Supreme Court of India
POOJA PALversusUNION OF INDIA AND ORS.
- Citation
- 2016 INSC 86
- Decided
- 22 January 2016
- Disposal
- Appeal(s) allowed
- Bench
- V GOPALA GOWDA
Holding
In exceptional circumstances where the existing investigation is unfair or ineffective, the court may direct a de novo investigation by an impartial agency such as the CBI, even if the trial is ongoing.
Summary
Pooja Pal, the widow of slain MLA Raju Pal, alleged that the state police and administration were complicit or indifferent in the murder of her husband and sought a fresh investigation by the Central Bureau of Investigation (CBI). The High Court dismissed her writ petition, but the Supreme Court held that when an investigation is ineffective, unfair or biased, the court may invoke its residuary jurisdiction under Articles 20, 21 and 32 to order a de novo investigation by an impartial agency, even if a trial is pending and charge‑sheets have been filed. Applying this principle to the exceptional facts—public, politically‑charged murder, hostile witnesses, and alleged police pressure—the Court directed the CBI to undertake a fresh probe within six months and stayed the trial until the CBI report is received. The appeal was allowed, and the trial court was instructed to conclude the trial within six months of receiving the CBI report.
Issues considered
- The court may order a fresh investigation by the CBI despite pendency of trial and existing charge‑sheets.
- Whether the investigation by the state police and CBCID was ineffective or biased warranting judicial intervention.
- Scope of the court's residuary jurisdiction under Articles 20, 21 and 32 of the Constitution.
- Applicability of Sections 311, 391 of the CrPC and Section 165 of the Evidence Act to direct further investigation.
- Whether Section 6 of the Delhi Special Police Establishment Act limits the court's power to direct CBI investigation.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 173(8), s. Section 311, s. Section 391
- Constitution of Indias. Article 20, s. Article 21, s. Article 32
- Delhi Special Police Establishment Act, 1946s. Section 6
- Indian Evidence Act, 1872s. Section 165
- Indian Penal Code, 1860s. Section 1208, s. Section 120B, s. Section 148, s. Section 149, s. Section 302, s. Section 307
Subjects
CBI investigationfair trialArticle 20Article 21Article 32judicial interventionmurderpolitical influencere‑investigationresiduary jurisdictioncriminal procedurewitness protection
Judgment
[2016] 11 S.C.R. 560
A POOJA PAL
v.
UNION OF INDIA AND ORS.
(Criminal Appeal No. 77 of2016)
B JANUARY22, 2016
[V. GOPALA GOWDA AND AMITAVA ROY, JJ,]
Constitution of India - Arts.20, 21 and 32 - Remedial
intervention - Murder - Entrustment of investigation to an
C i11stru111entality other than the local I State police agencies -
Appellant's husband gunned down in a public place in broad
daylight .,- Deceased was a sitting ML.A. of U.P. State Assembly,
having defeated respondent no.5, in the bye elections held a few
months earlier - In the FIR filed by the appellant soon after the
incident, she named respondent no.5 to be the assailant who shot
D appellant's husband in the head, being acco111panied by others -At
that time, respondent no.4, brother of respondent no.5 ·was a member
of the Parliament - Allegation of appellant that respondenr no.4
was involved in the conspiracy to eliminate her husband - Writ
petition filed by appellant seeking investigation by CBI into the
E incident on ground of perceived involvement of the State
administration and the police in particula1; in the perpetration of
th"e cri111e and their passive and indifferent disposition in taking
steps as required in law - Dismissed by High Court - Held: If
investigation is neither effective nor purposeful nor objective nor
fair, it would be the solemn obligation of the courts, if considered
·F necessary, to order further investigation or re-investigation as the
case may be, to discover the truth so as to prevent miscarriage of
justice - No inflexible guidelines or hard and fast rules as such can
be prescribed by way of uniform and universal invocation - The
decision is to be conditioned to the attendant facts and circumstances
G - On facts, notwithstanding pendency of the trial, and availability
of power of the courts below u/ss.311 and 391 CrPC rlw s.165 of
the Evidence Act, CBI directed to undertake a de-nova investigation
in the incident in view of the exceptional features of the case, and
in order to rule out any possibility of denial ofjustice to the parties
and 111ore i111portantly to instill and sustain the confidence of the
H
560
POOJA PAL v. UNION OF INDIA AND ORS. 561
'
community at large - CBI to submit report before trial court, within A
six months - Trial court to thereafter conduct and conclude the
trial within six months - Criminal law - Investigation.
Administration of Justice - Judiciary - Purpose of - Held: A
court of lmv has to be an involved participant in the quest for truth
and justice and is not expected only to officiate a formal ritual in a B
proceeding forseeing an inevitable end signaling travesty ofjustice.
Allowing the appeal, the Court
HELD: 1.1. As fundamentally, justice not only has to be
done but also must appear to have been done, the residuary
jurisdiction of a court to direct further investigation or c
reinvestigation by any impartial agency, probe by the state police
notwithstanding, has to be essentially invoked if the statutory
agency already in-charge of the investigation appears to have
been ineffective or is presumed or inferred to be not being able
to discharge its functions fairly, meaningfully and fructuously. As D
the cause of justice has to reign supreme, a court of law cannot
reduce itself to be a resigned and a helpless spectator and with
the foreseen consequences apparently unjust, in the face of a
faulty investigation, meekly complete the formalities to record a
foregone conclusion. Justice then would become a casualty.
Though a court's satisfaction of want of proper, fair, impartial and E
effective investigation eroding its credence and reliability is the
precondition for a direction for further investigation or
reinvestigation, submission of the charge-sheet ipso f(lc/o or the
pendency of the trial can by no means be a prohibitive impediment.
The contextual facts and the attendant circumstances have to be F
singularly evaluated and analyzed to decide the needfulness of
further investigation or reinvestigation to unravel the truth and
mete out justice to the parties. [Para 76] [604-D-H; 605-A]
1.2. It is judicially acknowledged that fair trial includes fair
investigation as envisaged by Articles 20 and 21 of the Constitution G
of India. Though, well demarcated contours of crime detection
and adjudication do exist, if the investigation is neither effective
nor purposeful nor objective nor fair, it would be the solemn
obligation of the courts, if considered necessary, to order further
investigation or reinvestigation as the case may be, to discover
H
562 SUPREME COURT REPORTS [2016111 S.C.R.
A the truth so as to prevent miscarriage of the justice. No inflexible
guidelines or hard and fast rules as such can be prescribed by
way of uniform and universal invocation and the decision is to be
conditioned to the attendant facts and circumstances, motivated
dominantly by the predication of advancement of the cause of
B justice. (Para 79) (605-E-H)
Zahira Habibulla H. Sheikh and Am: v. State of Gujarat
and Ors. (2004) 4 SCC 158 : 2004 (3) SCR 243; State
of West Bengal and others v. Committee for Protection
of Democratic .Rights, West Bengal and others (2010) 3
SCC 571 : 2010 (2) SCR 979; Babubhai v. State of
c Gujarat and others (2010) 12 SCC 254 : 2010 (11)
SCR 857; Mohd. Hussain alias Julfikar Ali v. State
(Government of NCT of Delhi) (2012) 9 SCC 408 : 2012
(10) SCR 480; Bharati Tamang v. Union of India and
others (2013) 15 SCC 578 : 2013 (14) SCR 525; State
D of West Bengal and others v. Sampat Lal and others
(1985) 1 SCC 317 : 1985 (2) SCR 256; Vineet Narain
and others v. Union of India and another (1996) 2 SCC
199 : 1996 (1) SCR 1053; Union of India and others "
Sushi/ Kumar Modi and others (1998) 8 SCC 661;
Common Cause, A Registered Society v. Union of India
E and others (1999) 6 SCC 667 : 1999 (3) SCR 1279;
Secretary, Minor Irrigation & Rural E1rgineering
Services, U.P. and Others v. Sahngoo Ram Arya
and Anr. (2002) 5 SCC 521; Disha v. State of Gujarat
. & Ors. (2011) 13 sec 337 : 2011 (9) SCR 359;
F K. V. Rajendran v. Superintendent of Police, CBCID
South Zone, Chennai and Ors. (2013) 12 SCC 480 :
2013 (9) SCR 199; Hussainara Khatoon & others v.
Home Secretary, State of Bihar (1980) 1 SCC 81 : 1979
(3) SCR 169; Abdul Rehman Antulay and others v. R.S.
Nayak and another (1992) 1 SCC 225 : 1991 (3) Suppl.
G SCR 325; P. Ramachandra Rao v. State of Karnataka
(2002) 4 SCC 578; Vakil Prasad Singh v. State of Bihar
(2009) 3 SCC 355 : 2009 (1) SCR 517; Kashmeri Devi
v. Delhi Administration and another 1988 (Suppl.) SCC
482 : 1988 SCR 700; Gudalure M.J. Cherian and others
H v. Union of India and others (1992) 1 SCC 397 : 1991
POOJA PAL v. UNION OF INDIA AND ORS. 563
(3) Suppl. SCR 251; Punjab and Haryana High Court A
Bar Association, Chandigarh through its Secretary v.
State of Punjab and others (1994) 1 SCC 616 : 1993
(3) Suppl. SCR 915; Inder Singh v. State of Punjab and
others (1994) 6 SCC 275 : 1994 (3) Suppl. SCR 573;
Rubabbuddin Sheikh v. State of Gujarat and others
B
(2010) 2 SCC 200 : 2010 (1) SCR 991; K. Saravanan
Karuppasamy and another v. State of Tamil Nadu and
Ors. (2014) (10) SCC 406 : 2014 (7) SCR 1149; Sudipta
Lenka v. State of Odisha and Others. (2014) 11 SCC
527 : 2014 (3) SCR 693; Jennison v. Baker (1972) 1
All ER 997; Karnel Singh v. State of MP. (1995) 5 SCC c
518 : 1995 (2) Suppl. SCR 629; Ram Bihari Yadav v.
State of Bihar & others (1998) 4 SCC 517 : 1998 (2)
SCR 1097; Kartar Singh v. State of Punjab (1994) 3
SCC 569 : 1994 (2) SCR 375; State of MP. v. Bhooraji
and others (2001) 7 SCC 679 : 2001 (2) Suppl. SCR
D
128; Manu Shar111a v. State (NCT of Delhi) (2010) 6
SCC 1 : 2010 (4) SCR 103; State of Bihar and another
v. JAC Saldanha and others (1980) 1 SCC 554 : 1980
(2) SCR 16; Vinay Tyagi v Irshad Ali @ Deepak and
others (2013) 5 SCC 762 : 2012 (13) SCR 1005; Sa111aj
Parivartan Samudaya and others v. State of Karnataka E
and others (2012) 7 SCC 407 : 2012 (5) SCR 1074;
Rattiram and others v. State of Madhya Pradesh (2012)
4 SCC 516 : 2012 (3) SCR 496; National Human Rights
Commission v. State of Gujarat and others (2009) 6 SCC
767 : 2009 (7) SCR 236; Maria Marp;arida Sequeira
F
Fernandes and others v. Eras1110 Jack De Sequeira
(dead) through L.Rs (2012) 5 SCC 370 : 2012 (3) SCR
841; Ritesh Tewari and another v. State of U.P. and
others (2010) 10 SCC 677 : 2010 (11) SCR 589; Jones
v. National Coal Board (1957) 2 All ER 155(CA) Vinod
Kumqr v. State of Puniab (2015) 3 SCC 220 : 2015 (1) G
SCR 504 Manohar Lal Sharma v. Principal Secretary
and others (2014) 2 sec 532 - referred to.
Criminal Investigation - Basic Perspectives by Paul
B. Weston and Renneth M Wells - referred to.
H
564 SUPREME COURT REPORTS [2016] 11 S.C.R.
A 2.1. Reverting to the facts, the gruesome and sordid
assassination of the appellant's husband in broad day light under
the public gaze is not in dispute. As a consequence of the
murderous assault with firearms and indiscriminate use thereof,
appellant's husband (Raju Pal) along with two others fell to the
bullets. Records seem to suggest that even prior to the incident,
B
attempts were made on his life but he survived the same in view
of the timely intervention of the security guards. That
representations were made by him seeking additional protection
and that after his murder, the appellant and the party higher ups
of Raju Pal had persistently appealed, amongst others, to the
c Governor and the Chief Minister of the State for handing over
the investigation to the CBI is also testified by the records. [Para
90) [609-G-H; 610-A)
2.2. Pleaded imputations of the appellant include deliberate,
uncalled for and mysterious replacement of the earlier sets of
D personal security officers/gunners of the deceased, presence of
high police officials near the place of occurrence, indifference on
the part of the state police to act with alacrity, hasty conduct of
the post mortem of the dead body and cremation thereof without
handing over the same to the appellant or any of his relatives,
political pressure on .the investigating agency to distort the course
E of the probe and to screen the incriminating evidence collected
etc. One of the Investigating Officers in his writ petition,
questioning his suspension had also pleaded on oath about the
unexpected and unwarranted interference of the higher ups in
the department to withhold evidence gathered in course of the
F investigation underway. Though nothing decisively turn on these
accusations, the same having been refuted by the respondents,
the fact remains that the appellant's husband had been mercilessly
killed by a group of gun wielding assailants in a public place, in
the open view of all concerned. Such a daring and desperate act
did have a terrorizing impact on the society sending shock waves
G amongst all cross sections of the community and received wide
coverage by the media. The incident understandably is not one
to be lightly glossed over or trivialized. [Para 91) [610-B-El
2.3. The trial on the basis ofthe investigation completed
. hitherto by the State police and the CBCID has remained stayed
H
POOJA PAL v. UNION OF INDIA AND ORS. 565
by the orders of this Court. Prior thereto however as per the A
materials laid before this Court, several eye-witnesses cited by
the investigating agency have been examined. They seem to
have resiled from their statements under Section 161 of CrPC.
Having regard to the manner in which the offence had been
committed, it is incomprehensible that there was no eye-witness
B
to the incident. Thus, if the persons cited as eye-witnesses by
the investigating agency retract from their version made before
the police, then either they have been wrongly projected as eye-
witnesses or they have for right or wrong reasons resiled from
their earlier narration. In both the eventualities, the investigation
has to be faulted as inefficient, incomplete and incautious with c
the inevitable consequence of failure of the prosecution in the
case in hand. Such a fall out also spells a dismal failure of the
state machinery as a pivotal stake holder in the process of justice
dispensation to protect and assure the witnesses of their safety
and security so to fearlessly testify the truth. However, these
D
observations are by no means suggestive of the complicity of the
respondent Nos. 4 & 5 and other accused persons standing trial.
The very fact that this Court had earlier stayed the trial while
permitting the appellant to approach the High Court with the
relief for assignment of the investigation to the CBI does signify
its expectation that the High Court would adopt a sensitive insight E
into the is~ues raised and appropriately address the same. The
pendency of the trial and the examination of the witnesses so far
made thus is not a disarming factor for this Court, to consider
the necessity of entrusting the investigation to the CBI even at
this stage. [Para 92] (610-E-H; 611-A-E)
F
3.1. The present factual conspectus leaves one with a choice
either to let the ongoing trial casually drift towards its conclusion
with the possibility of offence going unpunished or to embark
upon investigation belated though, spurred by the intervening
developments, to unravel the truth, irrespective of the persons
involved. As it is, every offence is a crime against the society G
and is unpardonable, yet there are some species of ghastly,
revolting and villainous violations of the invaluable right to life
which leave all sensible and right minded persons of the society
shell shocked and traumatized in body and soul. Such incidents
H
566 SUPREME COURT REPORTS f2016l 1l S.C.R.
A mercifully rare though are indeed exceptionally agonizing, eliciting
resentful condemnation of all and thus warrant an extra-ordinary
attention for adequate remedial initiatives to prevent their
recurrence. Even if such incidents otherwise diabolical and
horrendous do not precipitate, national or international
ramifications, these undoubtedly transcend beyond the confines
B
of individual tragedies and militatively impact upon the society's
civilized existence. If the cause of complete justice and protection
of human rights are the situational demands in such contingencies,
order for further investigation or reinvestigation, even by an
impartial agency as the CBI ought to be a peremptory measure
c in the overwhelming cause of justice. [Para 93] (611-F-H; 612-A-
B]
3.2. Judged in these perspectives, this Court is of the firm
opinion that notwithstanding the pendency of the trial, and the
availability of the power of the courts below under Sections 311
D and 391 of CrPC read with Section 165 of the Evidence Act, it is
of overwhelming and imperative necessity that to rule out any
possibility of denial of justice to the parties and more importantly
to instill and sustain the confidence of the community at large,
the CBI ought to be directed to undertake a de novo investigation
in the incident. In the unique facts and circumstances of the case
E any contrary view would leave the completed process of crime
detection in the case wholly inconsequential and the judicial
process impotent. A court of law has to be an involved participant
in the quest for truth and justice and is not ex1>ected only to
officiate a formal ritual in a proceeding forseeing an inevitable
F end signaling travesty of justice. Mission justice so expectantly
and reverently entrusted to the judiciary would then be reduced
to a teasing illusion and a sovereign and premier constitutional
institution would be rendered a suspect for its existence in public
estimation. Considering the live purpose for which judiciary
exists, this would indeed be a price which it cannot afford to bear
G under any circumstance. [Para 94) [612-B-E]
4.1. In the wake of the above, the CBI is entrusted, with
the task of undertaking a de novo investigation in the incident of
murder of Raju Pal, the husband of the appellant. However, it is
made abundantly clear that this direction for entrustment of the
H
POOJA PAL v. UNION OF INDlA AND ORS. 567
investigation to the CBI anew has been made in view of the A
exceptional features of the case as overwhelmingly demonstrated
by attendant facts and circumstances indispensably necessitating
the same. [Para 95) [612-F, G-H; 613-A)
4.2. The call of justice however demands, that the CBI in
spite of the constraints that it may face in view of the time lag, B
would make all possible endeavours to disenter the truth through
its effective and competent investigation and submit the same
before the trial court, as early as possible preferably within the
period of six months. On receipt of the report by the CBI only,
the trial court would proceed therewith in accordance with law
and conduct and conclude the trial expeditiously and not later c
than six months. The interim order staying the ongoing trial is
hereby made absolute. [Para 96) [613-B-CJ
Case Law Reference
2004 (3) SCR 243 referred to Para 32 D
2010 (2) SCR 979 referred to Para32
2010 (11) SCR 857 referred to Para32
2012 (10) SCR 480 referred to Para32
2013 (14) SCR 525 referred to Para32 E
1985 (2) SCR 256 referred to Para35
1996 (1) SCR 1053 referred to Para35
0?98) 8 sec 661 referred to Para35
1999 (3) SCR 1279 referred to Para35 F
(2Q02) 5 sec 521 referred to Para35
2011 (9) SCR 359 referred to Para35
2013 (9) SCR 199 referred to Para35
1979 (3) SCR 169 referred to Para35 G
1991 (3) Suppl. SCR 325 referred to Para 35
(2Q02) 4 sec 578 referred to Para35
20Q~ (1) SCR 517 referred to Para 35
H
568 SUPREME COURT REPORTS [2016] 11 S.C.R.
A 1988 SCR 700 referred to Para 35
1991 (3) Suppl. SCR 251 referred to Para35
1993 (3) Suppl. SCR 915 referred to Para 35
1994 (3) Suppl. SCR 573 referred to Para 35
B 2010 (1) SCR 991 referred to Para 35
2014 (7) SCR 1149 referred to Para 36
2014 (3) SCR 693 referred to Para 36
(1972) 1 All ER 997 referred to Para 52
c 1995 (2) Suppl. SCR 629 referred to Para 54
1998 (2) SCR 1097 referred to Para 54
1994 (2) SCR 375 referred to Para 57
2001 (2) Suppl. SCR 128 referred to Para 57
D
2010 (4) SCR 103 referred to Para 64
1980 (2) SCR 16 referred to Para 67
2012 (13) SCR 1005 referred to Para 81
2012 (5) SCR 1074 referred to Para 82
E
2012 (3) SCR 496 referred to Para 83
2009 (7) SCR 236 referred to Para 84
2012 (3) SCR 841 referred to Para 85
F 2010. (ll) SCR 589 referred to Para 85
(1957) 2 All ER 155(CA) referred to Para 85
2015 (1) SCR 504 referred to Para 86
(2014) 2 sec 532 referred to Para 88
G CRlMINALAPPELLATE JURISDICTION: Criminal Appeal No.
77 of2016.
From the Judgment and Order dated 22.05.2014 of the High Court
of Judicature at Allahabad in Criminal Misc. Writ Petition No. 6209 of
2006.
H
POOJA PAL v. UNION OF INDIA AND ORS. 569
R. S. Sodhi, Sr. Adv., Ms. Manisha Bhandari, Omkar Srivastava, A
Divyadeep Chaturvedi, Nipush M. Joshi, Ankit Kushwaha, Rameshwar
Prasad Goyal, Advs. for the Appellant.
Ms. V. Mohana, P. N. Misra, Sr. Advs., Tara Chandra Sharma,
K. L. Janjani, B. V. Balaram Das, D. L. Chidanand, Ms. Sunita Goutam,
Ms. Sushma Suri,Ardhendumauli Kumar Prasad, Manoj Goel, Shuvodeep B
Roy, S. Han if Khan, Ad vs. for the Respondents.
The Judgment of the Court was delivered by
AMITAVA ROY, J. I. Leave granted.
2. The appellant, widow of slain Raju Pal, who at his death was a c
sitting M.L.A. of Uttar Pradesh State Assembly, is before this court in
her relentless pursuit for securing investigation by the Central ·Bureau of
Investigation (CBI) into the stirring incident of murderous attack on her
husband, snuffing their a week old marital tie. This is the appellant's
second outing before this forum, she having been relegated earlier to the
High Court, to seek the remedy at the first instance. By the decision D
impugned, the High Court has declined the relief sought for.
3. We have heard Mr. R. S. Sodhi, learned senior counsel for the
appellant, Ms. V. Mohana, learned senior counsel for the respondent
Nos. I & 2, Mr. P.N.Misra, learned senior counsel for the respondent
No. 3 and Mr. Manoj Goel, learned counsel for the respondent Nos. 4 E
and 5.
4. The eventful factual backdrop is outlined by the available
pleadings. First the facts as narrated by the appellant. In the bye-
elections to the vacant seat of Allahabad (West) State Assembly, held
in the month of October 2004, the same having been vacated on the F
resignation of its incumbent Atiqe Ahmed, respondent No. 4, he having
been elected as a Member of Parliament from Phoolpur constituency,
Allahabad, the appellant's husband was elected thereto bydefeatingthe
nearest contender Mohd. Ashraf set-up by the Samajwadi Party.
Whereas the appellant's husband as the candidate of the Bahujan Samaj
G
Party (for short hereinafter referred to as "BSP.") secured 70537 votes
against 65713 votes polled by the respondent No. 5, the other candidates
representing the Congress and Bha11iya Janta Party fared very poorly in
comparison. According to the appellant, since his defeat, Moh. Ashraf
@ Khalid Azeem the respondent No. 5, along with his brother Atiqe
Ahmed respondent No. 4 as well as the then Chief Minister of the State H
570 SUPREME COURT REPORTS r2o 16111 s.c.R.
A had taken the set-back to be a matter of personal humiliation, defeat and
insult so much so that the respondent No. 4 declared in public that the
candidate elected would not be able to hold the seat for long. It has been
alleged by the appellant that subsequent thereto, continuous attempts·
were made to eliminate Raju Pal and that too with the connivance of the
local police and at the instigation of the respondent No. 4. The appellant
B
has asserted that as a consequence, the family members and the
supporters of her husband very often were assaulted and subjected to
harassment by arrests by the police and hired goons engaged by the
respondent Nos. 4 and 5 and that their property and personal belongings
were even destroyed.
c 5. The appellant alleged as well that the respondent No. 5 was a
history sheeter against whom several cases had been lodged involving
the offence of murder, but on account ofhis political clout and the following
of anti-social elements, no witness would even dare to give evidence of
his nefarious activities. This was more so, according to the appellant, as
D he enjoyed police patronage and protection. The appellant stated that
after the election of her husband as the Member of the Legislative
Assembly on 16.10.2004, three abortive attempts were made on his life
and the properties belonging to him and his close relatives were ransacked
and taken away. The appellant mentioned that the last attempt on the
life of her husband before the gruesome incident was made on
E 28.12.2004. Prior thereto amongst others, an attempt was also made in
the month of November, 2004, whereafter Raju Pal did submit a
representation to the Governor of the State on 04.11.2004, following
which the said constitutional authority had directed an inquiry to be made.
6. According to the appellant though the Governor of the State
F had directed that additional security be provided to her husband, it was
not done and instead his existing security staff was replaced by the
State Government. Such was the animosity as alleged by the appellant,
that the State Government even had withdrawn Raju Pal's official gunners
for whose timely intervention, he survived the attempt on his life on
G 28.12.2004 by the hired goons and henchmen of the respondent Nos. 4
and 5. The appellant has alleged that the two official gunners of her
husband were replaced by others on the choice of the local police and
the desire of the respondent Nos. 4 and 5 to ensure that Raju Pal does
not escape the next attempt. That in connection with the incident of
28.12.2004, Raju Pal had lodged a First Information Report with the
H
POOJA PAL v. UNION OF INDIA AND ORS. 571
fAMITAVA ROY, J.l
police in which he had named these respondents has been stated as A
well. This notwithstanding, buckling under political pressure, the police
even deleted the name of respondent No. 5 from the F.I.R. and made a
formality of some investigation.
7. The appellant has stated that on the date of the incident i.e.
25.01.2005 at 3 P.M., her husband Raju Pal was travelling in a vehicle B
accompanied by his two supporters Sandeep Yadav and Devi Lal Pal.
His two official gunners instead of accompanying him, and as a part of
the conspired plan were travelling in the second car behind his vehicle.
The vehicle in which the appellant's husband was travelling along with
his friend Singh Sahib and his wife on reaching Amit Deep Maruti Agency,
was intercepted and surrounded by eight persons, whereupon the c
respondent No. 5 Mohd. Ashraf shot him in his head. In course of the
shoot-out, Sandeep Yadav, Devi Dayal Pal and the appellant's husband
were seriously injured and they eventually succumbed to the injuries.
The appellant has alleged that the official gunners, who were travelling
in the car behind, not only did not intervene or retaliate to save Raju Pal D
but had abandoned their vehicle. She has alleged that reportedly, a
conspiracy was hatched in this regard, at the political level in connivance
with the top police officers including the Station Officer, Dhoomanganj,
Shri Parshuram, C.O. (Police), Civil Lines who were then present at the
spot alongwith Superintendent of PoHce (City) & Deputy Inspector
General of Police, Allahabad and Atiqe Ahmad, respondent No. 4. E
8. The appellant has stated as well that the assailants who were
in three different vehicles, left the site of the incident after resorting to
indiscriminate firing, whereupon the persons present along with the
supporters of the injured took Raju Pal out of the car and tried to rush to
the hospital in a three-wheeler. The appellant has mentioned that as F
per the account of the eyewitnesses present and as reported by the
media, the assailants returned and opened indiscriminate fire on Raju
Pal from a close range so as to ensure that he was dead. That a third
attack was made on the injured Raju Pal from a point plank range before
he could reach the hospital, where he succumbed to his injuries, has G
been stated in categorical terms. According to the appellant, though there
were four police stations on the route to the hospital, no police officer
did respond or offer to help the injured or his companions in their last
minute bid to save their lives.
9. The appellant on the very same date i.e. 25.01.2005 filed the H
572 SUPREME COURT REPORTS [2016] 11 S.C.R.
A FIR at 4.30 P.M., narrating the incident and also mentioning clearly, the
involvement of the respondent No. 4 as the brain behind the murder and
that the respondent No. 5 had shot Raju Pal in the head. The FIR was
registered as 31 /2005 dated 25.01.2005 of Dhoomanga1tj Police Station,
Allahabad, U.P. under Sections 147, 148, 149, 302, 307, 120B IPC.
8 I 0. The incident received rave media coverage as would be evident
from the following extract ofa news item of the daily "Times oflndia":
(para No. 2lofWrit Petition)
"Eyewitnesses said the assailants. who were about two
dozen in numbers. came in two Tata sumos and opened
c indiscriminate fire when the MLA's vehicle reached the
Chaufatka petrol pump. Pal, who was in the driver's seat.
was hit several times in the neck. chest and stomach.
His supporters immediately put him in an auto and rushed
him to a private nursing home in Rain Bagh area. The
assailants. however, continued firing even on the auto to
D
ensure his death. At the Fire Brigade crossing. the assai )ants
again opened fire. Just after reaching the hospital, Pal
succumbed to his injuries. Two police gunners of Pal
reportedly escaped from the scene.
Though the assailants kept on shooting at Pal on the entire
E stretch between Chaufatka and the nursing home covering
four police stations ofDhoomangang. Cantt. Civil Lines and
Kotwali, the police failed to react."
11. The appellant has further stated that the body of Raju Pal was
thereafter taken into custody by deploying heavy police force and
F thereafter a show of the post mortem was done hurriedly & secretly at
the Swaroop Rani Nehru Hospital at about 03.15 A.M. in the morning of
25-26/0 I /2005 without any information to the appellant or any family
member and in total violation of all norms pertaining to autopsy. The
appellant has stated that purposefully in order to ensure that the
G prosecution case is rendered weak, .the injuries indicated in the
postmortem report were described in a manner to be rendered doubtful
to have been caused by the two weapons recovered i.e., one DBBL
Gun and one 30 Spring Rifle. The appellant has thus stated that the
charge-sheet that was eventually submitted was merely an eye-wash to
save the respondent Nos. 4, 5 and their accomplices on one hand and to
H
POOJA PAL v. UNION OF INDIA AND ORS. 573
[AMlTAVA ROY, J.}
rule out the possibility of further investigation by the CBI and in the ·A
process hush up the true facts. According to her, the dead body of the
Raju Pal was thereafter cremated in the early morning of26.01 .2-005 at
Daraganj crematorium, but neither prior thereto, it.was handed to the
appellant nor the ashes were made available.'t() her.. As a 1nah.er' of
fact, the dead body was cremated as if it was an unclaimed body though
the deceased was a sitting Member of the LegislativeAssembly the of
B
State and his identity was well known to all, concerned including the·
~Ii~ . .
12. Even the representation made by the mother of Raju Pal on
26.01.2005 to the Senior Superintendent of Police to hand overthe dead
body of her son to her for final rites was not heeded too. AH fervent c
requests and appeals made by her in this regard failed. The appellant
has alleged that not only she as a widow was given a chance to have a
parting glance of the body of her husband, the dead bodies were disposed
of hurriedly without any notice to her as well as other family members
of Raju Pal presumably to wipe off all possible clues in support of the D
heinous crime. The appellant was married to the deceased Raju Pal only
on 16. l ,2005 i.e; hardly a week before the tragic incident .
. f3.' The appellan~ has stated as well that ha~ing regard to the
perceived involvement of the state administration ind the police in
particular, in the perpetration Of the. crime and their passive and indifferent E
disposition in laking steps as required in law, it was felt by all right
mim;led quarters thafinvestigatloi1 by ti1e C.B.I. was indispensably
warranted to unearth the diabolic plot arid identify the persons involved,
so as to ensure an impartial and meaningful enquiry for justice. In spite
of repeated representations, though submitted by the appellant herself
and the then President of the BSP, U.P. before the Governor, Chief F
Minister, Chief Secretary etc. of the State expressing in clear terms that
no impartial and dispassionate probe by the state police was possible in
the facts and circumstances of the case and having regard to the persons
involved, and that the exercise ought to be handed over to the C.BJ.,. the
same did not .
ineet
. .
with any favourable res~n.se. G
·_ ... 14:. ·1iist~ad, as asserted b~the,appellant, by ~ay ofretaliation. to
the pubJi9 outcry against then,1tlfkss and savage assassination of Raju
Pal and his two associ~es, the p'olice authorities\vent berse~k in the
enttre city arid theyforcibly trespassed into the houses:Of such residents,
mercile~sly assaulted
.. ·. t~ein;. including
' . old wo1~en and.children,
...
ransacked
. . H
574 SUPREME COURT REPORTS f2016l 11 S.C.R.
A their belongings and threatened and intimidated them of dire
consequences if they did not refrain from their agitation for a C.B.I.
inquiry. This high handed action of the police force also received media
coverage, both print and electronic. The writ petition further discloses
that for reasons unfathomable, the investigation of the incident was soon
thereafter transferred from Station House Officer, Dhoomanganj to a
B
Police Inspector posted in another police station, in violation of the G.O.
No. DG-7-S (253)/198 dated 21.03.2000.
15. While mentioning that with the installation of the Samajwadi
Party in power, there was an upsurge in the crimes, the appellant has
referred as well to the criminal antecedents of the respondent No. 5,
c tracing back to the year 1979, when he was accused of murdering a
contractor in Bihar. According to her, this respondent has been booked
in a number of cases under Sections 302 and 307 IPC as well as amongst
others, under the Gangster Act, National Security Act and had been
identified also as a member of the interstate gang in December 2002.
D Accusing the State Government, the above notwithstanding, of bestowing .
its generosity on him as well as his brother, the appellant has also referred
to a list of 20 criminal cases registered against the respondent No. 5 in
which efforts were being made to withdraw the same. The list of cases,
as set-out in the writ petition involves offences inter alia, under Sections
302, 307, 149, 1208 !PC as well as under the Arms Act and Gangster
E Act. The appellant has been candid enough to state in no uncertain
terms, that though the evidence was galore against the respondent Nos.
4 and 5 and their accomplices in the commission of murder of her
husband, conscious and intentional steps were taken by the state
administration and the police to shield them therefrom due to political
F and other influence wielded by them. In endorsement of this accusation,
the appellant has referred to as well some excerpts from.the writ petition
filed by the Station House Officer Shri Parshuram Singh in Civil Writ
Petition No. 34265/2005 challenging his suspension. This police officer
who was in-charge of the investigation of incident made serious allegations
against the senior police officers in their attempt to efface evidence
G against the respondent Nos. 4, 5 and their henchmen in the following
terms: (page No. 126 of Writ Petition)
"25 -That, on 27.01.2005, one of the main accused Ashraf
alias Khalid Azim was arrested in Lucknow and brought to
Allahabad in tight security two other accused were also
H
POOJA PAL v. UNION OF INDIA AND ORS. 575
rAMITAVA ROY, J.l
arrested by the petitioner on 30.01.2005, namely Farhan A
Ahmed and Ranjeet Pal and a DBBL Gun and life cartridges
were recovered from their possession. True photo and typed
copy of the F.I.R. and Recovery Memo are collectively
enclosed herewith and marked as Annexure-5, to this writ
petition.
B
26 - That, the respondent No. 2, Shri Suni I Kumar Gupta,
S.S.P., Allahabad, because of the reason better known to
him. he told to the petitioner the empty cartridge of thirty
spring rifle not be shown in the G.D. but the petitioner
refused to do so. The respondent No. 2, Shri Sunil Kumar
Gupta, S.S.P., Allahabad, also told to the petitioner that
c
Ashraf and Atiqe not be made main accused in the case
crime No. 34/05, Police Station, Dhoomanganj,Allahabad.
27 - That, on 30.01.2005, on the day of arrest of Farhan
Ahmed and Ranjeet Pal, the respondent No. 2, Shri Sunil
Kumar Gupta, S.S.P., Allahabad, told to the petitioner these D
two accused be kept in curtain (Baparda) do not produce
the accused before media, the petitioner denied as the
accused persons are local resident and they are publicly
known criminals therefore, no meaning to put them in
curtain. E
28-That, the respondent No. 2, Shri Sunil Kumar Gupta,
S.S.P., Allahabad, also, told the petitioner, the DBBL Gun
recovered from the possession of Farhan Ahmed and
Ranjeet Pal also be changed but the petitioner denied and
showed the same DBBL Gun in the records which was F
recovered from their possession.
29 -That, the respondent No. 2, Shri Sunil Kumar Gupta,
S.S.P., Allahabad, has motive to save the main accused
Ashraf and Atiqe Ahmed from the charge of murder of
M.L.A, Raju Pal. The respondent No. 2, Shri Sunil Kumar 0
Gupta, S.S.P., Allahabad, handled by the political leaders of
the ruling Samajwadi party and he was doing in the manner
for tempering the evidence of the murder against the main
accused Ashraf and Atige Ahmed as directed by leaders of
ruling Samajwadi Partv.
H
576 . SUPREME COURT REPORTS f2016]1 l S.C.R .
A 30- But the respondent No. 2, Shri Sun ii Kumar Gupta,
· S.S.P.; Allahabad, suspended the petitioner in the evening
of 30:1.2005, alleging that the murder of Raju Pal was
· occurred and he could not control the disturbances after
the murder of M.L.A. Raju Pal.
B 31 -That, the respondent No. 2, Shri Suni I Kumar Gupta,
S.S.P., Allahabad suspended the petitioner to help the
accused persons as the respondent No. 2, Shri Sun ii Gupta,
S.S.P., Allahabad, several times told to change the facts
that shows the interest of respondent No. 2, Shri Sunil
Kumar Gupta, S.S.P., Allahabad, in saving accused persons.
c
32-That, in as much as the investigation which was being
carried.out by the petitioner was transferred to one Inspector,
Police Station Colonelganj Inspector Surendra Singh.
33- That, the one of the main accusedAtiqeAhmed, Member
D of Parliament now was released on bail and he mounted
12ressure on res12ondent No. 2. Shri Sunil Kumar Gu12ta,
S.S.P., Allahabad, for transferring the Investigation Officer
Ins12ector Surendra Singh and transferring the 12etitioner anx
other 12Iace ahead from Allahabad.
E 34- That, the Respondent No. 2, wrote a D.O. letter on
15.04.2005, to D.l.G. Range, for transferring the petitioner
under suspension from District Allahabad to any other
district, the re·spondent No. 2, Shri Sun ii Kumar, S.S.P.,
Allahabad; recommended transfer of the petitioner in the
pressure of Atiqe Ahmed, Member of Parliament who is
.F .qne ofthe main accused in the murder ofM.L.A. Raju Pal.
True photo and typed copy of the D.O. letter dated
15.04.2005, of respondent No. 2, is enclosed herewith and
marked as Annexure-6 to this writ petition. .
35-that, the Colonelganj Inspector Surendra Singh, who
G was. the Investigating Officer in this case, was suddenly
relieved of all the responsibilities and has been posted to
Jhansi. At the same time, efforts were on to ensure the
. removal of Dhoomanganj Station Officer the petitioner
· around the time of the murder and get him posted to some
other district. ,The only fault of both these Investigating ·
H
POOJA PAL v. UNION OF INDIA AND ORS. 577
rAMITAVA ROY, J.l
Officers was that they did not succumb to the pressure A
exerted by their superiors and we.nt ahead with the ·
investigation in the right manner ___ _
According to sources, some senior police officers of the
district were putting pressure on the Investigating Officer
to replace the gun with some other weapon. But the B
investigator did not relent and forwarded the recovered
pistol and the gun for a forensic test. The tests revealed
that two of: the six empty cartridges, also found at the scene
of crime, had been fired from the recovered. DBBL Gun.
All along the course ofthe investlgati<Jil, sorne senior pol ice
' ,· officers had been making efforts td persuade the investi gato'r'' c
to shift.thefocus ofhis i1\V~sfigatiori from 'the named.accysed ··
Samajwadi Partv Member of Pari.iamentAtiqe Ahmed and ·
his brother Ashraf, and bring into focus the personal enmity
angle of the slain M.L.A. as the cause behind hismurder..
The fact that the police officers of the district were \vorking D
under tremendous political pressure was evident from the
way they had been working."
16. On the basis of these foundational facts, the. appellant has
prayed for an appropriate writ or a direction in the riature of mandamus,
directing the official respondents to entrust a fresh investigation into the E
episode by the C.B.L . . .. . ,..
17. As abovestated, the appell~thiid·aj>ptoacbedtbi~Court;~aflier, .
· seeking its interventlelnforan· appropriate ·dirit'tfon. forinvestigatiqn of ·
the incident bythe CBL Thiswas, to'i'.eitera~e;as't~~~ilanfnur~ed
a deep rooted impression, in view of ove~l'iehningsihisterbackground F
arid the sequence of events culrriinating in the gruesoine. murder of her
husband, that the crime had been committed Wiili the tadt support of the
police administration arid covert approval of the authorities in power. In
course of the hearing before this Court in the earlier proceedings afore-
mentioned and registered as Writ Petition (Crl.). Nos. 118-119 of 2005,
the learned counsel for the appellant soughtto withdraw the same, ' so G
as to enable her to file an appropriate writ petition before the High Court
seeking the same relief. · ·
18. By order dated 03.05.2006, the prayer .nl;.qe wai(~Hmved,
requiring the appellant to file the writ petition aS:prQp~tl';before Hie
'; ...
H
578 SUPREME COURT REPORTS [2016] 11 S.C.R.
A High Court within a period of two weeks therefrom. It was observed
that if it was so done, till the disposal of the writ petition, the respondent
State would provide necessary security to the appellant and her mother-
in-law (co-appellant before this Court). Further proceedings of the
Trial Court were ordered to remain stayed till the disposal of the writ
petition if filed within the period of two weeks as permitted and a request
B
was made to dispose of the same as expeditiously as possible. In
compliance of this order the appellant alone filed a writ petition which
was registered as W.P.(Crl.) No.6209 of2006 within the time allowed.
19. While the Writ Petition was thus pending, by letter No.- Home
(Police) Section-I I, Lucknow No.2 l 69/6-Pu-11-7-06 (writ)/2006 dated
c 15.05.2007 addressed to the Secretary, Ministry of Personnel,
Government of India, New Delhi, the State Government conveyed its
decision to get the investigation of the case conducted through the CBI
and requested that the steps be taken accordingly and to keep the State
Government apprised of the action taken. The consent of the State
D Government as required under Section 6 of the Delhi Special Police
Establishment Act, 1946 to this effect was also appended to the said
letter. As the case number was wrongly mentioned therein, correction
to the said effect was communicated vide letter No.Home/Police/Section-
11, Lucknow No.3636/6-Pu-11.05.06 (writ)/2005 dated 14.08.2007.
E 20. At this stage, in view of this development, a submission was
made on behalf of the State Government before the High Court, bringing
to its notice, the same. Consequently 1by order dated 11.07.2007, the
High Court being of the view that the relief sought for in the writ petition
had been granted by the State Government by making a request to the
Central Government to get the case investigated by the CBI, dismissed
F the writ petition.
21. As the records would reveal, the appellant on the very same
date i.e. 11.07.2007 filed an application for restoration of the writ petition,
contending principally that though the request had been made by the
State Government, a decision in affirmation of the Central Government,
G agreeing to the investigation of the case being conducted by the CBI
was awaited and thus the writ petition ought not to have been dismissed
as infructuous. An application was also filed, requesting the High Court
to list the writ petition for appropriate orders. As the order sheet of the
writ proceedings before the High Court would disclose, the restoration
H application was kept pending, awaiting the decision of the Central
POOJA PAL v. UNION OF INDIA AND ORS. 579
fAMITAVA ROY, J.l
Government on the request of the State Government. The Government A
of India, Ministry of Personnel and Public Grievances and Pension
(Department of Personnel and Training) eventually, vi de letter No.228/
29/2007 -A.V.D Govt. oflndia...... 1212/PGS/MS/2008 dated 18.01.2008
declined to get the case investigated by the CBI. The contents of the
letter would disclose that the decision conveyed thereby was preceded
B
by an inquiry said to have been made by the concerned Department in
consultation with the CBI. Pendency of the writ petition filed by the
appellant, seeking the same relief was also referred to as a consideration.
It was mentioned as well, that the State Government had not stated any
other reason to justify the investigation to be conducted by the CBI.
According to the Central Government, the trial of the case was pending, c
the proceedings whereof however have been stayed by the High Court
and that there was no interstate or international ramification of the case
so as to. warrant investigation thereof by the CBI.
22. In the wake of the rejection of the request for investigation of
the case by the CBI, the appellant applied for an amendment of the writ D
petition, by incorporating the required facts pertaining to the process
related thereto and also prayed for the annulment of the letter dated
I 8.0 I .2008 of the Central Government. In the facts pleaded to that
effect, she averred that during the trial, the respondent Nos. 4 & 5 had
threatened the eye witnesses and did impeach the decision of the Central
Government disallowing the request for investigation of the case by the E
CBI as mechanical and prompted by surmises and conjectures. She did
furnish as well, the particulars of the cases in which the respondent
No.4 & 5 had been involved in kidnapping and abduction as well, as
elimination of witnesses who could otherwise withstand their pressure
and displayed courage to disclose the truth in support of the charge F
leveled against them. Following the refusal of the Central Government,
the state government, however shifted the investigation to the CBCID
and meanwhile both the state police and CBCID have submitted
chargesheets.
23. Be that as it may, the High Court eventually by the impugned G
judgment and order has dismissed the writ petition. It held the view that
if the appellant was not satisfied with the charge-sheet submitted by the
Civil Police as well as the CB CID and the materials collected by these
two agencies in course of their separate and independent investigation,
and is also of the view that further investigation was required, or that
H
580 SUPREME COURT REPORTS [2016] 11 S.C.R.
A some additional evidence was to be collected, she was at liberty to file
an application before the Magistrate concerned to that effect so as to
eriable the trial court to pass appropriate orders thereon. It further held
that so far as the adduction of additional evidence was concerned, the
appellant would have every opportunity to produce the same or ask
therefor also by making an appropriate application at the time of trial.
B
24. Before adverting to the rival submissions, it would be apt to
notice the pleaded stand of the respondents in substance. The state
government has admitted the incident in which the appellant's husband
had been assassinated on 25.01.2005 along with two others namely
Sandeep Yadav aild Devi Dayal Pal in a shootout. It has not disputed
c as well, the registration of the information of the said incident under
Sections 148/147lil 49/302/307 and 1.208 of the IPC. against respondents
No. 4,5 and s ven others at Dhoomganj Police Station. That on
27.01 :2005, the ,state police .had arrested respondent Nos:, 4 & 5 in
connection of the incident has also been a9mitted •. Tpe state g~vernment
D has placed on record, that the state police on the completion of the
investigation 'fo the case has subrriitted a charge-sheet' on 08.04.2005
agai.nst respondent Nos. 4,5 arid 9 others togetl1er with a list of 27
witnesses.
· 25. It disclosed as well that after the submission of the charge-
E sheet, the case was committed to the Court of Sessions and was
registered as Session Trial No.24/2006 whereafter, the trial had begun
only to be stayed by this Court on 03.05.2006 vide its order to that effect
passed in W.P.(Crl.) No. l J8-119 filed by the appellant under Article 32
of the Constitution oflndia.
F 26. It mentioned as well that during the pendency of the writ
petition, filed after t.he disposalofthe pr~edingsbefore this Col!rt,
the state government had accorded its sanction for investigation of this
case by the CBI and the commuhication to this effect was forwarded to
the Ministry of Personnel, Government of India. That however the
Government ofindia refused to accede to the request, being of the view
G that it was not a fit case for investigation for the CBI was stated as well.
27. According to the state government, on such refusal of the
Central Government, it transferred the investigation of the case to CB
CID which after the completion of the investigation submitted three
charge-sheets on I 0.01.2009, 04.04.2009 and 24.12.2009, adding to the
H
POOJA PAL v. UNION OF INDIA AND ORS. 581
fAMITAVA ROY, J.]
array ofaccused persons and also the witnesses in support of the charge. A
. .
28. While stoutlydenyirigtheallegation ofindifferc:mceand apathy
to secure an impartial and effective inv~stigation' and instead a tacit
support of the offending act, it has asserted, that having regard to the
constricted scope of ordering investigation of a case by the CBI, no
such direetion as sought for is warranted in the facts'and circumstances B
of the case. It has emphatically asserted that the said police as well as
the CBCID had conducted proper investigations and in the process, did
not spare anyone found involved in the incident. It has denied in emphatic
terms, the involvement of the said machinery in any conspiracy, its
support thereto and intentional distortions in the investigation to bail out
the culprits of the offence. It pleaded that the dead bodies had been c
duly received by the concerned family members and that cremations of
Raju Pal was performed by the one of his first cousins. It has been
stated as well that the postmortem examination of Raju Pal was
undertaken by a panel of doctors and that the allegations made by the
appellant that the dead body of her husband was secretly and hastily D
cremated without handing over the same to his relations and that the
postmortem examination was deliberately skewed ·are palpable
falsehood. It also denied the allegation ofthe appellant that the respondent
Nci. 4 had sophisticated firearms incl tiding AK'-47 andAK-56 had been
used in the incident. It disclosed as well that at the time of his death,
there were several criminal cases registered against Raju Pal including E
the offence of murder and attempt to murder and that he had many
enemies who could have shared the motive to liquidate him.
29. The respondent No. 4 while emphatically denying his
involvement as well as the complicity of his brother in the incident, in
substance accused the appellant of falsely impf icatingthem as her political F
rivals and of keeping the proceedings pending so as to derive political
mileage therefrom. ·He alleged as well, that the appellant had def iberatefy
protracted the proceedings inter alia by omitting to take necessary steps
· so as to use the same to promote her political prospects riding on the
sympathy wave induced by the murder of her husband. The answering G
respondent has averred that thereby the appellant has been successful
in getting elected to the State Assembly for two successive terms. It
has been stated further that within a couple of days of the formation of
the Government in the State by the Bahujan Samaj Party, the State
Government did refer the case to the Central Government for investigation
H
582 SUPREME COURT REPORTS [2016] 11 S.C.R.
A by the CBI and having failed in its endeavour to do so, they took
a conscious decision to transfer the investigation thereof to the CBC ID
on 10.12.2008. The answering respondent has emphasized that the
appellant has neither challenged the decision of transferring the
investigation to CBCID nor the charge-sheets submitted by the said
agency on the completion of the said investigation. According to the
B
answering respondent, the appellant has also not pointed out any fault or
deficiency in the investigation conducted by the CBCID and that her
insistence for further investigation or reinvestigation by the CBI is wholly
impermissible in law.
30. The CBI in its turn while reiterating the intervening
c developments pertaining to the investigation conducted by the State Police
and the CBC ID has pleaded that after a lapse of 10 years from the
incident, no purpose would be served by any investigation by it at this
stage. It has averred as well that the case does not involve any larger
public interest or any interstate or international ramification. That it is
D already overburdened with the investigation/inquiry of different cases
entrusted to it by various High Courts and this Court has been mentioned.
It has asserted that having regard to the state of law laid down by this
court and the contingencies in which investigation by the CBI is cal led
for; the facts and circumstances of the case do not merit any such
direction.
E
31. In the above contentious premise, Mr. Sodhi has assiduously
argued, that the run up of facts leading to the merciless murder of the
appellant's husband, the conspicuous impassive response of the state
machinery to ensure his safety and security as well as the shoddy and
purported investigation by the state police as a casual completion of
F routine formalities, warrant a fair and impartial probe by the CBI. The
learned senior counsel has urged that the onetime readiness of the State
Government to handover the investigation to the CBI unambiguously
reflects its satisfaction as well of such essentiality to espouse the cause
of even handed justice. According to him, the rejection of the request
G of the state government to this effect by the Central Government is
wholly mechanical and without any application of mind to the factors
relevant and germane and thus the decision to that effect is liable to be
adjudged illegal, null and void. Not only at the point of time when the
Central Government refused to accede to the request for investigation
by the CBI, the Writ Petition filed by the Appellant before the High
H
POOJA PAL v. UNION OF INDIA AND ORS. 583
[AMITAVA ROY, J.]
Court had been closed, there is nothing on record to even suggest that A
any independent endeavour had been made by the Central Government
to make a dispassionate evaluation of the overall facts thus rendering its
decision arbitrary unfair and unjust. Mr. Sodhi has maintained that not
only the manner in which the daring offence was committed was shocking
to every right minded person of the society; it signalled as well, an apparent
B
collapse of the administrative machinery of a democracy committed to
the solemn promise of guaranteeing protection of life and liberty of its
citizens. The learned senior counsel argued that the cruel and barbaric
crime having been committed in the broad day light in public view, there
are still several eye-witnesses available who are genuinely willing to
testify about the same to bring the real culprits to book and thus in the c
interest of fair and impartial investigation and to obviate any possibility
of miscarriage ofjustice, it is imperative to entrust the probe to the CBI.
According to Mr. Sodhi, the testimony of the witnesses so far examined
at the trial clearly demonstrate their hostile and non-cooperative approach
which per se suggests that they must have been won over in between,
D
leaving a bleak chance for the prosecution to succeed. This unmistakably
affirms the apprehension of the appellant vis-a-vis quality and authenticity
of the investigation undertaken by the state police and the CBCID, he
urged.
32. The learned senior counsel maintained that ifthe formalities
of the trial with the materials so far collected in the investigation are E
allowed to be completed being unmindful of the consequences thereof, it
would be a travesty ofjustice and a servile subjugation of the process of
law to the minatory reflexes of the daring and audacious violators of
law. Reiterating the imputations made in the writ petition vis-a-vis the
role of the state instrumentalities and the police in particular, as well as F
the culpability of respondent Nos. "4 & 5, Mr. Sodhi has argued that
entrustment of the investigation to the CBI would not prejudice the
respondents in any manner and that it would secure the obligatory
requirement of a fair, effective and impartial inquisition, more particularly
when witnesses of the incident are still available, but need to be
appropriately identified, interrogated and assured of their safety to disclose G
the truth. Mr. Sodhi has argued that it is a fit case for the judiciary to
intervene both in the individual as well as social perspectives in order to
discourage such villainous outrages and sustain a just a1id law abiding
citizenry. He rested his submissions on the following decisions: Za/1ira
H
••
584 SUPREME COURT REPORTS [2016] 11 S.C.R.
A Hahibul/<1 JI. Slteiklt mul Anr. vs. Staje of Guj<1rat ttnd Ors. (2~04 )4
SCC 158, State of West Bengal and others vs. Committee for Protection
of Democratic RigIt ts, West Bengai 1md others (20 I 0)3 SCC 571,
Babuhllai vs. State of Gujarat tmd others (2010) 12 SCC 254, Mohd.
llussaill alias Julflkar Ali vs. State (Government of NCT ofDe/11i)
(2012)9 SCC 408, Blwrati Tanwng vs. Union of India and others:
B
(2013) 15 sec 578.
33. Mr. Misra, learned senior counsel representing the State not
only dismissed emphatically the allegations of tacit involvement of the
administration and the police in the design and execution of the offence
as alleged in order to eliminate the appellant's husband, he argued as
c well, that the decision to handover the investigation of the case to the
CBI does 11,ot911ly neuter such accusation, but al.so establish irreftitably
the boi1a
. ..
fide
·., ·of the state government.
. 34. The learned senior counsel pointed out that in absence of ariy
allegation whatsoever of the appellant against the investigation conducted
D by the .CBCID, her persistent requests fopransferring the in,vc;:stigation
to the CBI is fallacious and unsustainable in law. Mr. Misra has
maintained that not 011ly the insistence for the transfer of the investigatio~
to the CBI, in the face of successive probes made by the state police
and the CBCID is uncalled for in absence of any deficiency or defect
E decipherable therein, it is impermissible as .well, at this belated stage.
Mr. Misra has argued that even otherwise such a transfer of investigatfon
even if allowed; it would be fatal for the prosecution as at this distant
po:int of time not only the witnesses would be unavailable a1.1d e.vell, if
available they would decline to testify.. The l,eamedsenicirc~uhselhas
urged as well that as the trial is pending and the respondent Nos. 4 & 5
F and other accused persons are subjected thereto, the relief.sought for
by the appellant is prematu red as we 11. ·
35. Mr. Goel representing respondent Nos. 4 & .5 while
supplementing the assertions made on behalf of the State has submitted
that the introduction of a fresh investigating agency, atthis stage is not
G · only impennissible in law but also would have the potential of protracting
the trial further, in violation of the fundamental right to life of his
respondents as guaranteed by Article 21 of the Constitution of India.
Reiterating that the facts do not demonstrate a faulty or incomplete
investigation by either the state police or the CBC ID, the learned counsel
has maintained that the appellant has resorted to this delaying tactics to
H
POOJA PAL v. UNION OF !NOIA AND ORS. 585
rAMITAV_A ROY, 1.1
promote her election prospects and political future. While underlining A
that the writ petition filed by the Investigating Officer Parsuram Singh
alleging pressure on him by his higher ups to misdirect the investigation,
has meanwhile been dismissed on merits, the learned senior counsel
argued that the averments even if accepted to be true, did in fact
vouchsafe the fairness and impartiality of the investigation conducted by
B
the state police. Mr. Goel has urged that as the trial is pending, any
intervention of this Court to induct another investigating agency on the
basis of deductions made from the testimony of hostile witnesses, would
amount to unwarranted interference with the trial which would be highly
prejudicial to the parties. Reiterating that the present initiative of the
appellant is clearly a political vendetta against the private respondents c
being her rivals, the learned counsel has asserted that there is neither
any exceptional circumstance nor any justifiable reason in law to direct
a reinvestigation by the CBI when the trial is underway. He dismissed
the authorities cited on behalf of the appellant as inapplicable to the
facts of the case, being rendered in the textual facts disclosing vitiation
D
of trials. The following decisions were cited to buttress the above pleas:
(i) State of West Bengal and otllers vs. Sampat Lal and otilers
(1985) 1 sec 317;
(ii) Vineet Namin mu/ otllers vs. Union of India mu/ fmotiler
( 1996) 2 sec 199
E
(iii) U11io11 of India anti others vs. Sushi/ Kumar Modi and
others ( 1998) 8 sec 661,
(iv) Common Cai1se; A Registered Society vs. U11011 of bu/la
and otlters (I 999)6SCC 667
(v) Secrefory, Minor Irrigation & Rural Engineering F
Services,. U.P. fllld Otllers vs. Sfilmgoo Ram Arya mid
A11r. c2002)5 sec 521 .
(vi) State of West Bengal and Ors. vs. Commilteefor Protection
. of Democratic Rig/its, West Bengal mu/ Ors. (supra)
(vii)Dislta vs. Stat(! of Gujarat & Ors. (2011)13 SCC 337 G
· (viii)K. V," Rajendran vs.. Superintendent of Police, CBCID
Soutil Zone, Clteimai and Ors. (20 I 3) 12 SCC 480
(ix) llussaitwra Klmtoon & otllers vs. Home Secretary, State
of BilU1r (1980) I sec 8 I 1-1
586 SUPREME COURT REPORTS [2016] 11 S.C.R.
A (x) Abdul Rellma11 A11tu/ay <md otllers vs. R.S. Nayak mu/
anotller ( 1992)1 sec 225
(xi) P. Ramac/iam/ra Rao vs. State of Karnat"ka (2002) 4 SCC
578
B (xii)V"kil Pmsad Si11gll vs. State of Bilwr (2009) 3 SCC 355
(xiii)Kasllmeri Devi vs. De/Iii Administmtion and <motIt er 1988
(Suppl.) sec 482
(xiv)Gu</(lfure M.J. Cllerian a11d otlters vs. Union of l11dia
c (llld otlters (1992) 1 sec
397
(xv)Pu11jab mu/ Ilary<ma Iligll Court B<ir Associatio11,
C/uuu/igarlt tltrouglt its Secretary vs. State of Punjab and
otllers (1994)1SCC 616
(xvi)Inder Siltgll vs. State of Punjab ""d others (1994)6SCC
D 275
(xvii)Rubabbu<ldi11 Slieikfl vs. State of Gujarat and others
(2010) 2 sec 200
36. Ms. Mohana representing the Union of India endorsed its
E decision of not entrusting the investigation to the CBI and contended
that the facts and circumstances did not convincibly demonstrate any
flaw in the investigation undertaken by the state police or the CBCID.
In support of this assertion, she relied upon the decisions of this Court in
Committee for Protection of Democratic Rig/its (supra), K.
Saravanan Karupp<m1111y tmd <motlier vs. State of Tamil Nadu and
F
Ors. (2014) (I 0) SCC 406, Slllfipta Lenk" vs. St"te of 0</islw mu/
Others. (2014) 11 SCC 527.
3 7. We have extended our anxious consideration to the competing
pleadings and the arguments advanced. The gory incident in which the
appellant's husband was brutally gunned down in a public place is indeed
G harrowing and alarmingly distressful. Not only the daring act in the
broad day light is condemnable, it sent shock waves among the living
community, wrecking the temper and rhythm of social life and created a
fear psychosis and a scary feeling of lack of security in all concerned.
lt is a matter ofrecord that atthe relevant time, the appellant's husband
H
POOJA PAL v. UNION OF INDIA AND ORS. 587
[AMITAVA ROY, J.]
was a sitting member of the State Legislative Assembly, having defeated A
the respondent No. 5, in the bye-elections held a few months prior to his
murder. That at that time, the respondent No. 4, brother of respondent
No. 5 was a member of the Parliament is also an admitted fact. In the
FIR filed by the appellant soon after the incident, she named the
respondent No. 5 to be the assailant who had shot Raju Pal in the head,
B
being accompanied by others. She has alleged therein that respondent
No. 4 was the brain behind the operation and thus was involved in the
conspiracy to eliminate her husband. As referred to hereinabove, it has
been averred by her as well that soon after the bye-elections in which
her husband had been elected, a number of unsuccessful attempts had
been made on him for which he genuinely sustained an apprehension c
regarding his safety and security. That he had repeatedly aired his
apprehension to that effect and had sought remedial measures before
the appropriate authorities, has been pleaded as well. Immediately after
the assassination of her husband, the appellant as well as the President
of the Bahujan Samaj Party, to which he belonged, also had submitted a
D
spate of representations before the Governor, Chief Minister, Chief
Secretary and other authorities of the State requesting for entrustment
of the investigation of the case to tl1e CBI as the state police, as perceived
by them, was found to be patently partisan in their initiatives and approach
in connection therewith. The allegations by the appellant about laconical
autopsy of the dead body without any notice to her or any other family E
member of the deceased, refusal to return the dead body to them and
hasty and secret cremation thereof to remove the otherwise tell tale
clues to identify the assassins have been candidly made. As these
imputations have been denied by the respondents in their pleadings, we
refrain from further dilating thereon. Similarly, both sides have also
alleged registration and pendency of criminal cases against the appellant's F
husband, respondents No. 4 and 5 involving offences amongst others of
murder, attempt to murder etc.
38. Noticeably, however, the appellant since after the murder of
her husband had been persistently appealing for investigation by any
impartial agency i.e. CBI, expressing without reservation, her doubts G
about the ge·nuineness and bona fide of the probe being conducted by
the state police. She has even alleged the involvement of the state
administration and the police in the conspiracy to eliminate her husband
and to have remained a mute and inert onlooker at the time of and after
H
588 SUPREME COURT REPORTS [2016] 11 S.CR.
A the open diabolic and barbaric assassination of her husband. It is a matter
of record that at the time of the incident, the Samajwad i Party was in
power.
39. It was in this backdrop of events. that the appellant being
appalled and exasperated by the perceived failure of the state authorities
B to affirmatively respond to her request forentnisting the· investigation
to the CBI and the casual measurers of the state police in that regard
that she approached this Court with an application under Article 32 of
the Constitlition oflndia for its remedial intervention. By order dated
3.5.2006, however, this. Court, as prayed for on her behalf, did permit
her to file a writ petition before the High ·pourt seeking an apptopriate
c writ or a di~ction tran'sferrlng the· investigation of the case to the
for
CBI. To reiterate, during the pendency of the writ petition that was filed
within the time allowed by this Court, on 155.2007, the State Government
(by then the Bahujan Samaj Party had come to power) decided to hand
over the investigation to the CBI and communicated its decision to the
D Central Government for the needful. The High Court, being apprised of
this development, the writ petition was disposed of on 11. 7 .2007 as ii1 its
comprehension, the reli..J >LlUC!ht for by the appellant had been granted
in view of this decision of the stale government. As the response of the
Central Government was awaited, the appellant on the same very date
. filed an application for restoration of the writ petition and as the records
E reveal, the said application was kept pending by the Hjgh Court and
after the refusal of the Central Government to accede to the request
made by the state governnienton 18.1.2008, the writ petition wa5 fi1ially
disposed of on·m:er.its by the decision impugned hereunder.•
40. Though a period of seven years intervened, a perusal of the
F record of the writ proceedings, however, does not demonstrate ai1y
deliberate inaction or )aches on the part of the appellant to enter a finding
of intentional delay on her part to procrastinate the same for extracting
any benefit to her therefrot'n.
· 41.This Court, whill disposing of the earlier writ petition being
G W.P. (Cr!.) Nos. U 8-119 of 2005 on 3.5.2006 had stayed the trial of the
case\vhich by theri had com1nenced following the st1bmission of the
drnrge·sheetby tile state police on 8.4.2005. During the pendency of
the writ p~tition before the High Court arid consequent upon the refusal
by tlie Centraf Goveri11rient to refer the investigatio11 to~"tbe CBI, the
state govcrnnient entrusted the exercise to CBCiD, which Oil completion
1-1 ' . . 'Ii' ·,' .•
POOJA PAL v. UNION OF INDIA AND ORS. 589
rAMITAVA ROY, J.l
of the drill submitted three charge-sheets on I 0. 1.2009, 4.4.200.9 and A
24.12.2009. A conjoint reading of the charge-sheets submitted by the
two investigating agencies would thus reveal that along with respondent
Nos. 4 and 5, several other persons have been arraigned as accused
adding to the list of those challenged by the state police. Further, CBCID
has also adde_d to the list of witnesses in its charge-sheets. Corresponding
B
to these final reports submitted by the investigating agencies, Sessions
Trial Case Nos. 13/2006, 14/2006, 15/2006 and 24/2006 are pending -
for analogous trial, the proceedings whereof being presently stayed
pursuant to the order dated 3.5.2006 of this Court in W.P. (Crl.) Nos.
118-119 of2005 and thereafter the order dated 13.2.2015 passed in the
present appeal. c
42. In the course of the arguments, attention of this Court has
been drawn to the additional documents filed on behalf of the appellant
pertaining to the trial so far held and also the parallel criminal cases
registered on the accusation of threats being extended to the eye
witnesses of the incident. On a cursory perusal of the testimony of D
witnesses so far. examined at the trial, it prima facie appears therefrom
that though all of them were present at that time at the .spot when the
offence was committed, none of them has identified the accused persons
standing trial including the responde!Jt Nos.,4 and 5 to be/or among the
assailants. Some of the witnesses, who were also injured in the incident,
after being declared hostile by the prosecution, have even resiled from E
their statements under Section 161 of the Code made before the police.
Significantly, however the witnesses have admitted the occurrence in
which the appellant's husband had been shot at, following which he had
succumbed to the injuries sustained.
43. The additional documents also include a judgment rendered F
by the trial court on 2.11.2011 in Sessions Trial No. 749 of2009, State
vs. Ram Chandra Yadav@ Fauji registered on the complaint filed by
one Mahendra Patel@ Budhi Lal Patel, who in his cross-examination,
retraced from the charge levelled by him against respondent No. 4 and
his companions ofhavingthreatened and assaulted him so as to pressurize G
him to change his statement made before the police, lest he and his
family be murdered. The complainant Mahendra Patel also was an eye
witness to the incident of 25. I .2005 and had been driving the Scorpio
vehicle which was following the one in which Raju Pal was travelling.
The trial court acquitted the accused mainly in view of the retraction of
H
590 SUPREME COURT REPORTS f2016l l l S.C.R.
A the statement of the complainant and lack of evidence in support of the
charge. Having regard to the present stage of the trial, for obvious reasons,
we do not wish to offer any comment on any aspect relatable thereto. It
is however noteworthy that some other witnesses of the prosecution
including the appellant are yet to be examined by the prosecution.
44. Be that as it may, the issue that demands to be addressed is
B
the necessity or otherwise of further investigation or reinvestigation by the
CBI in view of the overall conspectus of facts and the state of
law.Admittedly, more than a decade has elapsed in between, and in the
interregnum, successive investigations have been conducted by the state
police and CBCID, following which four charge-sheets have been
c submitted arraigning respondent Nos. 4 and 5 and others as accused
with the supporting material gathered in course of the probe to prove the
charge levelled against them. It is noticeable as well that the appellant
as well has not highlighted any defect, omission or deficiency in the
investigation conducted by the CBC ID, likely to adversely impact upon
the outcome of the trial therefor.
D
45. These notwithstanding, it would still be, in our opinion,
imperative to examine as to whether for doing complete justice and
enforcing the fundamental rights guaranteed by the Constitution, the relief
of entrustment of the investigation of the case again to the CBI is
grantable or not on its own merits. This is chiefly, in view of the intrepid,
E audacious and fiendish intrusion of human right by the assassins in broad
day light at a public place, by defiantly violating all canons of law and
making a mockery of the administrative regime entrusted with the
responsibility to maintain an orderly society. The terrorising impact of
this incident and the barbaric manner of execution of the offence is also
F a factor which impels this Court to undertake such a scrutiny in the
interest of public safety, a paramount duty entrusted to all the institutions
of governance of our democratic polity. This is more so, where a grisly
and intimidatory crime impacting upon the public confidence in the justice
delivery system as a whole is involved, so as to ensure that such
outrageous do not go incautiously, unfathomed and unpunished.
G
46. The authorities cited at the Bar present the precedential
spectrum of the curial jurisprudence in the context of entrustment of
investigation to an instrumentality other than the local/state police
agencies.
47. ln Z"flira /labibul/a II. Sfleikfl (supra), commonly adverted
H
POOJA PAL v. UNION OF· INDIA AND ORS. 591
[AMITAVA ROY, J.]
to as "Best Bakery Case" on the theme, the aspects of perfunctory and A
partisan role of the investigating agency as well as improper conduct of
the trial involved by the public prosecutor surfaced for scrutiny. Though
the trial was over resulting in acquittal of the accused persons mainly as
the purported eye-witnesses had resiled from the statements made by
them under Section 161 Cr;P.C. (hereinafter to be referred to as ''the
B
Code") during the investigation coupled with faulty and biased
investigation and laconical trial, this Court responded to the req~est for a
· fresh trial made by the State and one of the eye-witnesses, Zahira. It
was pleaded inter alia that when a large number of witnesses have turned
hostile, it ought to raise a reasonable suspicion that they were bei.ng
threatened or coerced. Apart from alleging that the prosecution did not c
take steps to protect the star witnesses, it was contended as well that
the trial court had failed to exercise its power under Section 311 of the
Code to recall and reexamine them as their testimony was essential to
unearth the truth and record a just decision in the case.
48. The casual decision of the public prosecutor to drop a material D
witness, a measure approved by the trial court also came to be criticized.
The lapse of non-examination of the injured ey,e-witnesses, who were
kept away from the trial, was also highlighted. It was alleged that the
partisan witnesses had been examined to favour the accused persons
resulting in a denial of fair trial.
E
49. This Court in the above disquieting backdrop, did underline
that discovery, vindication and establishment of truth were the avowed
purposes underlying the existence of the courts of justice. Apart from
indicating that the principles of a fair trial permeate the common law in
both civil and criminal contexts, this Court underscored the necessity of
a delicate judicial balancing of the competing interests in a criminal trial F
- the interests of the accused and the public and to a great extent that
too of the victim, at the same time not losing the sight of public interest
involved in the prosecution of persons who commit offences.
50. It was propounded that in a criminal case, the fate of the
proceedings cannot always be left entirely in the hands of the parties, G
· crimes being public wrongs in breach and violation of public rights and
duties, which affect the whole community and are harmful to the society
in general. That the concept of fair trial entails the triangulation of the
interest of the accused, the victim, society and that the community acts
through the state and the prosecuting agency was authoritatively stated.
.H
592 SUPREME COURT REPORTS f2016111 S.C.R.
A This Court observed that the interests of the society are not to be treated
completely with disdain and as persona 11011 grata. It was remarked
as well that due administration ofjustice is always viewed as a continuous
process, not confined to the determination of a particular case so much
so that a court must cease to be a mute spectator and a mere recording
machine but become a participant in the trial evincing intelligence and
B active interest and elicit all relevant materials necessary for reaching ·
the correct conclusion, to find outthe truth and administer justice with
fairness and impartiality both to the parties and to the community.
51. While highlighting the courts' overriding duty to maintain public
confidence in the administration of justice, it was enunciated as well,
c that they cannot turn a blind eye to vexatious and oppressive conduct,
discernable in relation to the proceedings. That the.priticiples of rule of
law and due process are closely linked with human rights protection,
guaranteeing a fair trial, primarily aimed at asce11aining the truth, was
stated. It was held as well, that the society at large and the victims or
D their family members and relatives have an inbui It right to be dealt fairly
in a criminal trial and the denial thereofis as much injustice to the accused
as to the victim and the society. Dwelling upon the uncompromising
significance and the worth of witnesses in the perspective of a fair trial,
the following revealing comments of Bentham were extracted 111
paragraph 41 :
E
"41. "Witnesses", as Bentham said: are the eyes and ears
of justice~ Hence, the importance and primacy of the
quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the
trial gets putrefied and paralysed, and it no longer can
F constitute a fair trial. The incapacitation may be due to
several factors like the witness being not in a position for
reasons beyond control to speak the truth in the cow1 or
due to negligence or ignorance or some corrupt collusion.
Time has become ripe to act on account of numerous
G experiences faced by courts on account of frequent turning
of witnesses as hostile, either due to threats, coercion, lures
and monetary considerations at the instance of those in
power, their henchmen and hirelings, political count and
patronage and innumerable other corrupt practices
ingeniously adopted to smother and stifle truth and realities
H
POOJA PAL v. UNION OF INDIA AND ORS. 593
fAMITAVA ROY, J.l
coming out to surface rendering truth and justice to become A
ultimate causalities. Broader public and societal interests
require that the victims of the crime who are not ordinarily ·
parties to prosecution and the interests of State represented
by their prosecuting agencies do not suffer even in slot
process but irreversibly and irretrievably, which if allowed
B
would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way
for anarchy, oppression and injustice resulting in complete
breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the c
witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that ultimate
truth is presented before the court and justice triumphs and
that the trial is not reduced to a mockery. The State has a
definite role to play in protecting the witnesses. to start with
D
at least in sensitive cases involving those in power. who
have political patronage and could wield muscle and money
power. to avert the trial getting tainted and derailed and
truth becoming a causality. As a protector of its citizens it
has to ensure that during a trial in court the witness could
safely depose the truth without any fear of being haunted E
by those against whom he has deposed."
52. It was underlined that if ultimately the truth is to be arrived at,
the eyes and ears of justice have to be protected so that the interest of
justice do not get incapacitated in the sense of making the proceedings
before the courts, mere mock trials. While elucidating that a court F
ought to exercise its powers under Section 311 of the Code and Section
I 65 of the Evidence Act judicially and with circumspection, it was held
that such invocation ought to be only to subserve the cause of justice
and the public interest by eliciting evidence in aid ofajust decision and
to uphold the truth. It was proclaimed that though justice is depicted to
be blindfolded, it is only a veil not to see who the party before it is, while G
pronouncing judgment on the cause brought before it by enforcing the
law and administer justice and not to ignore or turn the attention away
from the truth of the cause or the Iis before it, in disregard of its duty to
prevent miscarriage ofjustice. That any indifference, inaction or lethargy
H
594 SUPREME COURT REPORTS f20161 ll S.C.R.
A displayed in protecting the right of an ordinary citizen, more particularly
when a grievance is expressed against the mighty administration, would
erode the public faith in the judicial system was underlined. It was
highlighted that the courts exist to do justice to the persons who are
affected and therefore they cannot afford to get swayed by the abstract
technicalities and close their eyes to the factors which need to be positively
B
probed and noticed. The following statement in Jennison vs. Bllker,
(1972) 1 All ER 997 was recalled:
"The law should not be seen to sit by limply, while those
who defy it go free, and those who seek its protection lose
hope."
c
53. It was declared that the courts have to ensure that the accused
persons are punished and that the might or the authority of the state is
not used to shield themselves and their men and 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. That if any deficiency
D in investigation or prosecutitm is visible or can be perceived by lifting the
veil covering such deficiency, the courts have to deal with the same with
an iron hand appropriately within the framework oflaw was underlined.
54. Referring to its earlier decision in Kllrnel Sinxlt vs. Stllte of
M.P. ( 1995) 5 SCC 518, it was reiterated that in a case of a defective
E investigation, the court has to be circumspect in evaluating the evidence
and may have to adopt an active and analytical role to ensure that truth
is found by having recourse to Section 3 I I of the Code or at a later
stage also resorting to Section 391 instead of throwing hands in the air in
despair. It recalled as well its observations in Rllm Biltllri Yad"v v.
F Stllte ofBilmr ~ others, ( 1998) 4 SCC 517 that the courts are installed
for justice oriented mission and thus if a negligent investigation or
omissions or lapses due to perfunctory investigation are not effectively
rectified, the faith and confidence of the people would be shaken in the
law enforcing agency and also in the institution devised for administration
ofjustice.
G
55. Though, as referred to hereinabove, trial was completed and
the accused persons were acquitted, in the textual facts, this Court did
direct retrial as prayed for, to avoid subversion of the justice delivery
system and ordered the investigating agency or those supervising the
investigation to act in terms of Section 173(8) of the Code as the
H
POOJA PAL v. UNION OF INDIA AND ORS. 595
[AMITAVA ROY, J.]
circumstances would so warrant. A
56. The observations and the propositions, though made in the
backdrop of a request for retrial, those pertaining to the essentiality of a
fair and complete investigation and trial as well as the solemn duty of the
courts to ensure the discernment of truth to administer even handed
justice as institutions of trust of public faith and confidence, are in our B
estimate, of universal application and binding effect, transcending the
factual settings ofa case. An adverse deduction vis-a-vis the quality of
investigation and/a trial trivializing the cause ofjustice, is however the
essential pre-requisite, for such remedial intervention by way of further
investigation, reinvestigation, additional evidence, retrial etc. to be made
objectively but assuredly for the furtherance of the salutary objectives c
of the justice dispensing system as contemplated in law, it being of
paramount pre-eminence.
57. This Court in Mofld. Hussain@'; Jul(fikar Ali (supra) was
also seized of a situation imploring for a retrial following the termination
of the prosecution principally ori account of delay, when juxtaposed to D
the demand for justice in cases involving grave crimes affecting the
society at large. The offence involved was under Sections 302/307/
1208 IPC and Sections 3 and 4 of the Explosive Substances Act, 1908
and had perpetrated an explosion in a passenger carrying bus. This
Court amongst others recalled its observations in Kartar Sing fl vs. Sf(lte E
of Punjab (1994) 3 SCC 569 that while dispensing justice, the courts
should keep in mind not only the liberty of the accused but also the
interest of the victim and their near and dear ones and above all the
collective interest of the community and the safety of the nation, so that
the public, may not lose faith in the system ofjudicial administration and
indulge in private retribution. It however also took note of its ruling in F
State of M.P. vs. Blwontji "nd others (2001) 7 SCC 679 that a de
novo trial should be the last resort and that too only when such a course
becomes desperately indispensable and should be limited to the extreme
exigency to avert a failure of justice. It noted with approval the
observation in P. R<mu1c/1andra Rao (supra) that it is neither advisable G
nor feasible nor judicially permissible to draw or prescribe an outer limit
for conclusion of all criminal proceedings and that the criminal courts
are not obliged to terminate the trial or criminal proceedings merely on
account oflapse of time. That such time limits cannot and will not by
themselves be treated by any court as a bar to further continuance of
H
596 SUPREME COURT REPORTS f20161 l l S.C.R.
A the trial or proceedings or to terminate the same and acquit or discharge
the accused, was emphatically underlined. Reference too was made of
the decision in Za/1/ra Habibu/la H. Slleikll (supra).
58. Vis-a-vis the notions of 'speedy trial' and 'fair trial' as the
integral constituents of Article 21 of the Constitution of India, it was
B observed that there was a qualitative difference between the right to
speedy trial and the right of the accused to fair trial. While pointing out
that unlike the accused's right offair trial, the deprivation of the right to
speedy trial does not per se prejudice the accused in defending himself,
it was proclaimed that mere lapse of several years since the
commencement of prosecution by itself, would not justify the
C discontinuance of prosecution or dismissal of the indictment. !twas stated
in no uncertain terms, that the factors concerning the accused's right to
speedy trial have to be counterpoised with the impact of the crime on
the society and the confidence of the people in the judicial system. It
was noted that speedy trial secures rights to an accused but it does not
D preclude the rights of public justice. It was exposited that the.nature
and gravity of the crime, persons involved, social impact and societal
needs must be weighed along with the right of the accused to speedy
trial and if the balance tilts in favour of the former, the long delay in
conclusion of trial should not operate against the continuation of the
prosecution but if the right of the accused in the facts and circumstances
E of the case and the exigencies or situation leans the balance in his favour,
the prosecution may be brought to end. It was held that the guiding
factor for a retrial essentially has to be the demand of justice. It was
emphasized that while protecting the right of an accused to fair trial and
due process of law, the interest of the public at large who seek protection
F oflaw ought not to be altogether overlooked so much so, that it results in
loss of hope in the legal system. Retrial in the facts of the case was
·ordered.
59. The content and scope of the power under Article 226 of the
Constitution of India to direct investigation by the CBI in a cognizable
a offence, alleged to have taken place within the territorial jurisdiction of
the State, without the consent of the State Government fell for scrutiny
of this Court in Committee for Protection ofDemocmtic Rigllts (supra).
60. While examining the issue in the context of the power ofjudicial
review as embedded in the constitutional scheme, it was held that no
H Act of Parliament could exclude or curtail the powers of the constitutional
POOJA PAL v. UNION OF INDIA AND ORS. 597
fAMITAVA ROY, J.l
courts in that regard. Reiterating, that the power ofjudicial review, is an A
integral part of the basic structure of the Constitution, it was underlined
that the same was essential to give a pragmatic content to the objectives
of the Constitution embodied in Part lll and other parts thereof. In
elaboration, it was held that Article 21 of the Constitution not only takes
within its fold, the enforcement of the rights of the accused but also the
B
rights of the victim. It was predicated that the State has a duty to enforce
the human rights of the citizens providing for fair and impartial
investigation, against any person accused ofconunission ofany cognizable
offence. Referring to Section 6 ofthe Delhi Special Police Establishment
Act, 1946, it was ruled that any restriction imposed thereby could not be
construed to be one on the powers of the constitutional courts and thus c
cannot be taken away or curtailed or diluted thereby. While proclaiming
the supervening powers of the High Court under Article 226 of the
Constitution of India to direct, entrustment of the investigation to the
CBI as in the case involved, this Court sounded a caveat as well that the
very plentitude of such power inheres a great caution in its exercise and
D
though no inflexible guidelines can be laid down in that regard, the same
has to be invoked sparingly, cautiously and in exceptional situation when
it becomes necessary to provide credibility and to instill confidence in
the investigation 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. (emphasis supplied) E
61. The facts in Blwrati Tanumg (supra) seeking de novo
investigation, present somewhat an identical fact situation. The
appellant's husband, President ofa political party was brutally murdered
in public view and in the presence of police and security personnel by
the supporters of the rival party. The investigation into the sordid incident F
had been completed. Alleging that the probe initially held by the state
police and thereafter by the CID and by the CBI were faulty, the prayer
for de novo inquisition was made. Imputation of attempts by the
prosecution to suppress the truth in spite of the fact that the assailants
were identified and named in the FIR and that the incident was in
effectuation of a deep rooted conspiracy and preceded by previous threats G
were made. The CBI in its pleadings, inter alia, cited,
(i) prevailing law and order situation in the town;
(ii) abscondence of most of the accused persons;
H
598 SUPREME COURT REPORTS [2016] II S.C.R.
A (iii) murder of its informants;
(iv) fear psychosis in the locality and resultant want of support
from the local public as hindrances to its investigation.
62. On behalf of the appellant, accusation of tardy prosecution of
the case, and free and open movement of the key accused persons in
B the city avoiding arrest were made as well. The plea of the impleaded
accused persons that the appellant after the demise of her husband had
initiated the writ proceedings for political gain was rejected. Their
contention based on Section 319 of the Code that in course of the trial,
on availability of sufficient evidence, any person not being an accused
c could be ordered to be tried, was also negated. The propositions
expounded in Zallim llabibul/a H. Slleikll (supra) qua the duty of the
court to ensure fair investigation by remedying the deficiencies and
defaults therein so as to bring forth full and material facts to prevent
miscarriage of justice were reiterated. It was concluded that when the
courts find extra ordinary or exceptioniJ.l circumstances rendering
D reinvestigation imperative, in such eventualities even de novo investigation
can be ordered. While ruling that in case of discernable deficiency in
investigation or prosecution, the courts have to deal with the same with
iron hand appropriately with the framework of law, it was underlined
that in appropriate cases even, if charge-sheet was filed, it was open for
E the High Court and also this Court to direct investigation of the case to
be handed over to CBI or to any other agency or to direct investigation
de novo in order to do complete justice, in the facts of the case.
63. Noticing that certain transcripts of some conversations relating
to the incident intercepted by the CBI were awaiting analysis by the
F forensic agency as a part of the investigation, this Court in the ultimate,
transferred the case beyond the territorial limits of the district involved
and directed that the probe be carried out by the CBI to be monitored by
its Joint Director as named. It was ordered that the CBI would ensure
that all required evidence is gathered by- leaving no stone unturned, so
that all accused involved in the offence are brought for trial to be dealt
G with in accordance with law. The trial that had meanwhile commenced
was kept in abeyance pending conclusion of the further investigation by
the CBI and the submission of report before the transferred court as
ordered. Not only in issuing these directions this Court revisited the
imperatives bearing on the duty of the Court to ensure that criminal
prosecution is carried out effectively and the perpetrators of the crime
H
POOJA PAL v. UNION OF INDIA AND ORS. 599
rAMITAVA ROY, J.l
are duly punished by the appropriate court of law, it noticed as well A
some of the factual features of the case namely;
(i) The deceased at his death was the President of a political party.
(ii) There was a deep rooted rivalry between his party and another
party.
B
(iii) The deceased had organized a meeting of his party on the date
of the incident.
(iv) Police personnel were present at the place of the occurrence.
Though present, no report thereof was registered immediately
thereafter. c
(v) Wide coverage of the incident by the media.
(vi) Availability of the transcripts of the intercepted conversations
of some of the accused persons and the office bearers of the
rival political party.
D
64. This Court in Babubltai (supra) while examining the scope of
Section 173(8) of the Code, did recall its observations in Manu Sharma
vs. State (NCT of De/Iii), (2010) 6 SCC I, that it is not only the
responsibility of the investigating agency but as well as of the courts to
ensure, that investigation is fair and does not in any way hamper the
freedom ofan individual except in accordance with law. It underlined, E
that the equally enforceable canon of criminal law is that high
responsibility lies upon the investigating agency, not to conduct an
investigation in a tainted and unfair manner and that such a drill should
not prima facie be indicative of a biased mind and every effort should be
made to bring the guilty to law de hors his position and influence in the
F
society as nobody stands above law. It propounded that the word
"ordinarily" applied under Section 173(8) of the Code, did attest that if
the investigation is unfair and deliberately incomplete and has been done
in a manner with an object of helping a party, the court may direct
normally for further investigation, and not for reinvestigation. It was
however added as a sequiter that in exceptional circumstances, the G
court in order to prevent the miscarriage of criminal justice, and if it is
considered necessary, may direct for de novo investigation as well. It
was observed that.if an investigation has not been conducted fairly, the
resultant charge sheet would be invalid. It was held as well, that such
investigation would ultimately prove to be a precursor of miscarriage of
H
600 SUPREME COURT REPORTS r2o 161 11 S.C.R.
A criminal justice and the court in such a contingency would be left to
guess or conjecture, as the whole truth would not be forthcoming to it.
It was held that fair investigation is a part of the constitutional rights
guaranteed under Articles 20 and 21 of the Constitution of India and
thus the investigating agency cannot be permitted to conduct an
investigation in a tainted or biased manner. It was emphasised that
B
where non-interference of the court would ultimately result in failure of
justice, the court must interfere and in the interest of justice choose an
independent agency to make a fresh investigation._
65. In Rllb"bbuddi11 Slleikll (supra) as well, though as many as .
eight action reports had been submitted by the state police on the incident
c of reported murder of the brother of the petitioner in a fake encounter
and the disappearance of his sister-in-law in which, amongst other,
allegedly the anti-terrorist squad of the state police was involved, a
proceeding was initiated on the basis of a letter addressed to the Chief
Justice of fndia seeking a direction for investigation by the CBI. In
D view of the rival contentions advanced as to the permissibility or otherwise
of the transfer of the investigation as prayed for, this Court on an in-
depth audit of the decisions rendered by it, did negate the plea that
subsequent to the submission of a charge sheet, the court is not
empowered in any case whatsoever to handover the investigation to an
independent agency like CBI. It was held, having regard to the
E parameters outlined by the two sets of authorities on the issue, that such
a course however would be permissible in an appropriate case where
the facts bearing thereon would demonstrate lack of proper investigation
and vitiations thereof by factual discrepancies endorsing such a
deduction. The aspect that accusations in the contextual facts were
F directed against the local police personnel in which high police officials
of the state had been ·made accused also did weigh with the
determination. The view taken in Gudalure M.J. Clleril111 (supra)
that though ordinarily, after the investigation is co111pleted by the police
and charge sheet is submitted to the court, the investigation ought not to
be re-opened by entrusting the same to a specialized agency like CBI,
G nevertheless in a given situation, to do justice between the parti~s and to
instill confidence in the public mind it may be warranted, was noted with
approval. The overriding imperative of permitting transfer of
investigation to the CBI was thus acknowledged to be in the advancement
of the cause ofjustice and to instill confidence in the mind of the victims
H
POOJA PAL v. UNION OF INDIA AND ORS. 601
[AMITAVA ROY, J.]
as well as the public. A
66. The renderings in H11ssai11ara K/w/0011 (supra), A.R.A11tulay
(supra), P. Rflmac/wm/m Rflo (supra), Vakil Pmsfltl (supra), Sampat
Lal (supra), Babubhai (supra) and Co111111011 Cm1se (supra) have been
pressed into service on behalf of the respondent Nos. 4 & 5 to highlight
the demand of speedy trial as a mandate of the fundamental right to life B
guaranteed under Article 21 of the Constitution of India. While
emphasizing that speedy trial is the essence of criminal justice and any
delay constitutes denial thereof, it has been propounded therein, that any
procedure which does not ensure a quick trial cannot be regarded as
reasonable, fair or just and would fly in the face of such cherished
constitutional promise. While observing that the right to speedy trial c
encompasses all the stages namely; investigation, inquiry, trial, appeal,
revision and retrial, it was however noted in P. Ra111aclu11ulm Rflo
(supra) that no guidelines for a speedy trial can be intended to be applied
as hard rules or a straight jacket formula and thattheir application would
depend on the fact situation of each case, which is difficult to foresee, D
so much so that no generalization can be made. It was expounded as
well in the Smnpal Lal (supra) that in spite of the procedure laid down
in the relevant provisions of the Criminal Procedure Code, a court, in a
given case, if is satisfied that the statutory agency has not functioned in
an effective way or that the circumstances are such that it may reasonably
be presumed or inferred that it may not be able to conduct the investigation E
fairly or impartially, the court may reasonably consider to supplement
the procedure.
67. While recalling its observation in State ofBilwr wu/ <mother
vs. JAC Saldm1/u1 anti others ( 1980) I SCC 554, that on a cognizance
of the offence beingtaken by the court, the police function ofinvestigation F
comes to an end subject to the provision contained in Section 173(8) of
the Code and thatthe adjudicatory function of the judiciary commences,
thus delineating the well demarcated functions of crime detection and
adjudication, this Court did recognize a residuary jurisdiction to give
directions to the investigating agency, if satisfied that the requirements G
of law were not being complied with and that the investigation was not
being conducted properly or with due haste and promptitude. It was
reiterated in Bflbublwi (supra) that in exceptional circumstances, the
court in order to prevent the miscarriage of criminal justice, may direct
investigation de novo, ifit is satisfied that non-interference would ultimately
H
602 SUPREME COURT REPORTS [2016] 11 S.C.R.
A result in failure of justice. In such an eventuality endorsement of the
investigation to an independent agency to make a fresh probe may be
well merited. That not only fair trial but fair investigation is also a part
of the constitutional rights guaranteed under Articles 20 & 21 of the
Constitution of India and therefore investigation ought to be fair,
transparent and judicious, was reemphasised. The expression "ordinarily"
B
as used in Section 173(8) of the Code was noted again to rule that in
exceptional circumstances however, in order to prevent miscarriage of
criminal justice, a court may still direct investigation de novo. The above
postulations being strikingly common in all these decisions, do pervade
the fabric and the content thereof and thus dilation of individual facts
c has been avoided.
68. That the extra-ordinary power of the constitutional courts under
Articles 32 and 226 of the Constitution of India qua the issuance of
direction to the CBI to conduct investigation must be exercised with
great caution was underlined in Committee for Protection of
D Democractic Rigltts (supra) as adverted to hereinabove. Observing
that although no inflexible guidelines can be laid down in this regard, it
was highlighted that such an order cannot be passed as a matter of
routine or merely because the party has levelled some allegations against
the local police and can be invoked in exceptional situations where it
becomes necessary to provide credibility and instill confidence in
E investigation or where the incident may have national and international
ramifications or where such an order may be necessary for doing
complete justice and for enforcing the fundamental rights.
69. In Kllslimeri Devi (supra), being satisfied, in the prevailing
facts and circumstances that effort had been made to protect and shield
F the guilty officers of the police who allegedly had perpetrated the offence
of murder involved, this Court directed the Magistrate concerned before
whom the charge sheet had been submitted, to exercise its power under
Section 173(8) of Code to direct the CBI for proper and thorough ..
investigation of the case and to submit 11p additional charge-sheet in
G accordance with law.
70. In Godalure M.J. C/ierimr (supra), this Court in a petition
under Article 32 of the Constitution oflndia, lodged in public interest, did
after taking note of the fact· that charge sheet had already been
submitted, direct the CBI to hold further investigation in respect of the
offence involved. In recording this conclusion, this Court did take note
H
POOJA PAL v. UNION OF INDIA AND ORS. 603
[AMITAVA ROY, J.]
of the fact that the nuns who had been the victim of the tragedy did not A
come foiward to identify the culprits and that as alleged by the petitioners,
the four persons set up by the police as accused were not the real culprits
and that the victims were being asked to accept them to be so. The
paramount consideration for the direction issued was to secure justice
between the parties and to instill confidence in public mind. The same
B
imperative did impel this Court to issue a similar direction for fresh
investigation by the CBI in Pu11jab mu/ Harymut Higlt Court Bar
Association (supra). Here as well the investigation otherwise had been
completed and charge-sheet was submitted.
71. This Court dealing with the proposition that once a charge
sheet is filed, it would then be exclusively in the domain of the competent c
court to deal with the case on merits in accordance with law and that the
monitoring of the investigation would cease in all respects, held, in
particular, in K. V. Rajemlrm1 (supra) in reiteration of the enunciations
aforestated, that though it is ordinarily so, the power of transferring
investigation in rare and exceptional cases for the purpose of doing D
justice between the parties and to instill confidence in the public mind,
can be made invoking its constitutional power available, to ensure a fair,
honest and complete investigation.
72. The precedential ordainment against absolute prohibition for
assignment of investigation to any impartial agency like the CBI, E
submission of the charge-sheet by the normal investigating agency in
law notwithstanding, albeit in an exceptional fact situation warranting
such initiative, in order to secure a fair, honest and complete investigation
and to consolidate the confidence of the victim(s) and the public in general
in the justice administering mechanism, is thus unquestionably absolute
and hallowed by time. Such a measure however can by no means be a F
matter of course or routine but has to be essentially adopted in order to
live up to and effectuate the salutary objective of guaranteeing an
independent and upright mechanism ofjustice dispensation without fear
- or favour, by treating all alike.
73. In the decisions cited on behalf of the CBI as well, this Court G
in K. Saravan(ln K"rupp"s""'Y and Sudipta Lenkll, (supra),
recounted the above propositions underpinning the primacy of credibility
and confidence in investigations and a need for complete justice and
enforcement of fundamental rights judged on the touchstone of high
public interest and the paramountcy of the rule of law.
H
604 SUPREME COURT REPORTS [2016] 11 S.C.R.
A 74. The judicially propounded propositions on the aspects of
essentiality and justifiability for assignment of further investigation or
reinvestigation to an independent investigating agency like the CBI,
whether or not the probe into a criminal offence by the local/state police
is pending or completed, irr<:spcctive of as well, the pendency of the
resultant trial have concretizcd over the years, applicability whereof
B
however is contingent on the factual setting involved and the desideratum
for vigilant, sensitised and evenhanded justice to the parties.
75. The exhaustive references of the citations seemingly repetitive
though, assuredly attest the conceptual consisting in the expositions and
enunciations on the issue highlighting the cause ofjustice as the ultimate
c determinant for the course to be adopted.
76. A "speedy trial", albeit the essence of the fundamental right
to life entrenched in the Article 21 of the Constitution of India has a
companion in concept in "fair trial", both being in alienable constituents
of an adjudicative process, to culminate in a judicial decision by a court
D oflaw as the final arbiter. There is indeed a qualitative difference between
right to speedy trial and fair trial so much so that denial of the former
by itself would not be prejudicial to the accused, when pitted against the
imperative of fair trial. As fundamentally, justice not only has to be done
but also must appear to have been done, the residuary jurisdiction of a
E court to direct further investigation or reinvestigation by any impartial
agency, probe by the state police notwithstanding, has to be essentially
invoked if the statutory agency already in-charge of the investigation
appears to have been ineffective or is presumed or inferred to be not
being able to discharge its functions fairly, meaningfully and fructuously.
As the cause of justice has to reign supreme, a court of law cannot
F reduce itself to be a resigned and a helpless spectator and with the
foreseen consequences apparently unjust, in the face of a faulty
investigation, meekly complete the formalities to record a foregone
conclusion. Justice then would become a casualty. Though a court's
satisfaction of want of proper, fair, impartial and effective investigation
G eroding its credence and reliability is the precondition for a direction for
further investigation or reinvestigation, submission of the charge-sheet
ipso facto or the pendency of the trial can by no means be a prohibitive
impediment. The contextual facts and the attendant circumstances have
to be singularly evaluated and analyzed to decide the needfulness of
further investigation or reinvestigation to unravel the truth and mete out
H
POOJA PAL v. UNION OF INDIA AND ORS. 605
[AMITAVA ROY, J.]
justice to the parties. The prime concern and the endeavour of the court A
of law is to secure justice on the basis of true facts which ought to be
unearthed through a committed, resolved and a competent investigating
agency.
77. As every social order is governed by the rule oflaw, the justice
dispensing system cannot afford any compromise in the discharge of B
its sanctified role of administering justice on the basis of the real facts
and in accordance with law. This is indispensable, in order to retain and
stabilize the faith and confidence of the public in general in the justice
delivery institutions as envisioned by the Constitution.
78. As succinctly summarised by this Court in Committee/or c
Protection of Democratic Rif(lll (supra), the extra ordinary power of
the Constitutional Courts in directing the CBI to conduct investigation
in a case must be exercised sparingly, cautiously and in exceptional
situations, when it is necessary to provide credibility and instill confidence
in investigation or where the incident may have national or international
ramifications or where such an order may be necessary for doing D
complete justice and for enforcing the fundamental rights. In our
comprehension, each of the determinants is consummate and independent
by itself to justify the exercise of such power and is not inter-dependent
on each other..
79. A trial encompasses investigation, inquiry, trial, appeal and retrial E
i.e. the entire range of scrutiny including crime detection and adjudication
on the basis thereof. Jurisprudentially, the guarantee under Article 21
embraces both the life and liberty of the accused as well as interest of
the victim, his near and dear ones as well as of the community at large
and therefore cannot be alienated from each other with levity. It is judicially F
acknowledged that fair trial includes fair investigation as envisaged by
Articles 20 and 21 of the Constitution oflndia. Though, well demarcated
contours of crime detection and adjudication do exist, ifthe investigation
is neither effective nor purposeful nor objective nor fair, it would be the
solemn obligation of the courts, if considered necessary, to order further
investigation or reinvestigation as the case may be, to discover the truth G
so as to prevent miscarriage of the justice. No inflexible guidelines or
hard and fast rules as such can be prescribed by way of uniform and
universal invocation and the decision is to be conditioned to the attendant
facts and circumstances, motivated dominantly by the predication of
advancement of the cause of justice.
H
606 SUPREME COURT REPORTS [2016) 11 S.C.R.
A 80. 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
B
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 plentitude and content thereof can neither
be enervated nor moderated by any legislation.
81. The expression "fair and proper investigation" in criminal
c jurisprudence was held by this Court in Vi11ay Tyagi vs Irsluul Ali@
Deepak a11tl others (2013)5SCC 762 to encompass two imperatives;
firstly the investigation must be unbiased, honest, just and in accordance
with law and secondly, the entire emphasis has to be to bring out.the
truth of the case before the court of competent jurisdiction.
D 82. Prior thereto, in the same vein, it was ruled in Sanutj
Parivarta11 Samudaya (lit(/ others vs. State of Kamataka anti others
(20 I 2)7SCC 407 that the basic purpose of an investigation is to bring
out the truth by conducting fair and proper investigation, in accordance
with law and to ensure that the guilty are punished. It held further that
E the jurisdiction of a court to ensure fair and proper investigation in an
adversarial system of criminal administration is of a higher degree than
in an inquisitorial system and it has to take precaution that interested
or influential persons are not able to misdirect or hijack the investigation,
so as to throttle a fair investigation resulting in the offenders, escaping
the punitive course of law. Any lapse, it was proclaimed, would result
F in error ofjurisdiction. ·
83. 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
mu/ others vs. State of Madhya Pratlesfl (20 l 2)4SCC 516. It was
postulated that the criminal jurisprudence with the passage of time has
G laid emphasis on victimology, which fundamentally is the perception
of a trial from the view point of criminal as well as the victim when
judged in the _social context.
84. This Cou11 in National Hu11u111 Rights Commissio11 vs. State
of Gujllrat anti others (2009) 6 SCC 767 did proclaim unambiguously
H
POOJA PAL v. UNION OF INDIA AND ORS. 607
rAMITAVA ROY, J.l
that discovery, investigation and establishment of truth are the main A
purposes of the courts of justice and indeed are raison d'etre for their
existence.
85. That the preeminence of truth is the guiding star in a judicial
process forming the foundation of justice had been aptly propounded
by this Court in Maria Margarida Sequeira Fernandes and otllers B
vs. Erasmo Jack De Sequeira (dead) tllrougll L.Rs (2012)5SCC 370.
It was ruled that the entire judicial system had been created only to
discern and find out the real truth and that the Judges at all levels have to
seriously engage themselves in the journey of discovering the same.
Emphasizing that the quest for truth is the mandate of law and indeed
the bounden duty of the courts, it was observed that the justice system c
will acquire credibility only when the people will be convinced that justice
is based on the foundation of the truth. While referring with approval,
the revealing observation made in Rites/1 Tewari and <mot/1er vs. State
of U.P. and others (2010)10SCC 677 that every trial is voyage of
discovery in which truth is the quest, the following passage of Lord D
Denning scripted in Jones vs. National Coal Board ( 1957) 2 All ER
155(CA) was extracted in affirmation:
" .. .It's all very well to paint justice blind, but she does better
without a bandage round her eyes. She should be blind
indeed to favour or prejudice, but clear to see which way E
lies the truth."
86. A strain of piognance and disquiet over the insensitive approach
of the court concerned in the textual facts in the context of fair trial in
the following observations of this Court in Vinod Kumar vs. State of
Punjab (2~ I 5)3 SCC 220 sounds an awakening caveat: F
"The narration of the sad chronology shocks the judicial
conscience and gravitates the mind to pose a question: ls
it justified for any conscientious trial Judge to ignore the
statutory command, not recognize "the felt necessities of
time" and remain impervious to the cry of the collective
G
asking for justice or give an indecent and uncalled for burial
to the conception of trial, totally ostracizing the concept
that a civilized and orderly society thrives on the rule oflaw
which includes "fair trial" for the accused as well as the
prosecution."
H
608 SUPREME COURT REPORTS [2016) 11 S.C.R.
A 87. The observations though made in the backdrop of repeated
adjournments granted by the trial court, chiefly for cross-examination of
a witness resulting in the delay of the proceedings, the concern expressed
is of overarching relevance demanding sentient attention and remedial
response. The poser indeed stems from the indispensable interface of
the orderly existence of the society founded on the rule oflaw and "fair
B
trial" for the accused as well as the prosecution. That the duty of the
Court while conducting a trial is to be guarded by the mandate of law,
conceptual fairness and above all its sacrosanct role to arrive at the
truth on the basis of material brought on record, was reiterated.
88. Adverting to the role of the police to be one for protection of
c life, liberty and property of citizens, with investigation of offences being
one of its foremost duties, it was underscored in Mcmolwr Lll/ Slwrnw
vs. Principlll Secretllry llnd others (2014)2SCC 532 that the aim of
investigation is ultimately to search for truth and to bring the offendor to
book. The observations of Lord Denning in his rendering in "The Due
D Process of Law" First Indian Reprint 1993 page I 02 were alluded to at
page 553 as under:
"In safeguarding our freedoms, the police play a vital role.
Society for its defence needs a well-led, well-trained and
well-disciplined force of police whom it can trust; and
E enough of them to be able to prevent crime before it
happens, or if it does happen, to detect it and bring the
accused to justice.
The police, of course, must act properly. They must obey
the rules of right conduct. They must not extort confessions
F by threats or promises. They must not search a man's house
without authority. They must not use more force than the
occasion warrants."
89. The avowed purpose of a criminal investigation and its
efficacious prospects with the advent of scientific and technical
G advancements have been candidly synopsized in the prefatory chapter
dealing with the history of criminal investigation in the treatise on
Criminal Investigation - B"sic Perspectives by P"ul B. Weston line/
Rennetlt M. Wells:
"Criminal investigation is a lawful search for people and
things useful in reconstructing the circumstances of an illegal
H
POOJA PAL v. UNION OF INDIA AND ORS. 609
[AMITAVA ROY, J.]
act or omission and the mental state accompanying it. It is A
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 fidelitv. accuracy,
and sincerity in lawfully searching for the true facts of an B
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 recognizing c
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 D
reliance upon informers and custodial interrogation and
concentrate upon a skilled scanning of the crime scene for
physical evidence and a search fer as many witnesses as
possible. Mute evidence tells its own story in court, either
by its own demonstrativeness or through the testimony of E
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 F
contribute to the major deterrent of crime - the certainty
that a criminal will be discovered, arrested and convicted.
90. Reverting to the facts, the gruesome and sordid assassination
of the appellant's husband in broad day light under the public gaze is not
in dispute. As a consequence of the murderous assault with firearms G
and indiscriminate use thereof, Raju Pal along with two others fell to the
bullets. Records seem to suggest that even prior to the incident, attempts
were made on his life but he survived the same in view of the timely
intervention of the security guards. That representations were made by
him seeking additional protection and that after his murder, the appellant H
610 SUPREME COURT REPORTS f2016] I 1 S.C.R.
A and the party higher ups of Raju Pal had persistently appealed, amongst
others, to the Governor and the Chief Minister of the State for handing
over the investigation to the CBI is also testified by the records.
91. Pleaded imputations of the appellant include deliberate,. uncalled
for and mysterious replacement of the earlier sets of personal security
B officers/gunners of the deceased, presence of high police officials near
the place of occurrence, indifference on the part of the state police to
act with alacrity, hasty conduct of the post mortem of the dead body and
cremation thereof without handing over the same to the appellant or any
of his relatives, political pressure on the investigating agency to distort
c the course of the probe and to screen the incriminating evidence collected
etc. One of the Investigating Officers in his writ petition, questioning his
suspension had also pleaded on oath about the unexpected and
unwarranted interference of the higher ups in the department to withhold
evidence gathered in course of the investigation underway. Though
nothing decisively turn on these accusations, the same having been refuted
D by the respondents, the fact remains that the appellant's husband had
been mercilessly killed by a group of gun wielding assailants in a public
place, in the open view of all concerned. Such a daring and desperate
act did have a terrorizing impact on the society sending shock waves
amongst all cross sections of the community and received wide coverage
by the media. The incident understandably is not one to be lightly glossed
E over or trivialized.
92. The trial on the basis of the investigation completed hitherto
by the state police and the CBC ID has remained stayed by the orders of
this Court. Prior thereto however as per the materials laid before this
Court, several eye-witnesses cited by the investigating agency have been
F examined. As the trial is pending for the present, we refrain from
commenting on their testimony, except that they seem to have resiled
from their statements under Section 161 of the Code. Having regard
to the manner in which the offence had been committed, it is
incomprehensible that there was no eye-witness to the incident. Thus,
G ifthe persons cited as eye-witnesses by the investigating agency retract
from their version made before the police, then either they have been
wrongly projected as eye-witnesses or they have for right or wrong
reasons resiled from their earlier narration. In both the eventualities, in
our opinion, the investigation has to be faulted as inefficient, incomplete
and incautious with the inevitable consequence of failure of the
H
·'
POOJA PAL v. UNION OF INDIA AND ORS. 611
fAMITAVA ROY, J.l
prosecution in the case in hand. Such a fall out also spells a dismal A
failure of the state machinery as a pivotal stake holder in the process of
justice dispensation to protect and assure the witnesses of their safety
and security so to fearlessly testify the truth. We would hasten to add
that these observations are by no means suggestive of the complicity of
the respondent Nos. 4 & S and other accused persons standing trial.
B
These, to reiterate, are farthest from even any presumptive hypothesis
of their involvement in the offence for the present and are engendered
by the concern of possible failure ofjustice. If the investigating agencies,
as involved, have not been able to identify and present eye-witnesses of
the incident who would under all circumstance religiously and devotedly
abide by their version about the same, the shortcoming apparently is in c
the probe made, sadly reflecting on the competence, commitment and
efficacy of such agencies. The very fact that this Court had earlier
stayed the trial while permitting the appellant to approach the High Court
with the relief for assignment of the investigation to the CBI does signify
its expectation that the High Court would adopt a sensitive insight into
D
the issues raised and appropriately address the same. The pendency of
the trial and the examination of the witnesses so far made thus in our
estimate is not a disarming factor for this Court, to consider the necessity
of entrusting the investigation to the CBI even at this stage. To reiterate,
a decision in this regard has to be induced and impelled by the cause of
justice viewed in the overall facts and circumstances attendant on the E
incident. No inflexible norm or guide Iine is either available or feasible.
93. The present factual conspectus leaves one with a choice either
to let the ongoing trial casually drift towards its conclusion with the
possibility of offence going unpunished or to embark upon investigation
belated though, spurred by the intervening developments, to unravel the F
truth, irrespective of the persons involved. As it is, every offence is a
crime against the society and is unpardonable, yet there are some species
of ghastly, revolting and villainous violations of the invaluable right to life
which leave all sensible and right minded persons of the society shell
shocked and traumatized in body and soul. Such incidents mercifully
rare though are indeed exceptionally agonizing, eliciting resentful G
condemnation of all and thus warrant an extra-ordinary attention for
adequate remedial initiatives to prevent their recurrence. In our
considered view, even if such incidents otherwise diabolical and
horrendous do not precipitate, national or international ramifications, these
H
612 SUPREME COURT REPORTS [2016] 11 S.C.R.
A undoubtedly transcend beyond the confines of individual tragedies and
militatively impact upon the society's civilized existence. If the cause of
complete justice and protection of human rights are the situational
demands in such contingencies, order for further investigation or
reinvestigation, even by an impartial agency as the CBI ought to be a
peremptory measure in the overwhelming cause of justice.
B
94. Judged in these perspectives, we are of the finn opinion that
notwithstanding the pendency ofthe trial, and the availability of the power
of the courts below under Sections 311 and 391 of the Code read with
Section 165 of the Evidence Act, it is of overwhelming ai1d imperative
necessity that to rule out any possibility of denial ofjustice to the parties
c and more importantly to instill and sustain the confidence of the community
at large, the CBI ought to be directed to undertake a de novo investigation
in the incident. We take this view, conscious about the parameters
precedentially fonnulated, as in our comprehension in the unique facts
and circumstances of the case any contrary view would leave the
.D completed process of crime detection in the case wholly inconsequential
and the judicial process impotent. A court of law, to reiterate has to be
an involved participant in the quest for truth and justice and is not
expected only to officiate a formal ritual in a proceeding farseeing an
inevitable end signaling travesty ofjustice. Mission justice so expectantly
and reverently entrusted to the judiciary would then be reduced to a
E teasing illusion and a sovereign and premier constitutional institution would
be rendered a suspect for its existence in public estimation. Considering
. the live purpose for which judiciary exists, this would indeed be a price
which it cannot afford to bear under any circumstance.
95. In the wake of the above, we are unhesitatingly inclined to
F entrust the CBI, with the task of undertaking a de novo investigation in
the incident of murder ofRaju Pal, the husband of the appellant as afore-
mentioned. Though a plea has been raised on behalf of the respondent
Nos. 4 and 5 in particular that this incident has been exploited by the
appellant for her political gains, we are left unpersuaded thereby, as her
G achievements in public life must have been fashioned by very many
ponderable as well as imponderable factors. In any view of the matter,
such a contention, in our view, is of no consequence or relevance. We
would, however make it abundantly clear ·that this direction for
entrustment of the investigation to the CBI anew has been made in view
of the exceptional features of the case as overwhelmingly denwnstrated
H
POOJA PAL v. UNION OF INDIA AND ORS. 613
[AMITAVA ROY, J.]
by attendant facts and circumstances indispensably necessitating the A
same.
96. We are aware that in the meantime, over a decade has passed.
The call of justice however demands, that the CBI in spite of the
constraints that it may face in view of the time lag, would make all
possible endeavours to disenter the truth through its effective and B
competent investigation and submit the same before the trial court, as
early as possible preferably within the period of six months from today.
The clarion call ofjustice expects a befitting response from the country's
premier and distinguished investigating agency. On receipt of the report
by the CBI only, the trial court would proceed therewith in accordance
with law and conduct and conclude the trial expeditiously and not later c
than six months. The interim order staying the ongoing trial is hereby
made absolute.
97. The appeal is thus allowed in the above terms.
Bibhuti Bhushan Bose Appeal allowed. D
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