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Judgment
This criminal misc. petition under section 482 CrPC is filed by the petitioner essentially with a prayer for transferring of investigation of the FIR
No.415/2017 of Police Station, Sanchore, District Jalore for the offences punishable under sections 302, 307 and 34 IPC. It is also prayed that the
investigation of FIR No.414/2017 of the same police station be consolidated with the above referred FIR.
The petitioner is widow of late Bhim Singh, who was allegedly killed in an encounter by the police personnel of Police Station, CCS (Central Crime
Station), Kurnool, Andhra Pradesh on 27.10.2017 at Sanchore, District Jalore (Rajasthan).
The FIR No.414/2017 of Police Station, Sanchore, District Jalore has been lodged at the instance of Mr G.Raja Sekhar - Sub-Inspector of Police
Station, CCS (Central Crime Station), Kurnool, Andhra Pradesh at 02:05 A.M. on 28.10.2017.
Relevant portion of the FIR No.414/2017 is reproduced hereunder:
To
The Station House Officer,
Sanchore Police Station,
Jalore District,
Rajasthan State.
Sir,
Sub: Andhra Pradesh Kurnool District Police Firing against Police Party at the outskirts of Sanchore near Jain temple, Sanchore Right of private
defense Request to take necessary action-Regarding.
Ref:- Cr.No.177/2017 u/s 365, 324, 397, 395 IPC, Sec. 25 (1)(b) Arms Act of Dhone rural Ps. Kurnol district, Andhra Pradesh.
I, G.Raja Sekhar, Inspector of Police, CCS, Kurnool, Andhra Pradesh, would like to bring the following few lines for necessary action.
It is to inform that on the intervening night of 12/13.09.2017 at about 1.30 a.m., while the complainant in the reference cited case Deep Karan
Chowbisa along with another proceeding towards Bangalore, at Obulapuram mitta in NH 44 at Dhone, some unknown offenders armed with fire arms
intercepted Scorpio vehicle AP 09 CW 0880 of complainant with their 2 vehicles, attacked them and threatened at the point of fire arms, committed
dacoity of Rs.5.5 crores being transported in the vehicle. They further abducted the complainant and another. Basing on the complaint, a case in the
reference cited was registered and investigated into.
Being one of the sensational cases ever witnessed by the District special teams were formed as per the instructions of Supd. of Police, Kurnool to
apprehend and arrest the accused. A Swift vehicle bearing register No.MH12 NU 9244 was used to commit dacoity was identified and during further
investigation, it was learnt that the offenders robbed away the vehicle from Reserve Inspector of Police at Yauvat of Pune by inflicting severe
gunshot injuries which is a subject matter of Cr.No. 164/2017 u/s 394, 397, 341 r/w 34 IPC and Sec. 3 & 27 of Arms Act of Yauvat PS, Pune.
Maharashtra State. It was also learnt that another Honda Mobilio vehicle (car) bearing No. RJ 27AH 5233 was committed theft from Gujarat State.
Later with the help of CCTV footages captured at Panchalingala toll gate and nearby hotel at kurnool of Andhra pradesh and at Medchal outer ring
road exit toll of Telangana state and other places established the identity of the accused. A team under incharge of DSP, CCS, Kurnool visited
Rajasthan State and Gujarat. As per the instructions of DSP, myself along with Srinivasulu, SI Dhone town PS, Madhusudhan Rao, SI Pathikonda PS
visited Sanchore town yesterday i.e. on the evening of 26.10.2017. Today i.e. on 27.10.2017 morning we received information from our team that one
of our teams arrested Purannath Goswamy, Bharat Kumar Mali and Tagaram in the above case. On their confession, we leant that the prime accused
Bheem Singh who is involved in 15 and some other cases in Rajasthan and a History sheet maintained in Bhinmal P.S, is moving in the vicinity of
Sanchore in a white Scorpio vehicle Reg. No. RJ21 UB 1800 and accordingly myself and my team in a private Scorpio vehicle MH49 U 5513 (driver
Shankar) kept a watch on NH 15 in the outskirts of Sanchore town towards Barmar for the Scorpio vehicle. While so at about 1.15 p.m. the Scorpio
vehicle bearing no. RJ21 UV 1800 came from Barmar side towards Sanchore. We could identify the driver of the said vehicle as suspected prima
accused Bheem Singh in the above case. We followed the vehicle. The said vehicle moved towards Sanchore town and at a the shopping complex,
the suspected accused parked the vehicle and got down. In the meanwhile 2 persons on a motor cycle came and met him. After talking to them,
Bheem Singh handed over the keys to the pillion rider and sat o the motor cycle and went away. The pillion rider then got into the Scorpio and went
via National highway towards Jain temple. We followed the Scorpio at a reasonable distance. The Scorpio drove towards a radium stickering
stop beside Jain temple and stopped. We too followed and stopped at distance and were observing. In the meanwhile the prime accused Bheem Singh
came and sat next to the driver in the front row. Myself along with my team rushed and surrounded the vehicle and cautioned the culprits to surrender
having disclosed our identity as Police Officers. The prima accused Bheem Singh immediately opened fire on us on more than once. In order to
protect ourselves and having left with no other option and in self defence, my Sls opened fire with their service pistols at Bheem Singh. In the
meanwhile the driver of the vehicle drove the Scorpio at a high speed towards Sanchore and we followed them in our private vehicle and chased
them. Their Scorpio took a right turn and then on to Raniwada road. The driver of the Scorpio unmindful to the traffic drove the vehicle in very
rash manner and hit hard against a lady pedestrian and sped towards Raniwada resulting in the death of the lady pedestrian. After proceeding some 5
Kms approximately, the driver of the vehicle stopped the Scorpio and got down. We surrounded him and found that he was injured. On further
observation we found that Bheem Singh was sitting next to the driver was found lying on the passenger seat with injuries. While fleeing also the
culprits fired shots on us and in self defence we also retaliated from behind while casing. The driver informed us on questioning that his name is
Bharath Purohith and the injured person is Bheem Singh. A weapon was found in the pocession of BheemSingh and i secured it and took it into my
custody for safety purpose. Immediately I along with Srinivasulu SI took the injured Bheem Singh drove the vehicle to Govt hospital Sanchore. I am
herewith handing over the weapon (Country Made pistol) of Bheem Singh.
The prime accused Bheem Singh and another person with an intention to do away with our lives, had opened fire on us while we were performing our
legal, lawful and legitimate duties. Having left with no other option and in order to protect and save our lives and also the lives of general public we
opened fire in self defence.
In the view of the foregoing facts and the circumstances urged it is requested to take necessary action against the culprits for having opened fire on us
while discharging our legal, lawful and legitimate duties. G.Raja Sekhar, Inspector Of Police, CCS Police Station, Kurnool District, Andhra Pradesh.
As per the facts mentioned in the above referred FIR, at the time of alleged encounter, deceased Bhim Singh was accompanying by one Bharat
Kumar, who was also injured due to gunshot injury allegedly fired by police personnel of Andhra Pradesh Police. Since Bharat Kumar was injured, he
was referred for treatment to hospital at Deesa, Gujarat, where he got his statements recorded to the Rajasthan Police at 8:20 P.M. on 27.10.2017
and on the basis of which, Police Station, Sanchore, District Jalore registered FIR No.415/2017 at 02:50 A.M. on 28.10.2017. The relevant portion of
said FIR is reproduced hereunder:
ipkZ c;ku Jh Hkjr dqekj iq= Jh 'kxrkjke tkfr iqjksfgr] mez 35 lky] fuoklh fcPNkokMh] iqfyl Fkkuk ljokuk] ftyk tkyksj] gky xk;=h lftZdy gksLihVy]
Mhlk] xqtjkrA fnukad 27-10-2017 oDr 08-20 ih,e us crk;k fd esjs ikl Hkheflag iq= 'kEHkqflag HkkVh fuoklh Hkhueky dk djhc lkvk;k dh lkapksj vk;s gq, gS xqtjkr pyuk gS eSaus cksyk dh eSa fnus'k isUVj ekdqiqjk iqfy;k ds ikl lkapksj vk jgk gwa eSa esjh eksVjlkbZfdy ls esgrk
ekdsZV gksrs gq, fnus'k isUVj dh nqdku is x;k fQj djhc ikap lkr feuV ckn lkapksj dh rjQ ls Hkheflag Ldksjfivks xkM+h ysdj fnus'k iUsVj dh nqdku ij
vk;k eSa ogka Hkheflag dh Ldksjfivksa xkM+h dh vkxs okyh lhV ij cSB x;k xkM+h pkyq Fkh ,s lh pkyq Fkh fiNs dh rjQ ls ,d Ldksjfivks flYoj jax dh
ubZ xkM+h u;k eksMy vkbZ tks gekjh xkM+h ls chl ehVj nwj [kM+h dh mleas ls pkj vkneh mrjs mlesa ls nks vkneh ds ikl fiLrksy Fkh ftUgksaus nqj
ls Qk;j 'kq: fd;s fQj Hkheflag fpYyk;k o dgk fd nq'eu vk x;s gS rc ogka ls xkM+h ysdj Hkkxs Qk;fjax pkyq Fkh xkM+h ds ikl esa vkdj Qk;fjax dh
xkM+h ml le; Hkheflag pyk jgk Fkk fQj xkM+h pkj jkLrk lkapksj dh rjQ ge Hkkxs rks og xkM+h Hkh gekjs fiNs&fiNs pkjks vkneh cSBdj vk;s pkj
jkLrk lkapksj ij FkksM+h VªkQhd Fkh mUgksaus ihNs vkdj gekjh xkM+h ds VDdj ekjh ge jkuhokM+k jksM dh rjQ Hkkxs ogka Hkh xkM+h ihNs
vkbZ ugj ds ikl Qkyuk ds ikl og xkM+h ihNs jg xbZ Hkheflag ds xksyh yxus ls gkyr [kjkc gks xbZ mlus MªkbZofjx lhV NksM nh eSa MªkbZofjx
lhV ij cSB x;k fQj ml xkM+h us vksojvVSd fd;k Qkyuk cl LVS.M ds ikl xkM+h vkbZ o Qk;j fd;s djhcu rhu pkj Qk;j xkMh ds lkbZM esa fd;s iqfy;k ds
ikl djhc 15 Qk;j fd;s FksA Qkyuk iqfy;k ds ikl nks vkneh fups mrjs Fks esjs ck;s flus ij xksyh yxh ihNs okyh rjQ ihB ij xksyh yxh fQj mUgksaus }kjk flj
ij fiLVksy j[k nh Hkheflag xksfy;k yxus ls csgks'k gks x;k Fkk fgy ugha jgk Fkk lk;n [kRe gks x;k Fkk ;g ?kVuk djhc nks cts ds vkl&ikl dh gS fQj
,Ecqysal vkbZ eq>s lkapksj gkWLihVy ys x;s Hkalkyh gkWLihVy ys x;s ogka ls ljdkjh lkapksj vLirky ys x;s ogka bykt fd;k ogka ls Mhlk bykt ds fy;s
yk;s gSA tgka bykt py jgk gS gekjh xkM+h esa eSa o Hkheflag nksuks gh FksA
mi;qZDr ipkZ c;ku et:c Hkjr dqekj ds dgs vuqlkj fy[ks x;s iqu% iHkh Hkjr dqekj ls ekeyk tqeZ /kkjk 307] 302@34 Hkknl o 3@25 vkElZ ,DV dk ?kfVr gksuk ik;k tkrk gSA vr% Fkkuk lkapksj igaqp ipkZ dk;eh ntZ
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ljokuk ds Jh [ksr flag ,lvkbZ Fkkukf/kdkjh iqfyl Fkkuk >kc us xk;=h lftZdy vLirky Mhlk ls ykdj is'k fd;s etewu ipkZ c;ku ls ekeyk tqeZ /kkjk 302]
307@34 Hkknl dh odq esa vkuk ik;k tkrk gS vr% bl laca/k esa izdj.k la[;k 415Â Â rkfj[k vkt dh tqeZ mi;qZDr esa iathc) fd;k tkdj izFke lwpuk fjiksVZ
dh izfr;k fu;ekuqlkj tkjh dh xbZ dy izfr izkFkhZ dks fu%'kqYd nh tk;sxhA izdj.k esa fof'k""V izfrosnu tkjh fd;k x;kA izdj.k dh i=koyh vfxze vUos""k.k
gsrq funsZ'kkuqlkj Jheku lhvks lkgc lkapksj dh lsokesa vfoyEc izsf""kr gksxhA
Mr B.S.Rathore learned counsel appearing for the petitioner has argued that it is a fit case wherein the investigation into the above referred two FIRs
can be handed over to the Central Bureau of Investigation because the Police of State of Rajasthan are not conducting fair and impartial investigation
into the alleged encounter of the husband of the petitioner.
It is contended that though the statements of injured Bharat Kumar were recorded by the Police on 27.10.2017 itself but no FIR was lodged by the
police till the lodgement of the FIR by Mr G. Raja Sekhar - Sub-Inspector of Andhra Pradesh Police. It is contended that the Police have deliberately
lodged the FIR, on the basis of the statement of injured Bharat Kumar, with delay and this fact itself is sufficient to transfer the investigation of above
referred FIRs to the Central Bureau of Investigation.
It is also submitted that the FIR No.414/2017, registered at the instance of Sub-Inspector of Andhra Pradesh Police has been lodged with the intention
to save the skin of the Police Personnel of Andhra Pradesh, who killed the husband of the petitioner in broad daylight.
Learned counsel for the petitioner has further submitted that the circumstances in which the alleged encounter took place are highly suspicious. The
Police Personnel of State of Andhra Pradesh had reached Sanchore, District Jalore to eliminate the husband of the petitioner without informing the
local police and straightaway killed him without giving any warning.
It is also contended that the statements of the Police Personnel of Andhra Pradesh to the effect that initially Bheem Singh had fired gunshot on the
police party and the police party in their self defence had opened the fire, in which Bheem Singh has died, are patently false.
It is contended that on the vehicle in which the Police Personnel of State of Andhra Pradesh were traveling has no mark of any gunshot and none of
the police personnel has received injuries in the incident and, therefore, it is unbelievable that the police personnel of Andhra Pradesh had acted in
their self defence. It is contended that the facts of the case clearly demonstrate that it is a broad daylight murder of the husband of the petitioner by
the Andhra Pradesh Police.
Learned counsel for the petitioner has further argued that the petitioner has submitted several representations to the higher authorities but they have
not been considered by the police authorities and the investigation in both the FIRs are being conducted by the Police of State of Rajasthan in most
biased manner.
Learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in Narmada Bai vs. State of Gujarat & Ors., reported in
AIR 2011 SC 1804 and in State of Punjab vs. Central Bureau of Investigation & Ors., reported in AIR 2011 SC 962 and prayed that this criminal
misc. petition may be allowed, and the investigation into the aforesaid FIRs No.414/2017 and 415/2017 of Police Station, Sanchore, District Jalore be
handed over to the Central Bureau of Investigation.
Per contra, learned Public Prosecutor appearing for the State and Dr Sachin Acharya appearing for the Central Bureau of Investigation vehemently
oppose this criminal misc. petition.
Mr Vikram Singh Rajpurohit - learned Public Prosecutor has argued that the FIR Nos.414/2017 and 415/2017 of Police Station, Sanchore are being
investigated by the Rajasthan Police impartially and with all fairness . It is argued that the petitioner has failed to show a single reason to refer the
investigation of the above referred two FIRs to the Central Bureau of Investigation.Â
It is also argued that the Hon'ble Supreme Court in People's Union for Civil Liberties and Anr. vs. State of Maharashtra and Ors., reported in (2014)
10 SCC 635, has provided detailed guidelines required to be followed by the police in a case of police encounter causing death of any person. It is
submitted that Rajasthan Police is following the said procedure laid down by the Hon'ble Supreme Court in above referred case in its full letter and
spirit.
Learned Public Prosecutor has also submitted that deceased Bhim Singh was history-sheeter of Police Station, Bhinmal and several criminal cases
are pending against him in Rajasthan. It is further submitted that earlier the investigation into the aforesaid FIRs was conducted by the Station House
Officer, Police Station, Sanchore but later on it was transferred to the Deputy Superintendent of Police, Sanchore, however, on a complaint filed by
the petitioner to the Inspector General of Police, Jodhpur claiming that police of District Jalore are not conducting investigation in fair and impartial
manner, therefore, by the orders of the Inspector General of Police, now the investigation is being handed over to the Deputy Superintendent of Police,
Sumerpur, District Pali and the investigation is going on.
Learned Public Prosecutor has further stated that as in the incident, resulting in death of husband of the petitioner, the police personnel involved are
up to the rank of Inspector, the investigation of the incident has been referred to an higher officer i.e. Deputy Superintendent of Police.
Learned Public Prosecutor as well as the Investigating Officer, Deputy Superintendent of Police, Sumerpur, District Pali, present in person have
assured this Court that the investigation into both the FIRs, one lodged at the instance of Mr G.Raja Sekhar, Inspector of Andhra Pradesh Police and
another lodged at the instance of Bharat Kumar will be conducted in free and fair manner and the procedure laid down by the Hon'ble Supreme Court
in People's Union for Civil Liberties and Anr. vs. State of Maharashtra and Ors (supra) will be followed in full letter and spirit.
On the strength of above arguments, learned Public Prosecutor has prayed that no case for transferring the investigation of the aforesaid FIRs to the
Central Bureau of Investigation is made out, therefore, this criminal misc. petition may be dismissed.
Dr Sachin Acharya, learned counsel appearing for the CBI has also argued that Rajasthan Police is fully competent to investigate into the FIRs
No.414/2017 and 415/2017 of Police Station, Sanchore, District Jalore and, therefore, there is no need to transfer the investigation of above referred
FIRs to the Central Bureau of Investigation.
It is further contended by Dr Acharya that the Hon'ble Supreme Court has disapproved the practice of transferring the investigation of a criminal
case to the Central Bureau of Investigation in routine or merely because a party has levelled some allegations against the local police. It is further
submitted that the investigation to the CBI can be transferred in exceptional circumstances, where it becomes necessary for the purpose of
investigation or where the incident is of national or international. It is also contended by Dr Acharya that the incident complained of by the petitioner is
not national or international ramification and the petitioner has failed to demonstrate that the investigation by the local police is not being conducted
in fair and impartial manner and, therefore, no interference is called for.
In support of the above contention, Dr Sachin Acharya, learned counsel for the CBI has placed reliance on decision of Hon'ble Supreme Court in
State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West
Bengal and Ors., reported in (2010) 3 SCC 571.
Heard learned counsel for the parties.
The Hon'ble Supreme Court in People's Union for Civil Liberties and Anr. vs. State of Maharashtra and Ors. (supra) has laid down procedure,
which is required to be followed by the police in cases of police encounters causing death or grievous injuries. The relevant portion of above judgment
is as under:
In light of the above discussion and having regard to the directions issued by the Bombay High Court, guidelines issued by NHRC, suggestions of
the Appellant-PUCL, amicus curiae and the affidavits filed by the Union of India, State Governments and the Union Territories, we think it appropriate
to issue the following requirements to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for
thorough, effective and independent investigation:
31.1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave
criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal
details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be
noted in some form without revealing details of the suspect or the location.
31.2. If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of
that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court Under Section 157 of the Code without any
delay. While forwarding the report Under Section 157 of the Code, the procedure prescribed Under Section 158 of the Code shall be followed.
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 thevictim 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 practice that may have brought about the death;
(e) It must be ensured that intact fingerprints ofdeceased 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 inthe 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, whetherit was natural death, accidental death, suicide or homicide.
31.4. A Magisterial inquiry Under Section 176 of the Codemust invariably be held in all cases of death which occur in the course of police firing and a
report thereof must be sent to Judicial Magistrate having jurisdiction Under Section 190 of the Code.
31.5. The involvement of NHRC is not necessary unlessthere 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.
31.6. The injured criminal/victim should be providedmedical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate
of fitness.
31.7. It should be ensured that there is no delay in sendingFIR, diary entries, panchnamas, sketch, etc., to the court concerned.
31.8. After full investigation into the incident, the reportshould be sent to the competent court Under Section 173 of the Code. The trial, pursuant to the
charge- sheet submitted by the Investigating Officer, must be concluded expeditiously.
31.9. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
31.10. Six monthly statements of all cases where deathshave occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six
monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post
mortem, inquest and, wherever available, the inquiry reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
(a) Self defence in encounter.
(b) In the course of dispersal of unlawful assembly.
(c) In the course of affecting arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial Inquiry/Inquiry by SeniorOfficers:
(a) disclosing, in particular, names and designation ofpolice officials, if found responsible for the death; and
(b) whether use of force was justified and action takenwas lawful.
31.11. If on the conclusion of investigation thematerials/evidence having come on record show that death had occurred by use of firearm amounting to
offence under the Indian Penal Code, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
31.12. As regards compensation to be granted to thedependants of the victim who suffered death in a police encounter, the scheme provided Under
Section 357A of the Code must be applied.
31.13. The police officer(s) concerned must surrenderhis/her weapons for forensic and ballistic analysis, including any other material, as required by
the investigating team, subject to the rights Under Article 20 of the Constitution.
31.14. An intimation about the incident must also be sentto the police officer's family and should the family need services of a lawyer/counselling,
same must be offered.
31.15. No out-of-turn promotion or instant gallantryrewards shall be bestowed on the concerned officers soon after the occurrence. It must be
ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
31.16. If the family of the victim finds that the aboveprocedure has not been followed or there exists a pattern of abuse or lack of independent
investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction
over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the
grievances raised therein.
The above guidelines will also be applicable to grievousinjury cases in police encounter, as far as possible.
Accordingly, we direct that the aboverequirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by
treating them as law declared Under Article 141 of the Constitution of India.
In this petition, it is not averred that the procedure laid down by the Hon'ble Supreme Court in the cases of police encounters causing death or
grievous injuries has not been followed.
Mr B.S.Rathore, learned counsel for the petitioner has frankly admitted that it is not the case of the petitioner that above referred procedure laid down
by the Hon'ble Supreme has not been followed by the Rajasthan Police.
In the judgments cited by the learned counsel for the petitioner, the Hon'ble Supreme Court has not laid down any guideline in respect of transferring
of a case to the CBI for investigation and in the case of Narmada Bai vs. State of Gujarat & Ors. (supra), the Hon'ble Supreme Court has directed
the CBI for investigation into the complaint after taking into consideration the facts of that case.
In State of Punjab vs. Central Bureau of Investigation & Ors. (supra), the Hon'ble Supreme Court has affirmed the judgment of Punjab and Haryana
High Court and directed the CBI to proceed with the investigation after taking into consideration the facts, which have been relied upon by the High
Court. Hence, both the cases cited by the learned counsel for the petitioner have no applicability in the present case.
As a matter of fact, in the cases of police encounters, causing death and grievous injuries, the Hon'ble Supreme Court in People's Union for Civil
Liberties and Anr. vs. State of Maharashtra and Ors. (supra) has laid down a standard procedure required to be followed by the police, however, in
the said procedure, it is nowhere provided that the investigations in cases of police encounters causing death and grievous injury are necessarily
required to be conducted by the Central Bureau of Investigation. In the said procedure only it is provided 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).
In the present case, the incident is of Police Station, Sanchore, District Jalore, whereas now the investigation is entrusted to the Deputy Superintendent
of Police, Sumerpur, District Pali. As such, the investigating officer, who is investigating into the incident is of different district and higher in rank to
the head of the police party engaged in encounter.
So far as argument of learned counsel for the petitioner to the effect that the police has not registered the FIR on the basis of Parcha Bayan of injured
Bharat Kumar at Deesa Hospital before registering the FIR at the instance of Mr G.Raja Sekhar, Inspector of Andhra Pradesh Police suffice is to
say that the statements of injured Bharat Kumar were recorded at Deesa Hospital at 8:20 P.M. on 27.10.2017 and on the basis of it, FIR No.415/2017
was registered at 2:50 A.M., whereas Mr G. Raja Sekhar, Inspector of Andhra Pradesh Police submitted the written report at Police Station,
Sanchore at 02:05 AM on 28.10.2017.
It appears that statements of Bharat Kumar were recorded by one Khet Singh, Sub-Inspector, S.H.O., Police Station, Jhab, District Jalore in a
hospital at Deesa, Gujarat at 8:20 P.M. and after returning from Deesa, the said officer submitted the report before the S.H.O., Police Station,
Sanchore along with the statement of Bharat Kumar but before that, the S.H.O., Police Station, Sanchore was in receipt of written complaint by Mr
G.Raja Sekhar, Inspector of Andhra Pradesh Police.
Obviously, if the complaint by Mr G.Raja Sekhar, Inspector of Andhra Pradesh Police was submitted prior in time, an FIR on the basis of the said
complaint is also liable to be registered first. Otherwise also when the police are investigating into the allegations of both the FIRs simultaneously, the
investigating officer will certainly collect the evidence regarding the truthfulness of allegations levelled in both the FIRs.
So far as submission of learned counsel for the petitioner to the effect that the vehicle in which the police personnel of Andhra Pradesh were
travelling has no marks of gunshots and none of the said police officials has received injuries, I am of the opinion that from this fact itself, it cannot be
presumed that the story of opening fire by deceased Bhim Singh first and then firing by police personnel in self defence is improbable or false and no
finding can be given on the above facts at this stage. It is the duty of the investigating officer to reveal the truth by collecting evidence that which of
the version, out of both the FIRs, is correct. The investigation of the incident cannot be transferred to the Central Bureau of Investigation, simply
because a party suggests that the story in one of the complaint is improbable or unbelievable.
The Hon'ble Supreme Court in State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors. (supra)
has held that Supreme Court and High Courts have wide powers to issue directions to the CBI to investigate a cognizable offence in any of the States
without the consent of the said State but has also added a note of caution that the extra-ordinary power must be exercised sparingly, cautiously and in
exceptional situation. The relevant portion of the decision of the said case reads as under:
Before parting with the case, we deem it necessary to emphasis 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. In so far as the question of issuing a direction to the 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 extra-ordinary 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 international ramifications
or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the 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.
In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521, this Court had
said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a
conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully
concur with these observations.
Taking into consideration all the facts and circumstances of the case, I am of the opinion that in the present case, no exceptional circumstance exists,
which warrants transfer of investigation of the FIR Nos. 414/2017 and 415/2017 of Police Station, Sanchore, District Jalore to the Central Bureau of
Investigation. However, the investigating officer is directed to conduct investigation into the allegations levelled in both the FIRs fairly and
impartially and with utmost expedition by taking into consideration every aspect of the matter. It is also directed that investigating officer shall make
strict compliance of the procedure laid down by the Hon'ble Supreme Court in People's Union for Civil Liberties and Anr. vs. State of Maharashtra
and Ors. (supra). Needless to say that as provided in the said procedure, if the petitioner feels that independent, fair and impartial investigation is not
being carried out by the investigating officer, she can very well approach the Sessions Judge, Jalore with a complaint and if any such complaint is filed,
the Sessions Judge concerned shall consider the said complaint and pass appropriate orders, if the said complaint has any merit.
With the aforesaid observations, the instant petition is dismissed.