Deepali Aggarwal v. State of GNCT

(ii) The police have ignored what has been repeatedly urged by the petitioner and the family; and have falsely recorded in status report dated 11.02.2020 filed by the DCP that no one from the family of the deceased raised any doubt against anybody, although specific allegations were made by the petitioner and the family against Prasoon Dixit and his associates from the very beginning;

(iii) The police claim that the petitioner said that ‘blood was oozing repeatedly from the deceased’s head when she first saw him in the car’, which statement the petitioner has never made;

(iv) The police have back-dated seizure memos in respect of the petitioner’s mobile phone and the DVR taken from the petitioner’s residence on the second floor of house No. C-165, Surajmal Vihar, New Delhi.

6. In view of the foregoing allegations, it is Mr. Mehta’s contention, that the police have investigated the matter only to support the narrative of suicide while ignoring glaring evidence that clearly suggests homicide. Accordingly, it is the submission that the petitioner has lost all faith in the investigating agency, which is not conducting a fair, honest or complete investigation; and therefore it is urged that the investigation be transferred to the Crime Branch of the Delhi Police or to any other appropriate agency.

7. In support of his case, Mr. Mehta has relied upon the following judicial precedents:a) Mithilesh Kumar vs. State of Rajasthan[1]: to argue that the sensibility of the victims of the crime or their next of kin is not wholly irrelevant in situations where there is reasonable apprehension that justice might become victim of a shabby investigation; b) Kashmeri Devi vs. Delhi Administration and Anr.2: to point-out that in this case the court had transferred the investigation to an independent authority when it was prima facie clear that the police had acted in a partisan manner to shield the real culprits; c) Babubhai vs. State of Gujarat[3]: to say that not only fair trial but fair investigation is also part of rights guaranteed under the Constitution; d) Sheela Ramesh vs. Union of India[4], later affirmed by Supreme Court in (1998) 9 SCC 346: to urge that there is no absolute bar on the powers of the court to interfere in pending investigation; e) State of West Bengal vs. Sampat Lal[5]: to point-out that in this case the court held that the investigating agency must disabuse its mind of the tentative conclusion that death was suicide; f) Court on its own Motion vs. State (Delhi Administration) & Ors[6].: to point-out that when the local police did not register the case immediately on receipt of the complaint, the court held that the local police did not carry out investigation in a fair manner and with due haste; g) Patel Lilabhai Ambalal vs. Patel Kanubhai Mafatlal & Ors.7: to argue that, where the circumstances pointed-out by the complainant were sufficient to justify investigation into the suspicion of murder (in that case), registration of an FIR under section 302 IPC was necessary; and

(1996) SCC OnLine Bom 418 (paras 24, 25 & 31)

(1993) 50 DLT 344 (para 11) 1988 SCC OnLine Guj 14 (paras 15, 17 & 18) h) Lala Ram @ Jitendra vs. State of Rajasthan[8]: to say that a suicidal firearm wound is usually a contact wound situated on the side of the temple; and that the firearm is usually fired at close range; and that the skin around the entry wound shows blackening, scorching and tattooing; i) Ujjagar Singh vs. State of Punjab[9] to submit that the direction of a suicidal wounds is upwards and not downward, as in the present case; and j) Lalita Kumari vs. Govt. of Uttar Pradesh & Ors.10 to say that the general rule which must be strictly followed is that the registration of an FIR is mandatory under section 154 CrPC if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such situation.

8. Apart from the above, counsel for the petitioner has also cited the International Journal of Legal Medicine and Modi’s Textbook on Medical Jurisprudence and Toxicology to support his submission that as per these celebrated texts, the bullet wound in the present case was clearly homicidal and not suicidal.

(2014) 2 SCC 1; (paras 120.1, 120.[5] & 120.6) Respondent’s Submissions:

9. Opposing the pleas taken in the petition, Ms. Kamna Vohra, learned Additional Standing Counsel (Criminal) for the State has contended as follows:

13.03.2020 and 13.06.2020, the police are conducting investigation in a fair and professional manner, with an open mind with no pre-conceived notion or narrative of suicide. This is clear inter alia from the following:

(i) Upon receiving information from Max Hospital,

Patparganj, Delhi S.I. Vivek Lamba was immediately entrusted with the matter and proceeded to the hospital where he collected the MLC of the deceased, whereafter the body was shifted for post-mortem;

(ii) The car as well as the firearm was also seized and got inspected by FSL experts on the same day and exhibits were lifted therefrom;

(iii) The FSL team took hand-swab of the deceased as also of Prasoon Dixit;

(iv) Statements of the petitioner and Prasoon Dixit were recorded immediately after the incident. In his statement Prasoon Dixit disclosed that the deceased had shot himself in the car; while the petitioner neither made any complaint before the doctors who conducted the MLC nor before the I.O. during initial questioning as to any suspicion of homicide. For this reason, initially a case was registered only under sections 25/27/54/59 of Arms Act;

(v) Subsequently, at least 19 premises were identified for collection of CCTV footage and accordingly notices under section 91 Cr.P.C. were issued to their owners. In status report dated 11.02.2020, the State has listed the premises from which CCTV footage were requisitioned. From these, the CCTV footage taken from the camera installed at a nearby house bearing No. C-151 Surajmal Vihar was found very relevant;

(vi) Efforts are on to get photographs from the CCTV footage/recordings through experts of FSL, Rohini, Delhi;

(vii) The MLC endorses that soot was present on the entry wound, which indicates that fire was opened from very close range; (viii)The mobile phone of the deceased, of Prasoon Dixit as well as of the petitioner, have been seized and have been sent for examination by FSL, Rohini to get details of the messages, which would be analysed once received;

(ix) The Gun Shot Residue (GSR) report has also been received from FSL, as per which the element Lead (Pb) has been detected on the swab taken from Prasoon Dixit’s right hand, lower side; and the elements Lead (Pb) and Antimony (Sb) have been detected on the swab taken from the right hand, lower side and from the right upper side of the deceased; and subsequent opinion in this regard has been sought from the ballistics expert at FSL, Rohini to obtain details;

(x) Permission has been obtained from the concerned court to put Prasoon Dixit through a lie-detector test and the requisite letter has been sent to FSL, Rohini to conduct the test on a priority basis;

(xi) The accountant of the deceased’s shop has stated during interrogation that the deceased was under huge debt of about Rs. 6.72 crores; and to get details, notices have been sent to the concerned banks and financial institutions; and most loan amounts have been verified, while some are in the process of being verified;

(xii) A request seeking details of the.32-bore revolver used in the case was sent to the licensing unit of the Delhi Police, from where it was learned that no licence was issued in respect of this revolver. Information on this has now been sought from the Muradnagar Ordinance Factory, U.P., which response is awaited.

10. It is accordingly submitted by Ms. Vohra that the investigating agency is conducting a thorough investigation in the matter; that all requisite steps have been taken and will continue to be taken; and accordingly there is no substance in the allegation that the investigating agency has been negligent in any manner or that the investigation deserves to be transferred to some other agency.

11. Furthermore, Ms. Vohra has drawn attention of the court to a copy of application dated 18.01.2020 filed by the petitioner under section 156(3) Cr.P.C. before the CMM’s court, the prayers in which read as under: “a. Direct the SHO PS Vivek Vihar to add sections 302 IPC r/w 120B IPC in FIR No. 458 of 2019; b. Direct the SHO PS Vivek Vihar to collect, seize, maintain securely and send for necessary forensic examination CDRs and mobile phones of Sh. Prasoon Dixit, Sh. Vikesh Rajput, Ms. Neha Verma, Sh. Yash Gupta, Sh. Nitin Chaudhary, Sh. Kamal Pandit and Ms. Anshu; c. Direct the SHO PS Vivek Vihar to collect, seize, maintain securely and send for necessary forensic examination CCTV recordings qua cameras installed at premises mentioned in para 7 of the ‘Grounds’ of this application, in compliance with SO No. 448 of 2018 and Hon’ble Delhi High Court’s judgment in Pooja Khetan Vs.

GNCTD WP (Crl.) No. 1006 of 2015; d. Direct the SHO PS Vivek Vihar to supply to the Applicant a copy of the inquest papers; e. Monitor the investigation in FIR No. 458 of 2019, lodged at P.S. Vivek Vihar..”

12. It is pointed-out that the application under section 156(3) Cr.P.C. is a very detailed one, which recites substantially all the averments and allegations contained in the present petition, with reference also being made to judicial precedents in support of the applicant’s stand. As recorded above, the said application under section 156(3) is still pending consideration before the CMM’s court. Ms. Vohra accordingly contends that in view of the pendency of the section 156(3) application, with substantially the same prayers, the present petition is not maintainable.

13. In response to the State’s submission that the present petition is not maintainable in view of the petitioner’s application under section 156(3) Cr.P.C., counsel for the petitioner states that the prayer for transfer of investigation to another agency could not have been made, and has not been made, in that application, since the Magistrate is not competent to transfer investigation to any other agency. It is therefore argued that the main prayer in the present petition is different. It is the counsel’s contention that since the scope of the present petition is different from that of the application under section 156(3) Cr.P.C., the pendency of the said application is no bar to the present petition. Counsel also states that the petitioner is willing to withdraw the section 156(3) application, since till date no effective order has been passed in that application.

14. Counsel for the petitioner has further urged that more than 180 days have passed since the date of the incident and yet investigation is not complete, which in itself shows the casual manner in which the socalled investigation is being carried-on. Discussion & Conclusions:

15. Considering the sensitive and serious nature of the allegations in the present petition, namely the grievance of a wife that her husband has been murdered by some business associates and that the murder is being passed-off as suicide, with the police trying to support a pre-conceived narrative while ignoring available evidence to the contrary, this court has given its thoughtful consideration to the present matter. This court is also acutely conscious of the fact that the petitioner finds herself in a very unfortunate situation, which is severely distressing to say the least. The petitioner is therefore clearly in a heightened emotive state when she looks at any aspect of this case.

16. Be that as it may, the following aspects appear from the record when viewed in the cold light of day: a. Contrary to what the petitioner alleges, the investigating agency has collected the evidence that is ordinarily garnered in a case such as this; b. The allegation that the investigating agency has not collected CCTV footage nor examined the weapon of offence nor the body nor the residue from the hands of the suspect, are belied by what is recorded in the various status reports filed in the matter; c. MLC and post-mortem were conducted; the vehicle and the firearm have been examined; and samples were sent to the FSL for opinion; d. Although more than 180 days have passed, investigation is not yet complete, which though regrettable at one level, also shows that the investigating agency has not been in any haste to ‘close’ the matter; e. Some FSL reports and expert opinions are awaited. The investigative process is thus still going-on; f. Significantly, the petitioner has herself moved an application under section 156(3) Cr.P.C. asking for the investigation to be conducted and monitored by the CMM, alongwith other reliefs. While this could have been a short ground for refusing to entertain the present writ petition, this court considered it appropriate to delve somewhat deeper into the matter only to satisfy its judicial conscience that investigation is being done with requisite seriousness and not in a cavalier fashion.

17. However, a very important aspect of the matter which has been raised by the petitioner is the fact that, as evidenced from the record, the complainant in the matter is the same as the Investigating Officer, namely S.I. Vikas Lamba. This aspect has been considered by the Supreme Court in some judgments, a reference to which is extremely relevant at this point.

18. In Mohan Lal vs. State of Punjab 11 the Supreme Court has stressed on the legal significance of fairness of the investigation; and in that context has said this about investigation being carried-out by a person who is also the complainant in a criminal case:

19. It appears that certain unintended consequences may have resulted by application of the law laid down in Mohan Lal (supra), in that many accused may have sought acquittal solely on the basis that the complainant and the investigating officer were the same, without the investigating agencies having known this precept of law. This led the Supreme Court to review the position in Mohan Lal (supra) in a limited way in Varinder Kumar Vs. State of Himachal Pradesh12 where the Supreme Court has opined as under:

20. Now, the Mohan Lal decision is dated 16.08.2018 whereas the FIR in the present is dated 26.12.2019. The present case would therefore be governed strictly by the law laid down in Mohan Lal (supra) regardless of the facts of this case; that is to say, the complainant and investigating officer in the present case cannot be the same, since that would be a fatal error in the investigation.

21. While considering the matter, it transpired that the foregoing aspect of the case had not been sufficiently addressed by the parties. Accordingly, the matter was placed for clarification whereupon the State has placed on record a General Diary entry bearing No. 8A dated 26.12.2019 as also an order dated 17.02.2020 issued by the DCP, Shahdara District, which have bearing on this issue.

22. Ms. Vohra has submitted that, as is seen from GD entry NO. 8A, information of the deceased having been carried to hospital with a gun-shot wound, was received from one Dr. Rinki Ahuja at Max Hospital, Patparganj by Assistant Sub-Inspector Shashi Bala on telephone. This information was recorded by way of the GD entry, whereupon Sub-Inspector Vivek Lamba was deputed along with Constable Yogesh to proceed to the hospital and take necessary steps.

23. Ms. Vohra points-out that by order dated 17.02.2020 issued by the DCP East, Shahdara District, investigation of the matter was transferred from S.I. Vivek Lamba to Inspector Dharmender of PS: Vivek Vihar for further investigation ‘with immediate effect’; with a further direction that the progress of the investigation be informed to the DCP regularly.

24. It is Ms. Vohra's submission therefore, that the objection as to the complainant and the I.O. being the same has no factual basis, inasmuch as the first informant in the matter was Dr. Rinki Ahuja of Max Hospital, whereupon a GD entry was recorded by ASI Shashi Bala; and only thereafter was S.I. Vivek Lamba deputed to visit the hospital along with Constable Yogesh. It is therefore not correct to say, the State contends, that the I.O. in the matter is the same as the complainant. Moreover, Ms. Vohra points-out that in any case, by order dated 17.02.2020 issued by the DCP, Shahdara District, as from that date, the investigation of the matter has not been in the hands of S.I. Vivek Lamba but in the hands of Inspector Dharmender. In this view of the matter, Ms. Vohra contends that the present investigation does not fall foul of the law as laid down by the Supreme Court in Mohan Lal (supra) and the allegation to the contrary made by the petitioner is baseless.

25. Mr. Tanmaya Mehta responds to the aforesaid, relying upon an additional note dated 03.07.2020 filed in the matter, to stress that in this case the FIR was recorded by S.I. Vivek Lamba, who also continued to be the I.O. from the date of registration of the FIR i.e. 26.12.2019 till 17.02.2020; and in those crucial 1 ½ months, the entire investigation was vitiated on the touchstone of the law laid-down by the Supreme Court in Mohan Lal (supra) and Varinder Kumar (supra), as also followed by a Co-ordinate Bench of this court in Gurtej Singh Batth vs. State13. Counsel submits that once investigation was tainted during the critical initial period, such taint could not have been cured by a subsequent transfer of the investigation to some other police officer. He further draws attention to the following paragraph of Babubhai (supra) where the Supreme Court has observed as follows:

26. Mr. Mehta has also laboured hard on the point that despite the petitioner having made a complaint dated 30.12.2019 in writing, stating as follows: “Sir, the FIR no. 0458/2019 PS Vivek Vihar dt. 26.10.2019 with regard to the said incident came to my knowledge yesterday and I am shocked to find out that the FIR has only been registered u/s 25/27/54/59 of Arms Act, 1959 and no FIR has been registered against any persons for killing my husband. To the best of my knowledge no arrest in this regard has been made by the police. I have two sons aged about 9 and 6 years and no surviving earning member in the family. My father in law is bed ridden since long. I request you to immediately register an FIR against the said persons and their unknown associates u/s 302/120B IPC r/w other relevant provision of law. The manner in which these persons have planned and killed my husband I feel threatened about the safety and well being of my children and my family therefore I, with folded hands, request you to immediately arrest these persons and provide protection and security to me and my family.” and yet, the police did not register and investigate the case as disclosing commission of an offence under section 302 IPC. Mr. Mehta draws attention to the judgment in Lalita Kumari (supra) in which the Supreme Court has mandated that where information is received of commission of a cognizable offence, an FIR must be registered and that there is no requirement of preliminary inquiry in such case. Mr. Mehta has referred to following paras of Lalita Kumari (supra): “120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.” “120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.” “120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

27. Ms. Vohra responds by saying that the petitioner cannot dictate as to which offences are to be included in a first information report, which is in the discretion of the investigating agency, depending upon what offence appears to be disclosed at the point in time when the FIR is registered. She contends however that investigation is still going-on; that the report of the ballistic experts is awaited; a polygraph test of suspect Prasoon Dixit is scheduled at the FSL Laboratory on 06.07.2020 and 08.07.2020; that at the time the police reached the hospital both the petitioner and Prasoon Dixit were available at the hospital but there was neither any information nor suspicion that an offence under section 302 IPC had been committed at that stage. Ms. Vohra however categorically states that if during the course of investigation, it appears that an offence under section 302 IPC has been committed, the State would not be averse to including the said offence in the charge-sheet to be filed.

28. Now, the importance of a fair investigation has been emphasised by the Supreme Court in Dinubhai Boghabhai Solanki v. State of Gujarat14 in the following words: “48. Undoubtedly, the essence of criminal justice system is to reach the truth. The underlying principle is that whilst the guilty must not escape punishment, no innocent person shall be punished unless the guilt of the suspect/accused is established in accordance with law. All suspects/accused are presumed to be innocent till their guilt is proved beyond reasonable doubt in a trial conducted according to the procedure prescribed under law. Fair, unbiased and transparent investigation is a sine quo non for protecting the accused. Being dissatisfied with the manner in which the investigation was being conducted, the father of the victim filed the petition seeking an impartial investigation.”