Ningthoujam Tomchou vs Union Of India And Others

M.V. Muralidaran, J

1 .This petition has been filed by the petitioner, who is the father of the deceased victim viz., Ningthoujam Babysana Chanu, under Section 482 of Cr.P.C. for a direction to initiate prompt Central Bureau of Investigation inquiry to ascertain the exact cause of the death of the victim, who was sexually assaulted and murdered.

The case of the prosecution as could be seen from the materials available on record is that on 18.07.2019, one Ningthoujam Babysana Chanu, aged about 12 years (daughter of N.Tomchou Singh of Thangmeiband Meisnam Leikai, Imphal West petitioner herein), who was staying at Standard Robarth Higher Secondary School Boarding, Canchipur, was found hanging inside the hostel dormitory. On an information, Singjamei Police Station had registered a case in FIR No.138 (7) 2019 for the offences under Sections 305/34 IPC and Section 75 of Juvenile and Justice (Care & Protection of Children) Act, 2015 (In short, "JJ Act") against the accused persons and the accused were said to have been arrested. Subsequently, Section 420/302 IPC were added to the existing FIR on the request of the father of the deceased victim.

The petitioner herein, by way of the present petition, sought for a direction to initiate prompt CBI inquiry to ascertain the exact cause of death of her deceased daughter.

According to the petitioner, the second post-mortem shows injuries on the face, abdomen and genital part of his deceased daughter and also bizarre sign of sexual assault. He further states that taking note of the gravity of the offence, the Government of Manipur, addressed a letter dated 29.7.2019 to the DoPT (Department of Personnel and Training) for investigation of the case by CBI with reference to Single Window System introduced by the DoPT. However, till date, the DoPT has not passed any order transferring the investigation to CBI. It is also the say of the petitioner that some of the injury marks, which were captured by the colour photographs indicate the torture the minor girl was subjected to before murder.

The learned counsel for the petitioner submitted that the State police has failed to investigate the matter in proper manner and in fact, the State Government of Manipur itself requested the Government of India, to refer the case for CBI Investigation. In support of his plea for transfer of the Investigation to CBI, reliance was placed on the following decisions:

(i) W.A.No.12 of 2013, dated 29.4.2013 (Pramod Kumar v. Union of India and others) on the file of Madras High Court;

(ii) Pravata Kumar Tripathy v. Union of India, reported In MANU/OR/0458/2014.

The learned counsel for the petitioner also placed reliance upon the news item that appeared in the news papers and submitted that the Hon'ble Chief Minister of Manipur gave assurance during the passing out parade of the 5th Batch of MR/IRB/CP Followers (Male) held at Manipur Police Training College, Pangei that the State Government had requested the CBI to take over the case and for the time being, a Special Investigation Team has been constituted from the side of State police under his supervision and fair investigation into the case is under way.

The third respondent has filed his counter affidavit on 04.11.2019 which is as follows :-

"2. That regarding the suspicious death of one Ningthoujam Babysana Chanu (12) years D/o N. Tomchou Singh of Thangmeiband Meisnam Leikai, lmphal West District in her Hostel room of Standard Robert School Canchipur on 18/7/2019 by hanging an UD Case No.6/SJM-PS/2019 u/s 174 Cr.P.C. dated 18.07.2019 was registered in Singjamei Police Station. Later the UD case was converted to FIR No.138(7)2019 u/s 305/94 IPC. & 75 JJ Act with S.302 added and investigated into regarding the said suspicious death. Vide order No.5/1/SP-IW/2019 dated 25/7/2019 a Special Investigation Team (SIT) was constituted headed by Shri A.Ghanashyam Sharma Addl. SP(Ops)/Imphal West District as the I.O. of the case and investigated into.

That considering the nature of the case the State Government took a decision to request the Central Bureau of Investigation (CBI) to investigate the suspicious death of Miss Ningthoujam Babysana Chanu.

That further State Home Department issued Notification vide No.12/1(5)/2019-H(CBI)(BS) dated 24/07/2019 under the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 conveying the consent of the Government of Manipur to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment in the whole State of Manipur for carrying out investigation into UD Case No.6/SJM-PS/2019 u/s 174 Cr.P.C. dated 18.07.2019 converted into FIR No.138(7)2019 u/s 305/34 IPC & 75 JJ Act of Singjamei Police Station in connection with the suspicious death of Ms. Ningthoujam Babysana Chanu (12 years) D/o N. Tomchou Singh of Thangmeiband Meisnam Leikai, Imphal West in her hostel room of Standard Robarth School, Canchipur on 18/07/2019 by hanging.

That Home Department vide letter dated 25/07/2019 made a proposal to Secretary Ministry of Personnel, Public Grievances and Pensions, DoPT, Government of India along with duly countersigned self contained note of the check list along with FIR copy for entrusting investigation to Central Bureau of Investigation (CBI).

That as proposed by Director General of Police, Manipur vide letter No.1C/1(50)/2011-PHQ/7534 dated 28/07/2019, a notification dated 29/07/2019 was issued by State Home Department in partial modification of earlier notification dated 25/07/2019 with inclusion of Section 302 IPC in the said FIR case.

That Home Department vide another letter dated 29/07/2019 made a proposal to Secretary Ministry of Personnel, Public Grievances and Pensions, DoPT, Government of India for issue of necessary notification for entrusting investigation of the case to Central Bureau of Investigation.

That as per DoPT letter dated 22/11/2018, State Government have to go to DoP&T office in person for handling over the proposal for CBI investigation, complete in all respects, with all the relevant documents/records.

That Home Department vide orders dated 29/07/2019 issued ex-state journey sanction in respect of Shri Joel G. Haokip, Deputy Secretary (Home) for handling over the proposal of State Home Department to DoPT. Accordingly, the same was handed over to DoPT on 31/07/2019.

That due to agitation by the Joint Action Committee formed in connection with the death of Babysana Chanu, State Home Department vide letter dated 03/09/2019 sent reminder letter to DoPT for entrusting the case to CBl for further investigation.

That no communication has so far been received from DoPT, Government of India."

The learned Government Advocate submitted that the Special Investigation Team constituted by the State is investigating the matter in the right direction, however, they are yet to find out the cause of death of the deceased victim.

It appears that the Deputy Secretary (Home), Government of Manipur has filed an affidavit before this Court, wherein it has been stated that vide letter dated 29.7.2019, the Home Department made a proposal to the Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (DoPT), Government of India, for issuance of necessary notification for entrusting the investigation of the case to CBI. According to the Deputy Secretary (Home), Government of Manipur, as per the DoPT letter dated 22.11.2018, the said proposal was also handed over to DoPT in person by him on 31.07.2019. In this regard, a reminder was also addressed on 03.9.2019.

It also appears that In the ball objection report dated 29.8.2019 submitted by the Additional Superintendent of Police (L&O), Imphal West, inter aIia, It has been stated that "at the present stage of Investigation of the case, though there Is suspicion by the members of the JAC formed In connection with the death of Ningthoujam Babysana Chanu and some students community and some sections of general public: that she might have been murdered by unknown person/persons which amount to offence falling u/s 302 IPC, till date, there is no any supportive evidence in this regard. ...... Since the case is still under investigation, maximum efforts are being made to find the truth behind the death of Ningthoujam Babysana Chanu."

As stated supra, the State of Manipur itself made proposal to the DoPT for issuance of necessary notification for entrusting the investigation of the case in hand to CBI. However, the said proposal has not been considered by the DoPT till date and no reason was assigned and/or available on record in delaying the proposal given by the State of Manipur by the DoPT.

Mr. Ng. Khamrang, aged about 53 years, S/o Late Shimdhar Khamrang, presently working as Head of Branch, CBI, ACB, Imphal has filed counter affidavit on behalf of respondent no. 2, the Director, Central Bureau of Investigation, Lodhi Road, Jawaharlal Nehru Stadium Marg, New Delhi-110003 which is stated as follows :-

"4. That, the petitioner filed the instant Cril Petition No. 51 of 2019 before the Hon'ble High Court of Manipur with a prayer to direct the respondents mainly the CBI to initiate inquiry at the earliest.

That, for appreciation of the Hon'ble Court, the following facts are placed before the Hon'ble Court:-

(i) CBI has received a Notification No. 12/1(5)/2019-H(CBI)(BS) dtd.29.07.2019 issued by the State Govt. of Manipur U/s 6 of DSPE Act, 1946 for carrying out investigation by CBI into UD case No.6/SJM-PS/2019 U/s 174 Cr.PC dtd.18.07.2019 converted into FIR No.138(7)2019 U/s 305/302/34 IPC & 75 JJ Act of Singjamei Police Station in connection with the suspicious death of Ms.Babysana Chanu in her hostel room of Standard Robarth School, Canchipur on 18.07.2019 by hanging.

(ii) The aforesaid Notification issued by the State Govt. of Manipur was forwarded by DoPT seeking feasibility report from CBI and after examination of the matter, Director, CBI has approved to take over the investigation of the case by CBI and accordingly DoPT has been requested to issue corresponding Notification U/s 5 of DSPE Act, 1946, which is awaited.

(iii) That, on receipt of the Notification U/s 5 of DSPE Act, 1946 from DoPT, CBI will take up the investigation of the case by registering a case.

The deponent as in duty bound shall ever pray."

In Pramod Kumar (supra), a Division Bench of Madras High Court held as under:

"78. Section 482 Crl.P.C. is the inherent power of the High Court to do real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. Inherent power under Section 482 Cr.P.C. envisages three circumstances, viz.,

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of Court, and

(iii) to otherwise secure the ends of justice.

It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. Courts, therefore, have inherent powers apart from any express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law."

The powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution In Its exercise, Court must be careful to see that its decision in exercise of the power is based on sound principles.

In State of Punjab vs. Kasturi Lal and others, reported in 2004 Crl LJ 3866, the Hon'ble Supreme Court held as under:

"Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. This is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. AlI courts, whether civil or criminal possess, in the absence of any expression provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence ls disclosed by the complainant, the court may examine the question of fact. When a complaint ls sought to be quashed, It Is permissible to look into the materials to assess what the complainant has alleged and whether any offence ls made out even If the allegations are accepted in toto."

Considering the scope of Section 482 Cr.P.C. and observing that there is no statutory limitation for exercising power under Section 482 Cr.P.C., in Gian Singh v. State of Punjab and another, reported in (2012) 10 SCC 303, the Hon'ble Supreme Court held thus:

"53. ....... As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objections, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non."

Observing that nomenclature of the petition is not decisive and that the High Court can exercise its power suo motu either under Article 226 of Constitution of India or under Section 482 Cr.P.C. or under both, in Divine Retreat Centre v. State of Kerala and others, reported in (2008) 3 SCC 542, the Hon'ble Supreme Court observed as under:

"55. It was contended that nomenclature of the petition is not decisive. The High Court can exercise power suo motu either under Article 226 or under Section 482 CrPC or under both. It was submitted that if for any reason the petition entertained by the High Court is held not maintainable under Section 482 of the Code, the same can always be treated as the one filed under Article 226 of the Constitution of India. Reliance was placed upon the observations made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749. ........ This Court took the view that if the court finds that the appellant could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. The observations were made in the context of correcting grave errors that might be committed by the subordinate courts. The decision does not lay down any law that the High Courts in exercise of its power under Section 482 of the Code or Article 227 may be resorted to constitute any special investigating agency to investigate into allegations made for the first time in an anonymous petition.

In our view, the whole of public law remedies available under Article 226 of the Constitution of India and the constituent power to issue writs in the nature of mandamus, certiorari, prohibition and quo warranto are neither echoed nor transplanted into Section 482. May be both the powers to issue writs and pass appropriate orders under Section 482 of the Code are conferred upon the High Court but they undoubtedly operate in different fields."

In Pravata Kumar Tripathy (supra), cited by the learned counsel for the petitioner, the Orissa High Court held thus:

"While Kharavelnagar P.S. Case No.44 of 2013 was under further investigation, writ petition seeking transfer of investigation from the State agencies to the Central Bureau of Investigation (CBI) was filed before the Hon'ble Supreme Court vide Writ Petition (Civil) No.401 of 2013 and the case was decided on 9.5.2014 (Subrata Chattoraj -v- Union of India and others reported in MANU/SC/0453/2014 : (2014) 58 Orissa Criminal Reports (SC) 905). The relevant paragraphs are quoted herein below:

"28. An affidavit has been filed by the State of Odisha pursuant to the said directions in which the F.I.Rs where the State Investigating Agency is examining the larger conspiracy angle, have been identified, Larger conspiracy angle is according to the affidavit being examined in three cases.

..........

(ii) Case No.44 dated 7.2.2013 under the same provisions registered in Kharvelnagar Police Station (Bhubaneswar Urban Police District) against M/s.Artha Tatwa Group of Companies and

........

The factual narrative given in the foregoing paragraphs clearly establish the following:-

The financial scam nicknamed chit-fund scam that has hit the States of West Bengal, Tripura, Assam and Odisha involves collection of nearly 10,000 crores (approx.) from the general public especially the weaker sections of the society which have fallen prey to the temptations of handsome returns on such deposits extended by the companies involved in the scam.

.............

That investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence.

The question is whether the above feature call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative.

........

In the circumstances, we are inclined to allow all these petitions and direct transfer of the following cases registered in different police stations in the State of West Bengal and Odisha from the State Police Agency to the Central Bureau of Investigation (CBI) "

The Hon'ble Supreme Court, time and again dealt with circumstances under which the investigation can be transferred from the State Investigating Agency to any other independent investigation agency like CBI. Power of transferring such investigation must be exercised in rare and exceptional cases, where the Court finds it necessary in order to do justice between the parties and to instill confidence in the public mind or where investigation by the State police lacks credibility and it is necessary for having a fair, honest and complete investigation, and particularly, when it is imperative to retain public confidence in the impartial working of the State Agencies.

In State of West Bengal v. Committee for Protection of Democratic Rights, reported In AIR 2010 SC 1476, a Constitution Bench of the Hon'ble Supreme Court has clarified that extraordinary power to transfer the investigation from State Investigating Agency to any other Investigating Agency must be exercised sparingly, cautiously and 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 enforcing the fundamental rights.

As stated supra, in the present case, the investigation of the State Agency is still in progress. Generally, the starting investigating agency i.e., the office of the police where the FIR is lodged should be allowed to continue the investigation and on being satisfied on material on record that the Investigating Officer is not conducting the investigation on proper lines and is trying to save the real accused, the High Court should transfer the investigation from the local police to CBI. Further, the transfer of the investigation from local police to CBI should not be made merely on asking. In case the charge sheet is med and cognizance is taken by the Magistrate, then proper course for the Court will be to direct the concerned Magistrate, if necessary to proceed under Section 178(3) Cr.P.C., but in case the Court is satisfied that there is prima facie proof against the person against whom neither charge sheet has been filed, nor cognizance has been taken, the case is of serious nature, the Court after giving notice to the aforesaid person may make appropriate order, and any order in respect of further investigation shall be considered to be an order made under Section 178(3) Cr.P.C.

It is pertinent to note that the law is well settled that High Courts and the Hon'ble Supreme Court under Article 226 and 32 of the Constitution of India are empowered to order investigation by the CBI. That, however, should be done only in some rare and exceptional cases, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

In fact, the case on hand comes within the purview of rare and exceptional case, as a young school student, aged about 12 years that too staying in the school hostel was found dead within the hostel premises and so far the State Agency has not found the cause of death. According to the petitioner, there was sign of sexual assault and the post mortem report states injuries on the face, abdomen and genital part of the body.

Thus, from the above, it is clear that the cause of the death of the deceased victim in the school hostel premises is still under investigation by the Special Investigation Team of the State. Moreover, the State Government itself took a decision to request the CBI to investigate the suspicious death of the deceased victim. In this regard, the State Government had also addressed a letter to the Government of India and the same is pending and so far no order has been passed.

At this juncture, it is apposite to mention that none can dispute the power of the High Court to direct an inquiry by CBI. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others v. Sahngoo Ram Arya and another reported in (2002) 5 SCC 521, the Hon'ble Supreme Court held as follows:

"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause [(1999) 6 SCC 667 : 1999 SCC (Cri) 1196] . This Court in the said judgment at paragraph 174 of the Report has held thus:

"174. The other direction, namely, direction to CBI to investigate any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'LIFE' and 'LIBERTY' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21."

It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if 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, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the Instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause [(1999) 6 SCC 667 : 1999 SCC (Cri) 1196]." 26. In Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746, the Hon'ble Supreme Court held:

"35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings...."

In Tirupati Balaji Developers (P) Ltd. v. State of Bihar, reported in (2004) 5 SCC 1, the Hon'ble Supreme Court held:

"8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts, both are courts of record. The High Court is not a court "subordinate" to the Supreme Court. In a way the canvas of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of the Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential elections or inter-State disputes which the Constitution does not envisage being heard and determined by High Courts."

In R.S.Sodhi, Advocate v. State of West Bengal and others, reported in 1994 Suppl (1) SCC 143, the Hon'ble Supreme Court held that when there were accusations against the local police personnel, it would be desirable in the larger interest of justice to entrust the investigation to CBI forthwith so as to assure investigation credibility.

In Vinay Tyagi v. Irshad Ali alias Deepak and others, reported in (2013) 5 SCC 762, the Hon'ble Supreme Court held thus:

"43. At this stage, we may also state another well settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the super courts very sparingly and with great circumspection."

Admittedly, the second respondent has filed an affidavit-in-opposition on behalf of the fifth respondent also that pursuant to the request made by the Government of Manipur was forwarded by the DoPT seeking feasibility report from CBI and after examination of the matter, Director, CBI has approved to take over the investigation of the case by CBI and Notification U/s 5 of DSPE Act, 1946 from DoPT is awaited. On receipt of said Notification under Section 5 of DSPE Act, 1946 from DoPT, CBI will take up the investigation of the case by registering a case. The second respondent also states that the deponent as in duty bound shall ever pray.

In view of the settled legal positions, it is to be held that the High Court could exercise its power for transferring investigation from the Special Investigating Team of the State Government to CBI in order to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased.

In the instant case, almost three months have elapsed and the Special Investigating Team of the State Government has not found out the cause of death of the deceased victim.

The plea of the petitioner in seeking CBI investigation merit acceptance, as according to him, her daughter was sexually assaulted and died. As stated supra, till date nothing on record to show how the victim died and the cause of death also not known. The second post-mortem report would reveal some injuries on the body of the deceased victim. When the crime is serious in nature and the victim was a minor 12 year old school going girl and also she died while staying in the school hostel, necessarily this type cases should be investigated by CBI to find out the truth as to how the victim died and who are all the persons involved for causing the death of the deceased victim and should be punished in accordance with law.

It appears that the efforts taken by the Special Investigation Team of the State to find the truth behind the death of the deceased victim is not yet yielded the fruit and that is why, the State itself addressed a communication to the Government of India seeking permission to entrust the investigation to CBI. When that is the situation, to find out the truth behind the death of the deceased victim, this Court exercising its power under Section 482 Cr.P.C., is of the firm view that a CBI enquiry is the need of the hour, as any further delay caused will only lead to protecting the accused involved in such barbaric act. The aforesaid direction issued by this Court is only in the peculiar facts and circumstances of the instant case and the same cannot be interpreted otherwise.

At this juncture, it is appropriate to record that in order to deal with the child abuse cases, the Government has brought in Special Law viz., Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"). The POCSO Act is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor. Therefore, in view of the Special Law in force, whoever may be, should punished in sexual assault cases.

Every creature of God, more so human beings, are entitled to certain basic inalienable rights which they can enjoy as citizens of this Country and which the society is bound to safeguard. Of all human beings, a girl child is the most vulnerable right from her conception, childhood and womanhood by virtue of age and sex. The commitment of our Country for the welfare of children is envisaged in several Articles of the Constitution of India and despite such guaranteed rights to children, girls have restricted access to education, health care and employment.

In the case on hand, the death of the girl child took place in the educational institution, where she was staying as a residential student. At this juncture, it is apposite to emphasize that imparting education to girl children is an asset to the Nation as it would be help in disciplined family management, apart from their equal participation in socio-economic and political democracy. Parents send their girl children to Schools with the fond hope that the educational institutions care and look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the schools to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. The school authorities were in loco parentis to all students and their duty and responsibility towards the girl children is greater.

When such position of "Loco parentis" conferred on the school authorities is abused, which resulted in the death of a girl child in the campus, the Courts need to send a clear message that child sexual abuse and exploitation will not be tolerated and perpetrators of the offence will be appropriately punished.

Considering the facts and circumstances of the case and in order to do justice to the victim's family and also to instil confidence in the public mind, this Court is inclined to entrust the investigation of the present case to CBI for investigation, as the case on hand comes under rare and exceptional cases. Further, this Court also comes to the conclusion that the materials produced by the petitioner would disclose a prima facie case calling for an investigation by CBI and also the materials produced by the petitioner are sufficient to direct such investigation by CBI. Therefore, the present petition filed by the petitioner is liable to be allowed.

In the result,

(i) The criminal petition is allowed.

(ii) The investigation in FIR No.138(7)2019 on the file of the Singjamei Police Station, now under the investigation of the Special Investigation Team constituted by the State of Manipur, is directed to be entrusted to the Central Bureau of Investigation immediately by the Special Investigation Team.

(ili) The Director of CBI is directed to constitute a team and Investigate the matter in accordance with law and file a report before the concerned Court for further action. In any event, a report regarding the progress in investigation shall be filed before the Court concerned once in a month.

(iv) Upon receipt of the report from the CBI, the Court concerned, shall proceed further in accordance with law.

(v) If the CBI feels fresh investigation is required into the matter from scratch, they can very well do the same and if they feel that continuation of investigation from the stage where the investigation is pending before the Special Investigation Team will suffice, the CBI is at liberty to start their investigation from that stage.

(vi) The Special Investigation Team of the State is directed to hand over all files relating to the case of the deceased victim Ningthoujam Babysana Chanu within a period of two weeks from the date of receipt of this order to the CBI and if necessary, they can give full assistance to the CBI for their investigation and/or further investigation, as the case may be.

(vii) It is made clear that this Court has not gone into the merits of the crime and has also not gone in the merits of the investigation so far done by the Special Investigation Team of the State and has also not expressed its opinion on the merits of such investigation.

A copy of this order be furnished to the Director General of Police, Manipur, Superintendent of Police, Imphal West and also to the Director, Central Bureau of Investigation, Lodhi Road, Jawaharlal Nehru Stadium Marg, New Delhi-110003 for their information and compliance. A copy of this order also be furnished to the Sr. Panel Counsel for CBI for information.