IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.M-8379 of 2010 DATE OF DECISION: July 13 ,2011 Balwinder Singh Petitioner Versus State of Union Territory, Chandigarh and others Respondents CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.S.S.Narula, Advocate for the petitioner. Mr.Hemant Bassi, Advocate for the UT, Chandigarh. Mr.Sanjeev Sharma, Senior Advocate with Mr.Shekhar Verma, Advocate for respondent No.4. .. DAYA CHAUDHARY,J. Dejected by his failure in getting justice, the petitioner has approached this Court under Section 482 CrPC for handing over investigation to some independent agency, like, Central Bureau of Investigation. 1 The prayer in the petition is for issuance of direction for re-investigation by an independent agency, like, Central Bureau of Investigation on the premise that the local police has succumbed to the pressure exercised by respondent No.4 Jaspal Singh Bhullar, SI and the investigation was not carried out in an impartial and straight forward manner. In this petition, which has been filed by the father of deceased-Gagandeep Singh, it is alleged that the police, with a view to cover up its act of commission of unjustified death, manipulated the record and filed a final report before the competent Court. According to the petitioner, the investigation into the incident was conducted in a slipshod, clandestine and a biased manner. The petitioner has, therefore, inter alia prayed in the petition that a fair investigation be got conducted into the incident through the C.B.I. The relevant facts of the case for the disposal of the case are as under: An FIR No.193 dated 27.6.2009 was registered under Sections 279,337,338 IPC at Police Station Sector 17, Chandigarh. The time of occurrence was shown at 10.40 p.m. Complainant Jaspal Singh Bhullar, SI is Incharge of Police Post Sector 22, Chandigarh in whose area the accident had taken place. In the said accident, Gagandeep 2 Singh succumbed to his injuries, whereas, Mandeep Singh Gill sustained injuries. A wireless message was received by the police party headed by SI Ram Parkash regarding motor vehicular accident near Kiran Cinema Light Point, Sector 22, Chandigarh. On reaching at the spot, he found that the injured had already been taken to the hospital for treatment by the PCR vehicle. He immediately proceeded to General Hospital, Sector 16, Chandigarh where he recorded the statement of Jaspal Singh Bhullar, SI who stated that he is posted as Incharge of Police Post Sector 22, Chandigarh. Car bearing registration No.CH03W/2296 belonging to his brother was being driven by him on the fateful day for going towards Sector 22-A, Chandigarh. At about 10.40 a.m. when he was crossing the light point near Kiran Cinema on turning green signal, two boys, driving motor cycle in a rash and negligent manner came from light point 22/23 side and hit the left side of his car by crossing the red light signal. Resultantly, motor cycle fell down on the left side of the car and the boys fell down on the right side of the car hitting with the bonnet and wind screen and car went over the footpath. In the process, the complainant and the boys received injuries. The complainant alighted from the car and read the number of motor cycle which is PB06G- 5633. On query, the boy who was driving the motor 3 cycle told his name as Gagandeep Singh (since deceased) and pillion rider told his name as Mandeep Singh Gill and they were not wearing helmets. SI, Ram Parkash recorded the statement of complainant, after getting the fitness certificate from the doctor. On the basis of the said statement, FIR was registered against Gagandeep Singh and Mandeep Singh. It was the dark and gruesome day for the petitioner when he heard the shocking news that Gagandeep Singh is no more in this world. An intimation in this regard was received on 29.6.2009 at about 10.25 a.m. at Police Post Sector 22, Chandigarh. The dead body was identified by Surinder Pal Singh, Balwinder Singh (the present petitioner) and Raj Singh. The stand taken by respondent Nos. 1 to 2 is that the investigation in the present case was conducted by a senior officer of the rank of Inspector. Investigation was verified by DGP, Chandigarh. Statements of the witnesses, namely, Sunil Tony and Rajinder Kumar were recorded who had witnessed the occurrence. On 29.6.2010, the investigation of the case was transferred to Crime Branch by the orders of the then SSP, Chandigarh so as to ensure a fair and impartial investigation. At the initial stage, the investigation was entrusted to SI, Charanjit Singh. On 2.7.2009, it was taken over by Inspector Sher Singh. However, 4 the petitioner gave a representation dated 8.7.2009 at Public Window on 14.7.2009 seeking fair and impartial investigation. Therefore, on 18.7.2009, the investigation of the case was transferred to Special Crime and Investigation Cell, Sector 24, Chandigarh. A thorough investigation was conducted. However, Kuldeep Singh, Inspector verified the earlier investigation. Since Gagandeep Singh had expired, the case was recommended as `untrace’. The said untrace report was accepted by the Chief Judicial Magistrate, Chandigarh vide its order dated 20.2.2010. Respondent No.4 filed a separate reply wherein he stated that the present petition has been filed after an unexplained and inordinate delay. He reiterated the statement made earlier which forms the basis of FIR. Mandeep Singh, injured did not join the investigation despite repeated notices sent by the Investigating Officer. However, on 15.9.2009 he gave his statement in his own writing. It is also the stand of respondent No.4 that the investigation of the case be not transferred to an independent agency, like, CBI, as the premier agency is already burdened with the crucial matters. In the end, it is prayed that the petition may be dismissed as thorough investigation was conducted. The learned counsel for the petitioner submitted that the role of the investigating agency 5 from the beginning is tainted with suspicion and visible leaning in favour of respondent No.4. He further submitted that in the present case the statement of only respondent No.4 was recorded and no efforts were made to record the statements of Mandeep Singh Gill, injured and Gagandeep Singh (since deceased). He further submitted that the place of accident falls within the jurisdiction of Police Post Sector 22, Chandigarh whose Incharge was respondent No.4 and, therefore, the investigation was not conducted in a fair and impartial manner as he exerted influence over the investigating agency and managed to secure the FIR against the victims. He further submitted that the FIR was registered in a hasty manner with a view to protect respondent No.4 as it was registered against the injured Mandeep Singh Gill and deceased Gagandeep Singh, although it has come in the alleged statement of respondent No.4 that the motor cycle was being driven by Gagandeep Singh, therefore, the FIR was not registered, in accordance with law. Learned counsel for the petitioner submitted that information regarding the accident was not given in time so that the petitioner and his family members could not know the truthness. Learned counsel for the petitioner submitted that respondent No.4, being a police officer, is duty bound to protect the human life but in the present case, he fled away from the spot 6 and the injured were left unattended. Learned counsel for the petitioner submitted that the deceased was the only son of the petitioner who was staying in Chandigarh. He was taking classes in IELTs/TOEFEL after having done diploma in Automobiles and D-Plumber and awaiting VISA clearance from the Canadian Embassy for further studies as he was interested in taking admission in Canada. The alleged accident took place as intersection near Kiran Theatre. Injured Gagandeep Singh and Mandeep Singh Gill (since deceased) were taken to General Hospital, Sector 16, Chandigarh. Subsequently, Gagandeep Singh was referred to PGI Chandigarh. No personal care was taken by the medical authorities as the police did not take care and as such, Gagandeep Singh, son of the petitioner, succumbed to his injuries. He further submitted that the said occurrence was witnessed by the eye witnesses who reported to Police Control Room. Instead of recording of statements of eye witnesses, the statement of respondent No.4 was recorded. Even the statement of injured Mandeep Singh Gill who was eye witness of the incident, was recorded on 15.9.2009, after a period of more than 2-1/2 months. What to talk of statement of deceased was not recorded immediately after the accident when he was alive. The incident is of the month of June in its later part. June end suffers from scorching heat. Ordinarily, people move out 7 only in the late hours of night for walking. It is very strange that no witness from the public or surrounding shops were joined in the investigation except two interested witnesses, namely Sunil Toni and Rajinder Kumar, who according to the Chandigarh News Line dated 29.6.2009 came to the spot, 20 minutes after the accident. He further submitted that in the Chandigarh News Line dated 29.6.2009, it has been mentioned that four eye witnesses made the calls to PCR after the accident who specifically stated that accident occurred due to rash and negligent driving of respondent No.4. However, in the investigation only one or two witnesses were joined. He further submitted that the car driven by respondent No.4 rammed into deceased from the right side as the deceased sustained most of the injuries on the right side, which is apparent from the post mortem report. He further submitted that the statements of Malkiat Singh and Paramvir Singh were recorded on 17.7.2009 before Crime Branch wherein they stated that on the fateful day, the accident was occurred due to rash and negligent driving of respondent No.4. Subsequently, the investigation was transferred to Special Crime and Investigation Cell on 18.7.2009. The said witnesses were won over by respondent No.4 and they resiled from their earlier versions. He further submitted that Sunil Toni and Rajinder Kumar are interested witnesses as they were 8 procured by respondent No.4. He further submitted that vide report dated 17.7.2009, Kanhaya Lal, Mechanic has given a detailed report stating that the car driven by respondent No.4 hit the motor cycle. He further stated in his report that in case the motor cycle hits the car, then its wheel, head light and other accessory, like, mud guard would have damaged/broken, whereas, front portion of the motor cycle is in a good condition. He also submitted that son of the petitioner, namely, Gagandeep was killed while crossing red light by respondent No.4 where he was chasing some boys to caught them. He further submitted that the petitioner approached on various occasions to the police authorities from time to time for fair and impartial investigation but his request was turned down. Learned counsel appearing for the UT submits that fair and impartial has been conducted by a senior officer of Inspector rank. After thorough investigation, the Investigating Officer recommended the case to be sent untrace and the same was presented before the Chief Judicial Magistrate, Chandigarh which was accepted vide order dated 20.2.2010. Learned counsel for respondent No.4 reiterates the stand taken in the reply. He further submits that since the petitioner has availed of the remedy under Section 156(3) CrPC for 9 registration of FIR, he has no right to approach this Court for any other relief. Heard the arguments of learned counsel for the parties and have also perused the FIR and other documents available on the file. Admittedly, the accident has taken place in the night of 27.6.2009 at around 10.40 p.m. at light point of Kiran Theatre, Sector 22, Chandigarh. That day was dark for the petitioner as he has lost his son on 29.6.2009. In the said accident, Mandeep Singh Gill also sustained injuries. On the threshold, it is not understandable as to under what provisions of law the FIR was registered against Mandeep Singh Gill, who is a pillion rider when it has been specifically stated by respondent No.4 that Gagandeep Singh was driving the motor cycle and Mandeep Singh Gill was a pillion rider. The entire object of the police machinery was to protect respondent No.4. In the present case, SI Ram Parkash recorded the statement of respondent No.4 and two interested witnesses, namely, Sunil Toni and Rajinder Kumar appears to be procured as witnesses by respondent No.4 because as per news item dated 29.6.2009 they came to the spot after 20 minutes of the accident. Under what circumstances, the statements of inured Mandeep Singh Gill, Gagandeep Singh (since deceased) and other eye witnesses from 10 the public and surrounding shops were not recorded on the spot despite the fact that June end suffered from scorching heat and people moved out for walking in the late hours of the night. Although the statement of the injured Mandeep Singh Gill was recorded on 15.9.2009 who specifically stated that on turning the green light, they started motorcycle, then a car being driven by respondent No.4 came from Gurdawara side hit the motor cycle on the light point of Kiran Theatre, Sector 22, Chandigarh, but his statement was not taken into consideration by the Investigating Agency. Nothing has been brought on record to show that the said injured was ever called for joining investigation prior to 15.9.2009. The statement of injured Mandeep Singh Gill was corroborated with the statement of Kanhaya Lal, Mechanic who examined the vehicles involved in the accident. The relevant portion of the report submitted by Kanhaya Lal is as under: “xx xxx xxxx xxxx While conducing the mechanical inspection of above said vehicle No.CH03-W-2296 (Santro Car) and vehicle No.Ph-06-G-5633 (motor cycle). It has been found that petrol tank from RHS Bend, RHS leg guard pipes bend towards rear side and RHS holder step broken and brake paddle bends towards read side. Steel grey color marks 11 also found on petrol tank of the motorcycle which seems that car hit the motor cycle, if motor cycle hits the car from LHS then its wheel, head light assy, and mud guard should must be collapsed where as whole the front portion of M/cycle is in good condition. Sd/17.7.2009 Kanhaya Lal” Learned counsel for respondent No.4 submitted that certain clarifications were sought by the investigating agency and, therefore, a Board was constituted for re-mechanical examination. The Board opined that the report given by Kanhaya Lal cannot be taken to be authentic. It was further opined that the Investigating Officer could give the exact cause of accident. On that basis, it has been submitted that the report given by Kanhaya Lal cannot be relied upon. I am not impressed with the submission of learned counsel, at this stage, because the report submitted by Kanhaya Lal cannot be taken to be an eye wash as the Board has not given any opinion that the report given by the said person is wrong and incorrect. The opinion of the doctor given in the post mortem report also strengthens the case of the petitioner that respondent No.4 while driving the 12 car in a rash and negligent manner crossed the red light and hit the motor cycle on the right side being driven by Gagandeep Singh (since deceased) when he was just to cross the front of car. The relevant portion of the portion of the post mortem report is as under: “1. Lacerated wound 1 x .2 cm x skin deep on right upper eyelid. 1.Lacerated wound, 3 x 1.2 cm x bone deep on left occipital region. 2.lacerated wound, 6 x 4 cm x bone deep on anterior aspect of right leg, 10 cm below right knee joint with fracture dislocation of underlying bones.” It is also not in dispute that the accident had taken place within the jurisdiction of Police Post Sector 22, Chandigarh whose incharge was respondent No.4. Nothing has been brought on record by the respondents that the Investigating Agency has made efforts to collect the evidence of eye witnesses except Sunil Toni and Rajinder Kumar despite the fact that various calls were made to the Control Room regarding the said accident. More so, the incident is of the month of June end. June end suffers from scorching heat. People moved out only in the late hours of night for walking. However, no people from the public and surrounding shops were joined. The laxity on the part of the police shows that investigating agency wants to 13 shield respondent No.4. At the initial stage, Malkiat Singh and Paramvir Singh specifically stated that due to rash and negligent driving of respondent No.4, the accident took place. The son of the petitioner came to Chandigarh for study purposes. However, his dream of sending his son to Canada shattered when he is no more in the world. One cannot imagine the pain of the petitioner who lost his young son in a vehicular motor accident. The petitioner belongs to District Faridkot, the place which is 200 kms far from Chandigarh. Mere taking technicalities that the petitioner could not disclose the names and addresses of the persons who told that respondent No.4 crossed the red light and killed his son and injured Mandeep Singh Gill is no ground to say that there is no material against respondent No.4. It is the duty of the investigating agency to collect the evidence in order to complete the investigation to its logical end. Learned counsel for the respondents submitted that the petitioner has already availed of the remedy available to him under section 156(3) CrPC and learned Magistrate has power for further investigation even after submission of the final report. Learned Magistrate can monitor the investigation to ensure that the investigation has 14 been conducted properly or not. It is well settled position of law that Court should not interfere with the investigation conducted by the police. Although the powers of the Magistrate to order further investigation under Section 156(3) CrPC is an independent power and it does not effect the powers of the investigating officer for further investigation. The Magistrate can order re- opening of the investigation even after presentation of the Challan. Such power is used by the Magistrate when he is satisfied that proper investigation has not been conducted or is not being conducted by the police. In the present case, the remedy availed by the petitioner cannot bar him from approaching this Court as he has got no justice in the criminal case and, therefore, there is every expectation that the fate of the remedy availed under Section 156(3) would remain the same. In the present case,FIR has been registered at the instance of respondent No.4, who is incharge of Police Post under whose jurisdiction the accident had taken place by stating that the accident had taken place due to rash and negligent driving of the son of petitioner who is deceased now. Since the deceased is not going to rebut anything and it is also an admitted fact that Mandeep Singh Gill was pillion rider at the time of said accident and he was injured also. His statement was not recorded at the initial stage but 15 the same was recorded after a lapse of more than 2-1/2 months just to show to the petitioner, who was running from pillar to post for justice. The petitioner, who is father of the deceased, is poor and an ordinary person. He is farmer in the village and on the other side, the experienced police officer who was incharge of that very police post where the accident has occurred. Moreover the parents of the deceased were not informed even in spite of the fact that respondent No.4 was aware with regard to name of the deceased and the Investigating Officer could have asked the address of the family of the deceased from Mandeep Singh Gill as he was friend of the deceased. It is relevant to mention here that in case respondent No.4 is fair on his part, then he could not have said that the matter be not transferred to independent Agency, like, CBI as the premier agency is already burdened with crucial matters. In view of the facts, as mentioned above, it is a clear case where investigation of the case has not been conducted in a fair and impartial manner and every efforts have been made to protect respondent No.4. Otherwise also proper and fair investigation on the part of the Investigating Officer is backbone of the rule of law. The Investigating Officer should have recorded the statement of the injured as the job of the 16 investigating officer was to make the investigation in a right direction. Since the investigating agency filed untrace report and the petitioner has no opportunity to file even protest petition as he is not the complainant and no other remedy is available to the petitioner. Keeping in view the facts and circumstances of the present case and on the basis of material available on the record, a prima facie case for re-investigation is made out. Accordingly, the prayer of the petitioner with regard to re-investigation of the case is accepted and a direction is issued to DGP, Haryana to nominate two police officers of IPS rank who shall conduct the re-investigation of the case within a period of three months from the date of receipt of copy of this order. The Investigating Officer so nominated shall investigate the matter not only from the angle of rash and negligent driving of the vehicle driven by respondent No.4 but also from the angle that whether he has committed culpable homicide not amounting to murder because challan itself speaks that the present petitioner has given a statement that his son, namely, Gagandeep was killed while crossing red light by respondent No.4 (Jaspal Singh Bhullar, SI) in chasing some boys to caught them. In case the Investigating officer arrives at the conclusion that respondent No.4 is liable 17 for commission of offence(s), they shall also examine the matter whether respondent No.4 had exerted influence over the investigating agency, destroyed the evidence of crime and managed to secure the FIR against the victims. The Investigating Officers shall also examine the role of official/officer(s) in affirming the investigation conducted in the case. Statements of witnesses and other evidence shall be videographed. It is made clear that the said investigation shall be monitored by the DGP, Haryana whether the investigation is being carried out in a right direction. Registry is directed to make available the copy of the petition alongwith replies filed by the respondents and other records on the file within a period of one week from the date of passing of order. Report in this regard shall be submitted on or before 4.11.2011. Senior Superintendent of Police, UT, Chandigarh is directed to hand over the police file to the Officers, so nominated, for investigation. However, it is made clear that observations made hereinabove shall not be construed as opinion while conducting the investigation of the case. 18 July 13,2011 (DAYA CHAUDHARY) KD JUDGE 19