WWW.LIVELAW.IN

SYNOPSIS The present Special Leave Petition is directed against the impugned final judgment and order dated 27.11.2017 passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh in CWP No. 24104 of 2017 whereby the Hon’ble High Court held that there was no ‘substance’ in the Petitioner’s plea to indicate that the investigation was tainted or shoddy. While stating that there appeared to be no deliberate attempt to derail the investigation in the abovementioned case and since it did not have any ‘national or international ramifications’, the Hon’ble Court further held that the case did merit an exercise of extra-ordinary power to entrust the investigation to Respondent No 4. The necessity of transferring the investigation to Respondent No 4 is imminent in the instant situation due to the poor investigation carried out by Respondents and the same shall be enunciated through the factual matrix elaborated hereunder: On 22.06.2017 Junaid deceased, his brother Hashim and their co-villagers Mosin s/o Rahmuddin and Moin had travelled to Delhi to make purchases for Eid celebrations. All of them boarded train at about 5:30 at Sadar Bazar station to return to their village. At that time, there was no rush in the compartment. They were comfortably playing some game (Ludo) on their mobile. When the train reached Okhla station sometime after 6:15 pm., several passengers boarded the train. One of these persons was a middle-aged person aged about 55 years. He was being addressed as ‘Panditji’ by others, presumably a daily passenger. He led a gang of persons who started misbehaving with Junaid and others asking them to vacate the seats. The middle-

WWW.LIVELAW.IN

aged person’s name was later revealed as Rameshwar Dass of village Khambhi led the charge. He and others pushed and manhandled Junaid and others. They addressed them as ‘Mullas’ and ‘Katlas’ further stating that the assailants shall feed them beef on that day. Rameshwar Dass @ Panditji called them Pakistani and traitors and told others in the compartment that these four persons were known criminals and terrorists. This led to several passengers surrounding these four persons. They were beaten and pushed away from their seats. The ritual caps of Hashim and Moin were removed from their heads in an insulting manner by the mischief mongers. They were led by one Naresh Kumar, son of Inder Singh, aged about 25-30 years who played the main role. On the instigation of Rameshwar Dass, Naresh Kumar was playing the main role. It is painful that no one from the majority community intervened. Things however, did not take a serious turn because one person whose name was later disclosed as Salman, had intervened. The four unfortunate victims desperately wanted to avoid the trouble. They were peace loving persons and wholly unarmed. Finding themselves vulnerable, Hashim and Mosin made a phone call to their brothers Shakir and Amir respectively, intimating about the emerging situation from the phone of Salman. The four victims had decided to alight at Faridabad, however, by that time the inflammatory utterance of Rameshwar Dass, Naresh Kumar and others made the atmosphere so charged that Junaid and others found themselves surrounded and could not board down. It is relevant to mention here that that Salman, who had lent a helping hand, boarded down at Old Faridabad station. The next station was New

WWW.LIVELAW.IN

Town, Faridabad. A group of passengers entered the compartment. Rameshwar Dass addressed one of them by name and they moved close to him. Rameshwar Dass loudly started making provocative speech against the Muslims in general. He told the passengers who entered from New Town, Faridabad that these four young Muslims passengers were known criminals and terrorists and some others proclaimed that Muslims were beef eaters, traitors and Pakistanis. He exhorted the passengers to treat the Mullas the way they deserve. Three of the persons who appeared to have boarded from New Town, Faridabad were Gourav, Pardeep and Chander Parkash. It later transpired that they were the co-villagers of Rameshwar Dass. They readily ganged up with him. These five persons namely Naresh, Rameshwar Dass, Gourav, Pardeep and Chander Parkash were actively helped by some others who were aroused by the hate speech, surrounded the helpless victims. Rameshwar Dass appealed to all passengers in the name of Hindu religion to make sure that they are not allowed to board down at Ballabgarh. He also declared that after Ballabgarh it was their area and they will make sure that these “Katlas” are despatched to Pakistan. At Ballabgarh a determined gang of persons blocked the path of Junaid and others making it impossible for them to board down. However, Moin succeeded in quietly sneaking away and got down in Ballabgarh. However, their telephonic message having been received in their village, three persons namely Shakir (brother of Junaid), Hashim, Mustakin son of Alisher, Mausin @ Chunna tried to board the train. Only the first two actually boarded the compartment.

WWW.LIVELAW.IN

Junaid, Hasim and Mosim s/o Rehmuddin remained continuously surrounded. A result of careful planning and a conspiracy that they were not allowed to board down at Ballabgarh to safety. The group was loudly shouting, led by Rameshwar Dass, that now was a golden chance to liquidate the Mullas. They were abused in the name of mother and sisters jeered at, manhandled, kicked and punched. The new entrants namely Shakir and Mustakin also suffered the same fate when they tried to intervene and pacify the wrong doers. One person Ramesh and Rameshwar Dass who was leading the charge from very beginning openly exhorted Naresh to kill the traitors. As a result of the above mentioned exhortion, Naresh opened an attack with a knife. Firstly, he attacked Shakir on his neck, chest and hand, then he gave many stab blows to Junaid, the deceased and thereafter he switched his attack towards Hashim who was caused two stab blows. During the attack, the three victims were caught hold by Gourav, Pardeep, Chander Parkash and Ramesh, amongst others and Rameshwar dass was exhorting to liquidate the Muslims. A case was registered on the statement attributed to Hashim which is purported to have been recorded on 23.06.2017 at 2:30 AM by Suratpal, ASI, GRP Ballabgarh. It is humbly submitted that the version contained in the said statement, which became the basis of the FIR has been consciously and carefully manipulated to camouflage the truth. It is the grievance of the Petitioner that the statement of all the witnesses namely Hashim (injured), Moin and Mosin s/o Rahmuddin (who travelled in the ill-fated train), Shakir (injured), Mustakin and Mosin @ Chunna, have been deliberately distorted to introduce ambiguity, discrepancies and contradictions

WWW.LIVELAW.IN

with the calculated interest of benefiting the accused. Moreover, one person, Yudhishter who was part of the mob that started the hate attack, has been cited as a witness by so drafting his statement so as to establish the defence of the accused. Similar concoction has been resorted to while recording the statement of another person Mohinder, asserting that he too was an eye witness. The crime perpetrated by the accused resulting in the death of Junaid and stab injuries to Hashim, Shakir as also beatings and humiliation to the other victims, was essentially motivated by deep rooted communal hatred against the community of the victims, the same was well planned and essentially incorporates the element of criminal conspiracy. It is humbly submitted that the investigating agency has carried out a seemingly casual and shoddy investigation. However, beneath the surface it becomes clear that the power and functions of investigation have been subverted in a calculated manner to achieve the following ends: a) The acts committed by various accused were individual in nature except for minor offences like wrongful restrain (section 341 IPC), simple hurt (section 323 IPC) and uttering, words, etc., with deliberate intent to wound the religious feelings of any person (Section 298 IPC). Sections with regard to major offences under Section 302 and 307 IPC have been attributed to only accused Naresh Kumar. b) The true nature of the crime has been subjected to cover up. The conduct of the named accused and others as a lynching mob has been concealed. It has been projected as if the occurrence /events were sudden without any element of

WWW.LIVELAW.IN

perpetrators having been acted as in conspiracy or as an unlawful assembly. c) That the following major crimes were simply excluded from investigation:i) Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony). ii) Section 505 (Statements conducing to public mischief): It is patently clear from reading of the challan papers that the two above mentioned offences and conspiracy to commit the said and the other offences were unerringly disclosed even by the

motivated

investigation.

The

Investigating

Agency

deliberately acted with undue haste because the crime had attracted huge nationwide outcry. The investigation was so managed as to minimize the damage to the marauders and to ensure that most of them are released on bail and face no serious trial at all. d) That the investigation was so manipulated as to give it the shape of a conflict or clash rather than a sinister one-sided hate attack on helpless victims. To achieve this nefarious objective, false witnesses were introduced, statements of real witnesses were arbitrarily recorded without actually eliciting information from them and material evidence been not taken into record.

WWW.LIVELAW.IN

e) That close association of assailants with each other as daily passengers; or as villagers or otherwise was strictly held back so as to cover up the involvement of an unlawful assembly and to ensure that the element of conspiracy behind the crime does not come to the surface. f) That the first statement of Hashim forming the basis of FIR was not correctly recorded. The same was subjected to heavy and arbitrary editing. He was made to sign truncated version while he was in state of shock and still under fear. The statement of other true eye witnesses have been recorded without comprehensively interacting with them and in their absence, the same were never read over to them. g) That unfair nature of investigation became palpably clear from the reading of the alleged confessional statement of the accused. In order to justify itself, the Investigating Agency has clearly brought out most of the relevant material through disclosure statements of the accused instead of incorporating the same in the statement of witnesses. The obvious design behind the same is inadmissibility of the contents of incriminating disclosure statement made by him before the police. h) There was an attempt to create a confusion about the role of main accused. First, one Ramesh was assigned this role through a disclosure statement. Later he was allowed to resile. It appears that this exercise was undertaken to pacify the public outcry while at the same time screening the real offender.

Even the first disclosure of Ramesh which is

WWW.LIVELAW.IN

mentioned in the report under section 173 Cr. P.C., had not been placed on record and was later obtained after moving an application before the trial court. Even when the fatal attack is attributed to Naresh, an attempt has been made to dilute the offences by subsequently introducing that he was using a kitchen knife. i) That incriminating material provided by the witnesses was not brought on record. It is not in the interest of effective investigation to give details in this regard. j) That maximum artistry and manipulation was made to weaken the statements of witnesses on the point of identity of various accused; on their real role and their having acted in a concert. k) That even though it is patently clear from the reading of the contents of report under section 173 Cr. P.C that the main accused provoked and aroused even innocent passengers against the helpless victims, a determined effort has been made to withhold the actual words exhibiting extreme communal hatred as far as possible. l) That direct though some belated result of the sabotage of investigation was a motivated probe, is a mock trial which is likely to end in smoke. All the abovementioned issues were agitated in detail before the Hon’ble High Court. However, by not considering these crucial aspects and holding that there was no cogent reason to suggest that a shoddy investigation was conducted, the Hon’ble Court has gravely prejudiced

WWW.LIVELAW.IN

the rights of the Petitioner. Not only are his rights to a fair trial in jeopardy if the trial is allowed to proceed based on a biased investigation, but there also exists a serious threat to the life and liberty of the Petitioner and his family members, due to prejudice against the community. LIST OF DATES 22.6.2017

Petitioner’s sons Junaid Ali Khan (now deceased) and Hashim along with two other people from his village, Mosin and Moin boarded the train at 5.30 pm from Sadar Bazar station, Delhi to return to their village of Ballabgarh. These people were visiting Sadar Bazar to make purchases for the festival of Eid. However, due to an unfortunate turn of events, they became victims of a group of religiously motivated individuals. Enroute Ballabgarh and sometime after 6.15 pm, one middle-aged person

named Rameshwar

Das (from

Khambhi village) and addressed as ‘Panditji’ by copassengers, boarded the train. This man was heading a gang of people who began to misbehave with the deceased Junaid and the others accompanying Junaid; forcing them to vacate their seats. The misbehaviour included pushing them, addressing them as ‘Mullas’, ‘Katlas’, traitors and terrorists and removing their skull caps in an offensive manner. This incendiary behaviour resulted in other passengers surrounding Junaid & his group, and the passengers were led by one Naresh Kumar, s/o Inder Singh who was

WWW.LIVELAW.IN

instigated by Rameshwar Dass. Sensing danger and fearing for their safety, when the victims who were unarmed, decided to get down from the train at Faridabad, their passage was prevented by all the other passengers.

Soon enough, Rameshwar Dass began

making provocative speech about Muslims in general and he told the passengers who entered from New Town, Faridabad that these four young Muslims passengers were known criminals and terrorists and some others proclaimed that Muslims were a community of beef eaters, traitors and Pakistanis. Rameshwar Dass further exhorted the crowd to treat the ‘Mullas’ in a manner that they deserve. But things did not take a serious turn because one person whose name was later disclosed as Salman had intervened. Eventually, Salman, who had lent a helping hand, boarded down at Old Faridabad station. The next station was New Town, Faridabad. It is pertinent to note here that three people who boarded the train from New Town, Faridabad namely Gourav, Pardeep and Chander Parkash belonged to the village of Rameshwar Dass and readily ganged up with him. Resultantly, Naresh, Rameshwar Dass, Gourav, Pardeep and Chander Parkash surrounded the hapless victims and were actively supported in this act by people in the train who were aroused by the hate speech. Not only this, Rameshwar Dass, even appealed to all passengers in the name of Hindu religion to ensure that these victims are

WWW.LIVELAW.IN

not allowed to leave the train at Ballabgarh since the area after Ballabgarh was ‘theirs’ and they would ensure that “Katlas” be despatched to Pakistan. Amidst this religiously fuelled atmosphere, when Junaid and his associates attempted to get down from the train at Ballabgarh, a determined gang of individuals blocked their path; thereby making it impossible for them to leave the train. However, Moin succeeded in escaping the clutches of this group and got down at Ballabgarh. Meanwhile, a telephonic message had also been conveyed by Junaid and others to people of their village which resulted in three persons Shakir (brother of Junaid), Hashim, Mustakin (son of Alisher), Mausin @ Chunna trying to board the train; although only Shakir and Hashim could board the compartment. Junaid, Hashim and Mosim (s/o Rehmuddin) remained surrounded and were being continuously heckled by the group led by Rameshwar Dass who was now screaming that ‘this was the golden chance to liquidate the Mullas’. Abuses in the name of mothers and sisters were hurled at Junaid and his associates who were jeered, manhandled and subject to kicks and punches from the angry crowd. By now, Rameshwar Dass and another person named Ramesh blatantly exhorted Naresh to ‘kill the traitors’, who notoriously obliged and brandished his knife. First, Naresh attacked Shakir on his neck, chest and hand before inflicting fatal stab blows on Junaid and later

WWW.LIVELAW.IN

turning his attention towards Hashim, who suffered two stabs. During the attack, the three victims were encircled by Gourav,

Pardeep,

Chander

Parkash

and

Ramesh,

amongst others and Rameshwar Dass continued to encourage to ‘liquidate the Muslims.’ While Naresh was the sole assailant who attacked the victims, the group of passengers surrounding them ensured that none of them escaped and would be spared of the senseless attack. When the train finally came to a halt at Asaoti station, Naresh got down from the train and escaped. The injured victims were rushed to the hospital where Junaid, due to his brutal injuries, was declared dead upon arrival by the doctors at Civil Hospital, Palwal. 23.6.2017

FIR No. 90 was registered in Faridabad on the complaint of Hashim (Junaid’s brother and one of the victims who suffered injuries). Investigation by the authorities ensued upon registration of this FIR. The FIR specifically noted Hashim’s statement that if called upon, he would be able to identify the person who attacked him and Junaid and the people who formed a part of the group that engulfed them in the train. A true typed and translated copy of FIR No. 90 dated 23.6.2017 registered by the Police Station in Faridabad is annexed herewith and marked as ANNEXURE P-1 [Pgs 66 to 71].

23.6.2017

A search was conducted for the accused persons and Mosim was taken along for the said purpose. Accused

WWW.LIVELAW.IN

Ramesh s/o Sri Chand was apprehended and arrested on the same day after being pointed out by witness Mosim. Ramesh also recorded a disclosure statement on this day and based on this statement, the blood-stained shirt of Ramesh which he wore during the day of the incident, was recovered from his house. This shirt, whose side pocket was torn, was taken into possession by the Investigating Agency. Significantly, the crucial disclosure statement of Ramesh which led to the discovery of the blood-soaked shirt that would prove vital to the trial, was withheld by the Investigating Agency. The said statement was not even made a part of the report filed under Section 173 CrPC and the Petitioner had to move an application before the Ld. Trial Court, urging the prosecuting agency to place it on record. 23.6.2017

Statement of Mustakin was recorded by the investigating agency. A true typed copy of the statement made by Mustakin dated 23.6.2017 given before P.S. GRP Faridabad

is

annexed

herewith

and

marked

as

ANNEXURE P-2 [Pgs 72 to 74]. 27.6.2017

Statement of Mahender was recorded by the investigating agency. A true typed copy of the statement made by Mahender dated 27.6.2017 given before P.S. GRP Faridabad

is

annexed

herewith

ANNEXURE P-3 [Pgs 75 to 76] .

and

marked

as

WWW.LIVELAW.IN

27.6.2017

Possibly under influence from various quarters, the Investigating

Agency

recorded

a

fresh

disclosure

statement of Ramesh wherein he disowned his previous statement and made a new disclosure. The agency also recorded statements of two alleged eye witnesses of the Hindu community namely Yudhister and Mohinder, who took the names of Rameswar, Pardeep, Gourav and Chander Parkash. The fresh statement of Ramesh painted an entirely different picture of the events from his first statement. He stated that Junaid and his associates were the aggressors and that he only made the statement about knife injuries to mislead the Agency. A true typed copy of the supplementary disclosure statement of Ramesh dated 27.6.2017 made before P.S. GRP, Faridabad is annexed herewith and marked as ANNEXURE P-4 [Pgs 77 to 79]. Even

Yudhister’s

statement

was

nothing

but

an

embellished version of Ramesh’s second disclosure statement and revealed improvements made according to the second disclosure treatment of Ramesh. Yudhister stated that when he boarded the train from Okhla and after seeing 4-5 Muslim boys occupying a seat, he told them to move aside and he was joined by Rameshwar (from his village) who spoke to the boys rudely and told them to move from their seats while hurling religious abuses at them. According to Yudhister, this exchange

WWW.LIVELAW.IN

angered the boys who responded as to why were Rameshwar

and

Yudhister

addressing

them

in

a

derogatory manner. Seeing the boys retort, Rameshwar was enraged and slapped one of the boys, thereby resulting in a dispute which saw other passengers also threatening the Muslim boys. In his statement, Yudhister also stated that the Muslim boys got off the train at Tughlakabad and when the train reached New Town station, Gourav, Chander Parkash and Pardeep boarded the train. Rameshwar narrated the scuffle with the boys to all four of these new passengers and when the train reached Ballabgarh, several Muslim boys who were travelling in the train since the first stop, came to this coach [where Rameshwar had slapped one of the four boys] and began searching for the assailants. During this time Gourav, Pardeep and Chander Parkash intervened, leading to an aggravation of the dispute. Since the train had started moving, some of the Muslim boys could not get down. The beatings/assault on the Muslim boys continued for four-five minutes and subsequently, Yudhister came to know that someone had attacked the Muslim boys with a knife. 28.6.2017

Statement of Shakir was recorded by the investigating agency. A true copy along with typed copy of the statement made by Shakir dated 28.6.2017 given before P.S. GRP Faridabad is annexed herewith and marked as ANNEXURE P-5 [Pgs 80 to 85] .

WWW.LIVELAW.IN

29.6.2017

Pursuant to the statement of Yudhister, Rameshwar, Chander Parkash, Gourav and Pardeep were arrested and they recorded first disclosure statements. A conjoint reading of all these statements painted a picture where the fight was picked up initially by Rameshwar who later instigated Gourav, Chander Parkash and Pardeep. At Ballabgarh, around 4-5 Muslim boys began looking for Rameshwar which led to a fight and resulted in passengers beating up the Muslim boys, not allowing them to get off the train and hurling of religious abuses. While one of the Muslim boys did manage

to

get down

at

Ballabgarh,

others were

intercepted and beaten up black and blue. After Rameshwar’s exhortation, stab wounds were inflicted on one of the boys. A perusal of the statements made on 29.06.2017, reveal certain vital facts. Firstly, the fight was picked up by Rameshwar, who instigated other passengers. Secondly, the boys who had come to receive the complainant party at Ballabgarh station were also not allowed to alight from the train by the accused persons with a common intention of causing injuries to them and thirdly, the stab wounds were dealt due to the exhortations made by Rameshwar. Pursuant to these disclosure statements, recovery of blood stained clothes was also effected. A true typed copy of disclosure statement made by Rameshwar dated 29.6.2017 before P.S. GRP, Faridabad

WWW.LIVELAW.IN

is annexed herewith and marked as ANNEXURE P-6 [Pgs 86 to 88]. A true typed copy of disclosure statement made by Chander Parkash dated 29.6.2017 before P.S. GRP, Faridabad

is

annexed

herewith

and

marked

as

ANNEXURE P-7 [Pgs 89 to 90]. 30.6.2017

Supplementary disclosure statements of Rameshwar, Gourav and Chander Parkash were recorded. This exercise was undertaken to dilute the earlier statements made by them as the narration of events now veered towards not allowing the Muslim boys to get off the train. These statements further reflected the improvements made by co-accused Ramesh in his second disclosure statement that portrayed Junaid and his group as the aggressors, who infuriated the passengers and forced them to retaliate by attacking the victims with knives. A true typed copy of supplementary disclosure statement made by Rameshwar dated 30.6.2017 before P.S. GRP, Faridabad

is

annexed

herewith

and

marked

as

ANNEXURE P-8 [Pgs 91 to 93]. 1.7.2017

Investigating Agency filed an application seeking judicial remand of the accused Chander Parkash for a period of 14 days.

2.7.2017

Statement of Salman was recorded by the Investigating Agency. A true typed copy of the statement made by Salman dated 2.7.2017 given before P.S. GRP Faridabad

WWW.LIVELAW.IN

is annexed herewith and marked as ANNEXURE P-9 [Pgs 94 to 95]. 8.7.2017

Chief assailant Naresh, who was responsible for inflicting the fatal blows on Junaid and stab wounds on his brother Hashim, was arrested by the Investigating Agency. This arrest was facilitated by the statement made by two witnesses

i.e.

Rahulpal

and

Javed

Khan.

These

witnesses, while disclosing the the place where he was dropped, further stated that they had given lift to a person named Naresh on 22.6.2017, who had a head injury, was wearing blood stained clothes and was talking of a fight on the train. The first disclosure statement of Naresh was also recorded on the same day of his arrest. In fact, there were a series of disclosure statements of Naresh Kumar that were recorded by the Investigating Agency in the ensuing days. In his first disclosure statement given on 8.7.2017, Naresh stated that he was travelling in the train along with 3-4 Muslim boys. Subsequently, an aged person boarded the train and asked the boys to vacate their seats to which one of the boys did not acquiesce. This refusal angered the old man and he slapped the boy, twice, after addressing them as ‘Mullay’. This act angered the Muslim boys as well as Naresh who joined the old man and twothree fellow passengers and began commenting on their religion before beating the group of boys, severely.

WWW.LIVELAW.IN

Naresh further stated that the Muslim boys got down at Tughlakabad and went to a different coach. But when the train stopped at Ballabgarh, this group of boys was accompanied by other Muslim boys who began asking around as to who had fought with them. After identifying the old man, the group of Muslim boys began to slap him and hand out fist blows. Naresh claimed to be hiding after witnessing all this but when one of the Muslim boys identified him and began to attack him, he was forced to take out his knife from his bag and attack them. A true typed copy of the disclosure statement made by Naresh Kumar dated 8.7.2017 before P.S GRP, Faridabad is annexed herewith and marked as ANNEXURE P-10 [Pgs 96 to 98]. 9.7.2017

Second disclosure statement of Naresh Kumar was recorded, based on which the knife, his pithoo bag, shoes and shocks were recovered. A true typed copy of the disclosure statement made by Naresh Kumar dated 9.7.2017 before P.S GRP, Faridabad is annexed herewith and marked as ANNEXURE P-11 [Pg 99].

10.7.2017

Third disclosure statement of Naresh Kumar was recorded wherein he made further improvements to his earlier statement and stated that the said act of stabbing done in self-defence. This statement also introduced details about the injury sustained by the accused.

WWW.LIVELAW.IN

A true typed copy of the disclosure statement made by Naresh

Kumar

Faridabad

is

dated annexed

10.7.2017 herewith

before and

P.S

GRP,

marked

as

ANNEXURE P-12 [Pgs 100 to 102]. 12.7.2017

Fourth disclosure statement of Naresh Kumar was recorded wherein he mentioned that he burnt his bloodstained t-shirt and he demarcated the said place of burning. A true typed copy of the disclosure statement made by Naresh

Kumar

Faridabad

is

dated annexed

12.7.2017 herewith

before and

P.S

GRP,

marked

as

ANNEXURE P-13 [Pgs 103 to 104]. 15.7.2017

Fifth

disclosure

statement

of

Naresh

Kumar

was

recorded. A true typed copy of the disclosure statement made by Naresh

Kumar

Faridabad

is

dated annexed

15.7.2017 herewith

before and

P.S

GRP,

marked

as

ANNEXURE P-14 [Pgs 105 to 108]. 24.7.2017

Bail application was filed by accused Chander Parkash before the Ld. Additional Sessions Judge, Faridabad. A true typed copy of the bail application No. 331/2017 dated 24.7.2017 filed before the Ld. Additional Sessions Judge, Faridabad is annexed herewith and marked as ANNEXURE P-15 [Pg 109 to 114].

27.7.2017

Reply to Bail Application No 331/2017 was filed by the Investigating Agency. A perusal of the reply filed by the investigating agency indicated collusion between the

WWW.LIVELAW.IN

accused and the agency since the sections regarding common intention and common object were suspiciously deleted, leaving only bailable sections against him. On the same day, accused Chander Parkash was granted bail by the Ld. Additional Sessions Judge, Faridabad. A true copy of the order granting bail to Chander Parkash dated 27.7.2017 by the Ld. Additional Sessions Judge, Faridabad

is

annexed

herewith

and

marked

as

ANNEXURE P-16 [Pg 115 to 121]. 28.7.2017

Accused Gourav filed regular bail application.

31.7.2017

Accused Pardeep also filed bail application.

2.8.2017

The prosecution filed a reply to the bail application of Gourav and Pradeep. The Ld. Trial Court granted bail on the same day to both Gourav and Pradeep.

19.8.2017

Final report under Section 173 Cr. P.C. was filed before the Ld. Trial Court. The Investigating Agency dishonestly and deliberately did not record the correct version in the statement of witnesses recorded u/s 161 Cr. P.C. Particularly, the dilution and manipulation of statements made by Mustakin, Mahender, Shakir and Salman under Section 161 Cr. P.C. and forming part of the report u/s 173 Cr. P.C., are of material significance. A true typed copy of the charge-sheet dated 19.8.2017 presented before the Ld. Additional Sessions Judge, Faridabad is annexed herewith and marked as ANNEXURE P-17 [Pg 122 to 151].

WWW.LIVELAW.IN

6.10.2017

Accused Rameshwar Dass filed an application seeking regular bail before the Hon’ble High Court of Punjab & Haryana at Chandigarh and the same was dismissed. A true copy of the order dated 6.10.2017 in Crl. Misc No. M-37007 of 2017 (O&M) passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh is herewith and marked as ANNEXURE P-18 [Pg 152 to 153].

11.10.2017

Pursuant to the aforesaid direction by this Hon’ble Court the Ld. Trial court framed charges against the accused. A true copy along with typed copy of the order dated 11.10.2017 passed by the Ld. Additional Sessions Judge, Faridabad

is

annexed

herewith

and

marked

as

ANNEXURE P-19 [Pg 154 to 185]. 16.10.2017

A news report published in Hindustan dated 16.10.2017 reveals the sad state of affairs. It is obvious that an atmosphere of fear and insecurity is being created with the tacit approval of the state functionaries who are duty bound to ensure effective security for the victims and the witnesses.

21.10.2017

Aggrieved by the shoddy and tainted investigative methods adopted by the investigating agency which could cost the trial, the Petitioner herein filed CWP 24104 of 2017 before the Hon’ble High Court of Punjab & Haryana at Chandigarh.

30.10.2017

A shocking news report emerged in the Chandigarh edition of the national daily, Indian Express, on how a senior law officer of the state was actively involved in

WWW.LIVELAW.IN

helping the accused who murdered the son of the Petitioner. This appalling allegation was made by none other than the Ld. ASJ YS Rathor, who was presiding over the trial in the Ld. Trial Court. 2.11.2017

During the hearing of CWP 24104 of 2017, the Additional Advocate General (Sh. Deepak Sabharwal) appeared for the Respondents herein and made various reprehensible allegations against the Petitioner and his family. Some of these allegations were directed at the motive of the Petitioner in fighting his son’s case and how he wanted to compromise the matter in exchange for an amount of Rs. 2 crores and 3 acres of land. The Ld. AAG stated that these inputs were given to him by the DSP.

4.11.2017

Another news report published in the Indian Express stated that the Petitioner and his family had expressly refused to enter into any out-of-court settlement with the accused.

4.11.2017

Petitioner rendered an affidavit in CWP 24014 of 2017 before the Hon’ble High Court and vehemently denied all such allegations made by the Ld. AAG regarding the Petitioner’s intention to settle the case. The Petitioner further denied his involvement or participation in any Panchayat, with the intention to effect a settlement over the death of his son.

5.11.2017

Sh. Mohinder Singh, DSP, whose name was mentioned by the Ld. AAG before the Hon’ble Court on 2.11.2017, submitted his reply to the Petitioner’s affidavit of

WWW.LIVELAW.IN

November 4, 2017. In his reply, the DSP assailed the maintainability of the writ petition, termed the allegations of ‘shoddy investigation’ as false and merely a tactic devised by the Petitioner to delay the trial proceedings. 8.11.2017

An additional affidavit was submitted by DSP Mohinder Singh in CWP 24104 of 2017.

27.11.2017

Hon’ble High Court erroneously dismissed CWP 24104 of 2017 and held that there was no ‘substance’ in the Petitioner’s plea to hold that the investigation was tainted or shoddy. While stating that there appeared to be no deliberate attempt to derail the investigation in the abovementioned case and since it did not have any ‘national or international ramifications’, the Hon’ble Court further held that the case did merit an exercise of extra-ordinary power to entrust the investigation to CBI.

8.3.2018

Hence the present SLP.

WWW.LIVELAW.IN

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION [Under order XXII Rule 2 (1)(a)] (Under Article 136 of the Constitution of India) Special Leave Petition (Criminal) No.

of 2018

(Against the final judgment and order dated 27.11.2017 passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh in CWP No. 24104 of 2017)

IN THE MATTER OF: Position of the parties HIGH COURT

THIS COURT

Jalalludin s/o Azam Khan R/o Khandwali Police Station Sadar,

Petitioner

Petitioner

District Faridabad, Haryana.

VERSUS HIGH COURT

THIS COURT

1. State of Haryana Through the Secretary Department of Home Affairs and Justice,

Respondent No. 1 Respondent No. 1

Haryana Civil Secretariat, Chandigarh- 160001 2. Director General of Police Haryana Police Headquarter

Respondent No.2

Respondent No.2

Respondent

Respondent

Sector-6, Panchkula Haryana-134108 3. Station House Officer GRP, Faridabad

,

WWW.LIVELAW.IN

No. 3

No. 3

4. Central Bureau of Investigation, 30B, Sector 30, Chandigarh- 160030

Respondent No. 4 Respondent No. 4

5. Union of India Through the Secretary, Ministry of Home Affairs, North Block, Central Secretariat New Delhi- 110001

Respondent No. 5 Respondent No. 5

[ALL RESPONDENTS ARE CONTESTING RESPONDENTS]

To THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED MOST RESPECTFULLY SHOWETH: 1. The present Special Leave Petition is preferred under Article 136 of the Constitution of India against the impugned final judgment and order dated 27.11.2017 passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh in CWP No. 24104 of 2017. The Hon’ble High Court, while dismissing CWP No. 24104 of 2017, held that there was no ‘substance’ in the Petitioner’s plea to indicate that the investigation was tainted or shoddy. 1A. It is pertinent to mention here that aggrieved by the impugned order, Petitioner preferred LPA No. 2296/2017 (O&M) before the Hon’ble High Court of Punjab & Haryana at Chandigarh.

WWW.LIVELAW.IN

However, the said petition was dismissed solely for want of jurisdiction in terms of the law laid down by this Hon’ble Court in Ram Kishan Fauji Vs State of Haryana & Ors (2017) 5 SCC 533, regarding exercise of extra-ordinary jurisdiction under Article 226 in a criminal writ petition. The Hon’ble Court did not adjudicate upon the merits of the case and further granted interim stay of the trial proceedings for a period of two weeks, thereby granting liberty to the Petitioner in order to avail an appropriate remedy in the present circumstances. It is also pertinent to mention here that the impugned writ petition was registered as a Civil Writ Petition before the Hon’ble High Court in terms of Rule 4, Chapter 4-F, Volume V of the Punjab & Haryana High Court Rules. 2. QUESTIONS OF LAW: The following independent substantial questions of law of general importance arise for consideration by this Hon’ble Court in the present Special Leave Petition: A) Whether the Hon’ble High Court ought to have taken a strict view towards the lapses on the part of functionaries of Respondent No 1 in conforming to the highest standards of objectivity, competence and probity in the manner of discharge of their statutory functions of investigation? B) Whether the Hon’ble High Court failed to consider that the larger public interest would be better served if the investigation of the case shall be carried out by an independent agency such as Respondent No 4 i.e. Central

WWW.LIVELAW.IN

Bureau of Investigation to instil the confidence in the people in general and the aggrieved section in particular?

C) Whether the Hon’ble High Court should have considered the well-founded grouse and grievance of the Petitioner that investigation conducted by Respondent No 2 and 3 was neither professional nor comprehensive and fair? D) Whether

the

Hon’ble

High

Court

ought

to

have

acknowledged the nation-wide ramifications of the said case, as a cogent reason to direct the transfer of investigation to Respondent No 4? 3. DECLARATION IN TERMS OF ORDER XXII RULE 2 (2) The Petitioner states that no other petition seeking Special Leave to Appeal has been filed by him against the impugned final judgment and order dated 27.11.2017 passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh in CWP No. 24104 of 2017. 4. DECLARATION IN TERMS OF RULE 4 The Annexure P-1 to P-19 produced along with the Special Leave Petition are true copies/true typed copies of the pleadings/documents, which formed part of the records of the case in the Court below against whose order the leave to appeal is sought for in this petition. 5. GROUNDS Special Leave to Appeal is sought for in the present petition on the following amongst other grounds: (A) Because the Hon’ble High Court erred in considering that the present circumstances project a clear case of deliberate distortion of true facts during investigation and further

WWW.LIVELAW.IN

provides a clear illustration of the subversion of the investigating functioning of various persons engaged in the task of investigation. The true facts and the correct version have

been

derailed

by

introducing

the

calculated

distortions, discrepancies and contradictions. (B) The approach of the Hon’ble Single Bench is vitiated as the entire discussion in the judgment deals with the issues involved from the perspective of adversary’s proceedings. The Hon’ble Single Bench has lost sight of material facts that four young persons, who travelled from Sadar Bazar, Delhi to Ballabgarh or beyond, were aged 16 years (Junaid Khan, deceased), 17 years (Moin), 18 years (Mosim) and 20 years old (Hashim). None of them was armed while they were subjected to constant bullying, harassment, beating as well as worst humiliation on the ground of religion by way of hate abuse. None of them used a single intemperate or harsh world in retort nor said a word against the religion of the accused. It is obviously disturbing that these unique features of the case which are not disputed at all, did not enter the judicial adjudication of the Hon’ble High Court while rendering its decision. (C) Because the Hon’ble High Court has referred to the specific nature of the transaction where an atmosphere of communal hatred was kept constantly surcharged in a train journey covering more than 40 minutes. Two persons Rameshwar and Naresh (now facing trial) had initially generated the atmosphere of hate but the same was kept at a

high

temperature

throughout

with

the

leading

WWW.LIVELAW.IN

participation of Rameshwar, who was actively assisted by a willing participation of his three co-villagers, namely, Pardeep, Chander Parkash and Gaurav (facing trial) who joined midway from New Town, Faridabad. The Hon’ble Single Judge despite vehement submissions on behalf of the Petitioner, refused to look at the total picture, resulting in an erroneous emphasis on insignificant aspects and routine issues, whereas the larger requirement of fair investigation ensuring a fair trial has been lost sight of. (D) Because the Hon’ble High Court did not appreciate certain procedural lapses that were highlighted by the Petitioner during his submissions. One such crucial issue was of the call records and ownership of cell phones which constitute cogent legal evidence. The Investigating Agency did not obtain any certificate under 65B of the Indian Evidence Act and hence the entire evidence was rendered inadmissible. (E) Another vital issue that went unappreciated by the Hon’ble Court was of the inherent flaws present in the Final Report u/s 173 of Cr. P.C. The said report is writ large with inconsistencies. Insofar as statements of the accused were concerned, some have made more than one disclosure, whereas one accused Naresh has allegedly made as many as five disclosure statements. These disclosure statements were on the face of it confessional in nature and directly fell in the category of confessional statements made before the police. Hence, the same are inadmissible. However, these statements have been included in the challan, against the express prohibition of law, with the ulterior motive of

WWW.LIVELAW.IN

showing

that

investigated

the

the

Investigating matter.

Agency

Ironically,

had

most

of

fairly the

incriminating circumstances against the accused are incorporated in these confessional statements. In this manner, bona-fide investigation was derailed and the incriminating evidence which was brought in the final report is inadmissible. The Petitioner, despite vociferously agitating these issues, went unheard by the Hon’ble Court, which only noticed the existence of such statements in the case of one accused Naresh, but largely did not explore similar statements made by other accused. (F) Because the Hon’ble High Court failed to return findings on various crucial aspects; one such aspect being the signatures of witnesses on their statements. It is humbly submitted that acting in blatant violation of law, the investigating agency made some witnesses sign statements which is simply indicative of incompetent investigation. For instance, the statement purported to be made by one Shakir annexed herewith and dated 28.06.2017, was not only signed by him at two places, but also signed allegedly by his grandfather as well as by his sister’s husband. Glaring errors of such kind, employed by the investigating agency not only indicate gross incompetence but also smack of bias against the victims. (G) Because the Hon’ble High Court ought to have exercised a higher degree of empathy while adverting to the averments of the Petitioner. It is humbly submitted that the Petitioner and other victims were weak and marginalized persons from

WWW.LIVELAW.IN

a targeted section of the society. Repeatedly, it has come to light through various reports that the accused persons were hell-bent on ensuring that the real witnesses do not venture to depose against them in the court. The Petitioner has been constantly approached by numerous self-styled Panchayats from his village to amicably settle the matter. Such exhortations are purposefully intended to interfere with the administration of justice. The Petitioner brought this to the notice of the Hon’ble Court and even one of the prayers in the writ petition was for providing adequate security to the Petitioner and his family. (H) To add insult to injury, during the course of arguments before the Hon’ble High Court, the Ld. State Counsel went to the extent of defaming the Petitioner and submitted that, as per his instructions, the Petitioner was asking for money and land to settle the matter. This insulting submission was made without any basis whatsoever and the Petitioner responded to the same by filing an affidavit dated 4.11.2017 which is annexed herewith. Through the affidavit, the Petitioner specifically prayed for the probe to conducted by an independent investigative agency. Respondent No 1 filed a blatantly unwarranted response to the Petitioner’s affidavit through a reply-affidavit filed by Mohinder Singh, Deputy Superintendent of Police, stating that the said official was informed by a secret informer about the Panchayat proceedings wherein the Petitioner raised a demand of Rs. Two crores and 3 acres of land from the accused persons. These irresponsible and false assertions

WWW.LIVELAW.IN

ought to have been rejected outright by the Hon’ble Court as they lacked material particulars. However, the Hon’ble Court simply stated that the affidavit did not intend to express any opinion or delve deeper into the issue. Therefore, the Hon’ble High Court by ignoring to adopt a stricter view towards the constant attempts made by the Respondents to water-down the cause of the Petitioner, has gravely prejudiced the rights of the Petitioner. (I)

Because the Hon’ble High Court failed to consider that Respondent No 1 chose to file their reply through a junior functionary who was also a part of the investigation team and was therefore, expected to defend the investigation. In other words, no senior officer of Respondent No 1 examined the issue. A reading of the reply filed through DSP Mohinder Singh is only indicative of his strong bias in favour of the accused and against the victims. This document shows how some of the real accused have been left out; offences have been diluted; and most of the accused allowed to walk free by inserting bailable offences only.

(J) One of the issues in the present case was the applicability of Section 149 IPC. It was set out in the FIR that when Junaid, deceased, was being inflicted with fatal injuries, some of the accused had caught hold of him to facilitate the same. The Petitioner therefore, placed due emphasis on how the Investigating Agency had gone out of the way to absolve the accused of serious offences. In this context reference was made to paras 11 and 12 of the reply filed on behalf of the State, which reads as under: -

WWW.LIVELAW.IN

“11. That the contents of Para No 11 of the petition are wrong and incorrect, hence denied. It is submitted that the eye witnesses of the incident i.e. Yudhister and Mahinder Singh never stated in their statement that while inflicting knife blows by Naresh, Hasim, Junaid and Shakir were caught hold by the other accused persons. It is further submitted that Naresh had inflicted injuries with knife to the complainant party and he was accordingly arrested and charge-sheeted in the case. 12. That the contents of para no.12 of the petition are wrong and incorrect, hence denied. It is submitted that accused Ramesh Kumar never stated in his disclosure statement that daily passenger had caught hold of Muslim boys while he gave knife blows. It is submitted that in his 1st disclosure statement, he admitted that he inflicted knife blows however in his 2nd disclosure statement, he stated that he only uttered derogatory words in respect of religion and quarrelled with the Muslim boys but never gave any knife blow to the complainant party.” The said paragraphs were highlighted before the Hon’ble Single Judge to point out the flawed nature of investigation. It was emphatically argued that Yudhister and Mohinder Singh were falsely introduced as witnesses to project the view point of the accused. It was further emphasized by reading out their statements that they never specifically claimed to be witnesses to the final act of stabbing and therefore, were not relevant to the point of catching hold of the deceased. As a clear mala-fide it was brought to the notice of the court that these witnesses had actually been given up by Respondent No 1, before filing of the reply in question. Surprisingly, all these aspects were overlooked by the Hon’ble High Court.

A

WWW.LIVELAW.IN

reference to para 12 of the reply reproduced hereinabove shows how the police relied upon the statement of accused, namely, Ramesh to drop the allegations of catching hold of the victims. Shockingly enough, the impugned order is silent on this issue. (K) Because the Hon’ble Court erred in ignoring the national ramifications

of

the

present

case.

There

was

no

consideration of the apprehensions exhibited by the Petitioner, despite sufficient evidence accorded by him to support the same. In fact, the Hon’ble Court went on to state that the case had no national ramifications, which is an erroneous assessment of the facts, as they exist. The present case is a clear testament of communal polarization which threaten to harm national harmony and solidarity. Therefore, it is humbly submitted, that the very question of national or international ramifications cannot be decided on a mechanical yardstick. (L) Because the Hon’ble High Court ought to have considered that it shall not be in the interest of fair investigation to set out minute details of manipulation in investigation as the new Investigating Agency or team must be allowed to investigate the case with a free hand and without any bias. However, the salient features of the blatant errors in the investigation conducted by Respondent No 3 are being stated very briefly hereunder: i)

That at the very initial stage at Okhla station, Naresh Kumar, the prime accused and Rameshwar Dass the

WWW.LIVELAW.IN

principal conspirator had instructed other passengers to join them in mercilessly beating and humiliating the victims. They committed offences under Section 323, 324, 341, 153A, 505 and 298 IPC as an unlawful assembly. These features/aspects of the case were well known to the Investigating Agency and are visible from the disclosure statements of Naresh Kumar dated 8.7.2017 and 10.7.2017: a) At Okhla station, Rameshwar Dass (described as a middle-aged man) addressed the victims as mullas and gave them slaps; they protested whereupon he too got enraged and along with the that middle-aged man and 2-3 other persons used very insulting language regarding Muslim religion and subjected them to brutal beatings. In his disclosure statement dated 10.7.2017, he specifically mentioned that in this beatings at Okhla station, they were joined by two other passengers who were hanging the ID cards of home department. These culprits were deliberately not pursued, identified and prosecuted. Strangely enough, in the legal evidence collected by way of statement under section 161 Cr. P.C. the presence and role of Naresh Kumar at all stages; the collusion between him and Rameshwar Dass on the other, have all been intentionally suppressed. b) That having successfully arranged the humiliation of the victims on communal lines from Okhla

WWW.LIVELAW.IN

station onwards; Rameshwar Dass ensured that they were not allowed to get down at Faridabad. This was done with a careful planned motive because at the next station known as New Town Faridabad, three co-villagers of Rameshwar Dass from Khambhi village, namely Gourav, Pardeep and Chander Parkash boarded the train. It is evident from their disclosure statement (again inadmissible in evidence) that they were joined in the conspiracy by Rameshwar Dass by telling them what had happened earlier. Similarly, true facts become discernible

if

the

disclosure

statement

of

Rameshwar Dass is read between the lines. ii) That in this manner the initial crime that began from Okhla station has been minimised, the conspiracy to cause serious damage including murder took shape when the victims were not allowed to get down at Faridabad and the co-villagers of Rameshwar Dass joined the conspiracy as they were associated with the crime on their boarding the train at New Town Faridabad. It is crystal clear that the victims who were travelling in the train from Delhi and two of their associates, who boarded the train from Ballabgarh to save their companions from violence, were surrounded, pushed, jostled, beaten and inflicted with serious injuries solely with the common object of committing murder. In the totality of circumstances, the object of

WWW.LIVELAW.IN

the unlawful assembly was to ensure that the victims do not escape the clutches of the marauders by leaving the train at Ballabgarh as the area thereafter was considered safe by them to execute their real motive of causing fatal injuries to the victims. Therefore, the present crime reveals the commission of following offences: a) The initial conspiracy to commit offences under section 323, 298, 341, 153A, 505 IPC. The said crimes

were

in

fact,

committed

by

accused

Rameshwar Dass and Naresh supported by many others who formed a gang. b) There was a conspiracy to commit murder and cause injuries dangerous to life apart from the plan to commit other allied offences which took shape when the train stopped at old Faridabad station, New Town Faridabad station and Ballabgarh station, culminating eventually in the murder of Junaid near Asaoti railway station. The commission of murder was essentially the handiwork of an unlawful assembly wherein all the six accused challaned by the Haryana police were actively involved. The common object of the unlawful assembly included murder, commission of offences under section 307 as also commission of offences under sections 341, 298, 153A and 505 IPC.

WWW.LIVELAW.IN

(M) Because the Hon’ble High Court ought to have adopted a stricter stance towards the serious dereliction of duties committed by the Haryana Police. The various instances wherein the gross misconduct of the authorities is egregious are mentioned hereunder: a) The offences were intentionally been diluted and offences under section 153A and Section 505 IPC consciously excluded by the prosecuting agency even though they are patently made out from the evidence collected by the agency itself. b) The occurrence was deliberately projected as sudden and confined to individual act of various sectors with a view to give benefit to the accused and to camouflage the existence of an unlawful assembly having the object of commission of a serious offence. No steps were taken to obtain sanction for prosecution for offences under section 153A and section 505 IPC with the ulterior objective of screening the offenders. In the absence of such sanction the accused would be armed with a strong technical defence in the event of the Ld. Trial Court opting to choose its discretion to correct the error. (N) Because the Hon’ble High Court failed to consider the grave procedural missteps carried out by the authorities. Statements of witnesses were not recorded as per the law. As stated hereinbefore, neither the FIR nor the statements

WWW.LIVELAW.IN

of victims and other truthful witnesses were recorded correctly. (O) Because

there

existed

contradictions/discrepancies

and

multiple

inconsistencies

were

carefully inserted, in the disclosure statement and the statements under Section 161 Cr. P.C. were attributed to the witnesses, to give benefit to the assailants. (P) Because false averments were tactfully introduced in various statements to enable the accused to build a concrete defence. So much so that even the gravity of the offences

against

Naresh

were

seriously

diluted

by

introducing the recovery of the weapon which would in fact weaken the prosecution case. (Q) Because the Hon’ble Court failed to consider that as a direct result of the infirmities introduced to the case as many as four accused, namely Gourav, Pardeep, Chander Parkash and Ramesh were granted bail, even before the trial commenced. (R) Because some of the accused including persons working in home department were let off even though there were clear indication of their complicity in the crime. The Investigating Agency effectively screened some real offenders from prosecution and this aspect ought to have been viewed seriously by the Hon’ble High Court. (S) Because the Petitioner is a poor person and the accused are collectively hell-bent to ensure that the true witnesses do not dare to depose against them in the court. There is a well-orchestrated campaign to create a scare in the mind of

WWW.LIVELAW.IN

the Petitioner, his family members and other witnesses about their own security and well-being. Gradually, but systematically an atmosphere of fear is being generated to ensure that the case ends in smoke and the witnesses do not depose in court. It is disturbing that such a strategy is being adopted openly and in full public view. The Hon’ble High Court ought to have considered the fact that such an atmosphere is being created with the tacit approval of the state functionaries who are duty bound to ensure effective security for the victims and the witnesses. However, the laxity

in

investigation

and

the

soft

corner

of

the

Investigating Agency towards the perpetrators of the crime, have certainly embodied them to make an all-out effort to deter the Petitioner, his family members and prosecution witnesses from deposing in a court of law to support this half-baked final report under section 173 Cr. P.C. (T) Because the Hon’ble High Court failed to consider that filing of the report under section 173 Cr. P.C. does not in any manner create a hurdle in the path of the Hon’ble Court to transfer the investigation of the case to an appropriate agency. In fact, in the present case the unfairness and partisan

nature

of

investigation

only

came

to

the

Petitioner’s knowledge and others sympathising with the cause of the prosecution, when the details of investigation came to light from the perusal of investigation under Section 173 Cr. P.C. Earlier thereto, during the course of investigation, the informant or the Petitioner or the other persons interested in the case of the prosecution, were

WWW.LIVELAW.IN

completely kept in dark about the progress and details of investigation. It is a well settled proposition of law that notwithstanding with anything of report under Section 173 CrPC, the Hon’ble High Court under Article 226 of the Constitution of India has unfettered power of transfer of investigation. By not impressing upon this settled principle, the Hon’ble High Court caused grave prejudice to the Petitioner. (U) Because the Hon’ble High Court ought to have appreciated that the present case squarely falls within the settled parameters of law in so far as the exercise of discretion of transfer of investigation is concerned. The case has caused wide spread concern at the national level as the same has far-reaching ramifications which go beyond the state boundaries. It shall be in conformity with the highest constitutional values to ensure totally independent and unbiased

investigation

in

the

present

case

by

an

Investigating Agency that enjoys the highest credibility. Such direction is, in fact, imperative to instil confidence in the people of the country in general and the aggrieved section as this case has shaken the conscience of the entire nation. 6. GROUNDS FOR INTERIM RELIEF A) For that the impugned order passed by the Hon’ble High Court is bad in law and cannot be sustained. B) For if the proceedings before the Ld. Trial Court proceed in the present manner, the rights of the Petitioner shall stand irreparably damaged.

WWW.LIVELAW.IN

7. MAIN PRAYER

It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to :a) Grant Special Leave to appeal against the impugned final judgment and order dated 27.11.2017 passed by the Hon’ble High Court of Punjab & Haryana at Chandigarh in CWP No. 24104 of 2017 and; b) Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 8. INTERIM PRAYER a) Issue an appropriate order/direction to the Ld. Trial Court to stay the proceedings in Sessions Case No. 500/2017 [State Vs. Naresh Kumar & Ors] pending adjudication before the Ld. Additional Sessions Judge, Faridabad during the pendency of the present petition; b) Issue a direction to Respondent No 1 for transferring the investigation of case arising from FIR No.90 dated 23.06.2017 to an independent agency such as Respondent No 4 i.e. Central Bureau of Investigation; c) Issue appropriate order or directions to the Respondents for providing adequate

and

appropriate

security

to the

Petitioner, his family and the prosecution witnesses in view vulnerability and the nature of the crime; d) Pass any other orders (s) or direction as this Hon’ble Court may

deem

fit

and

proper

under

the

facts

and

circumstances, during the pendency of the present petition.

WWW.LIVELAW.IN

DRAWN BY:

FILED BY:

Tarannum Cheema & Smrithi Suresh Advocates

A. KARTHIK Advocate for the Petitioner Place: New Delhi Dated: 8.3.2018