Kishore Singh and Others vs State of Rajasthan and Others

Vijay Bishnoi, J.—This criminal writ petition under Article 226 of the Constitution of India has been filed by the petitioners with the following prayers:-

"i. The investigation and/or further investigation of the case arising out of FIR No. 146/2014 lodged at P.S. Sardarpura, Jodhpur may be taken over from the State Police and may be directed to be transferred for a fair investigation to the Central Bureau of Investigation; and

ii. The Central Bureau of Investigation may be directed to investigate the matter in a fair and free manner and to submit its report as expeditiously as possible while taking into account the facts stated in the writ Petition; and

iii. Without prejudice to the aforesaid and in the alternate, the investigation and/or further investigation of the case arising out of FIR No. 146/2014 lodged at P.S. Sardarpura, Jodhpur may be taken over from the investigating officer and may be directed to the transferred to any officer of State Police not below the right of the Superintendent of Police for the fresh investigation of the case and the said officer may be directed to submit the conclusion of the fresh investigation within a reasonable period of time, after recording the statements of the Petitioners and others; and

iv. The cost of the writ petition may kindly be awarded in favour of the Petitioners; and

v. Any other appropriate writ, order or direction, which this Hon''ble court may deem it just and proper, in the facts and circumstances of the case, may kindly be issued in favour of the Petitioners."

Brief facts of the case are that an unfortunate accident took place on 27.6.2014 at about 9:00 A.M. near Gandhi Maidan, Sardarpura, Jodhpur wherein a man namely Yogesh son of petitioners sustained grievous injuries. The case was reported to the police through a written complaint by Anish Solanki S/o Mohan Singh, who happens to be a cousin of Yogesh. In the complaint, it is submitted that Yogesh was riding a motorcycle bearing No. RJ 19 SG 4528 and suddenly it was hit by DUSTER Car bearing registration No. RJ 19 CE 1444 at 9:00 A.M. on 27.6.2014 near Gandhi Maidan, Sardarpura. It is alleged that the DUSTER Car was being driven by its driver negligently and at great speed and it hit the motorcycle and on account of that, Yogesh fell down from the motorcycle. One Arun Singh S/o Bhajan Singh took Yogesh to Mahatma Gandhi Hospital in a taxi and got him admitted in ICU. It is specifically written in the complaint that above information was furnished to the complainant by Arun Singh.

On receiving the above written complaint from Anish Solanki, the police registered an FIR No. 146/2014 for the offences punishable under Sections 279 and 337 I.P.C. During the pendency of the investigation, injured Yogesh S/o Kishore Singh died during treatment on 6.7.2014. After thorough investigation, the police filed charge sheet against Govind Singh S/o Hinglaj Dan for the offences punishable under Sections 279 and 304-A I.P.C. in the Court of Chief Metropolitan Magistrate, Jodhpur Metropolitan on 10.7.2014. The Additional Chief Metropolitan Magistrate No. 3, Jodhpur Metropolitan after taking into consideration the conclusions filed by the police in the charge sheet took cognizance against Govind Singh S/o Hinglaj Dan for the offences punishable under Sections 279 and 304-A I.P.C. and thereafter the charges have also been framed against him for the aforesaid offences.

Thereafter the petitioners moved an application in the Court of Additional Chief Judicial Magistrate No. 3, Jodhpur Metropolitan under Section 173(8) Cr.P.C. on 8.1.2015 wherein it is alleged that the police has not conducted proper investigation in the matter as on the date of incident i.e. 27.6.2014, the accused Govind Singh S/o Hinglaj Dan was not present in Jodhpur and at the time of accident, he was in Mumbai and reached Jodhpur only on 27.6.2014 at 1:30 P.M. from the regular flight. It is alleged that, in fact, at the time of accident, the vehicle No. RJ 19 CE 1444 was being driven by one Mohan Dan Ratnu and on account of rash and negligent driving by him, the accident took place. It is further alleged that Mohan Dan Ratnu is an RAS Officer and, therefore, the police has deliberately not named him as accused and has wrongly made Govind Singh S/o Hinglaj Dan as accused, who is the registered owner of DUSTER Car No. RJ 19 CE 1444 from which the accident took place. The allegations regarding faulty investigation have been levelled in the application and it was prayed that the police may be directed to conduct further investigation into the incident under Section 173(8) Cr.P.C.

The application filed by the petitioners was contested by the Assistant Public Prosecutor as well as by accused Govind Singh S/o Hinglaj Dan. It is contended that since the investigation has already been completed, charge sheet has also been filed, cognizance has been taken and charges have been framed against the accused, the prayer of the petitioners to direct the police to further investigate into the incident cannot be granted.

The trial court after taking into consideration the arguments of rival parties has dismissed the application filed by the petitioners under Section 173(8) Cr.P.C. vide order dated 3.2.2015, however, granted liberty to the petitioners to represent before the S.H.O., Police Station, Sardarpura, Jodhpur for conducting further investigation into the case and it has been observed that if any such representation is made by the petitioners, it is expected that the S.H.O., Police Station Sardarpura, Jodhpur would consider the same and proceed in accordance with law.

After passing of the order dated 3.2.2015 by the trial court, the petitioners moved a representation before the S.H.O., Police Station, Sardarpura, Jodhpur on 6.2.2015. As per the counsel for the petitioners, that representation is still pending and police is not conducting any investigation as per the prayer made by the petitioners. Hence, the petitioners have filed this criminal writ petition.

Learned counsel for the petitioners has argued that when the police has failed to investigate into the incident in fair manner, the petitioners have every right to approach this Court for seeking direction to handover the investigation to the Central Bureau of Investigation or can also seek direction for conducting further investigation into the matter by a superior officer of the police.

Learned counsel for the petitioners has submitted that the petitioners on their own collected evidence to the effect that on the date and time of the accident, accused Govind Singh was not present in Jodhpur and, in fact, he was in Mumbai. It is also contended that the location of two mobile phones owned by Govind Singh was also at Mumbai on 27.6.2014 at the time when the accident occurred. It is also contended that from the CCTV Footage of Mumbai Airport as well as Jodhpur Airport, it can be verified that Govind Singh reached Jodhpur at about 1:30 P.M. on 27.6.2014 and, as such he was not involved in the accident occurred on 27.6.2014 at 9 A.M. at Gandhi Maidan, Sardarpura, Jodhpur. It is also contended that from their own investigation, the petitioners came to know that on the day of the accident, Car No. RJ 19 CE 1444 was being driven by Mohan Dan Ratnu, RAS Officer and despite giving this information to the police, the police failed to collect the evidence regarding the presence of Govind Singh S/o Hinglaj Dan at Mumbai.

Learned counsel for the petitioners has also contended that the facts of the case clearly reveal that the police is working under pressure and shielding Mohan Dan Rathu, therefore, it is a fit case where a direction may be issued to Central Bureau of Investigation to investigate into the case or a direction may be issued to the police to get the matter investigated by a police officer of higher rank.

In support of above contentions, learned counsel for the petitioners has placed reliance upon the judgments of Hon''ble Supreme Court in Rashmi Behl Vs. State of Uttar Pradesh and Ors. reported in 2015 Cr.L.R. (SC)305ENDLAWFINDER , Kashmeri Devi Vs. Delhi Administration and Another, , Rubabbuddin Sheikh Vs. State of Gujarat and Others, and State of West Bengal and Others Vs. The Committee for Protection of Democratic Rights, West Bengal and Others, .

Heard learned counsel for the petitioners and perused the material available on record.

In relation to the accident, took place on 27.6.2014 at 9:00 A.M. near Gandhi Maidan, Sardarpura, Jodhpur, a report was submitted before the police by complainant Anish Solanki at 7:30 P.M. on 27.6.2014. In the complaint, the name of the driver of the Car is not mentioned and it is stated that the information of accident is given by one Arun Singh. Arun Singh S/o Bhajan Singh is the sole eye witness of the incident and the police has recorded his statement under Section 161 Cr.P.C. on 28.6.2014 wherein he has clearly stated that when he asked the name of the person who was driving the car, he told his name Govind Singh S/o Hinglaj Dan. It is also to be noticed that the police issued a notice to Govind Singh S/o Hinglaj Dan under Section 133 of the Motor Vehicle Act, 1988 and in response to that notice, Govind Singh admitted that he is the owner of DUSTER Car No. RJ 19 CE 1444 and at the time of accident, he was driving the said car.

From careful reading of the petition and after critical analysis of the material available on record, it is clear that the main thrust of the petitioners in the writ petition is that at the time of the accident, the car involved in the accident was being driven by Mohan Dan Ratnu, but the police has not made him accused and has falsely named Govind Singh S/o Hinglaj Dan as accused. It is not the case of the petitioners that either they or complainant was present at the site when the accident took place. The petitioners have also failed to name any person, who was present at the site of accident on 27.6.2014 and could assert that he knows Mohan Dan Ratnu prior to the accident and saw him driving the Car No. RJ 17 CE 1444 at the time of accident and the accident occurred due to rash and negligent driving of Mohan Dan Ratnu. No other person has come forward to claim that he or she had seen Mohan Dan Ratnu causing accident by rash and negligent driving.

The petitioners have not mentioned in the writ petition that from which source, they came to know about the fact that car was driven by Mohan Dan Ratnu. The petitioners have placed heavy reliance on newspaper report wherein it was claimed that at the time of accident, Govind Singh was in Mumbai and the car was being driven by Mohan Dan Ratnu. The reporter of the newspaper has claimed that as per his investigation, at the time of accident, the Car No. RJ 19 CE 1444 was being driven by Mohan Dan Ratnu, however, in the newspaper report, it has not been mentioned that how it has been verified that the car was driven by Mohan Dan Ratnu. It is also noticed that the police has prepared site inspection report on 28.6.2014 in the presence of eye-witness Arun Singh S/o Bhajan Singh and in the presence of witnesses Surender Singh and Om Prakash, but none of the witnesses has informed the police that the car was driven by Mohan Dan Ratnu and not by accused Govind Singh S/o Hinglaj Dan.

It is also to be noted that the police has filed charge sheet in the matter on 10.7.2014 in the concerned court and the trial court has taken cognizance against the accused and also framed charges against him. Thereafter only on 8.1.2015, the petitioners moved an application before the trial court seeking further investigation into the matter. Why the petitioners have not approached the trial court or the higher police officials for about 7 months, has not been explained by them.

After taking into consideration the overall facts and circumstances of the case, this Court is of the opinion that merely on the basis of allegations of the petitioners and on the basis of newspaper report, a direction cannot be issued to get the matter investigated by the Central Bureau of Investigation or by a higher officer of the Police Department. There is no allegation in the writ petition against the Investigating Officer regarding bias, malafides or ill will. It is only alleged that since Mohan Dan Ratnu is RAS Officer, therefore, the police has not made him accused and has attributed the accident to the owner of the car.

The Hon''ble Supreme Court in the case of State of West Bangal and Others Vs. Committee for Protection of Democratic Rights, West Bengal and Ors. (supra) while examining the power of High Court under Article 226 or of the Supreme Court under Article 32 of the Constitution of India to direct the Central Bureau of Investigation to investigate a cognizable offence without the consent of the State Government, has held that despite wide powers conferred by Article 32 and 226 of the Constitution of India while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The Hon''ble Supreme Court has clearly held that extraordinary power must be exercised sparingly, cautiously and in exceptional situation where it becomes necessary to provide credibility and instil confidence in investigations. It is also held that such order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. The Hon''ble Supreme Court in the above referred judgment has held as under:-

"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

In Minor Irrigation and Rural Engg. Services, U.P. V. Sahngoo Ram Arya, this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observations."

(Emphasis supplied)

So far as the judgment of Hon''ble Supreme Court in Kashmeri Devi (supra) is concerned that was a case where husband of the petitioner died in police custody and serious allegations were levelled against the police officials of the concerned Police Station regarding torture of the husband of the petitioner. The Hon''ble Supreme Court, after considering the fact that a person died in the police custody due to beating and torturing and the officials of police station were involved, has directed that the matter should be investigated by an independent agency i.e. Central Bureau of Investigation.

In case of Rubabbuddin Sheikh (supra), the Hon''ble Supreme Court has transferred the investigation to the Central Bureau of Investigation as it was a case of alleged fake encounter wherein higher officials of police of State of Gujarat, Andhra Pradesh and Rajasthan were involved.

In case of Rashmi Behl (supra), the petitioner approached the Hon''ble Supreme Court with the allegations that she was abducted and repeatedly assaulted and raped by her own father and his accomplices for not accepting the demand of enter the flesh trade in which her family is actively involved. The Hon''ble Supreme Court has noticed that the petitioner was abducted twice, her statements were recorded under Section 164 Cr.P.C. and she had made serious allegations against the father, family members and police personnels, but the police had not made serious efforts in investigating into the allegations and conducted the investigation in a routine manner. The Hon''ble Supreme Court has also observed that the local police had tried to shield the real culprits and is involved in the crime, therefore, it is a fit case where a direction can be issued to the independent agency like Central Bureau of Investigation to investigate into the allegations.

None of the above referred situations exists in the present case.

This Court is of the opinion that merely on the basis of newspaper report and on the basis of allegation of a party, a matter cannot be sent for investigation to Central Bureau of Investigation or a direction to investigate into the matter by a higher official of the Police Department cannot be issued until the party seeking such directions may satisfy that the police has ignored to take into consideration the facts which are so glaring and convincing to conclude involvement of any person in commission of crime.

In view of above discussions, this Court does not find any merit in this criminal writ petition. The same is hereby dismissed. The stay petition is also dismissed.