Samit Gopal, J.

1. Heard Sri Sujeet Kumar, learned counsel for the applicant and Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the material on record.

2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Raj Kumar Verma, seeking enlargement on bail during trial in connection with Case No. 9073 of 2022, R.C. No.0532021S0010/SCB/LKO under Sections 34 read with Section 302, 330, 331 & 218 read with Section 120-B I.P.C. registered at P.S. C.B.I./S.C.B. Lucknow, District Lucknow.

3. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant was appointed on the post of Constable in the year 2018 after completing the training and then joined District Jaunpur at Police Line on 27.01.2019 and thereafter was posted at Police Station Baksha, District Jaunpur on 07.02.2020. Paragraph 5 of the affidavit has been placed before the Court. It is argued while placing paragraph 12 of the affidavit that the C.B.I. has collected the Document No. D11 which is the recovery memo which is annexed as Annexure-5 to the affidavit in which although it is shown that although there is signature of the applicant but the same is not of the applicant and is a forged signature. Further by placing paragraph 13 of the affidavit, it is argued that CDR of the applicant shows his last location at village Buda in the barrack of the Police Line at 22:15:43 hours from where the applicant made a last call on the day of occurrence i.e. 11.02.2021 to his wife and thereafter the applicant did not go either to the police station or to anywhere. The copy of the CDR of the applicant is placed before the Court which is annexed as Annexure-6 to the affidavit. It is argued while placing paragraph 26 of the affidavit that the applicant has no criminal history. The applicant is in jail since 02.12.2021.

4. Per contra, learned counsel for the CBI opposed the prayer for bail and argued that as per the GD entry and also the recovery memo of arrest which is annexed at page 64 (E) of the paper-book, the applicant was amongst the police personnels who had arrested the deceased. It is argued that the bail of an identically placed co-accused Ramkrit Yadav has been rejected by this Court vide order dated 17.08.2022 passed in Criminal Misc. Bail Application No. 10162 of 2022 (Ramkrit Yadav vs. State of U.P. and another). It is argued that the present case is a case of custodial death and since the bail of identically placed co-accused has been rejected by a detailed order, the applicant does not deserve to be released on bail as he was one of the persons instrumental in bringing the deceased from his house and in his arrest as shown in the alleged recovery memo and then torturing him due to which he died.

5. After having heard learned counsels for the parties and perusing the records, it is evident that this Court has rejected the bail of co-accused Ramkrit Yadav vide order dated 17.08.2022 passed in Criminal Misc. Bail Application No. 10162 of 2022. The said order is extracted herein below:-

“1. Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Abdul Saleem Ahamad, learned counsel for the applicant and Sri Gyan Prakash, Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI and perused the material on record.

2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Ramkrit Yadav, seeking enlargement on bail during trial in connection with R.C. No. 10(S)/2021, under Sections 302, 394, 452, 504 IPC registered at P.S. C.B.I./S.S.B. Lucknow, District Lucknow.

3. The First Information Report of the present case was lodged on 12.02.2021 as Case Crime No. 0038 of 2021, under Sections 302, 394, 452, 504 IPC, P.S. Baksa, District Jaunpur in connection with an incident which is said to have taken place from 11.02.2021 to 12.02.2021 by Ajai Kumar Yadav against S.O.G. Team, Jaunpur, Ajai Kumar Singh S.O., Baksa Jaunpur and the accompanying persons of the S.O. of Police Station Baksa, District Jaunpur alleging therein that on 11.02.2021 at about 03:00 am, the S.O.G. Team, Ajai Kumar Singh S.O. Baksa along with his accompanying police force came to the house of the first informant and took his brother Krishna Kumar Yadav @ Pujari son of Tilakdhari aged about 24 years to the Police Station in spite of the fact that there was no criminal case lodged against his brother in any Police Station in the District. His brother was a friendly person. His brother has been taken by the S.O.G. Team and S.O. Baksa Ajai Kumar Singh for being falsely implicated in a case and was detained at the Police Station. Further, in the night at about 08:00 pm, the S.O. Baksa with his accompanying police team and other police personnels being about ten in number barged in his house and broke upon the lock of the box and took away Rs. 60,000/- and the articles. On being stopped, they abused the ladies. Again at about 12:30 am, the S.O.G. Incharge and the S.O. Baksa along with 10-12 police personnels came on a Bolero vehicle and motorcycles and brought his brother to the house. His brother was not in a position to stand and was shouting loudly to his mother to save him and was stating that the police personnels will kill him. They took away a motorcycle which was in the house. The first informant went to the Police Station but the police personnels did not let him meet his brother. In the morning, he received information that his brother has died in police custody. He states that his brother has been murdered by the police personnels and requests that S.O. Baksa be directed to lodge the First Information Report against the then S.O. Baksa, S.O.G. Team and other accompanying police personnels for murder and loot and appropriate action be taken. The said application was addressed to the Superintendent of Police, Jaunpur.

4. The postmortem examination of Krishna Kumar Yadav @ Pujari was conducted on 12.02.2021 from 09:10 pm.

The doctor found the following ante-mortem injuries on his persons:-

"a) Contusion present on both buttocks of size 30x20 cm, which is Bluish Brown in colour.

b) Contusion present in both scapular regions of size 15x8 cm which is Bluish Brown.

c) Contusion present on left arm laterally of size 10x8 cm which is Bluish Brown in colour."

The doctor after noting the ante-mortem injuries gave his opinion as follows:-

"Above injuries are not sufficient for death."

The cause of death was opined as due to shock and syncope as a result of ante-mortem myocardial infarction.

5. During investigation, the police sought an expert opinion on the injuries and actual cause of death of the deceased. The Joint Director Medico Legal, State Medico Legal Cell, Lucknow vide his letter opined as follows:-

"The cause of death established is shock, that is not due to Myocardial Infarction but it can be precipitated by vasovegal inhibition or ante-mortem injuries present on the victim's body especially the big ones which is not checked in PM examination."

6. A judicial inquiry was also ordered which was taken up by the Chief Judicial Magistrate, Jaunpur being Judicial Inquiry No.1 of 2021 which was inconclusive in so far as the purpose of it was concerned. It was stated therein that after the detailed inquiry, the conclusion which comes is that the injuries received on the body of the deceased were as a result of beating and tortured by the police or were received on 11.02.2021 at about 02:00 pm in village Birhadpur due to an accident with a motorcycle and then by assault of passer-by. The inquiry was thus concluded. The said report is annexure 5 to the affidavit.

7. A writ petition being Crl. Misc. Writ Petition No. 2998 of 2021 (Ajay Kumar Yadav Vs. State of U.P. and another) was filed by the first informant before this Court with regards to his grievances in which by a detailed order dated 08.09.2021 a Division Bench of this Court directed the CBI to investigate the present matter and ordered the transfer of the matter to the CBI forthwith. The said writ petition is still pending disposal before this Court. The said order dated 08.09.2021 is quoted herein-below:-

"1. Heard Sri Sarvesh Chaubey, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Roopak Chaubey, learned AGA for the State-respondent Nos. 1, 2, 3 & 4 and Sri Gyan Prakash, assisted by Sri Sanjay Kumar Yadav, learned counsel for the respondent no. 5.

2. It is a case of custodial death of a young boy aged about 24 years, namely, Krishna Yadav @ Pujari. As per FIR No.0038/21, dated 12.02.2021 under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District - Jaunpur, the SOG team and SO Baksa, Ajay Kumar Singh came to the house of the deceased on 11.02.2021 about 03:00 P.M. and took away the deceased with an intent to implicate him falsely and the deceased was detained at the police station. At about 08:00 P.M. the S.O. Baksa and other policemen (ten in numbers) forcibly entered in the house of the informant and after breaking lock of the box took away Rs.60,000/- and other articles and used filthy language against women family members of the deceased. At about 12.30 P.M. the incharge SOG and SO Baksa, Ajay Kumar Singh and 10 - 12 policemen brought the deceased who was not even able to stand and was loudly crying "This content is in vernacular language. Kindly email us at info@legitquest.com for this content." Policemen also took away the motorcycle kept in the house and when the informant went to the police station he was not allowed to meet with his brother (deceased) and in the morning, information was received that his brother Krishna Yadav @ Pujari died in police custody who has been murdered by the policemen.

3. On the other hand, the police has developed a story that as per G.D. Entries Nos.05 and 06, dated 12.02.2021, the deceased was apprehended while he was driving a motorcycle who fell, received injuries and could not fled away and he told that in the afternoon of 11.02.2021 he was hit by a motorcycle and the public beaten him. The arrest of the deceased has been shown at 10:25 P.M. on 11.02.2021. As per G.D. the deceased was brought to the police station Baksha at 01:30 A.M. on 12.02.2021 and at the same time he was sent for first aid alongwith Sub Inspector Sunil Kumar Tiwari, constable Manish Kumar and constable Samir Kumar and the Doctor at the CHC referred the deceased for treatment to District Hospital, Jaunpur and by the time they reached at the District Hospital Jaunpur, Krishana Yadav @ Pujari died and thus he was brought to the District Hospital as dead. Copy of G.D. No.05 dated 12.02.2021 has been filed by the respondent no.2 as Annexure C.A. -2 to the counter affidavit dated 01.09.2021 and the G.D. Entry No.06 of even date and time i.e. 12.02.2021 time 01:30 A.M., has been produced today by the learned A.G.A. before us stating that inadvertently these pages could not be annexed with the counter affidavit. In G.D. No.05 dated 12.02.2021 time 01:30 A.M. it has been mentioned that :

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

4. The F.I.R. lodged by the brother of the deceased being the first information report No.0038/21, dated 12.02.2021 (at 16:35 hours) under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District - Jaunpur, (in which SOG Team Jaunpur, Station House Officer Baksa, namely, Ajay Kumar and police personnel of police station Baksa are named as accused), is reproduced below:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

5. As per the alleged post mortem report, the injuries are as under:-

1. Contusion present in both buttocks of size 30X 20 cm which bluish brown in colour.

2. Contusion present in lower scapular region of size 15 X 8 cm which is bluish brown colour.

3. Contusion present Lt. Arm lateral of size 10X 3 cm which is bluish brown colour.

6. As per post mortem report, the cause of death of deceased was "shock and Syncope as a result of ante mortem, myocardial and Infarction".

7. Due to custodial death, a judicial inquiry was entrusted in the matter to the Chief Judicial Magistrate, Jaunpur, who recorded statements of 16 inquiry witnesses. The first set of inquiry witnesses are the family members of the deceased, the second set of inquiry witnesses are independent witnesses and the 3rd set of inquiry witnesses are doctors and the policemen including the Sub-Inspector Sunil Kumar Tiwari (IW-14), Constable Manish Kumar (IW-12) Constable Samir Kumar (IW-13). The statement of inquiry witnesses IW-12 Constable Manish Kumar, IW 13 Constable Samir Kumar and IW14 Sub-Inspector Sunil Kumar Tiwari as recorded by the Chief Judicial Magistrate and incorporated by him in his report dated 25.06.2021 filed as Annexure CA -12 to the counter affidavit of the respondent no.2 dated 01.09.2021, are reproduced below :

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

8. The IW 16 Kansraj Yadav (an independent witness) has stated before the Judicial Magistrate on 11.02.2021 as under :

9. IW-2 (Smt. Satta mother of the deceased) and IW-3 (Ajay Kumar Yadav informant and brother of the deceased) and IW-4 (Pradip Yadav, brother of the deceased) have stated before the Chief Judicial Magistrate as under :

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

10. As per story developed by the police, the deceased was brought to the police station at about 01:30 A.M. on 12.02.2021 after his arrest at about 10:25 P.M. on 11.02.2021 and he was sent to CHC Naupedwa, Jaunpur, at about 02:00 AM on 12.02.2021 for first aid, where Doctor referred him for District Hospital and when the deceased was brought to District Hospital by ambulance he was found dead.

11. Learned A.G.A. has produced before us case diary to impress that as per an alleged slip issued by the Doctor on emergency duty in Amar Sahid Uma Nath Singh District Hospital Jaunpur dated 12.2.2021, the deceased Krishna Yadav was brought dead at the Hospital at about 03:35 A.M. by the Constable Manish Kumar and Constable Samir Kumar, P.S. Baksa.

12. A supplementary affidavit dated 09.08.2021 has been filed by the petitioner annexing therewith three photographs of the dead body of the deceased Krishna Yadav. Averments in this regard have been made by the petitioner in paragraph 3 of the supplementary affidavit dated 09.08.2021 which have not been denied or disputed by the respondent No.2 and the respondent No.3 in separate counter affidavits filed by them. The counter affidavit has been filed on behalf of respondent no.2 by Chaub Singh, Circle Officer Badlapur, District - Jaunpur who replied the contents of paragraphs 2 and 3 of the aforesaid supplementary affidavit, in paragraph 33 of his counter affidavit as under :

"That the contents of paragraph nos. 2 & 3 of the supplementary affidavit refer to post mortem report dated 12.02.2021 and colour photographs of the deceased Krishna Yadav @ Pujari and as per the post mortem report there were three injuries on the person of the deceased and as per opinion of the doctor the said injuries are not sufficient for death and the cause of death of deceased is Shock & Syncope as a result of ante-mortem myocardial infraction and the viscera was preserved for any intoxication. As per the viscera report dated 01.07.2021 issued by the Forensic Science Laboratory, Ram Nagar , Varanasi no Chemical poison was found in viscera."

13. In his counter affidavit dated 06.09.2021, Sri Ajay Kumar Sahani, Superintendent of Police, Jaunpur, has replied paragraph 3 of the aforesaid supplementary affidavit, as under :

"That in reply to the contents of paragraph no.3 of the supplementary affidavit, it is submitted that the post-mortem report shows that there were 3 injuries on the person of deceased and as per the penal of doctors these injuries were not sufficient for death. The cause of death was due to shock and syncope as a result of ante-mortem myocardial infarction."

14. On 03.09.2021 this writ petition was heard at length and a detailed order dated 03.09.2021 was passed, observing as under :-

Despite all these facts well on record and for the reasons best known to the respondents, they have not taken any action against the accuseds pursuant to the impugned FIR but as a matter of eye wash transfer or suspension or attachment order of accuseds were passed. The custodial death of deceased is undisputed. Serious allegations supported by the inquiry witnesses are well on record and and yet for the reasons best known to the respondents, no action has been taken against the accused, instead, it prima facie appears that effort is being made to linger the investigation and carry it in a direction so the accused policemen may escape.

15. When this matter was heard on 06.09.2021 in presence of the Superintendent of Police Jaunpur, this court noted in the order the admission and submissions made by the State-respondents, as under :

"Heard Sri Sarvesh Chaubey, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Roopak Chaubey, learned AGA for the State-respondents.

On oral request, learned counsel for the petitioner is permitted to implead Central Bureau of Investigation through its Director as respondent no. 5 in the array of parties. He undertakes to serve a copy of the writ petition along with supplementary affidavit and a copy of this order upon the counsel appearing on behalf of C.B.I., during course of the day.

Counter affidavit on behalf of respondent no. 3 dated 6.9.2021 has been filed today, which is taken on record. Sri Ajay Kumar Sahni, Superintendent of Police, Jaunpur is present in the Court in compliance of the order dated 3.9.2021.

Learned Government Advocate admits that the photographs of the deceased filed along with the supplementary affidavit dated 9.8.2021 is undisputed. The contents of paragraph no. 3 of the supplementary affidavit dated 9.8.2021 regarding the aforesaid photographs, have neither been disputed nor denied by the respondent no. 3 in paragraph no. 43 of the counter affidavit dated 6.9.2021. He states that accused police men are absconding and efforts are being made for their arrest. He submits that the present Superintendent of Police namely Sri Ajay Kumar Sahni has taken the charge on 17.6.2021 and thus he was not the Superintendent of Police at the time of registration of first information report no. 0038 of 2021 dated 12.2.2021 under Section 302, 394, 452, 504 IPC in which the SOG team Jaunpur, S.O. Baksa, Ajay Kumar Singh and S.O. Hamrah, Thana Baksa Jaunpur were the accused. He states that one Sri Rajkaran Naiyar was the then Superintendent of Police, Jaunpur.

Learned counsel for the petitioner prays for and is granted a day's time to file rejoinder affidavit.

Put up as fresh on 8.9.2021 at 10:00 A.M. for further hearing before this Bench."

16. The facts as briefly noted above prima facie reveal that the deceased was lifted by the S.H.O. Police Station Baksa and other policemen on 11.02.2021 and, thereafter he remained in the custody. The story of accident of the deceased in the afternoon of 11.02.2021 is a story prima facie developed by the police so as to give a different colour for the death of the deceased. As per own case of the police and G.D. entry, the deceased was arrested at about 10:25 A.M. on 11.02.2021 but he was brought to the police station at about 01:30 A.M. on 12.02.2021 and no treatment was required. Surprisingly, telephone calls were made to Sub-inspector Sunil Kumar Tiwari, Constable Manish Kumar and Constable Sameer Kumar between 01:30 A.M. to 01:45 A.M. requiring them to come to the police station to carry the deceased for first aid/ treatment. As per statement given by these three police personnel before the C.J.M., Jaunpur, they took the deceased at about 02:00 A.M. on 12.02.2021 to bring him to C.H.C. Naupedwa, Jaunpur.

17. As per police story, the aforesaid S.I. Sunil Kumar Tiwari, Constables Manish Kumar and Sameer Kumar also brought the deceased to District Hospital, Jaunpur. But perusal of their statement before the C.J.M. reveals that they had neither carried nor brought the deceased to the District Hospital rather they returned from C.H.C. Nawpedwa. As per photo-stat copy of the entry in the register at C.H.C. Nawpedwa, Jaunpur at serial No.E-3092, Krishna Yadav, when brought to the C.H.C., Naupedwa, Jaunpur, was unconscious and his B.P. and P.P. were not found and after thorough examination, the doctor referred him to District Hospital, Jaunpur at 01:55 A.M. The aforesaid photo stat copy of the register of C.H.C. Naupedwa, Jaunpur, has been produced before us by the learned A.G.A. stating it to be part of the case diary. Thus, when as per own case of the respondents, they took the deceased Krishna Yadav at about 02.00 A.M. on 12.02.2021 from the police station Baksa, then how it is possible that the doctor after thorough examination, has referred the deceased for District Hospital at 01:55 A.M. That apart, the doctor at the C.H.C. has found the deceased in an unconscious condition and his B.P. and P.P. were not found whereas the G.D. entry shows that the deceased was merely making some complain of pain in stomach. Surprisingly, the aforesaid three policemen who brought Krishna Yadav to C.H.C. Naupedwa, have stated that they have not seen any scratch or injury on the body of Krishna Yadav who has also not told about injuries and who told the doctor about pain in stomach, WHEREAS as per entries made by the doctor in the register at the C.H.C. Naupedwa, the Krishna Yadav was unconscious and his B.P. and P.P. were not found. Thus, the police story and G.D. entries are prima facie false and a criminal act to divert investigation in a wrong direction by manipulating evidences so as to defeat the rule of law and fair investigation. The respondents have set up a case that the deceased was carried by the aforesaid Sub Inspector Sunil Kumar Tiwari, Constable Manish Kumar and Constable Sameer Kumar from the police station to C.H.C. Naupedwa, Jaunpur and thereafter from the C.H.C., Naupedwa to the District Hospital Jaunpur, but these three persons have stated in their statement before the C.J.M., Jaunpur that they carried the deceased only upto C.H.C. Naupedwa Jaunpur and thereafter, they came back. Thus, the story developed by the respondents that the deceased was brought to District Hospital, Jaunpur by the aforesaid Sub Inspector and Constable, is itself not supported by their statements.

18. It is admitted case of the respondents that the deceased had received various injuries, which is reflected from the G.D. Entry No. 05. The statement made by the mother and brother of the deceased before the C.J.M., Jaunpur regarding brutal beating by the police and consequent injuries to the deceased, prima facie corroborates with the photographs of the deceased and a little reference in the G.D. entry No. 5. Surprisingly, the post mortem report does not contain the injuries present on vital part of the body of the deceased which can be easily seen in the undisputed photographs filed alongwith the supplementary affidavit. Thus, prima facie, post mortem report also appears to be manipulated or procured under undue influence.

19. In paragraph 6 of the writ petition the petitioner has stated that the incident of lifting the deceased by the Police on 11.02.2021 was informed to the Superintendent of Police Jaunpur over telephone (mobile phone) and by sending messages but no action was taken. Copy of call details and messages have been filed as Annexure No.3 which have not been disputed by the Respondent Nos. 2 & 3 both in their counter affidavits. In paragraph 5 of the writ petition the petitioner has stated about some independent eye witnesses and some family members who submitted their notarized statement before the District Magistrate and the Superintendent of Police, Jaunpur. Copies of statements of Ajay, Kanshraj, Chandrabhan and Saraswati Devi have been filed collectively as Annexure No.2. But in their counter affidavits the respondent Nos. 2 and 3 vaguely denied it without denying the fact of statements and its contents. From the records of the writ petition and the report of the C.J.M., Jaunpur dated 25.6.2021 it appears that the deceased was preparing for election of Village Panchayat and he was threatened by the SHO Baksha.

20. The statements given by witness and filed alongwith the writ petition as referred in paras above, are reproduced below :-

Statement of Ajay Kumar Yadav

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

21. Call details filed alongwith the writ petition prima faice showing the complaint made by the petitioner to the Superintendent of Police, Janupur on 11.02.2021, as referred in paragraph 19 of this order, is reproduced below :-

"Messages and calls are end-to-end encrypted. No one outside of this chat, not even WhatsApp can read or listen to them. Tap to learn more Sir mai Ajay Yadav pakadi chak mirjapur se mera chota bhai chunav ki taiyari kar raha hai prachar prasar kar raha tha chetra me baksha thana utha ke le gai hai muje asanka hai kahi farji mukada na laga de sir hamari madad kare praadam sir

5:39 PM

Krishna Yadav putra Tilakdhari Yadav

5:39 PM

Call History S

094544 00280

Mobile, 5:55 PM Sp Junpur

(S. P Jaunpur)

+ Add tag

094544 00280

Mobile, Yesterday 5:34 PM CALL MESSAGE BLOCK

In your contacts

094544 00280

Mobile, Yesterday 5:32 PM (35s) 094544 00280

Mobile – BSNL

View call history

policejunpur@gmail.com

Uttar Pradesh East, India

Message +91 94544 00280"

22. As per the alleged Hospital slip being part of the case diary produced today in court by the learned Government Advocate in presence of the respondent No.3, the deceased was brought dead by the Police at District Hospital Jaunpur at about 3:35 A.M. On 12.02.2021, whereas, the Superintendent of Police Jaunpur and the District Magistrate Jaunpur have stated in their letters all dated 12.02.2021 sent to the National Human Rights Commission New Delhi and the District Judge Jaunpur that KRISHNA Yadav had died during treatment at 03:35 P.M. at District Hospital, Jaunpur. These facts have been mentioned by us only as instances.

23. Sri Gyan Prakash, learned counsel for the respondent No.5 submits that if this court directs then investigation shall be carried by the respondent No.5.

24. Perusal of the counter affidavit and copy of the case diary as produced before us by the learned G.A. Prima facie shows that entire effort of the police is to some how give clean chit to the accuseds and for this purpose important evidences are being left and some evidences are being created and manipulated. But presently we do not want to comment any more since fair investigation is yet to be carried by an independent and impartial Agency.

25. The facts mentioned above have been noted by us and brief discussion has been made by us only for the purposes to see as to whether investigation by the police has been carried honestly, fairly, diligently or attempt is being made to shield guilty police officers/policemen and to manufacture/create false evidences. Ultimately, whether the accused policemen have committed offence of murder and other offences and whether the then Superintendent of Police, Jaunpur and Circle Officer, Jaunpur were influencing the investigation and are creating false evidences, are matters of investigation. There are sufficient material on record which prima facie reveal commission of offence by the accuseds and involvement of higher officers in consiperacy, destroying evidences and creating false evidences to protect the accuseds. Fair investigation is the foundation for a fair trial. In the present set of facts fair investigation by State Police appears to be not possible in view of all the brief facts and circumstances noted above.

26. This court in writ jurisdiction does not intend to enter into these areas, but with the sole purpose as to whether fair investigation is being done or not, the facts in brief have been noted by us. Therefore, the investigation by any agency in a fair manner, shall not be influenced by any of the observations made by us.

27. Today, learned Government Advocate has stated before us that from the last three days, efforts are being made for arrest of the accused, but they are absconding and therefore, N.B.Ws. have been obtained for their arrest, but they could not be arrested so far.

28. The facts as briefly noted above would further prima facie reveal that officers of the I.P.S. rank also have some involvement in the murder/death of the deceased Krishna Yadav, who died in police custody, allegedly due to brutal beating by the accused policemen.

29. Post mortem report as well as alleged slip dated 12.02.2021 issued by the District Hospital also prima facie appears to have been managed/fabricated. Serious allegations have been made against the police personnel, which cannot be said to be completely without evidence.

30. In the case of K.V. Rajendran vs. Superintendent of Police vs. CBCID, South Zone, Chennai and others (2013) 12 SCC 480 [LQ/SC/2013/908] (Paras-13, 14 and 17), Hon'ble Supreme Court observed that investigation can be transferred from the State Investigating Agency to any other independent agency like CBI and the power of transferring such investigation should be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind or where investigation by the State Police lacks credibility and it is necessary for having "a fair, honest and complete investigation" and particularly when it is imperative to retain public confidence in the impartial work of the State Agencies. In the aforesaid case, Hon'ble Supreme Court referred to its decision in Rubabbuddin Sheikh v. State of Gujarat & Ors (2010) 2 SCC 200 [LQ/SC/2010/57] and observed that in order to do justice and instil confidence in the minds of the victims as well of the public, the State Police Authorities could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. It was further observed that where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased, the court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases.

31. In Mithilesh Kumar Singh vs. State of Rajasthan and others (2015) 9 SCC 795 [LQ/SC/2014/1340] (Para-15), Hon'ble Supreme Court while emphasizing the need of fair, proper and impartial investigation, considered the transfer of investigation to CBI and held as under:

"15. Suffice it to say that transfers have been ordered in varied situations but while doing so the test applied by the Court has always been whether a direction for transfer, was keeping in view the nature of allegations, necessary with a view to making the process of discovery of truth credible. What is important is that this Court has rarely, if ever, viewed at the threshold the prayer for transfer of investigation to CBI with suspicion. There is no reluctance on the part of the Court to grant relief to the victims or their families in cases, where intervention is called for, nor is it necessary for the petitioner seeking a transfer to make out a cast-iron case of abuse or neglect on the part of the State Police, before ordering a transfer. Transfer can be ordered once the Court is satisfied on the available material that such a course will promote the cause of justice, in a given case."

32. The criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be right, just and fair and not arbitrary, fanciful or oppressive, vide Menka Gandhi vs. Union of India AIR 1978 SC 597 [LQ/SC/1978/27] (para-7) and Vinubhai Haribhai Malviya and others vs. State of Gujrat and another AIR 2019 SC 5233 [LQ/SC/2019/1575] (paras-16 and 17) and Subramanian Swamy vs. C.B.I. (2014) 8 SCC 682 [LQ/SC/2014/529] (para-86). Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the procedure established by law in a fair trial which assures the safety of the accused. The assurance of a fair trial is the first imperative of the dispensation of justice, vide Commissioner of Police, Delhi vs. Registrar, Delhi High Court, New Delhi AIR 1997 SC 95 [LQ/SC/1996/1722] (para-16). The ultimate aim of all investigation and inquiry whether by the police or by the Magistrate is to ensure that those who have actually committed a crime, are correctly booked and those who have not, are not arraigned to stand trial. This is the minimal and fundamental requirement of Article 21 of the Constitution of India. Interpretation of provisions of Cr.P.C. needs to be made so as to ensure that Article 21 is followed both in letter and in sprit. "A speedy trial" is the essence of companion in concept in "fair trial". Both being inalienable jurisprudentially, the guarantee under Article 21 of the Constitution of India embraces both life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and, therefore, cannot be alienated from each other. A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice. However, no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case.

33. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Proper result must be obtained by recourse to proper means, otherwise it would be an invitation to anarchy, vide Rampal Pithwa Rahidas vs. State of Maharastra 1994 Suppl, (2) SCC 73 (para-37). Investigation must be fair and effective and must proceed in the right direction in consonance with the ingredients of the offence and not in a haphazard manner moreso in serious case. Proper and fair investigation on the part of the investigating officer is the backbone of rule of law vide Sasi Thomas vs. State (2006) 12 SCC 421 [LQ/SC/2006/1160] (para-15 and 18).

34. Therefore, considering the fact and circumstances of the case in its entirety and applying the principles of law aforenoted, we direct the respondent no.5 to investigate forthwith in FIR No. 0038/2021, dated 12.02.2021 under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District - Jaunpur, and accordingly investigation is transferred/entrusted forthwith to the respondent No.5. The respondent nos. 1, 2, 3 & 4 shall ensure that the entire evidences and papers relating to the aforesaid case crime/FIR are transferred to Investigating Officer of the respondent No.5 for investigation. An affidavit of compliance shall be filed on behalf of the respondent no.5 and also by the State-respondents on or before the next date fixed.

35. Put up as a fresh case on 20.09.2021 at 02:00 P.M. before this bench for further hearing."

8. The CBI then took up the case and lodged a First Information Report on 17.09.2021 at 06:15 pm as RC0532021S0010, under Sections 302, 394, 452, 504 IPC, P.S. S.C.B. Lucknow, District Lucknow against S.O.G. Team, Ajai Kumar Singh S.O. Baksa along with police personnels of Police Station Baksa, District Jaunpur.

9. The CBI completed the investigation and has submitted a charge sheet under Section 34 read with Sections 302, 330, 331, 218 read with Section 120-B IPC on 22.02.2022 in the court of Special Judicial Magistrate, CBI Lucknow against 19 police officials including the applicant. The pleading regarding the same has been given in para 8 of the counter affidavit filed by the CBI.

10. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is a police personnels and since 2015 he is serving at Surveillance Cell, Jaunpur and has been awarded with various commendation certificates for his distinguished services. Para 19 has been placed before the Court to buttress the same.

11. It is argued that the applicant joined his services in the Police Department in the year 1998 and was actively involved in the encounter of famous Kallu Najju Gang in Shahjahanpur in which he received a bullet injury in his left eye and lost his vision in November, 2002. He was admitted for treatment from 09.11.2000 to 02.12.2000 in K.G.M.U., Lucknow. Para 18 and annexure 6 of the affidavit being some newspapers cutting have been placed before the Court to buttress the said arguments. It is argued while placing para 23 of the affidavit that the applicant has been made an accused in the present case by the CBI intentionally as he was interrogated on 26.11.2021 before his arrest and was offered to become an "approver" in the case which was declined by him after which he has been falsely implicated in the present case.

12. It is next argued while placing para 16 and 17 of the affidavit that the involvement of the applicant in the present case has been shown on the basis of GD No. 005 dated 12.02.2021 allegedly transcribed at 01:30 hrs at Police Station Baksa, District Jaunpur pertaining to the arrest of the deceased in which the name of the applicant finds place and he is shown to be a signatory of the arrest and recovery memo of the deceased. The copy of the said GD has been placed before the Court which is annexure S.A.2 to the supplementary affidavit dated 28.05.2022. While placing para 17 of the affidavit in support of the bail application, it is argued that the signature of the applicant in the said recovery memo is a forged signature and the applicant has also given his sample to the CBI for forensic analysis which if done would clear the doubts. It is further argued while placing para 26 of the affidavit that the applicant has no previous criminal history and is not previous convict in any case. The applicant is in jail since 02.12.2021.

13. Per contra, learned counsel for the CBI has vehemently opposed the prayer for bail. It is argued that the present case is a case of custodial death. There are eye witness account of the police taking away the deceased from his house and committing robbery. It is further argued that looking to the seriousness and the gravity of the offence, a Division Bench of this Court vide order dated 08.09.2021 transferred the investigation to the CBI from the local police by a detailed order after having being fully satisfied that the present case is a case of custodial death.

14. It is argued that the deceased was brutally beaten by police personnels while being in police custody. An opinion was taken from the department of Forensic Medicine AIIMS, New Delhi which was given vide letter dated 10.01.2022 of its Professor and Head of the Department in which the Board opined as follows:

"The body of the deceased had multiple blunt force injuries as described above (Image 1-3). In such type of injuries, capillaries and other blood vessels get ruptured leading to internal bleeding in the underlying muscular layers and tissues causing excessive and fatal internal blood loss from the circulatory system, which then leads to circulatory collapse and shock.

The Medical Board is of the opinion that the cause of the death is Shock due to cumulative effects of multiple blunt force injuries sustained to the body. All injuries are antemortem in nature and fresh in duration. These injuries are only collectively sufficient to cause death in the ordinary course of nature."

15. It is further argued that the opinion of the Forensic Department of AIIMS is specific to the fact that the injuries received by the deceased, were collectively sufficient to cause his death in the ordinary course of nature. It is argued that the applicant was one of the police personnels who had brought the deceased from his house as is evident from the arrest and recovery memo and the GD entry of the concerned Police Station. He is one of the signatories of the said memo.

16. It is argued that the Medical Board of AIIMS has opined that the nature of injuries as received were caused by cylindrical objects like a rod, baton or lathi which are the common articles of assault by the police. It is argued that as such the present bail application of the applicant thus deserves to be rejected.

17. Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Times and again the judicial verdicts of the Apex Court and other Courts have shown their concern and anguish in such matters.

18. In the celebrated case of D.K. Basu Vs. State of West Bengal : (1997) 1 SCC 416 [LQ/SC/1996/2231] the Apex Court while expressing its anguish in cases of custodial deaths has observed as follows:-

"22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him Can the right to life of a citizen be put in abeyance on his arrest These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

23. In Neelabati Bahera v. State of Orissa, (1993) 2 SCC 746 [LQ/SC/1993/275] (to which Anand, J. was a party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It was observed: (SCC p. 767, para 31)

"It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law."

24. Instances have come to our notice where the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrested person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometimes resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death, as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co-prisoners who are highly reluctant to appear as prosecution witnesses due to fear of retaliation by the superior officers of the police. It is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 4 SCC 262 [LQ/SC/1995/638] is an apt case illustrative of the observations made by us above. ........."

19. Further in the case of Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and another: (2003) 7 SCC 749 [LQ/SC/2003/890] the Apex Court has again shown its anguish in the matters of custodial violence, torture and abuse of police powers. It has been observed as follows:-

"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This Court in Raghbir Singh v. State of Haryana (1980 (3) SCC 70) [LQ/SC/1980/155] , took note of these immortal observations (SCC p. 72, para 4) while deprecating custodial torture by the police.

2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights.

4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short "the Constitution") and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short "the Code") deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20 (3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies' observation which have become classic are in following immortal words:

Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law into himself. (In Olmstead v. United States, 277 US 438, US at p. 485, quoted in Mapp v. Ohio, 367 US 643, US at p. 659).

5. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh case (1980 (3) SCC 70) [LQ/SC/1980/155] more than two decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U. P. (AIR 1990 SC 709 [LQ/SC/1990/8] ), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC 249) [LQ/SC/1992/397] , Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC 1960 [LQ/SC/1993/275] ), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U. P. and Ors. (1995 (3) SCC 600) [LQ/SC/1995/494] , Inder Singh v. State of Punjab and Ors. (1995 (3) SCC 702) [LQ/SC/1995/658 ;] ">(1995 (3) SCC 702) [LQ/SC/1995/658 ;] [LQ/SC/1995/658 ;] , State of M. P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC 262) [LQ/SC/1995/638] and by now celebrated decision in D. K. Basu v. State of West Bengal (1997 (1) SCC 416) [LQ/SC/1996/2231] seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.

6. Rarely, in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter

7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lockup because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under - trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happen will be a sad day, for anyone to reckon with."

20. After having heard learned counsels for the parties and perusing the records and as per the judgments of the Apex Court as referred to above, it is evident that the present case is a case of custodial death. The case of the prosecution is of the deceased being taken away from his house to Police Station Baksa, District Jaunpur which is not in dispute. An arrest memo was prepared regarding his arrest by the officials of the police after which a GD was also drawn regarding the same. In the arrest memo, the applicant is one of the persons arresting him and is also a signatory to it. His name as such finds place in the corresponding GD No. 005 dated 12.02.2021. The injuries as received by the deceased cover basically the entire back side of his body. The opinion of the Board of AIIMS, New Delhi is specific to the fact that he died due to collective effect of the injuries received by him. The same would go to show that the death was not natural. The present case is a case of custodial torture and death with robbery in a well planned conspiracy. The applicant is in the police force which is considered to be disciplined force and enshrined with the pious duty of maintaining law and order and protecting the citizens. The present case is not a case of police excess but a clear cut case of abuse of police powers and police high handedness. I do not find it a fit case for bail.

21. Considering the totality of the case in particular, nature of evidence available on record, the order of the Division Bench of this Court and the dictum of the Apex Court, I am not inclined to release the applicant on bail.

22. The bail application is, accordingly, rejected.”

6. In so far as the applicant is concerned, he disputes his signature in the GD and the arrest memo which cannot be looked into at this stage. Further the location of the mobile of the applicant as per the CDR is not a fact conclusive of the issue that the applicant was not present at the police station. The case of the applicant is at par with that of co-accused Ramkrit Yadav whose bail has been rejected by this Court vide order dated 17.08.2022.

7. Looking to the facts of the case and the material on record, this Court comes to the conclusion that the bail of the applicant also deserves to be rejected. Hence, the bail application of the applicant is hereby rejected.