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2017 Supreme(UK) 299
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, V.K. Bist, JJ.
Mohammad Yameen – Petitioner
Versus
Union of India & others – Respondents
Writ Petition (Criminal) No. 303 of 2017
Decided On : 19-09-2017
For the Petitioner:Ms. Manisha Bhandari and Mr. Sayed Kashif Jafri, Advocates
For the Respondent:Mr. G.S. Sandhu, Government Advocate, Mr. P.C. Petshali, Advocate
For the Central Bureau of Investigation :Mr. Sandeep Tandon, Advocate.
Headnote:
(A) Powers of High Court – High Court has power of transferring the investigation from civil police to C.B.I. – But, such power must be exercised sparingly, cautiously and in exceptional situations.
(Paras 15 to 22, 23 to 28)
(B) Custodial Death – Transferring the investigation to C.B.I. – Held that, however, faithfully the police may carry out the investigation, the same will lack 'credibility’ since the allegations against them are serious – Such a transfer was considered necessary so that all those concerned, including the relatives of the deceased feel assured that an independent agency is looking into the matter thereby lending credibility to the outcome of the investigation – And that the State Government also should not oppose the matter being transferred to C.B.I., as purpose of investigation is to bring truth before everybody. (Paras 20 to 28)
¼v½ mPp U;k;ky; ds vf/kdkj & mPp U;k;ky; ds ikl tk¡p flfoy iqfyl ls CBI dks varfjr djus dk vf/kdkj gS & ijUrq dfFkr vf/kdkj dk iz;ksx la;eiwoZd] lrdZrkiw.kZ o vklkekU; ifjfLFkfr;ksa esa fd;k tkuk pkfg,A ¼izLrj 15 ls 22] 23 ls 28½
¼c½ vfHkj{kk esa e`R;q & tk¡p CBI dks varfjr djuk & /kkfjr fd Hkys gh iqfyl }kjk tk¡p fu"BkiwoZd djh tk,xh ij mlesa fo'oluh;rk dh deh gksxh D;ksafd muds fo#) vkjksi xaHkhj Fks & dfFkr varj.kZ vko';d Fkk D;ksafd tks Hkh lacaf/kr Fks( e`rd ds lacaèkh lfgr] vk'oLr gksaxs fd ekeys dh tk¡p Lora= ,tsUlh }kjk djh tk jgh gS] vkSj tk¡p ds ifj.kke lkFkZd gksaxs & vkSj ;g fd jkT; ljdkj }kjk Hkh ekeys dks CBI dks varfjr djus esa fojks/k ugha djuk pkfg,] D;ksafd tk¡p dk iz;kstu lc ds le{k lR; dks ykuk gSA ¼izLrj 20 ls 28½
V.K. Bist, J.
Petitioner has approached this Court seeking the following reliefs:
“(i) issue a writ, order or direction in the nature of Mandamus transferring the investigation in F.I.R. No. 130/2017, U/s 302, 342, 201 IPC at PS Kashipur, to the Central Bureau of Investigation or any other independent agency;
(ii) And in the mean time issue a writ, order or direction in the nature of mandamus directing the Current Investigating Officer to seal the scene of crime so that the same is not compromised any further for the same to be examined by the Forensic teams.”
2. The case of the petitioner is as follows:
On 26.02.2017, at about 11:00 a.m., the petitioner’s son Ziyauddin (deceased) received a phone call on his mobile no. 7535911033, wherein the respondent no. 5 asked him to come to Police Chowki, Katoratal. The petitioner along with his son Ziyauddin, his brother Saleem and one Mustakeem of village Bailjudi went to Katoratal police chowki at about 11:40 a.m. The respondent no. 4 and other police personnel told the petitioner that there is a report against Ziyauddin that he had eloped with the daughter of Hamid Ali resident of Kazibagh. Ziyauddin was abused and badly beaten by the respondent nos. 4, 5 and other police personnel. He pleaded that he had no role to play in the episode being referred to and that he had not seen the girl even once. He was slapped and was physically abused by all the police personnel present there. This was done in presence of petitioner and his brother. Ziyauddin was then kept in lock up on the night of 26th February, 2017. The family members brought food for him. They tried to talk to him; but, he could hardly speak, as he was so badly beaten up by slapping him over and again. On 27.02.2017, the petitioner along with his brother went to the police chowki to give breakfast to his son, wherein he was told that his son was at P.S. Kotwali. After some time, he was brought back to the police chowki. Petitioner and his brother went to meet him at police chowki and gave him lunch. Thereafter, the deceased was kept in police chowki and was not released. Although, the petitioner and his family member kept requesting the police that the Ziyauddin was innocent yet nothing struck to their deaf ears.
On 28th, sometime in the day, the girl who had allegedly eloped called up on mobile number of the Ziyauddin. She also talked to her father Hamid Ali, who was constantly present along with his son at the police chowki and was also instrumental in the beating of Ziyauddin. That girl spoke to her father that she was safe and fine. She further told that Ziyauddin is innocent and had no role to play in her running away. Inspite of this, Ziyauddin was kept in illegal custody and wrongful confinement. The police personnel insisted that he should contact his friend and get the girl back. He was being constantly tortured by being slapped. The petitioner again went to police station with one local Congress party leader, namely, Yunus Chaudhary for getting his son released but his request for release of Ziyauddin was not accepted. That day, the petitioner again went to police chowki at about 07:30 p.m. to give food to his son. He remained there till 08:00 p.m. Thereafter, at about 08:30 p.m., a white santro car belonging to one Dr. Ashfaq came at police chowki. Same car again came to police chowki at about 10:00 p.m. At about 10:08 p.m. car was again brought at the gate of police chowki in reverse gear. At that time, the lights of the car were switched off. In that car, the body of the petitioner’s son was kept. Thereafter, he was taken to L.D. Bhatt Government Hospital. The whole thing is recorded in one of the houses having CCTV camera installed; but, the same was not provided to the Investigating Officer due to threats of police personnel. On next day, i.e. on March 01, 2017, a complaint was lodged by the petitioner in the police station at about 4:22 a.m. in the morning about the murder of his son. F.I.R. was register
