DHARAM PAL Vs. STATE OF HARYANA & ORS

Tags Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 85 of 2016, Judgment Date: Jan 29, 2016

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.85 OF 2016
(@ S.L.P.(Criminal) No. 6298 of 2015)

Dharam Pal ... Appellant

Versus

State of Haryana & Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.
2. Cry for fair trial by the accused as well as by the victim sometimes
remains in the singular and individualistic realm, may be due to the
perception gatherable from the facts that there is an attempt to contest on
the plinth of fairness being provoked by some kind of vengeance or
singularity of “affected purpose”; but, irrefutably a pronounced and
pregnant one, there are occasions when the individual cry is not guided by
any kind of revengeful attitude or anger or venom, but by the distressing
disappointment faced by the grieved person in getting his voice heard in
proper perspective by the authorities who are in charge of conducting
investigation and the frustration of a victim gets more aggravated when he
is impecunious, and mentally shattered owing to the situation he is in and
thereby knows not where to go, the anguish takes the character of
collective agony. When the investigation, as perceived by him, is nothing
but an apology for the same and mirrors before him the world of
disillusionment that gives rise to the scuffle between the majesty and
sanctity of law on one hand and its abuses on the other, he is constrained
to seek intervention of the superior courts putting forth a case that his
cry is not motivated but an expression of collective mortification and the
intention is that justice should not be attenuated.
3. Justice, which is “truth in action” and “the firm and continuous
desire to render to everyone which in his due” becomes a mirage for the
victim and being perturbed he knocks at the doors of the High Court under
Article 226 of the Constitution alleging that principle of fair and proper
investigation has been comatosed by the investigating agency, for the said
agency has crucified the concept of faith in the investigation which is
expected to maintain loyalty to law and sustain fidelity to its purpose. In
the case at hand, the assertions made with immense anguish gave rise to
the question before the High Court whether some progress in trial would act
as a remora in the dispensation of justice and the situation should be
allowed to remain as it is so that an organic disorder is allowed to creep
in and corrode and create a cul-de-sac in administration of justice. The
further question posed whether the non-approach to the court prior to the
stage of commencement of trial would be a peccadillo so as to usher in an
absolutely indifferent, unconcerned and, in a way, biased investigation to
rule and in the ultimate eventuate lead to guillotining of justice. The
High Court having negatived the stand put forth by the appellant, the
husband of the deceased, he has approached this Court by way of special
leave.
4. With the aforesaid prefatory note and a short prelude to the
grievance of the appellant, we proceed to narrate the facts.
5. The minor daughter of the appellant who was raped by the accused
persons was threatened with dire consequences in case she disclosed the
incident. The incident, as alleged, occurred on 06.08.2012. Despite the
threat, the daughter disclosed the incident to her parents. Keeping in view
the future of the girl and the social repercussions, they chose to suffer
in silence rather than set the criminal law in motion. When the family
stood reconciled to the situation, something extremely untoward happened.
On 02.09.2012, Kamlesh Devi, wife of the appellant, had gone to village
Nilikhen for taking medicine for her teeth and gums problem but did not
return home on that day. The appellant searched for his wife along with
his relatives and eventually a bag containing vegetables and medicines and
some other articles belonging to the wife was found underneath the bridge
Manak Majra on the lower side of Sarsa Branch river. The appellant
suspected that Kusum, wife of Sukh Ram, resident of Kalsi and Aman alias
Virender had abducted his wife or had thrown her into the river. In such a
situation, the appellant lodged an FIR, on 05.09.2012 at P.S. Butana. The
investigating agency registered the FIR No. 354 for the offences under
Section 363, 366-A, 506, 365 and 34 of the Indian Penal Code (for short
“IPC”). During the investigation, on 05.09.2012, the dead body of Kamlesh
Devi was found near the Sarsa Branch canal bridge. Thereafter, the
appellant and his daughter were examined and on that basis, offence under
Section 376 IPC was added. Eventually, the allegations were segregated and
FIR No. 394 dated 20.09.2012 under Sections 363, 365, 376(2)G, 506, 201 and
120-B IPC and Section 3 of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 was registered and after the
investigation, a charge-sheet was filed. Be it stated, the accused persons
in FIR No. 394 dated 20.09.2012 have been acquitted by the judgment dated
12.03.2014 by the learned Sessions Judge. Against the judgment of
acquittal, the appellant has filed a criminal appeal which is pending
before the High Court of Punjab and Haryana. Therefore, we shall refrain
from referring to the facts of the said case.
6. Coming to the subject matter of FIR No. 354 which relates to the
murder of the wife of the appellant, as is evident, the report would show
that the cause of death was due to strangulation coupled with head injury
which is antiemortem in nature and sufficient to cause death in ordinary
course. Apart from the accused persons named in the FIR, another person,
namely, Krishan Kumar, was also implicated who was arrested on 19.10.2012.
The other two accused persons, namely, Aman and Kusum were taken into
custody on 30.10.2012. It is a matter of record that the appellant was
provided security personnel as threats were received by the appellant for
entering into a compromise in the rape case, and for change of his version
in the murder case of his wife.
7. It has been asserted and not denied by the respondents that on
28.01.2013, the Superintendent of Police, Karnal vide Office Memo No. 3961
recommended to the Director General of Police, Haryana that the case
bearing FIR No. 354 along with the rape case and the unsolved case of
murder of the sister-in-law of the appellant be transferred to the Central
Bureau of Investigation (CBI), New Delhi. Based on the said recommendation,
the Additionally Chief Secretary, Government of Haryana vide Office Memo
No. 20/2/2013-3HG1 requested the Secretary to the Government of India,
Ministry of Personnel, Public Grievances & Pensions, Department of
Personnel & Training, New Delhi for handing over the investigation to the
CBI. It has also been asserted that a departmental action has been taken
against ASI Ram Prakash and SHO Sanjeev Malik on the basis of the
complaints made by the appellant. On information being sought by the
appellant under the Right to Information Act, 2005, he has been informed
vide communication dated 17.11.2014 that departmental inquiry had already
been initiated against ASI Ram Prakash and SHO Sanjeev Malik on charges of
dereliction and negligence of duty. It was also mentioned in the reply
that as a result of departmental inquiry, Ram Prakash had been reverted
from the post of ASI to Head Constable, and with respect to Sanjeev Malik,
the proceedings had been sent to the Deputy Commissioner of Police, Ambala
for being transferred.
8. The issue that arises for consideration is whether such a situation
calls for issuance of direction for transfer of the investigation to the
CBI. The High Court has declined to so direct as trial has commenced and
some witnesses have been examined. The High Court has gone by the
principle of “stage”. When the matter was listed on 18.09.2015, this Court
had directed a copy of the petition to be served on Mr. P.K. Dey, learned
counsel who ordinarily appears for the CBI. The stand of the CBI is that
the case does not fall within the guidelines laid down by this Court in
State of West Bengal & others v. Committee for Protection of Democratic
Rights, West Bengal and others[1].
9. Learned counsel for the State has supported the order passed by the
High Court and also emphasized that regard being had to the stage of the
trial, there is no need for directing for investigation by another agency.
10. First, we intend to deal with the stand of the CBI and the principles
laid down in Committee for Protection of Democratic Rights (supra). In the
said case, the Constitution Bench, after examining the rival contentions in
the context of the constitutional scheme, recorded the following
conclusions:-
“(i) The fundamental rights, enshrined in Part III of the Constitution, are
inherent and cannot be extinguished by any constitutional or statutory
provision. Any law that abrogates or abridges such rights would be
violative of the basic structure doctrine. The actual effect and impact of
the law on the rights guaranteed under Part III has to be taken into
account in determining whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to
protect the persons of their lives and personal liberties except according
to the procedure established by law. The said article in its broad
application not only takes within its fold enforcement of the rights of an
accused but also the rights of the victim. The State has a duty to enforce
the human rights of a citizen providing for fair and impartial
investigation against any person accused of commission of a cognizable
offence, which may include its own officers. In certain situations even a
witness to the crime may seek for and shall be granted protection by the
State.

(iii) In view of the constitutional scheme and the jurisdiction conferred
on this Court under Article 32 and on the High Courts under Article 226 of
the Constitution the power of judicial review being an integral part of the
basic structure of the Constitution, no Act of Parliament can exclude or
curtail the powers of the constitutional courts with regard to the
enforcement of fundamental rights. As a matter of fact, such a power is
essential to give practicable content to the objectives of the Constitution
embodied in Part III and other parts of the Constitution. Moreover, in a
federal constitution, the distribution of legislative powers between
Parliament and the State Legislature involves limitation on legislative
powers and, therefore, this requires an authority other than Parliament to
ascertain whether such limitations are transgressed. Judicial review acts
as the final arbiter not only to give effect to the distribution of
legislative powers between Parliament and the State Legislatures, it is
also necessary to show any transgression by each entity. Therefore, to
borrow the words of Lord Steyn, judicial review is justified by combination
of “the principles of separation of powers, rule of law, the principle of
constitutionality and the reach of judicial review”.

(iv) If the federal structure is violated by any legislative action, the
Constitution takes care to protect the federal structure by ensuring that
the Courts act as guardians and interpreters of the Constitution and
provide remedy under Articles 32 and 226, whenever there is an attempted
violation. In the circumstances, any direction by the Supreme Court or the
High Court in exercise of power under Article 32 or 226 to uphold the
Constitution and maintain the rule of law cannot be termed as violating the
federal structure.

(v) Restriction on Parliament by the Constitution and restriction on the
executive by Parliament under an enactment, do not amount to restriction on
the power of the Judiciary under Articles 32 and 226 of the Constitution.

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one
hand and Entry 2-A and Entry 80 of List I on the other, an investigation by
another agency is permissible subject to grant of consent by the State
concerned, there is no reason as to why, in an exceptional situation, the
Court would be precluded from exercising the same power which the Union
could exercise in terms of the provisions of the statute. In our opinion,
exercise of such power by the constitutional courts would not violate the
doctrine of separation of powers. In fact, if in such a situation the Court
fails to grant relief, it would be failing in its constitutional duty.

(vii) When the Special Police Act itself provides that subject to the
consent by the State, CBI can take up investigation in relation to the
crime which was otherwise within the jurisdiction of the State police, the
Court can also exercise its constitutional power of judicial review and
direct CBI to take up the investigation within the jurisdiction of the
State. The power of the High Court under Article 226 of the Constitution
cannot be taken away, curtailed or diluted by Section 6 of the Special
Police Act. Irrespective of there being any statutory provision acting as a
restriction on the powers of the Courts, the restriction imposed by Section
6 of the Special Police Act on the powers of the Union, cannot be read as
restriction on the powers of the constitutional courts. Therefore,
[pic]exercise of power of judicial review by the High Court, in our
opinion, would not amount to infringement of either the doctrine of
separation of power or the federal structure.”
[emphasis added]

11. After recording the conclusions, the Constitution Bench added a note
of caution which we may profitably reproduce:-
“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.”
[underlying is ours]

12. In the said case, a contention was raised that a detailed charge-
sheet had been filed and subsequent to the filing of the said detailed
charge-sheet, a supplementary charge-sheet had also been filed to complete
the evidence, both oral and documentary, to bring home the guilt of the
accused before the competent court and in accordance with the direction
given by the Court further investigation had been carried out in accordance
with Section 173(8) of the Code of Criminal Procedure and, therefore, the
jurisdiction of this Court under Article 32 of the Constitution had come to
an end. In essence, the submission was that when a charge-sheet was filed
after conducting the investigation under the supervision and monitoring of
the Court, there was no need to transfer the case to another agency.
Repelling the said submission, the larger Bench opined, regard being had to
the nature of the crime and the persons involved, the investigation could
not be said to be satisfactorily held. That apart, the Constitution Bench
also ruled that in the circumstances it was not sufficient to instill
confidence in the minds of the victims as well as the public at large that
State should be allowed to continue the investigation when the alleged
offences were against its officials. Under these circumstances, the Court
directed the CBI to take up the investigation and submit a report.
13. On a perusal of the said authority, we really do not find any aspect
which would support the stand put forth by the learned counsel for the CBI.
On the contrary, as we perceive, the Constitution Bench has laid great
emphasis on instilling of faith of the victim and the public at large in
the investigating agency. True it is, the facts in the said case were
different and related to alleged crimes committed by certain State
officials, but the base of confidence in investigation has been
significantly highlighted.
14. In the context, we may profitably refer to a two-Judge Bench decision
in Narmada Bai v. State of Gujarat and others[2]. The Court, in the factual
matrix of the case, has emphasized that if the majesty of the rule of law
is to be upheld and if it is to be ensured that the guilty are punished in
accordance with law notwithstanding their status and authority which they
might have enjoyed, it is desirable to entrust the investigation to CBI.
15. A three-Judge Bench in K.V. Rajendran v. Superintendent of Police,
CBCID South Zone, Chennai and others[3] reiterating the said principle
stated that the power of transferring such investigation must be 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. The Court, after referring to
earlier decisions, has laid down as follows:-

“In view of the above, the law can be summarised to the effect that the
Court could exercise its constitutional powers for transferring an
investigation from the State investigating agency to any other independent
investigating agency like CBI only in rare and exceptional cases. Such as
where high officials of State authorities are involved, or the accusation
itself is against the top officials of the investigating agency thereby
allowing them to influence the investigation, and further that it is so
necessary to do justice and to instil confidence in the investigation or
where the investigation is prima facie found to be tainted/biased.”

16. The factual scenario in the present case has to be appreciated on the
touchstone of the aforesaid authorities. As the facts would reveal there
was a request by the Additional Chief Secretary for handing over the
investigation to the CBI; that departmental action was taken against the
investigating authorities for negligent investigation; that the concerned
ASI has been reverted to the post of Head Constable; and that apart,
certain material witnesses have not been examined by the investigating
agency without any rhyme or reason. The reasoning of the High Court is as
the trial has commenced, there cannot be a transfer of the case to another
investigating agency.
17. In this context, we may notice the statutory scheme pertaining to
investigation. Section 173 Cr.P.C. empowers the Police Officer conducting
investigation to file a report on completion of the investigation with the
Magistrate empowered to take cognizance of the offence. Section 173(8)
Cr.P.C. empowers the office-in-charge to conduct further investigation even
after filing of a report under Section 173(2) Cr.P.C. if he obtains further
evidence, oral or documentary. Thus, the power of the Police Officer under
Section 173(8) Cr.P.C. is unrestricted. Needless to say, the Magistrate
has no power to interfere but it would be appropriate on the part of the
investigating officer to inform the Court. It has been so stated in Rama
Chaudhary v. State of Bihar[4].

18. In Vinay Tyagi v. Irshad Ali[5], wherein a two-Judge Bench, after
referring to the decision in Bhagwant Singh v. Commr. Of Police[6] has held
thus:-
“However, having given our considered thought to the principles stated in
these judgments, we are of the view that the Magistrate before whom a
report under Section 173(2) of the Code is filed, is empowered in law to
direct “further investigation” and require the police to submit a further
or a supplementary report. A three-Judge Bench of this Court in Bhagwant
Singh has, in no uncertain terms, stated that principle, as aforenoticed.”

19. In the said case, the question had arisen whether a Magistrate can
direct for re-investigation. While dealing with the said issue, the Court
has observed:-
“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 superior courts very sparingly and with great
circumspection.”
[Emphasis supplied]

And again:-

“Whether the Magistrate should direct “further investigation” or not is
again a matter which will
depend upon the facts of a given case. The learned Magistrate or the higher
court of competent jurisdiction would direct “further investigation” or
“reinvestigation” as the case may
be, on the facts of a given case. Where the Magistrate can only direct
further investigation, the courts of higher jurisdiction can direct
further, reinvestigation or even investigation de novo depending on the
facts of a given case. It will be the specific order of the court that
would determine the nature of investigation.”

20. Be it noted here that the constitutional courts can direct for
further investigation or investigation by some other investigating agency.
The purpose is, there has to be a fair investigation and a fair trial. The
fair trial may be quite difficult unless there is a fair investigation. We
are absolutely conscious that direction for further investigation by
another agency has to be very sparingly issued but the facts depicted in
this case compel us to exercise the said power. We are disposed to think
that purpose of justice commands that the cause of the victim, the husband
of the deceased, deserves to be answered so that miscarriage of justice is
avoided. Therefore, in this case the stage of the case cannot be the
governing factor.
21. We may further elucidate. The power to order fresh, de-novo or re-
investigation being vested with the Constitutional Courts, the commencement
of a trial and examination of some witnesses cannot be an absolute
impediment for exercising the said constitutional power which is meant to
ensure a fair and just investigation. It can never be forgotten that as
the great ocean has only one test, the test of salt, so does justice has
one flavour, the flavour of answering to the distress of the people without
any discrimination. We may hasten to add that the democratic setup has the
potentiality of ruination if a citizen feels, the truth uttered by a poor
man is seldom listened to. Not for nothing it has been said that Sun rises
and Sun sets, light and darkness, winter and spring come and go, even the
course of time is playful but truth remains and sparkles when justice is
done. It is the bounden duty of a Court of law to uphold the truth and
truth means absence of deceit, absence of fraud and in a criminal
investigation a real and fair investigation, not an investigation that
reveals itself as a sham one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful investigation is imperative.
If there is indentation or concavity in the investigation, can the ‘faith’
in investigation be regarded as the gospel truth? Will it have the
sanctity or the purity of a genuine investigation? If a grave suspicion
arises with regard to the investigation, should a Constitutional Court
close its hands and accept the proposition that as the trial has commenced,
the matter is beyond it? That is the “tour de force” of the prosecution
and if we allow ourselves to say so it has become “‘id’ee fixe” but in our
view the imperium of the Constitutional Courts cannot be stifled or
smothered by bon mot or polemic. Of course, the suspicion must have some
sort of base and foundation and not a figment of one’s wild imagination.
One may think an impartial investigation would be a nostrum but not doing
so would be like playing possum. As has been stated earlier facts are self-
evident and the grieved protagonist, a person belonging to the lower
strata. He should not harbor the feeling that he is an “orphan under law”.

22. In view of the aforesaid analysis, the appeal is allowed, the order
of the High Court is set aside, and it is directed that the CBI shall
conduct the investigation and file the report before the learned trial
judge. The said investigation report shall be considered by the trial
judge as per law. Till the report by the CBI is filed, the learned trial
judge shall not proceed with the trial. A copy of the order be handed over
to Mr. P.K. Dey, learned counsel for the CBI to do the needful.

...............................J.
[Dipak Misra]

...............................J.
[Prafulla C. Pant]
New Delhi,
January 29, 2016
-----------------------
[1] (2010) 3 SCC 571
[2] (2011) 5 SCC 79
[3] (2013) 12 SCC 480
[4] (2009) 6 SCC 346
[5] (2013) 5 SCC 762
[6] (1985) 2 SCC 537

-----------------------
21

Back to Judgments