Himachal Pradesh High Court
Balbir Singh Pathania vs State Of H.P.& Others on 23 December, 2024
Bench: Tarlok Singh Chauhan, Chief Justice
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4630of 2024.
Reserved on 03.12.2024
Date of decision :23.12.2024.
Balbir Singh Pathania. ...Petitioner.
Versus
State of H.P.& others ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting
Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1Yes
For the petitioner : Mr. Ram Murti Bisht, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General
with Ms. Priyanka Chauhan, DAG.
Satyen Vaidya, Judge:
The instant petition has been filed for grant of
the following substantive reliefs:-
“i) That directions may be issued to entrust the
investigation of entire matter i.e. subject matter
of three FIRs including cause of death of
deceased Rishi Raj in custody to the CBI or in
the alternative to a Special Investigation Team
(SIT) headed by officer not below the rank of I.G.
of Police.
1
Whether reporters of Local Papers may be allowed to see the
judgment?
-2-
ii) That the directions may kindly be issued to pay
appropriate compensation to the family
members of the petitioner family on account of
illegal act, conduct or dead of the officers/
officials of respondent No.1 for causing death of
deceased Rishi Raj.
iii) That the order may kindly be issued for
registration of FIR against the officer/official
who were responsible for the death of deceased
in custody and also against any other persons
found involved in conspiracy to involve
deceased in a false case under NDPS Act as a
result of which Rishi Raj died in custody.
iv) That the assets of the Sr. Police Officer of the
District alongwith other police officials including
role of suppliers of drugs including that of
identified police informers may also be ordered
to be investigated”.
2. Petitioner is father of deceased Rishi Raj, whose
dead body was found floating in the waters of ‘Suketi Khad’
(rivulet) Mandi, within the jurisdiction of Police Station,
Sadar Mandi, in the afternoon of 5.4.2024.
3. Petitioner by way of instant petition has
expressed suspicion over the reasons assigned for the
-3-
death of Rishi Raj. He has also suspected foul play with
the connivance of police officials in the entire incident.
4. As per the allegations of the petitioner, on
2.4.2024 one person named as Rahul had visited the house
of the petitioner on ‘scooty’ and Rishi Raj had accompanied
him on the pretext of having some celebration. At about
7.30 p.m., the wife of Rishi Raj had called Rishi Raj on
mobile phone and in response, she was informed by Rishi
Raj that he would be reaching home in 10-15 minutes. At
about 9.30 p.m., another person named Kapil had visited
the house of the petitioner and informed the petitioner that
Rishi Raj was in police custody since about 7.00 p.m., as
he had been caught in a case under the NDPS Act near
place ‘Pulgharat’. The said Kapil had further allegedly
disclosed that he had been deputed by the police with the
offer that the matter could be hushed up and in order to
settle the deal, the petitioner should contact on mobile
phone number 9115727297. The petitioner had
immediately made call on mobile number so provided by
the Kapil and the receiver of the call had confirmed that
-4-
Rishi Raj was in police custody. The receiver of the call
had further demanded a sum of Rs. 2,50,000/- for hushing
up the matter. Thereafter, the petitioner started arranging
the amount. Since it was night time, he was not able to
arrange such a huge amount. He requested for reducing
the amount or in alternative to keep the gold but his offer
was declined. The person seeking ransom, however,
allowed the petitioner to arrange for the amount till early
morning. The request of the petitioner to have
conversation with Rishi Raj was also declined on the
assurance that after receiving of ransom amount, Rishi Raj
would be released and set free.
5. It is further alleged by the petitioner that on the
next morning i.e. 3.4.2024, the petitioner withdrew a sum
of Rs. 1,00,000/- from the account of his wife and Rs.
40,000/- from the account of his elder son named Ajay Raj
Pathania. Thereafter, as directed, the petitioner along with
his son Ajay Raj Pathania visited the place i.e. ‘Bagla’
where the money was to be delivered but they did not find
anyone there. The petitioner had then contacted the other
-5-
side and offered a sum of Rs. 1,40,000/- but the demand
for entire amount was insisted upon. It was threatened
that in case the money was not arranged, Rishi Raj would
be implicated in a case under NDPS Act. Thereafter,
despite the efforts, the petitioner was not able to establish
link with the aforesaid mobile number, as it was found
switched off.
6. It is further the case of the petitioner that on
3.4.2024 at about 12.15 p.m., two police officials had come
at a ‘Dhabha’ near the house of the petitioner and had
inquired from the ‘Dhabha’ owner as to whether Rishi Raj
had reached home. At about 2.30 p.m., the petitioner
came to know that some police officials were standing at
Pulgharat. The elder son of the petitioner had visited the
place Pulgharat but there was none on the spot.
7. On 4.4.2024, the petitioner reported the matter
to Superintendent of Police, Mandi. On 5.4.2024, at
around 5.00 p.m., the body of Rishi Raj was noticed in
‘Suketi Khad’. The police also reached and it was at that
-6-
time that the petitioner was called to the spot to identify
the body.
8. On 6.4.2024, the post-mortem was conducted on
the body of deceased Rishi Raj at Government Medical
College, Mandi. As per post-mortem report, the provisional
cause of death was shown as asphyxia due to ante-mortem
wet drowning. One external injury i.e. a grazed abrasion
was found on the right side of forehead and another grazed
abrasion on the nose of the deceased and no other injury
was noticed.
9. As per petitioner, when the body was being
handed over to the petitioner, about 10-15 persons present
there had disclosed that on 2.4.2024 at about 6.00 p.m.,
deceased Rishi Raj had been seen being interrogated by the
police team headed by senior police officer of District at
Pulgharat. As per them, the police officials were in civil
dress and two vehicles were standing nearby. At that time,
Rishi Raj and Rahul were taken in police custody and were
moved from the spot in official vehicle towards Mandi. It
was in this background that the petitioner submitted
-7-
another representation dated 6.4.2024 to Superintendent
of Police, Mandi with copies to Director General of Police,
Himachal Pradesh and Hon’ble Chief Minister.
10. It is also contended by the petitioner that on
19.4.2024, he had received a communication disclosing
inter-alia that an FIR No. 69 of 2024 dated 3.4.2024 had
been registered in Police Station, Sadar Mandi against
Rahul and Rishi Raj for commission of offence under
Sections 21 and 29 of the NDPS Act. As per allegations,
both Rahul and Rishi Raj were apprehended at about 10.00
p.m. by the police patrol party headed by Sub Inspector,
Manoj Kumar near Pulgharat with a ‘scooty’. On search,
12.66 grams heroin/Chitta was recovered from the ‘scooty’.
The petitioner was also informed through the aforesaid
communication that FIR No. 70 of 2024 dated 3.4.2024
had also been lodged in Police Station, Mandi against
Rahul and Rishi Raj for commission of offence under
Section 224 of IPC with the allegation that they had
absconded from custody of the police.
-8-
11. The petitioner has further averred that on his
complaint dated 4.4.2024, FIR No. 70 of 2024 dated
12.4.2024 was registered at Police Station, Balh under
Sections 385 and 120B of IPC. He has also raised
questions about the delay in lodging such FIR.
12. In the aforesaid backdrop, the petitioner has
asserted right to fair and impartial police investigation on
the following grounds:-
a) Relying upon the information allegedly provided
to the petitioner by some local resident, an
allegation is made that Rishi Raj and Rahul had
been apprehended by the police at about 6.00
p.m.at Pulgharat and for such reason, the
version recorded in FIR No. 69 of 2024 dated
3.4.2024, registered at Police Station, Sadar
Mandi was concocted.
b) The version coming out from the contents of FIR
No. 69 of 2024 is also stated to be belied on the
pretext that at 9.30 p.m. on 2.2.2024, Kapil had
visited the house of the petitioner and had
-9-
informed that Rishi Raj had been caught by the
police in a case under the NDPS Act.
c) Despite the fact that the petitioner had brought
to the notice of the Superintendent of Police,
Mandi, the incident of demand of ransom on
4.4.2024 in writing, no cognizance was taken
immediately and it was on 12.4.2024 that an FIR
under Sections 385 and 120B of IPC was
registered at Police Station, Balh.
d) The death of Rishi Raj had taken place in
unnatural circumstance.
e) The investigation was not fair and independent
due to involvement of police officers/officials.
13. The respondents have filed their reply through
the Superintendent of Police, Mandi (respondent No.3).
While narrating the facts culminating in registration of FIR
No. 69 of 2024 dated 3.4.2024 at Police Station, Sadar,
Mandi, it has been averred that on the night of 2.4.2024 a
police patrol party from Police Post, Mandi, headed by Sub
Inspector, Manoj Kumar was present near Old Petrol Pump
-10-
between Pulgharat and Ramnagar, Mandi in official vehicle
on routine patrolling. At about 10.00 p.m. a ‘scooty’ was
noticed approaching from Pulgharat side and was signaled
to stop. Rahul was rider and Rishi Raj was on the pillion.
Suspicion had arisen from the conduct of Rishi Raj and
Rahul and the ‘scooty’ was searched. 12.66 grams
heroin/Chitta was recovered. It is further submitted that
at about 11.15 p.m., when SI Manoj Kumar had already
seized and sealed the contraband and was in the process of
further spot proceeding, both the accused i.e. Rishi Raj and
Rahul pushed the police officials aside and ran away from
the spot. Both of them allegedly jumped from the edge of
the road into ‘Suketi Khad’. The police officials alongwith
independent witness followed and both the accused were
found sitting on the river bed. On noticing the police, both
jumped into the water. Rahul was apprehended by one of
the constables but Rishi Raj could not be traced. The
search was conducted during the night and on the next day
but Rishi Raj could not be traced. In addition to police, a
-11-
team of State Disaster Response Force (SDRF) had also
been associated in search operation.
14. As per police, having failed to trace accused
Rishi Raj, SI Manoj Kumar had sent ‘Rukka’ to Police
Station, Sadar and FIR No. 69 of 2024 was registered. It is
also the case of the respondents that on the same day i.e.
3.4.2024, another FIR No. 70 of 2024 was registered at
Police Station, Sadar Mandi under Section 224 of IPC with
the allegation that Rishi Raj and Rahul had absconded
from the police custody.
15. Respondents have also stated that on the
complaints of the petitioner dated 4.4.2024 and 6.4.2024,
an inquiry was conducted by an officer of the rank of
Deputy Superintendent of Police and on its basis, an FIR
No. 70 of 2024 under Sections 385 and 120B of IPC was
registered at Police Station, Balh on 12.4.2024. The police
is stated to have carried investigation in FIR No. 70 of 2024
at Police Station, Balh and had found the complicity of
Kapil along with two other named Raj Kumar and Deepak
in making the demand of money from the petitioner on the
-12-
pretext of saving Rishi Raj from implication in a case under
the NDPS Act.
16. According to the respondents all the aspects
with respect to allegations of involvement of police officials
have been examined/investigated and, nothing wrong and
illegal has been found. The allegation of the petitioner that
Rishi Raj had been apprehended along with Rahul by the
police at Pulgharat on 2.4.2024 at about 6 PM has been
categorically denied. Reliance has been placed on CCTV
footage showing both the accused persons in FIR No. 69 of
2024 in an ATM, outside Police Lines, Mandi at 7.50 p.m.
17. It has also been re-asserted that Rishi Raj and
Rahul had absconded from police custody at 11.50 p.m. on
2.4.2024 and had jumped into the ‘Suketi Khad’. Rahul
was allegedly apprehended with injuries but Rishi Raj had
allegedly disappeared and finally his dead body was
recovered from the water of ‘Suketi Khad’ on 5.4.2024.
18. The submission of complaints dated 4.4.2024
and 6.4.2024 by the petitioner has been admitted. It has
also been submitted that on 3.4.2024 at around noon a
-13-
police team had visited the house of the petitioner but none
was found and, in such circumstances, the police officials
had narrated the incidence to the owner of a ‘Dhabha’
located on the ground floor of the house of the petitioner.
19. It is also the specific contention of the
respondents that on 5.4.2024, the police was informed by
the elder brother of the deceased that a body was floating
in the water of ‘Suketi Khad’. The police on reaching the
spot had discovered the said body to be that of Rishi Raj.
20. A proceeding termed as judicial inquiry is also
stated to have been conducted by the learned Chief
Judicial Magistrate, Mandi into the case of death of Rishi
Raj and as per the respondents, the said officer had also
not found any foul play or complicity of the police officials.
21. The petitioner by way of rejoinder re-iterated the
issues raised by him in the petition. Instead of 6.00 p.m.
being the time of apprehension of Rishi Raj and Rahul by
the police officials at Pulgharat, it has been mentioned that
said apprehension was at about 7.30/8 p.m. The police
has also been accused of not collecting any evidence as to
-14-
whereabout of Rishi Raj and Rahul between 7.00-8.00 p.m.
to 10.00 PM on 2.4.2024. It has been pointed out that
though Rishi Raj and Rahul had allegedly absconded from
the police custody at 11.15 p.m. but SI Manoj Kumar had
scribed the Rukka at 4.30 p.m. and FIR No. 69/2024 was
registered at 6.43 p.m. whereas, the distance between the
spot and the Police Station is stated to be only about one
kilometer. It has also been pointed out that the second FIR
NO. 70/2024 was registered at P.S Sadar Mandi under
section 224 IPC at much belated stage.
22. It is also the specific averments of the petitioner
that neither he nor any of his family members were
informed about the arrest of Rishi Raj or the incident of his
absconding from custody of police.
23. It is also contended that when the police or
SDRF team could not find the body in the water of ‘Suketi
Khad’ in such a long operation, how the body could appear
on the same spot after two days?
-15-
24. The police has also been accused of not
collecting the entire relevant evidence to rule out the
possibility of foul play and complicity of police officials.
25. The respondents have availed the opportunity to
file sur-rejoinder. The malafide in the allegations of the
petitioner have been sought to be pointed out by
highlighting the change in time of alleged apprehending of
Rishi Raj and Rahul by the police from 6.00 p.m. to 7.30-
8.00 PM. It has been submitted that Rishi Raj and Kapil
were known to each other. As per respondents, during the
investigation of FIR No. 70 of 2024, registered at Police
Station, Balh, it was revealed that the demand of money
was made by accused persons in FIR No. 70/2024 of PS
Balh; as Rishi Raj owed the money to them.
26. The delay in registration of FIR Nos. 69 of 2024
and 70 of 2024 at Police Station Sadar Mandi has been
sought to be explained by contending that since the
accused persons had absconded from police custody,
therefore, the priority was to nab them.
-16-
27. As regards the allegation of not providing any
information to the family members of Rishi Raj, it has been
stated that since no formal arrest had been made, the
family members were not formally intimated about the
instance. It is admitted by the respondents that it was on
3.4.2024 when Ajay Raj Pathania, the elder brother of Rishi
Raj was witnessing search was fully apprised about the
incidence that had happened on the previous night.
28. Suspicion of petitioner regarding the surfacing of
body of deceased at the same place where a thorough
search was allegedly conducted by the police and SDRF
have been sought to be brushed aside by alleging that the
SDRF did not have the diving equipment and hence deep-
water diving could not be carried out. The search inside
the water had been conducted by using improvise method
like use of long wooden poles.
29. We have heard learned counsel for petitioner and
learned Advocate General for the respondents and have
also perused the record produced before us
-17-
30. At the very outset we make it absolutely clear
that we are not exercising extra ordinary writ or inherent
jurisdiction to deal with the charges faced by Rahul and
deceased Rishi Raj in FIR No. 69/2024 dated 3.4.2024
registered at PS Sadar Mandi. The trial, if any, against said
persons shall proceed unabatedly. We are only and
specifically dealing with certain specific aspects related
with FIR No. 70/2024 dated 3.4.2004 registered under
section 224 IPC at PS Sadar Mandi and FIR No. 70/2024
registered at PS Balh, District Mandi on 12.4.2024 under
sections 385, 120-B IPC. Thus, any observations made
herein shall not in any manner prejudice the rights
available to prosecution or defence in the said trial as per
law.
31. Admittedly, two written complaints Prima facie
disclosing commission of offence under section 385 IPC
were submitted by the petitioner to the Police on 4.4.2024
and 6.4.2024 respectively, but instead of registration of
immediate FIR it came to be registered on 12.4.2024 vide
FIR No. 70/2024 at PS Balh. The offence under section 385
-18-
IPC was a cognizable offence. In such circumstances we
find a clear violation of the following mandate of a
Constitutional Bench in Lalita Kumari v. Govt. of U.P.,
(2014) 2 SCC 1:
“119. Therefore, in view of various counterclaims
regarding registration or non-registration, what is
necessary is only that the information given to the police
must disclose the commission of a cognizable offence. In
such a situation, registration of an FIR is mandatory.
However, if no cognizable offence is made out in the
information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose
of ascertaining as to whether a cognizable offence has
been committed. But, if the information given clearly
mentions the commission of a cognizable offence, there is
no other option but to register an FIR forthwith. Other
considerations are not relevant at the stage of registration
of FIR, such as, whether the information is falsely given,
whether the information is genuine, whether the
information is credible, etc. These are the issues that have
to be verified during the investigation of the FIR. At the
stage of registration of FIR, what is to be seen is merely
whether the information given ex facie discloses the
commission of a cognizable offence. If, after investigation,
the information given is found to be false, there is always
an option to prosecute the complainant for filing a false
FIR.
Conclusion/Directions
-19-
120. In view of the aforesaid discussion, we hold:
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.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a
copy of the entry of such closure must be supplied to the
first informant forthwith and not later than one week. It
must disclose reasons in brief for closing the complaint
and not proceeding further.
120.4. The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not
register the FIR if information received by him discloses a
cognizable offence.
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
-20-
(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.
120.7 [Ed.: This correction is based on para 120.7
as corrected vide order in Lalita Kumari v. State of
U.P., (2023) 9 SCC 695.] . While ensuring and protecting
the rights of the accused and the complainant, a
preliminary inquiry should be made time-bound and in
any case it should not exceed fifteen days generally and
in exceptional cases, by giving adequate reasons, six
weeks’ time is provided. The fact of such delay and the
causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary
is the record of all information received in a police station,
we direct that all information relating to cognizable
offences, whether resulting in registration of FIR or leading
to an inquiry, must be mandatorily and meticulously
reflected in the said diary and the decision to conduct a
preliminary inquiry must also be reflected, as mentioned
above.”
32. In the teeth of above mandate of law, it is not
understandable why the Police resorted to holding of an
enquiry in the first instance. This conduct of the Police is
-21-
not only deprecable but also is a possible reason to suspect
lack of fairness and impartiality in their dealings.
33. In addition to above we have noticed and
gathered from the stand of respondents that they
enigmatically have chosen to contest the claim of petitioner
in adversarial form.
34. The right of a victim under Article 21 of the
Constitution, has been recognised even in the mandate of
Constitutional Bench in State of W.B. v. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571as
under:
“Article 21 of the Constitution in its broad perspective
seeks to protect the persons of their lives and personal
liberties except according to the procedure established by
law. The said article in its broad application not
only takes within its fold enforcement of the rights
of an accused but also the rights of the victim. The
State has a duty to enforce the human rights of a
citizen providing for fair and impartial
investigation against any person accused of
commission of a cognizable offence, which may
include its own officers. In certain situations even a
witness to the crime may seek for and shall be granted
protection by the State.
-22-
35. Hence, the right of a victim as enshrined under
article 21 of the Constitution cannot be offered less value
than that of the accused; for that will be antithetic to the
provision.
36. The police have to act dispassionately in a fair
manner. Its conclusions have to be based on the evidence
collected. In the system governed by rule of law, no one is
above law. It is also trite that there is no exception to the
fundamental right of life and liberty of a citizen of India
except by adoption of due procedure of law.
37. We are of the view that the reluctance shown by
police to carry investigation to rule out all possible
hypothesis more particularly the angle pointed out, rather
alleged by petitioner is sufficient to infer absence of un
biased investigations. The delay in lodging the FIR can also
not be seen without suspicion.
38. In our considered view this amounts to clear
violation of fundamental right of victim under article 21 of
the Constitution of India. It cannot be forgotten that
beyond the legal ramifications, Section 385 IPC casts a long
-23-
shadow on the psychological and emotional well-being of
victims. The fear instilled by the threat of injury can leave
lasting scars, necessitating a holistic approach to victim
support and rehabilitation more particularly when it relates
to alleged involvement of the son of victim in serious
offence(s) under NDPS Act and more importantly in the
instant case where the young son of the petitioner was
found dead in unnatural circumstances.
39. It was a case where the young son of the
petitioner had died in unnatural circumstances. The
anxiety and curiousness of petitioner to have known the
truth was not unjustified especially when he had received
ransom calls alleging involvement of his son in some case
under NDPS Act. In such circumstances, the Police was
duty bound to instill confidence in him and his family
members as it was the duty of police to unravel the truth
and further it was the Police only who had the powers and
mechanism to do so.
40. Importantly, the police had found substance in
the allegations of ransom calls received by the petitioner. In
-24-
fact, Police has already booked three persons for offences
under sections 385, 120-B IPC in FIR 70/2024 registered
at PS Balh on the complaint of petitioner.
41. The ransom calls to petitioner had preceded the
time of alleged apprehension of Rahul and Rishi Raj or at
least were made simultaneously. There is no material to
suggest the link, if any, between the two. Thus, there was
prima facie material to suspect the involvement of some
other persons or officials of respondents, otherwise it could
not have been a mere co-incidence that ransom calls were
received by petitioner almost at the same time when his
son was allegedly apprehended by police with the
contraband. Evidently, this perspective has not been
examined or investigated.
41.1 The Police of the same district
contemporaneously faced similar allegations at the hands
of father whose son was allegedly found transporting
commercial quantity of heroin/Chitta during the
intervening night between 31.3.2024 and 1.4.2024 and
against whom and co-accused FIR No. 60/2024 under
-25-
sections 21 and 29 of NDPS Act was registered at PS Balh.
There also the ransom calls were received by the father of
accused preceding the time of alleged recovery. Such
allegation prima facie has been found to be correct by the
Police and two of the three accused persons in FIR No.
70/2024 PS Balh have been found involved in case of
extortion and FIR No. 106/2024 PS Balh has been lodged.
This court has already passed directions to CBI to carry
investigations in FIR 106/2024 of PS Balh in another case
being Cr.W.P No. 19 of 2024 titled Gurdev Singh Verma vs.
State of Himachal Pradesh. In that case serious allegations
were against Police Officers.
41.2 We feel that the timings of extortion calls made
to persons on the pretext of getting their sons absolved
from the cases under NDPS Act immediately preceding the
eventual apprehension of their sons in more than one case,
could not be a mere co-incidence.
42. It is also beyond comprehension that why the
petitioner or any other member of the family of Rishi Raj
were not informed about the registration of cases vide FIR
-26-
Nos. 69/2024 and 70/2024 at PS Sadar Mandi. The claim
of respondents is that the police officials had visited the
house of petitioner on 3.4.2024 but none was found there
and hence the information was left with some ‘Dhaba’
owner. On the contrary petitioner has alleged that some
police officials had visited a ‘Dhaba’ in the vicinity of his
house on 3.4.2024 and had made enquiries whether Rishi
Raj had returned home? It has also come on record that
the Police official has narrated the incident to elder brother
of deceased Rishi Raj in the afternoon of 3.4.2024 at about
5 PM.
42.1 It is clear that Police did not inform the
petitioner or any other family member of Rishi Raj about
his alleged involvement in case registered vide FIR Nos.
69/2024 and 70/2024 at PS Sadar Mandi till the afternoon
of 3.4.2024. Even if the version of respondents that none
was found in the house of petitioner in the forenoon of
3.4.2024 is taken into account, it cannot be believed that
the Police officials did not have any other means to inform
the petitioner or any other family member. The easiest way
-27-
was to establish contact through mobile phone(s). It also
cannot be said that the Police officials could not have found
the mobile number of petitioner or any other member of his
family.
43. The Police cannot claim to absolve itself from fair
and unbiased investigation under the shield of proceedings
undertaken by learned Judicial Magistrate under section
176 of the Code of Criminal Procedure. The proceeding
under section 176 CrPC has its limited scope for
ascertaining the cause of death. In the facts of the case at
hand the cause of death has been suggested as “asphyxia
due to ante-mortem wet drowning”. Since, the very genesis
of Police version had come into question, the relevant issue
was as to in what manner the drowning had taken place.
43.1 There are different versions on record as to the
site where Rishi Raj and Rahul had allegedly jumped into
the ‘Suketi Khad’. As per one version the height from where
the above persons had jumped was about 200 feet and the
other version mentions such height to be about 150 feet.
The Police version also maintains that the said persons had
-28-
jumped into dry river bed. To jump from a vertical height of
about 150 feet cannot be considered as a normal task more
particularly on a hilly terrain. No site plan or photographs
of the spot have been placed on record. It is not the case of
respondents that there was no vegetation or any other
obstruction in the entire stretch of vertical cliff of about
150 feet. Neither learned Magistrate while holding
proceedings under section 176 CrPC nor the Police has
ventured to look into such a vital aspect. This is being
observed keeping in view the nature of injuries found on
the body of deceased. There were only two grazed abrasions
on the forehead and nose of the deceased. It is near
impossible that after jumping from a cliff having height of
150 feet that too into the river bed a person will have no
injury on his feet, legs, hands or other parts of the body.
43.2 Some suspicion also arises when one notices the
conduct of Police in not registering the FIR under section
224 IPC against Rishi Raj and Rahul simultaneously with
FIR No. 69/2024 under sections 21 and 29 of NDPS Act.
There is a gap of about more than 4 hours between the
-29-
timing of registration of both the cases; whereas the
information regarding alleged absconding of accused
persons from Police Custody had been made available to
the Police Station simultaneously with the information
about their apprehension with contraband.
44. We are not at all oblivious to the repeated
cautions sounded with respect to limited and restrictive
powers of constitutional courts to direct transfer of
investigation to another investigating agency. Reference
can be made to a few of the precedents.
(a) State of W.B. v. Committee for Protection of
Democratic Rights, (2010) 3 SCC 571
“This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and enforcing
the fundamental rights.”
(b) Mithilesh Kumar Singh v. State of
Rajasthan, (2015) 9 SCC 795.
-30-
12. Even so the availability of power and its exercise are
two distinct matters. This Court does not direct transfer of
investigation just for the asking nor is transfer directed
only to satisfy the ego or vindicate the prestige of a party
interested in such investigation. The decision whether
transfer should or should not be ordered rests on the
Court’s satisfaction whether the facts and circumstances
of a given case demand such an order. No hard-and-fast
rule has been or can possibly be prescribed for universal
application to all cases. Each case will obviously depend
upon its own facts. What is important is that the Court
while exercising its jurisdiction to direct transfer remains
sensitive to the principle that transfers are not ordered
just because a party seeks to lead the investigator to a
given conclusion. It is only when there is a reasonable
apprehension about justice becoming a victim because of
shabby or partisan investigation that the Court may step
in and exercise its extraordinary powers. The sensibility of
the victims of the crime or their next of kin is not wholly
irrelevant in such situations. After all transfer of
investigation to an outside agency does not imply that the
transferee agency will necessarily, much less falsely
implicate anyone in the commission of the crime. That is
particularly so when transfer is ordered to an outside
agency perceived to be independent of influences,
pressures and pulls that are commonplace when State
Police investigates matters of some significance. The
confidence of the party seeking transfer in the outside
agency in such cases itself rests on the independence of
that agency from such or similar other considerations. It
follows that unless the Court sees any design behind the
-31-
prayer for transfer, the same must be seen as an attempt
only to ensure that the truth is discovered. The hallmark of
a transfer is the perceived independence of the transferee
more than any other consideration. Discovery of truth is
the ultimate purpose of any investigation and who can do
it better than an agency that is independent.
45. We have already highlighted the strong evidence
indicating gross portrayal of inadequacy by the state Police.
The conduct displayed by the Police prima facie can also
not be said to be un-biased. There are allegations against
the police official(s). Having held violation of fundamental
right of the victim at the hands of state law enforcing
agency and also to uphold right of discovery of truth, we
find it to be a fit case to direct Director General of Police
Himachal Pradesh to get further investigations in FIR No.
70/2024 dated 3.4.2024 registered under section 224 at PS
Sadar Mandi and FIR No. 70/2024 under sections 385,
120-B IPC at PS Balh, District Mandi to be conducted by
an officer not below the rank of Superintendent of Police
and under supervision of an officer not below the rank of
Inspector General of Police. Needless to say that the
-32-
investigating officer shall not be from District Police Force
Mandi.
46. The investigating officer shall take into
consideration all the allegations levelled by petitioner by
way of his complaints made to the State Police from time to
time and also averments made in this petition besides any
other information as may be required by him/her.
47. We also direct Principal Secretary Home to
conduct an enquiry into the conduct of all concerned Police
Officials particularly with respect to violation of mandate in
Lalita Kumari supra and report the compliance to this
Court on 10.3.2025.
48. The instant petition is disposed of with
directions as above.
(Tarlok Singh Chauhan)
Acting Chief Justice
(Satyen Vaidya)
23rd December, 2024 Judge
(kck)