JUDGMENT By the Court.—This P.I.L. was entertained on 6.5.2016 and the following order was passed : “Notices on behalf of respondent Nos. 1 and 2 have been accepted by learned Government Advocate and for the respondent No. 3 notice has been accepted by Mr.Alok Singh, learned Advocate holding brief of Mr.Rishad Murtaza, learned Advocate. The petitioner has prayed for issuing a mandamus to the Central Bureau of Investigation, New Delhi to investigate the disappearance of Mr.Rahul Sachan, prime prosecution witness in the case of death and assault of Asumal Harpalani aka Asaram Bapu. Mrs.Ruhi Siddiqui, learned Government Advocate, on the basis of instructions, has submitted that in the matter an First Information Report has been lodged and the matter is under police investigation. She has sought two months time to bring on record the investigation. Time as prayed for is allowed. List in the 1st week of August 2016.” 2. The matter was again heard on 20.8.2016 when this Court had passed the following order : “Heard learned counsel for the petitioner in person and Ms. Bulbul Godiyal, learned Additional Advocate General for the State. This petition involves the missing of a prosecution witness in one of the most high profile cases where the missing person is none else than one of the prosecution witness who had not only apprehended threats but had also approached the Apex Court seeking an appropriate protection as a witness in Writ Petition (Criminal) No. 156 of 2015 that was disposed of by the Apex Court on 14.9.2015. The said prosecution witness who has been described in the investigation document as Dr. Rahul K. Sachan (described as ‘Rahul Sachan’ in the petition), and is stated to be the son of Ram Kumar Sachan of Kanpur, unfortunately went missing according to the First Information Report on 25.11.2015. Prior to this, he had been granted State Protection of a police guard. One Mr. Vijay Bahadur was posted with him. It appears that Vijay Bahadur went on leave for a period of one week on 21.11.2015 and in between Constable Amit Kumar Singh from the Reserve Police Lines was pressed into service for his protection. It was during his protection that it is alleged that Dr. Rahul K. Sachan went missing but the First Information Report was lodged almost after a month on 20.12.2015. It was during his protection that it is alleged that Dr. Rahul K. Sachan went missing but the First Information Report was lodged almost after a month on 20.12.2015. The investigation proceeded under one Sub-Inspector Shri Vijay Pandey, P.S. Thakurganj, Lucknow and it is alleged that he had obtained the call details record of the mobile phone of the said Dr. Rahul K. Sachan which indicated his last location on 25.11.2015 at Mohalla Mallawan, District Hardoi. Thereafter, the investigation appears to have proceeded but with a pace that discloses that in spite of this information of his last location at Hardoi, the Investigating Officer who subsequently took charge on 9.4.2016 went to Hardoi for investigating the matter after six months on 3.6.2016. The case diary has been produced before us. Without commenting anything further on the materials so collected during investigation, we are, prima facie, satisfied that this sort of investigation in such a high profile case completely lacks diligence as well as it dilutes the confidence of the public at large in such high profile cases. We are, prima facie, satisfied that the investigation has not been diligently carried out and therefore, this Court may consider grant of relief in the present writ petition for handing over the investigation to the Central Bureau of Investigation. Shri Rishad Murtaza is present for the respondent No. 3. He may also obtain instructions by Monday, i.e.22.8.2016. In this matter, the entire case diary and the file produced by the Advocate General are hereby directed to be sealed by the Senior Registrar today itself. The Bench Secretary shall hand over the said file alongwith the sealed record to the Senior Registrar and the same shall be produced before us on Monday. Put up on Monday, i.e.22.8.2016.” 3. Arguments were advanced on 22.8.2016 and the Court summoned the case diary that was retained in sealed cover in the Court itself. The same was again perused with the help of the learned Additional Advocate General who also handed down the orders passed by the present Senior Superintendent of Police, Lucknow dated 18.8.2016, whereby censure entries were awarded to Constable Vijay Bahadur and Constable Amit Kumar Singh, the two Constables who were on duty as Gunners for the protection of Dr. Rahul K. Sachan recording that there was a dereliction of duty and negligence on their part. The two orders have been placed before the Court. Rahul K. Sachan recording that there was a dereliction of duty and negligence on their part. The two orders have been placed before the Court. 4. The Senior Superintendent of Police also handed over a letter dated 21.8.2016 whereby the Senior Superintendent of Police has called upon the Additional Superintendent of Police (City) (West), Lucknow to undertake a preliminary enquiry in the case in question as it appeared that the investigation had not been carried out in depth nor any sufficient interest had been shown in the investigation indicating negligence and slackness on the part of the Station House Officer or the officials involved in the investigation. The same is also taken on record. 5. The fourth letter placed before the Court dated 21.8.2016 has been issued by the Additional Director General of Police (Law & Order), Lucknow Sri Daljeet Singh Chaudhary calling upon the Inspector General of Police (STF) and the Senior Superintendent of Police (STF), Lucknow to take over the investigation to be conducted by a Special Investigation Team in view of the special circumstances of the case. The Senior Superintendent of Police had also passed the order to that effect constituting a Special Investigation Team (SIT) and a copy of the said letter has also been placed on record. 6. All these letters emanated almost simultaneously after the present petition remained pending before the Court and after the Court had passed the orders quoted here-in-above. 7. The petitioner-Mr.Bennet Castelino while disclosing his credentials has described himself as an Overseas Indian Citizen presently residing at 60, Castlefinn Drive, Auckland, New Zealand 2103 and being a Lawyer practicing at Mumbai has also given his Indian Address as 15, DG Chambers, Nagindas Master Road, Fort, Mumbai - 400 001. He had earlier filed a Writ Petition (Criminal) No. 156 of 2015, Bennet Castelino v. Union of India and others, before the Supreme Court of India for securing adequate protection to the witness Rahul K. Sachan in the criminal case that has given rise to this P.I.L. and the same was disposed of at the instance of the petitioner on 14.9.2015 by the following order : “Looking at the peculiar facts of the case, we direct that the Trial Court shall give adequate protection to the witnesses who approach the Trial Court apprehending some threat, if, according to the Trial Court, the threat is genuine. The Trial Court shall give protection to the witnesses by passing an appropriate order, wherever it is necessary. With the above directions, the Writ Petition is disposed of.” 8. It appears that a Gunner was provided by the State Government thereafter. 9. He filed another petition before the Apex Court being Writ Petition No. 14 of 2016 that was taken up on 4.3.2016 submitting that the person for whom the protection had been earlier sought had gone missing and an F.I.R. has been lodged. The petitioner appears to have prayed for transfer of the investigation to the C.B.I. but the writ petition was disposed of by the same Bench that had heard the earlier writ petition on 4.3.2016 by the following judgment giving liberty to the petitioner to file the present writ petition before the High Court : “It has been submitted by the petitioner, who appears in person that Rahul Sachan, who was one of the witnesses is now missing. A complaint with regard to the incident has already been lodged in the State of Uttar Pradesh. In the circumstances, it will be appropriate if the petitioner approaches the High Court of Allahabad by filing a petition with a similar prayer. If such a petition is filed, the High Court is requested to look into it and dispose of the same on merits. In view of the above, the petitioner seeks permission to withdraw this writ petition so as to approach the High Court of Allahabad. Permission is granted. The writ petition is, accordingly, disposed of as withdrawn.” 10. The petitioner has described himself as a practicing Advocate and the Member of the Bar Council of Maharashtra and Goa enrolled on 27.2.1985 and also a member of The Institute of Company Secretaries of India as well as a qualified Chartered Secretary holding qualifications in Commerce, Law, Finance and Management. He has also stated that he is a Barrister and Solicitor as well of the High Court of New Zealand with eligibility to practice Law in Australia. Disclosing his financial status, he has stated that he is a Tax Payer Overseas and is also filing Income Tax Returns in India. To explain his bona fides, the petitioner has disclosed his social activities and has stated that he has filed numerous P.I.Ls especially for protecting the rights of Christian beneficiaries and Christian trust properties. Disclosing his financial status, he has stated that he is a Tax Payer Overseas and is also filing Income Tax Returns in India. To explain his bona fides, the petitioner has disclosed his social activities and has stated that he has filed numerous P.I.Ls especially for protecting the rights of Christian beneficiaries and Christian trust properties. Several other pursuits have been disclosed by him indicating that he has no private motive, personal gain or oblique reason for filing this P.I.L. 11. The petitioner has disclosed that since he was keenly following the arrest of one Asumal Harpalani aka Bapu Asaram, he came across Dr. Rahul K. Sachan on whose behalf he filed the earlier writ petition. He also disclosed that he was in constant touch with Dr. Rahul K. Sachan but he lost contact since 21.11.2015. This sudden disappearance and absence of any trace inspite of an F.I.R. having been lodged led to the filing of this P.I.L. for transferring the investigation. 12. The criminal case giving rise to this controversy appears to have it’s genesis in the trial against Asumal Harpalani aka Asaram Bapu and his son Narayan Sai as well as other associates with regard to which criminal cases are going on in the State of Rajasthan at Jodhpur and in the State of Gujarat at Surat and Ahmedabad. Dr. Rahul K. Sachan is stated to be one of the witnesses. Apprehending threat of his life Dr. Rahul K. Sachan describing himself as the Personal Assistant of Asumal Harpalani aka Asaram Bapu since 2009 to 2013 and having personal knowledge of the activities of the accused, he filed an affidavit to that effect in Criminal Writ Petition No. 156 of 2015 that had been earlier filed by the petitioner seeking adequate protection, the order whereof has been extracted here-in-above. A copy of the affidavit of the said Dr. Rahul K. Sachan and also one of Mahender Chawla who is also a prosecution witness in the case registered at Jodhpur alongwith Dr. Rahul K. Sachan is on record of this petition. It is in this background that this prosecution witness Dr. Rahul K. Sachan who was having the protection of a Gunner from the said police went mysteriously missing and this disappearance is stated to have occurred on 25.11.2015. 13. Rahul K. Sachan is on record of this petition. It is in this background that this prosecution witness Dr. Rahul K. Sachan who was having the protection of a Gunner from the said police went mysteriously missing and this disappearance is stated to have occurred on 25.11.2015. 13. We had called upon the State to produce the case diary that has been placed before us and we find from the narration in the information registered on 20.12.2015 that Constable Vijay Bahadur who was on duty with Dr. Rahul K. Sachan went on leave for a week w.e.f. 21.11.2015 for seven days that had been sanctioned. During his leave, Constable Amit Kumar Singh was posted in his place as a Gunner with Dr. Rahul K. Sachan. The said Amit Kumar Singh while giving his statement under Section 161 Cr.P.C. during investigation has stated that on 25.11.2015, on the asking of Dr. Rahul K. Sachan, he took him on a motorcycle from his residence at Mari Mata Mandir, Campbell Road, Balaganj, Lucknow at 9 a.m. to the Kaiserbagh Bus Station, Lucknow where he left him. According to Amit Kumar Singh, Dr. Rahul K. Sachan had stated that he is going somewhere and he would be coming the next day whereupon he shall call on phone. However, no such phone call was received on the next day and when the said Constable tried to contact him on his mobile phone the same appeared to be switched off. He then informed the Shadow/Gunner In-charge orally in the Police Lines at Lucknow but he did not remember the day and time about such information. The case diary also discloses that the Original Gunner Sri Vijay Bahadur who had been posted alongwith Dr. Rahul K. Sachan after returning from a week’s leave was informed by Mr. Afzal Hasan Mehandi, Shadow/Gunner In-charge in the Police Lines on 30.11.2015 that Dr. Rahul K. Sachan had gone to some unknown destination who can return back any time, and believing this, the said Constable Vijay Bahadur reached the residence of Dr. Rahul K. Sachan where he did not find him. He tried to contact him on his mobile but the same was switched off. This information was again conveyed to Shadow/Gunner In-charge Mr. Afzal Hasan Mehandi. Rahul K. Sachan where he did not find him. He tried to contact him on his mobile but the same was switched off. This information was again conveyed to Shadow/Gunner In-charge Mr. Afzal Hasan Mehandi. The date mentioned in the case diary is 1.11.2015 which is being explained by the Additional Advocate General that it may be an error as it can be 1.12.2015. The said Constable Vijay Bahadur was asked by the Shadow/Gunner In-charge that until further orders, he should station himself at the residence of Dr. Rahul K. Sachan. The absence of Dr. Sachan according to Constable Vijay Bahadur was being reportedly given orally but on 17.11.2015 this was done in writing and he was again asked to continue at the residence of Dr. Sachan. The F.I.R. was lodged almost after a month on 20.12.2015 and was registered as Case Crime No. 1071 of 2015 under Section 364 I.P.C., P.S. Thakurganj, District Lucknow. 14. The case also reveals that after lodging of the F.I.R., the then Investigating Officer had obtained the call data record of the mobile phone of Dr. Rahul K. Sachan in December itself and his last location according to the said call data on 25.11.2015 was at Hardoi nearby a town of Lucknow. The case diary does not indicate any such effort on the part of the then Investigating Officer, except for the fact that trips were made to New Delhi at the residence of a female friend of the missing person and then also to Kanpur where his father resided. 15. The surprising part is that there is hardly any investigation or interrogation of the two Gunners, the Shadow/Gunner In-charge of the Police Lines or those connected with the security of the missing person in order to have a clue as to why they did not possess any information about his whereabouts after having left Lucknow on 25.11.2015. The case diary does not indicate any interrogation further worth the name from Constable Amit Kumar Singh who was in his security as a Gunner with Dr. Rahul K. Sachan on the date when he went missing. The case diary does not indicate any interrogation further worth the name from Constable Amit Kumar Singh who was in his security as a Gunner with Dr. Rahul K. Sachan on the date when he went missing. The Investigating Officer who was then conducting the investigation has maintained the case diary in a manner, which is not proper to be discussed at this stage, except for the fact that some documents were collected and a missing report was published in the newspapers on a ration card of Panchkula in Haryana and about the information at Delhi in Govind Ganj near Kalkaji Mandir, New Delhi where a visit appears to have been made but with no clue in the case diary at all. The subsequent Sub-Inspector who took over the investigation in April, 2016 his memos do not indicate any information worth the name or investigation having been conducted so as to inspire confidence. The sum and substance of the case diary that has been placed before the Court is that a paper formality appears to have been concluded in a crime of this nature. 16. The learned Additional Advocate General has filed an affidavit of Mr. Ram Bahadur Pal, the current Investigating Officer who is a Sub-Inspector at P.S. Thakurganj, District Lucknow wherein it is stated that in January, 2016, the then Investigating Officer had gone to the residence of one Ekta Verma in Delhi and few other persons were also contacted but the gap thereafter in the case diary has nowhere been explained. There is nothing on record to indicate that any serious effort was made at all in this regard. 17. It is in this background that the respondent-State appears to have now tried to give a hope of investigation by constituting a Special Investigation Team (SIT) and giving censure entries to the two Constables who were on duty as Gunners. No explanation was called for from the investigating officers nor any action has been taken against them. The learned Additional Advocate General vehemently urged that serious steps are being taken and there is a genuine effort now to conduct the investigation and therefore, this Court may consider this aspect of the matter as well before directing any change of investigation. No explanation was called for from the investigating officers nor any action has been taken against them. The learned Additional Advocate General vehemently urged that serious steps are being taken and there is a genuine effort now to conduct the investigation and therefore, this Court may consider this aspect of the matter as well before directing any change of investigation. The learned Additional Advocate General has placed before the Court the following judgments to urge that applying the principles laid down by the Supreme Court in the said cases, it would be appropriate to allow the Special Investigation Team (SIT) to continue the investigation that is likely to bring about results. (i) Pooja Pal v. Union of India and others, (2016) 1 Crimes 626 (SC) 45; (ii) Subrata Chattoraj v. Union of India and others, (2014) 8 SCC 768 ; (iii) Sudipta Lenka v. State of Odisha and others, (2014) 11 SCC 527 ; (iv) K. Saravanan Karuppasamy and another v. State of Tamil Nadu and others, (2014) 10 SCC 406 ; (v) Bharati Tamang v. Union of India and others, (2013) 15 SCC 578 ; (vi) K.V. Rajendran v. Superintendent of Police, CBCID, South Zone, Chennai and others, (2013) 12 SCC 480 ; (vii) State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 ; (viii) Sukiri Vasu v. State of Uttar Pradesh and others, (2008) 2 SCC 409 . 18. Having considered the aforesaid aspects, it is not possible for us to gather as to the circumstances of the missing person conclusively, inasmuch as the missing person Dr. Rahul K. Sachan may have been quite possibly a victim keeping in view the nature of the crime or alternatively he could have gone underground voluntarily which is yet a matter of investigation, but the fact remains that the flaw in the investigation is clearly reflected while interrogating the Gunners and the security personnel who were provided as Guards for the person of Dr. Rahul K. Sachan. To proceed to investigate at Hardoi after six months remains unexplained. It is this surprising part which impels this Court to prima facie believe that the police has failed to carryout the investigation fairly and diligently. No effort worth the name has been made towards the possibility of involvement of the police itself that could have revealed something further. To proceed to investigate at Hardoi after six months remains unexplained. It is this surprising part which impels this Court to prima facie believe that the police has failed to carryout the investigation fairly and diligently. No effort worth the name has been made towards the possibility of involvement of the police itself that could have revealed something further. The investigation therefore far from being credible does not inspire confidence. These aspects have been clearly dealt with and the principles on which an investigation can be transferred has also been explained in the decision of Secretary, Minor Irrigation & Rural Engineering Services v. Sahngoo Ram Arya and another, (2002) 5 SCC 521 . It has further been followed in the case of State of West Bengal and others v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 . The judgments that have been relied on by the learned Additional Advocate General are almost on the same lines, the latest being that of in the case of Pooja Pal (supra). These aspects were considered by a Division Bench of our Court very lately in an another case of prime importance where the investigation was not found to be fairly going in the right direction in Writ Petition No. 18005 of 2016 (PIL) in the Matter of Rape with Mother and Daughter at NH91. 19. The nature of the crime, the mysterious circumstances in which Dr. Rahul K. Sachan has gone missing and the slipshod manner of investigation therefore compel us not to believe the hope expressed for some better investigation by the State which has come too late in the day as indicated above. We, therefore, decline the request of the learned Additional Advocate General to get the investigation carried out by the Special Investigation Team (SIT). 20. Consequently, we direct the Central Bureau of Investigation (CBI) to take over the investigation of Case Crime No. 1071 of 2015 under Section 364 IPC, P.S. Thakurganj, District Lucknow forthwith. 21. The case diary that was placed before the Court is being returned to the learned Additional Advocate General and the concerned Police Station is directed to handover the original records/documents relating to the investigation collected uptil now immediately to the Central Bureau of Investigation (CBI), which shall proceed with the investigation. 22. 21. The case diary that was placed before the Court is being returned to the learned Additional Advocate General and the concerned Police Station is directed to handover the original records/documents relating to the investigation collected uptil now immediately to the Central Bureau of Investigation (CBI), which shall proceed with the investigation. 22. Since Sri Rishad Murtaza, learned Counsel for the CBI has already assisted the Court, we direct him to communicate this order to the CBI immediately for appropriate action and also bring it to the notice of the learned Assistant Solicitor General of India for communicating it to the concerned officials for appropriate action. 23. Since we have issued these directions, we do not find it necessary to keep the matter pending without prejudice to the rights of an aggrieved person to approach this Court in the event any further directions are required in this regard. 24. It is expected that the CBI shall conclude the investigation and file the police report expeditiously, preferably not later than six months from today and if possible earlier. 25. Disposed off with the said directions. ———————