IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 150/2010 Decided on: 23.7. 2010. Darshan Kumar. ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Petitioner : Ms. Sulochana Kaundal, Advocate. For the Respondents: Mr. Ankush Sood, Addl. A.G. for respondents No. 1 to 4. Mr. R.R. Rahi, Advocate for respondents No. 5 to 8. Mr. Sandeep Sharma, Assistant solicitor General of India for respondents No. 9 and 10. Per Justice Rajiv Sharma Material facts necessary for the adjudication of this petition are that sister of the petitioner (Smt. Kanta Devi) was residing in village Tatehra, Tehsil Amb, District Una. She was widow and was working as Anganwari Worker in village Tatehra, Tehsil Amb, District Una. Respondents No. 5 to 8 were the neighbourers of Smt. Kanta Devi. There was some land dispute Whether the reporters of the local papers may be allowed to see the Judgment? 2 between respondents No. 5 to 8 and Smt. Kanta Devi. Respondents No. 5 to 8 picked up a quarrel with Smt. Kanta Devi. A complaint was filed by Smt. Kanta Devi against these respondents to the Pradhan, Gram Panchayat, Tatehra. She specifically brought to the notice of the Pradhan that there was danger to her life from these respondents. She also filed complaint before the Police against these respondents on 10.12.2009. However, no action was taken against these respondents. It is alleged that respondents No.5 to 8 came in the mid-night on 12.12.2003 to the house of Smt. Kanta Devi. She was sleeping at that time. They knocked the door and entered her house forcibly. They poured kerosene on her and thereafter she was put on fire. She sustained burn injuries on her body. She also informed the Station House Officer, Police Station, Gagret regarding the incident on telephone and also informed her brother regarding the incident. Respondents No. 5 to 8 left the place and ran away from the place of incident. The brother of Smt. Kanta Devi reached the spot and he took his sister to Community Health Centre, Gagret. She was referred from Community Health Centre, Gagret to Regional Hospital, Una and ultimately to PGI, Chandigarh. Statement of Smt. Kanta Devi was not recorded by the Station House Officer. Smt. Kanta Devi died on 14.12.2009. Petitioner visited the Station House Officer, Gagret on 17.12.2009 and inquired about the registration of the case. Since no FIR was registered, he approached the Superintendent of Police, Una on 26.12.2009 for taking action 3 against respondents No. 5 to 8. Superintendent of Police, Una directed the Station House Officer to investigate the matter. The copies of the representations made by the petitioner are placed on record as Annexures P-3 to P-5. The matter came up for admission on 14.1.2010. Mr. Ankush Dass Sood, learned Additional Advocate General sought time to obtain instruction in the matter. The Court was informed on 18.1.2010 that FIR stood registered that too after filing of the petition. The Court on 25.2.2010 passed the following order: “Mr. Madan lal, Deputy Superintendent of Police, Amb, District Una, Himachal Pradesh is present. It is submitted that he has taken up the investigation on 24.1.2010. We direct the second respondent, Superintendent of Police Una: (i) to file an affidavit as to what was the action taken on the complaint lodged by the deceased apprehending danger to her life prior to the incident which took place on 12.12.2009; (ii) Superintendent of Police, Una will state as to what was the delay in initiating the investigation; (iii) Superintendent of Police, Una will state as to what is the action taken, if any required to be taken against the police officers, who did not take any timely action in initiating the investigation; (iv) Superintendent of Police, Una will also state as to who are the people who conducted preliminary investigation in the case. The affidavit shall be filed within three weeks from today. The investigation officer will also file an affidavit within one month from today as to the progress in the investigation. Post on 26.3.2010.” In sequel thereto, Superintendent of Police, Una filed his affidavit. It is averred in the affidavit that on 10.12.2009, Smt. Kanta Devi lodged D.D. No. 26 in Police Station, Gagret alleging 4 that she had been beaten by Sunita Devi and on the said report, the Investigating Officer moved an application to Medical Officer, First Referral Unit, Gagret for her medical examination. She was medically examined at 10.45 A.M. on 10.12.2009 by Medical Officer. The Medical Officer advised X-ray of injury No.1 and USG of injury No.2. She was moved to Regional Hospital, Una for conducting X-ray and USG for injury No. 1 and 2. The X-ray was conducted at Regional Hospital, Una but USG for injury No. 2 could not be conducted since the Medical Officer was on leave. It is further stated in the affidavit that on 12.12.2009, deceased informed the police telephonically alleging therein that she has put herself on fire and this fact has been recorded in D.D. Rapat No. 46. Vikram Singh, Investigating Officer rushed to the spot alongwith police party. FIR No. 151/2009 was registered on 13.12.2009 under section 309 of the Indian Penal Code. An application was filed before the Medical Officer, First Referral Unit, Gagret on 13.12.2009 whether the patient was fit to give statement or not. Medical Officer informed in writing that she was unable to give statement. Thereafter she was referred to District Hospital, Una and on the same day, she was referred to PGI, Chandigarh. According to the affidavit, Senior Medical Officer, Department of Emergency Nehru Hospital, PGIMER, Chandigarh informed that the patient was unfit for statement. FIR No. 7/2010 was registered under section 302 of the Indian Penal Code only on 15.1.2010. Sh. Surinder Sharma, Sub Divisional Police Officer, Sub Division, Amb also filed affidavit dated 5 11.5.2010 pursuant to order dated 26.3.2010. The mobile number, which was used by Smt. Kanta Devi is 98162-62122. We have sought the help of Nodal officer, Bharti Air Tel, Shimla to see whether the text of the conversation could be traced out or not. The Investigating Officer and the Head Constable, who had received the first telephonic call made by deceased Kanta Devi, had also been directed to be present before this Court. The Investigating Officer has submitted that he had found one empty canister of kerosene, however, the same was not taken into possession. We have also noticed that no action was taken by the police when the first complaint was received by them from Smt. Kanta Devi. It may not be proper for us at this stage to go into the several lacunae in the investigation. We are satisfied that the State Police will not be able to investigate the case properly. The statement of deceased Kanta Devi could not be recorded either on the spot or at Community Health Centre, Gagret or Regional Hospital, Una or PGI, Chandigarh before she died. It is also strange that there is huge delay in getting the forensic report. On perusing the records and after having watched the progress of investigation and after having heard the counsel on both sides, we find that the investigation is conducted in an absolutely lackadaisical manner. Despite granting sufficient time to the investigating agency, there is no satisfactory progress in the investigation. We are of the considered opinion that it is a fit case where matter is required to be investigated by the 6 Central Bureau of Investigation. The handing over of the case to the Central Bureau of Investigation is a rarity. It is only in those cases where Court comes to a conclusion that fair and just investigation has not been carried out and there is possibility of miscarriage of justice, premier investigating agency can be handed over the investigation. The instant case according to us falls in this category. Their Lordships of the Hon’ble Supreme Court in State of West Bengal and others versus Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 have held that so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter or routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. Their Lordships have held as under: “35 .Section 6, the pivotal provision, reads as follows:- "6. Consent of State Government to exercise of powers and jurisdiction. - Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in 7 a State, not being a Union Territory or railway area, without the consent of the Government of that State." Thus, although Section 5(1) empowers the Central Government to extend the powers and jurisdiction of members of the Delhi Special Police Establishment to any area in a State, but Section 6 imposes a restriction on the power of the Central Government to extend the jurisdiction of the said Establishment only with the consent of the State Government concerned. 36. Having noticed the scope and amplitude of Sections 5 and 6 of the Special Police Act, the question for consideration is whether the restriction imposed on the powers of the Central Government would apply mutatis mutandis to the Constitutional Courts as well. As stated above, the main thrust of the argument of Shri K.K. Venugopal, learned senior counsel, is that the course adopted by the High Court in directing the CBI to undertake investigation in the State of West Bengal without the consent of the State is incompatible with the federal structure as also the doctrine of separation of powers between the three organs of the State, embodied in the Constitution even when the High Court, on the material before it, was convinced that the State Police was dragging its feet in so far as investigation into the 4th January, 2001 carnage was concerned. 68. (vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 8 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.” The investigation in the instant case is tardy and slow. It is an exceptional case necessitating handing over the investigation to Central Bureau of Investigation. The investigation is required to proceed expeditiously. It is required to be done in most independent and objective manner. It should be done in fair and unbiased manner. Mr. Ankush Dass Sood, learned Additional Advocate General submits that the State has no objection in case the matter is handed over to Central Bureau of Investigation. Accordingly, we direct the Superintendent of Police, Una to handover the entire records of the case, including the investigation carried out till date, to respondent No.10, i.e. Superintendent of Police, Central Bureau of Investigation forthwith. The Superintendent of Police, Central Bureau of Investigation shall depute a person, not below the rank of Deputy Superintendent of Police, to properly investigate the matter and to take all necessary steps to complete the investigation at the earliest but not later than four months from today and to file the challan in the competent court of law. 9 In the light of above, the petition is disposed of. There shall, however, be no order as to costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma) Judge. 23.7.2010. *awasthi*