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2007 DIGILAW 319 (ALL)

BIJENDER SINGH v. STATE OF U P

2007-02-09

AMAR SARAN, R.N.MISRA

body2007
Heard Shri Tej Pal and Sukhendra Pal Singh, learned Counsel for the petitioner and learned Additional Government Advocate. 2. This writ petition has been filed for quashing the impugned FIR and investigation of case Crime No. 278 of 2006, under Sections 302/506/323/120-B, IPC, police station Sector 24 Noida, district Gautam Budh Nagar and also the prosecution in Criminal Case No. 10067 of 2006, State v. Kaloo Ram and Ors. , pursuant to the said FIR, pending in the Court of the Chief Judicial Magistrate, Gautam Budh Nagar and the related FIR in case crime No. 281 of 2006, under Section 25, Arms Act and the prosecution of the consequent criminal case bearing No. 10090 of 2006, State v. Bijender Singh, pending in the Court of the Chief Judicial Magistrate, Gautam Budh Nagar and to transfer the investigation of Crime Nos. 278 of 2006 and 281 of 2006 to some independent agencies, such as C. B. I. or C. B. C. I. D. . 3. It may be mentioned that when this writ petition was filed, no order was passed staying the proceeding. However, an order was passed on 8-11-2006 by an earlier Division Bench directing the Home Secretary, Government of U. P. , Lucknow to dispose of the petitioners representation dated 26-10-2006 (Annexure-48) within a period of six weeks from the date of production of a certified copy of the order before him. 4. When the case came up today, learned Counsel for the petitioner has pointed out that the State has not obtained necessary directions from the Home Secretary about the disposal of his representation dated 26-10-2006 even though time was granted earlier. We, therefore, decided not to extend the time any further and instead heard the learned Counsel for the petitioner and learned Additional Government Advocate. 5. The allegations in the impugned FIR were that there was enmity between the deceased Jaswant Singh Tyagi, the Principal of Gandhi Smarak Vidyalay, Sector 22, Noida and the ex-Manager, i. e. , the petitioner Bijender Singh. On 8-8-2004 an attack was made on the deceased Jaswant Singh and his son Rajiv Tyagi in the office premises as a result of which Rajiv Tyagi died on the spot, whereas Jaswant Singh Tyagi survived after treatment. On 8-8-2004 an attack was made on the deceased Jaswant Singh and his son Rajiv Tyagi in the office premises as a result of which Rajiv Tyagi died on the spot, whereas Jaswant Singh Tyagi survived after treatment. In that case petitioner and other accused persons were involved and petitioner was on bail and 24-7-2006 was the date fixed for evidence in which pressure was being exerted on the deceased to compromise the matter. The petitioner and other accused entered into a conspiracy in pursuance whereof on 21-7-2006 at about 12. 30 noon when the deceased Jaswant Tyagi and the subsequent Manager Krishna Pal Singh Yadav and his Constable Mirza Ali Raza were proceeding from the College in Maruti Car bearing No. U. P. 16k-4337 to Noida Authority, in front of Government College when the car slowed down, four persons came armed with pistols and crying that the deceased should not be spared, resorted to indiscriminate firing. One Mukesh, who was sitting at the back seat of the car, shouted enemies Kalu Ram and petitioner Bijender were there and they should run. Then the informant Krishna Pal Singh Yadav started running from the car. When they returned, they saw the deceased and constable Mirza Ali Raza badly injured, they were rushed to the Government hospital where doctor declared them dead. 6. As admittedly, the charge-sheet has been submitted and cognizance was also taken, the learned Counsel for the petitioner did not press the prayer for quashing of the FIR or the criminal proceeding pursuant thereof in this writ petition. He, however, contended that the case should be transferred to some independent agencies, such as C. B. I. or C. B. C. I. D. . He sought to argue that there is no absolute fetter on transfer of the investigation to the C. B. I. or C. B. C. I. D. even after submission of the charge- sheet. 7. There is no quarrel with this proposition. However, it needs to be clarified that substantial grounds should exist to show that the investigation has been conducted in an illegal or improper manner and that relevant evidence has been ignored and it is only in extreme and exceptional circumstances that even after submission of charge-sheet, further investigation may be ordered by the C. B. I. or C. B. C. I. D. . 8. 8. The grounds on which the transfer was being sought were that the informant-Krishna Pal Singh Yadav has social relationship with the Chief Minister Shri Mulayam Singh Yadav and his family members and was closely related to Shri D. P. Yadav. 9. We do not think that mere raising of such an allegation connecting the informant with the Chief Minister could lead to any ipso facto inference that the FIR must automatically have become false and investigation tainted, hence it must necessarily be transferred to some other agency. If that was possible, then in each and every case, it will be open to a petitioner to raise such a plea that the informant was close to the Chief Minister and, therefore, his case should be transferred to some independent agency, such as, C. B. I. or C. B. C. I. D. . This is legally not permissible. 10. It was next contended that the investigating agency was prejudiced against the petitioner as his sons Pankaj and Chetan were picked up by the police even though they were not accused and the petitioners wife Smt. Raroj Bala and Chetans wife Smt. Neelam even sent letters to this effect on 21-7-2006 to DIG, NHRC, DGP etc. 11. Even if it is assumed that the petitioners sons were wrongly picked up by the police, perhaps in an efforts to pressurize his family members to produce the petitioner, who may have absconded after this grave crime, is no reason for holding that the allegation contained in the FIR are intrinsically false and that if charge-sheet has been submitted after investigation, it must necessarily be set aside and fresh investigation ordered. 12. Another submission was that although the petitioner had surrendered before the S. S. P. Gautam Budh Nagar at 12. 00 in the night of 21/22-7-2006 in his office, yet his arrest was shown at some other place on 22-7-2006 at 6. 30 p. m. Even such an allegation gives no reason for rejecting the FIR in toto or for setting aside the charge-sheet. 00 in the night of 21/22-7-2006 in his office, yet his arrest was shown at some other place on 22-7-2006 at 6. 30 p. m. Even such an allegation gives no reason for rejecting the FIR in toto or for setting aside the charge-sheet. It may be noted that the FIR and other documents themselves show that there was bitter enmity of the petitioner, who was ex-Manager with the deceased, who was Principal of the College and the petitioner alongwith others had earlier been involved in a case in which the deceased son was murdered and the deceased had received injuries and the further allegation was that pressure was being exerted on the deceased not to give evidence in the case against the petitioner, who had been bailed out in the earlier case under Section 302, IPC etc. This constitute a strong motive for the present incident. 13. In this context the submission of the learned Counsel for the petitioner that an application dated 1- 9-2006 has been given to the S. P. Gautam Budh Nagar mentioning therein that at the time of incident the petitioner was in his daughters place at F-170 Pandav Nagar, Delhi, is a question of alibi, which will be appreciated by the trial Court when the petitioner leads evidence in defence and the same cannot be considered in the present writ petition. 14. Moreover, as held in the case of C. B. I. v. Rajesh Gandhi, 1997 Crlj 63 (SC), that normally the accused had no locus standi to choose the investigating agency. 15. Now as the charge-sheet had been submitted and the case proceeded, it will be open for the accused persons including petitioner to lead their evidence in defence at the material stage. 16. No good ground exists for the transfer of the investigation. 17. In view of what has been indicated herein-above there is no force in this writ petition. It is accordingly dismissed. 18. However, the Courts below are directed to proceed with the trial expeditiously uninfluenced by any observations made herein- above for disposal of this writ petition. Petition dismissed. .