it all naked body of the deceased was handed over by the police to his father, namely the petitioner, without any clue. 7. Learned counsel for the petitioner further averred that eye witnesses who had given statements on the news channel clearly showed that the Mumbai Police has entered the bus from back side and fired on Rahul Raj and he sustained bullet injury on body, but at that time he was not dead when he was carried by Mumbai Police. He also claimed that Mumbai Doctor B.G. Chikalkar, Associate Professor, Forensic Medicine, J.J. Hospital, Mumbai, who was one of the four members in the panel of forensic expert who carried out post-mortem of Rahul Raj, has found dark mark around the bullet hole in the face and the technical explanation for this was that the bullet was fired from close range, causing gun powder to burn and darken the skin around the wound. The said report was published in the media on 09th November, 2008 which the petitioner obtained from the website. Hence, he claimed that Rahul Raj was killed - 5 - from very close range with full intention, but the authorities of Mumbai and even the Deputy Chief Minister who was also Home Minister of Mumbai had made irresponsible statements which showed that the entire atmosphere at Mumbai was such that proper investigation could not be made in the case at Mumbai. Even the post mortem report which the petitioner obtained after making representation to the Human Rights Commission showed that it was manipulated as it was against the statement of Dr. B.G. Chikalkar who was one of the doctors doing postmortem report. 8. Learned counsel for the petitioner relied upon two decisions of the Apex Court in case of Rubabuddin Shiek v. State of Gujarat reported in AIR 2010 SC 3175 and in case of Ramesh Kumari v. State (NCT of Delhi) & Ors. reported in AIR 2006 SC 1322 in which C.B.I. investigations were ordered by the Supreme Court on the ground that there were some allegations against the police officers. Learned counsel for the petitioner submits that in the instant case there are more serious allegations against the police officers which have been corroborated by the statements and other materials on record which showed that there was volatile situation in Maharastra against Bihari Raj and the Government trying to protect such police officers and hence for fair investigation and trial C.B.I. investigation was essential. 9. So far the question of jurisdiction of this High Court is concerned, learned counsel for the petitioner submitted that the dead body of Rahul Raj was handed over to the petitioner by the Mumbai Police Official at his residence in Mohalla Kadamkuan on 28.10.2008 at 11 P.M. - 6 - and hence a part of cause of action arise within the territorial jurisdiction of the Patna High Court. He also claimed that jurisdiction must be decided on the basis of facts pleaded in the petition, truth of which is immaterial at this stage. In this connection, he relied upon three decisions of the Apex Court in case of Kusum Ingots Alloys Ltd. v. Union of India and another reported in AIR 2004 SC 2321; in case of Navinchandra N. Majithia v. State of Maharashtra & Ors. reported in AIR 2000 SC 2966; and in case of Union of India & Ors. Vs. Adani Exports Ltd. and another reported in AIR 2002 SC 126. 10. Learned counsel for the petitioner averred that the Constitution of India was amended 42nd time in the year 1976 with effect from 01.02.1977 and thereafter the plea of lack of territorial jurisdiction cannot be allowed as per the amended Article 226(2) of the Constitution of India. Hence, he claimed that this court having jurisdiction to decide this case should consider this writ petition and grant the reliefs as claimed therein. Learned counsel for the petitioner also argued that such a matter can be raised even outside the territorial jurisdiction in the dire circumstances which are apparent from the aforesaid facts as the petitioner is not seeking any lengthy relief, rather he is raising a minimum demand for investigation by a fair agency. 11. Respondent nos. 2 and 4 being the State of Maharashtra and the Commissioner of Mumbai Police are the main contesting parties and their learned counsel raised purely legal issue of territorial jurisdiction claiming that this court had no jurisdiction to decide such issue as no part of cause of action had taken place in the State of Bihar or - 7 - within the jurisdiction of this court as even the body of the deceased was handed over to his uncle who had gone there to receive and the said uncle brought the dead body from Mumbai to Patna. He further stated that in the aforesaid facts and circumstances, cause of action is the police encounter which admittedly occurred at Mumbai and no part of cause of action occurred at Patna as even the body of the deceased was handed over by Mumbai police to his uncle who had gone there to bring the dead body to Patna and, in fact, also it was the brother of the petitioner who brought the dead body of Rahul Raj to Patna. He also stated that petitioner had appropriate forum in Bombay High Court, but he failed to avail the said opportunity till date. 12. In this connection, he relied upon several decisions of the Apex Court in case of Alchemist Limited & Anr. V. State of Sikkim & Ors. reported in AIR 2007 SC 1812; in case of Union of India & Ors. Vs. Adani Exports Ltd. and another reported in AIR 2002 SC 126; in case of National Textile Corpn. Ltd. and others V. M/s Haribox Swalram and others reported in 2004(9) SCC 786; in case of Navichandra N. Majithia V. State of Maharashtra reported in AIR 2000 SC 2996; in case of C.B.I. Anti Corruption Branch, Mumbai V. Narayan Diwakar reported in AIR 1999 SC 2362; in case of State of Rajasthan and others Vs. M/s Swaika Properties and another reported in AIR 1985 SC 1289; in case of Kusum Ingots & Alloys Ltd. Vs. Union of India and another reported in (2004) 6 SCC 254; in case of Sakiri Vasu V. State of Uttar Pradesh and others reported in 2008(2) SCC 409; in case of Eastern Coalfields Ltd. and others Vs. Kalyan Banerjee reported in 2008(3) SCC 456; and in case of - 8 - Rajendra Ramchandra Kavalekar Vs. State of Maharashtra and another reported in 2009 (11) SCC 286. 13. Similarly, learned counsel for respondent no.3 raised the question of territorial jurisdiction of this court and adopted the argument raised by learned counsel for respondent nos.2 and 4 and also relied upon the decisions relied upon by learned counsel for respondent nos. 2 and 4. In addition to the aforesaid decisions, he also relied upon a decision of the Apex Court in case of Rakesh Kumar Goel etc. Vs. U.P. State Industrial Development Corporation Ltd. & Ors., reported in 2010 AIR SCW 4050 which showed that C.B.I. was overburdened and ordinarily in every inquiry and trial as per Sections 177 and 178 of the Code of Criminal Procedure, the offence must be inquired into and tried by a Court within whose local jurisdiction it was committed. 14. Learned counsel for respondent no.1 Union of India did not file any counter affidavit, but at the time of arguments he adopted the arguments of learned counsel for respondent nos. 2, 3 and 4 on the issue of territorial jurisdiction. He also stated that W.P. (Civil) No.526 of 2008 was filed by another person as public interest litigation for several reliefs including a judicial enquiry in Rahul Raj case, but the said case was dismissed by the Supreme Court on 10.11.2008. However, learned counsel for respondent no.5 the State of Bihar maintained his discreet silence. 15. From the pleadings of learned counsel for the parties and the materials on record it is not in dispute that the petitioner is the father of Rahul Raj who was killed in Mumbai on 27.10.2008 by the police in - 9 - broad-day-light on the road and the said killing was justified not only by the police authorities of Mumbai, but also by the Home Minister in the Maharashtra Government even before the investigation could proceed. Similarly the police reports and the statements of the police authorities of Mumbai depicted Rahul Raj as a terrorist and criminal who boarded a bus and took the passengers hostages and fired four shots on the police from his country made pistol, one of which hit the thigh of one Manoj Bhagat and on this ground the police authority justified the killing of Rahul Raj. 16. Furthermore, the Media reports annexed to the writ petition showed that immediately after the aforesaid incident the Deputy Chief Minister of Maharashtra Sri R.R.Patil made statement justifying the police action as appropriate and stated that if anyone used a bullet, obviously he would get a bullet. On the basis of the aforesaid statement, the M.N.S. leaders started playing with the emotion of people, particularly with the sons of the soil completely ignoring the facts that they were destroying the social fabric of the Nation and hence the leader of the National political parties criticized such statement as adding fuel to the fire in the already volatile and sensitive situation. 17. So far the antecedent of Rahul Raj is concerned, the police report has been annexed which shows that he had no criminal antecedent, whereas his certificates etc. show that he was a simple and peace loving boy, who was never involved in any criminal activity during his entire life and had done his High School, Intermediate from Patna and obtained a diploma in Radiology from Indian Institute of Health Education and Research, Patna and had gone to Mumbai looking for a job - 10 - to get some experience for establishing a Radiology Laboratory at Patna which was his ultimate aim. In these circumstances, the petitioner has claimed that the killing of the boy and the statements of the Deputy Chief Minister of Maharashtra and the police officers of Mumbai showed insensitivity and bias not only against Rahul Raj, but against the entire group of people called „Biharis‟. 18. In this connection, the petitioner has also relied upon the statements of eye witnesses on the news channels showing that the police had entered the bus from the back side and fired at Rahul Raj who sustained bullet injuries on the body and was not dead while being carried away by the Mumbai police, but one of the four members in the panel of Forensic Expert, namely Dr. B.G.Chikalkar who performed postmortem of the body of Rahul Raj found a hole on the face of Rahul Raj caused by bullet surrounded by dark mark which showed that he was fired at from very close range after being carried away from the bus which caused his death and which falsified the story propounded by the Mumbai Police. 19. The aforesaid facts coupled with the reported statements of the Minister and the authorities of Maharashtra police made the petitioner apprehensive that justice would not be done in his case as the said authorities had a bias against the petitioner and the place of his birth and they were bent upon saving their co-officers from being punished for such heinous crime and hence for fair investigation and trial the matter had to be referred to the Central Bureau of Investigation. 20. Another issue in dispute is the handing over of the body of Rahul Raj to his relatives. The contesting respondents have claimed that - 11 - the body of Rahul Raj was handed over in Mumbai to his uncle who brought it to Patna by Air on his own, hence the jurisdiction was entirely with the authorities of Mumbai. On the other hand, the petitioner has claimed that the body of Rahul Raj was brought by the Mumbai Police to Patna who handed it over to petitioner at his residence in Kadamkuan one of the mohallas of the city of Patna and hence some part of jurisdiction also lies with the authorities at Patna. 21. Now the disputed question of fact is as to whether the body of Rahul Raj was handed over at Mumbai to his uncle, who brought it to Patna along with adequate Bandobast of Mumbai police or it was brought to Patna and handed over to the petitioner by Mumbai Police with the relatives accompanying it. There can be no dispute that the duty of the authorities was to hand over the body of the deceased to his nearest kin which in this case can only be his father or anyone authorised by him. Here in the instant case, no letter of authority had been brought on record to show that the petitioner had authorised his brother or any one else to receive the body of the deceased nor there is any material to show that the authorities concerned had handed over the body of the deceased to any of his relatives at Mumbai. 22. On the issue of jurisdiction, learned counsel for the petitioner relied upon several decisions of the Apex Court. In case of Rubabbuddin Sheikh (Supra) it was held that although charge-sheet was submitted in Gujarat, but considering the nature of crime that has been allegedly committed not by any third party but by the Police Personnel of the State of Gujarat, the investigation concluded in that case cannot be - 12 - said to be satisfactorily held. Hence, the police authorities of the State of Gujarat were directed to hand over the records of the said case to the C.B.I. authorities within a fortnight. Thereafter, the C.B.I. authorities were directed to take up the investigation and complete the same within six months. 23. In case of Ramesh Kumari (Supra) it was held by the Apex Court that the complaint was admittedly filed against the police officer and learned counsel for the parties to the case were not at variance that in such a situation the interest of justice would be better served if the Supreme Court directs the CBI to register the case and investigate the matter. In the said circumstances, the CBI was directed to register a case and investigate the complaint and complete the same within a period of three months. 24. In case of M/s Kusum Ingots and Alloys Ltd. (supra) it was held by the Apex Court that jurisdiction must be decided on the basis of facts pleaded in the petition, truth of which was immaterial at that stage. It was also held that in view of clause (2) of Article 226 as substituted and introduced by the 42nd amendment of 1976 (w.e.f. 01.02.1977) in the Constitution, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. 25. In case of Union of India & others (supra), the Supreme court held that in order to confer jurisdiction upon a High court to entertain a writ petition, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do - 13 - constitute a cause so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. 26. In case of Navinchandra N. Majithia (supra) the Apex court held that the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “the cause of action, wholly or in part, arises” and it did not matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court as the amendment by which clause (2) was inserted to the said Article was aimed at widening the area for reaching the writs issued by different High Courts. 27. On the other hand, learned counsel for the respondents also relied upon several decisions of the Apex Court. In case of State of Rajasthan and others Vs. M/s Swaika Properties and another (supra) it was held by the Apex Court that since there was no cause of action either wholly or partly arising out of territorial limits of Calcutta High Court, the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed under Article 226 of the Constitution. 28. The same view has been taken by the Supreme Court in case of C.B.I. Anti Corruption Branch, Mumbai (supra); in case of Union of India and others Vs. Adani Exports Ltd. and another (supra); in case of National Textile Corporation Ltd. and others (supra); in case of Alchemist Limited & Anr (supra); in case of Eastern Coalfields Ltd. and others (supra); and in case of Rajendra Ramchandra Kavalekar (supra). - 14 - 29. In case of Sakiri Vasu (supra), the Supreme Court relying upon an earlier decision of that court in case of C.B.I. Vs. Rajesh Gandhi reported in (1996) 11 SCC 253 held that no one can insist that an offence be investigated by a particular agency and an aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 30. In case of Kusum Ingots & Alloys Ltd. (supra), the Apex Court had held that although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20 (c ) of the Code of Civil Procedure and clause (2) of Article 226 being in pari materia, the decisions of that Court rendered on interpretation of Section 20( c) CPC shall apply to the writ proceedings also. It was also pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved, before the petitioner could obtain a decree, was the material facts i.e. integral facts and such facts pleaded in the writ petition must have nexus on the basis whereof a