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The Uttarakhand High Court recently allowed the petition that sought transfer of custodial death case under Section 302 Penal Code, 1860 from Police Station Haldwani, District Nainital to CBI.
The Single Judge Bench of Justice Ravindra Maithani while issuing the directions in the present case observed that,
“The written words in the Judgments of the Courts and the provisions of right to life, as enshrined in the Indian Constitution, will remain dead letter, if action against erring police officers are not taken by the administration.”
While doing so, the Court stated that, “As held in the case of State of West Bengal (DK Basu) by the Hon’ble Supreme Court that the extraordinary power to transfer investigation must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.”
Factual Matrix:
The petitioner, on March 3, 2021, lodged a report under Sections 323, 504, 345 IPC and Section 9 r/w 10 of the POCSO Act against her husband Pravesh Kumar. Pursuant to this FIR, on March 4, 2021, he was arrested and lodged at Police Station. He was remanded to judicial custody by the court of Additional District Judge/FTC/Special Judge, POCSO, Udham Singh Nagar.
A day after his arrest, in the hospital of Sub-Jail, Haldwani, in its OPD, an entry was made that Pravesh Kumar suddenly fell down on the ground and he was referred to Base Hospital, Haldwani where it was recorded that he was brought dead. Thereafter, his post mortem was conducted which 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 of her husband. However, the injuries were not explained to her.
The 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. Therefore, the petitioner filed the present petition seeking transfer of case to CBI.
The learned counsel for petitioner submitted that,
“FIR in the instant case was not lodged despite repeated requests made by the petitioner. She approached the SSP, Nainital twice but FIR was not lodged. Even the Secretary, DLSA approached SSP, Nainital, but FIR was not lodged. There is only one eye witness, who may be won over by the Police. The deceased died in the judicial custody. The kind of injuries which the deceased sustained reveals the extent of brutality in custody and injuries could not have been caused by felling on the ground or hitting on any surface. It is argued that the petitioner is apprehensive that police may not investigate the matter fairly. Hence, the investigation may be transferred to CBI.”
However, the Learned Advocate General submitted that, there was no provision of law that authorized 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.
What the Court held:
Taking into account the facts of the present case the Bench observed that,
“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. There are considerations, which decide whether investigation should be transferred or not…But, the ground realities in such cases of custodial violence and custodial death cannot be ignored.”
The Bench relied on the various Supreme Court judgments. A few of them being, State of M.P. v. Shyamsunder Trivedi, 1995, D.K. Basu v. State of West Bengal, 2015, Sube Singh v. State of Haryana, 2006, Lalita Kumari v. Government of Uttar Pradesh, 2014 and Mehboob Batcha v. State, 2011.
“FIR in the instant case has already been lodged under the order of the court of competent jurisdiction. Investigation is already underway. Undoubtedly, it is in accordance with the procedure established by law. There are provisions of conducting investigation. It is also true that a party may not choose the agency by which the investigation should be conducted,” observed the Bench.
The Bench subsequently relied on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 and 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 and opined that the instant case mut br transferred to CBI for fair trial and investigation.
Hence, the Court proposed to make recommendation with regard to SSP Nainital, Circle Officer Haldwani and the Guards who were posted at SubJail Haldwani so as to ensure fair investigation and thus the following directions were issued -
[Case title - Bharti v. State of Uttarakhand, 2021]
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