By Deepansh Shukla ~ Institute for Excellence in Higher Education, Bhopal

  • CITATION: Writ Petition (Crl.) No. 141 of 2020
  • Court: Supreme Court of India
  • Bench – Navin Sinha, J., R.F.Nariman, J., Indra Banerjee, J.

Facts of the Case

In the present matter, a 3rd semester BA Student, aggrieved by her expulsion from the hostel, lodged this writ petition. She resided at the college hostel, which is an endorsed college associated with the University of Calicut. Hostel detainees were not authorized to use their cell phones in the hostel from 10 pm to 6 am, and undergraduate students were not authorized to use laptops in the hostel as well. Once more, the period of the cell phone usage limit has been modified from 6 p.m. toward a certain 10 p.m. The petitioner went to meet the Deputy Warden with other hostel inmates to clarify the inconveniences caused by the limitations to them, but she did not answer. Warden sent a What’s App message telling the hostel to be vacated by anyone who does not comply with regulations.

Thereupon, she confronted the Principal and sent a letter asking the constraints to be relaxed. A letter was subsequently received from her in writing to the effect that she was not prepared to comply with the new law limiting phone use between 6 p.m. Towards 10 p.m. Her parents were then expected to visit the Principal and told them that as she failed to comply with the rules, the petitioner would quit the hostel. They released a memo to her ordering her to instantly leave the hostel and held a meeting of the inmates of the hostel where students were notified of the measures undertaken against her and asked to offer their willingness to comply with the limitations in writing. She submitted a letter of leave because, since she had to drive 150 km every day, it was not possible to attend the classes. It was found locked when she reached the hostel to vacate the room, and the hostel administrators did not permit her to take her personal belongings. 

Arguments of the Parties

Arguments put forth by counsel of the petitioner:

Shri Sunil Fernandes, Learned Counsel for the petitioner, emphasised that the university authorities relying on frivolous stories revolving around the student committing suicide due to depression, they did not register the first information report(FIR). When the family of the deceased persuaded the authorities, then nearly ten months later, they filed an FIR.

Further, he advanced his argument by saying the police had a callousness and casualness in the approach, this fact is reflected as neither the crime scene was sealed nor the necessary investigation was done with promptitude by proper examination of relevant witnesses, including CCTV footage, digital footprints, mobile location etc.

Counsel relied on the annexure P-2 of the railway authorities, that during the intervening night five trains had crossed the track and no engine driver had any incident until the body was found the next morning, at 9:00 AM on the railway track. One of the witnesses who went on the railway track at 6:30 because of the call of nature says he did not see any dead bodies at the railway track. There are a number of injuries on the person of the deceased make it evident that it was a homicidal death, not an accidental death.

Testimony of the caretaker of the warehouse has not been recorded, on the frivolous grounds that the owner is deaf, therefore, unreliable. Saying that the counsel said the testimony is not examined, on the ground that he is deaf, is preposterous.

The deceased is stated to have returned back to the hostel. The entry register bore his initials. Yet, one of his friends mentioned that he had made the entry by mistake. Saying that he said sure, this is a matter of further investigation. If the deceased subsequently left the hostel premise alone at 10:30 PM there had to be CCTV visuals at the gate.

The current writ petition was filed, on 20.05.2020 in this court which [1]directed to complete the investigation in two months on 07.08.2020. The final report was to be filed in this court.

Emphasising on the court’s order to complete investigation in two months, the learned counsel said, the investigating officer in hot haste has filed a thoroughly unsatisfactory closure report which raises more questions concerning the nature of the investigation. Learned Counsel asked to set aside the closure report and order a fresh investigation for resolution of the crime and the offender.

The Director-General of Police has been written by the learned counsel on behalf of the petitioner on 10.07.2020 and 11.08.2020. This letter invites the attention of the director-general of police on the several deficiencies in the investigation which yet remained to be enquired. 

Arguments put forth by counsel of the respondent:

Dr Manish Singhvi learned senior counsel appearing for the respondent-State, in his submission said that inquest proceedings under section 174 of the code of criminal procedure, 1973 were commenced promptly. He further mentions, A large number of witnesses have been examined by the special investigation team constituted pursuant to the order of the high court.

While advancing his arguments, he further added there has been no deficiency in the investigation. As per him, all possibilities have been investigated and all the necessary evidence has been collected and analysed. The best efforts have been made, but we cannot find the offenders. Saying that he said there is no need for the court to direct further or fresh investigation. The closure report filed after the investigation should be accepted, as the law makes it the course.

Judgement

In the judgement, the court said the victim cannot be treated as an alien or total stranger to the criminal trial as the court retorted to Rattiram v. the State of M.P., (2012) 4 SCC 516. In a trial perception of the victim and the accused when judged in a social context is necessary to be heard.

The court in the middle statements said that the responsibility of an investigation is to move from the known to the unknown. Its goal is to determine the truth, successful investigations are based on accuracy, sincerity and fidelity in search of facts. Faithfulness, probity and exactness should equally matter. 

In the  Dharam Pal vs. the State of Haryana, (2016) 4 SCC 160, it was noted that the constitutional court has the power to order de novo or fresh investigation. The court said that the trial and witness cannot be an impediment for exercising the said constitutional power meant to uphold the truth and truth means the absence of deceit and absence of fraud.

The Judgement in the language of the judges says- In this manner, the investigation remained inconclusive for nearly three long years with the investigating agency sanguine of passing it off as an accidental death without coming to a firm conclusion avoiding to complete the investigation. It is only when we ordered on 08.07.2020 that the investigation be concluded within two months and the final report is placed before us, that suddenly a very lengthy investigation closure report has been filed before us taking a stand that though the death was homicidal there was no clue.

The closure report is, therefore, to our mind, a clear hasty action leaving much to be desired regarding the nature of the investigation because if a detailed investigation had already been done as is sought to be now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events and needed an order to do so from this Court.

The entire investigation and the closure report, therefore, lack bonafide. The interest of justice therefore requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be.

14. We, therefore, set aside the closure report and direct a de novo investigation by a fresh team of investigators to be headed by a senior police officer of the State consisting of efficient personnel well conversant with the use of modern investigation technology also. No officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation. Much time has passed and there is undoubtedly an urgency in the matter now.

We, therefore, direct that such fresh investigation must be concluded within a maximum period of two months from today and the police report be filed before the court concerned therefore the matter shall proceed in accordance with law.

 The writ petition is allowed.

Analysis of the Judgement:

After hearing both the sides, the respected Court said- We have considered both the parties submission and also very carefully gone through the closure report dated 03.09.2020 filed according to the order dated 08.07.2020. As per the closure report, it is a homicidal death but as per its conclusion, the offender remains unidentified.

The court says as per the closure report there were nine serious injuries on the person of the deceased, the injuries were found to be antemortem in nature. The court further added, there was no blood at the place of occurrence but was seen on his clothes also one sleeper was found at the place of the incident.

As per the counter-affidavit filed on 03.07.2020, it was said that it was an accidental death, the conclusion in the closure report dated 03.09.2020 then does a ‘volte-face’ which acknowledges it as a homicidal death. The court said it does not leave much to the imagination that the deceased was not assaulted at the railway track but elsewhere.

Court further added since we have been submitted a closure report which we are persuaded not to accept. “We shall purposefully refrain for a detailed analysis of the inherent contradictions and the inconclusive nature of the investigation as revealed in the closure report, except to the extent necessary for purposes of the present order. We find substance in the submissions made on behalf of the petitioner with regard to the deficient nature and manner of the investigation carried out by the police leading to the closure report”(Bench of Judges led by justice Navin Sinha).

The Bench regarding investigation further said in normal conditions when an investigation has been concluded, under section 173(2) of the code further investigation can only be considered under section 173(8) of the code. But when the constitutional bench is not satisfied with the investigation, a fresh investigation can be initiated with the help of an independent agency can be considered to secure the ends of justice so that the truth comes to light as observed in Kashmeri Devi Vs. Delhi Administration (1988 Suppl. SCC 482).

The power may also be exercised if the court is of the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. The court may carry De-Novo investigation if a miscarriage of criminal justice is observed as seen in ‘Babubhai vs the State of Gujarat, 2010 (12 SCC 254)’.

The court further said that the investigation must be fair, transparent and judicious as it is the requirement of the rule of law. They added, the investigating agency cannot be permitted to conduct a biased and tainted investigation. Where if the court does not interfere would ultimately result in the failure of justice, the court must interfere. In such cases, an independent agency chosen by the high court should make a fresh investigation.

Court uses Bharati Tamang vs. Union of India, (2013) 15 SCC 578 in which a writ petition was used to quash the charge sheet and a mandamus for a de novo investigation by a special investigating team of competent persons having impeccable credentials. The court relied on  Zahira Habibulla H. Sheikh vs. the State of Gujarat, (2004) 4 SCC 158 to say that courts have the responsibility to ensure that the accused persons are punished and the authority of the state is not used to shield them. The court has to ensure that they do not wield any kind of power which lies only with the state under the constitution.

The court also said if there are deficiencies or covering of the reality, the court must deal with the same with an iron hand.

In the decision of Babubhai v. the State of Gujarat, in para 40, this Court held that the scheme of investigation particularly Section 173(8) CrPC provides for further investigation and not of reinvestigation but held in para 42 as under: (SCC p. 272) Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances .”

This court has the power to constitute a special investigation team and direct the Central, State government to assist if needed in order to book the real convict. Also, if needed in appropriate cases, even the high court can direct the investigation to the CBI. It may also direct the de novo investigation.

Directing the reinvestigation was noticed in the case of Pooja Pal vs. Union of India, (2016) 3 SCC 135. The judgement said- “Any criminal offence is one against the society at large casting an onerous responsibility on the State. As the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse”.

Conclusory Remarks: Author’s Point of View

As per the Author, the writ petition which is allowed by the learned Court was the right decision as per the given facts and evidence. Even if the death was suicidal and the petitioner deserved justice, a fair investigation should have been conducted by the investigating officer. The delay in filing the FIR shows incompetency on the part of the authorities. Also, the investigation after the order of the High Court to investigate within two months. The investigation was done hurriedly by the investigating officer. In the investigation report, it was called accidental in nature. But in the closure report, it is called a homicidal death and the suspects remained unknown. Sudden change in the investigation seems indigestible and suspicious. 

The High Court erred in giving the judgement despite the fact that the FIR was filed after ten months. Also, the investigation was done in a negligent manner which the honourable court did not consider.

Neetu Kumar Nagich v. State of Rajasthan & Ors.

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