- (1.) THIS petition has been filed with the prayer that investigation of FIR No.247/2010 registered at Police Station Kotwali Jahalawar for the offences under Sections 302 and 120 B IPC be transferred to Central Bureau of Investigation such that fair investigation in the said FIR may be conducted and actual culprits responsible for the murder of deceased Dheeraj Tripathi be brought to justice.
(2.) THE facts of the case are that the deceased Dheeraj Gothwal was studying in IInd year of Jhalawar Medical College. THE allegation in the FIR lodged as aforesaid was that Dheeraj Gothwal sustained head injury on 24-5-2010 and died therefrom, purportedly due to falling from balcony of the hostel of Jhalawar Medical College. According to petitioner the falling of the deceased Dheeraj Gothwal appeared to be a case of murder and the accidental fall from the balcony of the hostel was only a concoction to protect the guilty. According to the petitioner -the complainant father -on receiving information rushed to Jhalawar. However in the course of treatment Dheeraj Gothwal expired. About eight days subsequent to the incident of 24-5-2010, a FIR came to be registered on or about 2-6-2010 at Police Station Kotwali Jhalawar as 247/2010 for the offences under sections 302 and 120 B IPC at the instance of the father of the deceased Dheeraj Gothwal -Subhash Chandra. It was alleged in the FIR that deceased Dheeraj Gothwal was called prior to the incident to the hostel by Ram Kishan Chaudhary and at the hostel Ramji Lal Meena, Bharat Bhushan Meena and Naveen Yadav were present, who were suspected to have pushed the deceased Dheeraj Gothwal over the balcony of the hostel, owing to which he sustained grievous head injury and was rushed to Jhalawar Medical College. Further allegation in the FIR was that Dr.P.K.Gupta, Dean Jhalawar Medical College, Dr.Sushma Pandey, Superintendent, Jhalawar Medical College, and Head Surgery of Hospital Dr.R.C. Nagar, Hostel Warden Dr.B.L.Bhatia, Neuro Surgen of Kota Government Hospital Dr.Bhom Singh and Dr.Krishna did not make any serious attempt to properly treat and save the injured Dheeraj Gothwal and were negligent in spite of serious head injuries. It was further alleged in the FIR that for about 14 hours after the fall no proper treatment was administered to Dheeraj, and consequently aforesaid persons at the hospital were liable for negligence and were also amiss in failing to inform the police about the incident in an attempt to suppress the genesis of the incident and its perperators. The delay in lodging FIR was attributed to shock of father following his son's death. On the aforesaid FIR No.247/2010 registered at Police Station Kotwali Jhalawar, the police appeared to have set out investigation, recorded statements of Ram Kishan Chaudhary, Ramji Lal Meena, Bharat Bhushan Meena and Naveen Yadav named in the FIR, as also others and on the basis of detailed investigation and material on record obtained from the hospital/s where Dheeraj Gothwal was treated following the head injury, it was concluded that Dheeraj Gothwal died as a result of an accidental fall from the balcony of the hostel owing to which he had sustained grievous injury on his head. It was also found in the course of investigation that there was no material available in hospital records to establish any negligence in treating the injured Dheeraj. It was recorded in the police report that after the grievously injured Dheeraj Gothwal was taken to hospital Jhalawar at about 12.45 AM, with a view of providing better treatment for his serious injuries he was transferred to Kota Government Hospital in a properly equipped Ambulance in the company of a Doctor, Nurse stocked with essential medicines. Dheeraj Gothwal was admitted at Kota Government Hospital at 3.45 am after the ambulance travelled 80 km within three hours of Dheeraj having been first taken to Jhalawar Hospital. From the investigation the police found that no offence under section 302 or 120 B IPC was made out and the death of Dheeraj Gothwal was merely a result of an accident. Based on the aforesaid investigation, the police filed a negative final report with the court of Judicial Magistrate Jhalawar on 7-4-2011. Heard. I have considered the arguments of the learned counsel for the petitioner, the writ petition, the contents of FIR No.247/2010 as also the final negative report submitted by the police before the Judicial Magistrate Jhalawar on conclusion of investigation. Counsel for the petitioner is not in a position to point out as to what proceedings were taken by the complainant before the Judicial Magistrate Jhalawar following a final negative report and as to whether any protest petition was filed and if so filed what transpired thereon. The Hon'ble Supreme Court in case of State of West Bengal Vs. Sampat Lal [AIR 1985 SC 195] has held that appointment of a Special Officer for investigation with a direction to inquire into the commission of an offence can only be when there has not been a proper and fair investigation indicative of the lethargy and malafides of the investigating agency. It was held that where there is a well defined hierarchical administrative set up of the police in the State, transfer investigation to another agency was likely to create an impression that everything was not well with the state police and such transfer was likely to cast a stigma on the state police. In case of State of West Bengal Vs. Committee for Protection of Democratic Rights [(2010) 3 SCC 571], the Hon'ble Supreme court has held that the court should not interfere with investigation and such power must be exercised sparingly, cautiously and only in exceptional situations where it becomes necessary to provide credibility to and instil confidence in investigations underway in the eye of the general public or where the incident under investigation has national and international ramifications or where such order of transfer of investigation may be necessary for doing complete justice, on the court being satisfied that the material before it disclosed a prima facie case calling for investigation by CBI, the power to transfer investigation could be exercised. It was further held that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, came to a conclusion that such material did disclose a prima facie case calling for an investigation by CBI.
(3.) HAVING heard learned counsel for the petitioner and considering the material available on record and bearing in mind the enunciation of law on the subject/ issue in this petition by the Hon'ble Apex Court, I find no ground for allowing the prayer of the petitioner for transferring the investigation of the case to CBI. No allegation of any malafide or lethargy has been made against the state Investigating Agency nor are important state political and high/ senior police officials alleged to be involved to create a reasonable apprehension in the mind of the court that justice in the case of the complainant petitioner was not done or would not be done. From the reading of the Final Report (negative) filed before the Judicial Magistrate Jhalawar it prima facie appears that the police has conducted a fair investigation and after recording statements of those named and detailed in the FIR and others and after considering hospital records of the treatment of the deceased and other aspects relating to medical jurisprudence, come to a conclusion that the death of deceased Dheeraj Gothwal was occasioned owing to his accidentally falling from the balcony of hostel. It is important to note that in the FIR or even in the writ petition no allegations have been made of threats to the deceased Dheeraj Gothwal by any person or even any whisper of motive attributed to any person for causing the death of Dheeraj Gothwal. No enmity has been pointed out with reference to which the police could have addressed the investigation. No definitive leads are stated to have been given by the complainant to the police which were allegedly not followed by the investigating agency. The investigating agency has interrogated every person named in the FIR and all conceivable persons present at the time of accident and scrutinised hospital records and recorded statements of relevant witnesses. On the contrary the lack of seriousness of the petitioner complainant in this matter is transparently evident from the failure to even instruct his Advocate before this court of the steps taken before the concerned Magistrate if the petitioner was dissatisfied with police investigation leading to a negative final report. Mere dissatisfaction with the outcome of an investigation without more is no ground to transfer of the investigation to the CBI. If at all the petitioner was dissatisfied with the negative final report filed by the police before the Judicial Magistrate Jhalawar, it was for the petitioner to take his proceedings before the concerned magistrate by laying a protest petition. In the facts of the case I am thus of the view that there is no occasion to allow the prayer made in the writ petition to transfer the investigation to the CBI. The writ petition is dismissed being without any merit. However, any observation made in this order will not affect in any way the proceeding which the petitioner may take before any competent court impugning the filing of Final Report (negative) on 7-4-2011 before Judicial Magistrate Jhalawar. All corrections made in the order have been incorporated in the order being emailed.;