STATE OF RAJASTHAN Vs. PHOOL CHAND GARG

JUDGEMENT

(1.) Ordinarily we would not have liked to go in this appeal into the question to legality of the order* dated 6/02/1987, of the learned single Judge made in Writ Petition No.2386/86 as after the aforesaid order was made, investigation was taken over by the CBI and the investigation is said to be almost complete but because a larger issue about the powers of this Court to interfere at the stage of investigation or transfer of the case from the local police to CBI, is involved we will proceed to examine the issue. * 1987 Raj Cri C 72.

(2.) We may at the outset State that we would not like to go into the question whether the death of Praksah Chand Garg was as a result of the accident as alleged by the prosecution or was a murder as alleged by Phool Chand Garg, his brother. This is a matter which depends on the collection of evidence and is to be adjudged by the Court. All that we may state in this Special appeal is that one Damodar Prasad who is said to be the nephew of Phool Chand Garg, the petitioner in the aforesaid writ petition in this Court, now presented FIR No.294/86 lodged on 1/08/1986, at 10 p.m. Police Station Sawai Madhopur that Prakash Chand Garg was coming on a motor cycle from Anaj Mandi and near a kund there was an accident in between motor cycle and one jeep as a result of which Prakash Chand received serious injuries and the motor cycle was broken. Prakash Chand was taken to the Hospital. On a report, the case under S. 279, IPC was registered because the said Prakash Chand had died, an offence under S. 304A, IPC was also added. It appears that when the case was pending investigation, some allegations were levelled against the investigating agency and therefore the case was transferred to CID. When the investigation was pending before the CID it appears that serious doubts were expressed so far as version contained in the FIR is concerned and it was alleged that on the death of Prakash Chand wide publicity was given in news papers that Prakash Chand Garg had not died in accident as alleged but he used to play cards on stake with some police officers including Sube Singh Chaudhary, Dy. S.P. (ACD) and on that day he actually had won a sum of Rs. 1000.00 and wanted to leave as he had to proceed for Delhi, but Sube Singh and other players compelled him not to leave and therefore some scuffle took place and Sube Singh and others gave beating to Prakash Chand as a result of which he died. After investigation a report was registered and Prakash Chand died during the investigation of the case. The post-mortem was conducted on the dead body of Prakash Chand and a perusal of the post-mortem report which is available in the file of S.B. Civil Writ Petition No.2386/86 will show that the cause of death was described as syncope and shock as a result of haemorrhage (internal). As many as two external injuries were found-namely,

(3.) We will now revert to the powers of the Court so far as transfer of investigation from local police to C BI is concerned. Under S. 2 of the Delhi Special Police Establishment Act, 1946, (for short, the Act) the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union Territory of offences notified under S. 3 of the Act. Power is vested under S. 3 of the Act to notify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. Under Section 5 of the Act the Central Government may by order extend to any area including railway areas in a State, not being a Union Territory the powers and jurisdiction of Members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. But no member of Delhi Special Police Establishment can exercise powers and jurisdiction in any area in a State not being a Union Territory or railway area without the consent of the Government of that State by virtue of S. 6 of the Act. There is no dispute that from time to time notifications have been issued under Section 3 of the Act specifying the offences or class of offences which are to be investigated by the Delhi Police Establishment and on being asked Mr. S.P. Tyagi who is counsel for CBI for this Court brought to our notice a notification containing the list of offences which have been authorised to be investigated by the Delhi Police Establishment. It will appear from the aforesaid list that it also contains the offences under Ss. 279, 338 and 304A, IPC. Therefore, there can be no dispute that the officers of the Delhi Police Establishment have power to investigate the offences under the aforesaid Sections of the Indian Penal Code also. No material has been placed before us whether there has been any consent under S. 6 of the Act of the State Government, but it can hardly be disputed that in case this Court orders that the case should be investigated by the CBI, no consent of the State Government is necessary. The Supreme Court in the case of State of West Bengal v. Sampat Lal, AIR 1985 SC 195 at , has said that consent under S. 6 of the Act would not be a condition precedent to compliance with the Court's direction and S. 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation. Therefore, it may be that a mandamus under Article 226 of the Constitution may be issued directing the State Government to transfer the investigation or to direct the CBI to make the investigation in a case registered with any local police station, but the powers under Art. 226 of the Constitution are wide enough and this Court in a proper case, if satisfied that the investigation is not proceeding in a right manner, can order the transfer of investigation from local police to CBI. It can hardly be disputed that residuary powers vest in this Court and for public interest and the Court may give direction that the case pending investigation with the local police may be transferred to CBI even if the offence is one in respect of which the notification under S. 3 of the Act has not been issued, this Court will have still power to order that the investigation of a case will be transferred to CBI for investigation and the CBI will investigate the case and proceed thereafter in accordance with law. But the question is as to what should be the guidelines for exercise of the aforesaid residuary powers of the Court, whether for mere asking by a party this Court should order the transfer of the investigation from the local police to CBI, or the Court will have to peruse the case diary and other material in order to see whether the investigating agency is proceeding impartially and is not acting in a partisan manner. The Supreme Court had the occasion to examine the question in the aforesaid case of Sampatlal (supra) and said that unless there is some material on record for the Court to be satisfied that the investigation is not being conducted properly, it should not order the transfer of it. We may state that the crime detection has been under the provisions of the Code of Criminal Procedure and generally, the SHO, of the police Station where the case has been registered should be allowed to continue and complete the investigation, but if in a given case, a case is made out before the Court that the investigation is not proceeding properly or is being influenced by out-side authority and even otherwise there is material that it is proceeding in partisan manner, the Court has power to transfer the investigation from the local police to CBI, but in such a case the State should be given an opportunity to explain the course of investigation and satisfy that the allegations made that it was proceeding in a partisan manner were not prima facie correct. Mr. Goyal, learned counsel for the non-petitioner has brought to our notice few decisions whether the cognizance has been taken or not, whether there is any ground or not, the Court can order the transfer of investigation from local police to CBI. He has referred to the case of Manoharlal v. Vijailal, 1986 RLW 127, wherein the learned Judge observed that