When Saviour Becomes the Abuser- Uttarakhand HC Orders CBI Probe in Custodial Death Case

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Uttarakhand High Court reviewed a petition of transfer of enquiry for FIR no. – 261 of 2021 of Haldwani police to CBI.

A report had been lodged on 03-03-2021 under Section 323, 504, 345 of IPC and under section 9 and 10 of POCSO Act against the husband of the petitioner and he was arrested on the same date. The district court judge sent him into judicial custody, where he was found dead, and by post mortem it had been found out that he had several injuries on his body. The petitioner approached the magistrate to transfer the case to the CBI.

The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. However, more than 45 days after the death of a person in judicial custody. The question that then arose was, How can a fair investigation be ensured?

“Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose an investigating agency at the drop of a hat.”

The Court focused on the fact that it was obvious that rates of caretaker brutality and passing have come up over and over for adjudication under the steady gaze of the Higher Courts and relied upon precedents such as D.K. Basu v. State of West Bengal (2015) & Lalita Kumari v. Government of Uttar Pradesh (2014).

The Court quoted the part of judgment of Inhuman Conditions in 1382 Prisons, In Re., (2017) i.e. “There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavor of the constitutional courts in our country, over several decades, to consistently flag this issue.”

The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 expressed that the force which is vested in the better court than move the investigation to another office, like the CBI, should be used with alertness.

The court finally decided that “the instant case was not an ordinary case”. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which investigation should definitely be transferred to CBI.

[Bharti v. State of Uttarakhand, Writ Petition (Criminal) No.924 of 2021, decided on 22-07-2021]