1. Shri Somesh Goel, Director General of Police, Himachal Pradesh and Shri D.W. Negi, Superintendent of Police, Shimla, are present in person.

2. In the facts and circumstances of the case, the Union of India, through its Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, North Block, New Delhi, is impleaded as party-respondent No.8.

3. Mr. Ashok Sharma, learned Assistant Solicitor General of India, appears and waives service of notice on behalf of the newly added respondent No.8.

4. In the post lunch session, when the matter was taken up, we were informed by the learned Advocate General that Malkhana of Police Station at Kotkhai, District Shimla, H.P., stands ransacked; some of the files kept in the Police Station burnt; five vehicles of the police department burnt; Fire Brigade is not allowed by the mob to enter the area; and three police personnel injured, who stand referred for medical treatment to the respective hospitals. Also, though there is huge public outcry, yet police is exercising restraint in maintaining the law and order situation. It is further submitted that in view of peculiar facts and circumstances, matter warrants investigation to be conducted by the Central Bureau of Investigation (in short CBI). It is further prayed that necessary orders in that regard be passed.

5. Mr. Anshul Bansal, learned counsel, states that even though Director of CBI received communication dated 14.07.2017 (Annexure R-1) on 15.07.2017, but however, since no orders under the provisions of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the), and more specifically Section 5 of the Act, stand issued by the appropriate authority, no further action is taken.

6. At this stage, refuting the same, learned Advocate General, states that requisite formalities already stand completed, more so, under Section 5 of the Act, by the competent authority and matter already submitted to the authorities concerned.

7. The fact of the matter being that today i.e. 19.07.2017, investigation as is so desired by the State, has not been initiated by the CBI, be it for whatever reason.

8. Under these circumstances, we pose ourselves a question as to whether we should intervene, keeping in view the attending facts and circumstances, so far brought to our notice or not.

9. A little background leading to the todays proceedings.

10. On the basis of news report (Tribune) dated 09.07.2017; Amar Ujala dated 09.07.017 and Punjab Kesri dated 10.07.2017, this Court suo motu took cognizance. The news report pertains to an unfortunate incident where allegedly a 16 years old school child (girl) was raped and murdered. On 4.7.2017, when the juvenile did not return home from school, her parents launched a search party and also informed the police. Unfortunately, two days thereafter her dead body was found in a jungle. Inter alia, amongst others, the Civil Society has been clamouring for justice.

11. When the matter came up for hearing on 10.07.2017, on the assurance, so made out by the learned Advocate General, at that time, that fair investigation is in progress and none would be allowed to go scot-free, matter was simply adjourned for 02.08.2017, by which date instructions were to be obtained.

12. It is a matter of record that with the recovery of the dead body, FIR, in relation to the offence, came to be registered at the concerned Police Station on 6.7.2017 and on 12.7.2017 a Special Investigation Team was constituted by the State. During the course of investigation certain persons (five in number) were arrested.

13. On 17.07.2017, by way of mention memo, a request was made to prepone the matter, keeping in view the "seriousness and sensitive issue involved" and "further subsequent developments", which had taken place. It was a simple Mention Memo, as significantly, no application for preponement of the case was filed. However, the instant application was filed in the later part of the day. On 18.07.2017, when again a request was made for listing of the said application, on urgent basis, same day the matter was taken on board, when we passed the following order:

"CMP No. 5715/2017

Learned Advocate General, under instructions, emphasizes that direction of handing over the matter to the CBI be issued as the State has got no objection, in fact, the State has taken appropriate steps desiring the same in terms of communications dated 14.7.2017 (Annexure R-1) and 15.7.2017 (Annexure R-2)). Application for preponement is allowed.

Be listed on 19.7.2017, before the Bench which had passed the order dated 12.7.2017."

14. Since the application was silent with regard to the seriousness and sensitivity of the issue involved, as also subsequent developments, today, i.e. 19.7.2017, in the morning, this Court passed the following order:-

"Shri Somesh Goel, Director General of Police, Himachal Pradesh and Shri D.W. Negi, Superintendent of Police, Shimla, are present in person.

2. In the morning, we were informed by the learned Advocate General that one of the co-accused/suspects has died in the police custody.

3. We find the Central Bureau of Investigation, through its Director, is required to be impleaded as party-respondent No.7. Ordered accordingly. Registry is directed to make necessary corrections in the memo of parties.

4. Mr. Anshul Bansal, Advocate, appears and waives service of notice on behalf of newly added respondent No.7.

5. We direct Chief Secretary to the Government of Himachal Pradesh and the Director General of Police, Himachal Pradesh, to file their personal affidavits, stating the events, which led to the issuance of communication dated 14.7.2017 (Annexure R-1).

6. At this stage, learned Advocate General states that the affidavits shall be filed during the course of the day. Accordingly, we adjourn the matter for hearing in the post-lunch session. Mr. Anshul Bansal, learned counsel is directed to obtain instructions as to what action stands taken pursuant to communications dated 14.7.2017 (Annexure R-1) and 15.7.2017 (Annexure R-2).

Registrar (Judicial) of this Court is directed to forthwith supply complete paper book to Shri Anshul Bansal, learned counsel."

15. In the post lunch session, during the course of hearing, we have taken on record the affidavit of the Chief Secretary to the Government of Himachal Pradesh, so handed over in Court. Learned Advocate General, clarifies that averments made in the affidavit are adopted by the Director General of Police, Himachal Pradesh (respondent No.3).

16. From the affidavit, at least one thing is clear that a Special Investigation Team (in short SIT) headed by not less than a person of the status of Inspector General of Police, Southern Range, Shimla, was constituted on 12.07.2017 and certain arrests were made. The matter is still under investigation. However, it also stands averred that during the course of such investigation, through social media, it came to be spread that the actual culprits being influential persons of the area are sought to be saved by the police and innocent persons framed. Also, there have been violent protests at large number of places within and outside the State, in relation to which also, police has taken consequential action. Crucially, affidavit also states that in the intervening night of 18/19.07.2017, one of the accused (name concealed) died in the lockup of Police Station, Kotkhai, District Shimla, H.P.

17. It is in this backdrop, we again pose the following questions to ourselves - (i) as to whether we should dispose of the present petition without passing any further orders, for the reason that SIT already stood constituted by the State and that the matter is under investigation; (ii) as to whether we should wait for the authorities, as envisaged under the provisions of the to issue appropriate directions for the CBI to conduct investigation; and (iii) as to whether pursuant to our having suo motu taken cognizance, proceed to issue appropriate directions, more so, as prayed for by the State.

18. What is the extent of scope and power, which a constitutional Court, under Article 226 of the Constitution of India, can exercise, in referring the matter to the CBI, is now well settled.

19. This Court in CWP No.169 of 2017, titled as M/s Paonta HP Centre v. Union of India (order dated 16.5.2017), had an occasion to deal with a case, where even though no consent was accorded by the State, under Section 6 of the Act, yet issued directions, asking the CBI to investigate the matter and all this, keeping in view - (a) seriousness of the allegations, (b) the enormity and the extent of the crime, and (c) prima facie coming to the conclusion that there is some truth in the allegations, based on cogent material. This Court observed as under:

"16. When larger public interest is involved, it is the responsibility of the Constitutional Court, to assure judicial legitimacy and accountability. (See: Sahid Balwa v. Union of India and others, (2014) 4 SCC 687.

17. Their Lordships of the Honble Supreme Court in Central Bureau of Investigation through S.P. Jaipur v. State of Rajasthan and another, (2001) 3 SCC 333 have held that the powers of the High Court under Article 226 of the Constitution of India or the Supreme Court under Article 32 or Article 142 (1) of the Constitution can be invoked, though sparingly, for giving such direction to Central Bureau of Investigation in certain cases. Their Lordships have held as under:

""14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to the CBI to investigate in certain cases, [vide Kashmeri Devi v. Delhi Administration and anr. (1988 (Suppl.) SCC 482 and Maniyeri Madhavan v. Sub-Inspector of Police and ors. {1994 (1) SCC 536 }]. A two Judge Bench of this Court has by an order dated 10.3.1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

15. In Mohammed Anis v. Union of India and ors. {1994 Supple (1) SCC 145} Ahmadi, J. (as his Lordship then was) has observed thus (SCC pp. 148-49, para 6):

"6. True it is , that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a larger Bench everything does not grind to a halt. The reference to the expression court in that order cannot in the context mean the Apex Court for the reason that the Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or matter pending before it."

18. Their Lordships of the Honble Supreme Court in Bhavesh Jayanti Lakhani v. State of Maharashtra and others, (2009) 9 SCC 551 have reiterated that superior courts have power to issue direction to Central Bureau of Investigation to investigate a matter. Their Lordships have held as under:

"99. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by CBI by the superior courts of the country is permissible. As the law stands, we place on record such directions by the superior courts are permissible."

19. Their Lordships of the Honble Supreme court in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 have held as under:-

"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 assed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill 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.""

20. Further learned Advocate General invites attention of this Court to the following observations made by a Constitution Bench (Five-Judges) of the apex Court in Committee for Protection of Democratic Rights, West Bengal (supra), (2010) 3 SCC 571 :

"68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:

(i) to (vi) ..........................

(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."

21. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others, (2004) 4 SCC 158 , while dealing with a case where the complainant came knocking the doors of the Court, alleging mistrial for whatever reason, the Court directed investigation and retrial, observing that Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice, often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of a particular case, protecting its ability to function as a Court of law in the future, as in the case before it.

22. Taking note of its earlier observations, so made in its previous decisions, the apex Court in Jakia Nasim Ahesan & another v. State of Gujarat & others, (2011) 12 SCC 302 , reiterated that the jurisdiction of the Court to issue a writ of continuous mandamus is only to ensure that proper investigation is carried out.

23. At this juncture, we clarify that we have not expressed any opinion, with regard to the fairness or correctness of the investigation carried out by the State, which we leave it open to be considered at an appropriate stage.

24. Though today, it is not the case before us, but we may only take note of the following observations made by the apex Court in Sudipta Lenka v. State of Odisha and others, (2014) 11 SCC 527 :

"14. Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200 , really, carries forward the law laid down in Gudalure M.J. Cherian [(1992) 1 SCC 397] and Punjab & Haryana High Court Bar Assn., [(1994) 1 SCC 616] which position finds reflection in para 60 of the report which is in the following terms :

"60.....Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI."

(Emphasis supplied)

15. The position has also been succinctly summed up in Disha to which one of us (the learned Chief Justice) was a party by holding that transfer of the investigation to the Central Bureau of Investigation or any other specialised agency, notwithstanding the filing of the chargesheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. Further investigation of a criminal case after the chargesheet has been filed in a competent court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal Procedure. Hence it is imperative that the said power, which, though, will always vest in a Constitutional Court, should be exercised only in situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law."

25. Prominence of truth is the guiding star of judicial process, forming the foundation of justice. What is "fair investigation", we need not dilate, save and except, reproduce the observations made by the apex Court in Pooja Pal v. Union of India and others, (2016) 3 SCC 135 :

"....The primacy of credibility and confidence in investigations and a need for complete justice and enforcement of fundamental rights judged on the touchstone of high public interest and the paramountcy of the rule of law. Cause of justice is the ultimate determinant for the course to be adopted by the investigating agency. It is judicially acknowledged that "fair trial" includes "fair investigation", as is envisaged under Articles 20 & 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard and fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.

"Any criminal offence is one against the society at large casting an onerous responsibility on the state, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self imposed restraint, the plentitude and content thereof can neither be enervated nor moderated by any legislation."

"As succinctly summarised by this Court in Court in Committee for Protection of Democratic Right (supra), the extra ordinary power of the Constitutional Courts in directing the CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not inter-dependent on each other."

(Emphasis supplied)

26. Now, coming to the attending facts and circumstances, as brought to our notice, over a very unfortunate incident, there is an outrage, more so by that of Civil Society. Perhaps, as the public wants to believe, investigation may be tardy, lethargic, lopsided, motivated or malafide, but today we are none to comment thereupon. Outrage of Civil Society is well founded or not, today we may not adjudicate, more so in the absence of material before us, but this Court cannot be oblivious to the fact that public property stands damaged. There is huge outcry among the public of the manner in which the State SIT has conducted the investigation. One more death has taken place in police custody. Seriousness of the allegations and enormity of crime is another factor which cannot be ignored.

27. Under these circumstances, we cannot resort to the first two options, which we had posed to ourselves. Definitely, in our considered view and in view of all the aforesaid observations and backdrop, interference by this Court is required, more so when the State itself wants to have the matter investigated by an outside agency, i.e. Central Bureau of Investigation, a premier Investigating Agency of the country, on whom the State itself has reposed faith and confidence.

28. Therefore, deeming it as our duty, in exercise of our writ jurisdiction, we interfere and direct as under:

(i) We entrust the investigation of FIR No.97 of 2017, dated 6.7.2017, under Sections 302, 376 of the Indian Penal Code and Section 4 of the POCSO Act; FIR No.101 of 2017, dated 19.7.2017, under Section 302 of the Indian Penal Code, both registered at Police Station, Kotkhai, District Shimla, Himachal Pradesh, as also role played by the officers/officials/ functionaries of the State, in connection thereto, to the Central Bureau of Investigation.

(ii) Direct the Director CBI to forthwith constitute a Special Investigation Team (SIT) of not less than three Officers, headed by the Superintendent of Police with two other Officers not below the rank of Deputy Superintendent of Police and immediately start the investigation.

(iii) Record pertaining to the investigation conducted thus far by the SIT, so constituted by the State be handed over to the SIT of the CBI.

(iv) The State shall ensure that the entire evidence is preserved, protected and not tampered with. The Director General of Police, Himachal Pradesh, who is present in the Court, assures of such fact.

(v) The Director General of Police, Himachal Pradesh, assures that all assistance shall be rendered to the SIT for conducting an expeditious, fair, impartial investigation. Infrastructure, in the shape of vehicles, accommodation, shall be made available.

(vi) The Chief Secretary to the Government of Himachal Pradesh shall ensure that appropriate action is taken against the erring officials/officers/functionaries of the State, in accordance with law. Within a period of two weeks from today, he shall independently examine the matter and take appropriate action.

(vii) The Director General of Police, Himachal Pradesh shall ensure maintenance of law and order.

(viii) Affidavit of the Chief Secretary and status report by the SIT be filed not later than two weeks.

(ix) Liberty reserved to any person aggrieved or either of the parties to approach this Court.

(x) Response by the parties be filed within two weeks.