Pooja Pal vs Union Of India And Ors

2. The appellant, widow of slain Raju Pal, who at his death was a sitting M.L.A. of Uttar Pradesh State Assembly, is before this court in her relentless pursuit for securing investigation by the Central Bureau of Investigation (CBI) into the stirring incident of murderous attack on her husband, snuffing their a week old marital tie. This is the appellant's second outing before this forum, she having been relegated earlier to the High Court, to seek the remedy at the first instance. By the decision impugned, the High Court has declined the relief sought for.

4. The eventful factual backdrop is outlined by the available pleadings. First the facts as narrated by the appellant. In the bye-elections to the vacant seat of Allahabad (West) State Assembly, held in the month of October 2004, the same having been vacated on the resignation of its incumbent Atiqe Ahmed, respondent No. 4, he having been elected as a Member of Parliament from Phoolpur constituency, Allahabad, the appellant's husband was elected thereto by defeating the nearest contender Mohd. Ashraf set-up by the Samajwadi Party. Whereas the appellant’s husband as the candidate of the Bahujan Samaj Party (for short hereinafter referred to as “BSP.”) secured 70537 votes against 65713 votes polled by the respondent No. 5, the other candidates representing the Congress and Bhartiya Janta Party fared very poorly in comparison. According to the appellant, since his defeat, Moh. Ashraf @ Khalid Azeem the respondent No. 5, along with his brother Atiqe Ahmed respondent No. 4 as well as the then Chief Minister of the State had taken the set-back to be a matter of personal humiliation, defeat and insult so much so that the respondent No. 4 declared in public that the candidate elected would not be able to hold the seat for long. It has been alleged by the appellant that subsequent thereto, continuous attempts were made to eliminate Raju Pal and that too with the connivance of the local police and at the instigation of the respondent No. 4. The appellant has asserted that as a consequence, the family members and the supporters of her husband very often were assaulted and subjected to harassment by arrests by the police and hired goons engaged by the respondent Nos. 4 and 5 and that their property and personal belongings were even destroyed.

5. The appellant alleged as well that the respondent No. 5 was a history sheeter against whom several cases had been lodged involving the offence of murder, but on account of his political clout and the following of anti- social elements, no witness would even dare to give evidence of his nefarious activities. This was more so, according to the appellant, as he enjoyed police patronage and protection. The appellant stated that after the election of her husband as the Member of the Legislative Assembly on 16.10.2004, three abortive attempts were made on his life and the properties belonging to him and his close relatives were ransacked and taken away. The appellant mentioned that the last attempt on the life of her husband before the gruesome incident was made on 28.12.2004. Prior thereto amongst others, an attempt was also made in the month of November, 2004, whereafter Raju Pal did submit a representation to the Governor of the State on 04.11.2004, following which the said constitutional authority had directed an inquiry to be made.

6. According to the appellant though the Governor of the State had directed that additional security be provided to her husband, it was not done and instead his existing security staff was replaced by the State Government. Such was the animosity as alleged by the appellant, that the State Government even had withdrawn Raju Pal's official gunners for whose timely intervention, he survived the attempt on his life on 28.12.2004 by the hired goons and henchmen of the respondent Nos. 4 and 5. The appellant has alleged that the two official gunners of her husband were replaced by others on the choice of the local police and the desire of the respondent Nos. 4 and 5 to ensure that Raju Pal does not escape the next attempt. That in connection with the incident of 28.12.2004, Raju Pal had lodged a First Information Report with the police in which he had named these respondents has been stated as well. This notwithstanding, buckling under political pressure, the police even deleted the name of respondent No. 5 from the F.I.R. and made a formality of some investigation.

7. The appellant has stated that on the date of the incident i.e. 25.01.2005 at 3 P.M., her husband Raju Pal was travelling in a vehicle accompanied by his two supporters Sandeep Yadav and Devi Lal Pal. His two official gunners instead of accompanying him, and as a part of the conspired plan were travelling in the second car behind his vehicle. The vehicle in which the appellant's husband was travelling along with his friend Singh Sahib and his wife on reaching Amit Deep Maruti Agency, was intercepted and surrounded by eight persons, whereupon the respondent No. 5 Mohd. Ashraf shot him in his head. In course of the shoot-out, Sandeep Yadav, Devi Dayal Pal and the appellant’s husband were seriously injured and they eventually succumbed to the injuries. The appellant has alleged that the official gunners, who were travelling in the car behind, not only did not intervene or retaliate to save Raju Pal but had abandoned their vehicle. She has alleged that reportedly, a conspiracy was hatched in this regard, at the political level in connivance with the top police officers including the Station Officer, Dhoomanganj, Shri Parshuram, C.O. (Police), Civil Lines who were then present at the spot alongwith Superintendent of Police (City) & Deputy Inspector General of Police, Allahabad and Atiqe Ahmad, respondent No. 4.

8. The appellant has stated as well that the assailants who were in three different vehicles, left the site of the incident after resorting to indiscriminate firing, whereupon the persons present along with the supporters of the injured took Raju Pal out of the car and tried to rush to the hospital in a three-wheeler. The appellant has mentioned that as per the account of the eyewitnesses present and as reported by the media, the assailants returned and opened indiscriminate fire on Raju Pal from a close range so as to ensure that he was dead. That a third attack was made on the injured Raju Pal from a point plank range before he could reach the hospital, where he succumbed to his injuries, has been stated in categorical terms. According to the appellant, though there were four police stations on the route to the hospital, no police officer did respond or offer to help the injured or his companions in their last minute bid to save their lives.

9. The appellant on the very same date i.e. 25.01.2005 filed the FIR at 4.30 P.M., narrating the incident and also mentioning clearly, the involvement of the respondent No. 4 as the brain behind the murder and that the respondent No. 5 had shot Raju Pal in the head. The FIR was registered as 31/2005 dated 25.01.2005 of Dhoomanganj Police Station, Allahabad, U.P. under Sections 147, 148, 149, 302, 307, 120B IPC.

Though the assailants kept on shooting at Pal on the entire stretch between Chaufatka and the nursing home covering four police stations of Dhoomangang, Cantt. Civil Lines and Kotwali, the police failed to react.”

11. The appellant has further stated that the body of Raju Pal was thereafter taken into custody by deploying heavy police force and thereafter a show of the post mortem was done hurriedly & secretly at the Swaroop Rani Nehru Hospital at about 03.15 A.M. in the morning of 25- 26/01/2005 without any information to the appellant or any family member and in total violation of all norms pertaining to autopsy. The appellant has stated that purposefully in order to ensure that the prosecution case is rendered weak, the injuries indicated in the postmortem report were described in a manner to be rendered doubtful to have been caused by the two weapons recovered i.e., one DBBL Gun and one 30 Spring Rifle. The appellant has thus stated that the charge-sheet that was eventually submitted was merely an eye-wash to save the respondent Nos. 4, 5 and their accomplices on one hand and to rule out the possibility of further investigation by the CBI and in the process hush up the true facts. According to her, the dead body of the Raju Pal was thereafter cremated in the early morning of 26.01.2005 at Daraganj crematorium, but neither prior thereto, it was handed to the appellant nor the ashes were made available to her. As a matter of fact, the dead body was cremated as if it was an unclaimed body though the deceased was a sitting Member of the Legislative Assembly of the State and his identity was well known to all concerned including the police.

12. Even the representation made by the mother of Raju Pal on 26.01.2005 to the Senior Superintendent of Police to hand over the dead body of her son to her for final rites was not heeded too. All fervent requests and appeals made by her in this regard failed. The appellant has alleged that not only she as a widow was given a chance to have a parting glance of the body of her husband, the dead bodies were disposed of hurriedly without any notice to her as well as other family members of Raju Pal presumably to wipe off all possible clues in support of the heinous crime. The appellant was married to the deceased Raju Pal only on 16.1.2005 i.e. hardly a week before the tragic incident.

15. While mentioning that with the installation of the Samajwadi Party in power, there was an upsurge in the crimes, the appellant has referred as well to the criminal antecedents of the respondent No. 5, tracing back to the year 1979, when he was accused of murdering a contractor in Bihar. According to her, this respondent has been booked in a number of cases under Sections 302 and 307 IPC as well as amongst others, under the Gangster Act, National Security Act and had been identified also as a member of the interstate gang in December 2002. Accusing the State Government, the above notwithstanding, of bestowing its generosity on him as well as his brother, the appellant has also referred to a list of 20 criminal cases registered against the respondent No. 5 in which efforts were being made to withdraw the same. The list of cases, as set-out in the writ petition involves offences inter alia, under Sections 302, 307, 149, 120B IPC as well as under the Arms Act and Gangster Act. The appellant has been candid enough to state in no uncertain terms, that though the evidence was galore against the respondent Nos. 4 and 5 and their accomplices in the commission of murder of her husband, conscious and intentional steps were taken by the state administration and the police to shield them therefrom due to political and other influence wielded by them. In endorsement of this accusation, the appellant has referred to as well some excerpts from the writ petition filed by the Station House Officer Shri Parshuram Singh in Civil Writ Petition No. 34265/2005 challenging his suspension. This police officer who was in-charge of the investigation of incident made serious allegations against the senior police officers in their attempt to efface evidence against the respondent Nos. 4, 5 and their henchmen in the following terms: (page No. 126 of Writ Petition) “25 -That, on 27.01.2005, one of the main accused Ashraf alias Khalid Azim was arrested in Lucknow and brought to Allahabad in tight security two other accused were also arrested by the petitioner on 30.01.2005, namely Farhan Ahmed and Ranjeet Pal and a DBBL Gun and life cartridges were recovered from their possession. True photo and typed copy of the F.I.R. and Recovery Memo are collectively enclosed herewith and marked as Annexure- 5, to this writ petition.

26 - That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, because of the reason better known to him, he told to the petitioner the empty cartridge of thirty spring rifle not be shown in the G.D. but the petitioner refused to do so. The respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, also told to the petitioner that Ashraf and Atiqe not be made main accused in the case crime No. 34/05, Police Station, Dhoomanganj, Allahabad.

27 - That, on 30.01.2005, on the day of arrest of Farhan Ahmed and Ranjeet Pal, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, told to the petitioner these two accused be kept in curtain (Baparda) do not produce the accused before media, the petitioner denied as the accused persons are local resident and they are publicly known criminals therefore, no meaning to put them in curtain.

28-That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, also, told the petitioner, the DBBL Gun recovered from the possession of Farhan Ahmed and Ranjeet Pal also be changed but the petitioner denied and showed the same DBBL Gun in the records which was recovered from their possession.

29 -That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, has motive to save the main accused Ashraf and Atiqe Ahmed from the charge of murder of M.L.A, Raju Pal. The respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, handled by the political leaders of the ruling Samajwadi party and he was doing in the manner for tempering the evidence of the murder against the main accused Ashraf and Atiqe Ahmed as directed by leaders of ruling Samajwadi Party.

30- But the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, suspended the petitioner in the evening of 30.1.2005, alleging that the murder of Raju Pal was occurred and he could not control the disturbances after the murder of M.L.A. Raju Pal.

31 -That, the respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad suspended the petitioner to help the accused persons as the respondent No. 2, Shri Sunil Gupta, S.S.P., Allahabad, several times told to change the facts that shows the interest of respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, in saving accused persons.

32-That, in as much as the investigation which was being carried out by the petitioner was transferred to one Inspector, Police Station Colonelganj Inspector Surendra Singh.

33- That, the one of the main accused Atiqe Ahmed, Member of Parliament now was released on bail and he mounted pressure on respondent No. 2, Shri Sunil Kumar Gupta, S.S.P., Allahabad, for transferring the Investigation Officer Inspector Surendra Singh and transferring the petitioner any other place ahead from Allahabad.

35- That, the Colonelganj Inspector Surendra Singh, who was the Investigating Officer in this case, was suddenly relieved of all the responsibilities and has been posted to Jhansi. At the same time, efforts were on to ensure the removal of Dhoomanganj Station Officer the petitioner around the time of the murder and get him posted to some other district. The only fault of both these Investigating Officers was that they did not succumb to the pressure exerted by their superiors and went ahead with the investigation in the right manner _ _ _ _ According to sources, some senior police officers of the district were putting pressure on the Investigating Officer to replace the gun with some other weapon. But the investigator did not relent and forwarded the recovered pistol and the gun for a forensic test. The tests revealed that two of the six empty cartridges, also found at the scene of crime, had been fired from the recovered DBBL Gun. All along the course of the investigation, some senior police officers had been making efforts to persuade the investigator to shift the focus of his investigation from the named accused Samajwadi Party Member of Parliament Atiqe Ahmed and his brother Ashraf, and bring into focus the personal enmity angle of the slain M.L.A. as the cause behind his murder. The fact that the police officers of the district were working under tremendous political pressure was evident from the way they had been working.”

16. On the basis of these foundational facts, the appellant has prayed for an appropriate writ or a direction in the nature of mandamus, directing the official respondents to entrust a fresh investigation into the episode by the C.B.I.

18. By order dated 03.05.2006, the prayer made was allowed, requiring the appellant to file the writ petition as proposed before the High Court within a period of two weeks therefrom. It was observed that if it was so done, till the disposal of the writ petition, the respondent State would provide necessary security to the appellant and her mother-in-law (co- appellant before this Court). Further proceedings of the Trial Court were ordered to remain stayed till the disposal of the writ petition if filed within the period of two weeks as permitted and a request was made to dispose of the same as expeditiously as possible. In compliance of this order the appellant alone filed a writ petition which was registered as W.P.(Crl.) No.6209 of 2006 within the time allowed.

19. While the Writ Petition was thus pending, by letter No.- Home (Police) Section-11, Lucknow No.2169/6-Pu-11-7-06(writ)/2006 dated 15.05.2007 addressed to the Secretary, Ministry of Personnel, Government of India, New Delhi, the State Government conveyed its decision to get the investigation of the case conducted through the CBI and requested that the steps be taken accordingly and to keep the State Government apprised of the action taken. The consent of the State Government as required under Section 6 of the Delhi Special Police Establishment Act, 1946 to this effect was also appended to the said letter. As the case number was wrongly mentioned therein, correction to the said effect was communicated vide letter No.Home/Police/Section-11, Lucknow No.3636/6-Pu-11.05.06 (writ)/2005 dated 14.08.2007.

20. At this stage, in view of this development, a submission was made on behalf of the State Government before the High Court, bringing to its notice, the same. Consequently by order dated 11.07.2007, the High Court being of the view that the relief sought for in the writ petition had been granted by the State Government by making a request to the Central Government to get the case investigated by the CBI, dismissed the writ petition.

22. In the wake of the rejection of the request for investigation of the case by the CBI, the appellant applied for an amendment of the writ petition, by incorporating the required facts pertaining to the process related thereto and also prayed for the annulment of the letter dated 18.01.2008 of the Central Government. In the facts pleaded to that effect, she averred that during the trial, the respondent Nos. 4 & 5 had threatened the eye witnesses and did impeach the decision of the Central Government disallowing the request for investigation of the case by the CBI as mechanical and prompted by surmises and conjectures. She did furnish as well, the particulars of the cases in which the respondent No.4 & 5 had been involved in kidnapping and abduction as well, as elimination of witnesses who could otherwise withstand their pressure and displayed courage to disclose the truth in support of the charge leveled against them. Following the refusal of the Central Government, the state government, however shifted the investigation to the CBCID and meanwhile both the state police and CBCID have submitted chargesheets.

24. Before adverting to the rival submissions, it would be apt to notice the pleaded stand of the respondents in substance. The state government has admitted the incident in which the appellant’s husband had been assassinated on 25.01.2005 along with two others namely Sandeep Yadav and Devi Dayal Pal in a shootout. It has not disputed as well, the registration of the information of the said incident under Sections 148/147/149/302/307 and 120B of the IPC against respondents No. 4,5 and seven others at Dhoomganj Police Station. That on 27.01.2005, the state police had arrested respondent Nos. 4 & 5 in connection of the incident has also been admitted. The state government has placed on record, that the state police on the completion of the investigation in the case has submitted a charge-sheet on 08.04.2005 against respondent Nos. 4,5 and 9 others together with a list of 27 witnesses.

37. We have extended our anxious consideration to the competing pleadings and the arguments advanced. The gory incident in which the appellant’s husband was brutally gunned down in a public place is indeed harrowing and alarmingly distressful. Not only the daring act in the broad day light is condemnable, it sent shock waves among the living community, wrecking the temper and rhythm of social life and created a fear psychosis and a scary feeling of lack of security in all concerned. It is a matter of record that at the relevant time, the appellant’s husband was a sitting member of the State Legislative Assembly, having defeated the respondent No. 5, in the bye-elections held a few months prior to his murder. That at that time, the respondent No. 4, brother of respondent No. 5 was a member of the Parliament is also an admitted fact. In the FIR filed by the appellant soon after the incident, she named the respondent No. 5 to be the assailant who had shot Raju Pal in the head, being accompanied by others. She has alleged therein that respondent No. 4 was the brain behind the operation and thus was involved in the conspiracy to eliminate her husband. As referred to hereinabove, it has been averred by her as well that soon after the bye-elections in which her husband had been elected, a number of unsuccessful attempts had been made on him for which he genuinely sustained an apprehension regarding his safety and security. That he had repeatedly aired his apprehension to that effect and had sought remedial measures before the appropriate authorities, has been pleaded as well. Immediately after the assassination of her husband, the appellant as well as the President of the Bahujan Samaj Party, to which he belonged, also had submitted a spate of representations before the Governor, Chief Minister, Chief Secretary and other authorities of the State requesting for entrustment of the investigation of the case to the CBI as the state police, as perceived by them, was found to be patently partisan in their initiatives and approach in connection therewith. The allegations by the appellant about laconical autopsy of the dead body without any notice to her or any other family member of the deceased, refusal to return the dead body to them and hasty and secret cremation thereof to remove the otherwise tell tale clues to identify the assassins have been candidly made. As these imputations have been denied by the respondents in their pleadings, we refrain from further dilating thereon. Similarly, both sides have also alleged registration and pendency of criminal cases against the appellant’s husband, respondents No. 4 and 5 involving offences amongst others of murder, attempt to murder etc.

38. Noticeably, however, the appellant since after the murder of her husband had been persistently appealing for investigation by any impartial agency i.e. CBI, expressing without reservation, her doubts about the genuineness and bona fide of the probe being conducted by the state police. She has even alleged the involvement of the state administration and the police in the conspiracy to eliminate her husband and to have remained a mute and inert onlooker at the time of and after the open diabolic and barbaric assassination of her husband. It is a matter of record that at the time of the incident, the Samajwadi Party was in power.

39. It was in this backdrop of events, that the appellant being appalled and exasperated by the perceived failure of the state authorities to affirmatively respond to her request for entrusting the investigation to the CBI and the casual measurers of the state police in that regard that she approached this Court with an application under Article 32 of the Constitution of India for its remedial intervention. By order dated 3.5.2006, however, this Court, as prayed for on her behalf, did permit her to file a writ petition before the High Court seeking an appropriate writ or a direction for transferring the investigation of the case to the CBI. To reiterate, during the pendency of the writ petition that was filed within the time allowed by this Court, on 15.5.2007, the State Government (by then the Bahujan Samaj Party had come to power) decided to hand over the investigation to the CBI and communicated its decision to the Central Government for the needful. The High Court, being apprised of this development, the writ petition was disposed of on 11.7.2007 as in its comprehension, the relief sought for by the appellant had been granted in view of this decision of the state government. As the response of the Central Government was awaited, the appellant on the same very date filed an application for restoration of the writ petition and as the records reveal, the said application was kept pending by the High Court and after the refusal of the Central Government to accede to the request made by the state government on 18.1.2008, the writ petition was finally disposed of on merits by the decision impugned hereunder.

43. The additional documents also include a judgment rendered by the trial court on 2.11.2011 in Sessions Trial No. 749 of 2009, State vs. Ram Chandra Yadav @ Fauji registered on the complaint filed by one Mahendra Patel @ Budhi Lal Patel, who in his cross-examination, retraced from the charge levelled by him against respondent No. 4 and his companions of having threatened and assaulted him so as to pressurize him to change his statement made before the police, lest he and his family be murdered. The complainant Mahendra Patel also was an eye witness to the incident of 25.1.2005 and had been driving the Scorpio vehicle which was following the one in which Raju Pal was travelling. The trial court acquitted the accused mainly in view of the retraction of the statement of the complainant and lack of evidence in support of the charge. Having regard to the present stage of the trial, for obvious reasons, we do not wish to offer any comment on any aspect relatable thereto. It is however noteworthy that some other witnesses of the prosecution including the appellant are yet to be examined by the prosecution.

Police personnel were present at the place of the occurrence. Though present, no report thereof was registered immediately thereafter.

74. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like the CBI, whether or not the probe into a criminal offence by the local/state police is pending or completed, irrespective of as well, the pendency of the resultant trial have concretized over the years, applicability whereof however is contingent on the factual setting involved and the desideratum for vigilant, sensitised and evenhanded justice to the parties.

77. As every social order is governed by the rule of law, the justice dispensing system cannot afford any compromise in the discharge of its sanctified role of administering justice on the basis of the real facts and in accordance with law. This is indispensable, in order to retain and stabilize the faith and confidence of the public in general in the justice delivery institutions as envisioned by the Constitution.

79. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard and fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.

87. The observations though made in the backdrop of repeated adjournments granted by the trial court, chiefly for cross-examination of a witness resulting in the delay of the proceedings, the concern expressed is of overarching relevance demanding sentient attention and remedial response. The poser indeed stems from the indispensable interface of the orderly existence of the society founded on the rule of law and “fair trial” for the accused as well as the prosecution. That the duty of the Court while conducting a trial is to be guarded by the mandate of law, conceptual fairness and above all its sacrosanct role to arrive at the truth on the basis of material brought on record, was reiterated.

The incident understandably is not one to be lightly glossed over or trivialized.

96. We are aware that in the meantime, over a decade has passed. The call of justice however demands, that the CBI in spite of the constraints that it may face in view of the time lag, would make all possible endeavours to disenter the truth through its effective and competent investigation and submit the same before the trial court, as early as possible preferably within the period of six months from today. The clarion call of justice expects a befitting response from the country’s premier and distinguished investigating agency. On receipt of the report by the CBI only, the trial court would proceed therewith in accordance with law and conduct and conclude the trial expeditiously and not later than six months. The interim order staying the ongoing trial is hereby made absolute.

97. The appeal is thus allowed in the above terms.

JANUARY 22, 2016.