Uttaranchal High Court: Ravindra Maithani, J., decided on a petition which was filed seeking transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 Penal Code, 1860, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (“CBI”).
The petitioner, on 03-03-2021, had lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) against her husband and pursuant to which he was arrested and lodged at Police Station. He was remanded to judicial custody on 05-03-2021 by the court of Additional District Judge/FTC/Special Judge, POCSO. On 06-03-2021, in the hospital of Sub-Jail, Haldwani, in its OPD register an entry was made that he suddenly fell down on the ground and he was referred to Base Hospital and later it was recorded that he was brought dead. His post mortem report suggested that there were ten injuries on his body which was not the case when he was taken into custody.
The petitioner was informed about the death but the reason for injury was not explained to her.
Petitioner thereafter moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application to SSP for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry.
The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 and an order was passed, thereafter, FIR under Section 302 IPC at Police Station has been lodged against four named Guards of Sub-Jail, Haldwani. In this case, the petitioner seeks transfer of the investigation to CBI.
Advocate General argues that there is no provision of law that authorizes SSP to get an enquiry conducted by C.O. Haldwani. He further argued that investigation in accordance with law is underway, therefore, the Court should be slow in interfering at this stage and after the outcome of the investigation, if occasion arises, the matter may be considered.
The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. More than 45 days after death of a person in judicial custody. How can a fair investigation be ensured?
Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat.
The Court in this aspect relied on the Supreme Court rulings of State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262, D.K. Basu v. State of West Bengal, (2015) 8 SCC 744, Sube Singh v. State of Haryana, (2006) 3 SCC 178, Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and Mehboob Batcha v. State, (2011) 7 SCC 45.
The Court stressed that it was needless to say that incidences of custodian violence and deaths have come up again and again for adjudication before the higher Courts. The Court quoted the part of judgment in the case of Inhuman Conditions in 1382 Prisons, In Re., (2017) 10 SCC 658.
“Like most societies, we are not strangers to custodial violence and unnatural deaths but our vibrant democracy permits us to debate and discuss these issues with rational arguments. However, right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps. There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavour of the constitutional courts in our country, over several decades, to consistently flag this issue.”
The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031 stated that the power which is vested in the superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution.
The Court finally opined that the instant case was not an ordinary case. Allegations were of custodial death. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which definitely investigation should be transferred to CBI. The Court further issued some directions:
- Investigation in FIR No.261 of 2021 under Section 302 IPC, Police Station Haldwani, District Nainital be immediately transferred to S.P., Central Bureau of Investigation, Dehradun.
- The Investigating Officer shall ensure that all the documents relating to investigation are handed over to S.P., CBI, Dehradun within a period of three days.
- The named accused Devendra Prasad Yadav – Head Guard, Kriti Nainwal – Guard, Devendra Rawat – Guard, Harish Rawat – Guard, at Sub-Jail Haldwani be immediately transferred from Sub-Jail Haldwani to some place outside the district, so as to ensure fair investigation otherwise within those four walls of Sub-Jail Haldwani perhaps nobody would dare to speak the truth and only witness would be those stone walls which unfortunately cannot speak as to what had happened on 06.03.2021, which resulted in the death of deceased Pravesh Kumar.
- SSP Nainital and CO Police Haldwani be considered for their transfer immediately from district Nainital.
- Departmental action, as may be deemed appropriate, be considered to be taken against SSP Nainital who despite under legal obligation to lodge an FIR promptly did not lodge FIR and also without any authority under law directed an enquiry by CO Haldwani in a case of ‘custodial death’.
[Bharti v. State of Uttarakhand, 2021 SCC OnLine Utt 767, decided on 22-07-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
Advocates before the Court:
Advocate for the petitioner: Mr Sanjay Kumar
Advocate for the respondent: Mr S.N. Babulkar, Advocate General