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2023 DIGILAW 320 (UTT)

Pushplatakhera v. State of Uttarakhand

2023-05-17

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Vipin Sanghi, J. We have heard learned counsels and proceed to dispose of this writ petition. 2. The petitioner has preferred the present writ petition to seek a direction to the Central Bureau of Investigation (for short ‘CBI’) to investigate FIR No. 659/2008 (Case No.138 of 2016), u/s 365/302 IPC and FIR No.657/2008, u/s 325/302 IPC, both registered at P.S. Kotwali, Haridwar, Uttarakhand, in view of the directions issued by this Court, in its judgment dated 01.06.2010, in Habeas Corpus Petition No.12 of 2008. 3. The petitioner’s brother, namely Rakesh Pahuja, who was the resident of Delhi, went to Mussoorie and, thereafter, to Haridwar along with his wife Veena Pahuja, daughter Preeti and son Paras, apart from Ms. Priyanka, who was the daughter of respondent no.3., Respondent no.3 is the brother of Veena Pahuja. 4. It appears that Rakesh Pahuja, while staying at a Dharamshala, at Haridwar, spoke on his mobile phone with respondent no.3 on the night of 25.06.2008. Thereafter, there was no contact with Rakesh Pahuja, and others accompanying him, and no trace of them was found. Even the vehicle, in which they were travelling, was not located, ever. Consequently, respondent no.3 lodged the aforesaid two FIRs’ at P.S. Kotwali, Haridwar, Uttarakhand. 5. It appears that they were investigated, and a closure report in relation to FIR No.659/2008 was filed on 21.07.2012, which was also accepted by the learned Additional C.J.M. on 09.12.2017 during the National Lok Adalat. However, there was no settlement recorded in relation to FIR No.657/2008, u/s 325/302 IPC, registered at P.S. Kotwali, Haridwar. At this stage, Mr. Virk states that, even in respect of FIR No.657/2008, a final report was filed, and was accepted. Mr. Virk has, in this regard, referred to the General Diary entry. 6. It appears that even before the aforesaid developments qua the two FIRs’ took place, respondent no.3 made a letter petition to this Court with regard to the aforesaid persons going missing while travelling in a Maruti Zen car bearing registration No.HR 26-B 9605 from Haridwar, and the FIRs not being properly investigated. He sought transfer of investigation of these cases to the CBI. That letter petition was converted into a Habeas Corpus Petition by this Court, being Habeas Corpus Petition No.12 of 2008. He sought transfer of investigation of these cases to the CBI. That letter petition was converted into a Habeas Corpus Petition by this Court, being Habeas Corpus Petition No.12 of 2008. The said Habeas Corpus petition was taken up by this Court for disposal and vide its order dated 01.06.2010, the Division Bench of this Court, passed the following order:- “The factual position expressed in the instant Habeas Corpus Petition depicts, that five members of the same family went missing on 25.06.2008. The aforestated five members were traveling in a Maruti Zen car bearing registration No. HR 26-B 9605. The details of the investigation, produced by the learned counsel for the respondent in Court today, also notices telephonic conversation(s) with those, who had gone missing, over mobile phone bearing Nos. 09212168044, 09953031828. These mobile telephones were in possession of the missing persons. Originally, investigation was marked to the CB-CID. The efforts made by the CB-CID did not prove to be effective. It is, therefore, that this Court, by a motion Bench order dated 24.02.2010, required the Director General of Police, Uttarakhand, to nominate an officer of his choice, to investigate into the matter. Mrs. Vimla Gunjiyal, Sector Officer, CB-CID, holding the rank of Addl. Superintendent of Police, was nominated by the Director General of Police, Uttarakhand, to investigate into the matter. 2. We have spoken to the officer, nominated by the Director General of Police, Uttarakhand, who is present in Court today. From the investigation made by her, it seems to us that despite her best efforts, no positive clues could emerge, on the basis of which, either the family members, or the car in which they were traveling, or their other goods, can be traced. 3. We are also informed, that a complaint in this behalf was made to the National Human Rights Commission, which has also been pursuing the matter with the Uttarakhand police. In the ultimate analysis, having failed to arrive at any effective result, the CB-CID has recommended, that the investigation in this case be conducted by the Central Bureau of Investigation, through a communication dated 25.02.2010. The State Government, accordingly, has also issued a notification dated 06.05.2010 in this behalf. The matter seems to have passed into the hands of the Central Bureau of Investigation. 4. The State Government, accordingly, has also issued a notification dated 06.05.2010 in this behalf. The matter seems to have passed into the hands of the Central Bureau of Investigation. 4. Since now, we hope, the matter will be examined by the Central Bureau of Investigation, there is nothing further left for us to do, whereby we can pursue investigation in respect of loss of humans as well as property, depicted in the opening part of this order. 5. In the aforesaid circumstances, we consider it just and appropriate to dispose of the instant petition. While doing so, however, as a safeguard, we consider it just and appropriate to grant liberty to the petitioner to move a miscellaneous application, in case, the Central Bureau of Investigation declines to conduct further investigation into the matter. 6. The instant petition stands disposed of accordingly. File pertaining to investigation, received in sealed cover, was opened and examined and has been returned back to the learned counsel for the respondent for onward transmission to the concerned authority.” 7. It appears that the order passed by this Court, on 01.06.2010, was not communicated to respondent no.3, and he was not aware of the fact that the State Government had issued a notification on 06.05.2010, transferring the investigation to the CBI. 8. The petitioner has preferred the present writ petition in the year 2020 alleging that, despite the directions issued by this Court, as aforesaid, the investigation had not been conducted by the CBI, and Case FIR No.589/2008 had been closed in a Lok Adalat with the consent of respondent no.3. She has also sought to make allegations against respondent no.3. These allegations have been denied by respondent no.3, and learned counsel for respondent no.3 submits that the reason for making of the said allegations is the property dispute in relation to the estate left by Rakesh Pahuja and others. 9. A counter-affidavit has been filed on behalf of the CBI, wherein the CBI has disclosed that the Ministry of Personnel, PG and Pension (Department of Personnel and Training) vide its letter dated 08.09.2011 denied to transfer the case to CBI with the remarks that ‘the matter is already three years old and probability of findings any clues is very remote and there seems to be no ground for CBI to take up the investigation’. The said respondent has placed on record the communication dated 08.09.2011, issued by Government of India, Ministry of Personnel, PG and Pensions (Department of Personnel and Training), which reads as follows:- “I am directed to refer to your letter No.123/XX(1)166/CBI/ Investigation/ 2010 dated 6.5.2010 on the above mentioned subject. 2. The matter was considered in this Department in consultation with the CBI who has informed that the matter is already three years old and probability of finding any clues is very remote. There seems to be no ground for CBI to take up the investigation. Moreover, the agencies of the State Government are competent to investigate the case and they have adequate resources to do so. 3. In view of the above, it is not considered feasible for CBI to take over the investigation of this case. Therefore, the request of the State Government is regretted.” 10. It would have been in the fitness of things for the CBI to place the said communication dated 08.09.2011 before this Court by moving an application in the disposed of Habeas Corpus Petition. However, that was not done. Resultantly, neither the petitioner in the Habeas Corpus Petition No.12 of 2008, i.e. respondent no.3 herein, nor the present writ petition ever became aware of the fact that despite the investigation notification issued by the State for transfer of investigation in the FIRs’, the case had not been taken up for investigation by the CBI. 11. The submission of learned counsel for the petitioner, as well as learned counsel for respondent no.3, is that the matter has been trivialized by the State Government and by the CBI. It is a very serious matter since five members of a family suddenly went missing, and there is no trace of them, as well as the vehicle in which they were travelling, i.e. Maruti Zen bearing registration No.HR 26-B 9605. They were also using mobile phones, and it is not clear whether the call records and location of the said mobile phones was ever investigated into. 12. From the reading of the judgment dated 01.06.2010, passed in Habeas Corpus Petition No.12 of 2008, it is clear to us that the Court was also inclined to transfer the investigation to the CBI, looking to the gravity of the situation. 12. From the reading of the judgment dated 01.06.2010, passed in Habeas Corpus Petition No.12 of 2008, it is clear to us that the Court was also inclined to transfer the investigation to the CBI, looking to the gravity of the situation. The State Government had itself issued a notification dated 06.05.2010, and therefore, it is abundantly clear that the State Government was also willing that the investigation should be handed over to the CBI. In this background, the action of the CBI to decline to take up the case for investigation, despite the order of the Court, was unfortunate. As aforesaid, the least they could have done was to approach this Court for recall of the judgment dated 01.06.2010. Merely because the case was old, was no reason for the CBI not to take up the case for investigation, once a notification was issued by the State, and the order has been passed by the Court. It is not for the CBI to investigate only easy cases, and pick low hanging fruits. 13. Learned counsel for the petitioner has also submitted that there are some serious infirmities in the FIRs as well as in the investigation conducted by the CB-CID of the State. She states that even the correct mobile numbers of the missing persons were not disclosed in the FIR. This, and all other aspects of the matter, need to be thoroughly investigated. 14. We, therefore, dispose of this writ petition with a direction to the CBI to forthwith take up the investigation of the aforesaid two FIRs’ in right earnest. 15. However, we shall continue to monitor the investigation conducted by the CBI, at last till we are satisfied that the CBI had started investigation in right earnest. 16. Let a status report be filed by the CBI in relation to the investigation conducted by it henceforth before the next date. 17. For that purpose, list on 11.10.2023. 18. We, however, make it clear that filing and acceptance of the closure reports during the National Lok Adalat, or otherwise, shall not come in the way of the CBI in investigating both the aforesaid Case FIRs’. 19. The CB-CID shall handover the complete records of the two cases, as aforesaid, to the CBI, as and when requisitioned. 20. We direct the State Government to render all assistance to the CBI in the matter of conduct of investigation. 21. 19. The CB-CID shall handover the complete records of the two cases, as aforesaid, to the CBI, as and when requisitioned. 20. We direct the State Government to render all assistance to the CBI in the matter of conduct of investigation. 21. Pending application, if any, also stands disposed of. 22. Let certified copy of this order be issued to learned counsels for the parties within 24 hours, as per Rules.