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2015 DIGILAW 272 (ALL)

Vijay Pal Singh Tomar v. State of U. P.

2015-02-11

D.Y.CHANDRACHUD, SUNEET KUMAR

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JUDGMENT Dr. Dhananjaya Yeshwant Chandrachud, CJ. 1. The petition, invoking the jurisdiction of the Court in public interest, has been filed by the President of the Bar Association at Mathura. 2. On 6 December 2014, a first information report bearing Case Crime No. 944 of 2014 under Sections 376 and 506 of the Penal Code was registered at Police Station Highway, District Mathura. The first information report was lodged by the victim and the fifth respondent has been named as the accused. The fifth respondent was a member of the Bar Association. His membership has since been cancelled after the first information report was lodged. 3. It appears from the record that the brother of the fifth respondent addressed a communication to the Chief Minister. The communication was endorsed by the OSD (Judicial) in the Secretariat of the Chief Minister to the Director General of Police. The representation/communication by the brother of the accused sought a transfer of the investigation from Mathura to Firozabad. The Director General of Police passed an order on 18/22 December 2014, stating that in accordance with the 'expectation of the State Government', the investigation should be transferred. This communication was addressed by the Director General of Police to the Dy. Inspector General of Police, Agra Range, Agra. On 23 December 2014, the Senior Superintendent of Police, Mathura passed an order recording that the investigation has been transferred on 23 December 2014 by the Dy. Inspector General of Police, Agra Range, Agra to District Firozabad. In the meantime, the statement of the victim had been recorded under Section 164 of the Code of Criminal Procedure, 1973 on 12 December 2014. The petitioner has also annexed to the petition, a copy of a communication dated 17 December 2014 by the victim to the Chief Minister recording that her statement had already been recorded by the Magistrate on 12 December 2014 and apprehending that the accused, who is absconding, would pose a danger to the life of her parents. She has also alleged that her father had been taken into custody. 4. She has also alleged that her father had been taken into custody. 4. Our attention has been drawn to a judgment of a Division Bench of this Court in Smt. Vandana Srivastava v. State of U.P. : 2014 (87) ACC 428 in which the Court has expressed serious disapproval of the manner in which investigations are being transferred resulting in shaking the confidence of citizens in the criminal justice system of the State. The Division Bench has observed as follows: "11. We are very sorry to record that the State will not follow any guideline in the matter of exercise of discretion qua transfer of investigation and would continue to act arbitrarily. This Court is facing petitions every day where orders of transfer of investigation are being challenged not only on merit but also on the ground that they contain no reasons. 12. The practice must be put to an end. Such kinds of orders of transfer of investigation have the affect of loss of confidence of common public in the criminal justice system of this State. 13. The higher authorities the higher the responsibility for exercise of power of transfer on cogent grounds and sparingly. Power of transfer of investigation cannot be made a tool in the hands of accused or other involved in the matter to prolong the investigation on some pretext or the other." 5. We direct the learned Government Advocate, appearing on behalf of the State, to take instructions in regard to the basis on which the investigation has been transferred from Mathura to Firozabad, after the statement of the victim has been recorded on 12 December 2014 under Section 164 of the Cr. P.C. 6. Prima facie, upon reading the communication of the Director General of Police to the Dy. Inspector General of Police, Agra Range, Agra, it appears that the investigation was transferred in accordance with, what the Director General of Police described as an "expectation of the State Government" and prima facie, without any independent application of mind. The communication records that this action was taken in pursuance of the letter addressed by the brother of the accused to the Chief Minister. Prima facie, the matter requires a serious scrutiny. 7. We direct that the petition shall now be listed as fresh on 19 February 2015. 8. The communication records that this action was taken in pursuance of the letter addressed by the brother of the accused to the Chief Minister. Prima facie, the matter requires a serious scrutiny. 7. We direct that the petition shall now be listed as fresh on 19 February 2015. 8. At the present stage and in order to protect the identity of the victim, we are not directing a formal impleadment of the victim as a party to these proceedings. However, we direct that the Chief Judicial Magistrate, Mathura shall cause a notice to be served on the victim intimating to her and her father that these proceedings have been instituted before the Court and would be now listed on 19 February 2015. The Court shall also be apprised of the status of the investigation that had taken place at Mathura where the first information report has been lodged. 9. The Registrar General of this Court shall communicate a copy of this order by Fax and E-mail to the Chief Judicial Magistrate, Mathura for compliance, during the course of the day.