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2016 DIGILAW 291 (SC)

State of Haryana v. State of Maharashtra

2016-02-17

ARUN MISHRA, V.GOPALA GOWDA

body2016
ORDER : The application for impleadment is allowed. Permission to file the special leave petition is granted. 2. Leave granted. 3. This appeal is directed against the judgment and order dated 15.02.2016 whereby the Division Bench of the High Court of Judicature at Bombay disposed of Writ Petition No. 675/2016 in terms of the statement made by the learned Public Prosecutor on behalf of the State of Maharashtra that the F.I.R. would be registered on the basis of the respondent's complaint, urging various legal contentions. 4. Mr. Mukul Rohtagi, learned Attorney General of India submitted that the said Order passed by the Division Bench of the High Court is liable to be set aside solely on the ground that the same has been passed without impleading the appellants herein as party respondents in the writ petition before the High Court as the disposal of the said writ petition in terms of the statement made by the learned Public Prosecutor that the F.I.R. would be registered, without impleading and hearing them, therefore, the same is in violation of the Principles of Natural Justice. The second contention urged by the learned Attorney General is that registering the second F.I.R. against the appellants herein on the basis of complaint dated 9.02.2016 of respondent No. 5 in this appeal and constituting Special Investigation Team (SIT) for holding investigation under the supervision of the High Court for holding fair, effective, credible and timely investigation in the matter, the same would be contrary to the law laid down by this Court in the case of T.T. Antony v. State of Kerala, (2001) 6 SCC 181 . In support of his proposition he submitted that the F.I.R. is already registered under Sections 353, 307 and 332 I.P.C. and Sections 3, 25 and 27 of the Indian Arms Act, the alleged occurrence of encounter of the same transaction, therefore, there cannot be two F.I.Rs. for the same incident. 5. Mr. Nishant R. Katneshwarkar, learned standing counsel appears on caveat and accepts notice on behalf of respondent Nos. 1 to 4. for the same incident. 5. Mr. Nishant R. Katneshwarkar, learned standing counsel appears on caveat and accepts notice on behalf of respondent Nos. 1 to 4. He submits that the High Court in the impugned order has wrongly recorded the statement made by the learned Public Prosecutor, therefore, the disposal of the writ petition, as observed in the impugned order, is not correct since it is a criminal writ petition, therefore, the review petition cannot be entertained to review the order passed on the basis of noting of the submissions made on behalf of the learned Public Prosecutor. 6. Mr. Sanjay Parikh, learned counsel appearing on behalf of respondent No. 5 strongly opposes the prayer made in this appeal placing strong reliance upon the judgment of this Court in the case of People's Union for Civil Liberties and Anr. v. State of Maharashtra and Ors., (2014) 10 SCC 635 , paragraphs 31.3 to 31.5 wherein this Court observed that an independent investigation into the incident/encounter shall be conducted by the CID or police team of another Police Station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The F.I.R. already registered is not in relation to the same incident, learned counsel for respondent No. 5 submits that it is an encounter, therefore, the direction contained in Paragraph 31.3 which are enumerated hereunder should be applied to the fact situation and further placing reliance on Paragraph 31.5 the involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. His submission is placed on record. Paragraphs 31.3 to 31.5 of the said judgment read as follows: "31.3 An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). His submission is placed on record. Paragraphs 31.3 to 31.5 of the said judgment read as follows: "31.3 An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek: (a) To identify the victim; colour photographs of the victim should be taken; (b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death; (c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death; (d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practise that may have brought about the death; (e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis; (f) Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be video-graphed and preserved; (g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed. (h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide. 31.4 A magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under Section 190 of the Code. 31.5 The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be." 7. 31.5 The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be." 7. Further, the learned counsel contended that without conducting an inquest, the High Court had made an observation that the dead body of the deceased will be given to respondent No. 5 on 16th February, 2016 on the basis of the statement made on behalf of the respondent No. 5 wherein it is noted that he is willing to take charge of the dead body for further examination. The same cannot be given without conducting an inquest of the dead body. 8. After hearing learned counsel for the parties, perusing the impugned order and the submission made by the learned Attorney General of India that the said criminal writ petition is disposed of on the basis of the noting of the submission made on behalf of the State Public Prosecutor and respondent No. 5 without noticing that the appellants herein should have been made as parties, therefore, the order registering second F.I.R. on the basis of the statement made by the Public Prosecutor would certainly affect the rights of the parties without hearing them, further the said observation would amount to registering a second F.I.R. of the same incident which is not permissible in law in view of the judgment of this Court in the case of T.T. Antony, referred to supra, is the contention urged by the learned Attorney General of India. 9. Without expressing any opinion on the merits of the second contention urged by the learned Attorney General of India and also the stand taken by the appellants that the F.I.R. has already been registered for the said incident, whether the allegation is made in the Complaint dated 9.02.2016 which forms the same part of the transaction or not is a matter for consideration by the Court at the time of hearing the matter on merits. Therefore, it would be suffice for this Court to dispose of this appeal after setting aside the order partly having regard to the statement made by the learned counsel appearing on behalf of respondent Nos. 1-4 that the learned Public Prosecutor's statement has not been correctly recorded. 10. Therefore, it would be suffice for this Court to dispose of this appeal after setting aside the order partly having regard to the statement made by the learned counsel appearing on behalf of respondent Nos. 1-4 that the learned Public Prosecutor's statement has not been correctly recorded. 10. For the aforesaid reasons, we set aside the impugned order and remand the case to the High Court with a direction to implead the appellants herein as additional respondents in the criminal writ petition proceedings, hear them and dispose of the matter in accordance with law. It would be open for the appellants to file such statement of objection to the writ petition filed by respondent No. 5 herein. The respondents herein are also at liberty to make a request for conducting the inquest and release of the dead body in favour of respondent No. 5. 11. We request the High Court to hear the matter and dispose of the same within four weeks from the date of receipt of a copy of this order. 12. It is needless to mention that the learned counsel for the parties shall cooperate with the High Court without seeking any adjournment in the matter.