IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (CRL) No. 758 of 2025 Chandra Lekha. ………………… Petitioner. Versus State of Uttarakhand and others. ……………Respondents. Present: Mr. Rahul Consul, learned counsel for the petitioner. Mr. Sandeep Sharma, learned A.G.A. with Mrs. Rangoli Purohit, learned Brief Holder for the State. Mr. Piyush Garg, learned counsel for CBI. Mr. Lalit Sharma and Mr. S.R.S. Gill, learned counsel for the co-accused. Hon’ble Mr. Justice Rakesh Thapliyal, J. 1. By the instant petition the petitioner herein Ms. Chandra Lekha the victim and the wife of the deceased Ram Shankar praying for transfer of investigation of First Information Report dated 13.12.2024 bearing FIR No. 0307 of 2024 P.S. Khanpur, District Haridwar to the respondent no. 4 – the Central Bureau of Investigation. 2. The brief facts of the case are that a missing report no. 13 of 2024 was lodged by the father-in-law of the petitioner for missing of his son Ram Shankar and on the basis of the missing report a dead body was recovered on pointing out of one namely Robin on 13.12.2024 and thereafter a First Information Report was registered on 13.12.2024 as FIR No. 0307 of 2024 at P.S. Khanpur, District Haridwar, wherein, three persons namely Robin, Akshay and one Ankit were implicated for the offences punishable under sections 103(1), 238, 3(5) and 311 of BNS, 2023. 3. It is contended in the petition that the investigation was conducted by the local police in a very causal manner, which is evident from the fact that the car which was used in the 2 commission of crime belongs to one Anil Kumar was neither taken into custody nor any forensic examination was done though just before the incident the car was in the custody of one person namely Sonu Fauji. In paragraph-6 reference has been made of an order dated 26.06.2025 passed in bail application moved by one of the accused Robin bearing Bail Application No. 551 of 2025 and by referring the said order Mr. Rahul Consul, learned counsel for the petitioner, submits that the aforesaid order reveals that the investigation was carried out in a very casual manner. The relevant extract of the order dated 26.06.2025 is extracted herein as under: “5. What this Court observed that the investigation was carried out in a very casual manner and keeping in mind that the statutory period for filing the charge sheet is 90 days, in a hurried manner the charge sheet was filed before the expiry of statutory period. 6. So many lacunas have been pointed out by Mr. Aditya Singh learned counsel for the applicant in respect of the investigation and in reference to this he brings to the notice the statements of two prosecution witnesses, namely, Anil Kumar and one Sultan Singh, father of Sonu Fauji. Anil Kumar is a person who owned vehicle UP12AN 8378, which according to the prosecution was used in commission of the crime and Sultan Singh is the father of Sonu Fauji who took car from Anil Kumar on 06.12.2024. 7. In this case, missing report was filed on 09.12.2024 with the complaint that from 08.12.2024 Ramshankar (deceased) was missing. On this missing report the investigation was commenced and during investigation it was found that there was a transaction of Rs. 30,000/- with two persons, namely, Praveen and Vinay servingin a petrol pump who paid Rs. 30000/- in cash to the applicant Robbin and in turn the applicant refund the amount by way of UPI transaction. In furtherance of the investigation one Anil Kumar was also interrogated (who owned the car used in the crime) who informed that the vehicle was took over by Sonu Fauji on 06.12.2024. On further investigation it was found by the I.O. that Sonu Fauji left to join fauj. Since, Sonu Fauji left to join Fauj, consequently his father was interrogated by the I.O. who informed that the car took by the present applicant on 08.12.2024. 3 8. The statement of Anil Kumar and the statement of father of Sonu Fauji are placed on record along with the case diary and by showing the statements of these two prosecution witnesses the counsel for the applicant argued that it is absolutely incorrect that Sonu Fauji left for Fauj, since, as per the statement of Anil Kumar and his father Sonu Fauji was in the village on the date when the incident was happened. 9. On perusal of the case diary it reveals that charge sheet was filed against the applicant, since, as per the prosecution Sonu Fauji left to join the Fauj. The case diary further reveals that Anil Kumar is close relative of Sonu Fauji. Case diary further reveals that as per the prosecution the dead body of the deceased was kept in the car of Anil Kumar but no forensic examination of the car was carried out. 10. Apart from this, Mr. Aditya Singh submits that the recovery of car also appears to be doubtful since as per the prosecution, car used in the crime was recovered on 14.12.2024 on the instance of the present applicant from the place behind D.S. Rolling Company. The recovery memo is placed on record at page 45 and by referring the recovery memo Mr. Aditya Singh bring to the notice the statement of Anil Kumar, the copy of which is enclosed as Annexure 14 to the counter affidavit, on perusal of which it reveals that Anil Kumar has stated in his statement that Robbin returned the car on 10.12.2024. The question is if the car was returned to Anil Kumar by Robbin on 10.12.2024, then how the car was recovered on the instance of present applicant. Prima facie, on perusal of the statements of Anil Kumar and father of Sonu Fauji including recovery memo and case diary reveals that the investigation to somehow is faulty. 11. Since, the investigating officer is present in Court, let he may file his personal affidavit to explain whether there is any fault in his investigation and if not then he has to give answer in the affidavit with regard to the observations as made above.” 4. Mr. Consul further argued that despite sufficient material the Investigating Officer gives a clean chit to other suspect persons namely Anil Kumar and Sonu Fauji and filed the charge- sheet. 5. I gone through with the order rejecting bail application of Robin and it reveals that certain crucial aspects have not been 4 included in the investigation by the local police. Photographs of the dead body are also enclosed along with the CCTV footages. 6. In this petition the counter affidavit has been filed by the Investigating Officer and certain relevant extracts of the counter affidavit are also being extracted herein as under: “5. That in reply to the contents of Para 02, 03 and 04 of the affidavit it is submitted that at Police Station Khanpur, District Haridwar, a missing person report No. 13/2024 Missing Ramshankar son of Nixa Ram resident of village Kudkawala, Police Station Daiwala, District Dehradun, was registered regarding his son Ram Shankar coming from his house to Khanpur and not returning home. After the investigation it came to light that Robin and Minor (X) had told that we along with our friend Ankit son of Amarpal had caught Ramshankar to rob him but Ramshankar had only Rs. 400, Ramshankar was threatening to send us to jail. Then we got angry with Ramshankar and we took Ramshankar's mobile phone and threatened him and asked for his phone password and Phone Pay PIN. Then we were afraid that Ramshankar might send us to jail and he was shouting. Then Ankit put tape on Ramshankar's mouth and shut his mouth. After some time Ramshankar died. Then we got scared and Robin went home and asked for Sonu Fauji's car from home. Then we put Ramshankar's dead body in Sonu Fauji's car no. UP12 AN 8378 KUV 100 and took it to the banks of Banganga river at Chandpuri Ghat. Then we put Ramshankar's dead body in a sack and a bag and dug a pit in the sand. They pressed the chest and also put salt on it and returned home rand on the information of the accused Robin, Minor X, the dead body of Ramshankar was recovered from the bank of the river Wanganga, ahead of the ghat of Chandpuri Khurva (Khadar) and was buried in the sand. Ramshankar's family members identified it on the spot. With the help of the field unit, a plastic piece recovered from the place of recovery on which MAIZE STARCH is written in English was kept in a polybag, a jute sack in a polling bag and the Khaki tape tied on the mouth of the deceased was kept in a polybag, 03 packets of salt Tara Salt were kept in polybag, blood soaked sand and plain sand recovered from the spot sand was packed in different plastic containers, one pen colour wagon on which FLAIR was written in English, separate seals and survey stamps were made and sample stamps were prepared which have been sent to the Forensic Science Laboratory Dehradun for testing, the test report of which is awaited. On the other hand Robin Sonu went to Mangalore Petrol Pump to withdraw money by taking Fauji's car and Ramshankar's phone and withdrew a total of 30000 (thirty 5 thousand rupees) separately. True/correct typed version/photocopy of the statements of witnesses recorded under section 180 of BNSS namely Ramesh Chandra (complainant/alongwith subsequent statement), S.I. Sameep Pandey, Karan Singh, Rohit Rana, Anil Kumar, Sultan Singh, Praveen Kumar, Sanjay Pal, Dr. Sarfarz Ahmad alongwith Post Mortem as well as Inquest Report, Receipt dated 11.11.2023, Recovery Memo and CDR are being filed herewith and marked as Annexure No. 02 (colly), 03, 04, 05, 06, 07, 08, 09, 10 (colly), 11, 12 and 13 respectively, to this affidavit.” 7. Para-8 of the counter affidavit is also being reproduced herein as under: “8. That the contents of Para 07 to 09 of the affidavit the statement is wrong, whereas in the investigation, on the indication of the accused, the body of deceased Ramshankar was recovered buried in the sand on the banks of Wanganga on the indication of Robin and Minor X of Wanganga river and on the indication of the accused, the mobile phone, cheque book of deceased Ramshankar and the four-wheeler used in the incident, registration number UP 12 AN 8378 KUV 100 were recovered. During the investigation of the above incident, the registered owner of the car no. UP12 AN 8378 KUV 100, Anil Kumar alias Sunil and the currents occupant of this vehicle, Sultan Singh, were questioned and thei statements were recorded. Sultan's son Sonu is a soldier. Sultan Singh ha mentioned in his statement that on the day of the above inciden (08.12.2024), my son Sonu Fauji had gone to Jalalpur Neela village which has been confirmed by the CDR of Sonu Fauji's mobile and t register owner of the vehicle used in commission of crime was not found any evidence to be involved.” 8. Mr. Lalit Sharma and Mr. S.R.S. Gill, learned counsel who are appearing for the accused Robin in connected second bail application, also submits that a specific plea has been taken in the bail application that the investigation is faulty and the charge- sheet has been filed in a very mechanical manner without collecting scientific evidence and now trial is going on without FSL report which is still awaited. 9. When a specific query is asked from the learned A.G.A. why in absence of the FSL report charge-sheet has been filed he failed to give any satisfactory response. 6 10. Mr. Rahul Consul, learned counsel for the petitioner, submits that even after observation of this court in the bail application of co-accused Robin that investigation is faulty no attempt was made to proceed for further investigation by the investigating agency. 11. Mr. Rahul Consul, learned counsel for the petitioner, placed reliance to the judgment of the Hon’ble Apex Court in the case of State of West Bengal and Others vs. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 and submits that this is a fit case in which the investigation should be transferred to the CBI. 12. I peruse the judgment of the Hon’ble Apex Court in the case of West Bengal and Others (supra), wherein, it has been held that the High courts are authorized under Article 226 of the Constitution of India to issue direction, orders or writs to any person or authority including any government to enforce fundamental rights and for any other purposes. 13. In the aforesaid judgment the Hon’ble Supreme Court observed that the words “life” and “personal liberty” are used under Article 21 as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of person’s animal existence. All those aspects of life which make a person life with human dignity are including within the meaning of word “life” and 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. Article 21 in its broad application not only takes within its scope enforcement of rights of an accused but also rights of the victim. In certain situation even witness of crime may seek for and shall 7 granted protection by the State. The right to life and personal liberty is paramount likewise if Article 14 and 19 are put out of operation. 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. Therefore, a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a 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. 14. It has also been held by the Hon’ble Supreme Court that the order directing an enquiry by CBI should be passed only when the High Court after considering the material on record comes to the conclusion that such material does disclose a prima-facie case calling for investigation by the CBI or any other similar agency. The conclusion as drawn by the Hon’ble Apex Court in the aforesaid case is in paragraph 68, 69 and 70, which are being reproduced herein as under: “ 68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) 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 8 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. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review". (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution. (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to 9 why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 69.In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a 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. Being the protectors of civil liberties of the citizens, this 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. 70.Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations 10 against the local police. This extra-ordinary 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. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” 15. So far as the present case is concerned admittedly there are so many flaws in the investigation carried out by the local police. There is no scientific evidence and even the conduct of two persons namely Anil Kumar and Sonu Fauji have not been properly investigated, therefore, this court is of the firm opinion that the investigation was carried out by the local police is completely faulty, therefore, the matter deserves to be transferred to the CBI for further investigation. 16. At this juncture Mr. Sandeep Sharma, learned A.G.A. argued that trial has already been commenced, therefore, at this stage investigation cannot be transferred. The submissions as advanced by the learned A.G.A. cannot be accepted simply for the reason that the charge-sheet has been filed without FSL report, which is still awaited though the trial has been commenced. Even otherwise, if this court comes to the conclusion that there is some lapse on the part of the local police while conducting the investigation then even if the trial has been commenced, this court under Article 226 of the Constitution of India can refer the matter to the CBI for the purpose of further investigation. 17. In view of the observation and discussion as above the instant writ petition is allowed and the matter is transferred to the CBI forthwith for further investigation of the First Information 11 Report dated 13.12.2024 bearing FIR No. 0307 of 2024 P.S. Khanpur, District Haridwar. The local Investigating Agency is directed to handover the entire record including the charge-sheet during investigation to the CBI forthwith. 18. In addition to this, since now the trial has already been commenced the CBI is given liberty to move an appropriate application before the concerned court as per law. 19. No order as to costs. (Rakesh Thapliyal, J.) 08.04.2026 PR