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Jharkhand High Court · body

2011 DIGILAW 352 (JHR)

Madan Lal v. State of Jharkhand

2011-04-25

R.R.PRASAD

body2011
Order The petitioners in both the cases have invoked extraordinary jurisdiction of this Court as enshrined under Article 226 of the Constitution .of India for directing the C.B.1. to institute a case of kidnapping for ransom, dacoity/robbery and to proceed with its investigation. 2. The foundational facts pleaded in the aforesaid two cases for getting such relief are that on 1.8.2007 one Pintu [brother of writ petitioner of W.P .(Cr.) No. 338 of 2007] as well as one Chandan Thakur proceeded from Patna to Hazaribagh alongwith their employer Lallu Kumar [brother of one Mahesh Kumar the writ petitioner of W.P.(Cr.) No. 55 of 2008] to deliver utensils worth Rs.1 lac to the dealer. In the early morning at about 4.30 a.m. on 2.8.2007, Lallu Kumar informed his brother Mahesh Kumar that they are about to reach Hazaribagh where they will deliver the utensils to the dealer and then they will return back immediately. Just after half an hour Mahesh Kumar, brother of Lallu Kumar was informed by mobile of Lallu Kumar and also from other mobiles that all the three persons have been kidnapped. They also asked for ransom for their release and also for the release of the vehicle and utensils. Such demands were also made subsequently on 2.8.2007 and also on 3.8.2007 through the mobiles, numbers of which were noted down by the said Mahesh Kumar. The said Mahesh Kumar came to know on 7.8.2007 through a news report published in the daily newspaper "Hindustan" that his brother Lallu Kumar alongwith his two employees have been arrested on the charge of theft of 40 bags of coal, for which a case has been registered as Barhi P.S. Case No. 158 of 2007 on 6.8.2007 under Sections 414 and 34 of the Indian Penal Code and also under Section 33 of the Indian Forest Act. On coming to know all about it, the said Mahesh Kumar came to Hazaribagh alongwith his friends and met with the then Officer-in-charge of Padma Outpost and the other police personnel where they had talks with the police personnel on different dates on 7.8.2007, 8.9.2007 and also on 10.8.2007 for the release of aforesaid three persons. They advised them to approach other higher police personnel. Conversations which were there in between Mahesh Kumar and his friends on one hand and the police personnel on the other hand were recorded. They advised them to approach other higher police personnel. Conversations which were there in between Mahesh Kumar and his friends on one hand and the police personnel on the other hand were recorded. Thereafter, the said Mahesh Kumar and his friend •met with the then Officer-in-charge, Ajay Kumar Chourasia on 18.8.2007 and had talks in this respect. Said conversations were also recorded. All these conversations would reveal that aforesaid three persons had been implicated in the case falsely in order to extort money. Involvement of the then Officer-in-charge, Ajay Kumar Choursaia and other police personnels were apparent. On being convinced about the false implication of his brother and other persons, the said Mahesh Kumar sent an application before the Director General of Police, Jharkhand, and also met personally and stated about the manner in which his brother and other two persons had been implicated falsely. He also provided the C.Ds. in which conversations had been recorded on 7.8.2007, 9.8.2007 and 10.8.2007 and also on 18.8.2007 to the Director General of Police, Jharkhand and made request to get the matter relating to kidnapping be investigated. 3. Further case of the petitioners is that Lallu Kumar and Pintu Sao were released from custody on 6.10.2007, Their statements were recorded by Deputy Superintendent of Police, Hazaribagh wherein they disclosed that they had been kidnapped by two Bolero Jeep without having any number plates. Thereupon, Lallu Kumar was kept in the residence of Superintendent of Police, Hazaribagh for two days whereas Pintu Sao and Chandan Thakur were kept confined in Pelawal Police Station for three days. Subsequently, Lallu Kumar was brought to Padma Outpost in the night of 3-4.8.2007 whereas Pintu Sao and Chandan Thakur were brought to Padma Outpost on 5.8.2007 where all the three persons were subjected to torture by the police personnel to whom they identified as Devanand Yadav, Satrughan Singh and Rup Narayan Singh. 4. It has been further pleaded that in spite of all those disclosures showing' on one hand false implication of those three persons in a case of theft and establishing on the other hand involvement of the police personnel in kidnapping of Lallu Kumar and his two employees for the purpose of ransom, when nothing was done, both these applications came to be filed for the relief stated above. 5. 5. On filing of these two petitions, counter affidavits were filed wherein it was stated that upon receiving the complaint pf Mahesh Kumar alongwith relevant papers and the audio cassette containing conversations in between the police officers on one hand and the Mahesh Kumar and others on the other hand, Director General of Police, Jharkhand, respondent no. 3 constituted a team of three C.I.D. Inspectors, who on making enquiry prima facie found the allegations to be true and hence, submitted report in this regard on 28.9.2007 wherein it was disclosed that the then Officer-in-charge of Padma Outpost, the then Officer-in-charge, Barhi Police Station and the then Officer-in-charge, Pelawal Police Station in conspiracy with all the accused persons falsely lodged c case of theft of coal against Lallu Kumar and two others and were kept confined illegally and that illegal demand was made in order to release the aforesaid three persons. Thereafter, the C.LD. lodged a case bearing Sadar (Hazaribagh) P.S. Case No. 693 of 2008 on 29.7.2008 under Sections 342, 386, 379, 469, 471 and 120B/ 34 of the Indian Penal Code against ten accused persons. Both the cases, the case lodged by the C.I.D. as well as Barhi P .S. Case No. 158 of 2007 were taken for investigation by the C.I.D. On taking of the investigation of the said Barhi P.S. Case No. 158 of 2007, an application was filed before the Court of Chief Judicial Magistrate, Hazaribagh informing therein that the matter has been taken for re-investigation. Under the circumstance, it was prayed that the trial of Barhi P.S. Case No. 158 of 2007 be stayed till the final form is submitted by the C.I.D. 6. When the case was taken up by this Court earlier, this court having been dissatisfied with the progress, asked the State to file affidavit regarding progress made in the investigation of the case. Pursuant to that, supplementary counter affidavit was filed whereby it was stated that voice samples of four persons, namely, Mahesh Kumar, Anil Kumar, Manohar Prasad and Ramautar Das has been taken by getting their voice recorded at All India Radio Station and the same has been sent for comparison with other C.D. before the Director, Forensic Science Laboratory, Gandhinagar, Gujarat. Pursuant to that, supplementary counter affidavit was filed whereby it was stated that voice samples of four persons, namely, Mahesh Kumar, Anil Kumar, Manohar Prasad and Ramautar Das has been taken by getting their voice recorded at All India Radio Station and the same has been sent for comparison with other C.D. before the Director, Forensic Science Laboratory, Gandhinagar, Gujarat. On filing such affidavit, objection was taken on behalf of the petitioner that in spite of passing off more than two years, the C.I.D. has not been able to collect the voice sample of rest of six accused persons and has not been able to recover the stolen utensils and has failed to make any investigation about the role being played by the Superintendent of Police in the alleged offence as one of the victims had been confined in the residence of the Superintendent of Police, one can come to conclusion easily that C.I.D. is not at all investigating the case with all seriousness and promptitude. On such submission, the State was again asked to file affidavit about the progress made in the investigation of the case. Pursuant to that, an affidavit has been filed on 28.3.2011 wherein it has been stated that voice samples of all the accused persons and also of the witnesses have already been recorded which have been sent to Forensic Science Laboratory, Gandhinagar, Gujarat for comparison of the voice with the voice recorded in the C.D. earlier and that process has been initiated for getting the order of sanction for prosecution against the erring police officials who are under suspension presently and that the matter is also being investigated upon as to whether the then Superintendent of Police has had any role to play in the matter or not and the charge-sheet is likely to be submitted soon. 7. Mr. Madan Lal appearing in person submits that the C.I.D. has not been able to recover the stolen utensils nor the vehicles on which the victims were kidnapped have been recovered and that nothing substantial has been placed on behalf of the State about the investigation made on the point as. 7. Mr. Madan Lal appearing in person submits that the C.I.D. has not been able to recover the stolen utensils nor the vehicles on which the victims were kidnapped have been recovered and that nothing substantial has been placed on behalf of the State about the investigation made on the point as. to whether the Superintendent of Police, Hazaribagh does .have any role to play in the alleged offence or not and that in spite of passing-off more than three years, the charge-sheet has not been submitted which speaks volume of inefficiency and indifferent attitude of the officials of the C.I.D. in the matter which relates to false implication of the innocent persons in a criminal case and also of kidnapping of the persons for ransom by police personnel and as such, the matter be handed over to the C.B.I. as the C.I.D. being limb of State Police is not in a position to investigate seriously into the incident of kidnapping for ransom and dacoity/robbery by the Hazaribagh district police. 8. Thus, the question does arise as to whether the facts and circumstances do warrant handing over the investigation of the case being conducted presently by the C.I.D. to the C.B.I.? 9. It has been well settled that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. 10. However, it has been cautioned by the Hon'ble Supreme Court that this power is to be exercised in rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter-XII of the Code is clearly made out requiring the interference of the High Court. The Hon'ble Supreme Court has further gone to lay down proposition that though the High Court does have power under Article 226 of the Constitution of India to direct enquiry by the C.B.I. but the said power can be used only in cases where there is sufficient material to come to prima facie conclusion that there is a need for such enquiry. 11. It has gone further to observe that it is not sufficient to have such material in the pleadings. 11. It has gone further to observe that it is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an enquiry by the C.B.I. 12. In this respect, reference may be made of a case of Secretary, Minor Irrigation & Rural Engineering Services, U.P and Others vs. Sahngoo, Ram Arya and Another [ (2002)5 SCC 521 ] .and also in a case of Common Cause, A Registered Society vs. Union of India [(1996)6 SCC 667]. 13. It has already been noticed that when the petitioner Mahesh Kumar, brother of the victim Lallu Kumar, came to know that Lallu Kumar and two others have been booked in a case of theft of coal, he approached the Officer-in-charge, Ajay Kumar Chourasia and other police personnel and had conversations with them and then he could know that 'his brother and two persons have been kidnapped by none other than the police personnel for ransom and, therefore, an application was sent to the Director General of Police, Jharkhand at whose instance, enquiry was undertaken by a team of C.I.D. Officers, who found the allegation made against the police personnel to be true. On submission of such enquiry report, a case was registered as Sadar (Hazaribagh) P.S. Case No. 693 of 2008 against ten police personnels, who had conspired to extort money and confined them to illegal custody. 14. It be noted also that the petitioner Mahesh Kumar had been able to record their conversations with the police personnel in a C.D. which was handed over to the C.I.D. Thereafter, the C.I.D. secured the voice samples of four accused persons initially but during the pendency of this writ application, voice samples of all the accused persons seems to have been recorded and in some cases, the C.I.D. has even been able to procure the report whereas in cases of other accused persons, report is still awaited and it is the stand of the State that investigation is under progress and there is every possibility that the charge-sheet would be submitted shortly. It is true that C.I.D. has consumed much of time in c9mpleting the investigation and that it has still not been able to• trace those two vehicles on which three persons had been kidnapped and has also been unable to retrieve the utensils which was being carried in the vehicle by three• victims and that role of the then Superintendent of Police, Hazaribagh is still to be ascertained but from the facts noted above, it would be apparent that substantial progress in the investigation has already been made and the statements made in counter affidavit do indicate that the efforts are still on to trace those articles and that the case is also being investigated on the line as to whether the then Superintendent of Police, Hazaribagh has had any role to play or not. 15. Thus, on the whole, it does appear that C.I.D. is proceeding with the investigation and has been able to collect the material relating to involvement of the accused persons in the alleged offence of kidnapping and illegal confinement of three persons and taking the statement of the State that the Charge-sheet is likely to be submitted soon, it would not be desirable, in view of the proposition laid down by the Hon'ble Supreme Court to direct the C.B.I. to take over the investigation of the case but at the same time, it is desirable that the investigation be completed as early as possible and to file report under Section 173 of the Code of Criminal Procedure. 16. With the aforesaid direction/observation, both the writ applications are disposed of.