* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P. (Crl.) 870/2012
+ Date of Decision: 20th May, 2013
# ANIL MEHTA ..... Petitioner
Through: Ms. Kamini Jaiswal, Advocate
Mr. Dayan Krishnan, ASC with
Ms. Manvi Priya & Mr. Nikhil A. Menon,
Advs. with Inspector Anjay Tomar PS
* HON'BLE MR. JUSTICE P.K.BHASIN
The petitioner has filed this writ petition for the transfer of investigation into the death of his brother Mr. Rajeev Mehta, who was an advocate by profession and who died on 2nd December,2010 under mysterious circumstances, from the Crime Branch of Delhi Police, which had registered the FIR after direction to that effect was given to it by the
Additional Chief Metropolitan Magistrate('A.C.M.M.' in short) on 19th
November,2011 under Section 156(3) of the Code of Criminal
Procedure,1973 ('Cr.P.C.'in short) in Complaint Case No.63/1/11), to the
Central Bureau of Investigation(CBI).
2. The petitioner and his other family members were suspecting from day one that the deceased had been got murdered by his wife Mrs. Geeta Makkar, in connivance with some persons known to her but the local police within whose jurisdiction the death took place was least interested in registering a case of murder. The petitioner has been crying hoarse that his brother had been murdered and his murderers should be booked and punished. Having failed to get the case of murder registered by the local police the petitioner approached the Court of A.C.M.M. by filing a criminal complaint and the Court was also requested to direct the police to register an FIR and to investigate the matter.
3. On 30th August, 2011 the learned A.C.M.M. passed the following order:
Fresh Complaint received by way of assignment. Same be checked and registered.
Present: Complainant with counsel
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It is on record that complainant has filed a complaint in P.S. before filing the present complaint to know the status of the complaint filed in P.S Report be called from the concerned P.S. so that proper order pertaining section 210 Cr.P.C. or Section 156(3) Cr. P.C. can be passed.
Copy of complaint be supplied to the Naib Court concerned.
An application has also been moved on behalf of the complaint. By this application, the complaint has sought direction from this Court to the I.O. for preserving the call details of the mobile numbers which have been specified in the application from S.No. 1 to S.No. 14. No further direction is required in this behalf. In the interest of justice, IO is directed to preserve these calls details.
Put up for 13.09.2011.
(DEEPAK SHERAWAT) MM/SD/30.08.2011"
4. On 19th November, 2011 the following order was passed by the learned A.C.M.M.:
Present: Sh. B.R. Handa, Sr. Advocate along with Ms. Hiteshi Counsel for complainant.
Inspector Anjay Tomar, Anti-homicide Section, Crime Branch. Report filed regarding queries sought vide order dated 31.10.2011.
As per the report, it is admitted that as per complaint, allegations for commission of cognizable offence is made out.
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From the perusal of the records as well as the documents submitted by police officials PS Malviya Nagar, admittedly, the victim was found in unconscious state by a person who was not connected with him and is a by chance acquittance.
Instead of taking the person to the hospital, he took him to his house in Khirki Extension, Malviya Nagar. He talked to some persons against whom allegations are also there, that that persons along with other persons were in touch with each other and were around the vicinity of the spot of crime at relevant time and are conspirators of crime.
From the perusal of the postmortem of the victim Rajiv Mehta, there are several over-writings and cuttings. These also requires investigation.
As per law, police can only enter into investigation after registration of FIR and preliminary inquiry as stated in this status report filed today, is not found in any scheme of Cr. P.C.
In these circumstances, considering the fact that a person is found dead in suspicious circumstances, it requires collection of evidence which is beyond the preview of complainant and could only be gathered through investigation by police.
Accordingly, SHO PS Crime Branch is directed to investigate the matter after registration of FIR.
Copy of order be given dasti to Insp. Anjay Tomar, Anti-homicide Section, Crime Branch, for service on SHO PS Crime Branch for compliance of this order.
Copy of order be given dasti to complainant at request. Put up for report and consideration on 23.11.2011.
Sd/- Rakesh Pandit
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5. Pursuant to the said order of the A.C.M.M. FIR No.299/2011 under
Sections 302/201/120-B/34 IPC was registered by the Crime Branch of Delhi Police on the same day and the A.C.M.M. was informed about that on 23rd November, 2011 when the following order was passed by the Court:
Present: Ld. APP for the State
Sh. B.R. Handa, Sr. Advocate along with Ms. Hiteshi
Arora, counsel for the complainant
IO Insp. Anjay Tomar, Anti-Homicide Section CB
It is stated that FIR No. 299/11dated 19.11.2011, PS Crime
Branch is registered in this matter and the investigation is pending.
Copy supplied to counsel for complainant.
It is submitted by IO that he is writing to the concerned telecom operators for preservations of mobile call record and is in the process of getting the same.
Put up for further proceedings and consideration on
Sd/- Rakesh Pandit
6. Then on 3rd January, 2012 the A.C.M.M. passed the following order:
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Present: Ld. APP for the State
Sh. B.R. Handa, Sr. Advocate along with Ms. Hiteshi Arora, counsel along with complainant
IO Insp. Anjay Tomar is also present from
Written synopsis filed by the complainant along with application thereby seeking directions to the IO to preserve the call details.
It is submitted by IO that he has already preserved the call details from 01.11.2010 to 31.12.2010
Perusal of the record reveals that IO was directed to preserve the call details on 30.08.2011 before passing of one year but the same has not been complied with by the IO concerned. It is further submitted by IO that he has been investigating the matter since
In these circumstances, IO concerned who has investigated the matter at the initial stage is directed to appear in person.
IO concerned is further directed to preserve the call details of the persons concerned whose names and phone numbers as mentioned in the application.
Be put up on 27.02.2012. Copy of order be given dasti.
Sd/- (Mukesh Kumar)
7. After perusing the status report submitted by the investigating agency the A.C.M.M. passed the following order on 21st April, 2012:
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Present: Ld. APP for the State
Ms. Renu Sood, counsel for the complainant Inspector Anjay Tomar, IO of the case in person Status report filed by the IO.
It is submitted by the IO that he has already interrogated the matter to concerned doctor who made cuttings and over writings in PMR report and doctor has admitted that he had made cuttings and over writings. It is only a routine matter which is certified by HOD concerned that there was no manipulation in the PMR report by cuttings and over writings.
It is further submitted by the IO that he has already requested the Principal Secretary Health of GNCTD for constitution of medical board to take opinion regarding over writings and cuttings in the PMR report whether there is manipulation in PMR report or not.
Objections have been filed by the complainant regarding constitution of medical board. Counsel for the complainant prayed for stay to the constitution of medical board. Since, it is prerogative of the investigating agency in what manner he wants to investigate the matter, Court cannot interfere in the investigation until unless same foul play appear to have been committed by the IO.
In these circumstances, the constitution of the medical board cannot be stayed which is relevant to give the opinion regarding the manipulations, if any in the PMR report.
Now the case is adjourned for filing of further status report in this matter on 02.06.2012.
Copy of this order and status report be supplied to the complainant.
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Sd/- (Mukesh Kumar)
8. The petitioner felt aggrieved with the said decision of the learned A.C.M.M. and so he approached this Court with the present writ petition in which the following prayers were made:
"a) Issue appropriate writ order/orders directing the Respondent state to refer the investigation to an independent agency i.e. The CBI.
b) Immediately Stay the Reference & constitution of the Medical Board being set up for determining the cause of death (based on the manipulated Medical Records). The Reference & constitution of the Medical Board be stayed till complete and fair investigation into the various obvious & evident manipulations is first completed & finalised otherwise it would be a gross miscarriage of justice.
c) Order for the DNA tests on the "Blood Sample" with FSL and "Sections of the Heart kept in Paraffin Blocks" allegedly of the deceased kept with AIIMS to establish that the samples under observation really belong to the deceased from an Institute of National Repute outside Delhi and then seek for fresh observations and inferences on these Samples of Blood and Sections of the Heart from Pathology Lab. of National Repute (other than AIIMS and outside Delhi ,to be done under supervision of the Petitioner and at the cost of the Petitioner).
d) Without Prejudice, Order that the scope of reference to the medical board should be:
i. To decide on the manner of death, whether natural or unnatural.
ii. To opine and consider the allegations of fabrication and manipulations in the M.L.C/postmortem report/F.S.L report/ Viscera and histopathology report/Subsequent opinion of Autopsy Surgeon.
iii. To check whether the routine process was followed in sending/ receiving/ analysing/ reporting samples of
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F.S.L/Viscera and histopatholgoy / Subsequent opinion of Autopsy Surgeon in this case or not.
iv. To seek comments from the medical board on all the allegations made by the Medico forensic expert Doctors in their report dated 6-7-2011 and 13-10-2011 as regards medical matters are concerned.
v. To allow the complainant and his representatives to cross examine the members of the medical board so constituted.
vi. To allow the complainant and his representatives to represent before the medical board during the proceedings.
e) Order that The Medical Board should be from an Institute of
National repute, outside Delhi.
f) Order framing of charges for Fabrication & Destruction of evidence against the persons involved as mentioned in the Cr.Misc. application.
g) Order framing of charges against Jarnail Singh the S.H.O. P.S. Malviya Nagar N.D. for conspiracy to murder the deceased Sh. Rajeev Mehta as mentioned in the Cr.Misc. application.
h) Direct an independent agency to immediately seize the mentioned
Audio /Audio-Video instrument/recordings apparently in Possession of Jarnail Singh, S.H.O. P.S. Malviya Nagar, N.D. and from the present I.O. Anjay Tomar (not being brought on record by the Police Authorities) as mentioned in the Cr. Misc. application."
9. It was submitted by Ms. Kamini Jaiswal, learned counsel for the petitioner that though the investigation was ordered to be done by the learned A.C.M.M. to be carried out by the Crime Branch but no serious attempts were being made even by the Crime Branch people to bring to book the persons who had been named as the main suspects for the murder of the deceased including the wife of the deceased who in fact was the main suspect since she wanted to grab the properties left behind by the
deceased. It was submitted that the deceased married Geeta many years
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back but due to the rude behavior of the wife of the deceased their
marriage did not survive and was dissolved by a decree of divorce on 23rd January,2003. However, thereafter Ms. Geeta changed her mind to grab the properties of the deceased and persuaded him to re-marry her. The deceased re-married her in the year 2007 for the benefit of their child but the cruel attitude of his wife did not change at all and the deceased always expressed his apprehensions that he would be got killed by her as and when she would get an opportunity. It was contended that after re-marrying the deceased Ms. Geeta planned a conspiracy with some people to kill the deceased so that she could inherit his entire properties. The contention of the petitioner was that since the relations between the deceased and his wife were even prior to their second marriage with each other very much strained and criminal cases had also been going on between the two there was a strong motive on the part of the wife to kill him and to grab his properties. However, the police is not investigating the case in respect of the motive which was strong enough a circumstance at least to arrest her which in normal course the police would have done the moment all this was brought to its notice by the petitioner.
10. Learned counsel for the petitioner also submitted that even though the petitioner had expressed strong suspicion against some persons,
namely, K.J.Chaudhary, Anil Mittal and Ravinder Narain, all of whom are well
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known to the wife of the deceased, as her co-conspirators in the murder
and there was sufficient material with the police to show that they were in constant touch with each other on the date of the death of the deceased around the time of his death and that Anil Mittal had pre-planned his visit out of Delhi around that time as an alibi in case the police were to interrogate him also. The call details of another suspect Ravinder Narain also showed that he was also in Khirki area throughout the day of the incident and after the deceased had breathed his last Ravinder Narain and Anil Mittal were also in touch with each other that evening. Ms. Jaiswal submitted that it would be for these people to explain as to for what purpose they were in constant contact with each other on the day of the incident as also with the deceased and even before the day of the incident. Balram @ Raj was Both was also in constant touch with one Ravinder Narain on mobile phone when post mortem was being conducted at AIIMS Trauma Centre and call details of Balram @ Raj showed that around that time he was somewhere around AIIMS. Why? All that they would have divulged, Ms. Jaiswal had submitted, if they had been arrested but none of them had been arrested by the police which was also a strong reason for investigation to be ordered by the CBI and that investigation would show that Balraj @ Raj was the actual killer of the deceased while the wife of the deceased. Anil Mittal and Ravinder
Narain were her co-conspirators.
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11. Another strong circumstance about the involvement of Ravinder
Narain pointed out by Ms. Jaiswal and which was highlighted in the writ petition also was that when the sister of the deceased had called him up in the evening of the day of the incident at about 5 p.m. the phone was picked up by Ravinder Narain and he had informed her that her brother was dead and then Ravinder Narain had called up Balram @ Raj from the phone of the deceased at about 5.11 p.m. and thereafter only Ravinder Narain had called up the police from the phone of the deceased.
12. It was also argued that the person, who claimed his name to be Balraj as well Raj and who had allegedly found the deceased lying unconscious on the road in Khirki Extension area and who had also claimed to be knowing the deceased as well as Anil Mittal from before, had instead of rushing him to some hospital took him to his own house, which was in that area, on the asking of Anil Mehta whom he had informed on phone that the deceased was found by him lying unconscious on the road, and after he had died there had taken the dead body to the hospital where he was declared as brought dead. That person was also not arrested even though his conduct was highly suspicious. He was also in constant touch on mobile phones with the already named suspected persons as also with the deceased around the time of the death of the deceased and he had admitted to be knowing not only the
deceased but Anil Mittal also and it was on the asking of Anil Mittal that he
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had taken the deceased first to his house and from there to the hospital.
Learned counsel submitted that the version that the deceased was found lying unconscious on the road by Balram/Raj was a false and cooked up story and the fact is that Balram@Raj had asked the deceased to come to his flat in Khirki Extension where he was murdered. The said Balram/Raj was in touch with the deceased also on phone a couple of days before his death and that was established from the call details of the number of Baraj/Raj as well as of the deceased. In the morning of the incident the deceased had made calls to Anil Mehta as well as Balram/Raj from his mobile phone and later in the day he had received a call from Balram/Raj. All this, according to Ms. Jaiswal, was sufficient material to arrest these people but that was not done.
13. Learned counsel had also submitted that the involvement of the wife of the deceased was writ large since she did not even lodge any complaint with the police about the unnatural death of her husband which she would have done under normal circumstances. Her unnatural conduct was a strong indicator of her involvement.
14. It was also submitted that the concerned SHO Jarnail Singh and the doctors of AIIMS involved in the post mortem of the deceased were trying hard to make it a case of natural death by ignoring the observations made in
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the MLC to the effect that when the deceased was brought to AIIMS injuries
were noticed on his body caused with some blunt thing and that suggested clearly that the deceased was strangulated to death. It was also highlighted that at the time of post mortem no cause of death was given by the autopsy surgeon but orally it was conveyed to the petitioner that the deceased had died a natural death. At that time viscera etc. of the deceased were preserved for histopathological/chemical analysis but the same were sent to the Forensic Laboratory after many days during which period there was every possibility of replacement of the viscera etc. of the deceased with somebody else's so that the actual cause of death does not come to be known and the case could be closed as a case of natural death. The petitioner had requested the police to have the DNA test of the viscera/organs done at his cost but that was not done.
15. Another submission of the learned counsel was that in the attempt to pass off this case as a case of natural death even in the post-mortem report many cuttings and interpolations have been made by people who are conniving with the wife of the deceased and other suspects named above but till date the investigating agency had not made any effort to find out as
to why and who had done that.
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16. On the other hand, Mr. Dayan Krishnan, learned Additional Standing
Counsel for the State argued that the Crime Branch was doing its job impartially and fairly without any intentions of exonerating anyone, including the above-named suspects and particularly the wife of the deceased whose involvement in the death of the deceased was being seriously claimed by the petitioner , if found to be responsible for causing the death of the deceased and the apprehensions of the petitioner that the police is trying to save anybody by closing the case by showing the death of the deceased as natural death and not homicidal are totally baseless and he cannot cast unfounded aspersions upon the police force like that. It was submitted that in case the death of the deceased is found to be homicidal and any of the suspects named by the petitioner or if anyone else also is found responsible for the murder then he/she shall ne be spared at all.
17. I have given my due consideration to the rival submissions to decided whether the CBI should be asked to investigate the matter in view of the submissions made before me by Ms. Kamini Jaiswal, learned counsel for the petitioner.
18. It is significant to note that even though the A.C.M.M. had not directed the police to register FIR for the offence of murder the Crime Branch had registered the FIR for the offence of murder. That shows that
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the Crime Branch of the Delhi Police must have taken into consideration, not
just the allegation of the petitioner that his brother had been murdered but also the MLC, which according to the petitioner's case showed injuries on the body of his deceased brother, as also the other medical documents like the post-mortem report etc. without any cuttings etc. From these facts, it can also be safely inferred that the Crime Branch officials at least had found out that it was a case of murder but the local police did not even register any FIR which showed the lack of bona fides on the part of the policemen at the concerned police station. Since no FIR was registered by the local police the petitioner's grievance that the local police was really not interested to solve the murder mystery appears to be justified. And he was also justified in approaching the A.C.M.M.'s Court with a complaint and prayer for a direction to the police for the registration of the FIR and investigation into the matter as provided under Section 156(3) Cr.P.C. The learned A.C.M.M. took no time in accepting the grievances of the petitioner to be justified and ordering registration of FIR and investigation by the Crime Branch, which is a specialized branch of the Delhi Police and not by the local police station officials. The fact that investigation was straightaway ordered to be carried out by the Crime Branch also shows that the learned A.C.M.M. was of the
view that the local police was, for reasons best known to the SHO concerned
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only, not really interested in solving the mystery behind the death of the
19. The orders which the learned A.C.M.M. had passed after giving the direction for the registration of FIR and investigation by the Crime Branch and which orders I have already re-produced in the earlier part of this order clearly show that the learned A.C.M.M. was constantly monitoring the investigation also. Therefore, the petitioner should not be apprehensive that the police would succeed in closing the case as unsolved without actually it being established that this is a case of natural death. If actually this is a case of murder then there is no reason as to why the learned A.C.M.M., who is monitoring the investigation would allow the case to be closed like that. The petitioner should have waited for the final outcome of the investigation and the decision of the A.C.M.M. upon submission of the final report under Section 173 Cr. P.C. before rushing to this Court with this writ petition for transfer of investigation to the CBI.
20. There is no doubt that this Court can transfer the investigation to CBI and would have considered the grievances from that point of view if the police after registering the FIR on its own was investigating the matter. But in the present case the police had registered the FIR only after the A.C.M.M.
was approached by the petitioner who had found it a fit case for the
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registration of FIR and after directing the Crime Branch to register FIR had
also taken upon itself the duty of monitoring the investigation. In these circumstances, any interference by this Court would give a signal that this Court has doubts about the monitoring capabilities of the learned A.C.M.M. when there is nothing to suggest that the learned A.C.M.M. is not discharging his duty well.
21. This Court is of the view that in the facts and circumstances of the case where the Court of A.C.M.M. itself is monitoring the investigation, which it has the power to do in view of the judgment of the Apex Court in the case of "Sakiri Vasu Vs State of U.P. and Ors.", (2008) 2 Supreme Court Cases 409. That was also a case where an army officer had died and his father was complaining that his death was homicidal but the result of the two Courts of Enquiry which had conducted investigation had come to the conclusion that the death of the deceased was either accidental or suicidal. Not satisfied with that result of the investigation carried out by the Courts of Enquiry the relatives of the deceased army officer had filed a writ petition in the High Court for a direction for investigation of the case by the CBI but the High Court had rejected that prayer of the father of the deceased who then approached the Apex Court. The Apex Court after examining the legal
position in respect of the demands of the persons aggrieved by the unfair
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investigation into crimes of heinous nature upheld the decision of the High
Court in the facts of that case.
22. Relevant paragraphs of the judgment of the Supreme Court in Sakiri
Vasu's case are re-produced below:
"4. The son of the appellant was a Major in the Indian Army. His dead body was found on 23.8.2003 at Mathura Railway Station. The G.R.P, Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the death was due to an accident or suicide.
6. The appellant who is the father of Major Ravishankar alleged that in fact it was a case of murder and not suicide. He alleged that in the Mathura unit of the Army there was rampant corruption about which Major Ravishankar came to know and he made oral complaints about it to his superiors and also to his father. According to the appellant, it was for this reason that his son was murdered.
9. The petitioner (appellant herein) prayed in the writ petition that the matter be ordered to be investigated by the Central Bureau of Investigation (in short 'CBI').
10. It has been held by this Court in CBI and Anr. v. Rajesh Gandhi and Anr. 1997CriLJ63 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.
11. In this connection we would like to state that if a person has a grievance that………………… no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section
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156(3) is filed before the Magistrate……………………… The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
13………………… We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section
156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper
investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
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27. As we have already observed above, the Magistrate has very wide powers to direct 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
29. ………………………If the Magistrate on an application under Section
156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station,
he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same……………………………………….
32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry
33. …………………………..A CBI inquiry cannot be ordered as a matter of
routine or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide."(emphasis supplied).
23. In view of these views of the highest Court of the land and the fact the learned A.C.M.M. himself is monitoring the investigation the prayer made by the petitioner for transfer of the investigation into the death of his brother to the CBI cannot be accepted. This writ petition is, therefore dismissed.
However, it is made clear that if at all the investigation in not yet complete
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and the petitioner feels that the facts highlighted by him in this petition and
urged during the course of hearing of this petition by his counsel have not been investigated he shall be at liberty to place those very facts and circumstances before the learned A.C.M.M. who shall then pass appropriate orders/directions in the process of monitoring investigation in accordance with law. In case, the final report already stands filed to the effect that it is not a murder case, as was the apprehension of the petitioner, even then the petitioner would be at liberty to raise his aforesaid grievances before the A.C.M.M. and to place even a copy of the present petition before him if he still would feel aggrieved by any decision which the A.C.M.M. may take he would be at liberty to have recourse to his legal remedies at that stage.
MAY 20, 2013
P.K. BHASIN, J
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