NEETU KUMAR NAGAICHversusTHE STATE OF RAJASTHAN AND OTHERS

                         [2020] 6 S.C.R. 1015                              1015


                    NEETU KUMAR NAGAICH                                    A
                                   v.
          THE STATE OF RAJASTHAN AND OTHERS
                (Writ Petition (Crl.) No. 141 of 2020)
                       SEPTEMBER 16, 2020                                  B

             [R. F. NARIMAN, NAVIN SINHA AND
                    INDIRA BANERJEE, JJ.]
      Investigation:
       De novo investigation – Writ Petition before Supreme Court          C
seeking transfer of criminal case from State Police to CBI – Alleging
several deficiencies in the investigation – On direction by Supreme
Court to conclude the investigation within stipulated time, police
filed Closure Report – Held: A fair investigation is as much a part
of Constitutional right guaranteed u/Art. 21 of the Constitution as
                                                                           D
a fair trial – The Constitutional Court has power to direct de novo
investigation in exceptional circumstances in order to prevent
miscarriage of justice – In the facts and circumstances of the case,
entire investigation and the closure report lack bonafide – The interest
of justice requires a de novo investigation, to sustain the confidence
of the society in the rule of law – Therefore, the Closure Report is       E
set aside and de novo investigation is directed to be conducted by a
fresh team of investigators of State police – Constitution of India –
Art. 21.
      Allowing the petition, the Court
      HELD: 1. A fair investigation is as much a part of a                 F
constitutional right guaranteed under Article 21 of the
Constitution as a fair trial, without which the trial will naturally
not be fair. Normally when an investigation has been concluded
and police report submitted under Section 173(2) Cr. P.C., it is
only further investigation that can be ordered under Section               G
173(8) Cr. P.C. But where the constitutional court is satisfied
that the investigation has not been conducted in a proper and
objective manner, fresh investigation with the help of an
independent agency can be considered to secure the ends of
justice so that the truth is revealed. The power may also be
                                                                           H
                                 1015
1016            SUPREME COURT REPORTS                      [2020] 6 S.C.R.


 A     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. The power of the constitutional court
       to order fresh or de novo investigation could also be exercised
 B
       after commencement of the trial and the examination of some
       witnesses could not be an impediment. [Paras 9 and 12][1020-H;
       1021-A-C; 1024-G]
             Kashmeri Devi v. Delhi Administration, (1988) Suppl.
             SCC 482 : [1988] 3 SCR 700; Babubhai v. State of
 C           Gujarat, (2010) 12 SCC 254 : [2010] 10 SCR 651;
             Bharati Tamang v. Union of India, (2013) 15 SCC 578
             : [2013] 14 SCR 525; Zahira Habibulla H. Sheikh v.
             State of Gujarat, (2004) 4 SCC 158 : [2004] 3 SCR
             1050; Pooja Pal v. Union of India, (2016) 3 SCC 135 :
 D           [2016] 11 SCR 560; Dharam Pal v. State of Haryana,
             (2016) 4 SCC 160 : [2016] 1 SCR 194 – relied on.
             2. In the present case, 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
 E     was registered very much belatedly 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 with the respondents insisting that the
       death was accidental and that the nature of injuries could not
 F     attribute a homicidal death. Earlier the husband of the petitioner
       had also petitioned the High Court where the respondents insisted
       that the death was accidental in nature. The High Court despite
       noticing the long pendency of the investigation took a misguided
       approach and passed an open ended order to investigate the case
 G     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 this Court ordered that the
       investigation be concluded within a period of two months that
 H
 NEETU KUMAR NAGAICH v. STATE OF RAJASTHAN AND                           1017
                   OTHERS

suddenly a very lengthy investigation closure report has been            A
filed taking a stand that though the death was homicidal there
was no clue. The closure report is therefore, 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
                                                                         B
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. [Para          C
13][1025-C-H; 1026-A-B]
      3. Therefore, the closure report is set aside and a de novo
investigation is directed, to be conducted 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            D
modern investigation technology. No officer who was part of the
investigating team leading to the closure report shall be part of
the team conducting de novo investigation. Such fresh
investigation must be concluded within a maximum period of two
months. [Para 14][1026-C-D]
                                                                         E
                       Case Law Reference
[1988] 3 SCR 700                 relied on              Para 9
[2010] 10 SCR 651                relied on              Para 9
[2013] 14 SCR 525                relied on              Para 10          F
[2004] 3 SCR 1050                relied on              Para 10
[2016] 11 SCR 560                relied on              Para 11
[2016] 1 SCR 194                 relied on              Para 12
      CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.)               G
No. 141 of 2020.
      Under Article 32 of the Constitution of India
      Dr. Manish Singhvi, Sr. Adv., Sunil Fernandes, Ms. Astha Sharma,
Prastut Dalvi, Ms. Mantika Haryani and Sandeep Kumar Jha, Advs. for
the appearing parties.                                                   H
1018             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


 A           The Judgment of the Court was delivered by
             NAVIN SINHA, J.
              1. 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
 B     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,
 C     Jodhpur City, Rajasthan to the Central Bureau of Investigation.
              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
 D     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
 E     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
 F     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”.
              3. The railway authorities had confirmed, Annexure P-2, that during
       the intervening night approximately five trains had crossed the track and
 G     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
 H     in nature. The caretaker of the warehouse near the place of occurrence
  NEETU KUMAR NAGAICH v. STATE OF RAJASTHAN AND                                  1019
             OTHERS [NAVIN SINHA, J.]

has not been examined on the frivolous pretext that he was deaf and              A
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              B
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
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           C
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          D
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             E
investigation, the petitioner preferred the instant writ petition on 20th
May, 2020. This Court on 8.07.2020 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 raises more
questions with regard to the nature of investigation done by him, than it        F
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             G
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           H
1020            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


 A     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
 B
       or found. There was no occasion for this Court to either direct further or
       fresh investigation. The 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
 C     03.09.2020 filed pursuant to our order dated 8.07.2020. 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
 D     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
 E     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 a homicidal
       death with no clue, ruling out an accidental death by collision with a
 F     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
 G     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
 H     report submitted under Section 173(2) of the Code, it is only further
  NEETU KUMAR NAGAICH v. STATE OF RAJASTHAN AND                                  1021
             OTHERS [NAVIN SINHA, J.]

investigation that can be ordered under Section 173(8) of the Code. But          A
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 revealed. The power
                                                                                 B
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        C
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           D
      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   E
      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 sheet and the
supplementary charge sheet coupled with a mandamus for a de novo                 F
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                     G
      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             H
1022      SUPREME COURT REPORTS                           [2020] 6 S.C.R.


 A     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.”
 B
                                  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
 C     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 for investigation
          de novo wherein the case presents exceptional
 D        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.
 E                                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.
 F
                                  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
 G
       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

 H
 NEETU KUMAR NAGAICH v. STATE OF RAJASTHAN AND                                 1023
            OTHERS [NAVIN SINHA, J.]

      41.7. In appropriate cases even if the charge-sheet is filed it is       A
      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           B
      direct for investigation de novo.”
      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    C
      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   D
      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.
                                                                               E
                                  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        F
      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               G
      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:
                                                                               H
1024            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


 A           “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.
 B
                 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
 C           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
 D           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
 E           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
 F           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.”
              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
 G     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
 H
  NEETU KUMAR NAGAICH v. STATE OF RAJASTHAN AND                                   1025
             OTHERS [NAVIN SINHA, J.]

       and examination of some witnesses cannot be an absolute                    A
       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
                                                                                  B
       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            C
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
was registered very much belatedly on 29.06.2018, albeit reluctantly,
only at the persistence of the petitioner and her husband after they              D
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          E
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       F
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 of two months and the final
report be placed before us, that suddenly a very lengthy investigation            G
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
                                                                                  H
1026             SUPREME COURT REPORTS                            [2020] 6 S.C.R.


 A     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
 B
       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
 C     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
       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
 D     before the court concerned whereafter the matter shall proceed in
       accordance with law.
              15. The writ petition is allowed.


       Kalpana K. Tripathy                                            Petition allowed.
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