FATIMA NAFEES vs. STATE & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 4 September, 2018
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Decided on: 8 October, 2018

+ W.P. (CRL) 3391/2016 & Crl. M.A. Nos. 8174/2017, 8651/2018 &
9015/2018

FATIMA NAFEES ...Petitioner
Through: Mr. Colin Gonsalves, Sr.
Advocate with Ms. Nabila
Hasan, Advocate.

versus

STATE & ORS. ...Respondents
Through: Mr. Nikhil Goel & Mr.
Ashutosh Ghade, Advocates for
CBI.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL

J U D G M E N T
Dr. S. Muralidhar, J. :
Introduction
1. When her 27 year old son Najeeb, a student of M. Sc (Bio-Technology) at
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the Jawaharlal Nehru University („JNU‟), went missing on 15 October,
2016 and nothing was heard of him for a month thereafter, the Petitioner
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filed the present petition on 21 November, 2016, seeking a writ of habeas
corpus for his production.

2. Unhappy with the efforts of the Delhi Police to investigate her complaint,
W.P. (Crl) 3391/2016 Page 1 of 34



which was registered as FIR No.523/2016 under Section 365 of the Indian
Penal Code („IPC‟) at Police Station („PS‟) Vasant Kunj, New Delhi as
being „slow, misdirected and subjective‟, her second prayer was for “an
order setting up a Court appointed Special Investigation Team („SIT‟) of
impartial officers of proven integrity from outside the state of Delhi to take
over the entire investigation from the Crime Branch of Delhi Police.”

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3. At the first hearing of this petition on 25 November, 2016, on an
application filed by the Petitioner, this Court directed the impleadment of
JNU as Respondent No.4. The Respondent No.1 is the State i.e. the
Government of NCT of Delhi; Respondent No.2 is the Deputy
Commissioner of Police („DCP‟), South District; and Respondent No.3 is
the Station House Officer („SHO‟) of PS Vasant Kunj, New Delhi.

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4. By the order dated 25 November, 2016, while directing notice to be
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issued in the petition, this Court directed the matter to be listed again on 28
November, 2016. On that date, the Court was informed that initially the
investigation was being carried out by the local police and it was then
transferred to the Crime Branch.

Complaint of the Petitioner
5. At this stage, it must be noticed that in her complaint that was registered
as FIR No.523/2016, the Petitioner disclosed that Najeeb was living in
Room No.106 of Mahi Hostel in the JNU Campus. He was admitted to JNU
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on 1 August, 2016. After his vacation, he returned to the hostel on 13
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October, 2016. She claimed that between 2 and 2.30 am on 15 October,
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2016, she received a call from Najeeb from his mobile number and he told
her that something had happened to him. When she asked him what it was,
he disconnected the call. She then contacted Najeeb‟s roommate Mohd.
Qasim, who informed her that some people had fought with Najeeb and that
he had suffered injuries as a result. When she expressed her concern, Qasim
pacified her stating that she should not worry as they were there with
Najeeb.

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6. Between 3.30 am and 4 am on 15 October 2016, the Petitioner along
with her younger son boarded a bus to Delhi. On reaching Bulandshahr city,
she called up Najeeb, asked him whether he had had breakfast. She asked
him not to worry and to have his breakfast, to which he said he would. Then,
on reaching the Anand Vihar Bus Terminus in Delhi, she called him and
asked him to meet her in his room. He apparently told her “yes mother,
come over”. However, when she reached his hostel room at around 12 noon
-1 pm, she could not find him. She tried calling him up but located his
mobile in his room. Thereafter, she tried looking for him in the hostel but
was unable to do so. She requested the police that a missing report be filed
and necessary legal action be taken.

7. Sub Inspector („SI‟) Sandeep Yadav attached to PS Vasant Kunj (North),
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New Delhi noted at 8 pm on 16 October, 2016, that every possible search
was conducted, mandatory steps were ensured and enquiries were made at
the JNU hostel and every place “but no clue could be found”. It was further
noted, “that on the basis of the complaint, circumstances, enquiries, a clear
cut offence under Section 365 IPC is found to have been committed.”
W.P. (Crl) 3391/2016 Page 3 of 34




8. The Petitioner also relied on the complaint given to the SHO by one Mr
Mohit Pandey (President of the JNU Students Union – „JNUSU‟). Nine
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persons involved in attacking Najeeb on the night of 14 October, 2016,
were mentioned by him. He also mentioned as to how he himself and five
others i.e. Dalip, Rama Naga, Shahid, Hamid and Qasim were shielding
Najeeb. He also mentioned how despite somehow managing to rescue
Najeeb from their clutches and taking him to the Warden‟s room, the named
nine persons still continued threatening him and asked that he be handed
over to them so that they could finish him off. Mohit Pandey alleged that
since the nine persons were continuously issuing threats to Najeeb, “it is
pretty clear that they are involved in the matter of Najeeb Ahmed‟s
disappearance”.

9. The Petitioner has also enclosed with the petition a handwritten complaint
signed by 23 residents of the Mahi Mandavi Hostel, where Najeeb was a
resident of Room No.106, referring to his being attacked by nine persons
who are identical to the nine named by Mr Mohit Pandey. This complaint
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mentioned that the above incident took place at around 11.30 pm on 14
October, 2016.

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10. On 24 October, 2016, Mohit Kumar Pandey gave a memorandum on
behalf of the JNUSU to the Lieutenant Governor („LG‟) of the NCT of Delhi
inter alia stating that no serious efforts were being made by the Delhi Police
to trace the whereabouts of Najeeb. It was mentioned that they were aware
that a Special Investigation Team („SIT‟) was already formed, but sought
intervention of the LG “so that no dilly-dallying tactics could be used by
W.P. (Crl) 3391/2016 Page 4 of 34



Delhi Police.” It was mentioned that “there is a sense of impunity amongst
the perpetrators of violence and that is aggravating situation of fear and
injustice in campus.” Reference is made to the „very first Press Release‟
made by the JNU Administration referring to Najeeb as an „accused‟, in
relation to an altercation with one Vikrant Kumar, with no mention being
made therein about the attacks on Najeeb himself. It was also stated that the
JNU Administration had not shared the decision taken by the Wardens on
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16 October, 2016 to defer Najeeb‟s punishment in order to inspire some
confidence in him.

Proceedings at JNU
11. Enclosed with the writ petition is a handwritten copy of the proceedings
of “warden and students meeting held in emergency on 15.10.2016 at 12
am”. These minutes are signed by Mr Sushil Kumar (Senior Warden), Arun
Srivastava (Men‟s Warden), Mohit Pandey, JNUSU President, Alimuddin
(Mahi Mandavi Hostel‟s President), Qasim (room partner) and Dilip (Ex.
Mahi Mandavi Hostel President). It records as under:
“An emergency meeting was held due to the situation arisen by
slapping of Vikrant Kumar (Mahi 213) by Mr. Najeeb Ahmed
(106 Mahi). The alleged incident happened when Mr. Vikrant
Kumar contesting for mess secretary went to the room of Mr.
Najeeb, it is said that Mr. Najeeb without any provocation
slapped Mr. Vikrant in front of two witnesses Mr. Ankit Kumar
(214 Mahi) and Sunil Pratap (122 Mahi). This alleged incident
of slapping was accepted by the accused Mr. Najeeb in front of
Sr. Warden, Mess Warden, JNUSU President Mr. Mohit
Pandey, Mahi-Mandavi President Alimuddin, Najeeb's room
partner Mr. Qasim, Ex. Mahi-Mandavi President Dileep.”

12. Below the signatures of the aforementioned persons is the following
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noting:
“On the basis of the written complaint given by Shri Vikrant
Kumar (room 213 Mahi) and eye witness accounts and the
acceptance of guilt by Shri Najeeb Ahmed (room 106 Mahi),
Mr. Ahmed stands accused of violence against Shri Vikrant
Kumar. Accordingly, the Warden Committee in the presence of
JNUSU President Shri Mohit Pandey, Hostel President Shri
Alimuddin and former President Shri Dileep Kumar, took the
impromptu decision to expel Shri Najeeb Ahmed from Mahi-
Mandavi Hostel with immediate effect. Official communication
for vacating the hostel premises will be provided to Shri Ahmed
in due course. Shri Ahmed is required to vacate the hostel on or
before 21/10/16.
Signed by:
1. Sushil Kumar
2. Arun Srivastava
3. Soumyajit Ray”

13. The above noting has been signed by Sushil Kumar (Senior Warden),
Arun Srivastava (Men‟s Warden) and Soumyajit Ray, another Warden.

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14. Another meeting of Wardens took place at 9.30 pm on 16 October,
2016, where it was noted as under:
“1 Decision taken on 15-10-2016 is deferred till further notice.
This is done keeping in mind the present situation specially
about Mr. Najeeb Ahmad who is untraceable after the incidents.

2 The warden committee called witnesses to the violence
(complaint attached) by a group of students that ended in the
brutal assault on Mr. Najeeb Ahmad during the intervening
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night of 14 and 15 October 2016.

3 The warden's committee decided to send a report on the
accident to the Dean of Students on the instructions of the
Rector-I (JNU).

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4 The warden's committee the warden committee is to identify
illegal residents involved in the violence and take the hostel out
of bounds for them.

5 The warden's committee recommends that on the basis of
written complaints submitted by the complainants and the
report submitted by the wardens, the chief proctor should take
appropriate disciplinary action at the earliest.”

15. This was signed by three of the Wardens - Sushil Kumar, Senior
Warden, Soumyajit Ray, Warden, Arun Srivastava, Warden - and
Alimuddin, President of the Mahi Mandavi Hostel.

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16. JNU released a press release on 17 October, 2016 stating inter alia that
the Administration had taken the following steps:
“a) The JNU security was instructed to immediately look for
the missing student.

b) The DOS gave a written instruction to all the Wardens to
search hostel rooms.

c) The police visited the campus and investigated the matter,
which is still going on.

d) The administration is in constant touch with the police to
facilitate the investigation.”

17. A separate letter was given by Mr Mohit Pandey, President of the
JNUSU to senior officers of PS Vasant Kunj (North) requesting swift action
in arresting the nine persons mentioned by him, who were involved in the
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attack on Najeeb on the night of 14 October 2016.

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18. When the writ petition was listed before this Court on 28 November,
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2016, Mr Rahul Mehra, learned Standing Counsel appearing for the State
submitted a status report, which was handed over to Mr. Colin Gonsalves,
learned Senior Counsel appearing for the Petitioner. As noted by the Court,
the said status report was “perused and returned by him to Mr Mehra”. This
was in light of the apprehensions expressed by Mr Mehra about sharing of
the status report “as it would hamper the investigation at this stage.”

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Order dated 28 November 2016
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19. This Court on 28 November 2016 noticed that at page 4 of the said
status report, reference was made to Najeeb having been taken to the
Safdarjung Hospital where he refused medical examination. The Court was
surprised that the background to Najeeb having to be taken to Safdarjung
Hospital was not set out. It directed an affidavit to be filed by the concerned
officer explaining the reasons for this lapse and to also file a supplementary
status report setting out the details of the incident which led to “removal of
Najeeb from to the hostel to Safdarjung Hospital”.

20. The Court also noticed that the steps taken by the local police and the
SIT included wireless messages having been sent to the SSPs of all the
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Districts of India on 15 /16 October, 2016; uploading the details of the
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missing person on the Zonal Integrated Police Net („ZIP Net‟) on 16
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October, 2016; circulation of hue and cry notices since 15 October, 2016;
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information sent to Director NCRV on 16 October 2016; transmission of
the information to Delhi Doordarshan and CBI Missing Section; publishing
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of the details of the missing person in newspapers on 25 and 26 October
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and then on 6 and 8 November, 2016 and photo of the missing person
W.P. (Crl) 3391/2016 Page 8 of 34



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being circulated on private channels on 6 November 2016. The reward was
increased from Rs.50,000/- to Rs. 2,00,000/-, and later to Rs.5,00,000/-.
Four teams were sent along various routes including Delhi-Agra, Delhi –
Bulandshahr, Ghaziabad, Moradabad and Rampur. The CCTV footages of
Metro Stations were examined. It was also stated as under
“The statement of driver of the TSR in which Najeeb travelled
from the Hostel to Jamia Milia has also been recorded under
Section 164 Cr.P.C. The statement of persons associated with
Najeeb at Jamia Milia have also been recorded.”

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21. The order dated 28 November 2016 of this Court then noted that
learned counsel appearing for JNU informed the Court that he would seek
instructions whether the decision of expelling Najeeb “has been
reconsidered or would be reconsidered”. The Court also directed the
Petitioner to issue a statement, with the assistance of the police, through
print and electronic media to Najeeb requesting him to return. The Court
also requested JNU to issue an advertisement informing Najeeb that the
decision of his expulsion from the hostel would be reconsidered on his
return. The Court explained:
“These two directions have been issued keeping in view the
health of Najeeb in mind, if for any reason he is under any
depression or his apprehension or is feeling slighted on account
of the action taken against him. We request the JNU
Authorities, the students of JNU and anybody who can assist
the police and provide any clue/lead to the police so that the
missing person can be recovered after putting all their
differences on one side.”

22. The Court directed that the status report submitted to it would be sealed
by the Court Master and kept in the Court file. It also noted:
W.P. (Crl) 3391/2016 Page 9 of 34



“Status report supplied to Mr. Colin Gonsalves, learned senior
counsel for the petitioner has been read by him and the same
has been returned to Mr. Rahul Mehra.”

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Order dated 9 December 2016
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23. The next hearing of the case took place on 9 December 2016, when the
Court perused the affidavit of Dr. Ram Gopal Naik, DCP (Crime Branch)
which was tendered along with the supplementary status report. It was
submitted by Dr. Naik as under:
“That in pursuance of the order dated 14/12/2016 the entire
JNU campus including the complete administrative and
academic blocks, hostel complexes, class-room complexes,
open areas, terrace areas with all water tanks, septic tanks and
residential complexes were thoroughly searched on two
consecutive days ie 19/12/2016 &20/12/2016.

For comprehensive and thorough exhaustive search of the entire
JNU campus, the 1019 acres area of JNU Campus was divided
into eleven zones. Each zone was headed by an ACP assisted
by 03 Inspectors and other police staff including Sub
Inspectors, ASIs, HCs, Constables, etc. The entire search
operation was conducted under the close supervision of the
DCP, Crime Branch. Being a herculean task, the Local Police
Officials of South district were also roped in to assist the Crime
Branch to conduct the search operation.

The massive search operation consisting of 560 Police Officials
including 01 DCP, 13 ACPs, 34 Inspectors & 67 Srs/ASrs
along with other staff was thus carried out for two days. Further
60 personnel from the security staff of JNU also fully assisted
in conducting search operations on both the days.

Further to assist the Police Officials in search operation, 02
squads of Sniffer Dogs and 04 squads of Mounted Police along
with Photographers and videographers were also involved for
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conducting the search.

During the massive search operations, total 18 Hostels,
residential complexes including that of V.C., Institutional
complexes, Shopping complexes, Cafeteria, Jungle/green areas
etc were searched for.

On 19/12/2016, the entire search operation was conducted in
the presence of Smt. Fatima Nafees (Mother of Najeeb) and
Mujib (Brother of Najeeb).

To comply with the directions of the Hon'ble Delhi High Court
process of lie detection tests of various suspects has been
initiated. In this process, consent of Qasim (Room mate of
Najeeb) to undergo the Lie Detection Test before the court
concerned was recorded on 16/12/2016 and the subject is to
appear before FSL, Rohini, Delhi on 22 & 23/12/2016 to
undergo the test.”

24. It was stated in the said affidavit by Dr. Naik that the 9 students alleged
to be involved in the attack on Najeeb by Mr. Mohit Pandey were contacted
telephonically and notices were also sent to them by registered post asking
them to join the investigation and to undergo lie detection tests. Reference
was made to the doubt expressed by Mr. Gonsalves about an auto rickshaw
driver identifying Najeeb as the boy whom he ferried from JNU Campus to
Jamia Milia Islamia University since there was no system in place of noting
the registration number of the auto rickshaws entering/exiting JNU Campus.
Dr. Naik stated:

“To clarify this aspect, on 15/12/2016, Sh. Mohit Pandey
(President, JNUSU), Sh. Akbar (Ex. President JNUSU,
undergoing Ph. D in School of Social Science) & Ms. Geeta (A
JNU Student of MA- History-IInd Year) had come to the office
of AHTU at Sec-16, Rohini, Delhi under the instructions of Ld.
Counsel Sh. Gonsalves. Two registers containing entries in
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respects of TSR's maintained at JNU gates, seized in this case
were shown to them to their satisfaction.”

25. The supplementary status report tendered by Dr. Naik enclosed the
statements of roommate Mohd. Qasim and 12 others which included the
President of Mahi Mandavi Hostel JNU, the wardens, Prof. Arun Srivastava,
Dr. Sushil Kumar and Dr. Soumyajit Roy (Warden – sanitation). Further the
number of the fellow students and ex-students including those who had
attacked Najeeb were “also re-examined/interrogated at length in person.”
Their statements were enclosed with the supplementary status report. That
report also sought to reconstruct the sequence of events. It was noted in the
supplementary status report that at the emergency meeting of the Warden
Committee Najeeb was:
“repeatedly asked whether he was beaten up by any one and he
repeatedly said that he did not remember anything at all.
Accordingly the committee unanimously decided to expel and
evict Mr. Najeeb Ahmed from the hostel with immediate
effect.”

26. It is further noted that thereafter Najeeb along with Qasim returned to
their room. When Qasim put his hand at the back of Najeeb‟s neck, Najeeb
complained of pain. Qasim then suggested to the hostel warden that Najeeb
should be examined in a hospital. An ambulance was called through the
security room. Najeeb, accompanied by Mohd. Qasim and Mohd. Shad
reached Safdarjung Hospital. However, on reaching Safdarjung hospital,
Najeeb “refused to get any sort of medical aid or treatment.” As a result,
Qasim called Najeeb‟s mother and informed her that he was refusing
treatment, to which she said that Najeeb had some old problem and the
relevant medicines would be in his room. It is noted that throughout the
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incident “Najeeb was not having any visible injury nor did he complain of
any discomfort.” They returned to JNU in the same ambulance, although
Najeeb kept insisting that he would wait for his mother at the hospital. He
further insisted on going to Gurugram to the house of his aunt ( Fufi ). It was
further noted that after reaching JNU, Qasim gave Najeeb certain medicines
as instructed by Najeeb‟s mother. However, Najeeb did not sleep throughout
the night. The report also noted that no MLC was prepared at Safdarjung
Hospital, New Delhi. Since the CCTV footage of Safdarjang Hospital is
preserved only for 7 days at a time, the police could not obtain the said
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CCTV footage of the relevant time period. In light of the fact that on 15
October 2016, an auto (TSR) driver purportedly dropped Najeeb near Jamia
Milia Islamia University, the route that would be opted by auto drivers from
JNU to Jamia University was searched for CCTVs, but no CCTV footage
covering the route could be procured.

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Orders dated 14 and 22 December 2016
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27. The case was next heard on 14 December 2016. The Court on that date
recorded the submission of Mr. Gonsalves that the JNUSU would have no
objection if the entire JNU campus was searched by the Delhi Police. No
obstruction would be caused and all assistance would be provided by JNU.
The JNU was asked to file its affidavit by Friday that week. It was further
directed as under:
“Delhi Police is also directed to take all steps including the
proposal of conducting lie detector tests on various persons as
per information received by them. We expect that there will be
no loss of time in conducting the exercise. We also request FSL
Rohini to provide the result of the tests as early as possible.”

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28. On 22 December 2016 the Court noted that another status report had
been handed over. The Court was informed that the entire JNU Campus
including the complete administrative and academic blocks, hostel
complexes, class-room complexes, open areas, terrace areas with all water
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tanks, septic tanks and residential complexes were searched on 19 and 20
December 2016. It was further noted as under:
“The search of the entire 1019 acres of JNU campus was
searched under one ACP, three Inspectors, police officials, Sub-
Inspectors, Assistant Sub Inspectors, Head Constables,
Constables. Total 560 police officials including one DCP, 13
ACPs, 34 Inspectors and 67 Sub-Inspectors/Assistant Sub-
Inspectors, 60 personnel from the security staff of JNU were
involved in the two days search operation. To assist the Police
officials in the search operation, 2 squads of sniffer dogs and 4
squads of mounted police along with photographers and
videographers were also involved. The search included 18
hostels, residential complexes including that of V.C.,
institutional complexes, shopping complexes, cafeteria,
jungle/green areas. Search was conducted in the presence of the
mother and brother of the missing person.

We are also informed that nine other students have been issued
notices through registered post at their native addresses to
enable the State to conduct a lie detector test on them.

We are also informed that the police would conduct search with
the dog squad at the rooms of two out of the nine persons who
were residing outside the hostel and search would also be
conducted, if necessary, at the native places of nine students.

We are informed that the room mate of the missing person had
initially agreed for the lie detector test. However, after

participating for one day, he has declined.

Mr. Gonsalves, Senior Advocate for the petitioner submits that
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it is reasonably expected that roommate of the missing person
would participate in the lie detector after the tests are conducted
on the nine students, subject to their consent as well.”

Orders in 2017
29. One of the persons suspected, who was issued notice in terms of the
above directions, filed an application Crl.M.A.2028/2017 apprehensive of
him being compelled to undergo the lie detector test. The Court then
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clarified in the order dated 23 January 2017 as under:
“4. Be that as it may we may clarify that in any of our orders we
have neither suggested to the Delhi Police the manner in which
they will carry out their investigation nor we have issued any
directions that a lie detector test should be conducted without
the consent of the persons resultantly no further orders are
called for in the application.”

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30. As far as the main writ petition was concerned, on 13 February 2017

this Court observed:
“We reiterate that we have not directed the Delhi Police to
conduct the polygraphic/lie detector test on this applicant or on
any other applicants. This is the domain of the Delhi Police and
it is for them to decide the manner in which further
investigation is to be carried out.”

31. Another status report was handed over as regards the main writ petition.
The Court was informed that the students to whom notices were issued for
undergoing the lie detector test had appeared before the Court of the Chief
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Metropolitan Magistrate (CMM), Patiala House Courts on 10 February
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2017 and the matter had been adjourned to 15 February 2017.

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32. On 20 February, 2017, the Court was informed that the CMM had
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adjourned the proceedings to 22 February, 2017. It was clarified by
counsel for the State that the lie-detector test was not restricted to the nine
students but also to the roommate of the missing person and a few other
persons as well.

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33. The case was next heard on 16 March, 2017. A status report was filed
which detailed further steps that were taken to trace the missing person. The
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Court was informed that the CMM had fixed the next date as 20 March,
2017. The State informed the Court that the call records of the nine persons
would be produced on the next date.

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34. At the hearing on 21 April, 2017, two confidential reports were
submitted to the Court. One was the report of the Central Forensic Sciences
Laboratory (CFSL), Hyderabad, regarding the data retrieved from the
mobile phone as well as the laptop of Najeeb. The second report was an
analysis of the CDRs of the nine students alleged to be behind the
disappearance of Najeeb. An application was filed by the Petitioner seeking
directions for the constitution of an SIT as the current SIT at that time,
according to her, was not functioning satisfactorily. The Court observed that
the statements of all identified witnesses should be recorded by the IO, if not
already recorded. The Court further directed as under:
“The State shall also place on record the statement of the
TSR driver, Mr. Devesh Singh, who had allegedly picked
the missing person from JNU Campus and dropped him at
Jamia University on 15.10.2016. The analysis of his mobile
phone data - including the location data shall also be placed
on record in a sealed cover along with the further status
report.”

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35. The State was also asked to explain the initial delay in taking action on
the complaint about Najeeb having gone missing.

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36. On 16 May, 2017, an order was passed in Crl. M.A. 8174/2017
recording, inter-alia , the submission of Mr. Mehra that the Delhi Police
would have no objection, if the matter was further investigated by another
agency. This Court then recorded as under:
“ Although, Mr. Gonsalves suggests that the SIT may be
constituted by officers of outside Delhi, a suggestion has
been made that the matter may be referred to Central Bureau
of Investigation.

Having regard to the nature of the matter, as there is no
opposition to the request so made, we transfer the matter to
the Central Bureau of Investigation immediately. The
further investigation shall be conducted under the
supervision of an Officer not less than the rank of DIG. ”

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37. At the hearing on 8 August 2017, the Court noted that the CBI
submitted its status report in a sealed cover, which was then opened in the
Court. The Court observed “it is strange that an advance copy of the same
has already been served to counsel for the Petitioner.” The Special Public
Prosecutor (SPP) for the CBI assured the Court that a detailed status report
would be filed on the next date.

38. Mr. Nikhil Goel, Advocate, appeared for the CBI on following date i.e.
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6 September, 2017. He pointed out to the Court that from the date the
investigation had been taken over by the CBI, 26 persons falling in three
distinct categories have been interrogated which include the officials of the
JNU, staff, friends, colleagues, etc. It was further submitted that wide
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publicity has been given in 12 cities; mortuaries etc. have also been carefully
examined. It was also pointed out that railway record for the past one year
with name and age had also been called and other than the 8 officials who
are in the team, two officials above the rank of DIG are also supervising the
investigation. The written suggestions of the Petitioner were accepted by Mr.
Goel, who said that those would be examined.

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39. The CBI handed over another status report to the Court on 16 October,
2017. After noting that the CMM had adjourned the application seeking
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leave to conduct the lie detector test of the nine persons to 24 January,
2018, awaiting their reply, the Court disapproved of the long date given. A
request was then made to the CMM to ensure that long dates are not given
“where applications are made for conducting the polygraph test or in such
application where there is urgency in the matter.” When it was pointed out to
the Court that the status report of the CBI had been signed by a Inspector
whereas the investigation had to be conducted under the supervision of an
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officer not below the rank of DIG as was directed by the order dated 16
May 2017, the Court directed the concerned DIG to ensure that the status
report was filed thereafter under his signatures.

th
40. At the hearing on 14 November, 2017, a status report handed over by
the CBI in Court was given to Mr. Gonsalves for his perusal and was
thereafter returned by him to the counsel for the CBI.

st
41. At the hearing on 21 December, 2017, another status report was
submitted, in which, inter alia , it was stated that the report of the CFSL,
Chandigarh on the forensic examinations of the mobile phones for the
W.P. (Crl) 3391/2016 Page 18 of 34



deleted data was awaited. The Court directed the CBI to send a reminder to
the CFSL, Chandigarh to expedite the submission of their report. The Court
st
was also shown a copy of the order dated 21 November, 2017 passed by the
learned Additional Chief Metropolitan Magistrate (ACMM) disposing of the
application filed by the CBI seeking permission to subject the nine persons
to polygraph test. The learned ACMM observed that the consent required of
such persons for that purpose was not forthcoming.

Orders in 2018
th
42. On 27 February 2018, another updated status report was filed by the
CBI in a sealed cover which was opened in the presence of the parties. Para
3 of that status report was shared with Mr. Gonsalves, learned senior counsel
for the Petitioner. The Court issued a direction to the Director, CFSL,
Chandigarh, to expedite the report of the analysis of the mobile phones and
th
make the report available to the CBI not later than 19 March, 2018. On the
same day, Mr. Gonsalves made a plea that the investigation of the present
case should be monitored by the Court and that the status reports submitted
by the CBI should be examined by a criminal law expert for his analysis and
advice. This was opposed by Mr. Nikhil Goel, learned counsel for the CBI.
The Court deferred consideration of the above plea after noting that
important steps in the investigation should first be completed.

nd
43. On 2 April, 2018, the Court noted that a report had been sent by the
CFSL, Chandigarh, to the CBI of examination of only three of the mobile
phones. Even that part of the report was found to be incomplete. It was noted
that going by the status report filed on that date in the Court, the CBI itself
W.P. (Crl) 3391/2016 Page 19 of 34



had reservations about the incomplete report in respect of three mobile
phones since the task had been entrusted to a junior level officer of CFSL,
Chandigarh, who did not appear to be appropriately qualified or experienced
to undertake the task. The Court took serious note of the laxity on the part of
the CFSL, Chandigarh, and directed that in the event that the complete
report of the analysis of the nine mobile phones undertaken by the CFSL,
Chandigarh by a senior level officer qualified for the task, is not made
available to the IO of the CBI on or before 30th April 2018, the Director,
CFSL, Chandigarh would remain present in person in this Court on the next
date to explain the lapse.

th
44. The case was next heard on 11 May, 2018. The Court noted in its order
of that date as under:
“1. Mr. Nikhil Goel, learned counsel for the CBI, has
presented the 8th status report.

2. Nine mobile phones were sent by the CBI to the CFSL in
Chandigarh for extraction of the data contained therein.
While the data of two of the mobile phones was sent to the
CBI, the data of the remaining seven was awaited as of the
last date of hearing of this petition. The report dated 25th
April 2018 of the CFSL, Chandigarh states that data from
four mobile phones and two SD-cards were retrieved.
Approximately 122 gigabytes of data has been recovered.
This includes thousands of distinct files (7,907 audio files,
1,440 video files, 4,015 text messages, 3,870 WhatsApp
files, 1,14,488 image files, 29,608 SD-card files, 20,717
miscellaneous files) and a 36,401-page Extraction Report.
This data is now available to the CBI. Mr. Goel informs the
Court that while the analysis of this exhaustive data is a
work in progress, the CBI is yet to fine concrete leads in
respect of the persons specifically named by the Petitioner.

W.P. (Crl) 3391/2016 Page 20 of 34



3. As regards the three phones which are referred to, as
Exhibits M-1, M-6 and M-7, the CFSL report states that Ex
M-1 could not be analysed since it was not unlocked, i.e. it
is protected with a pattern lock. The other two mobile
phones, i.e. Exs. M-6 and M-7, are not in working order
and, therefore, could not be analysed.

4. On instructions, Mr. Goel states that through a Special
Messenger, the CBI will send the aid three mobile phones,
i.e. Exs. M-1, M-6 and M-7, to the CFSL, Hyderabad no
later than three days from today. The Court requests the
CFSL Hyderabad to examine the said mobile phones, make
every effort to retrieve the data therein and submit a report
to the CBI no later than one month thereafter.

5. The CBI's 8th status report also reveals that since the last
hearing, 28 students and 25 security guards/supervisors of
JNU who were on duty at the various hostels and entry/exit
gates have been examined. It is stated that no information
has yet been received as regards the whereabouts of the
missing person from any part of the country. Even the help
of Interpol has been sought for issuance of Yellow Notice.
A reward of Rs. 10,00,000/- has been announced to the
general public for providing clues about the missing person.

6. Mr. Gonsalves, learned Senior counsel for the Petitioner
states that the Petitioner is utterly frustrated with the failed
attempts of the CBI to trace her son and has lost faith in the
CBI. He urges that the Court should itself peruse the
statements said to have been recorded by the CBI since it
took over the investigation and in particular examine
whether the location and movements of the persons named
by her, after the date on which the Petitioner's son went
missing, were ascertained. Mr. Goel replies that the CBI
went beyond even that. He states that the statements will be
available on the next date for the perusal of the Court.

7. Mr. Gonsalves seeks to address arguments on the task of
analysing the CBI record being entrusted by this Court to a
former Judge for better assistance. The Court will take up
W.P. (Crl) 3391/2016 Page 21 of 34



this aspect on the next date.”

th
45. The ninth status report of the CBI was submitted in this Court on 12
July, 2018. The CFSL, Hyderabad, in its report to the CBI dealt with three
mobile phones sent to it and stated that two of them were physically
damaged and therefore could not be analyzed. As for the third, the pattern
lock could not be opened as it appeared to be in the „USB Debugging
Disabled Mode‟. Mr. Gonsalves drew attention of the Court to the
th
representation dated 17 October, 2016 made to the Chief Proctor, JNU by
18 persons who claimed to be eye witnesses to the assault on the missing
person. The Court observed that it would like the CBI to make a separate
compilation, for the perusal of the Court, of the statements given by these 18
persons to the CBI. Also that the Court would like the CBI to include in the
compilation the statements given by the three Doctors serving as wardens in
JNU i.e. Dr. Arun Shrivastav, Dr. Sushil Kumar and Dr. Soumyajit Roy as
well as the three security guards, who were assigned to the hostel at the
relevant time when the attack took place.

th
46. At the hearing on 4 September, 2018, the CBI presented before the
Court a compilation of the statements given by the 18 persons as well as the
three wardens and three security guards assigned to the Mahi-Mandavi
Hostel at the relevant time when the attack took place.

Submissions on behalf of the Petitioner
47. The submissions of Mr. Gonsalves, learned senior counsel for the
Petitioner were as follows:
(i) The Petitioner was entitled to be provided with the status reports
W.P. (Crl) 3391/2016 Page 22 of 34



submitted from time to time in this Court by the CBI in sealed covers.
Reliance is placed by him on the Minnesota Protocol (2016), which is
the revised United Nations Manual on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions.

(ii) The question that really arose for consideration by this Court was
whether the CBI had done its best in tracing out Najeeb. A lot of time
was wasted in the CBI suggesting that Najeeb had left in a TSR on the
th
morning of 15 October, 2016 and the fact that that statement was
found to be incorrect subsequently. Time was also lost in finding out
whether a body recovered from the JNU campus in January, 2017
belonged to Najeeb only to be again answered in the negative.

(iii) It is difficult to expect CBI to be able to undertake a fair and objective
investigation without any political interference. He expressed surprise
that the named nine persons were not yet subjected to custodial
interrogation to elicit the truth of the matter. Referring to the
applications filed by the Petitioner seeking an independent and
impartial investigation by an SIT comprising officers from outside
Delhi with unimpeachable reputation, reliance was placed on the
decision in Babubhai Jamnadas Patel v. State of Gujarat 2009 (12)
SCALE 183 . It was urged that there should be a Court-monitored
investigation.

(iv) The statements given to CBI by Mr. Mohit Pandey and five others
th
who had saved Najeeb from further attack on the night of 14
October, 2016 by the nine persons should be sufficient material for
W.P. (Crl) 3391/2016 Page 23 of 34



the CBI to subject the nine suspected persons to custodial
interrogation.

Submissions on behalf of the CBI
48. Countering the above submissions, Mr .Nikhil Goel submitted that while
the investigating agency could be asked to share with the complainant the
stage at which the investigation was, Section 172 of the Cr PC was clear that
only the criminal Court concerned could be privy to what was recorded in
the case diary. The status reports were only to indicate to the Court the
progress of the investigation. Whether to subject the persons to custodial
interrogation or not was the discretion of the investigating agency, keeping
in view the parameters set out under Section 41 Cr PC. According to him,
the CBI investigation was indeed being monitored by this Court since May,
2017. Although this was essentially the task of the concerned criminal Court
which could not be delegated to anyone else, there was no justification for
the demand that this Court should constitute an SIT comprising officers
from outside Delhi and should also monitor the investigation undertaken by
such SIT.

49. Mr. Nikhil Goel, on the basis of the decision in Shahid Balwa v. Union
of India (2014) 2 SCC 687, submitted that even if the CBI filed a closure
report in the concerned criminal Court, as it proposed to in the present case,
at that stage the criminal Court would give the complainant an opportunity
of being heard as the complainant had the right to object/oppose the closure
report. In what is known as „Protest Petition‟, the complainant would be
heard, to point out to the criminal Court after examining the report placed by
W.P. (Crl) 3391/2016 Page 24 of 34



the CBI along with the relevant annexures and supporting documents, before
the criminal Court, that the recommendation of the CBI regarding closure
should not be accepted and that the matter required further investigation.

The Minnesota Protocol
50. As regards the first plea regarding the Minnesota Protocol, the Court
would like to note that in the present case, at every stage of the hearing the
Petitioner was aware of the filing of the status reports, first by the Delhi
Police, Crime Branch/SIT and thereafter by the CBI. While some of the
reports were in fact furnished to the Petitioner, some others were shown to
the learned Senior counsel for the Petitioner and then taken back. In one
instance, only one paragraph of the status report was shown to the learned
Senior Counsel.

51. It must be recalled that the status report indicates what progress has been
made in the investigation. It also sets out the specific steps taken by the
investigating agency. It might have set out the details of the names of the
persons examined. These are usually details in the case diary maintained by
the investigating agency under Section 172 (3) Cr.PC. The law is well
settled that the details in a case diary maintained under Section 172 (3)
Cr.PC are not shared with anyone, be it the suspect or the complainant. It is
to be perused only by the Court. There is no requirement of sharing the
details in the case diary with the complainant.

52. The Minnesota Protocol underscores the need for the complainant to be
able to have an effective representation in the entire process. As far as that
requirement is concerned, it is more than adequately met when, after the
W.P. (Crl) 3391/2016 Page 25 of 34



filing of the closure report before the criminal report, the complainant files a
protest petition opposing the closure of the investigation. The complainant is
then provided with full excess to the closure report and the materials on
which it is based. Subject to terms with which the complainant would have
to comply, the criminal Court concerned will provide such access and
perhaps also furnish copy of the entire closure report and such of the
documents which formed the basis for the recommendation for such closure.
The complainant can then carefully analyse the material and point out to the
criminal court why in the view of the complainant the closure report should
not be accepted. Thereafter, the concerned criminal Court takes a call.

Options before the criminal Court
53. The options available before the criminal court at this stage, have been
explained by the Supreme Court in its decision in Amrutbhai Shambhubhai
Patel v. Sumanbhai Kantibhai Patel (2017) 4 SCC 177 as under:
“33. The scope of the judicial audit in Reeta Nag , to
reiterate, was whether, after the charge-sheet had been filed
by the investigating agency under Section 173(2) Cr PC,
and charge had been framed against some of the accused
persons on the basis thereof, and other co-accused had been
discharged, the Magistrate could direct the investigating
agency to conduct a reinvestigation or further investigation
under sub-section (8) of Section 173. The recorded facts
revealed that the Magistrate had in the contextual facts
directed for reinvestigation and to submit a report, though
prior thereto, he had taken cognizance of the offences
involved against six of the original sixteen accused persons,
discharging the rest. The informant had thereafter filed an
application for reinvestigation of the case and the prayer
was acceded to. This Court referred to its earlier decisions
in Sankatha Singh v. State of U.P , and Master Construction
W.P. (Crl) 3391/2016 Page 26 of 34



Co.(P) Ltd. v. State of Orissa to the effect that after the
Magistrate had passed a final order framing charge against
some accused persons, it was no longer within his
competence or jurisdiction to direct a reinvestigation into
the case. The decision in Randhir Singh Rana , which
propounded as well that after taking cognizance of an
offence on the basis of a police report and after the
appearance of the accused, a Magistrate cannot of his own
order further investigation, though such an order could be
passed on the application of the investigating authority, was
recorded. It was reiterated with reference to the earlier
determination of this Court in Dinesh Dalmia v. CBI that
the power of the investigating officer to make a prayer for
conducting further investigation in terms of Section 173(8)
of the Code was not taken away only because a charge-
sheet had been filed under Section 173(2) and a further
investigation was permissible even if cognizance had been
taken by the Magistrate. This Court, therefore summed up
by enouncing that once a charge sheet was filed under
Section 173(2) Cr PC and either charges have been framed
or the accused have been discharged, the Magistrate may on
the basis of a protest petition, take cognizance of the
offence complained of or on the application made by the
investigating authority, permit further investigation under
Section 173(8), but he cannot suo motu direct a further
investigation or order a reinvestigation into a case on
account of the bar of Section 167(2) of the Code. It was
thus held that as investigating authority did not apply for
further investigation and an application to that effect had
been filed by the de facto complainant under Section
173(8), the order acceding to the said prayer was beyond
the jurisdictional competence of the Magistrate. It was,
however observed, that a Magistrate could, if deemed
necessary, take recourse to the provisions of Section 319 Cr
PC at the stage of trial.”

54. If indeed the criminal Court has to form a view on the justification of the
CBI recommending closure, it will give a full opportunity to the Petitioner at
W.P. (Crl) 3391/2016 Page 27 of 34



that stage to oppose that request by filing a „protest petition‟ and in that
process, the Petitioner will have full access to the entire material gathered by
the CBI. This will more than satisfy the requirements of the Minnesota
Protocol. This disposes of the submission made in this regard by Mr.
Gonsalves.

Constituting an SIT
55. Now turning to the request regarding constitution of an SIT, the Court is
conscious that in a series of cases, the Supreme Court has constituted SITs
in exercise of its power under Article 142 of the Constitution.

56. In Babubhai Jamnadas Patel v. State of Gujarat (2009) 9 SCC 610 , the
Supreme Court dealt with appeals filed against the interim orders of the
Gujarat High Court passed in the course of monitoring by the High Court in
the investigation of an FIR registered at the Karanj Police Station in Gujarat.
The question was whether the High Court was interfering with the
investigation and if this was contemplated under the Constitution and
criminal procedure. Reference was made to the decision in Director, CBI v.
Niyamavedi, (1995) 3 SCC 601 , where it had been observed that any
observation which may amount to interference with the investigation should
not be made and that ordinarily the Court should refrain from interfering at a
premature stage of the investigation as that may derail the investigation and
demoralise the investigation.

57. On the other hand, the contesting Respondents pointed out that the
powers of the High Courts and the Supreme Court under the Constitution are
wide enough to direct a public authority to perform its duty in accordance
W.P. (Crl) 3391/2016 Page 28 of 34



with the law. The decisions referred to were State of Bihar v. Ranchi Zila
Samta Party ( 1996) 3 SCC 682, Vineet Narain v. Union of India (1998) 1
SCC 226 ; State of W.B. v. Nuruddin Mallick (1998) 8 SCC 43 and Nirmal
Singh Kahlol v. State of Punjab (2009) 1 SCC 441 . The Supreme Court in
Babubhai Jamnadas Patel ( supra ) noted that the progress of the
investigation in the case had been „tardy and slow‟. In these circumstances,
the directions issued by the High Court that the investigation should be
handed over to the ACP of the C Division of Ahmedabad City should be
viewed as „keeping a watch over the investigation in order to prevent the
miscarriage of justice‟. It was further observed as under:
“37. The Courts, and in particular the High Courts and the
Supreme Court, are the sentinels of justice and have been
vested with extraordinary powers of judicial review and
supervision to ensure that the rights of the citizens are duly
protected. The Courts have to maintain a constant vigil
against the inaction of the authorities in discharging their
duties and obligations in the interest of the citizens for
whom they exist. This Court, as also the High Courts, have
had to issue appropriate writs and directions from time to
time to ensure that the authorities performed at least such
duties as they were required to perform under the various
statutes and orders passed by the administration.”

58. In the present case, however, this Court did accept the plea of the
Petitioner at the first instance and directed the investigation to be undertaken
by the CBI. This Court is, however, for the reasons discussed hereafter, not
persuaded that the CBI is tardy and slow in the investigation or that it has
not taken steps that are required to be taken in the matter. The question
really is whether there is any justification for the plea that for the second
time now, the investigation should be entrusted to another SIT whose work
W.P. (Crl) 3391/2016 Page 29 of 34



will be monitored by the Court, thus removing the CBI from the picture.

59. In Shahid Balwa ( supra ), the Supreme Court was dealing with the
investigation by the CBI into the „2G Spectrum Scam‟. In its decision in
Shahid Balwa ( supra ), the Supreme Court was considering the applications
filed by the some of the accused persons questioning its directions that
subordinate courts including the High Courts would be prohibited from
entertaining any prayer for staying the proceedings. Reaffirming its earlier
directions, the Court explained that the directions had been issued having
regard to the larger public interest involved “and the necessity of the proper
investigation and also with the object of unearthing the track”. That was not
a case of constitution of an SIT. In fact, the investigation was entrusted to
the CBI which ultimately filed their charge sheet. The Court declined to lay
down any guidelines as prayed for by the petitioner which would apply in a
„court monitored investigation‟. The Court explained
“In a Court-monitored investigation, as already pointed out, the
Court is not expected to interfere with the trial proceedings. The
conduct of the trial is the business of the trial judge and not the
court monitoring the investigation. A superior court exercising
the appellate power or constitutional power, if gives a direction
to conduct the trial on day-to-day basis or complete the trial in a
specific time by giving direction is not interfering with the trial
proceedings but only facilitating the speedy trial, which is a
facet of Article 21 of the Constitution of India.”

60. In the present case, this Court has in fact monitored the investigation
thus far of the CBI and has not been persuaded to agree with the Petitioner
that the CBI has not acted fairly or that it has been under any influence or
political compulsions in its decision to file a closure report. However, the
W.P. (Crl) 3391/2016 Page 30 of 34



Court would not like to say anything further in this regard because it will be
for the Court concerned to decide whether on the material placed before it,
the CBI closure report should be accepted or not. That will be a decision to
be taken independently by the concerned Court, uninfluenced by what this
Court may have observed thus far in these proceedings. Further, in coming
to any conclusion in that matter, the concerned Court will certainly take into
consideration the stand and contentions of the Petitioner, if any.

61. In Sushila Devi v. State of Rajasthan (2014) 1 SCC 269 , the question
was whether the Supreme Court should continue to monitor the case
investigated by the CBI on its directions even after the charge sheet was
filed. It was observed by the Supreme Court as under:
“28. After analysing all these decisions, it appears to us that
this Court has already in a catena of decisions held and
pointed out that the monitoring of a case is continued till the
investigation continues but when the investigating agency,
which is appointed by the court, completes the investigation,
files a charge-sheet and takes steps in the matter in
accordance with the provisions of law before a competent
court of law, it would not be proper for this Court to keep on
monitoring the trial which is continuing before a competent
court. Accordingly, we are of the opinion that since the
investigation has already been completed, charge- sheet has
been filed, trial has already commenced, it is not necessary
for this Court to continue with the monitoring of the case in
question.”

62. The decision in Manohar Lal Sharma v. Principal Secretary (2014) 2
SCC 532 involved investigation into the “Coal Scam”. The CBI there had
registered preliminary inquiries regarding allegations of coal blocks for the
period 1993-2005 and 2006-2009. The allegation was that the coal blocks
W.P. (Crl) 3391/2016 Page 31 of 34



for the subject period were allocated to private prayers for extraneous
considerations which resulted in enormous loss to the public exchequer.
Given the importance to the matter, the Supreme Court undertook
monitoring of the investigation conducted by the CBI. The question that
arose before the Supreme Court was whether approval of the Central
Government under Section 6-A of the Delhi Special Police Establishment
Act, 1946 was necessary in the matter where the inquiry/investigation into
the crime under the Prevention of Corruption Act, 1988 is being monitored
by a Constitutional Court. The said question was answered in the negative.
The Supreme Court explained:
“38.The monitoring of investigations/inquiries by the Court
is intended to ensure that proper progress takes place
without directing or channelling the mode or manner of
investigation. The whole idea is to retain public confidence
in the impartial inquiry/investigation into the alleged crime;
that inquiry/investigation into every accusation is made on a
reasonable basis irrespective of the position and status of
that person and the inquiry/investigation is taken to the
logical conclusion in accordance with law.
The monitoring by the Court aims to lend credence to the
inquiry/investigation being conducted by the CBI as premier
investigating agency and to eliminate any impression of
bias, lack of fairness and objectivity therein.”

63. The Supreme Court further explained as under:
“39. However, the investigation/inquiry monitored by the
court does not mean that the court supervises such
investigation/inquiry. To supervise would mean to observe
and direct the execution of a task whereas to monitor would
only mean to maintain surveillance. The concern and
interest of the court in such „court directed‟ or „court
monitored‟ cases is that there is no undue delay in the
investigation, and the investigation is conducted in a free
W.P. (Crl) 3391/2016 Page 32 of 34



and fair manner with no external interference. In such a
process, the people acquainted with facts and circumstances
of the case would also have a sense of security and they
would cooperate with the investigation given that the
superior courts are seized of the matter.

We find that in some cases, the expression „court
monitored‟ has been interchangeably used with „court
supervised investigation‟. Once the court supervises an
investigation, there is hardly anything left in the trial. Under
the Code, the investigating officer is only to form an
opinion and it is for the court to ultimately try the case
based on the opinion formed by the investigating officer and
see whether any offence has been made out. If a superior
court supervises the investigation and thus facilitates the
formulation of such opinion in the form of a report under
Section 173(2) of the Code, it will be difficult if not
impossible for the trial court to not be influenced or bound
by such opinion. Then trial becomes a farce. Therefore,
supervision of investigation by any court is a contradiction
in terms. The Code does not envisage such a procedure, and
it cannot either. In the rare and compelling circumstances
referred to above, the superior courts may monitor an
investigation to ensure that the investigating agency
conducts the investigation in a free, fair and time-bound
manner without any external interference.”

64. This Court has monitored the investigation of the CBI up to the stage
where the CBI is in a position to file a report before the concerned criminal
Court. What should happen hereafter is for the concerned criminal Court to
decide and not this Court. Consequently the prayer of the Petitioner that the
Court should constitute an SIT and monitor its work, thus removing the CBI
from the picture, has to be declined.

65. Leaving it open to the Petitioner to raise all contentions available to her
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in accordance with law before the concerned criminal Court after the filing
of the report by the CBI in such Court, the Court disposes of this petition
and all the pending applications.

S. MURALIDHAR, J.


VINOD GOEL J.
OCTOBER 08, 2018
tr / shailender
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