Bichari Devi v. Patna

13. Mr. Arun Kumar Singh, son of Late Deonandan Singh, resident of village-Panapur, P.S.-Birpur, District-Begusarai &

14. The Superintendent of Police, Central Bureau of Investigation, Patna. Ors .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Suraj Narain Yadav, Advocate For the Respondents : Mr. Sushil Kumar Jha, AC to G.P-18. For the C.B.I. : Mr. Bipin Kumar Sinha, SC to CBI. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 5 05-10-2012 The petitioner is informant of Birpur P.S.Case No.28 of 2011 dated 16.04.2011 instituted under Sections 147, 148, 149, 341, 323, 379, 427, 435 and 302 of the Indian Penal Code as well as Section 27 of the Arms Act. The fardbeyan of the informant was recorded at 2.50 p.m. in village-Bhagwanpur, in which, it Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 2 has been alleged that nine named accused persons killed the petitioner’s son, namely, Bhulla Yadav. One Arun Kumar Singh (respondent no.13) is the informant of Birpur P.S.Case No.26 of 2011 registered under Sections 147, 148, 149, 323, 447 and 504 of the Indian Penal Code as well as 27 of the Arms Act for an occurrence which is said to have taken place on 12.04.2012 against 22 persons. Another FIR, which is, Birpur P.S.Case No.27 of 2011 has been registered under Sections 147, 148, 149, 341, 323, 324, 325, 353, 337, 338, 307, 302 and 120B of the Indian Penal Code as well as 16(I) and (II) of the Unlawful Activity Act as well as 17 of the Criminal Law Amendment Act on 16.04.2011, on the basis of the written report submitted by respondent no.11, the Circle Officer, Birpur Circle, for the alleged murder of one Umashankar Rai, a member of the Special Armed Police(in short, SAP,) in an incident in which 25 named and 72 to 75 unknown accused persons, were made accused. In that case, it has also been alleged that the Insas rifle and 50 cartridges were also looted by the accused persons from the deceased SAP Jawan. The FIR also discloses that one Bhulla Yadav was also found dead in the incident. Learned counsel for the petitioner submits that Bhulla Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 3 Yadav was killed due to highhandedness of police. The thumb impression of the petitioner was taken under duress and the fardbeyan recorded by the police, as a matter of fact, is not the true version of the case alleged to have been instituted on the basis of the statement of the petitioner. Learned counsel further submits that being aggrieved by the manner of institution and investigation of Birpur P.S.Case No.28 of 2011, a protest petition has also been filed in the court of the learned Chief Judicial Magistrate, Begusarai. It has further been contended that the petitioner’s son, namely, Rampadarath Yadav has filed a complaint case, being complaint case no.795(C) of 2011, in the court of the learned Chief Judicial Magistrate, Begusarai on 02.05.2011 in which respondent nos.9 to 13 have been made accused. He contends that as a matter of fact, the incident which took place on the date of occurrence has correctly been described in the complaint case. The said complaint case is under enquiry in terms of Section 202 of the Code of Criminal Procedure. In the background of the facts mentioned above, the petitioner has lost faith in the investigating agency. It has, thus, been prayed that all the three cases, i.e., Birpur P.S.Case No.28 of 2011, Birpur P.S.case No.27 of 2011 and Birpur P.S.Case No.26 Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 4 of 2011 be handed over to the Central Bureau of Investigation for conducting fair and impartial investigation. A counter affidavit has been filed on behalf of the State which is on record. Learned counsel for the State, referring to the counter affidavit, submits that there is no truth behind the allegations that the police is not conducting the investigation in a fair and impartial manner. According to him the allegations made in the writ petition are far from truth. He states that the respondents have done their duty in accordance with law. The correct fact is that the local police along with Magistrate had gone to the place of occurrence to establish status quo ante, on the land where the accused persons had raised the illegal structure in an attempt to grab the land with active support of Naxals active in the area overnight. Sensing caste conflict and increased naxal activity which could have led to massacre, the District Administration felt it prudent to establish status quo ante and advised both the parties to take shelter of court in order to settle the issue of ownership, if any. While the police party and Magistrate were on their lawful duty, the accused persons sprinkled chilly powder on the eyes of the policemen, burnt huts, and attacked them with lathis, spears, and iron rods. It has been stated that it was a typical Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 5 example of a gorilla warfare adopted by the Naxals keeping women and children in front. The police party retreated to prevent any loss but the accused persons caught hold of one SAP Jawan, namely, Umashankar Rai. It has also been contended on behalf of the State that the Insas rifle of the deceased SAP Jawan and cartridges were also looted. Several police constables received injuries in the occurrence due to attack on police force by the accused persons of Birpur P.S.Case No.27 of 2011. The matter is being investigated and supervised by the Inspector of Police and the Sub Divisional Police Officer. Learned counsel for the State submits that the deceased, Bhulla Yadav, was not killed by the police personnel. The respondents also refute the charge that the fardbeyan of the petitioner was not properly recorded. Learned counsel appearing for the CBI submits that this is not a case which warrants a CBI investigation. There is no inter state ramification involved in the present case. If all such cases are handed over to the CBI, it would be flooded with large number of cases and with limited resources, the C.B.I. may find it difficult to properly investigate even serious cases of national and international ramifications. Having considered rival submissions, one thing is clear that in none of the three FIRs the police personnel have been made Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 6 accused. A separate complaint has been filed by one of the son of the petitioner, in which, as stated on behalf of the petitioner, enquiry is going on. There is no dispute with respect to the proposition in law that the constitutional courts have the power to entrust investigation to the Central Bureau of Investigation in appropriate cases. However, in state of West Bengal and others Vrs. Committee for Protection of Democratic Rights, West Bengal and others since reported in AIR 2010 SC 1476 the Constitution Bench of the Hon’ble Supreme Court while taking the view that the High Court has wide powers under Article 226 of the Constitution of India to direct investigation by C.B.I. into a cognizable offence, cautioned that the courts must exercise such power with certain self imposed restrictions. Para-70 of the judgment of the Constitution Bench in State of West Bengal and others (Supra) reads as under: “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 Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 7 great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation a concerned, although 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 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 instill confidence in investigations or where the incident may national 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.” It would be clear from the opinion of the Constitution Bench quoted above that the power of this Court under Article 226 Patna High Court CR. WJC No.649 of 2011 (5) dt.05-10-2012 8 of the Constitution to direct investigation by the CBI is to be exercised sparingly, cautiously and in exceptional situations and the order directing the CBI to investigate the case is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. In the present case, I do not find that the cases noted have any extraordinary feature. They are routine criminal cases having neither any national nor any internal ramifications. The petitioner has failed to show any compelling reason for which the cases mentioned above need to be necessarily investigated by the C.B.I. Moreover, one of the son of the petitioner has already filed complaint case in court which is under enquiry. In that view of the matter, I am not inclined to allow the prayer made by the petitioner for CBI investigation into cases referred to above. The writ petition is dismissed, accordingly. However, in fairness of the matter, the Superintendent of Police, Begusarai is directed to personally supervise the investigation of all the three cases referred to above. (Ashwani Kumar Singh, J) B.Kr./-