Thursday, 28 January 2016

Distinction between speedy trial and fair trial

 A “speedy trial”, albeit the essence of the fundamental
right to life entrenched in the Article 21 of the Constitution of
India has a companion in concept in “fair trial”, both being in
alienable constituents of an adjudicative process, to culminate
in a judicial decision by a court of law as the final arbiter.
There is indeed a qualitative difference between right to speedy
trial and fair trial so much so that denial of the former by
itself would not be prejudicial to the accused, when pitted
against the imperative of fair trial. As fundamentally, justice
not only has to be done but also must appear to have been
done, the residuary jurisdiction of a court to direct further
investigation or reinvestigation by any impartial agency, probe
by the state police notwithstanding, has to be essentially
invoked if the statutory agency already in-charge of the
investigation appears to have been ineffective or is presumed
or inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. 
Dated;JANUARY 22, 2016.
Citation:2016 CRLJ2038

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.
3. We have heard Mr. R. S. Sodhi, learned senior counsel
for the appellant, Ms. V. Mohana, learned senior counsel for
the respondent Nos. 1 & 2, Mr. P.N.Misra, learned senior
counsel for the respondent No. 3 and Mr. Manoj Goel, learned
counsel for the respondent Nos. 4 and 5.
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. Page 5
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. Page 6
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 spotPage 7
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.Page 8
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
10. The incident received rave media coverage as would be
evident from the following extract of a news item of the daily
“Times of India”: (para No. 21of Writ Petition)
“Eyewitnesses said the assailants, who were
about two dozen in numbers, came in two Tata
sumos and opened indiscriminate fire when the
MLA’s vehicle reached the Chaufatka petrol
pump. Pal, who was in the driver’s seat, was hit
several times in the neck, chest and stomach.
His supporters immediately put him in an auto
and rushed him to a private nursing home in
Rain Bagh area. The assailants, however,
continued firing even on the auto to ensure his
death. At the Fire Brigade crossing, the
assailants again opened fire. Just after reaching
the hospital, Pal succumbed to his injuries. Two
police gunners of Pal reportedly escaped from the
scene.Page 9
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,Page 10
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 toPage 11
the deceased Raju Pal only on 16.1.2005 i.e. hardly a week
before the tragic incident.
13. The appellant has stated as well that having regard to the
perceived involvement of the state administration and the
police in particular, in the perpetration of the crime and their
passive and indifferent disposition in taking steps as required
in law, it was felt by all right minded quarters that
investigation by the C.B.I. was indispensably warranted to
unearth the diabolic plot and identify the persons involved, so
as to ensure an impartial and meaningful enquiry for justice.
In spite of repeated representations, though submitted by the
appellant herself and the then President of the BSP, U.P.
before the Governor, Chief Minister, Chief Secretary etc. of the
State expressing in clear terms that no impartial and
dispassionate probe by the state police was possible in the
facts and circumstances of the case and having regard to the
persons involved, and that the exercise ought to be handed
over to the C.B.I., the same did not meet with any favourable
response.Page 12
14. Instead, as asserted by the appellant, by way of
retaliation to the public outcry against the ruthless and savage
assassination of Raju Pal and his two associates, the police
authorities went berserk in the entire city and they forcibly
trespassed into the houses of such residents, mercilessly
assaulted them, including old women and children, ransacked
their belongings and threatened and intimidated them of dire
consequences if they did not refrain from their agitation for a
C.B.I. inquiry. This high handed action of the police force also
received media coverage, both print and electronic. The writ
petition further discloses that for reasons unfathomable, the
investigation of the incident was soon thereafter transferred
from Station House Officer, Dhoomanganj to a Police Inspector
posted in another police station, in violation of the G.O. No.
DG-7-S (253)/198 dated 21.03.2000.
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 yearPage 13
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 toPage 14
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.Page 15
34/05, Police Station, Dhoomanganj,
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
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 thePage 16
disturbances after the murder of M.L.A. Raju
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.
34- That, the Respondent No. 2, wrote a D.O.
letter on 15.04.2005, to D.I.G. Range, for
transferring the petitioner under suspension
from District Allahabad to any other district,
the respondent No. 2, Shri Sunil Kumar, S.S.P.,
Allahabad, recommended transfer of the
petitioner in the pressure of Atiqe Ahmed,
Member of Parliament who is one of the main
accused in the murder of M.L.A. Raju Pal. True
photo and typed copy of the D.O. letter dated
15.04.2005, of respondent No. 2, is enclosed
herewith and marked as Annexure–6 to this
writ petition.Page 17
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.”Page 18
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.
17. As abovestated, the appellant had approached this Court
earlier, seeking its intervention for an appropriate direction for
investigation of the incident by the CBI. This was, to reiterate,
as the appellant nursed a deep rooted impression, in view of
overwhelming sinister background and the sequence of events
culminating in the gruesome murder of her husband, that the
crime had been committed with the tacit support of the police
administration and covert approval of the authorities in power.
In course of the hearing before this Court in the earlier
proceedings afore-mentioned and registered as Writ Petition
(Crl.) Nos. 118-119 of 2005, the learned counsel for the
appellant sought to withdraw the same, so as to enable her to
file an appropriate writ petition before the High Court seeking
the same relief.Page 19
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 throughPage 20
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.
21. As the records would reveal, the appellant on the very
same date i.e. 11.07.2007 filed an application for restorationPage 21
of the writ petition, contending principally that though the
request had been made by the State Government, a decision in
affirmation of the Central Government, agreeing to the
investigation of the case being conducted by the CBI was
awaited and thus the writ petition ought not to have been
dismissed as infructuous. An application was also filed,
requesting the High Court to list the writ petition for
appropriate orders. As the order sheet of the writ proceedings
before the High Court would disclose, the restoration
application was kept pending, awaiting the decision of the
Central Government on the request of the State Government.
The Government of India, Ministry of Personnel and Public
Grievances and Pension (Department of Personnel and
Training) eventually, vide letter No.228/29/2007 - A.V.D Govt.
of India..….1212/PGS/MS/2008 dated 18.01.2008 declined to
get the case investigated by the CBI. The contents of the letter
would disclose that the decision conveyed thereby was
preceded by an inquiry said to have been made by the
concerned Department in consultation with the CBI.
Pendency of the writ petition filed by the appellant, seeking thePage 22
same relief was also referred to as a consideration. It was
mentioned as well, that the State Government had not stated
any other reason to justify the investigation to be conducted
by the CBI. According to the Central Government, the trial of
the case was pending, the proceedings whereof however have
been stayed by the High Court and that there was no
interstate or international ramification of the case so as to
warrant investigation thereof by the CBI.
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 asPage 23
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.
23. Be that as it may, the High Court eventually by the
impugned judgment and order has dismissed the writ petition.
It held the view that if the appellant was not satisfied with the
charge-sheet submitted by the Civil Police as well as the CB
CID and the materials collected by these two agencies in
course of their separate and independent investigation, and is
also of the view that further investigation was required, or that
some additional evidence was to be collected, she was at
liberty to file an application before the Magistrate concerned to
that effect so as to enable the trial court to pass appropriate
orders thereon. It further held that so far as the adduction ofPage 24
additional evidence was concerned, the appellant would have
every opportunity to produce the same or ask therefor also by
making an appropriate application at the time of trial.
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.Page 25
25. It disclosed as well that after the submission of the
charge-sheet, the case was committed to the Court of Sessions
and was registered as Session Trial No.24/2006 whereafter,
the trial had begun only to be stayed by this Court on
03.05.2006 vide its order to that effect passed in W.P.(Crl.)
No.118-119 filed by the appellant under Article 32 of the
Constitution of India.
26. It mentioned as well that during the pendency of the writ
petition, filed after the disposal of the proceedings before this
Court, the state government had accorded its sanction for
investigation of this case by the CBI and the communication to
this effect was forwarded to the Ministry of Personnel,
Government of India. That however the Government of India
refused to accede to the request, being of the view that it was
not a fit case for investigation for the CBI was stated as well.
27. According to the state government, on such refusal of the
Central Government, it transferred the investigation of the
case to CB CID which after the completion of the investigation
submitted three charge-sheets on 10.01.2009, 04.04.2009 andPage 26
24.12.2009, adding to the array of accused persons and also
the witnesses in support of the charge.
28. While stoutly denying the allegation of indifference and
apathy to secure an impartial and effective investigation and
instead a tacit support of the offending act, it has asserted,
that having regard to the constricted scope of ordering
investigation of a case by the CBI, no such direction as sought
for is warranted in the facts and circumstances of the case. It
has emphatically asserted that the said police as well as the
CBCID had conducted proper investigations and in the
process, did not spare anyone found involved in the incident.
It has denied in emphatic terms, the involvement of the said
machinery in any conspiracy, its support thereto and
intentional distortions in the investigation to bail out the
culprits of the offence. It pleaded that the dead bodies had
been duly received by the concerned family members and that
cremations of Raju Pal was performed by the one of his first
cousins. It has been stated as well that the postmortem
examination of Raju Pal was undertaken by a panel of doctorsPage 27
and that the allegations made by the appellant that the dead
body of her husband was secretly and hastily cremated
without handing over the same to his relations and that the
postmortem examination was deliberately skewed are palpable
falsehood. It also denied the allegation of the appellant that
the respondent No. 4 had sophisticated firearms including
AK-47 and AK-56 had been used in the incident. It disclosed
as well that at the time of his death, there were several
criminal cases registered against Raju Pal including the
offence of murder and attempt to murder and that he had
many enemies who could have shared the motive to liquidate
29. The respondent No. 4 while emphatically denying his
involvement as well as the complicity of his brother in the
incident, in substance accused the appellant of falsely
implicating them as her political rivals and of keeping the
proceedings pending so as to derive political mileage
therefrom. He alleged as well, that the appellant had
deliberately protracted the proceedings inter alia by omittingPage 28
to take necessary steps so as to use the same to promote her
political prospects riding on the sympathy wave induced by
the murder of her husband. The answering respondent has
averred that thereby the appellant has been successful in
getting elected to the State Assembly for two successive terms.
It has been stated further that within a couple of days of the
formation of the Government in the State by the Bahujan
Samaj Party, the State Government did refer the case to the
Central Government for investigation by the CBI and having
failed in its endeavour to do so, they took a conscious
decision to transfer the investigation thereof to the CBCID on
10.12.2008. The answering respondent has emphasized that
the appellant has neither challenged the decision of
transferring the investigation to CBCID nor the charge-sheets
submitted by the said agency on the completion of the said
investigation. According to the answering respondent, the
appellant has also not pointed out any fault or deficiency in
the investigation conducted by the CBCID and that her
insistence for further investigation or reinvestigation by the
CBI is wholly impermissible in law. Page 29
30. The CBI in its turn while reiterating the intervening
developments pertaining to the investigation conducted by the
State Police and the CBCID has pleaded that after a lapse of
10 years from the incident, no purpose would be served by any
investigation by it at this stage. It has averred as well that the
case does not involve any larger public interest or any
interstate or international ramification. That it is already
overburdened with the investigation/inquiry of different cases
entrusted to it by various High Courts and this Court has been
mentioned. It has asserted that having regard to the state of
law laid down by this court and the contingencies in which
investigation by the CBI is called for, the facts and
circumstances of the case do not merit any such direction.
31. In the above contentious premise, Mr. Sodhi has
assiduously argued, that the run up of facts leading to the
merciless murder of the appellant’s husband, the
conspicuous impassive response of the state machinery to
ensure his safety and security as well as the shoddy and
purported investigation by the state police as a casualPage 30
completion of routine formalities, warrant a fair and impartial
probe by the CBI. The learned senior counsel has urged that
the onetime readiness of the State Government to handover
the investigation to the CBI unambiguously reflects its
satisfaction as well of such essentiality to espouse the cause of
even handed justice. According to him, the rejection of the
request of the state government to this effect by the Central
Government is wholly mechanical and without any application
of mind to the factors relevant and germane and thus the
decision to that effect is liable to be adjudged illegal, null and
void. Not only at the point of time when the Central
Government refused to accede to the request for investigation
by the CBI, the Writ Petition filed by the Appellant before the
High Court had been closed, there is nothing on record to even
suggest that any independent endeavour had been made by
the Central Government to make a dispassionate evaluation of
the overall facts thus rendering its decision arbitrary unfair
and unjust. Mr. Sodhi has maintained that not only the
manner in which the daring offence was committed was
shocking to every right minded person of the society; itPage 31
signalled as well, an apparent collapse of the administrative
machinery of a democracy committed to the solemn promise of
guaranteeing protection of life and liberty of its citizens. The
learned senior counsel argued that the cruel and barbaric
crime having been committed in the broad day light in public
view, there are still several eye-witnesses available who are
genuinely willing to testify about the same to bring the real
culprits to book and thus in the interest of fair and impartial
investigation and to obviate any possibility of miscarriage of
justice, it is imperative to entrust the probe to the CBI.
According to Mr. Sodhi, the testimony of the witnesses so far
examined at the trial clearly demonstrate their hostile and
non-cooperative approach which per se suggests that they
must have been won over in between, leaving a bleak chance
for the prosecution to succeed. This unmistakably affirms the
apprehension of the appellant vis-à-vis quality and
authenticity of the investigation undertaken by the state police
and the CBCID, he urged. Page 32
32. The learned senior counsel maintained that if the
formalities of the trial with the materials so far collected in the
investigation are allowed to be completed being unmindful of
the consequences thereof, it would be a travesty of justice and
a servile subjugation of the process of law to the minatory
reflexes of the daring and audacious violators of law.
Reiterating the imputations made in the writ petition vis-à-vis
the role of the state instrumentalities and the police in
particular, as well as the culpability of respondent Nos. 4 & 5,
Mr. Sodhi has argued that entrustment of the investigation to
the CBI would not prejudice the respondents in any manner
and that it would secure the obligatory requirement of a fair,
effective and impartial inquisition, more particularly when
witnesses of the incident are still available, but need to be
appropriately identified, interrogated and assured of their
safety to disclose the truth. Mr. Sodhi has argued that it is a
fit case for the judiciary to intervene both in the individual as
well as social perspectives in order to discourage such
villainous outrages and sustain a just and law abiding
citizenry. He rested his submissions on the followingPage 33
decisions: Zahira Habibulla H. Sheikh and Anr. vs. State
of Gujarat and Ors. (2004)4 SCC 158, State of West Bengal
and others vs. Committee for Protection of Democratic
Rights, West Bengal and others (2010)3 SCC 571,
Babubhai vs. State of Gujarat and others (2010)12 SCC
254, Mohd. Hussain alias Julfikar Ali vs. State
(Government of NCT of Delhi) (2012)9 SCC 408, Bharati
Tamang vs. Union of India and others (2013)15 SCC 578.
33. Mr. Misra, learned senior counsel representing the State
not only dismissed emphatically the allegations of tacit
involvement of the administration and the police in the design
and execution of the offence as alleged in order to eliminate
the appellant’s husband, he argued as well, that the decision
to handover the investigation of the case to the CBI does not
only neuter such accusation, but also establish irrefutably the
bona fide of the state government.
34. The learned senior counsel pointed out that in absence of
any allegation whatsoever of the appellant against the
investigation conducted by the CBCID, her persistent requestsPage 34
for transferring the investigation to the CBI is fallacious and
unsustainable in law. Mr. Misra has maintained that not only
the insistence for the transfer of the investigation to the CBI,
in the face of successive probes made by the state police and
the CBCID is uncalled for in absence of any deficiency or
defect decipherable therein, it is impermissible as well, at this
belated stage. Mr. Misra has argued that even otherwise such
a transfer of investigation even if allowed, it would be fatal for
the prosecution as at this distant point of time not only the
witnesses would be unavailable and even if available they
would decline to testify. The learned senior counsel has urged
as well that as the trial is pending and the respondent Nos. 4
& 5 and other accused persons are subjected thereto, the
relief sought for by the appellant is prematured as well.
35. Mr. Goel representing respondent Nos. 4 & 5 while
supplementing the assertions made on behalf of the State has
submitted that the introduction of a fresh investigating
agency, at this stage is not only impermissible in law but also
would have the potential of protracting the trial further, inPage 35
violation of the fundamental right to life of his respondents as
guaranteed by Article 21 of the Constitution of India.
Reiterating that the facts do not demonstrate a faulty or
incomplete investigation by either the state police or the
CBCID, the learned counsel has maintained that the appellant
has resorted to this delaying tactics to promote her election
prospects and political future. While underlining that the writ
petition filed by the Investigating Officer Parsuram Singh
alleging pressure on him by his higher ups to misdirect the
investigation, has meanwhile been dismissed on merits, the
learned senior counsel argued that the averments even if
accepted to be true, did in fact vouchsafe the fairness and
impartiality of the investigation conducted by the state police.
Mr. Goel has urged that as the trial is pending, any
intervention of this Court to induct another investigating
agency on the basis of deductions made from the testimony of
hostile witnesses, would amount to unwarranted interference
with the trial which would be highly prejudicial to the parties.
Reiterating that the present initiative of the appellant is clearly
a political vendetta against the private respondents being herPage 36
rivals, the learned counsel has asserted that there is neither
any exceptional circumstance nor any justifiable reason in law
to direct a reinvestigation by the CBI when the trial is
underway. He dismissed the authorities cited on behalf of the
appellant as inapplicable to the facts of the case, being
rendered in the textual facts disclosing vitiation of trials. The
following decisions were cited to buttress the above pleas:
(i) State of West Bengal and others vs. Sampat Lal and
others (1985) 1 SCC 317;
(ii) Vineet Narain and others vs. Union of India and
another (1996) 2 SCC 199
(iii) Union of India and others vs. Sushil Kumar Modi
and others (1998) 8 SCC 661,
(iv) Common Cause, A Registered Society vs. Unon of
India and others (1999)6SCC 667
(v) Secretary, Minor Irrigation & Rural Engineering
Services, U.P. and Others vs. Sahngoo Ram Arya and
Anr. (2002)5 SCC 521
(vi) State of West Bengal and Ors. vs. Committee for
Protection of Democratic Rights, West Bengal and
Ors. (supra)
(vii) Disha vs. State of Gujarat & Ors. (2011)13 SCC 337 Page 37
(viii) K.V. Rajendran vs. Superintendent of Police, CBCID
South Zone, Chennai and Ors. (2013) 12 SCC 480
(ix) Hussainara Khatoon & others vs. Home Secretary,
State of Bihar (1980)1 SCC 81
(x) Abdul Rehman Antulay and others vs. R.S. Nayak
and another (1992)1SCC 225
(xi) P. Ramachandra Rao vs. State of Karnataka
(2002)4SCC 578
(xii) Vakil Prasad Singh vs. State of Bihar (2009)3SCC 355
(xiii) Kashmeri Devi vs. Delhi Administration and another
1988 (Suppl.) SCC 482
(xiv) Gudalure M.J. Cherian and others vs. Union of India
and others (1992) 1 SCC 397
(xv) Punjab and Haryana High Court Bar Association,
Chandigarh through its Secretary vs. State of
Punjab and others (1994)1SCC 616
(xvi) Inder Singh vs. State of Punjab and others
(1994)6SCC 275
(xvii) Rubabbuddin Sheikh vs. State of Gujarat and others
(2010) 2 SCC 200
36. Ms. Mohana representing the Union of India endorsed its
decision of not entrusting the investigation to the CBI and
contended that the facts and circumstances did not
convincibly demonstrate any flaw in the investigationPage 38
undertaken by the state police or the CBCID. In support of
this assertion, she relied upon the decisions of this Court in
Committee for Protection of Democratic Rights (supra),
K. Saravanan Karuppasamy and another vs. State of
Tamil Nadu and Ors. (2014) (10) SCC 406, Sudipta Lenka
vs. State of Odisha and Others. (2014) 11 SCC 527.
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 respondentPage 39
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,Page 40
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 statePage 41
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 hadPage 42
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.
40. Though a period of seven years intervened, a perusal of
the record of the writ proceedings, however, does not
demonstrate any deliberate inaction or laches on the part of
the appellant to enter a finding of intentional delay on her partPage 43
to procrastinate the same for extracting any benefit to her
41. This Court, while disposing of the earlier writ petition
being W.P. (Crl.) Nos. 118-119 of 2005 on 3.5.2006 had stayed
the trial of the case which by then had commenced following
the submission of the charge-sheet by the state police on
8.4.2005. During the pendency of the writ petition before the
High Court and consequent upon the refusal by the Central
Government to refer the investigation to the CBI, the state
government entrusted the exercise to CBCID, which on
completion of the drill submitted three charge-sheets on
10.1.2009, 4.4.2009 and 24.12.2009. A conjoint reading of
the charge-sheets submitted by the two investigating agencies
would thus reveal that along with respondent Nos. 4 and 5,
several other persons have been arraigned as accused adding
to the list of those challenged by the state police. Further,
CBCID has also added to the list of witnesses in its
charge-sheets. Corresponding to these final reports submitted
by the investigating agencies, Sessions Trial Case Nos.Page 44
13/2006, 14/2006, 15/2006 and 24/2006 are pending for
analogous trial, the proceedings whereof being presently
stayed pursuant to the order dated 3.5.2006 of this Court in
W.P. (Crl.) Nos. 118-119 of 2005 and thereafter the order
dated 13.2.2015 passed in the present appeal.
42. In the course of the arguments, attention of this Court
has been drawn to the additional documents filed on behalf of
the appellant pertaining to the trial so far held and also the
parallel criminal cases registered on the accusation of threats
being extended to the eye witnesses of the incident. On a
cursory perusal of the testimony of witnesses so far examined
at the trial, it prima facie appears therefrom that though all of
them were present at that time at the spot when the offence
was committed, none of them has identified the accused
persons standing trial including the respondent Nos. 4 and 5
to be/or among the assailants. Some of the witnesses, who
were also injured in the incident, after being declared hostile
by the prosecution, have even resiled from their statements
under Section 161 of the Code made before the police.Page 45
Significantly, however the witnesses have admitted the
occurrence in which the appellant's husband had been shot
at, following which he had succumbed to the injuries
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 obviousPage 46
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.
44. Be that as it may, the issue that demands to be
addressed is the necessity or otherwise of further investigation
or reinvestigation by the CBI in view of the overall conspectus
of facts and the state of law. Admittedly, more than a decade
has elapsed in between, and in the interregnum, successive
investigations have been conducted by the state police and
CBCID, following which four charge-sheets have been
submitted arraigning respondent Nos. 4 and 5 and others as
accused with the supporting material gathered in course of the
probe to prove the charge levelled against them. It is
noticeable as well that the appellant as well has not
highlighted any defect, omission or deficiency in the
investigation conducted by the CBCID, likely to adversely
impact upon the outcome of the trial therefor. Page 47
45. These notwithstanding, it would still be, in our opinion,
imperative to examine as to whether for doing complete justice
and enforcing the fundamental rights guaranteed by the
Constitution, the relief of entrustment of the investigation of
the case again to the CBI is grantable or not on its own
merits. This is chiefly, in view of the intrepid, audacious and
fiendish intrusion of human right by the assassins in broad
day light at a public place, by defiantly violating all canons of
law and making a mockery of the administrative regime
entrusted with the responsibility to maintain an orderly
society. The terrorising impact of this incident and the
barbaric manner of execution of the offence is also a factor
which impels this Court to undertake such a scrutiny in the
interest of public safety, a paramount duty entrusted to all the
institutions of governance of our democratic polity. This is
more so, where a grisly and intimidatory crime impacting upon
the public confidence in the justice delivery system as a whole
is involved, so as to ensure that such outrageous do not go
incautiously, unfathomed and unpunished.Page 48
46. The authorities cited at the Bar present the precedential
spectrum of the curial jurisprudence in the context of
entrustment of investigation to an instrumentality other than
the local/state police agencies.
47. In Zahira Habibulla H. Sheikh (supra), commonly
adverted to as “Best Bakery Case” on the theme, the aspects
of perfunctory and partisan role of the investigating agency as
well as improper conduct of the trial involved by the public
prosecutor surfaced for scrutiny. Though the trial was over
resulting in acquittal of the accused persons mainly as the
purported eye-witnesses had resiled from the statements made
by them under Section 161 Cr.P.C. (hereinafter to be referred
to as “the Code”) during the investigation coupled with faulty
and biased investigation and laconical trial, this Court
responded to the request for a fresh trial made by the State
and one of the eye-witnesses, Zahira. It was pleaded inter alia
that when a large number of witnesses have turned hostile, it
ought to raise a reasonable suspicion that they were being
threatened or coerced. Apart from alleging that thePage 49
prosecution did not take steps to protect the star witnesses, it
was contended as well that the trial court had failed to
exercise its power under Section 311 of the Code to recall and
reexamine them as their testimony was essential to unearth
the truth and record a just decision in the case.
48. The casual decision of the public prosecutor to drop a
material witness, a measure approved by the trial court also
came to be criticized. The lapse of non-examination of the
injured eye-witnesses, who were kept away from the trial, was
also highlighted. It was alleged that the partisan witnesses
had been examined to favour the accused persons resulting in
a denial of fair trial.
49. This Court in the above disquieting backdrop, did
underline that discovery, vindication and establishment of
truth were the avowed purposes underlying the existence of
the courts of justice. Apart from indicating that the principles
of a fair trial permeate the common law in both civil and
criminal contexts, this Court underscored the necessity of a
delicate judicial balancing of the competing interests in aPage 50
criminal trial - the interests of the accused and the public and
to a great extent that too of the victim, at the same time not
losing the sight of public interest involved in the prosecution of
persons who commit offences.
50. It was propounded that in a criminal case, the fate of the
proceedings cannot always be left entirely in the hands of the
parties, crimes being public wrongs in breach and violation of
public rights and duties, which affect the whole community
and are harmful to the society in general. That the concept of
fair trial entails the triangulation of the interest of the
accused, the victim, society and that the community acts
through the state and the prosecuting agency was
authoritatively stated. This Court observed that the interests
of the society are not to be treated completely with disdain and
as persona non grata. It was remarked as well that due
administration of justice is always viewed as a continuous
process, not confined to the determination of a particular case
so much so that a court must cease to be a mute spectator
and a mere recording machine but become a participant in thePage 51
trial evincing intelligence and active interest and elicit all
relevant materials necessary for reaching the correct
conclusion, to find out the truth and administer justice with
fairness and impartiality both to the parties and to the
51. While highlighting the courts’ overriding duty to maintain
public confidence in the administration of justice, it was
enunciated as well, that they cannot turn a blind eye to
vexatious and oppressive conduct, discernable in relation to
the proceedings. That the principles of rule of law and due
process are closely linked with human rights protection,
guaranteeing a fair trial, primarily aimed at ascertaining the
truth, was stated. It was held as well, that the society at large
and the victims or their family members and relatives have an
inbuilt right to be dealt fairly in a criminal trial and the denial
thereof is as much injustice to the accused as to the victim
and the society. Dwelling upon the uncompromising
significance and the worth of witnesses in the perspective of aPage 52
fair trial, the following revealing comments of Bentham were
extracted in paragraph 41:
“41. “Witnesses”, as Bentham said: are the eyes and
ears of justice. Hence, the importance and primacy
of the quality of trial process. If the witness himself
is incapacitated from acting as eyes and ears of
justice, the trial gets putrefied and paralysed, and it
no longer can constitute a fair trial. The
incapacitation may be due to several factors like the
witness being not in a position for reasons beyond
control to speak the truth in the court or due to
negligence or ignorance or some corrupt collusion.
Time has become ripe to act on account of
numerous experiences faced by courts on account
of frequent turning of witnesses as hostile, either
due to threats, coercion, lures and monetary
considerations at the instance of those in power,
their henchmen and hirelings, political count and
patronage and innumerable other corrupt practices
ingeniously adopted to smother and stifle truth and
realities coming out to surface rendering truth and
justice to become ultimate causalities. Broader
public and societal interests require that the victims
of the crime who are not ordinarily parties to
prosecution and the interests of State represented
by their prosecuting agencies do not suffer even in
slot process but irreversibly and irretrievably, which
if allowed would undermine and destroy public
confidence in the administration of justice, which
may ultimately pave way for anarchy, oppression
and injustice resulting in complete breakdown and
collapse of the edifice of rule of law, enshrined and
jealously guarded and protected by the
Constitution. There comes the need for protecting
the witness. Time has come when serious and
undiluted thoughts are to be bestowed forPage 53
protecting witnesses so that ultimate truth is
presented before the court and justice triumphs and
that the trial is not reduced to a mockery. The
State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases
involving those in power, who have political
patronage and could wield muscle and money
power, to avert the trial getting tainted and derailed
and truth becoming a causality. As a protector of
its citizens it has to ensure that during a trial in
court the witness could safely depose the truth
without any fear of being haunted by those against
whom he has deposed.”
52. It was underlined that if ultimately the truth is to be
arrived at, the eyes and ears of justice have to be protected so
that the interest of justice do not get incapacitated in the
sense of making the proceedings before the courts, mere mock
trials. While elucidating that a court ought to exercise its
powers under Section 311 of the Code and Section 165 of the
Evidence Act judicially and with circumspection, it was held
that such invocation ought to be only to subserve the cause of
justice and the public interest by eliciting evidence in aid of a
just decision and to uphold the truth. It was proclaimed that
though justice is depicted to be blindfolded, it is only a veil not
to see who the party before it is, while pronouncing judgmentPage 54
on the cause brought before it by enforcing the law and
administer justice and not to ignore or turn the attention away
from the truth of the cause or the lis before it, in disregard of
its duty to prevent miscarriage of justice. That any
indifference, inaction or lethargy displayed in protecting the
right of an ordinary citizen, more particularly when a
grievance is expressed against the mighty administration,
would erode the public faith in the judicial system was
underlined. It was highlighted that the courts exist to do
justice to the persons who are affected and therefore they
cannot afford to get swayed by the abstract technicalities and
close their eyes to the factors which need to be positively
probed and noticed. The following statement in Jennison vs.
Baker, (1972) 1 All ER 997 was recalled:
“The law should not be seen to sit by limply, while
those who defy it go free, and those who seek its
protection lose hope.”
53. It was declared that the courts have to ensure that the
accused persons are punished and that the might or the
authority of the state is not used to shield themselves andPage 55
their men and it should be ensured that they do not wield
such powers, which under the Constitution has to be held
only in trust for the public and society at large. That if any
deficiency in investigation or prosecution is visible or can be
perceived by lifting the veil covering such deficiency, the
courts have to deal with the same with an iron hand
appropriately within the framework of law was underlined.
54. Referring to its earlier decision in Karnel Singh vs.
State of M.P. (1995) 5 SCC 518, it was reiterated that in a
case of a defective investigation, the court has to be
circumspect in evaluating the evidence and may have to adopt
an active and analytical role to ensure that truth is found by
having recourse to Section 311 of the Code or at a later stage
also resorting to Section 391 instead of throwing hands in the
air in despair. It recalled as well its observations in Ram
Bihari Yadav v. State of Bihar & others, (1998) 4 SCC 517
that the courts are installed for justice oriented mission and
thus if a negligent investigation or omissions or lapses due to
perfunctory investigation are not effectively rectified, the faithPage 56
and confidence of the people would be shaken in the law
enforcing agency and also in the institution devised for
administration of justice.
55. Though, as referred to hereinabove, trial was completed
and the accused persons were acquitted, in the textual facts,
this Court did direct retrial as prayed for, to avoid subversion
of the justice delivery system and ordered the investigating
agency or those supervising the investigation to act in terms of
Section 173(8) of the Code as the circumstances would so
56. The observations and the propositions, though made in
the backdrop of a request for retrial, those pertaining to the
essentiality of a fair and complete investigation and trial as
well as the solemn duty of the courts to ensure the
discernment of truth to administer even handed justice as
institutions of trust of public faith and confidence, are in our
estimate, of universal application and binding effect,
transcending the factual settings of a case. An adverse
deduction vis-à-vis the quality of investigation and/a trialPage 57
trivializing the cause of justice, is however the essential
pre-requisite, for such remedial intervention by way of further
investigation, reinvestigation, additional evidence, retrial etc.
to be made objectively but assuredly for the furtherance of the
salutary objectives of the justice dispensing system as
contemplated in law, it being of paramount pre-eminence.
57. This Court in Mohd. Hussain @ Julifikar Ali (supra)
was also seized of a situation imploring for a retrial following
the termination of the prosecution principally on account of
delay, when juxtaposed to the demand for justice in cases
involving grave crimes affecting the society at large. The
offence involved was under Sections 302/307/120B IPC and
Sections 3 and 4 of the Explosive Substances Act, 1908 and
had perpetrated an explosion in a passenger carrying bus.
This Court amongst others recalled its observations in Kartar
Singh vs. State of Punjab (1994) 3 SCC 569 that while
dispensing justice, the courts should keep in mind not only
the liberty of the accused but also the interest of the victim
and their near and dear ones and above all the collectivePage 58
interest of the community and the safety of the nation, so that
the public, may not lose faith in the system of judicial
administration and indulge in private retribution. It however
also took note of its ruling in State of M.P. vs. Bhooraji and
others (2001) 7 SCC 679 that a de novo trial should be the
last resort and that too only when such a course becomes
desperately indispensable and should be limited to the
extreme exigency to avert a failure of justice. It noted with
approval the observation in P. Ramachandra Rao (supra)
that it is neither advisable nor feasible nor judicially
permissible to draw or prescribe an outer limit for conclusion
of all criminal proceedings and that the criminal courts are not
obliged to terminate the trial or criminal proceedings merely
on account of lapse of time. That such time limits cannot and
will not by themselves be treated by any court as a bar to
further continuance of the trial or proceedings or to terminate
the same and acquit or discharge the accused, was
emphatically underlined. Reference too was made of the
decision in Zahira Habibulla H. Sheikh (supra). Page 59
58. Vis-à-vis the notions of ‘speedy trial’ and ‘fair trial’ as the
integral constituents of Article 21 of the Constitution of India,
it was observed that there was a qualitative difference between
the right to speedy trial and the right of the accused to fair
trial. While pointing out that unlike the accused’s right of fair
trial, the deprivation of the right to speedy trial does not per se
prejudice the accused in defending himself, it was proclaimed
that mere lapse of several years since the commencement of
prosecution by itself, would not justify the discontinuance of
prosecution or dismissal of the indictment. It was stated in no
uncertain terms, that the factors concerning the accused’s
right to speedy trial have to be counterpoised with the impact
of the crime on the society and the confidence of the people in
the judicial system. It was noted that speedy trial secures
rights to an accused but it does not preclude the rights of
public justice. It was exposited that the nature and gravity of
the crime, persons involved, social impact and societal needs
must be weighed along with the right of the accused to speedy
trial and if the balance tilts in favour of the former, the long
delay in conclusion of trial should not operate against thePage 60
continuation of the prosecution but if the right of the accused
in the facts and circumstances of the case and the exigencies
or situation leans the balance in his favour, the prosecution
may be brought to end. It was held that the guiding factor for
a retrial essentially has to be the demand of justice. It was
emphasized that while protecting the right of an accused to
fair trial and due process of law, the interest of the public at
large who seek protection of law ought not to be altogether
overlooked so much so, that it results in loss of hope in the
legal system. Retrial in the facts of the case was ordered.
59. The content and scope of the power under Article 226 of
the Constitution of India to direct investigation by the CBI in a
cognizable offence, alleged to have taken place within the
territorial jurisdiction of the State, without the consent of the
State Government fell for scrutiny of this Court in Committee
for Protection of Democratic Rights (supra).
60. While examining the issue in the context of the power of
judicial review as embedded in the constitutional scheme, it
was held that no Act of Parliament could exclude or curtail thePage 61
powers of the constitutional courts in that regard. Reiterating,
that the power of judicial review, is an integral part of the
basic structure of the Constitution, it was underlined that the
same was essential to give a pragmatic content to the
objectives of the Constitution embodied in Part III and other
parts thereof. In elaboration, it was held that Article 21 of the
Constitution not only takes within its fold, the enforcement of
the rights of the accused but also the rights of the victim. It
was predicated that the State has a duty to enforce the human
rights of the citizens providing for fair and impartial
investigation, against any person accused of commission of
any cognizable offence. Referring to Section 6 of the Delhi
Special Police Establishment Act, 1946, it was ruled that any
restriction imposed thereby could not be construed to be one
on the powers of the constitutional courts and thus cannot be
taken away or curtailed or diluted thereby. While proclaiming
the supervening powers of the High Court under Article 226 of
the Constitution of India to direct, entrustment of the
investigation to the CBI as in the case involved, this Court
sounded a caveat as well that the very plentitude of suchPage 62
power inheres a great caution in its exercise and though no
inflexible guidelines can be laid down in that regard, the same
has to be invoked sparingly, cautiously and in exceptional
situation when it becomes necessary to provide credibility and
to instill confidence in the investigation 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. (emphasis supplied)
61. The facts in Bharati Tamang (supra) seeking de novo
investigation, present somewhat an identical fact situation.
The appellant’s husband, President of a political party was
brutally murdered in public view and in the presence of police
and security personnel by the supporters of the rival party.
The investigation into the sordid incident had been completed.
Alleging that the probe initially held by the state police and
thereafter by the CID and by the CBI were faulty, the prayer
for de novo inquisition was made. Imputation of attempts by
the prosecution to suppress the truth in spite of the fact that
the assailants were identified and named in the FIR and that
the incident was in effectuation of a deep rooted conspiracy
and preceded by previous threats were made. The CBI in its
pleadings, inter alia, cited,
(i) prevailing law and order situation in the town;
(ii) abscondence of most of the accused persons;
(iii) murder of its informants;
(iv) fear psychosis in the locality and resultant want of
support from the local public
as hindrances to its investigation.
62. On behalf of the appellant, accusation of tardy
prosecution of the case, and free and open movement of the
key accused persons in the city avoiding arrest were made as
well. The plea of the impleaded accused persons that the
appellant after the demise of her husband had initiated the
writ proceedings for political gain was rejected. Their
contention based on Section 319 of the Code that in course of
the trial, on availability of sufficient evidence, any person not
being an accused could be ordered to be tried, was also
negated. The propositions expounded in Zahira Habibulla H.
Sheikh (supra) qua the duty of the court to ensure fair
investigation by remedying the deficiencies and defaults therein
so as to bring forth full and material facts to prevent
miscarriage of justice were reiterated. It was concluded that
when the courts find extra ordinary or exceptional
circumstances rendering reinvestigation imperative, in such
eventualities even de novo investigation can be ordered. While
ruling that in case of discernable deficiency in investigation or
prosecution, the courts have to deal with the same with iron
hand appropriately with the framework of law, it was
underlined that in appropriate cases even, if charge-sheet was
filed, it was open for the High Court and also this Court to
direct investigation of the case to be handed over to CBI or to
any other agency or to direct investigation de novo in order to
do complete justice, in the facts of the case.
63. Noticing that certain transcripts of some conversations
relating to the incident intercepted by the CBI were awaiting
analysis by the forensic agency as a part of the investigation,
this Court in the ultimate, transferred the case beyond the
territorial limits of the district involved and directed that the
probe be carried out by the CBI to be monitored by its Joint
Director as named. It was ordered that the CBI would ensure
that all required evidence is gathered by leaving no stone
unturned, so that all accused involved in the offence are
brought for trial to be dealt with in accordance with law. The
trial that had meanwhile commenced was kept in abeyance
pending conclusion of the further investigation by the CBI and
the submission of report before the transferred court as
ordered. Not only in issuing these directions this Court
revisited the imperatives bearing on the duty of the Court to
ensure that criminal prosecution is carried out effectively and
the perpetrators of the crime are duly punished by the
appropriate court of law, it noticed as well some of the factual
features of the case namely;
(i i The deceased at his death was the President of a
political party.
(iii There was a deep rooted rivalry between his party
and another party.
(iiii The deceased had organized a meeting of his party
on the date of the incident.
(ivi Police personnel were present at the place of the
occurrence. Though present, no report thereof
was registered immediately thereafter.
(vi Wide coverage of the incident by the media.
(vii Availability of the transcripts of the intercepted
conversations of some of the accused persons and
the office bearers of the rival political party.
64. This Court in Babubhai (supra) while examining the
scope of Section 173(8) of the Code, did recall its observations
in Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1,
that it is not only the responsibility of the investigating agency
but as well as of the courts to ensure, that investigation is fair
and does not in any way hamper the freedom of an individual
except in accordance with law. It underlined, that the equally
enforceable canon of criminal law is that high responsibility
lies upon the investigating agency, not to conduct an
investigation in a tainted and unfair manner and that such a
drill should not prima facie be indicative of a biased mind and
every effort should be made to bring the guilty to law de hors
his position and influence in the society as nobody stands
above law. It propounded that the word “ordinarily” applied
under Section 173(8) of the Code, did attest that if the
investigation is unfair and deliberately incomplete and has
been done in a manner with an object of helping a party, the
court may direct normally for further investigation, and not for
reinvestigation. It was however added as a sequiter that in
exceptional circumstances, the court in order to prevent the
miscarriage of criminal justice, and if it is considered
necessary, may direct for de novo investigation as well. It was
observed that if an investigation has not been conducted fairly,
the resultant charge sheet would be invalid. It was held as
well, that such investigation would ultimately prove to be a
precursor of miscarriage of criminal justice and the court in
such a contingency would be left to guess or conjecture, as the
whole truth would not be forthcoming to it. It was held that
fair investigation is a part of the constitutional rights
guaranteed under Articles 20 and 21 of the Constitution of
India and thus the investigating agency cannot be permitted to
conduct an investigation in a tainted or biased manner. It was
emphasised that where non-interference of the court would
ultimately result in failure of justice, the court must interfere
and in the interest of justice choose an independent agency to
make a fresh investigation.
65. In Rubabbuddin Sheikh (supra) as well, though as
many as eight action reports had been submitted by the state
police on the incident of reported murder of the brother of the
petitioner in a fake encounter and the disappearance of his
sister-in-law in which, amongst other, allegedly the
anti-terrorist squad of the state police was involved, a
proceeding was initiated on the basis of a letter addressed to
the Chief Justice of India seeking a direction for investigation
by the CBI. In view of the rival contentions advanced as to the
permissibility or otherwise of the transfer of the investigation
as prayed for, this Court on an in-depth audit of the decisions
rendered by it, did negate the plea that subsequent to the
submission of a charge sheet, the court is not empowered in
any case whatsoever to handover the investigation to an
independent agency like CBI. It was held, having regard to the
parameters outlined by the two sets of authorities on the
issue, that such a course however would be permissible in an
appropriate case where the facts bearing thereon would
demonstrate lack of proper investigation and vitiations thereof
by factual discrepancies endorsing such a deduction. The
aspect that accusations in the contextual facts were directed
against the local police personnel in which high police officials
of the state had been made accused also did weigh with the
determination. The view taken in Gudalure M.J. Cherian
(supra) that though ordinarily, after the investigation is
completed by the police and charge sheet is submitted to the
court, the investigation ought not to be re-opened by
entrusting the same to a specialized agency like CBI,
nevertheless in a given situation, to do justice between the
parties and to instill confidence in the public mind it may be
warranted, was noted with approval. The overriding
imperative of permitting transfer of investigation to the CBI
was thus acknowledged to be in the advancement of the cause
of justice and to instill confidence in the mind of the victims as
well as the public.Page 70
66. The renderings in Hussainara Khatoon (supra), A.R.
Antulay (supra), P. Ramachandra Rao (supra), Vakil
Prasad (supra), Sampat Lal (supra), Babubhai (supra) and
Common Cause (supra) have been pressed into service on
behalf of the respondent Nos. 4 & 5 to highlight the demand of
speedy trial as a mandate of the fundamental right to life
guaranteed under Article 21 of the Constitution of India.
While emphasizing that speedy trial is the essence of criminal
justice and any delay constitutes denial thereof, it has been
propounded therein, that any procedure which does not
ensure a quick trial cannot be regarded as reasonable, fair or
just and would fly in the face of such cherished constitutional
promise. While observing that the right to speedy trial
encompasses all the stages namely; investigation, inquiry,
trial, appeal, revision and retrial, it was however noted in P.
Ramachandra Rao (supra) that no guidelines for a speedy
trial can be intended to be applied as hard rules or a straight
jacket formula and that their application would depend on the
fact situation of each case, which is difficult to foresee, so
much so that no generalization can be made. It was
expounded as well in the Sampat Lal (supra) that in spite of
the procedure laid down in the relevant provisions of the
Criminal Procedure Code, a court, in a given case, if is
satisfied that the statutory agency has not functioned in an
effective way or that the circumstances are such that it may
reasonably be presumed or inferred that it may not be able to
conduct the investigation fairly or impartially, the court may
reasonably consider to supplement the procedure.
67. While recalling its observation in State of Bihar and
another vs. JAC Saldanha and others (1980) 1 SCC 554,
that on a cognizance of the offence being taken by the court,
the police function of investigation comes to an end subject to
the provision contained in Section 173(8) of the Code and that
the adjudicatory function of the judiciary commences, thus
delineating the well demarcated functions of crime detection
and adjudication, this Court did recognize a residuary
jurisdiction to give directions to the investigating agency, if
satisfied that the requirements of law were not being complied
with and that the investigation was not being conducted
properly or with due haste and promptitude. It was reiterated
in Babubhai (supra) that in exceptional circumstances, the
court in order to prevent the miscarriage of criminal justice,
may direct investigation de novo, if it is satisfied that
non-interference would ultimately result in failure of justice.
In such an eventuality endorsement of the investigation to an
independent agency to make a fresh probe may be well
merited. That not only fair trial but fair investigation is also a
part of the constitutional rights guaranteed under Articles 20
& 21 of the Constitution of India and therefore investigation
ought to be fair, transparent and judicious, was reemphasised.
The expression “ordinarily” as used in Section 173(8) of the
Code was noted again to rule that in exceptional
circumstances however, in order to prevent miscarriage of
criminal justice, a court may still direct investigation de novo.
The above postulations being strikingly common in all these
decisions, do pervade the fabric and the content thereof and
thus dilation of individual facts has been avoided.Page 73
68. That the extra-ordinary power of the constitutional
courts under Articles 32 and 226 of the Constitution of India
qua the issuance of direction to the CBI to conduct
investigation must be exercised with great caution was
underlined in Committee for Protection of Democractic
Rights (supra) as adverted to hereinabove. Observing that
although no inflexible guidelines can be laid down in this
regard, it was highlighted that such an order cannot be
passed as a matter of routine or merely because the party has
levelled some allegations against the local police and can be
invoked in exceptional situations where it becomes necessary
to provide credibility and instill 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
69. In Kashmeri Devi (supra), being satisfied, in the
prevailing facts and circumstances that effort had been made
to protect and shield the guilty officers of the police whoPage 74
allegedly had perpetrated the offence of murder involved, this
Court directed the Magistrate concerned before whom the
charge sheet had been submitted, to exercise its power under
Section 173(8) of Code to direct the CBI for proper and
thorough investigation of the case and to submit an additional
charge-sheet in accordance with law.
70. In Godalure M.J. Cherian (supra), this Court in a
petition under Article 32 of the Constitution of India, lodged in
public interest, did after taking note of the fact that charge
sheet had already been submitted, direct the CBI to hold
further investigation in respect of the offence involved. In
recording this conclusion, this Court did take note of the fact
that the nuns who had been the victim of the tragedy did not
come forward to identify the culprits and that as alleged by the
petitioners, the four persons set up by the police as accused
were not the real culprits and that the victims were being
asked to accept them to be so. The paramount consideration
for the direction issued was to secure justice between the
parties and to instill confidence in public mind. The samePage 75
imperative did impel this Court to issue a similar direction for
fresh investigation by the CBI in Punjab and Haryana High
Court Bar Association (supra). Here as well the investigation
otherwise had been completed and charge-sheet was
71. This Court dealing with the proposition that once a
charge sheet is filed, it would then be exclusively in the
domain of the competent court to deal with the case on merits
in accordance with law and that the monitoring of the
investigation would cease in all respects, held, in particular, in
K.V. Rajendran (supra) in reiteration of the enunciations
aforestated, that though it is ordinarily so, the power of
transferring investigation in rare and exceptional cases for the
purpose of doing justice between the parties and to instill
confidence in the public mind, can be made invoking its
constitutional power available, to ensure a fair, honest and
complete investigation.
72. The precedential ordainment against absolute prohibition
for assignment of investigation to any impartial agency like thePage 76
CBI, submission of the charge-sheet by the normal
investigating agency in law notwithstanding, albeit in an
exceptional fact situation warranting such initiative, in order
to secure a fair, honest and complete investigation and to
consolidate the confidence of the victim(s) and the public in
general in the justice administering mechanism, is thus
unquestionably absolute and hallowed by time. Such a
measure however can by no means be a matter of course or
routine but has to be essentially adopted in order to live up to
and effectuate the salutary objective of guaranteeing an
independent and upright mechanism of justice dispensation
without fear or favour, by treating all alike.
73. In the decisions cited on behalf of the CBI as well, this
Court in K. Saravanan Karuppasamy and Sudipta Lenka,
(supra), recounted the above propositions underpinning the
primacy of credibility and confidence in investigations and a
need for complete justice and enforcement of fundamental
rights judged on the touchstone of high public interest and the
paramountcy of the rule of law. Page 77
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.
75. The exhaustive references of the citations seemingly
repetitive though, assuredly attest the conceptual consisting in
the expositions and enunciations on the issue highlighting the
cause of justice as the ultimate determinant for the course to
be adopted.
76. A “speedy trial”, albeit the essence of the fundamental
right to life entrenched in the Article 21 of the Constitution of
India has a companion in concept in “fair trial”, both being in
alienable constituents of an adjudicative process, to culminate
in a judicial decision by a court of law as the final arbiter.
There is indeed a qualitative difference between right to speedy
trial and fair trial so much so that denial of the former by
itself would not be prejudicial to the accused, when pitted
against the imperative of fair trial. As fundamentally, justice
not only has to be done but also must appear to have been
done, the residuary jurisdiction of a court to direct further
investigation or reinvestigation by any impartial agency, probe
by the state police notwithstanding, has to be essentially
invoked if the statutory agency already in-charge of the
investigation appears to have been ineffective or is presumed
or inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. As the cause of justice
has to reign supreme, a court of law cannot reduce itself to be
a resigned and a helpless spectator and with the foreseen
consequences apparently unjust, in the face of a faulty
investigation, meekly complete the formalities to record a
foregone conclusion. Justice then would become a casualty.
Though a court’s satisfaction of want of proper, fair, impartial
and effective investigation eroding its credence and reliability
is the precondition for a direction for further investigation or
reinvestigation, submission of the charge-sheet ipso facto or
the pendency of the trial can by no means be a prohibitive
impediment. The contextual facts and the attendant
circumstances have to be singularly evaluated and analyzed to
decide the needfulness of further investigation or
reinvestigation to unravel the truth and mete out justice to the
parties. The prime concern and the endeavour of the court of
law is to secure justice on the basis of true facts which ought
to be unearthed through a committed, resolved and a
competent investigating agency.
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.
78. As succinctly summarised by this Court in Committee
for Protection of Democratic Right (supra), the extra
ordinary power of the Constitutional Courts in directing the
CBI to conduct investigation in a case must be exercised
sparingly, cautiously and in exceptional situations, when it is
necessary to provide credibility and instill confidence in
investigation or where the incident may have national or
international ramifications or where such an order may be
necessary for doing complete justice and for enforcing the
fundamental rights. In our comprehension, each of the
determinants is consummate and independent by itself to
justify the exercise of such power and is not inter-dependent
on each other.
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.
80. 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.
The power of the constitutional courts to direct further
investigation or reinvestigation is a dynamic component of its
jurisdiction to exercise judicial review, a basic feature of the
Constitution and though has to be exercised with due care
and caution and informed with self imposed restraint, the
plentitude and content thereof can neither be enervated nor
moderated by any legislation.
81. The expression “fair and proper investigation” in criminal
jurisprudence was held by this Court in Vinay Tyagi vs
Irshad Ali @ Deepak and others (2013)5SCC 762 to
encompass two imperatives; firstly the investigation must be
unbiased, honest, just and in accordance with law and
secondly, the entire emphasis has to be to bring out the truth
of the case before the court of competent jurisdiction.
82. Prior thereto, in the same vein, it was ruled in Samaj
Parivartan Samudaya and others vs. State of Karnataka
and others (2012)7SCC 407 that the basic purpose of an
investigation is to bring out the truth by conducting fair and
proper investigation, in accordance with law and to ensure
that the guilty are punished. It held further that the
jurisdiction of a court to ensure fair and proper investigation
in an adversarial system of criminal administration is of a
higher degree than in an inquisitorial system and it has to
take precaution that interested or influential persons are not
able to misdirect or hijack the investigation, so as to throttle a
fair investigation resulting in the offenders, escaping the
punitive course of law. Any lapse, it was proclaimed, would
result in error of jurisdiction.
83. That the victim cannot be afforded to be treated as an
alien or total stranger to the criminal trial was reiterated by
this Court in Rattiram and others vs. State of Madhya
Pradesh (2012)4SCC 516. It was postulated that the criminal
jurisprudence with the passage of time has laid emphasis on
victimology, which fundamentally is the perception of a trial
from the view point of criminal as well as the victim when
judged in the social context.
84. This Court in National Human Rights Commission vs.
State of Gujarat and others (2009)6SCC 767 did proclaim
unambiguously that discovery, investigation and
establishment of truth are the main purposes of the courts of
justice and indeed are raison d’etre for their existence.
85. That the preeminence of truth is the guiding star in a
judicial process forming the foundation of justice had been
aptly propounded by this Court in Maria Margarida
Sequeira Fernandes and others vs. Erasmo Jack De
Sequeira (dead) through L.Rs (2012)5SCC 370. It was ruled
that the entire judicial system had been created only to
discern and find out the real truth and that the Judges at all
levels have to seriously engage themselves in the journey of
discovering the same. Emphasizing that the quest for truth is
the mandate of law and indeed the bounden duty of the
courts, it was observed that the justice system will acquire
credibility only when the people will be convinced that justice
is based on the foundation of the truth. While referring with
approval, the revealing observation made in Ritesh Tewari
and another vs. State of U.P. and others (2010)10SCC 677
that every trial is voyage of discovery in which truth is the
quest, the following passage of Lord Denning scripted inPage 85
Jones vs. National Coal Board (1957) 2 All ER 155(CA) was
extracted in affirmation:
“…It’s all very well to paint justice blind, but she
does better without a bandage round her eyes.
She should be blind indeed to favour or prejudice,
but clear to see which way lies the truth.”
86. A strain of piognance and disquiet over the insensitive
approach of the court concerned in the textual facts in the
context of fair trial in the following observations of this Court
in Vinod Kumar vs. State of Punjab (2015)3 SCC 220
sounds an awakening caveat:
“The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to
pose a question: Is it justified for any
conscientious trial Judge to ignore the statutory
command, not recognize “the felt necessities of
time” and remain impervious to the cry of the
collective asking for justice or give an indecent
and uncalled for burial to the conception of trial,
totally ostracizing the concept that a civilized
and orderly society thrives on the rule of law
which includes “fair trial” for the accused as well
as the prosecution.”
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.
88. Adverting to the role of the police to be one for protection
of life, liberty and property of citizens, with investigation of
offences being one of its foremost duties, it was underscored
in Manohar Lal Sharma vs. Principal Secretary and
others (2014)2SCC 532 that the aim of investigation is
ultimately to search for truth and to bring the offendor to
book. The observations of Lord Denning in his rendering in
“The Due Process of Law” First Indian Reprint 1993 page 102
were alluded to at page 553 as under:
“In safeguarding our freedoms, the police play a
vital role. Society for its defence needs a well-led,
well-trained and well-disciplined force of police
whom it can trust; and enough of them to be able
to prevent crime before it happens, or if it does
happen, to detect it and bring the accused to
The police, of course, must act properly. They
must obey the rules of right conduct. They must
not extort confessions by threats or promises.
They must not search a man’s house without
authority. They must not use more force than the
occasion warrants.”
89. The avowed purpose of a criminal investigation and its
efficacious prospects with the advent of scientific and
technical advancements have been candidly synopsized in the
prefatory chapter dealing with the history of criminal
investigation in the treatise on Criminal Investigation –
Basic Perspectives by Paul B. Weston and Renneth M.
“Criminal investigation is a lawful search for
people and things useful in reconstructing the
circumstances of an illegal act or omission and the
mental state accompanying it. It is probing from
the known to the unknown, backward in time, and
its goal is to determine truth as far as it can be
discovered in any post-factum inquiry.
Successful investigations are based on fidelity,
accuracy, and sincerity in lawfully searching for
the true facts of an event under investigation andPage 88
on an equal faithfulness, exactness, and probity in
reporting the results of an investigation. Modern
investigators are persons who stick to the truth
and are absolutely clear about the time and place
of an event and the measurable aspects of
evidence. They work throughout their
investigation fully recognizing that even a minor
contradiction or error may destroy confidence in
their investigation.
The joining of science with traditional criminal
investigation techniques offers new horizons of
efficiency in criminal investigation. New
perspectives in investigation bypass reliance upon
informers and custodial interrogation and
concentrate upon a skilled scanning of the crime
scene for physical evidence and a search for as
many witnesses as possible. Mute evidence tells its
own story in court, either by its own
demonstrativeness or through the testimony of an
expert witness involved in its scientific testing.
Such evidence may serve in lieu of, or as
corroboration of, testimonial evidence of witnesses
found and interviewed by police in an extension of
their responsibility to seek out the truth of all the
circumstances of crime happening. An increasing
certainty in solving crimes is possible and will
contribute to the major deterrent of crime – the
certainty that a criminal will be discovered,
arrested and convicted.
90. Reverting to the facts, the gruesome and sordid
assassination of the appellant’s husband in broad day light
under the public gaze is not in dispute. As a consequence of
the murderous assault with firearms and indiscriminate use
thereof, Raju Pal along with two others fell to the bullets.
Records seem to suggest that even prior to the incident,
attempts were made on his life but he survived the same in
view of the timely intervention of the security guards. That
representations were made by him seeking additional
protection and that after his murder, the appellant and the
party higher ups of Raju Pal had persistently appealed,
amongst others, to the Governor and the Chief Minister of the
State for handing over the investigation to the CBI is also
testified by the records.
91. Pleaded imputations of the appellant include deliberate,
uncalled for and mysterious replacement of the earlier sets of
personal security officers/gunners of the deceased, presence of
high police officials near the place of occurrence, indifference
on the part of the state police to act with alacrity, hasty
conduct of the post mortem of the dead body and cremation
thereof without handing over the same to the appellant or any
of his relatives, political pressure on the investigating agency to
distort the course of the probe and to screen the incriminating
evidence collected etc. One of the Investigating Officers in his
writ petition, questioning his suspension had also pleaded on
oath about the unexpected and unwarranted interference of the
higher ups in the department to withhold evidence gathered in
course of the investigation underway. Though nothing
decisively turn on these accusations, the same having been
refuted by the respondents, the fact remains that the
appellant’s husband had been mercilessly killed by a group of
gun wielding assailants in a public place, in the open view of
all concerned. Such a daring and desperate act did have a
terrorizing impact on the society sending shock waves amongst
all cross sections of the community and received wide coverage
by the media. The incident understandably is not one to be
lightly glossed over or trivialized.
92. The trial on the basis of the investigation completed
hitherto by the state police and the CBCID has remained
stayed by the orders of this Court. Prior thereto however as per
the materials laid before this Court, several eye-witnesses cited
by the investigating agency have been examined. As the trial is
pending for the present, we refrain from commenting on their
testimony, except that they seem to have resiled from their
statements under Section 161 of the Code. Having regard to
the manner in which the offence had been committed, it is
incomprehensible that there was no eye-witness to the
incident. Thus, if the persons cited as eye-witnesses by the
investigating agency retract from their version made before the
police, then either they have been wrongly projected as
eye-witnesses or they have for right or wrong reasons resiled
from their earlier narration. In both the eventualities, in our
opinion, the investigation has to be faulted as inefficient,
incomplete and incautious with the inevitable consequence of
failure of the prosecution in the case in hand. Such a fall out
also spells a dismal failure of the state machinery as a pivotal
stake holder in the process of justice dispensation to protect
and assure the witnesses of their safety and security so to
fearlessly testify the truth. We would hasten to add that these
observations are by no means suggestive of the complicity of
the respondent Nos. 4 & 5 and other accused persons standing
trial. These, to reiterate, are farthest from even any
presumptive hypothesis of their involvement in the offence for
the present and are engendered by the concern of possible
failure of justice. If the investigating agencies, as involved,
have not been able to identify and present eye-witnesses of the
incident who would under all circumstance religiously and
devotedly abide by their version about the same, the
shortcoming apparently is in the probe made, sadly reflecting
on the competence, commitment and efficacy of such agencies.
The very fact that this Court had earlier stayed the trial while
permitting the appellant to approach the High Court with the
relief for assignment of the investigation to the CBI does signify
its expectation that the High Court would adopt a sensitive
insight into the issues raised and appropriately address the
same. The pendency of the trial and the examination of the
witnesses so far made thus in our estimate is not a disarming
factor for this Court, to consider the necessity of entrusting the
investigation to the CBI even at this stage. To reiterate, a
decision in this regard has to be induced and impelled by the
cause of justice viewed in the overall facts and circumstances
attendant on the incident. No inflexible norm or guideline is
either available or feasible.
93. The present factual conspectus leaves one with a choice
either to let the ongoing trial casually drift towards its
conclusion with the possibility of offence going unpunished or
to embark upon investigation belated though, spurred by the
intervening developments, to unravel the truth, irrespective of
the persons involved. As it is, every offence is a crime against
the society and is unpardonable, yet there are some species of
ghastly, revolting and villainous violations of the invaluable
right to life which leave all sensible and right minded persons
of the society shell shocked and traumatized in body and soul.
Such incidents mercifully rare though are indeed exceptionally
agonizing, eliciting resentful condemnation of all and thus
warrant an extra-ordinary attention for adequate remedial
initiatives to prevent their recurrence. In our considered view,
even if such incidents otherwise diabolical and horrendous do
not precipitate, national or international ramifications, these
undoubtedly transcend beyond the confines of individual
tragedies and militatively impact upon the society’s civilized
existence. If the cause of complete justice and protection of
human rights are the situational demands in such
contingencies, order for further investigation or reinvestigation,
even by an impartial agency as the CBI ought to be a
peremptory measure in the overwhelming cause of justice.
94. Judged in these perspectives, we are of the firm opinion
that notwithstanding the pendency of the trial, and the
availability of the power of the courts below under Sections 311
and 391 of the Code read with Section 165 of the Evidence Act,
it is of overwhelming and imperative necessity that to rule out
any possibility of denial of justice to the parties and more
importantly to instill and sustain the confidence of the
community at large, the CBI ought to be directed to undertake
a de novo investigation in the incident. We take this view,
conscious about the parameters precedentially formulated, as
in our comprehension in the unique facts and circumstances of
the case any contrary view would leave the completed process
of crime detection in the case wholly inconsequential and the
judicial process impotent. A court of law, to reiterate has to be
an involved participant in the quest for truth and justice and is
not expected only to officiate a formal ritual in a proceeding
farseeing an inevitable end signaling travesty of justice.
Mission justice so expectantly and reverently entrusted to the
judiciary would then be reduced to a teasing illusion and a
sovereign and premier constitutional institution would be
rendered a suspect for its existence in public estimation.
Considering the live purpose for which judiciary exists, this
would indeed be a price which it cannot afford to bear under
any circumstance.
95. In the wake of the above, we are unhesitatingly inclined
to entrust the CBI, with the task of undertaking a de novo
investigation in the incident of murder of Raju Pal, the
husband of the appellant as afore-mentioned. Though a plea
has been raised on behalf of the respondent Nos. 4 and 5 in
particular that this incident has been exploited by the
appellant for her political gains, we are left unpersuaded
thereby, as her achievements in public life must have been
fashioned by very many ponderable as well as imponderable
factors. In any view of the matter, such a contention, in our
view, is of no consequence or relevance. We would, however
make it abundantly clear that this direction for entrustment of
the investigation to the CBI anew has been made in view of the
exceptional features of the case as overwhelmingly
demonstrated by attendant facts and circumstances
indispensably necessitating the same.
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.
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