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2006 DIGILAW 1471 (ALL)

SANDEEP KUMAR YADAV v. STATE OF U. P.

2006-05-24

AMAR SARAN, IMTIYAZ MURTAZA

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( 1 ) WE have heard learned counsel for the petitioner, Shri R. P. Srivastava, learned counsel appearing for respondent No. 7 and learned Additional government Advocate. ( 2 ) EARLIER on 9. 5. 2006 after hearing the learned counsel for the petitioner and learned A. G. A. and examining the short counter affidavit filed by N. C. Tripathi, deputy Secretary, we had stayed the operation of the order dated 31. 3. 2006 passed by the State Government whereby the investigation, which was earlier transferred from the local police at the instance of Mahendra nath Yadav, the accused respondent No. 7. on 27. 1. 2005, had again been retransferred to the local police. Prima facie those orders appeared to have been passed due to improper political interference in the matter at the instance of the accused in a case under section302 IPC who was the President of the Student Union, Shiv Harsh Kisan P. G. College, Basti, a member of the Zila panchayat and the lohiya Vahini Manch of the Samajwadi Party. The documents filed with the short counter affidavit of N. C. Tripathi, Deputy Secretary, reveal that the transfer from the CBCID to the local police and vice versa on the request of the respondent no. 7 had the support of Chhavi Raj yadav Ex-Senior Vice-President of the samajwadi Party, district Basti. Shri Balram yadav, Minister, Panchayat Raj and Shri Raj kishore Singh, Minister, Udyan Vibhag, U. P. ( 3 ) THE extent of political interference is apparent from the fact that at the instance of the accused the investigation has been transferred not once, on 27. 1. 05 when it was earlier transferred to the CBCID, but twice, when it has again been re-transferred on 31. 3. 06 to the local police, as it was no more convenient for the accused that the investigation be completed and charge sheet be submitted as the investigation by the CBCID was reaching culmination. ( 4 ) THE first transfer dated 27. 1. 2005 had been effected even though the report of the in-charge of Superintendent of Police, Basti noted that he was satisfied that the local police had conducted the investigation in a fair manner, but in the usual manner the s. P. had signalled his absence of objections to the case being investigated by the CBCID. 1. 2005 had been effected even though the report of the in-charge of Superintendent of Police, Basti noted that he was satisfied that the local police had conducted the investigation in a fair manner, but in the usual manner the s. P. had signalled his absence of objections to the case being investigated by the CBCID. ( 5 ) THIS is a pathetic state of affairs when an accused person can have the choice of the investigating agency, which must dance to his tune. These orders transferring the investigation at the instance of the accused in a case under Section 302 IPC were also in contravention of the directions of the Apex court in Union of India Vs. W. N. Chadha, air 1993 SC 1082 and C. B. I. Vs. Rajesh gandhi, 1997 Cri. L. J. 63:. (AIR 1997 C 93) (SC ). ( 6 ) AS we had also directed by our order dated 9. 5. 2006 that the present investigating officer of the CB CID, who is investigating the case should conclude the investigation, the officer is present and he states that he has submitted the charge sheet on 23. 5. 2006 and initiated proceedings under section 83 Cr. P. C. . in respect of one accused who is still absconding. ( 7 ) SHRI R. P. Srivastava, learned counsel for respondent No. 7 has filed an application for modification of our order dated 9. 5. 2006 on the basis of which he states that respon-dent No. 3, Director General of, Crime branch, CBCID and respondent No. 6, inspector, Divisional Office, Crime Branch, cbcid, Gorakhpur had adopted coercive measure against respondent No. 7 and initiated proceedings under Sections 82 and 83 Cr. P. C. and that they wanted to submit a charge sheet. As we found that submission of charge sheet was desirable, we have found the modification application devoid of merit, and we have rejected it summarily by a separate order of date. ( 8 ) THIS Court notes that unwarranted political interference with the investigation process specially when the accused belongs to the ruling party and the abject submission of police officers who readily issue no-objection certificates without assigning valid reasons to such illegitimate demands of the political leadership, has become the order of the day. ( 8 ) THIS Court notes that unwarranted political interference with the investigation process specially when the accused belongs to the ruling party and the abject submission of police officers who readily issue no-objection certificates without assigning valid reasons to such illegitimate demands of the political leadership, has become the order of the day. Unfortunately this trait is not only confined to the present political dispensation, but such interference with the investigation process had become a hallmark of all or any political party who may be in power at the moment. This has resulted in delayed or unfair investigation which has the potential of eroding peoples faith in governance, recourse to extra-legal pressures for preventing the police from booking the real offenders of crimes which thereby go unpunished, and eventual break down of civic life. The said orders of transfer of investigation are also in clear violation of the decisions of this High Court and Government Orders, one of which is dated 15. 9. 1995 laying down the conditions when an order entrusting investigation of criminal case to the CBCID may be passed. ( 9 ) THE Division Bench decisions of this court in the cases of Smt. Ramwati and others Vs. State of U. P. and others 2001 (42)ACC 751. Bhopal and others Vs. State of u. P. and others, 1997 (34) ACC 371 and an earlier decision by this bench, in Civil. Misc. Writ Petition No. 4263. of 2005. (2005) 53 all Cric 16 Praveen Pandey Vs. State of U. P. and 3 other have been completely ignored. ( 10 ) THESE decisions and Government Orders provide inter alia that normally in routine matters the investigation should be done by the local police and transfer of investigation to CBCID could only be made if (1) the nature of the crime is so complicated and involved that it is not possible for the local police to properly investigate the same, (2)the crime has international, inter-State or inter-division ramifications (3) the local conditions are such due to which it has become difficult for the civil police to investigate the case fairly, and (4) such conditions have arisen due to which a doubt is created in the mind of general public that the local police is not investigating the case fairly. ( 11 ) THE local police officers and other local administrative officers in-charge of the district were also required to give a proper report whether the investigation should be transferred to CB CID or not. ( 12 ) A ready and over-eager grant of no-objection certificates by the S. P. /ssp and the local administration when their opinion is sought by the State Government, without disclosing justifiable reasons for transferring the case to the CBCID cannot be approved by this High Court. We also find that cases where investigations have been entrusted to the CBCID appear to have been held up for long periods of time, in the meantime the accused roam about freely and no effort is made to arrest them. Investigations are shuttled between the local police and cbcid and back to the local police or from one sector of the CBCID to another sector only for preventing accused from being arrested. ( 13 ) IN this view of the matter, we direct the Principal Secretary (Home), U. P. Govt. to file a detailed counter affidavit by 13th july, 2006 indicating the total number of cases, where investigations are pending with the CBCID, the maximum period of time that the investigation is pending in any case, and the number of cases where investigations are pending (without submission of charge sheets or final reports) for periods over 10 years, below 10 and over 5 years, below 5 and over 3 years, below 3 years and over 1 year and below 1 year. The number of accused in the aforesaid yearwise break up of categories who have not been arrested and sent to jail. The information may be furnished in a tabular form. ( 14 ) WE also desire that the Principal Secretary (Home) may furnish the details about the number of cases, which were entrusted to the CBCID in the last 24 months. The details of each case must mention: (a) Case number and crime number, and date of FIR. (b) Sections under Penal code,or other laws (c) Whether the transfer was at the request of the accused or the prosecution. (d) Who made the recommendation for transfer. (e) Whether the consent of the SSP/sp of the district was obtained. (f) Whether the consent mentioned reasons for transfer or it was in the form of no objection report only. (b) Sections under Penal code,or other laws (c) Whether the transfer was at the request of the accused or the prosecution. (d) Who made the recommendation for transfer. (e) Whether the consent of the SSP/sp of the district was obtained. (f) Whether the consent mentioned reasons for transfer or it was in the form of no objection report only. (g) What, according to the transfer order or official report, was the reason for the transfer. (h) The number of times, the investigation had been transferred in the case. (i) Whether the accused had been sent to jail and date when sent to jail. (j) Date of commencement of investigation by CB CID, and whether charge sheet was submitted in the case. ( 15 ) IT may be mentioned that on our request during the course of hearing of this petition the learned Advocate General graciously appeared before us and promised to see that the steps are taken for ensuring that transfer from local police to CBCID are effected according to norms and standards laid down in the Government Orders and decisions of the Courts and that investigating machinery can operate impartially free from undue and unwarranted political interference. It may be mentioned that the honble Chief Minister while addressing judicial officers in the 38th Annual Convention of U. P. Judicial Services Association has himself recommended that the judiary must take steps for breaking the nexus of politicians and Mafia, and for ensuring purity in the process of investigation and delivery of justice. We hope and trust that the learned advocate General will assist this Court in carrying forward this mandate. ( 16 ) LIST this case again on 13. 7. 2006 for further hearing by which date the Principal secretary (Home) may furnish the information desired by the Court. ( 17 ) OFFICE is directed to communicate this order to the Principal Secretary (Home)within a week. ( 18 ) A copy of this order may also be given to the learned Government Advocate within two days for compliance. Order accordingly. .