FR/NFR P a g e 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL Smt. Sureinder Kaur, widow of late Kashmir Singh, resident of Village Makhi Kalan, P.S./P.O. Makhi Kalan, Tahshil Patti, District: Amritsar (Panjab), C/O Shri Pangabam Loken Singh, S/O P. Chaoba Singh of Singjamei Makha Monkhang Lambi, P.S. Singjamei, Imphal East (Manipur). - Versus -... PETITIONER 1. The Union of India, through the Secretary, Government of India, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Reserve Police Force (CRPF), C.G.O. Complex, New Delhi. 3. The Commandant, 26 th Bn. C.R.P.F., C/O 99 APO. 4. The Commissioner/Secretary (Home), Govt. of For the Petitioner For the Respondents Date of hearing & Reserving Judgment Manipur, Imphal. B E F O R E HON BLE MR. JUSTICE KH. NOBIN SINGH... RESPONDENTS :: Shri Kh. Chonjohn, Sr. Advocate assisted by Shri Tombisana Sharma, Advocate. :: Shri R.K. Umakanta, Addl. G.A. & Shri S. Rupachandra, ASG. :: 05-07-2016. Date of Judgment & Order :: 18-07-2016 JUDGMENT AND ORDER [1] Heard Shri Kh. Chonjohn, learned Senior Advocate assisted by Shri Tombisana Sharma, learned Advocate appearing for the petitioner; Shri R.K. Umakanta, learned Addl. Government
P a g e 2 Advocate for the respondent No. 4 and Shri S. Rupachandra, learned ASG for the respondent Nos. 1 to 3. [2] By the instant writ petition, the petitioner has humbly prayed that an appropriate direction/order be issued to the State Respondents to conduct/hold an enquiry through the Central Bureau of Investigation (CBI) regarding the death of her son, Shri Nishan Singh on 19-11-2002 at the camp of the Battalion at Heavy Fuel Power Project, Leimakhong, Senapati District, Manipur. [3.1] According to the petitioner, her son, Shri Nishan Singh joined the 26 th Bn., CRPF on 19-04-2000 as Constable and was posted at different places from time to time and at the time when he died on 19-11-2002, he was posted at the Bn., H.Q., D. Company near the Heavy Fuel Power Project, Leimakhong, Senapati District, Manipur. At that time, Shri P.K. Sahu and Shri Dinesh Kumar were the Company Commander and the Commandant of 26 th Bn. CRPF respectively. Shri Dinesh Kumar used to come to the D. Company very often and one day prior to the death of Shri Nishan Singh, he came to the D. Company and started staying at the residence of Shri P.K. Sahu when the latter stayed away from his room. The Quarter Master of the D. Company, Shri Joginder Singh asked Shri Nishan Singh to put a chair inside the room where Shri Dinesh Kumar was staying and when Shri Nishan Singh picked up the chair and went inside the room to place it there, he saw Shri Dinesh Kumar and wife of Shri P.K. Sahu in an objectionable (naked) condition. When Shri Nishan Singh spread the news about the illicit relation, both Shri Dinesh Kumar and Shri P.K. Sahu planned to murder Shri Nishan Singh and accordingly, on 18-11-2002 Shri P.K. Sahu issued a
P a g e 3 night pass to Shri Nishan Singh telling him to report in the unit in the morning and on the next day when he presented himself in the unit at about 7:15 a.m., Havildar Major Ramdarsh Parshad reported to Shri P.K. Sahu who ordered that Shri Nishan Singh be produced before him in uniform. When Shri Nishan Singh presented himself, Shri P.K. Sahu and Havildar Major Ramdarsh Parshad who were in civil dress, were sitting outside the office having a table before them. Shri P.K. Sahu who forcibly snatched the night pass from Shri Nishan Singh, tore it off and told Nishan Singh that he had remained outside for the whole night without his order and since he had violated the law, he would be punished. Shri Nishan Singh was made to stand as a punishment continuously from 8:22 a.m. to 11:35 a.m. torturing him both physically and mentally under a pre-planned conspiracy amongst his superior officers and during the interrogation, Shri P.K. Sahu asked Shri Nishan Singh as to why he had gone to the room where and when Commandant Shri Dinesh Kumar and wife of Shri P.K. Sahu were sitting and then why did he announce the same to the public and therefore, Shri P.K. Sahu told him that he did not want to see him alive. Shri Nishan Singh replied that having felt himself to be quite unsafe, he had already informed his parents regarding the threat and that in case something happened to him, they would be held responsible. [3.2] In the afternoon of the same day i.e. 19-11-2002, Company Havildar Major asked Shri Nishan Singh to have his meal and when Shri Nishan Singh went to the barrack for lunch, Shri P.K. Sahu ordered Constable Mohinder Singh, Hav. Tajudin, Hav. T.J. Thomas to go and kill Shri Nishan Singh and accordingly, they went and started beating him in his Barrack.
P a g e 4 While Tajudin and Mohinder Singh caught hold of him from both sides, Mr. Thomas fired at him at his abdomen from Insas rifle of Mohinder Singh Meena and killed him. Thereafter, they spread a rumour that Shri Nishan Singh had committed suicide. When Constable T.P. Gautam reached the spot of incident, he saw Shri Nishan Singh crying with the bullet injury and according to him, there was no rifle present at the spot of the incident. [3.3] On 20-11-2002, two Sub-Inspectors from Police Station, Saparmeina came to the place of the incident for investigation and after the investigation, the Investigating Team prepared a report which was sent to various higher authorities but the Investigating Officer, S.I. O. Kiran Singh was not satisfied with the version of the CRPF Officers. Shri P.K. Sahu and Shri K.G. Sharma, Deputy Commandant with the help of D. Hayoo, Constable in the Battalion bribed the In-charge of Police Station, Saparmeina with Rs. 15,000/- and five bottles of whisky and accordingly, the police filed the report under section 174 Cr. P.C. As per the information collected by the Investigating Team, Shri Attar Singh, Dy. Commandant was ordered to hold a Court of Inquiry for which he recorded the statements of witnesses and after preparing a false report, he handed over the same to the Commandant. The Inspector General, CRPF did not accept the enquiry conducted by the Deputy Commandant and re-ordered for the enquiry but the same report was again submitted. When some of the Jawans of the Battalion revolted against the killing, they were threatened by the Commandant not to reveal anything about the incident. The Investigating Team reached the house of Sub-Inspector, Shri Shiv Dutt Shukla who revealed that when Shri T.P. Gautam entered the barrack, he saw Shri Nishan Singh
P a g e 5 crying and at that time, no rifle was found there. Although he ordered some of the Jawans to provide blood group, Shri Nishan Singh could not get the same in time. He further disclosed that although Shri Mohinder Singh was not on duty, he marked his presence in duty register for 17th, 18th and 19 th Nov., 2002. He further told that when all the soldiers were having their meals, Shri P.K. Sahu asked them to do their job but at that time he could not understand what action they were supposed to take. Shri Harminder Singh had given an affidavit wherein he deposed that on 19-11-2002 Shri Nishan Singh was killed under a pre-planned conspiracy hatched by Shri P.K. Sahu. When he criticised the killing of Shri Nishan Singh, he was ordered to appear before Shri Dinesh Kumar who threatened him to keep mum, otherwise such incident could happen to him. [3.4] This is a case where a young person had been killed for no fault of him. An enquiry was conducted by the National Human Rights Council, Punjab and a report dated 06-03-2003 thereof was presented with the request that in view of the circumstances narrated therein, the investigation be done by the CBI. Copies of the said report were sent to various authorities including DG, CRPF; Chief justice of India, National Human rights Commission, President of India etc. and came to be published in the local daily POKNAPHAM on 08-03-2003 as well as in the Rozana Jag Bani on 09-03-2003. Nothing happened thereafter except that Shri Dinesh Kumar and Shri P.K. Sahu proceeded on pension from 31-03-2003 and accordingly, the petitioner moved the Punjab & Haryana High Court by way of an application under Section 482 Cr.P.C being Cril. Misc Case No. 14716-M of 2003 which was dismissed on 17-08-2005 on the ground that since the
P a g e 6 occurrence took place in the territorial jurisdiction of the Gauhati High Court, it did not find any ground to exercise inherent powers under Section 482 Cr.P.C for issuing direction to the respondents to get the case investigated by the CBI or any other agency. Hence, the petitioner has approached this court by way of the instant writ petition praying for a direction to the respondents to conduct an enquiry through the CBI. [4] The instant writ petition is contested by the respondent Nos. 1 to 3 by filing an affidavit-in-opposition, denying the averments made therein, wherein it is stated that on 18-11-2002 Shri Nishan Singh was on duty in the morning and was due for duty again at 2:00 p.m. but he did not come for the duty and deserted from the lines and moreover, no out pass was usually issued to Non-Manipuri for security reasons. After he shot himself, many people including T.P. Gautam reached the spot and evacuated him to the Army Hospital. At about 12.30 p.m. Shri Dinesh Kumar reached the place of incident and found the Insas rifle with which Shri Nishan Singh committed suicide with one hole being noticed in the wall. In fact, the inquiry was conducted by senior officers of the Manipur Police. The enquiry conducted by Shri Attar Singh, being the court of enquiry was mandatory and he recorded the statement of witnesses including T.P. Gautam and completed the enquiry in a free and fair manner. The affidavit of Shri Harminder Singh, a driver who was, on that day, posted at other location at Kangpokpi, shall not represent the factual position which are based on hearsay only. The enquiry conducted by the National Human Rights Council, Punjab is not tenable as they have not contacted any of the senior officers of the Department. In a Department like CRPF, there is every
P a g e 7 administrative transparency and is run as per Government rules and regulations. The instant writ petition is contested by the respondent No. 4, State of Manipur also by filing an affidavit-inopposition wherein it is stated that on 19-11-2002, Shri P.K. Sahu lodged a written report with the Officer-in-Charge, Police Station, Sapermeina stating that Shri Nishan Singh had deserted from the line on 18-11-2002 at 1400 hours. Company personnel searched for him near surrounding areas but he could not be found. He came back at the line on 19-11-2002 at 07:00 a.m. and while he was at the line, he fired one round by one Rifle 5.56 INSAS at himself at about 11:50 a.m. He was evacuated to nearby Army Hospital and operated but he succumbed to his injuries at 13:30 p.m. in the Army Hospital, Leimakhong. Hence, a regular U.D Case No. 2/2003, G SPM PS U/S 174 Cr.P.C was registered for investigation. During the course of investigation, the I.O. of the case visited the spot and examined a good number of witnesses who stated that Shri Nishan Singh had committed suicide inside the barrack. Further, the post mortem report clearly suggested the death as suicidal in nature. So the charge as stated in the para is not held proved during the investigation of the case. During the course of investigation, no any evidence and witnesses proved the illicit relation between Shri Dinesh Kumar and wife of Shri P.K Sahu. Further, only one bullet mark was found on the dead body of Shri Nishan Singh as entrance and exit. The bullet went upward from the ground and struck at wall at a height of about 4 ft from the ground. Regarding bribery charge, it has been stated that there is no blood relation between Shri D. Rajao and the O.C., P.S Sapermeina and the charges levelled against the O.C. are fabricated and concocted. As regards the stoppage of enquiry, it has been stated that although the UD case was
P a g e 8 registered on 19-11-2002, the investigation thereof was continued till 14-04-2002 when F/F was submitted. [5] Historically, the Central Bureau of Investigation (CBI) was established vide a Resolution dated 1 st April, 1963 of the Ministry of Home Affairs, Government of India. The Delhi Special Police Establishment Act, 1946 came into force on 19 th November, 1946 which enabled the Establishment to function in the provinces (with the concurrence of the provincial Government) to the limited extent of investigating certain specified offences in which the Central Government employees were involved or Departments of Government of India were concerned. After the said Act being enacted, the superintendence of the Special Police Establishment was transferred to the then Home Department and its functions were enlarged to cover all Departments of the Government of India. The CBI is a successor organisation to the Delhi Special Police Establishment with an enlarged charter of functions. In fact, with the establishment of CBI on 01-04-1963, the Delhi Special Police Establishment was made one of its Divisions viz., investigation and Ant-Corruption Division. The CBI can investigate only offences or classes of offences as are notified by the Central Government, under Section 3 of the Special Police Establishment Act, which may, by order, extend to any area subject to the consent of the Government of the concerned State under Section 6 of the Act. Section 3 and 6 of the Special Police Establishment Act, 1946 are reproduced herein below: 3. The Central Government may, by notification in the official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.
P a g e 9 6. Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway area, without the consent of the Government of that State. [6] From the preceding para, it is seen that the powers and jurisdiction of the CBI for investigation are confined to any offence or classes of offences notified by the Central Government in respect of its Departments. The area of investigation can be extended by the Central Government provided consent is given by the State Government. However, there are many instances in which the CBI has been directed by the Hon ble Supreme Court or the High Courts to investigate into various cases involved therein. Therefore, the instant writ petition has been filed by the petitioner praying for investigation by the CBI regarding the death of her son. The learned counsel appearing for the petitioner has placed reliance on the decision dated 12-03-2007 rendered by the Hon ble Guahti High Court, Imphal Bench in the case of W.P. (C) No. 11 of 1999, Smt. Achung Kamei Vs. State of Manipur & ors. [7] The issue as regards the power and jurisdiction of the Hon ble High Court under Article 226 of the Constitution for issuing appropriate direction for a case to be investigated by the CBI, is no longer res integra. In Maniyeri Madhavan Vs. Sub- Inspector of Police & ors., reported in (1994) 1 SCC 536 wherein one of the issues was as to whether the Delhi Police Establishment could investigate into the matter without the consent being accorded by the Kerala Government for exercise of
P a g e 10 power under Section 6 of the Act, the Hon ble Supreme Court held that while exercising its jurisdiction under Article 142 of the Constitution, the procedure prescribed under Section 6 of the said Act was not required to be followed by it. In Secretary, Minor Irrigation and Rural Engineering Services, UP & ors. Vs. Sahngoo Ram Arya & anr., reported in AIR 2002 SC 2225, relied upon by the learned counsel appearing for the petitioner, the Hon ble Supreme Court held: 5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by the CBI, the said power can be exercised only in cases where there is sufficient material to come to a primia facie conclusion that there is a need for such inquiry. 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 inquiry by the CBI. This is a requirement which is clearly deducible from the judgment of this court in the case of Common Cause (supra). This Court in the said judgment (AIR 1999 SC 2979) at paragraph 174 of the report has held thus: The other direction, namely, the direction to CBI to investigate any other offence is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person s involvement is prima
P a g e 11 facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of LIFE and LIBERTY guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of LIFE has been explained in a manner which has infused LIFE into the letters of Article 21. In Sakiri Vasu Vs. State of Uttar Pradesh & ors. reported in (2008) 2 SCC 409 wherein the appellant s prayer for ordering the matter in which dead body of his son, a Major in the Army was found on 23-08-2003 at Mathura Railway Station, to be investigated by the CBI was the subject matter in issue, the Hon ble Supreme Court dismissing the appeal held: 10. It has been held by this Court in CBI v. Rajesh Gandhi (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 27. As we have already observed above, the Magistrate has very wide powers to direct
P a g e 12 registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC. 31. No doubt the Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. This type of cases appear to have come up before the Hon ble Supreme Court quite often and therefore, when the case
P a g e 13 namely State of West Bengal Vs. Committee for Protection of Democratic Rights, West Bengal & ors. came up for hearing before a bench of two Judges on 08-11-2006, the said Bench, taking note of the rival contentions of the parties, was of the view that the question of law involved therein was of great public importance and was coming before the Hon ble Supreme Court frequently and that it was necessary that the issue be settled by a larger Bench. Accordingly, the Bench directed that the matter be placed before the Hon ble Chief Justice for an appropriate order. When a batch of such cases came up before a three-judge Bench, the same were directed to be listed before a Constitution Bench. The issue which was referred to the Constitution Bench was as to whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the CBI, established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government? The Constitution Bench, Hon ble Supreme Court in the case of State of West Bengal Vs. Committee for Protection of Democratic Rights, West Bengal & ors., reported in (2010) 3 SCC 571 examined the constitutional scheme in length and answering the question, held: 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 a State without the consent of that State will neither impinge upon the federal structure of the
P a g e 14 Constitution nor 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 self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to 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 instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be
P a g e 15 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. [8] From the aforesaid decisions of the Hon ble Supreme Court, it is indubitably clear that the High Court under Article 226 of the Constitution of India has the power and jurisdiction to direct the CBI to investigate into a case but this power shall be exercised sparingly, cautiously and only in exceptional situation. Since the exceptional situation cannot be defined or no definite guidelines can be laid down in respect thereof, it would depend upon the facts and circumstances of each case. Coming to the facts of the present case, the main allegation and the grievance of the petitioner is that there has been no proper investigation into the death of her son but the allegation has been denied by the respondents. Admittedly, the incident took place in the barrack of the 26 Bn. CRPF 19-11-2002 and there is no eye witness to it. On perusal of the averments made in the petition, the same appear to have been based on what was told by Shri Nishan Singh to somebody immediately prior to his death. The person to whom Shri Nishan Singh might have talked or narrated about the incident, is not forthcoming. There is no material on record to corroborate the averments made in the petition about the objectionable condition being seen by Shri Nishal Singh; the
P a g e 16 night pass being issued to him on the previous day of the incident after he having allegedly witnessed the objectionable condition and the manner in which Shri Nishan Singh was caught hold of him by Tajuddin and Shri Mohinder Singh and Shri Thomas fired at him. According to the petitioner, when the Investigation Team prepared a report after the investigation, one of the Investigation Officers was not satisfied with the version of the CRPF but after Shri P.K. Sahu and Shri K.G Sharma bribed the O.C, Saparmeina PS with fifteen thousand and five bottles of whisky, the police filed a police report under Section 174 Cr.P.C. It that be so, the petitioner ought to have lodged a complaint with the higher authorities or she could have approached the concerned Magistrate to redress her grievance. But it appears that the petitioner has not done that. On the other hand, in the affidavits filed on behalf of the respondents, the averments made in the petition have been denied and admittedly, on receipt of the information about the incident, a regular U.D Case No. 2/2002 was registered by the concerned police station and was thereafter investigated by an Investigation Team including examination of witnesses, post-mortem report etc., on whose report the police submitted a police report under Section 174 Cr.P.C to the effect that the case was of suicidal in nature. Moreover, on the basis of the information collected by the investigation team, a court of enquiry was ordered and during the course of enquiry, many persons including Shri T.P. Gautam have deposed in its proceedings. The court of Inquiry submitted its proceedings with its finding and opinion holding inter-alia that Shri Nishan
P a g e 17 Singh shot himself in the abdomen with the fire-arm resulting in his death and after the enquiry report was sent to the higher authorities, the Commandant issued an order dated 18-02-2003 in respect thereof. In support of her case, the petitioner has relied upon the special report prepared by the National Human Rights Council, Punjab and the affidavit sworn to by Shri Harminder Singh. According to the learned counsels appearing for the respondents, the said Council is not the State Human Rights Commission established under the provisions of the Protection of Human Rights Act, 1993 and moreover, before the report was prepared by the Council, it had not examined any of the senior officers of the Department to ascertain the facts nor had it visited the place of incident and therefore, its report was not tenable. On perusal of its report, it is nowhere mentioned therein that the Council has been authorised by any authority or directed by an appropriate court to investigate into the case and submit a report thereof and in the absence of any authenticity, no court can take cognisance of such report. As regards the affidavit of Shri Harminder Singh, it has been submitted on behalf of the respondents that at the relevant time, he was posted at some other location namely Kangpokpi which is far away from the place of incident and that his statement based on hearsay, shall not disclose the factual position of the case. From the materials placed on record, it is not clear as to whether he was examined by the police during investigation or he had deposed before the court of enquiry during the course of its proceedings giving the same statement as that of the affidavit. Even the affidavit does
P a g e 18 not disclose the date on which it has been sworn to. After examining the materials on record and having heard the learned counsels appearing for the parties, this court is of the view that there is no prima facie case and the materials on record are not sufficient to direct the CBI to investigate into the case. The learned counsel appearing for the petitioner has placed his reliance on the decision rendered by the Hon ble Gauhati High Court in the case of W.P. (C) No. 11 of 1999, Smt. Achung Kamei Vs. State of Manipur & ors. wherein the Hon ble High Court, after examining the materials available on record and in particular, the report of the magisterial enquiry and the post-mortem report, found it to be a fit case and accordingly, directed the case be investigated by the CBI. But on perusal of it, it is seen that the decision has been rendered on its own facts which are not similar to that of the present case and therefore, it will not apply to the facts of the present case. [9] For the reasons stated herein above, the instant writ petition fails and is accordingly dismissed with no order as to costs. JUDGE WxätÇtÇwt