Neetu Kumar Nagaich vs The State Of Rajasthan on 16 September, 2020
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Supreme Court of India
Neetu Kumar Nagaich vs The State Of Rajasthan on 16 September, 2020
Author: Navin Sinha
Bench: Rohinton Fali Nariman, Navin Sinha, Hon’Ble Ms. Banerjee
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO.141 OF 2020 NEETU KUMAR NAGAICH ...PETITIONER (S) VERSUS THE STATE OF RAJASTHAN AND OTHERS ...RESPONDENT(S) JUDGMENT
NAVIN SINHA, J.
The deceased aged 21 years, a 3rd year student at the
National Law University Jodhpur, was the only son of the
petitioner. She seeks justice to unravel the mystery of her
son’s homicidal death, dissatisfied with the investigation
carried out by the State Police. The investigation has reached a
dead end without identification of the offenders. The prayer in
the writ petition is therefore for a mandamus to transfer the
investigation in FIR No.155 of 2018 dated 29.06.2018
registered under Section 302 of the Indian Penal Code at the
Mandore Police Station, Jodhpur City, Rajasthan to the Central
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2020.09.16
16:40:51 IST
Bureau of Investigation.
Reason:
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2. Shri Sunil Fernandes, learned counsel for the petitioner,
submits that in the evening of 13.08.2017 the deceased had
gone out of the hostel to a restaurant situated around 300
meters from the University campus, along with his friends at
the University. His dead body was found at 09.00 A.M. the next
morning on the railway tracks behind the restaurant. Relying on
frivolous stories floated of the deceased having committed
suicide due to depression, the University authorities did not
register a first information report (hereinafter referred to as ‘the
FIR’). The FIR was registered nearly ten months later, on
29.06.2018, after much persuasion by the petitioner and her
husband. The casualness and callousness of the police is
reflected from the fact that neither was the crime scene sealed
nor necessary investigation done with promptitude by proper
examination of relevant witnesses including CCTV footage, and
digital footprints, mobile locations etc. and WhatsApp chats
during the relevant period of time on the day of occurrence. It
is difficult to accept that the service providers did not provide
mobile dump datas of towers in the location of the incident or
that they were conveniently found by the police to be “dark
zones”.
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3. The railway authorities had confirmed, Annexure P-2, that
during the intervening night approximately five trains had
crossed the track and no engine driver had reported any
untoward incident till the body was suddenly found on the
railway track at 09.00 A.M. next morning. Prior to that a
witness who had gone to answer the call of nature at 06.30
A.M. had stated that he did not see any dead body on the
railway track. The nature and number of injuries found on the
body of the deceased make it evident that it was a homicidal
death and not accidental or suicidal in nature. The caretaker of
the warehouse near the place of occurrence has not been
examined on the frivolous pretext that he was deaf and
therefore unreliable. The excuse that the caretaker could not
be relied upon, because he was deaf, is preposterous.
4. The deceased was not alone but in company of his friends.
Strangely, yet there is no evidence how and under what
circumstances and by whom he was murderously assaulted.
The deceased is stated to have returned back to the hostel. The
entry register bore his initials signifying his return to the
campus, yet it has been wished away by a simplistic
explanation of one of his friends that he had made the entry by
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mistake. Surely this was a matter for further investigation. If
the deceased subsequently left the hostel premises again alone
at 10:30 P.M. there had to be visuals in the CCTV footage at the
gate. No investigation of mobile locations available in the
vicinity at the time of occurrence has even been attempted by
the police.
5. The husband of the petitioner had moved the High Court
in S.B. Criminal Miscellaneous Petition No.1411 of 2019
dissatisfied with the manner in which the police was dragging
its feet in failing to make proper investigation, raising serious
doubts that efforts were being made to protect someone. The
High Court on 24.02.2020 disposed of the petition directing the
Investigating Officer to file the result of the investigation in the
court concerned, reserving liberty to the petitioner to challenge
the same. When nothing transpired again and there was no
progress in the investigation, the petitioner preferred the
instant writ petition on 20th May, 2020. This Court on
08.07.2020 directed that the investigation must be completed
within a period of two months and the final report be filed in
this Court. The investigating officer thereafter in hot haste has
filed a closure report which is thoroughly unsatisfactory and
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raises more questions with regard to the nature of investigation
done by him, than it seeks to answer. Shri Fernandes sought to
persuade us not to allow the closure report, but to set it aside
and order fresh investigation for resolution of the crime and the
offender. Pursuant to the order of this Court, the petitioner
through her lawyer wrote to the Director General of Police
(Crime) on 10.07.2020 and 11.08.2020 inviting attention to
several deficiencies in the investigation which yet remained to
be inquired and has not been taken into consideration at all
before submitting the closure report.
6. Dr. Manish Singhvi, learned senior counsel appearing for
the respondent State, submitted that inquest proceedings
under Section 174 of the Code of Criminal Procedure, 1973 (in
short, “the Code”) were commenced promptly. A large number
of witnesses have been examined by the Special Investigation
Team constituted pursuant to the order of the High Court.
There has been no deficiency in the investigation. All
possibilities have been investigated and the necessary
evidence collected and analysed. Despite the best efforts the
offenders could not be traced or found. There was no occasion
for this Court to either direct further or fresh investigation. The
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closure report may be allowed to be filed before the court
concerned and the law may take its course.
7. We have considered the submissions on behalf of the
parties and have very carefully gone through the closure report
also dated 03.09.2020 filed pursuant to our order dated
08.07.2020. The closure report accepts it as a homicidal death
but concludes that there is no clue who the offenders were.
8. The deceased is stated to have left the University
premises along with several friends in the evening of
13.08.2017 at about 07.40 P.M. His dead body was seen the
next morning at about 9:00 A.M. on the railway track passing
behind Laxmi Guest House. The body was lying on the track
curved at a right angle. The deceased had nine very serious
injuries on his person which were found to be ante mortem in
nature. There was no blood at the place of occurrence, but
there was blood on his clothes. Only one slipper of the
deceased was found at the place of occurrence. The
respondents had contended before the High Court and also in
the counter affidavit filed before us on 03.07.2020 that the
death was accidental in nature. The conclusion in the closure
report dated 03.09.2020 then does a volte face to acknowledge
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a homicidal death with no clue, ruling out an accidental death
by collision with a train. It does not leave much to the
imagination that the deceased was not assaulted at the railway
track but elsewhere. Since a closure report has been submitted
which we are being persuaded not to accept, we shall
purposefully refrain for a detailed analysis of the inherent
contradictions and the inconclusive nature of the investigation
as revealed in the closure report, except to the extent
necessary for purposes of the present order. We find substance
in the submissions made on behalf of the petitioner with regard
to the deficient nature and manner of investigation carried out
by the police leading to the closure report.
9. Normally when an investigation has been concluded and
police report submitted under Section 173(2) of the Code, it is
only further investigation that can be ordered under Section
173(8) of the Code. But where the constitutional court is
satisfied that the investigation has not been conducted in a
proper and objective manner, as observed in Kashmeri Devi
vs. Delhi Administration, (1988) Suppl. SCC 482, fresh
investigation with the help of an independent agency can be
considered to secure the ends of justice so that the truth is
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revealed. The power may also be exercised if the court comes
to the conclusion that the investigation has been done in a
manner to help someone escape the clutches of the law. In
such exceptional circumstances the court may, in order to
prevent miscarriage of criminal justice direct de novo
investigation as observed in Babubhai vs. State of Gujarat,
(2010) 12 SCC 254. A fair investigation is as much a part of a
constitutional right guaranteed under Article 21 of the
Constitution as a fair trial, without which the trial will naturally
not be fair. The observations in this context in Babubhai
(supra) are considered relevant at paragraph 45 as follows:
“45. Not only fair trial but fair investigation is
also part of constitutional rights guaranteed
under Articles 20 and 21 of the Constitution of
India. Therefore, investigation must be fair,
transparent and judicious as it is the minimum
requirement of rule of law. The investigating
agency cannot be permitted to conduct an
investigation in a tainted and biased manner.
Where non-interference of the court would
ultimately result in failure of justice, the court
must interfere. In such a situation, it may be in
the interest of justice that independent agency
chosen by the High Court makes a fresh
investigation.”
10. In Bharati Tamang vs. Union of India , (2013) 15 SCC
578, relief was sought in a writ petition to quash the charge
8
sheet and the supplementary charge sheet coupled with a
mandamus for a de novo investigation by a Special
Investigation Team of competent persons having impeccable
credentials to unravel the conspiracy. This Court relied on the
following extract from Zahira Habibulla H. Sheikh vs. State
of Gujarat, (2004) 4 SCC 158, as follows:
“33. ….“Courts have to ensure that accused
persons are punished and that the might or
authority of the State are not used to shield
themselves or their men. 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. If deficiency in
investigation or prosecution is visible or can be
perceived by lifting the veil trying to hide the
realities or covering the obvious deficiencies,
courts have to deal with the same with an iron
hand appropriately within the framework of law. It
is as much the duty of the prosecutor as of the
court to ensure that full and material facts are
brought on record so that there might not be
miscarriage of justice.”
xxxxx
“37. In the decision of Babubhai v. State of
Gujarat, in para 40, this Court held that the
scheme of investigation particularly Section
173(8) CrPC provides for further investigation and
not of reinvestigation but held in para 42 as
under: (SCC p. 272)
“42. Thus, it is evident that in exceptional
circumstances, the court in order to
prevent the miscarriage of criminal justice,
if considers necessary, may direct for9
investigation de novo wherein the case
presents exceptional circumstances .”
38. Therefore, at times of need where this Court
finds that an extraordinary or exceptional
circumstance arise and the necessity for
reinvestigation would be imperative in such
extraordinary cases even de novo investigation
can be ordered.
xxxxx
41.3. If deficiency in investigation or prosecution
is visible or can be perceived by lifting the veil
which try to hide the realities or covering the
obvious deficiency, Courts have to deal with the
same with an iron hand appropriately within the
framework of law.
xxxxx
41.5. In order to ensure that the criminal
prosecution is carried on without any deficiency,
in appropriate cases this Court can even
constitute Special Investigation Team and also
give appropriate directions to the Central and
State Governments and other authorities to give
all required assistance to such specially
constituted investigating team in order to book
the real culprits and for effective conduct of the
prosecution.
xxxxx
41.7. In appropriate cases even if the charge-
sheet is filed it is open for this Court or even for
the High Court to direct investigation of the case
to be handed over to CBI or to any other
independent agency in order to do complete
justice.
41.8. In exceptional circumstances the Court in
order to prevent miscarriage of criminal justice
and if considers necessary may direct for
investigation de novo.”
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11. The power of the constitutional court may extend to
directing reinvestigation was again noticed in Pooja Pal vs.
Union of India, (2016) 3 SCC 135, as follows:
“87. 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
plenitude and content thereof can neither be
enervated nor moderated by any legislation.
xxxxx
90. 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 v. State of M.P.,
(2012) 4 SCC 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 viewpoint of criminal as
well as the victim when judged in the social context.
xxxxx
96. The avowed purpose of a criminal investigation
and its efficacious prospects with the advent of
scientific and technical advancements have been
candidly synopsised 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.
Wells:
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“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 and
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 recognising 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.”
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12. In Dharam Pal vs. State of Haryana, (2016) 4 SCC 160,
it was noticed that the power of the constitutional court to
order fresh or de novo investigation could also be exercised
after commencement of the trial and the examination of some
witnesses could not be an impediment, observing as follows:
“25. ….The power to order fresh, de novo or
reinvestigation 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 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. ….”
13. Reverting to the facts of the present case, we find that the
occurrence took place in the intervening night of 13.08.2017
and 14.08.2017. The inquest proceedings under Section 174
Cr.P.C. were registered on 14.08.2017 but remained
inconclusive, and now in view of the closure report deserves to
be consigned. The death of the deceased was initially sought
to be passed off as accidental by collision with a train or
suicidal due to depression. The F.I.R. under Section 302, IPC
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was registered very much belatedly on 29.06.2018, albeit
reluctantly, only at the persistence of the petitioner and her
husband after they repeatedly approached the higher
authorities. Even thereafter the investigation remained at a
standstill till the filing of the counter affidavit before this Court
as recent as 03.07.2020 with the respondents insisting that the
death was accidental and that the nature of injuries could not
attribute a homicidal death. Earlier the husband of the
petitioner had also petitioned the High Court where till
20.07.2019 the respondents insisted that the death was
accidental in nature. Unfortunately, the High Court despite
noticing the long pendency of the investigation took a
misguided approach that the petitioner had not expressed
suspicion against any one and neither had he alleged biased
against the Investigating Officer, to pass an open ended order
to investigate the case and file a report. In this manner, the
investigation remained inconclusive for nearly three long years
with the investigating agency sanguine of passing it off as an
accidental death without coming to a firm conclusion avoiding
to complete the investigation. It is only when we ordered on
08.07.2020 that the investigation be concluded within a period
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of two months and the final report be placed before us, that
suddenly a very lengthy investigation closure report has been
filed before us taking a stand that though the death was
homicidal there was no clue. The closure report is therefore, to
our mind, a clear hasty action leaving much to be desired
regarding the nature of investigation, because if a detailed
investigation had already been done as is sought to be now
suggested, there is no reason why a final report could not have
been filed by the investigating agency in the normal course of
events and needed an order to do so from this Court. The
entire investigation and the closure report therefore lack
bonafide. The interest of justice therefore requires a de novo
investigation to be done, to sustain the confidence of the
society in the rule of law irrespective of who the actors may be.
14. We, therefore, set aside the closure report and direct a de
novo investigation by a fresh team of investigators to be
headed by a senior police officer of the State consisting of
efficient personnel well conversant with use of modern
investigation technology also. No officer who was part of the
investigating team leading to the closure report shall be part of
the team conducting de novo investigation. Much time has
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passed and there is undoubtedly an urgency in the matter now.
We therefore direct that such fresh investigation must be
concluded within a maximum period of two months from today
and the police report be filed before the court concerned
whereafter the matter shall proceed in accordance with law.
15. The writ petition is allowed.
………………………….J.
[R.F. NARIMAN]
………………………….J.
[NAVIN SINHA]
………………………….J.
[INDIRA BANERJEE]
NEW DELHI
SEPTEMBER 16, 2020.
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