IN THE HIGH COURT OF JUDICATURE AT PATNA
C.W.J.C.No.5677 of 2009
Kundan Prasad Singh, son of Late Bhagwat Prasad Singh, M/s Maruti
Service Centre, Near Old Arvind Mahila College, P.S. Kadam Kuan, Patna,
Bihar.
......... Petitioner.
Versus
1. Union of India, through its Secretary, Ministry of Home Affairs, Govt.
of India, New Delhi-110001.
2. State of Maharastra through its Chief Secretary, Govt. of Maharastra,
Mumbai.
3. Central Bureau of Investigation, Head Quarter, New Delhi.
4. The Commissioner of Mumbai Police, Office of the Commissioner of
Mumbai Police, Opp. Crawford Market, D.N. Road, Mumbai.
5. State of Bihar through its Chief Secretary, Govt. of Bihar, Secretariat,
Patna.
.... Respondents.
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For the petitioner : Mr. Shailendra Kumar Sinha, Advocate.
For respondent no.1 : Mr. P.L. Jaiswal, Central Govt. counsel.
Mr. Vibhakar Kumar,
A. C. to C.G.C.
For respondent nos.2 & 4 : Mr. Ahsanuddin Amanullah, Advocate.
For respondent no.3 : Mr. Bipin Kumar Sinha, Advocate.
For respondent no.5 : Mr. Sunil Kumar Mandal, S.C. 24
Dr. Abdus Shakoor, A. C. to S. C. 24.
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PRESENT
HON'BLE MR. JUSTICE S. N. HUSSAIN
ORDER
12. 23.09.2011 This writ petition has been filed by the petitioner for directing
the respondents to get the investigation done by the Central Bureau of
Investigation or judicial probe into killing of Rahul Raj son of the
petitioner in a fake encounter by the Mumbai Police on 27 th of October,
2008.
2. Learned counsel for the petitioner claimed that he is the
father of deceased Rahul Raj who was killed in Mumbai on 27.10.2008
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by the police in broad-day-light which was in complete violation of
Article 21 of the Constitution of India without any rhyme or reason as he
was neither a criminal, nor a terrorist, nor any such case is made out
against him.
3. Learned counsel for the petitioner further stated that Rahul
Raj was a simple and peace loving boy who was never involved in any
criminal activity during his entire life time. He did his schooling from
Devi Dayal High School and Intermediate from Ram Mohan Roy
Seminary, Patna which he passed with flying colours. Thereafter, he did
his diploma in Radiology from Indian Institute of Health Education and
Research, Patna. He was a resident of Kadamkuan one of the mohallas of
the town of Patna and Kadamkuan Police Station had given a certificate
that he never had any criminal antecedents.
4. Learned counsel for the petitioner further stated that Rahul
Raj went to Mumbai on 26.10.2008 looking for a job to get some
experience, whereafter Rahul‟s ultimate aim was to return to Patna and
establish a Radiology lab in Patna. However, the said boy while his stay
at Mumbai was shot dead on 27.10.2008 by a Mumbai Police in a fake
encounter. Learned counsel for the petitioner submitted that after the
aforesaid killing, the Deputy Chief Minister of Maharastra, namely Sri
R.R.Patil who also held the Ministry of Home portfolio very broadly
claimed that whatever the police did was appropriate and if anyone used a
bullet, obviously he got a bullet. He further stated that similar heartless
statements were made by High Level Police Officers of Mumbai police
also which showed insensitivity and bias against the boy. In this
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connection, he relied upon media reports attached to this writ petition as
Annexure-2.
5. Learned counsel for the petitioner also stated that inspite of
repeated requests, Mumbai police authorities have neither provided post-
mortem report, forensic report, CD of Post-mortem report, nor they
produced the items recovered from the possession of Rahul Raj at the
time of incident and from his hotel room. In the said circumstances, the
petitioner feeling disheartened with the Mumbai Police Authorities sent a
detailed representation dated 01.12.2008 to the Chief Minister of
Maharastra and the Police Commissioner of Mumbai asking for certain
documents, namely copy of F.I.R. registered at the police station;
Doctor‟s report with respect to injuries found on the body of Rahul Raj;
list of material recovered from the possession and room of Rahul Raj;
report of Mumbai Police; statements under Section 161 of the Code of
Criminal Procedure of eye witnesses; post mortem report; Forensic
report; ballistic report, Panchnama of gun for gunshots and all other
documents pertaining to killing of Rahul Raj, but neither any reply was
given to the aforesaid representation, nor any official of State of
Maharastra contacted the petitioner.
6. Learned counsel for the petitioner further claimed that from
the aforesaid facts and also from the reports on various news channels
corroborated about the conspiracy in the killing of Rahul Raj only
because he was a Bihari and the authorities wanted to show that they were
making all efforts to safeguard a certain politician of Maharastra having a
series of criminal cases against him and being famous for his notoriety
-4-
and for that purpose Rahul Raj has been made sacrificial lamb. Learned
counsel for the petitioner also states that in Maharashtra no one can raise
any objection either against the police or against such a politician and if
any one, specially a Bihari, raises even a genuine objection he will be
made victim of an encounter and/or the goons of the said politician would
liquidate him. He also averred that to conceal the guilt, the respondents
have annexed cooked up post mortem report and statements (annexed to
the counter affidavit), although there was no occasion for any such
statement by any one and it was merely for the purpose of depicting
brutal murder of a innocent boy as an encounter of a criminal and to top it
all naked body of the deceased was handed over by the police to his
father, namely the petitioner, without any clue.
7. Learned counsel for the petitioner further averred that eye
witnesses who had given statements on the news channel clearly showed
that the Mumbai Police has entered the bus from back side and fired on
Rahul Raj and he sustained bullet injury on body, but at that time he was
not dead when he was carried by Mumbai Police. He also claimed that
Mumbai Doctor B.G. Chikalkar, Associate Professor, Forensic Medicine,
J.J. Hospital, Mumbai, who was one of the four members in the panel of
forensic expert who carried out post-mortem of Rahul Raj, has found dark
mark around the bullet hole in the face and the technical explanation for
this was that the bullet was fired from close range, causing gun powder to
burn and darken the skin around the wound. The said report was
published in the media on 09th November, 2008 which the petitioner
obtained from the website. Hence, he claimed that Rahul Raj was killed
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from very close range with full intention, but the authorities of Mumbai
and even the Deputy Chief Minister who was also Home Minister of
Mumbai had made irresponsible statements which showed that the entire
atmosphere at Mumbai was such that proper investigation could not be
made in the case at Mumbai. Even the post mortem report which the
petitioner obtained after making representation to the Human Rights
Commission showed that it was manipulated as it was against the
statement of Dr. B.G. Chikalkar who was one of the doctors doing
postmortem report.
8. Learned counsel for the petitioner relied upon two decisions
of the Apex Court in case of Rubabuddin Shiek v. State of Gujarat
reported in AIR 2010 SC 3175 and in case of Ramesh Kumari v. State
(NCT of Delhi) & Ors. reported in AIR 2006 SC 1322 in which C.B.I.
investigations were ordered by the Supreme Court on the ground that
there were some allegations against the police officers. Learned counsel
for the petitioner submits that in the instant case there are more serious
allegations against the police officers which have been corroborated by
the statements and other materials on record which showed that there was
volatile situation in Maharastra against Bihari Raj and the Government
trying to protect such police officers and hence for fair investigation and
trial C.B.I. investigation was essential.
9. So far the question of jurisdiction of this High Court is
concerned, learned counsel for the petitioner submitted that the dead body
of Rahul Raj was handed over to the petitioner by the Mumbai Police
Official at his residence in Mohalla Kadamkuan on 28.10.2008 at 11 P.M.
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and hence a part of cause of action arise within the territorial jurisdiction
of the Patna High Court. He also claimed that jurisdiction must be
decided on the basis of facts pleaded in the petition, truth of which is
immaterial at this stage. In this connection, he relied upon three decisions
of the Apex Court in case of Kusum Ingots Alloys Ltd. v. Union of India
and another reported in AIR 2004 SC 2321; in case of Navinchandra N.
Majithia v. State of Maharashtra & Ors. reported in AIR 2000 SC 2966;
and in case of Union of India & Ors. Vs. Adani Exports Ltd. and another
reported in AIR 2002 SC 126.
10. Learned counsel for the petitioner averred that the
Constitution of India was amended 42nd time in the year 1976 with effect
from 01.02.1977 and thereafter the plea of lack of territorial jurisdiction
cannot be allowed as per the amended Article 226(2) of the Constitution
of India. Hence, he claimed that this court having jurisdiction to decide
this case should consider this writ petition and grant the reliefs as claimed
therein. Learned counsel for the petitioner also argued that such a matter
can be raised even outside the territorial jurisdiction in the dire
circumstances which are apparent from the aforesaid facts as the
petitioner is not seeking any lengthy relief, rather he is raising a minimum
demand for investigation by a fair agency.
11. Respondent nos. 2 and 4 being the State of Maharashtra
and the Commissioner of Mumbai Police are the main contesting parties
and their learned counsel raised purely legal issue of territorial
jurisdiction claiming that this court had no jurisdiction to decide such
issue as no part of cause of action had taken place in the State of Bihar or
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within the jurisdiction of this court as even the body of the deceased was
handed over to his uncle who had gone there to receive and the said uncle
brought the dead body from Mumbai to Patna. He further stated that in
the aforesaid facts and circumstances, cause of action is the police
encounter which admittedly occurred at Mumbai and no part of cause of
action occurred at Patna as even the body of the deceased was handed
over by Mumbai police to his uncle who had gone there to bring the dead
body to Patna and, in fact, also it was the brother of the petitioner who
brought the dead body of Rahul Raj to Patna. He also stated that
petitioner had appropriate forum in Bombay High Court, but he failed to
avail the said opportunity till date.
12. In this connection, he relied upon several decisions of the
Apex Court in case of Alchemist Limited & Anr. V. State of Sikkim &
Ors. reported in AIR 2007 SC 1812; in case of Union of India & Ors. Vs.
Adani Exports Ltd. and another reported in AIR 2002 SC 126; in case of
National Textile Corpn. Ltd. and others V. M/s Haribox Swalram and
others reported in 2004(9) SCC 786; in case of Navichandra N. Majithia
V. State of Maharashtra reported in AIR 2000 SC 2996; in case of C.B.I.
Anti Corruption Branch, Mumbai V. Narayan Diwakar reported in AIR
1999 SC 2362; in case of State of Rajasthan and others Vs. M/s Swaika
Properties and another reported in AIR 1985 SC 1289; in case of Kusum
Ingots & Alloys Ltd. Vs. Union of India and another reported in (2004) 6
SCC 254; in case of Sakiri Vasu V. State of Uttar Pradesh and others
reported in 2008(2) SCC 409; in case of Eastern Coalfields Ltd. and
others Vs. Kalyan Banerjee reported in 2008(3) SCC 456; and in case of
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Rajendra Ramchandra Kavalekar Vs. State of Maharashtra and another
reported in 2009 (11) SCC 286.
13. Similarly, learned counsel for respondent no.3 raised the
question of territorial jurisdiction of this court and adopted the argument
raised by learned counsel for respondent nos.2 and 4 and also relied upon
the decisions relied upon by learned counsel for respondent nos. 2 and 4.
In addition to the aforesaid decisions, he also relied upon a decision of the
Apex Court in case of Rakesh Kumar Goel etc. Vs. U.P. State Industrial
Development Corporation Ltd. & Ors., reported in 2010 AIR SCW 4050
which showed that C.B.I. was overburdened and ordinarily in every
inquiry and trial as per Sections 177 and 178 of the Code of Criminal
Procedure, the offence must be inquired into and tried by a Court within
whose local jurisdiction it was committed.
14. Learned counsel for respondent no.1 Union of India did
not file any counter affidavit, but at the time of arguments he adopted the
arguments of learned counsel for respondent nos. 2, 3 and 4 on the issue
of territorial jurisdiction. He also stated that W.P. (Civil) No.526 of 2008
was filed by another person as public interest litigation for several reliefs
including a judicial enquiry in Rahul Raj case, but the said case was
dismissed by the Supreme Court on 10.11.2008. However, learned
counsel for respondent no.5 the State of Bihar maintained his discreet
silence.
15. From the pleadings of learned counsel for the parties and
the materials on record it is not in dispute that the petitioner is the father
of Rahul Raj who was killed in Mumbai on 27.10.2008 by the police in
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broad-day-light on the road and the said killing was justified not only by
the police authorities of Mumbai, but also by the Home Minister in the
Maharashtra Government even before the investigation could proceed.
Similarly the police reports and the statements of the police authorities of
Mumbai depicted Rahul Raj as a terrorist and criminal who boarded a bus
and took the passengers hostages and fired four shots on the police from
his country made pistol, one of which hit the thigh of one Manoj Bhagat
and on this ground the police authority justified the killing of Rahul Raj.
16. Furthermore, the Media reports annexed to the writ
petition showed that immediately after the aforesaid incident the Deputy
Chief Minister of Maharashtra Sri R.R.Patil made statement justifying the
police action as appropriate and stated that if anyone used a bullet,
obviously he would get a bullet. On the basis of the aforesaid statement,
the M.N.S. leaders started playing with the emotion of people,
particularly with the sons of the soil completely ignoring the facts that
they were destroying the social fabric of the Nation and hence the leader
of the National political parties criticized such statement as adding fuel to
the fire in the already volatile and sensitive situation.
17. So far the antecedent of Rahul Raj is concerned, the
police report has been annexed which shows that he had no criminal
antecedent, whereas his certificates etc. show that he was a simple and
peace loving boy, who was never involved in any criminal activity during
his entire life and had done his High School, Intermediate from Patna and
obtained a diploma in Radiology from Indian Institute of Health
Education and Research, Patna and had gone to Mumbai looking for a job
– 10 –
to get some experience for establishing a Radiology Laboratory at Patna
which was his ultimate aim. In these circumstances, the petitioner has
claimed that the killing of the boy and the statements of the Deputy Chief
Minister of Maharashtra and the police officers of Mumbai showed
insensitivity and bias not only against Rahul Raj, but against the entire
group of people called „Biharis‟.
18. In this connection, the petitioner has also relied upon the
statements of eye witnesses on the news channels showing that the police
had entered the bus from the back side and fired at Rahul Raj who
sustained bullet injuries on the body and was not dead while being carried
away by the Mumbai police, but one of the four members in the panel of
Forensic Expert, namely Dr. B.G.Chikalkar who performed postmortem
of the body of Rahul Raj found a hole on the face of Rahul Raj caused by
bullet surrounded by dark mark which showed that he was fired at from
very close range after being carried away from the bus which caused his
death and which falsified the story propounded by the Mumbai Police.
19. The aforesaid facts coupled with the reported statements of
the Minister and the authorities of Maharashtra police made the petitioner
apprehensive that justice would not be done in his case as the said
authorities had a bias against the petitioner and the place of his birth and
they were bent upon saving their co-officers from being punished for such
heinous crime and hence for fair investigation and trial the matter had to
be referred to the Central Bureau of Investigation.
20. Another issue in dispute is the handing over of the body of
Rahul Raj to his relatives. The contesting respondents have claimed that
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the body of Rahul Raj was handed over in Mumbai to his uncle who
brought it to Patna by Air on his own, hence the jurisdiction was entirely
with the authorities of Mumbai. On the other hand, the petitioner has
claimed that the body of Rahul Raj was brought by the Mumbai Police to
Patna who handed it over to petitioner at his residence in Kadamkuan one
of the mohallas of the city of Patna and hence some part of jurisdiction
also lies with the authorities at Patna.
21. Now the disputed question of fact is as to whether the
body of Rahul Raj was handed over at Mumbai to his uncle, who brought
it to Patna along with adequate Bandobast of Mumbai police or it was
brought to Patna and handed over to the petitioner by Mumbai Police with
the relatives accompanying it. There can be no dispute that the duty of the
authorities was to hand over the body of the deceased to his nearest kin
which in this case can only be his father or anyone authorised by him.
Here in the instant case, no letter of authority had been brought on record
to show that the petitioner had authorised his brother or any one else to
receive the body of the deceased nor there is any material to show that the
authorities concerned had handed over the body of the deceased to any of
his relatives at Mumbai.
22. On the issue of jurisdiction, learned counsel for the
petitioner relied upon several decisions of the Apex Court. In case of
Rubabbuddin Sheikh (Supra) it was held that although charge-sheet was
submitted in Gujarat, but considering the nature of crime that has been
allegedly committed not by any third party but by the Police Personnel of
the State of Gujarat, the investigation concluded in that case cannot be
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said to be satisfactorily held. Hence, the police authorities of the State of
Gujarat were directed to hand over the records of the said case to the
C.B.I. authorities within a fortnight. Thereafter, the C.B.I. authorities
were directed to take up the investigation and complete the same within
six months.
23. In case of Ramesh Kumari (Supra) it was held by the
Apex Court that the complaint was admittedly filed against the police
officer and learned counsel for the parties to the case were not at variance
that in such a situation the interest of justice would be better served if the
Supreme Court directs the CBI to register the case and investigate the
matter. In the said circumstances, the CBI was directed to register a case
and investigate the complaint and complete the same within a period of
three months.
24. In case of M/s Kusum Ingots and Alloys Ltd. (supra) it
was held by the Apex Court that jurisdiction must be decided on the basis
of facts pleaded in the petition, truth of which was immaterial at that
stage. It was also held that in view of clause (2) of Article 226 as
substituted and introduced by the 42nd amendment of 1976 (w.e.f.
01.02.1977) in the Constitution, now if a part of cause of action arises
outside the jurisdiction of the High Court, it would have jurisdiction to
issue a writ.
25. In case of Union of India & others (supra), the Supreme
court held that in order to confer jurisdiction upon a High court to
entertain a writ petition, the High Court must be satisfied from the entire
facts pleaded in support of the cause of action that those facts do
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constitute a cause so as to empower the Court to decide a dispute which
has, at least in part, arisen within its jurisdiction.
26. In case of Navinchandra N. Majithia (supra) the Apex
court held that the power conferred on the High Courts under Article 226
could as well be exercised by any High Court exercising jurisdiction in
relation to the territories within which “the cause of action, wholly or in
part, arises” and it did not matter that the seat of the authority concerned
is outside the territorial limits of the jurisdiction of that High Court as the
amendment by which clause (2) was inserted to the said Article was
aimed at widening the area for reaching the writs issued by different High
Courts.
27. On the other hand, learned counsel for the respondents
also relied upon several decisions of the Apex Court. In case of State of
Rajasthan and others Vs. M/s Swaika Properties and another (supra)
it was held by the Apex Court that since there was no cause of action
either wholly or partly arising out of territorial limits of Calcutta High
Court, the learned Single Judge had no jurisdiction to issue a rule nisi on
the petition filed under Article 226 of the Constitution.
28. The same view has been taken by the Supreme Court in
case of C.B.I. Anti Corruption Branch, Mumbai (supra); in case of
Union of India and others Vs. Adani Exports Ltd. and another
(supra); in case of National Textile Corporation Ltd. and others
(supra); in case of Alchemist Limited & Anr (supra); in case of Eastern
Coalfields Ltd. and others (supra); and in case of Rajendra
Ramchandra Kavalekar (supra).
– 14 –
29. In case of Sakiri Vasu (supra), the Supreme Court relying
upon an earlier decision of that court in case of C.B.I. Vs. Rajesh
Gandhi reported in (1996) 11 SCC 253 held that no one can insist that an
offence be investigated by a particular agency and an aggrieved person
can only claim that the offence he alleges be investigated properly, but he
has no right to claim that it be investigated by any particular agency of his
choice.
30. In case of Kusum Ingots & Alloys Ltd. (supra), the Apex
Court had held that although in view of Section 141 of the Code of Civil
Procedure the provisions thereof would not apply to writ proceedings, the
phraseology used in Section 20 (c ) of the Code of Civil Procedure and
clause (2) of Article 226 being in pari materia, the decisions of that Court
rendered on interpretation of Section 20( c) CPC shall apply to the writ
proceedings also. It was also pointed out that the entire bundle of facts
pleaded need not constitute a cause of action as what is necessary to be
proved, before the petitioner could obtain a decree, was the material facts
i.e. integral facts and such facts pleaded in the writ petition must have
nexus on the basis whereof a prayer can be granted, whereas those facts
which have nothing to do with the prayer made therein cannot be said to
give rise to a cause of action which would confer jurisdiction on the
Court. It was also observed that passing of legislation by itself did not
confer any such right to file a writ petition unless a cause of action arises
therefor and for deciding such question a distinction between a legislation
and executive action should be borne in mind while determining the said
question.
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31. In case of Navinchandra N. Majithia (supra), the
Supreme Court had held that so far the question of territorial jurisdiction
with reference to a criminal offence is concerned, the main factor to be
considered is the place where the alleged offence was committed, but in
case where the offence was committed partly in one local area and partly
in another local area the court in either of the localities can exercise
jurisdiction to try the case and in that connection it had relied upon
sections 178 and 179 of the Code of Criminal Procedure. A similar view
was taken by the Apex Court in case of Rakesh Kumar Goel (supra).
32. Apart from the aforesaid decisions cited and relied upon
by learned counsel for both the parties, the Apex Court in a recent
decision in case of State of West Bengal and others Vs. Committee
For Protection of Democratic Rights, West Bengal and others,
reported in (2010) 3 Supreme court Cases 571 had specifically held that a
direction by the High Court in exercise of its jurisdiction under Article
226 of the Constitution of India to C.B.I. to investigate a cognizable
offence alleged to have been committed within the territory of State
without the consent of that State will neither impinge upon the federal
structure of the Constitution nor violate the doctrine of separation of
power and shall be valid in law. It was also held that being the protectors
of civil liberties of the citizens, the Supreme court and the High Courts
have not only the power and jurisdiction but also an obligation to protect
the fundamental rights, guaranteed by Part III in general and under Article
21 of the Constitution in particular, zealously and vigilantly.
33. From the admitted facts pleaded by the parties, as detailed
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above, it is quite apparent that the alleged offence was committed entirely
in the city of Mumbai and no part of it was committed within any locality
under the jurisdiction of this Court. So far the question of handing over
the body of deceased is concerned, even if it was handed over to the
petitioner at Patna by the Mumbai police it cannot be termed as an
offence or any part of the offence of murdering the deceased Rahul Raj
which even, according to the petitioner, had taken place in the city of
Mumbai. Hence mere handing over the body of the deceased to petitioner
at Patna cannot confer any jurisdiction upon this court under Article
226(2) of the Constitution of India.
34. In the said factual circumstances and the principles of law
settled by the Apex Court in its various decisions, some of which are
detailed above, this court has no jurisdiction to grant the relief claimed by
the petitioner in this writ petition. So far the decisions relied upon by
learned counsel for the petitioner are concerned, they were all passed by
the Apex Court which has jurisdiction over all the States and Union
Territories of India and hence the claim of the petitioner, cause of action
for which having arisen at Mumbai, could have been very well raised by
him before the Supreme Court.
35. With the aforesaid observations, this writ petition is
disposed of.
(S. N. Hussain, J.)
Sunil