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2013 DIGILAW 2450 (ALL)

Mahesh Kumar v. State of U. P. and others

2013-09-29

ANIL KUMAR AGARWAL, RAVINDRA SINGH

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Ravindra Singh and Anil Kumar Agarwal, JJ. – Heard Sri Narendra Singh and Sri Majhar Ali, learned Counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Islam Ahmad, learned Counsel for respondent No. 4. 2. This petitioner has been preferred by the petitioner Mahesh Kumar with the following prayer: (a) a writ, order or direction in the nature of certiorari to quash the order/direction dated 21.7.2010 No. 136 MM/6P-3-2010-15(23)F/2010 passed by Govt. of Uttar Pradesh for further investigation of Case Crime No. 615 of 2009, under sections 364-A and 120-B, IPC, P.S. Chakeri, District Kanpur Nagar. (b) a writ, order or direction in the nature of mandamus directing the respondents not to harass the petitioner to call for recording state­ments in pursuant of the order dated 21.7.2010. (c) a writ, order or direction which this HonTjle Court may deem fit and proper in the circumstances of the case. (d) To award the cost of the writ petition to the petitioner. 3. The facts in brief of this case are that the FIR was lodged by the petitioner in case crime No. 615 of 2009 under section 364 IPC, P.S. Chakeri, District Kanpur Nagar on 10.8.2009 at 18.20 P.M. in respect of the alleged incident dated 9.8.2009 occurred at about 8.45 P.M. in which five persons namely Hanoman, Smt. Manju Devi, Shri Ram, Ram Shanker and Sandeep Tiwari were named as accused and two persons were unknown. The allegation against them was that they had kidnapped the son of the petitioner namely Nikhil Kumar aged about 4-5 years. After lodging the FIR the investigation of this case was done by civil police and after completing the investigation the charge-sheet dated 17.11.2009 was submitted by its I.O. Sri Prashant Kumar Prasad, Circle Officer. Govind Nagar, District Kanpur Nagar. The charge-sheet was submitted against Hanoman @ Hanuman Singh, Shri Ram, Rama Shanker, Sandeep Tiwari, Raj Kumar Tiwari and Uday Shanker Mishra for the offence punishable under sections 364 and 120-B IPC and section 3(2)(V) SC/ST Act. On the charge-sheet dated 17.11.2009 the learned C.M.M. Kanpur Nagar took the cognizance on 21.11.2009, thereafter on an application moved by the accused Sri Ram Kuril forwarded by Smt. Pratibha Shukla, then M.L.A. Ghaubeypur, Kanpur Nagar, through letter dated 15.2.2010. On the charge-sheet dated 17.11.2009 the learned C.M.M. Kanpur Nagar took the cognizance on 21.11.2009, thereafter on an application moved by the accused Sri Ram Kuril forwarded by Smt. Pratibha Shukla, then M.L.A. Ghaubeypur, Kanpur Nagar, through letter dated 15.2.2010. The State Government took the decision to transfer the investigation of the above mentioned case to CBCID, the same was communicated to Director General CBCID, U.P. Lucknow by Sri Awadhesh Narayan, Deputy Secretary, U.P. Government by letter dated 21.7.2010. The letter dated 21.7.2010. is under challenged. 4. The present writ petition has been filed on the following grounds: 1. Because after proper investigation local/Civil Police submitted charge-sheet against six accused per­sons including accused Hanuman (Police Constable) and learned Magistrate has taken cognizance 2. Because after submission of charge-sheet and cognizance on the same Govt. of Uttar Pradesh directed CBCID for further investigation by order No. 136 MM/6P-3-2010-15(23) P/2010 vide order dated 21.7.2010 without the permission of Court. 3. Because C.B.I. C.I.D. pressurising the petitioner to make statement in the favour of accused constable Hanuman and his relatives in the same connection on 23.7.2012 at about 1.44 P.M. and 1.50 P.M. he has called by Mob. No. 9450157479 on his Mob. No. 9307066048 to appear at branch Gwal Toli. He appeared with his wife but C.B.I. C.I.D. threaten to them for making statement in favour of accused Hanuman and the relatives. 4. Because the opposite party has good relation with political person who exercising his influence got the case transferred to the C.B: C.I.D. In the investigation, conducted by Civil Police, statement of witnesses under section 161 Cr.P.C. was recorded by I.O. and on the basis of material available charge-sheet was submitted which prima facie discloses commission of the cognizable offence or which charge-sheet has been submitted. When after investigation charge-sheet has been submitted. Accused has got no right for further investigation and to delay the trial. 5. Because it is also submitted on behalf of the petitioner that the provisions section 173(8) merely enable the-police to further investigate in case the office incharge of the police station obtained further evidence oral or documentary, but it does not give right to accused to ask for further investigation as a matter of right. 5. 5. Because it is also submitted on behalf of the petitioner that the provisions section 173(8) merely enable the-police to further investigate in case the office incharge of the police station obtained further evidence oral or documentary, but it does not give right to accused to ask for further investigation as a matter of right. 5. It is contended by learned Counsel for the petitioner that in the present case the investigation has been done by the police officer having the rank of Deputy S.P. and after completing the investigation the charge-sheet has been submitted on which the learned C.M.M. Kanpur Nagar has taken the cognizance on 21.11.2009, thereafter on the application moved by the accused forwarded by Smt. Pratibha Shukla, then M.L.A. Chaubeypur, Kanpurv Nagar, vide letter dated 15.2.2010 the State Government had taken the decision to transfer the investigation of the above mentioned case to C.B. C.I.D. The investigation has been transferred at the instance of the accused under the political pressure. Even the State Government did not consider the fact that in the present case the charge-sheet has already been submitted and the cognizance was taken by learned C.M.M., Kanpur Nagar. It is a case in which the Government had not passed any order for doing the further investigation on the basis of new material which required investigation. But in a routine manner the investigation as a whole has been transferred to C.B.I. C.I.D., it amounts to re investigation of the case which is not permissible under the law. Therefore, the decision taken by the State Government transferring the investigation to C.B.I. C.I.D. is illegal and the same may. be quashed. 6. In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the respondent No. 4 that in the present case the respondent No. 4 sent a letter to Chief Minister mentioning therein that he along with his wife Smt. Manju Devi and his brother-in-law Ram Shanker have been falsely implicated in case crime No. 615 of 2009, P.S. Chakeri, District Kanpur Nagar. On that application the report was sought from S.S.P. Kanpur Nagar vide letters dated 6.4.2010 and 27.4.2010. In pursuance of these letters the S.S.P. Kanpur Nagar sent the letters dated 27.4.2010 and 3.5.2010 by which intima­tion was given with regards to the facts involved and the progress of it. On that application the report was sought from S.S.P. Kanpur Nagar vide letters dated 6.4.2010 and 27.4.2010. In pursuance of these letters the S.S.P. Kanpur Nagar sent the letters dated 27.4.2010 and 3.5.2010 by which intima­tion was given with regards to the facts involved and the progress of it. The kidnapped boy Nikhil was not recovered and the charge-sheet was submitted against six persons considering the report of S.S.P. Kanpur Nagar and DIG Kanpur Nagar. The State Government took the decision to transfer the investigation of this case to C.B.I. C.I.D. The investigation has not been transferred under any political pressure or influence, it has been transferred keeping in view to make the recovery and welfare of the child. The C.B.I. C.I.D. had investigated the matter after moving an application before the Court concerned under section 173(8) Cr.P.C. for seeking further investigation. After collecting the evidence the C.B.I. C.I.D. had prepared a charge-sheet No. 13 of 2010 dated 25.7.2012 and the same has been approved by appropriate authority. In pursuance of the order dated 6.8.2010 passed by this Court, the same has not been filed before the Court below in the investigation collected by the C.B. C.I.D. only one accused namely Sandeep Ti-wari has been found to be guilty, however, no evidence has been found against rest of the accused. But the miss­ing child has yet not been recovered. In such circumstances, the State Govern­ment has not committed any error in transferring the investigation to C.B. C.I.D. In the present case re-investigation has not been done but the further investigation has been done. The present writ petition is devoid of the merits, the same may be dismissed. 7. Considering the facts, circumstances of the case, submission made by learned Counsel for the petitioner, learned A.G.A., learned Counsel for respondent No. 4 and from the perusal of the available record in the writ petition it appears that in the present case the petitioner had lodged the FIR on 10.8.2009 at 6.20 P.M. at P.S. Chakeri, District Kanpur Nagar in case crime No. 615 of 2009 under section 364 IPC in respect of the incident allegedly occurred on 9.8.2009 at about 8.45 P.M. alleging therein that son of the petitioner was kidnapped by the accused persons, age of the kidnapped boy was about 4-5 years. Its investigation was done by Circle Officer, Govind Nagar, District Kanpur Nagar but after completing the investigation submitted the charge-sheet dated 17.11.2009 against six persons in­cluding the respondent No. 4 for the offence punishable under sections 364-A and 120-B IPC and section 3(2)(V) SC/ST Act. On the charge-sheet dated 17.11.2009 the learned C.M.M. Kanpur Nagar had taken the cognizance on 21.11.2009. Thereafter the State Government on the basis of the application moved by the accused/respondent No. 4 forwarded by then MLA Smt. Pratibha Shukla, summoned the report from DIG/SSP, Kanpur Nagar. The reports dated 27.4.2010 and 3.5.2010 have been submitted by DIG/SSP, Kanpur Nagar. Both the reports have been filed by the State Government as Annexure-2 of the affidavit filed by Sri Sant Ram Prajapati, under Secretary, State of U.P., Lucknow 8. From the perusal of the reports dated 27.4.2010 and 3.5.2010 it appears that all the facts upto the investigation, submission of the charge-sheet have been narrated therein and it has been specifically mentioned that the co-accused Manju Devi has also been subsequently charge-sheeted vide charge-sheet No. 585-A dated 11.4.2010 and there was sufficient material against her also to submit the charge-sheet. It has also been specifically mentioned that all the efforts have been taken to recover the kidnapped boy Nikhil but he could not be recovered. No recommendation has been made by DIG/SSP for transferring the investigation to any other investigating agency or for doing the further investigation in his letter dated 27.4.2010 but he was having no objection in case investigation is transferred to C.B. C.I.D. The report dated 27.4.2010 was a perfect report based on facts and circumstances but in that report no rec­ommendation was made by DIG/SSP, Kanpur Nagar for transferring the investigation to this case to C.B.I. C.I.D., thereafter it appears that the subsequent letter was sent to him for recommending the investigation be done by C.B.I. C.I.D., therefore, such recommendation was made in letter dated 3.5.2010. It is a case in which after submission of the charge-sheet no application was moved by the Officer Incharge of the police station concerned or the I.O. before the Court of learned C.M.M. Kanpur Nagar to obtain the permission to do the further investigation under section 173(8) Cr.P.C. even on the basis of the facts and circumstances of the case no report was submitted by DIG/SSP, Kanpur Nagar to the State Government for transferring the investigation to C.B.I. C.I.D. for the purpose of the further investigation. The State Government has taken the decision only on the basis of the application moved by the accused-respondent No. 4 forwarded by the MLA Smt. Pratibha Shukla vide letter dated 15.2.2010. The report was called for from the DIG/SSP Kanpur Nagar with regard to the facts and progress of the investigation, the same was submitted mentioning therein that in the present case charge-sheet was submitted against the six persons, thereafter a supplementary charge-sheet was submitted against the accused Smt. Manju Devi. The report also does not disclose that there was any need of fur­ther investigation, it indicates that the State Government without having any proper reason transferred the investigation of this case to C.B.I. C.I.D. at the instance of the accused-respondent. The settled position of the law is that the investigation may not be done at the choice of the accused. In such circum­stances where the investigation has been completed and the cognizance has been taken by the Court concerned it was not proper to the State Government to trans­fer the investigation to C.B. C.I.D. The order passed by the State Government transferring the investigation to C.B. C.I.D. amounts to re-investigation or fresh investigation which is not permissible under the law. Therefore, the decision taken by the State Government transferring the investigation to C.B. C.I.D. and its communication dated 21.7.2010 is hereby quashed and it is directed that in pursuance of the letter dated 21.7.2010 if any investigation has been done by the C.B. C.I.D., its report shall not be submitted before the Court concerned. 9. Accordingly this writ petition is allowed. Petition Allowed. ___________