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2015 DIGILAW 522 (ALL)

BRAHMDEV YADAV v. STATE OF U. P.

2015-03-20

ARVIND KUMAR MISHRA, RAVINDRA SINGH

body2015
JUDGMENT : Hon'ble Ravindra Singh, J. Hon'ble Arvind Kumar Mishra-I, J. Heard Sri Ghanshyam Dubey, Sri Satyawan Shahi, learned counsel for the petitioner, learned A.G.A.for the State of U.P.and Sri A.B.L.Gaur, Senior Advocate, assisted by Sri R.P.Dwivedi, learned counsel for the Respondent No. 5. This petition has been filed by the petitioner Brahmdev Yadav with the following prayers. I)issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.12.2014 ( Annexure No.7 to the writ petition) passed by Opposite Party No. 7. II) issue a writ, order or direction in the nature of mandamus directing the police of Police Station Cantt. District Gorakhpur to investigate the Case Crime No. 399/2014 under section 302, 149, 147, 148, 34, 120-B, 216 I.P.C.and Case Crime No. 638 of 2014, under section 307 I.P.C., Police Station Cantt. District Gorakhpour in accordance with law. III) issue any other suitable writ, order or direction which this Hon'ble Court deems fit and proper in the facts and circumstances of the case. IV) award the cost of the writ petition in favour of the Petitioner. The facts, in brief, of this case are that petitioner Brahm Dev Yadav lodged the FIR on 20.5.2014 at 11.20 P.M. in respect of the incident allegedly occurred on 20.5.2014 at about 8.45 P.M. in case crime No. 399 of 2014 under section 302 I.P.C., Police Station Cantt., District Gorakhpur in which two persons, namely, Chandan Singh and Ashutosh alias Ashu have been named as accused and two persons were unknown alleging therein that on 20.5.2014, at about 8.45 P.M. the first informant, his brother Lal Bahadur, Dan Bahadur, Driver Dharam Raj Yadav and Rahul Tripathi were returning from the Income Tax Office boarding in a Forturner vehicle , in front of the Gate of the University, all of a sudden 4 miscreants discharged the shots, consequently, the deceased Lal Bahadur sustained gun shot injuries , out of 4 miscreants, two persons, namely, Chandan Singh and Ashutosh alias Ashu were identified. The deceased Lal Bahadur taken to the hospital where he succumbed to his injuries. The deceased Lal Bahadur taken to the hospital where he succumbed to his injuries. After commission of the offence of the murder, on 3.8.2014 at about 11.05 P.M. some miscreants fired at the police party in which six miscreants, namely, Vinod Upadhyay son of Ram Kumar Upadhyay, Rakesh Yadav, Rajesh Dubey, Yogendra Mani, Santosh Singh and Mukesh Shukla were apprehended on the spot, and from their possession two rifles 315 bore, 8 cartridges of 315 bore, one country made pistol, two live cartridges and one empty cartridge of 12 bore, one pistol along with two magazines, 4 live and two empty cartridges were recovered. Its FIR was lodged by Sri Anjani Kumar Rai, S.H.O. Police Station Cantt. District Gorakhpur on 4.8.2014 at 2.45 A.M in case crime No. 638 of 2014 under section 307/ 34 I.P.C. case crime No. 639 of 2014 under section 3/25 Arms Act, case crime No. 640 of 2014 under section 3/25/27 Arms Act, case crime No. 641 of 2014 under section 3/25/27 Arms Act and Case crime No. 642 of 2014 under section 3/25 Arms Act. The above mentioned both the incidents have been occurred in the territorial jurisdiction of police station Cantt., district Gorakhpur where FIRs have been registered. Its investigation was entrusted to the police of police station Cantt., thereafter the S.S.P. Gorakhpur passed the order dated 18.8.2014 pursuant to the letter dated 16.8.2014 to SHO P.S. Cantt.District Gorakhpur mentioning therein that the respondent no. 5 Smt. Shobha Devi had moved an application before the Director General of Police apprising that her son was falsely implicated on account of political rivalry, therefore, the letter be perused and not to proceed further till the report is received from Additional S.P. District Bahraich. The order dated 18.8.2014 has been challenged by the petitioner by way of filing Criminal Misc. Writ Petition No. 15495 of 2014 in which the another bench of this Court has passed the order dated 10.9.2014 by directing that the process of the investigation may go on and in case any report is received from Additional S.P. Bahraich then on the said aspect of the matter, investigation may also be carried out. Thereafter on 10.12.2014, the Director General of Police, U.P. Lucknow transferred the investigation to have further investigation under section 173(8) Cr.P.C. of case crime no. 399 of 2014 under section 302 I.P.C. and case crime no. Thereafter on 10.12.2014, the Director General of Police, U.P. Lucknow transferred the investigation to have further investigation under section 173(8) Cr.P.C. of case crime no. 399 of 2014 under section 302 I.P.C. and case crime no. 638 of 2014 under section 307 I.P.C. P.S.Cantt. district Gorakhpur to district Bahraich, the consequential order dated 11.12.2014 has been passed by the S.P. Bahraich entrusting the investigation to Sri Ashok Kumar Singh Ist, In-charge of the Crime Branch, Bahraich. The order dated 11.12.2014, which is consequential order of the order dated 10.12.2014, has been challenged by the petitioner in the present writ petition. It is contended by the learned counsel for the petitioner that it is a case in which one Lal Bahadur has been killed, its FIR has been lodged by the petitioner against four persons in which two persons were named and thereafter, in an incident dated 3.8.2014 the firing has been made at police party in which 8 persons were named as accused. In the second incident dated 3.8.2014 the son of respondent no. 5 namely Vinod Upadhyaya is named as an accused. He was arrested on the spot and from his possession one pistol, two magazines and cartridges were recovered, the recovered pistol was factory made. The accused Vinod Upadhyaya is involved in many criminal cases, 32 criminal cases were registered against him. In the present case without any proper reason at the instance of the mother of the accused, Additional S.P. Bahraich has been asked to submit the report and Director General of Police, U.P. Lucknow has ordered to do the further investigation and transferred the further investigation to district Bahraich on 10.12.2014, in pursuance of the order dated 10.12.2014 S.P. Bahraich entrusted the investigation to Ashok Kumar Singh Ist, in-charge of Crime Branch, Bahraich vide order dated 11.12.2014, no reason has been shown in the impugned order and the order dated 10.12.2014 passed by the D.G.(Police) U.P. Lucknow to do the further investigation transferring the investigation from district Gorakhpur to district Bahraich. The settled position of law is that the investigation of a criminal case may not be done at the choice of the accused but in the present case interference has been made in the investigation by the D.G.(Police) U.P. Lucknow at the instance of the mother of the accused and no reason has been disclosed to do the further investigation and transferring the same to the district Bahraich. The impugned order is illegal, the same may be set aside. In reply to the above contention it is submitted by the learned A.G.A. and the learned counsel for respondent no. 5 that fair investigation is the motto of the State, the D.G.( Police)U.P. Lucknow is the highest officer in the police department, he has passed the order to do the further investigation and transferring further investigation from district Gorakhpur to district Bahraich so that fair investigation may be ensured. The impugned order is not suffering from any illegality or irregularity. It does not require any interference by this court. The present writ petition is devoid of merits, the same may be dismissed. Considering the facts, circumstances of the case, submission made by the learned counsel for the petitioner, learned A.G.A. for the State of U.P., the learned counsel for respondent no. 5 and from the perusal of the writ petition it reveals that in case crime no. 399 of 2014 under section 302 I.P.C. P.S. Cantt. district Gorakhpur, FIR has been lodged by the petitioner. In this case the brother of the petitioner has been killed. According to the FIR four persons participated in the commission of the alleged offence in which the name of the two accused persons have been disclosed, the FIR has been promptly lodged, second incident dated 3.8.2014 is also connected with the incident dated 20.5.2014 in which Lal Bahadur has been killed, in the second incident firing has been made at the police party in which six accused persons were arrested on spot but two accused persons escaped from the place of incident and from the possession of the arrested accused persons firearms and cartridges were recovered. The son of respondent no. 5 is the accused in the second incident, he was also arrested on spot against him FIR in case crime no. 638 of 2014 under section 307/34 I.PC. The son of respondent no. 5 is the accused in the second incident, he was also arrested on spot against him FIR in case crime no. 638 of 2014 under section 307/34 I.PC. and case crime no 639 of 2014 under section 3/25 Arms Act was registered at the police station Cantt district Gorakhpur. The Annexure-4 annexed to this writ petition shows that 32 criminal cases were registered against Vinod Kumar Upadhyay but at the instance of the mother of the accused Vinod Kumar Upadhyaya, the order of further investigation under section 173(8) Cr.P.C.has been passed by transferring the same to district Bahraich from district Gorakhpur on 10.12.2014 by the D.G.( Police) U.P.,Lucknow, its consequential order has been passed on 11.12.2014 by the S.P. Bahraich entrusting the investigation to Ashok Kumar Singh Ist, In-charge crime branch, Bahraich, both the orders are not having any reason for doing the further investigation and transferring the investigation from Gorakhpur to Bahraich. It is also surprising that the impugned orders dated 10.12.2014 and 11.12.2014 have been passed after the order dated 10.9.2014 passed by another bench of this court in criminal misc. writ petition no. 15495 of 2014 by which the order passed by the S.S.P. Gorakhpur keeping the investigation in abeyance, was modified by directing that the process of investigation may go on and in case any report is received from the Additional S.P. Bahraich, then on the said aspect of the matter investigation may also be carried out, it does not mean that the investigation shall be transferred to Bahraich. Here, in the present case, it appears that without showing any proper reason, the impugned order has been passed for holding further investigation under section 173(8) Cr.P.C. transferring the same to district Bahraich from district Gorakhpur. There is no dispute that the State including the higher officers of the police are under obligation to ensure the investigation, but there is no place for arbitrariness, fair investigation is a right of the accused, first informant and the victim. It does not give any scope for doing investigation at the choice of the accused, no investigation/further investigation may be done at the choice of the accused. It does not give any scope for doing investigation at the choice of the accused, no investigation/further investigation may be done at the choice of the accused. In the present case, no reason has been shown for doing further investigation under section 173(8) Cr.P.C. and no reason has been shown for transferring the same from district Gorakhpur to district Bahraich, it amounts to interference in the investigation, therefore, the impugned order dated 11.12.2014 passed by the S.P.Bahraich and the letter dated 10.12.2014 issued by the Director General of Police Lucknow for holding further investigation and transferring the same from Gorakhpur to district Bahraich, are illegal and the same are set aside. In case, any investigation is pending in the above mentioned case, the same shall be done by the officer In-charge of P.S. Cantt. District Gorakhpur in accordance with law. Accordingly this petition is allowed. ———————