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Madhya Pradesh High Court · body

2013 DIGILAW 1352 (MP)

Umesh Kumar Bohare v. State of M. P.

2013-11-12

G.D.SAXENA, S.K.GANGELE

body2013
ORDER Gangele J. -- 1. We have heard the petitions in regard to issuance of interim directions to CBI to investigate certain aspects of an incident in which near about 116 persons have been died in a stampede at Ratangarh Temple. 2. A temple at holy shrine of Goddess Bhagwati is situated over a hill near Ratangarh village at District Datia, it is called “Ratangarh Mata Mandir’. The temple is at the bank of river Sindh. It is famous in neighbouring areas including U.P., M.P. and Rajasthan. Large number of devotees used to come to offer prayers at the temple of holy shrine at Navrati and after Deepavali. On 13th October 2013, a stampede occurred when large number of devotees had been crossing the bridge built over the Sindh river. In the aforesaid stampede near about 116 persons have been killed. The exact cause of stampede has still not been established. As per the newspaper reports, the police had permitted number of tractors and other four wheelers to cross the bridge and there was some scuffle between the devotees. At that time, the police used batons i.e. lathi charge to control the people. It is further reported in the news papers that the police personnel floated a rumor that the bridge had collapsed, hence, a panic was created and in that panic, due to stampede persons were killed. Large number of persons had tried to escape by jumping in theriver through ropes and sarees. 3. After the incident number of dignitaries including the Hon’ble Chief Minister had visited the place. The Director General of Police, as per the news paper report, had announced that an investigation would be carried out to find out what was the cause of stampede in which such a large number of persons had been killed. On 15.10.2013, within a short period, the State Government ordered a judicial enquiry and Hon’ble Shri Justice Rakesh Saxena, Retired High Court Judge has been appointed to chair the judicial commission. Following three points have been referred to the Judicial Commission for the purpose of submission of its report : (A) Whether the District Administration had made sufficient arrangements and had taken necessary steps looking to the number of devotees, who had come to visit the temple? Following three points have been referred to the Judicial Commission for the purpose of submission of its report : (A) Whether the District Administration had made sufficient arrangements and had taken necessary steps looking to the number of devotees, who had come to visit the temple? (B) What were the circumstances and reasons due to which the incident on 13th October 2013 had occurred and how many persons are responsible for that? (C) What steps would be taken to prevent such type of incident in near future? 4. Judicial Commission has been appointed under the Provisions of Commission of Enquiry Act, 1952. 5. The petitioners in these petitions, which have been filed in public interest pleaded that the State authorities or the Government have not taken any step to investigate the incident because the police and District Administration was involved in the incident and due to lapses and acts of the police personnel the incident had taken place. In order to divert the public attention and anger, a judicial enquiry has been ordered so that the administration could buy some time and the real culprits be saved. It is further pleaded by the petitioners in these petitions that in the interest of justice and looking to the allegations leveled against the police authorities and the administration, it is necessary to order a CBI investigation in regard to certain aspects of the matter. 6. The respondent/State opposed the prayer of CBI investigation in the objection filed on behalf of the respondents. It is pleaded by the respondents-State that a judicial commission has already been appointed to conduct an enquiry and submit the report to the administration and the Commission shall submit its report on all the aspects, hence, it would not be just and proper to order a CBI investigation. The objection has also been raised that the writ petitions are based on the basis of newspaper reports, hence, the Court can not take cognizance only on the basis of the news paper reports. No affidavits of affected persons have been filed to substantiate the claim of the affected persons. Hence, at this stage, it would not be just and proper to order CBI investigation. 7. No affidavits of affected persons have been filed to substantiate the claim of the affected persons. Hence, at this stage, it would not be just and proper to order CBI investigation. 7. Learned counsel appearing on behalf of the petitioners have contended that the State Administration and the higher authorities have not taken any step to conduct the preliminary investigation in accordance with the provisions of Criminal Procedure Code. No statements of witnesses have been recorded by the police. Only a marg were registered at the police station. Higher police authorities did not conduct any investigation neither visited the spot, even the blood, which was on the bridge had been cleared on the very next day. Important piece of evidence was also destroyed, so it could not be find out that what was the cause of incident. In the news papers eye witnesses and injured persons made statements that the police had thrown dead bodies and injured into the river. The incident had happened due to rumor floated by the police and lathi charge. The aforesaid aspect could not be established in a judicial enquiry. For the aforesaid purpose, an investigation is necessary because the investigation is quite different from judicial enquiry. It is further contended that looking to the magnitude of the incident and the apathy of the administration and the fact that the administration had tried to save the culprits, an investigation by the CBI is necessary. In support of the contentions, learned counsel relied on the following judgments : (i) State of West Bengal v. Committee for protection of democratic rights [ (2010)3 SCC 571 ]; (ii) State of Maharashtra v. Farook Mohammed Kasim Markar [ (2010)8 SCC 582 ]. 8. Contrary to this, learned Additional Advocate General appearing on behalf of the State has contended that the State has already set up a judicial commission to inquire the incident. The terms of the reference of the Commission includes all the points, hence, an investigation by CBI could not be ordered. He further submitted that the allegations leveled in the petitions are baseless and are based on news paper reports. No affidavit of any affected person has been filed along with the petitions to substantiate the pleadings that the incident had happened due to action of the police authorities. He further submitted that the allegations leveled in the petitions are baseless and are based on news paper reports. No affidavit of any affected person has been filed along with the petitions to substantiate the pleadings that the incident had happened due to action of the police authorities. Learned Additional Advocate General further submitted that final relief at this stage could not be granted in the case. Looking to all the aspects fo the case, an investigation by CBI would be unnecessary. In support of his contentions, learned Additional Advocate General has relied on the following judgments : (i) State of Karnataka v. Arun Kumar Agrawal [ (2000)1 SCC 210 ]; (ii) Secretary, Minor Irrigation and Rural Engineering Services v. Sahngoo Ram Arya [ AIR 2002 SC 2225 ]; (iii) State of Punjab v. Devendra Singh Bhullar [ (2011)14 SCC 770 ]; (iv) D.Venkatasubramaniam and others v. M.K.Mohan Krishnamachari [ (2009)10 SCC 488 ]; (v) Kalyaneshwari v. Union of India and others [ (2011)3 SCC 287 ]; (vi) Yijay Shekhar v. Union of India and others [ (2004)3 SCC 263 ]; (vii) Pyare Mohan Lal v. State of Jharkhand [ AIR 2010 SC 3753 ]; (viii) Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindi [ AIR 2010 SC 475 ]. (ix) Laxmi Raj Shetty v. State of Tamil Nadu [ AIR 1988 SC 1274 ]; (x) Rajender Singh Pathania v. State (NCT of Delhi) [ (2011)13 SCC 329 ]; (xi) State of Uttaranchal v. Balwant Singh Chaufal [ AIR 2010 SC 2550 ]. 9. We would like to mention some facts about the incident which had taken place at the temple of Ratangarh. As per the police version due to stamped the incident had happened, however, as per the newspaper reports, the stampede occurred because the police persons had taken money from the owners of the tractors and other vehicles and permitted the vehicles to cross over the bridge, due to which congestion had occurred and some quarrel had also taken place between the follow passengers and thereafter police had resorted lathi charge and used batons to control the crowd. A rumor was also floated that the bridge had collapsed. Due to the aforesaid act, the stampede had occurred. Persons including women and children tried to jump in the river and for the aforesaid purpose ropes were used and sarees were also used as ropes. 10. A rumor was also floated that the bridge had collapsed. Due to the aforesaid act, the stampede had occurred. Persons including women and children tried to jump in the river and for the aforesaid purpose ropes were used and sarees were also used as ropes. 10. The aforesaid facts were reported in the newspaper “Dainik Bhaskar” in its edition of 14th October 2013. Some photographs of the place were also published. It was reported in the news paper that police had thrown bodies of some persons in order to reduce the number of casualties. Same facts have been mentioned in the newspaper “Patrika” in its edition dt.14th October 2013. Daily newspaper “Patrika” in its edition dt.15th October 2013, published the statement of Mr. Ashish Shivhare to the effect that he had been thrown by the police persons in the river. Statement of another person Mr. Ashish was also published in which he had told that some police persons had thrown him in the river. Statement of another person Bharat Lohpita was also published in the newspaper “Nai Dunia” dated 15th October 2013. He had stated that his son Jitendra was died and the police had thrown the body of Jitendra in the river and he had found body of Jitendra in near by shrubs. Statement of another person Manohar Pal Singh has been published in which he stated that the body of his nephew Deepak had been thrown in the river. 11. Same facts have been reported in “Times of India” in its edition dated 16th October 2013. The newspaper reported the following statement of Rajushree Yadav, who was the member of the police gram raksha samiti: “I heard pilgrims screaming on the bridge that police were dumping bodies and throwing injured but alive children into the river. I rescued six children from the site of the stampede, including one from river.” The newspaper also reported statement of Mr. Indal Ahirwar, which is as under : “I have seen policemen dumping children into the river. It was a heart-wrenching scene. I am ready to testify before the Court.” Statement of Director General of Police Mr. Nandan Kumar Dubey was also reported in which Mr.Dubey had categorically stated that “We are investigating certain allegations. If anything is found, we would certainly take action”. 12. It was a heart-wrenching scene. I am ready to testify before the Court.” Statement of Director General of Police Mr. Nandan Kumar Dubey was also reported in which Mr.Dubey had categorically stated that “We are investigating certain allegations. If anything is found, we would certainly take action”. 12. On the very next day of the incident, the State Government suspended Collector, S.P. and other near about 28 police persons, who were on duty at Ratangarh Temple. When we asked from the Additional Advocate General that what were the charges against the aforesaid persons, he replied that the charges were of negligence. However, the State has failed to produce any document or any enquiry report to the effect that what was the negligence on the part of Government Officers and employees who have been suspended. Morethan 140 case diaries in regard to the incident have been produced before the Court. In all the case diaries we found that there is no investigation at all. In one case, we found that a small map of the incident is attached, but we did not find any investigation conducted by any police officers. All the cases were transferred to the Station House Officer, Police Station Atreta. Station House Officer in charge was also present at the time of hearing. He produced statements of 3-4 persons recorded on 29.10.2013 and those persons have deposed that the incident had occurred due to stampede. These statements were recorded on 29.10.2013 by the Station House Officer in charge. No record has been produced that any investigation has been conducted by any higher officers of the police. Learned Additional Advocate General fairly admitted the fact that except this, there is no record of any other investigation neither as per his knowledge or instruction any other investigation was conducted by the police or higher authorities. 13. When these facts came to the knowledge of the Court, it shocked the conscience of the Court. In reply to the answer to the quarries put by the Court, it is informed by the Additional Advocate General that the Government has announced a Judicial Inquiry and the out come of the inquiry shall answer all the questions. We have gathered the impression that the administration has not conducted any investigation in anticipation that in judicial inquiry all the facts would come. We have gathered the impression that the administration has not conducted any investigation in anticipation that in judicial inquiry all the facts would come. It is contrary to the statement of the Director General of Police earlier reported in the Times of India where he had categorically stated that an investigation shall be conducted in regard to the allegations leveled against the police and administrative authorities. 14. Respondent-State opposed the prayer of the petitioners to order an investigation by the CBI in regard to the allegations leveled against the police persons and the administration on the ground that an judicial inquiry has been ordered by the Government and the truth would come during the aforesaid inquiry. 15. Constitution Bench of the Hon’ble Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights and others [ (2010)3 SCC 571 ], has held as under in regard to exercise of constitutional power of judicial review by the High Court under Article 226 of the Constitution and issuance of directions by the court forinvestigation by the CBI : “68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows : (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution of the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review.” (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Articles 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution. (v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the Constitutional Courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of the State without the consent of that State will neither impinge upon the federal structure of the Constitution not violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. 70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain selfimposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. In sofar as the question of issuing a direction of CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and intentional ramifications or where such an order may by necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” 16. Hon’ble Supreme Court further in State of Maharashtra v. Farook Mohammed Kasim Mapkar, reported in (2010)8 SCC 582 , has considered the question of power of the High Court for issuance of a direction for CBI investigation without State consent. In the aforesaid case, an objection was taken by the State that the State of Maharashtra itself constituted Special Task Force and proceeded with the investigation and adequate remedy is available under the Code of Criminal Procedure, hence, the writ petition under Article 226 before the High Court was not a proper remedy. In the aforesaid case, an objection was taken by the State that the State of Maharashtra itself constituted Special Task Force and proceeded with the investigation and adequate remedy is available under the Code of Criminal Procedure, hence, the writ petition under Article 226 before the High Court was not a proper remedy. The State had taken three objections in the aforesaid case, which have been mentioned by the Honh’ble Supreme Court in para 9 of the judgment and thereafter the Hon’ble Supreme Court has considered the aforesaid objections in subsequent paras. In our opinion, the similar type of objections have been raised in the present case. Hence, some of the paragraphs of the aforesaid judgment are quoted as under : “9. The main grievances of the state of Maharshtra with regard to entrusting the investigation to CBI are as follows : (i) Since, this Court is seized of the matter in issue by entertaining two writ petitions under Article 32 and pending decision, the High Court ought not to have exercised jurisdiction under Article 226. (ii) The State of Maharashtra itself constituted Special Task Force (STF) and proceeded with the investigation. (iii) When adequate remedy is available under the Code of Criminal Procedure (hereinafter referred to as “the Code”), the writ petition under Article 226 before the High Court is not the proper remedy and the High Court ought not to have entertained the same. 10. As against the above submission, Mr.Mohan Jain, learned Additional Solicitor General, appearing for CBI and Mr. Gonsalves, learned senior counsel for respondent 1 herein submitted that after considering the extraordinary circumstance, utmost public importance as well as conduct of the State in showing leniency towards their police officers, particularly in favour of respondent 2, the High Court is justified in issuing appropriate direction in writ petition filed by respondent 1, who made a complaint in respect of the incident that took place on 10.1.1993 near Hari Masjid in Mumbai. They also submitted that the writ petitions under Article 32 pending before this Court relate to implementation of the Srikrishna Commission Report and there is no bar for entertaining a writ petition in respect of the specific grievance of respondent 1 about the conduct of the Special Task Force (STF), particularly, the high-handed action of its police officers. They also submitted that the writ petitions under Article 32 pending before this Court relate to implementation of the Srikrishna Commission Report and there is no bar for entertaining a writ petition in respect of the specific grievance of respondent 1 about the conduct of the Special Task Force (STF), particularly, the high-handed action of its police officers. Even otherwise, according to them, the writ petition came to be filed in the High Court of Bombay on 1.8.2007 whereas the writ petitions were filed in this Court after a year in 2008 that too not by respondent 1 but by NGOs. Finally, both the counsel submitted that inasmuch as the Government of Maharashtra itself by the Notification dated 7.2.2008 consented to the exercise of the powers and jurisdiction of the members for the Delhi Special Police Establishment (CBI) for inquiry into the said incident relating to the Hari Masjid incident, the State is not justified in challenging the order of the High Court. 11. We have carefully considered the rival contentions and perused the relevant materials. 12. With regard to the first objection of the State of Maharashtra about the propriety of the High Court in exercising jurisdiction under Article 226 when the same matter was seized of by this Court in a petition under Article 32, first of all, it is to be noted that the writ petition came to be filed before the High Court of Bombay by respondent 1 herein in 2007. In the other hand, in their reply filed by the State of Maharashtra through their officer, Shri D.T. Shinde, Deputy Commissioner of Police, Detection I, Crime Branch, Mumbai, on 18.9.2007, wherein it was stated that after the Srikrishna Commission’s Report two writ petitions came to be filed in the Supreme Court. The said affidavit further shows that both were filed by NGOs, namely, Writ Petition No.527 of 1998 was filed by Action Taken Committee for the implementation of the Srikrishna Commission Report and the second Writ Petition No.542 of 1999 was filed by the Human Rights Union of Supreme Court’s Lawyers. The prayer(s) in both these writ petitions were for implementation of the Report of the Commission and for other reliefs including action to be taken against the police officers. It is true that both these petitions were pending when the High Court disposed of the writ petition filed by respondent 1 herein 13. Mr. The prayer(s) in both these writ petitions were for implementation of the Report of the Commission and for other reliefs including action to be taken against the police officers. It is true that both these petitions were pending when the High Court disposed of the writ petition filed by respondent 1 herein 13. Mr. Naphade, learned senior counsel for the State very much relied on the decision of this Court in Chhavi Mehrotra v. DG, Health Services. In the said decision, writ petition was moved by one Ms. Chhavi Mehrotra before this Court under Article 32 for directions for consideration of here admission to the MBBS course against 15% all-India quota of 1992. This writ petition along with other similar petitions came for consideration and certain comprehensive directions were issued in matters for admission of students in the waiting list to various colleges in the country. During the pendency of the said writ petition, it is seen that the petitioner moved an independent Writ Petition No.1508 of 1993 before the Lucknow Bench of the High Court and obtained certain directions. When this was brought to the notice of this Court, it was observed: (Chhavi Mehrotra case, SCC p.435, para 1) : “1. ...It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court in a petition under Article 32.” 14. There is no dispute about the proposition and this Court reiterated that judicial discipline would require that in a hierarchical system, such conflicting exercise of jurisdiction should be avoided. However, the dictum laid down in that case is not applicable to the case on hand, because in Chhavi Mehrotra, the same petitioner after filing writ petition under Article 32 and getting certain directions approached the High Court under Article 226 and the High Court, had issued more directions. When this was brought to the notice of this Court, after pointing out the practice and procedure, this Court dissatisfied with the High Court’s move. 15. When this was brought to the notice of this Court, after pointing out the practice and procedure, this Court dissatisfied with the High Court’s move. 15. In the case on hand, first of all, the writ petition came to be filed in the High Court in the year 2007 by respondent 1 herein well prior to the filing of two writ petitions under Article 32 in this Court, that too by different persons, namely, two NGOs i.e. Action Taken Committee for implementation of the Srikrishna Commission Report and Human Rights Union of Supreme Court’s Lawyers. Further, admittedly, there is no order by this Court prohibiting the High Court from entertaining writ petition or proceeding further about the said incident. In fact, we are told that those writ petitions are still pending. In such circumstances, we are of the view that the reliance placed on Chhavi Mehrotra is not applicable and there is no violation or deviation of any established practice and procedure particularly in the light of the peculiar facts of this case, where respondent 1, who himself is a victim and complainant in respect of the Hari Masjid incident is seeking direction for action against the officers, particularly, respondent 2 herein. Accordingly, we reject the first contention. 16. As regards the second objection, namely, the State itself had constituted Special Task Force (STF) and proceeded with the investigation, certain factual details asserted by respondent 1 in his complaint dated 28.8.2006 are relevant. In the said complaint addressed to Senior Inspector of Police, R.A.K. Marg Police Station, on 10.1.1993 while the city was in the midst of communal disorder, according to the complainant, he went to Hari Masjid for performing his namaz. While he was within the premises for the Masjid, 4-5 police personnel entered into the Masjid and started indiscriminate firing. The persons who were performing namaz started running helter and shelter and took refuge in various rooms in the Masjid. They closed all the windows except one and through this open window, a police officer by name Nikhil Kapse, respondent 2 herein started firing inside the premises and two persons lost their lives. One bullet hit the complainant on his back. The persons inside were asked to come out with hand held high. One person by name Namazi Shamsuddin had sustained bullet injury on his leg. One bullet hit the complainant on his back. The persons inside were asked to come out with hand held high. One person by name Namazi Shamsuddin had sustained bullet injury on his leg. While he was attending to his injury, respondent 2 fired on his chest killing him on the spot. In all, 6 Muslim persons lost their lives and seven were injured. He also narrated that the police took several persons including him to R.A.K. Marg Police Station and how they were treated inhumanly. He was shown as Accused 35 in CR No.17 of 1993. 17. In the meanwhile, by a Gazette Notification dated 25.1.1993, the State of Maharashtra appointed a Commission headed by justice B.N. Srikrishna to enquire into the riots and various incidents which occurred during the riots in Mumbai. The Report of the Commission was published on 16.12.1998. The High Court has also noted theCommission’s finding about the role of respondent 2 in the Hari Masjid incident which was referred to in the Commission’s Report in Paras 24.23 to 24.25 and in para 4 of the High Court’s order. 18. In is also relevant to point out that similar objection was taken by the Public Prosecutor before the High Court stating that the Special Task Force only proceeded on the basis of the version given by the police witnesses. The High Court has observed that it is completely one-sided investigation and it is difficult to countenance and investigation where the statement of none of the injured witness was recorded and which was confined to reaching a conclusion on the basis of the statements of the police officers who were present at the time of incident when the Commission had prima facie indicted that some of these officers have committed serous offences. In view of the factual opinion about the investigation of the Special Task Force by the Commission, we do not find any error in the decision of the High Court in ordering investigation by a special agency like CBI. Accordingly, we reject the second contention also. *** *** *** 24. The principles enunciated in the above decisions make it clear that if any person is aggrieved by the inaction on part of the police or not getting proper response, these are adequate remedies provided under the Code and it is for such persons to seek relief with the aid of these provisions. *** *** *** 24. The principles enunciated in the above decisions make it clear that if any person is aggrieved by the inaction on part of the police or not getting proper response, these are adequate remedies provided under the Code and it is for such persons to seek relief with the aid of these provisions. However, we have already adverted to the specific allegation in the complaint of respondent 1, how the Special Task Force conducted investigation, as seen from the Report of Srikrishna Commission. Further, in the case on hand, respondent 1 has asserted at many places which were supported by the Commission’s Report, more particularly, the information that the State Police did not examine the injured witnesses who were available at the spot and suffered a lot.” 17. Now we would like to analyze the facts of the present case. In the present case more than 116 persons have died. The allegations are that the police persons had permitted the vehicles to enter over the bridge due to which place was over crowded and thereafter lathi charge was resorted and rumor had floated that bridge had collapsed and in that event a stampede had occurred. Thereafter, the allegation is that the police personnel had thrown the bodies in the river and they have destroyed the evidence. The second point in regard to destruction of evidence has been found proved from the conduct of the administration because as informed to the Court no article has been seized by the police. Even a detailed spot map has not been prepared so it could be find out that whether the persons were died due to stampede or the bodies had been thrown by the police inriver or at different places. The ropes and sarees, which were tide from the walls of the bridge by the persons to take shelter in the water of the river, had also been removed quickly. The place was washed out. It means that the police had destroyed the vital evidence. There is no answer that why the police had not protected the place or cordoned of the place and why immediate inspection of the spot was not conducted by the higher authorities even though the DGP, Chief Minister and the Minister visited the place on the very next day. The Cabinet Minister was present on the spot within 1-2 hours of the incident. The Cabinet Minister was present on the spot within 1-2 hours of the incident. Director General of Police Mr. Nandan Kumar Dubey himself made a statement that an investigation be conducted to find out the truth about the allegations, however, no investigation was conducted upto the date of hearing of the case i.e. 1.11.2013, near about 18 days of the incident. 18. Section 174 of CrPC casts a statutory duty on the police to inquire certain incidents, which is as under : “174. (1) When the officer-in-charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place, where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. (2) The report shall be signed by such police officer and other persons, or by what weapons or instrument (if any), such marks appear to have been inflicted.” 19. Even the statutory provisions have not been followed and no answer has been given by the Additional Advocate General that why an investigation was not conducted by the Police. The only answer is that a judicial enquiry has been ordered. The question is that whether a judicial inquiry could be a substitute of investigation by the police or competent authority. Even the statutory provisions have not been followed and no answer has been given by the Additional Advocate General that why an investigation was not conducted by the Police. The only answer is that a judicial enquiry has been ordered. The question is that whether a judicial inquiry could be a substitute of investigation by the police or competent authority. Constitution Bench of Hon’ble Supreme Court in P.V. Jagannath Rao v. State of Orissa, reported in AIR 1969 SC 215 , has held as under after quoting earlier Constitution Bench judgment of the Hon’ble Supreme Court in Shri Ram Krishna Dalmia v. S.R.Tendolkar, reported in AIR 1958 SC 538 : “The inquiry cannot be looked upon as a judicial inquiry and the order ultimately passed cannot be enforced proprio vigore. The inquiry and the investigation by the Commission do not therefore amount to usurpation of the function of the Courts of law. The scope of the trial by the Courts of law and the Commission of Inquiry is altogether different. In any case, it cannot be said that the Commission of Inquiry would be liable for contempt of Courts if it proceeded to enquire into matters referred to it by the Government Notification. In appointing a Commission of Inquiry under section 3 of the Act the State Government is exercising a statutory power and in making the inquiry contemplated by the notification, the Commission is performing its statutory duty. It is therefore not possible to accept the argument that the setting up of the Commission of Inquiry by the State Government or the Continuance of the inquiry by the Commission so constituted would be tantamount to contempt of Court. To constitute contempt of court, there must involved some “act done or writing published calculated to bring a Court or a judge of the Court into contempt or to lower his authority” or something “calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts.” Therefore, the issue of the notification under section 3 of the Act or the conduct of the Inquiry by State did not amount to contempt of Court.” 20. Hon’ble Supreme Court has clearly held that the scope of the trial by the Courts of law and the Commission of Inquiry is altogether different. Hon’ble Supreme Court has clearly held that the scope of the trial by the Courts of law and the Commission of Inquiry is altogether different. Similarly in our opinion, scope of investigation in regard to an incident and the reference to the Commission of inquiry is altogether different because in investigation it is obligatory on the part of the investigating agency to find out the truth, however, in judicial inquiry, the canvass is quite large but judicial inquiry can not take place or substitute the role of investigating agency. Suppose in a mysterious circumstances a dead body was found then the proper course is to hand over the case to an investigating agency because it could not be investigated in judicial inquiry. In judicial inquiry, the inquiry commission could not investigate certain facts, it can only verify the facts on the basis of evidence and it is a lengthy procedure. Earlier, as mentioned in the petition, on 1.2.2006 near about 100 persons were killed at near Ratangarh temple and State appointed a judicial commission comprising Hon’ble Justice Pande as Chairman to inquire the matter and report of the commission has still not been published. In this view of the facts, in our opinion, it is necessary to investigate certain allegations levelled against the police persons by an independent agency. 21. Looking to the facts of the case and the act of the State administration the job could not be left to the State agency because they have not conducted any investigation after a period of near about 18 days inspite of the statement made by the highest police authority Director General of Police in the newspaper that the investigation shall be conducted. In our opinion, the investigation can also not be termed against the judicial inquiry, rather it would support the judicial inquiry commission to find out the correct truth and record its finding because the proper evidence could be produced before the Commission. Constitution Bench of the Hon’ble Supreme Court in the judgment of State of West Bengal (supra), has clearly held that an extraordinary power of ordering investigation by CBI by the Courts must be exercised sparingly and cautiously and in exceptional situation where it becomes necessary under certain circumstances. Constitution Bench of the Hon’ble Supreme Court in the judgment of State of West Bengal (supra), has clearly held that an extraordinary power of ordering investigation by CBI by the Courts must be exercised sparingly and cautiously and in exceptional situation where it becomes necessary under certain circumstances. Hon’ble Supreme Court has further held that the State has a duty to enforce human rights of the citizens providing fair and impartial investigation against any person accused of commission of cognizable offence which may include its own officers. Article 21 of the Constitution protects the persons of their lives and personal liberty and it takes within its fold the rights of the victims. In the present case 116 persons have been died. Number of persons have been seriously injured. The State Government itself suspended near about 29 police persons including the Collector and S.P. of the district. There are serious allegations against the police persons to the effect that they had taken money from the vehicle owners and permitted the vehicles to enter into the crowded place, thereafter a lathi charge was resorted and the stampede had occurred due to the action by the police authorities. Subsequently, some of dead bodies and bodies of injured persons had been thrown in the river and the police and the administration had destroyed the evidence and it is also a fact that no investigation has been conducted by the police or the State Administration to find out the truth. Hence in our opinion, the State has failed to protect the life and personal liberty of the citizens enshrined under Article 21 of the Constitution. The State has also failed in protecting the human rights of citizens providing for fair and impartial investigation, no investigation has been conducted by the State although the incident was of high magnitude. 22. In our opinion, it is an exceptional situation, hence, it is necessary for this Court to order an investigation by the CBI to install credibility and confidence in the minds of the citizens that their precious fundamental rights guaranteed under Article 21 of the Constitution in regard to protection of their lives and personal liberty and impartial investigation against any person accused of commission of cognizable offence is still in force. 23. 23. We would make it very clear that the order of investigation by the CBI of aspects of the incident is not counter to the judicial inquiry ordered by the State and it would also not affect the findings of the judicial Commission. In our opinion, the investigation by the CBI would help the Judicial Commission to answer the reference made to it by the State Government. The investigation is necessary because the vital evidence of the incident has been destroyed or after passage of time the evidence may further be diminished. Hence, we order that the CBI shall conduct an investigation in regard to following aspects of the incident, in which 116 persons have killed at Ratangarh Temple : (i) Whether the police persons had taken money from the owners of the vehicles and permitted them to enter into the crowded place or cross the bridge? (ii) Whether the police persons had resorted lathi charge or used batons to control the mob and the rumor was floated that the bridge has collapsed? (iii) Whether the police and administrative authorities had thrown the bodies of the injured or dead bodies in the river to minimize the number of casualties? (iv) Whether the police and administration have destroyed the evidence of the incident and did not conduct the investigation in accordance with the provisions of Criminal Procedure Code and in doing aforesaid acts they have committed offence. 24. We further direct that all the diaries of marg in regard to the aforesaid incident shall be handed over to the CBI for the purpose of aforesaid investigation. We hope that the Central Agency may conduct the investigation as early as possible and submit the report to the Court. The investigation would not affect the judicial inquiry and judicial inquiry be continued as it is in accordance with the notification issued by the State Government. The order passed by this Court shall be treated as preliminary information report of the incident for the CBI for the purpose of conducting the investigation. The Principal Registrar of this Court shall send a copy of this order immediately to the Director of CBI. Case be listed after two weeks.