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2023 DIGILAW 1090 (JHR)

Rajesh Kumar Maheshwari v. State of Jharkhand

2023-08-28

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Hemant Kumar Shikarwar, learned counsel for the petitioner and Mr. Ravi Kerketta, learned counsel for the State. 2. This petition has been filed for direction to transfer the investigation to CBI for independent and impartial investigation with regard Sadar P.S. Case No. 346/2018, dated 15.07.2018 registered under Section 302/306/120(B)/34 of the Indian Penal Code, pending in the court of the learned Chief Judicial Magistrate, Hazaribag. The prayer is also made for direction to set up Special Investigation Team (SIT) monitored by this Court to investigate into the murder of six persons of one family. 3. Mr. Shikarwar, learned counsel for the petitioner submits that the petitioner is the brother of one of the deceased namely Naresh Maheshwari. He submits that six family members of the family including three female members and a child aged about 6 years and a senior citizen about 70 years have been murdered which has shocked the conscience of the entire country. He submits that the said case was registered by Savarmal Maheshwari on the alleged date of occurrence dated 15.07.2018 and following family members were found to be dead: (i) Mahavir Prasad Maheshwari, aged about 70 years, S/o Late Mohan Lal Maheshwari. (ii) Anwi Maheshwari, aged about 6 years, D/o Naresh Maheshwari. (iii) Kiran Devi, aged about 65 years, W/o Mahavir Prasad Maheshwari. (iv) Naresh Maheshwari, aged about 40 years, S/o Mahavir Prasad Maheshwari. (v) Preeti Devi, aged about 30 years, W/o Naresh Maheshwari. (vi) Aman Kumar, aged about 10 years, S/o Naresh Maheshwari. All resident of Khajanchi Talab, Shubham Apartment, Flat No. 303/304, P.S. Sadar, Hazaribag. 4. Learned counsel for the petitioner further submits that the family members were murdered, which was pre-planned by someone. He submits that so far as Mahavir Prasad Maheshwari is concerned, his dead body was found hanging from ceiling and legs was found in folded condition and even after folding of legs, it was touching the bed and photographs to that effect is on the record, which suggests that this is not a case of hanging. He further submits that as per the postmortem report, blood clot in the upper part of the thyroid cartilage was there where the hanging body was found and that was not expected. He further submits that as per the postmortem report, blood clot in the upper part of the thyroid cartilage was there where the hanging body was found and that was not expected. He was wearing white baniyan and lungi half folded and there was blood spots on lungi, which suggests that this was not the case of hanging. He further submits that so far as Aman Kumar is concerned, his postmortem report suggests cutting wound on the front of neck i.e. 5-6 inch long and 1½ inch wide. All the vessels of neck was cut, but the manner in which his dead body was lying on the bed and there was no silwat in the bed sheet of the bed in which the dead body was found, which suggest that after committing the murder, the dead body was kept on the bed. He also submits that so far as Anwi Maheshwari is concerned, froth was coming from the mouth, but then also police did not take the sample of food which was cooked last night and as per the postmortem report, ligature mark was present right side of the neck below thyroid cartilage and there was no detail of froth formation. The dead body which was kept on the sofa set in such a ease manner will also suggest that after administering poison or cutting the neck, she was kept on the sofa set. He further submits that so far Kiran Devi is concerned, postmortem report suggests dark brown colour circumferential brush shaped mark present over the neck upper marts, running obliquely. The mark of knot was present over right mustard process and on dissection, haemorrhage was found underneath ligature mark blood clots present both sides of the thyroid cartilage. However the photograph while hanging also suggests that her leg is over the bed and is easily assessable to the bed and a chair which lye just close to her legs, has also not follow that also suggest that after committing her murder the dead body has been hanged. He submits that so far as Naresh Maheshwari is concerned, there is puncture wound of 1” x 1” in both sole and that is a big question. He submits that so far as Naresh Maheshwari is concerned, there is puncture wound of 1” x 1” in both sole and that is a big question. He submits that although he was said to be jumped from 3rd floor of the building, however, no blood was found near the body and the fractured ribs suggest that after murder, he was kept there. He also submits that so far as Preeti Maheshwari is concerned, she was said to be dead due to asphyxia as a result of strangulation and by way of referring photographs, learned counsel for the petitioner submits that there was no silwat on the bed sheet, which suggests that she was murdered by someone and, thereafter put on the bed. There is no sign of strangulation and there was no mark of any violence on bed. He submits that at six different places, suicidal notes were found in six different envelops, which also creates doubt. He submits that the electrician, namely Ajit Kumar have gone underground after the statement of the tutor namely Anjani Kumar. He further submits that from very beginning the apartment was not sealed properly and the crime scene was visited by several persons. The late arrival of the police after getting information is also doubtful. He submits that Umesh Sahu is influential person in whose name the Power of Attorney with regard to two flats of the deceased was not investigated properly and it appears to be a matter of influence. He further submits that financial aspect with regard to suicide of the entire family, which was concluded by the CID in its investigation, is not correct as the deceased amount of Rs.70 to 90 Lakhs was just floated in the market. He further submits that the clothes of the deceased persons were not taken by the police, which also creates doubt. The key of the house was not recovered till date and the shop register is also not recovered by the police. To buttress this argument, he refers photographs annexed with the petition and submits that six members of the family have been murdered, which was given a colour of suicide and the investigation is not going on in the right direction. On these grounds, he submits that this Court may exercise Sub-Section (8) of Section 173 Cr.P.C. and pass appropriate order of further investigation. 5. Mr. On these grounds, he submits that this Court may exercise Sub-Section (8) of Section 173 Cr.P.C. and pass appropriate order of further investigation. 5. Mr. Kerketta, learned counsel for the State submits that the matter was investigated by the CID. On the basis of written report of Sri Savarmal Maheshwari, the FIR was registered. He submits that cause of death of the deceased has been disclosed in paragraph 9 of the supplementary counter affidavit, which are as follows: Name Age Cause of death Anvi Maheshwari 06 years Asphyxia due to strangulation Kiran Devi 65 years Asphyxia due to hanging Naresh Maheshwari 40 years Due to hemorrhage and shock, injury of heart and lung by direct impact over the chest by heavy object Preeti Devi 30 years Asphyxia due to strangulation Mahabir Prasad Maheshwari 70 years Asphyxia due to hanging Aman Kumar 10 years Hemorrhage and shock due to bleeding from neck vessels 6. Learned counsel for the State further submits that the informant has supported the contents of the FIR. He submits that the swab collected from the place of occurrence has also been examined by the SFSL, Ranchi. The matter was being investigated and the same had been reviewed by the higher official. He further submits that the Power of Attorney was sent to CFSL, Kolkata for opinion. He also refers minutely to Annexure-A which is the Final Form Report and submits that final form has been submitted point wise and discussing the record of CFSL, seizure list and blood was also examined and all the directions have been complied with. He submits that when the final form was submitted considering that the family was facing financial crunch and that is why, it was pre-planned suicide. He submits that there is no illegality in the investigation by the CID and this Court may not exercise its power under Sub-Section (8) of Section 173 Cr.P.C. 7. In view of the above submissions of the learned counsel for the parties, the Court has looked into final form annexed with the supplementary counter affidavit, so far as financial crunch is concerned. In view of the above submissions of the learned counsel for the parties, the Court has looked into final form annexed with the supplementary counter affidavit, so far as financial crunch is concerned. In view of the final form itself, that angle prima facie appears to be not correct as it has come in the final form that the deceased namely Naresh Maheshwari was paying EMI regularly to the LIC Housing Finance Limited and that has come in Para 215, 216 and 277 of the case diary. In compliance of the direction 12 with regard to payment of LIC policy, it appears that in final form it has come that the deceased namely Naresh Maheshwari was regularly paying premiums, which is evident from the final form itself. The question remains if such a financial crunch was there, how the deceased was able to pay the premiums out of 15 LIC policies, except one of the LIC policy the amount of which to the tune of Rs. 4,287/- was not paid. Thus from the final form itself, the angle of financial crunch, prima facie, appears to be not correct. 8. From the photographs annexed with the writ petition, prima facie, suggest that the dead body of Late Mahavir Prasad Maheshwari was found hanging from ceiling and legs was found in folded condition and even after folding of legs it was touching the bed which prima facie suggests that hanging aspect is doubtful. There was no blood in his baniyan and lungi. Aman Kumar was alleged to be dead due to neck cut, however, his body was lying on the bed and there is no sign of any scuffle, which prima facie suggests that the body was kept there after his murder. The body of Anvi Maheshwari was found to be kept on sofa set and theory of cutting the neck prima facie appears to be not correct. The photograph of dead body of Kiran Devi suggests that while she was hanged, her leg was over the bed and that was easily assessable to the bed. If such a situation is there, how a person can be said to be dead due to hanging. The photograph of dead body of Kiran Devi suggests that while she was hanged, her leg was over the bed and that was easily assessable to the bed. If such a situation is there, how a person can be said to be dead due to hanging. The dead body of Naresh Maheshwari was found in the ground floor of the apartment and it was alleged that he jumped from 3rd floor of the building, but no blood spot was found at the place of dead body, which prima facie suggests that after the death the dead body was kept there by someone. Six different suicidal notes further doubt the version of the prosecution. Preeti Maheshwari was said to be dead due to strangulation, however, photograph on the record suggests that there was no sight of strangulation and there was no mark of any violence on the bed. 9. In view of the above, it appears that theory of financial crunch in the family on the basis of final form itself prima facie appears to be not correct as the deceased namely Naresh Maheshwari was paying premiums as well as loan amount of the flats in question. It has been said that Rs. 70 to 90 Lakhs of the deceased Naresh Maheshwari was floated in market and debt is said to be around Rs. 20 to 25 Lakhs. 10. In view of the above, two issues arise for consideration before this Court, firstly whether after filing of the charge-sheet, the investigation under Section 173(8) Cr.P.C. can be ordered by this Court and second issue that would require consideration is whether any direction for determination of the liability of any further person is made out or not? 11. On the question, whether criminal case in which charge-sheet has been filed by the local/State investigating agency, the same can be referred to the CBI for further investigate, there is near unanimity of judicial opinion. The transfer of the investigation to the CBI or any other specialised agency, notwithstanding the filing of the charge-sheet, would be justified only when the High Court or the Hon'ble Supreme Court is satisfied that on account of the accused being powerful and influential, the investigation has not proceeded in a proper direction or it has been biased. The transfer of the investigation to the CBI or any other specialised agency, notwithstanding the filing of the charge-sheet, would be justified only when the High Court or the Hon'ble Supreme Court is satisfied that on account of the accused being powerful and influential, the investigation has not proceeded in a proper direction or it has been biased. Further the investigation of a criminal case after the charge-sheet has been filed in a competent court may affect the jurisdiction of the competent court under Section 173(8) Cr.P.C. Thus, it is imperative that the said power, which, through will always vest in a constitutional court, should be exercised only in situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law. 12. Normally when an investigation has been concluded and police report submitted under Section 173(2) Cr.P.C. it is only further investigation that can be ordered under Section 173(8) Cr.P.C. But where the constitutional court is satisfied that the investigation has not been conducted in a proper and objective manner, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. In such exceptional circumstances, the court may, in order to prevent miscarriage of criminal justice, direct de novo investigation. It has been held by the Hon'ble Supreme Court in the certain decisions that the victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the charge-sheet and framing of the charges cannot be an impediment in ordering further investigation/ reinvestigation/de novo investigation, if the facts so warrant. 13. The Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. 13. The Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. 14. In view of the above and considering the position of the dead body which has been discussed hereinabove as well as theory of financial crunch with regard to suicide of family, it prima facie appears to be not correct, which is also in contradiction of the final form submitted by the CID itself. 15. It appears that the media has reported the said incident widely and, thereafter, the matter was handed over to the CID and, thereafter, final form report has been submitted. The closure report is, therefore, to the mind of the Court, a clear hasty action leaving much to be desired regarding the nature of investigation, because if a detailed investigation had already been done as is sought to be now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events and needed an order to do so from the Court. The entire investigation and the closure report therefore lack bona fides considering that financial crunch angle is contradictory as in the final form itself, it has been recorded that the deceased was paying loan amount as well as 15 premiums of the LIC policy. In view of the interest of justice, it requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be. 16. In view of the above facts and circumstances, the Court finds that a case is made out for further investigation. In view of the interest of justice, it requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be. 16. In view of the above facts and circumstances, the Court finds that a case is made out for further investigation. Accordingly, the Court set aside the closure report and direct a de novo investigation by a fresh team of investigators to be headed by a senior police officer of the State consisting of efficient personnel well conversant with use of modern investigation technology also. No officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation. The Director General of Police, Government of Jharkhand, Ranchi and the Principal Secretary, Government of Jharkhand, Ranchi are directed to appoint a higher officer for investigation, in view of the direction made hereinabove. 17. Much time has passed and there is undoubtedly an urgency in the case in hand. The Court, therefore, direct that such fresh investigation must be concluded within a maximum period of four months from today and the police report will be filed before the competent court concerned and, thereafter, the matter shall proceed in accordance with law. 18. Accordingly, this writ petition is allowed in above terms and disposed of.