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2001 DIGILAW 69 (ALL)

JAI PRAKASH SINGH TOMAR v. STATE OF UTTAR PRADESH

2001-01-23

G.P.MATHUR, U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS petition under Art. 226 of the Constitution of India has been filed for issuance of writ, order or direction in the nature of certiorari quashing the recall order dated 2-11-2000 passed by respondent No. 2 issuance of writ, order or direction in the nature of mandamus directing the respondents Authority to maintain order dated 20-9-2000 passed by respondent No. 2 and issuance of writ, order or direction in the nature of mandamus directing the respondents Authority to conduct the investigation of case crime No. 603 of 2000 under Sections 147, 148, 149, 452, 307 and 302, I. P. C. P. S. Baraut. District Baghpat through independent agency other than local police. ( 2 ) ONE Smt. Sukhbiri, widow of Attar Singh, was murdered on 30-7-2000 at 8. 15 a. m. Rajendra Singh, husband of niece of the deceased lodged report of the said occurrence on same day at P. S. Baraut, District Bhagpat, against the petitioner and other, on the basis of which a case at Crime No. 603 of 2000, under Sections 147, 148, 149, 452, 307 and 302, I. P. C. was registered. The petitioner, who is legal practitioner at District Court, Baghpat, moved an application on 18-8-2000 before the State Government for transferring the investigation of the said case from local police to C. B. C. I. D. On his above application, the State Government transferred the investigation of said case to C. B. C. I. D. , vide order dated 20-9-2000 (Annexure 7 to the writ petition ). Subsequently, the State Government recalled the above order dated 20-9-2000 and again entrusted the investigation of the case of local police by order dated 2-11-2000 (Annexure 8 to the writ petition ). The petitioner challenged the above order dated 2-11-2000 passed by the State Government on the ground that the recall order was illegal andwas passed without affording an opportunity of being heard to him and that the above order was passed under the influence of local police and the District Judge against whom the petitioner had made complaint to the Chief Justice. ( 3 ) HEARD the learned counsel for the petitioner, learned A. G. A. and perused the record. ( 3 ) HEARD the learned counsel for the petitioner, learned A. G. A. and perused the record. ( 4 ) IT was contended by the learned counsel for the petitioner that once the investigation of the case has been entrusted to the C. B. C. I. D. by the order of the State Government, it was not open to the State Government to rescind the above order and again entrust the investigation of the case to the local police; that the order in question was passed without affording an opportunity of being heard to the petitioner and that the said order was passed under the influence of local police and the District Judge, who were biased with him. ( 5 ) THE question whether the State Government could or could not rescind the earlier order entrusting the investigation of criminal case to the C. B. C. I. D. or not was considered by a Division Bench of this Court (in which one of us (G. P. Mathur, J.) was member) in case of Bhopal v. State of U. P. (1997) 34 All Cri C 371 : (1997 All LJ 782 ). The notification No. 4173 C VI : 33. 27 P94 dated 15th Sept. 1995 issued by the Government of U. P. laying down the guide-lines for investigation of the case by the C. B. C. I. D. was considered in the said case and the above notification was held quite reasonable. It was held that there is no such prohibition under any statute, nor there is any such rule, notification or order that once the State Government has transferred investigation from local police to C. B. C. I. D. , it cannot recall or rescind the said order and entrust the investigation back to the local police. In fact such a power is possessed by the State Government in view of Section 21 of U. P. General Clauses Act, which provides that whereby in Uttar Pradesh Act a power to issue statutory instrument is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and condition (if any) to add amend, vary or rescind any statute instrument so issued. In view of Section 4 (42-B) any notification or order would be statutory instrument. In view of Section 4 (42-B) any notification or order would be statutory instrument. Therefore, the State Government has the power to rescind the order by which investigation may have been entrusted to C. B. C. I. D. such a power can be exercised at any subsequent stage. As such, there is no principle of law that once the State Government transferred the investigation from local police to C. B. C. I. D. it cannot rescind that order or retransfer the investigation to the local police. ( 6 ) IT is also pertinent to mention that the petitioner had not been able to show that the present case comes within the purview of the guidelines issued by the State Government in notification dated 15-9-1995. ( 7 ) THE next contention of the learned counsel for the petitioner was that the order of recalling investigation from C. B. C. I. D. to local police was made without affording an opportunity to the petitioner of being heard. It was held by the Apex Court in the case of Union of India v. V. N. Chadha, AIR 1993 SC 1082 that under the scheme of Chapter XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer. The accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173 (2) or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 as the case may be. ( 8 ) IT was also held by the Apex Court in the case of Central Bureau of Investigation v. Rajesh Gandhi, 1997 Cri LJ 63 : ( AIR 1997 SC 93 ) that decision to investigate or decision on agency which should be investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. The accused cannot have a say in who should investigate the offences he is charged with. ( 9 ) IT has also been held by the Apex Court in the case of M/s. Jayant Vitamins Ltd. v. Chaitanyakumar, (1992) 4 JT (SC) 487 : ( AIR 1992 SC 1930 ) that as repeatedly pointed out by various decisions of this Court (Apex Court) that the investigation into an offenceis a statutory function of the police and the superintendence thereof is vested in the State Government and the Court is not justified without any compelling and justifiable reason to interfere with the investigation. ( 10 ) IN view of the decisions of the Apex Court the petitioner being an accused in the criminal case was not to be heard before passing any order by the State Government as from which agency the investigation was to be done and that he had also no choice in the agency of investigation. ( 11 ) IN these circumstances, we find no force in the petition. The petition is accordingly, dismissed. Petition dismissed.