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2009 DIGILAW 3481 (ALL)

JASVIR v. STATE OF U. P.

2009-11-12

AMAR SARAN

body2009
JUDGMENT Hon’ble Amar Saran, J.—By means of this common order, I am disposing of Criminal Writ Petition No. 7727 of 2004 and Criminal Misc. Application No. 1212 of 2002. 2. I have heard Shri Raj Kumar Jain, learned counsel for the petitioners in Criminal Misc. Application No. 1212 of 2002, Shri Manoj Mishra, learned counsel for the petitioners in Writ Petition No. 7727 of 2004 and learned AGA for the State. 3. The facts of this case are that on 20.9.2000 at 11.15 p.m. an FIR was lodged at case Crime No. 206 of 2000 at police station Bhopa by Jasbir against Dhoom Singh and other nine accused under Sections 147/148/149/307/302/342/504 IPC regarding an incident which took place on the same day at 1 p.m. in which one person was murdered and 10 persons received injuries. 4. On 5.10.2000 at the instance of the accused the case was transferred to the CBCID. Dhoom Singh and others thereafter filed a Writ Petition No. 6009 of 2000 on 19.10.2000 in which the arrest of the petitioners therein (Dhoom Singh and others) by the local police was stayed by a Division Bench of this Court on account of the fact that a plea was raised that the case had been transferred to the CBCID. This petition was thereafter dismissed on 13.1.2004 and the order staying the arrest was vacated. 5. Dhoom Singh and others also preferred Criminal Misc. Application No. 1121 (M/B) of 2001 before the Lucknow Bench challenging an order dated 2.3.2001 whereby the State Government had re-transferred the investigation to the local police. On account of the failure of Government Advocate to obtain instructions, by an order dated 27.3.2001 the order of the State Government dated 2.3.2001 was stayed. Thereafter on 3.4.2001, the writ petition was transferred to Allahabad High Court and it was directed to be connected with Writ Petition No. 6099 of 2000. 6. In the meanwhile, on 12.4.2001 the local police submitted a charge-sheet. This charge-sheet was challenged in Criminal Misc. Application No. 1212 of 2002 and an order was passed by Hon’ble B.K. Rathi, J. on 25.2.2002 staying the proceedings pursuant to case Crime No. 206 of 2000 after submission of the charge-sheet. 7. 6. In the meanwhile, on 12.4.2001 the local police submitted a charge-sheet. This charge-sheet was challenged in Criminal Misc. Application No. 1212 of 2002 and an order was passed by Hon’ble B.K. Rathi, J. on 25.2.2002 staying the proceedings pursuant to case Crime No. 206 of 2000 after submission of the charge-sheet. 7. On 29.4.2004, the Bench hearing the application under Section 482 Cr.P.C. directed that all the matters be connected and placed before Hon’ble the Chief Justice for nominating a Bench for disposal of the matters. 8. On 16.7.2004, the State Government again passed an order at the instance of the accused transferring the case from the local police to the CBCID. 9. This order was challenged in Writ Petition No. 7727 of 2004 by the informant Jasvir and by an order dated 26.10.2004 passed by Hon’ble Ravindra Singh, J. the order of the State Government dated 16.7.2004 was stayed. 10. It is argued by Shri Manoj Mishra that the order passed by the State Government again transferring the case from the local police to CBCID because it was not pointed out to the Government that the investigation by the local police has already been concluded and the charge-sheet had even been submitted. In any case it was submitted that the case could not be transferred to an investigating agency on an application of the accused. It was further contended by Sri Mishra that Dhoom Singh and others are facing prosecution in a case inter alia under Section 302 IPC for an incident which took place on 20.9.2000 and for over nine years the case has been kept pending owing to one pretext or the other by Dhoom Singh and others by moving different applications in different jurisdictions. 11. It was argued by Shri R.K. Jain, learned counsel for the petitioners that Dhoom Singh is a very old man and the initial order dated 2.3.2001 transferring the case from CBCID back to the local police was effected at the instance of the local MLA Pradeep Baliyan, who was hostile to Dhoom Singh. A letter written by the MLA has also been annexed. This transfer had been stayed by the Lucknow Bench on 27.3.2001 in Writ Petition No. 1121 (M/B) of 2001. Inspite of the stay of the transfer order, the local police had submitted the charge-sheet on 12.4.2001. A letter written by the MLA has also been annexed. This transfer had been stayed by the Lucknow Bench on 27.3.2001 in Writ Petition No. 1121 (M/B) of 2001. Inspite of the stay of the transfer order, the local police had submitted the charge-sheet on 12.4.2001. As the investigation had been stayed, the police ought not to have submitted the charge-sheet, and the said charge-sheet could not be acted upon. There was no concealment that the charge-sheet had already been submitted by the local police when the application was moved on behalf of the accused for re-transferring the case to the CBCID. The impugned order, by which the transfer was effected was not filed and only communication of the said order was made. This order was in violation of the decision of the Supreme Court in Surinder Singh v. Central Government and others, AIR 1986 SC 2166 . It is also contended that in the petition moved by Jasvir, all the accused had not been impleaded as opposite parties, but only Dhoom Singh had been impleaded and for this proposition reliance was placed in the case of Ramesh Rai v. Chairman S.K.G. Bank Azamgarh and others, 2005(3) ESC 1594 (All)(DB). 12. In my view many of the contentions raised by the learned counsel for the accused-Dhoom Singh are technical in nature. I think, the case can be decided on one or two substantive points. Thereafter, it may not be necessary to go into the technical objections raised by the learned counsel for the accused. 13. The incident in question took place on 20.9.2000 in which one person died and ten others received injuries. Initially the local police began to investigate the case. From the perusal of the order dated 5.10.2000 (Annexure 2) passed by the State Government transferring the investigation to CBCID, it clearly shows that the said order was passed on an application dated 23.9.2000 given by the accused-Dhoom Singh. This order being in the teeth of the decisions of the Apex Court in Union of India v. W.N. Chadha, AIR 1993 SC 1082 and CBI v. Rajesh, 1997 Cri LJ 63 (SC), that the accused has no locus standi as to which agency should investigate the case against them, any order passed at their behest by the State Government is unwarranted in law. 14. 14. That being the position, it is not very material whether subsequently the prosecution succeeded in getting the case re-transferred from the CBCID to the local police on 2.3.2001 and if any illegality is alleged therein that the re-transfer was effected at the instance of the local MLA Pradeep Baliyan, who was hostile to the accused Dhoom Singh, this fact is not very material. The effect of the stay of the transfer by the Lucknow Bench on 27.3.2001 in Writ Petition No. 1121 (M/B) of 2001, was also not very material as once the charge-sheet was submitted on 12.4.2001, the proceedings could not be questioned at any stage on the ground that the case was one which the officer was not empowered to investigate, in view of Section 156(2) Cr.P.C. This provision reads as follows : “156(2). No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.” Moreover, for mere irregularity in investigation or because the investigating officer lacked powers to investigate the case, would not provide any ground for quashing the charge-sheet, which has been submitted on its basis as held by the Apex Court in Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612 , State of Karnataka v. Pastor P. Raju, AIR 2006 SC 2825 and Satvindar Kaur v. State (Government of NCT Delhi), AIR 1999 SC 3596 . 15. In the instant case, it cannot be said that the local police was not empowered to investigate the case, which had taken place in its jurisdiction. Furthermore, no clear and categorical averments had been made in the counter-affidavit that the said order of the Lucknow Bench dated 27.3.2001 was served on the local police before 12.4.2001 when it submitted the charge-sheet. 16. Notably, the order dated 27.3.2001 passed by the Lucknow Bench had only stayed the order dated 2.3.2001 whereby the State Government had re-transferred the investigation from the CBCID to the local police, but there was no order directly staying the investigation by the local police. 16. Notably, the order dated 27.3.2001 passed by the Lucknow Bench had only stayed the order dated 2.3.2001 whereby the State Government had re-transferred the investigation from the CBCID to the local police, but there was no order directly staying the investigation by the local police. On the said date, i.e. 27.3.2001 as also on a subsequent date, i.e. 29.3.2001 no responsible officer of the CBCID or any one else was present for instructing the learned AGA before the Lucknow Bench, hence the impugned stay order had been passed. 17. The final contention of the learned counsel for the accused-Dhoom Singh that Dhoom Singh was an old man, can also provide no ground for quashing the investigation or the charge-sheet in a case inter alia under Section 302 IPC. 18. The charge-sheet having been submitted by the civil police, the impugned order dated 16.7.2004 passed by the State Government at the instance of the accused, is illegal and is accordingly set aside. 19. In view of what has been indicated herein above, the Criminal Writ Petition No. 7727 of 2004 is allowed. 20. So far as Criminal Misc. Application No. 1212 of 2002 for quashing of the charge-sheet dated 12.4.2001, which was also challenged on the same ground that as the investigation by the local police was stayed by the High Court and the investigation was improper. As I have held above that the said investigation is legal and in any case owing to some impropriety in the investigation under Section 156(2), the investigation cannot be quashed. Consequently, Criminal Misc. Application No. 1212 of 2002 preferred by the accused-Dhoom Singh is without force and it is dismissed. 21. The stay order granted on 25.2.2002 is vacated. 22. As the matter is extremely old as the incident is dated 20.9.2000, the Court below is now directed to proceed with the trial very expeditiously and should try to conclude the same within four months, if possible, from the date of production of a certified copy of this order before it. 23. Let a copy of this order be placed on the record of Division Bench Writ Petition No. 1121 (M/B) of 2001. ————