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2018 DIGILAW 1516 (ALL)

Raghunandan v. State of U. P.

2018-07-09

KRISHNA PRATAP SINGH, PANKAJ NAQVI

body2018
JUDGMENT & ORDER : Krishna Pratap Singh, J. Raghunandan son of Sadhu Yadav is before us with the following prayers: "(I) issue a writ, order or direction in the nature of writ of mandamus commanding the respondent No. 1 to investigate the Case Crime No. 0086 of 2018 under Sections 302 of IPC Police Station Kotwali Nagar, District Banda by independent investigating agency as C.B.C.I.D. or C.B.I. in accordance with law. (ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iii) Award the cost to the petitioner." 2. The facts and circumstances giving rise to the present petition are that petitioner is the informant of Case Crime No. 0086 of 2018 under Section 302, IPC, Police Station Kotwali Nagar, District Banda, wherein real brother of petitioner Mahadeo aged about 40 years, his wife Chunni, aged about 35 years, his Sons Pawan Kumar minor aged about 10 years and Raj Kumar aged about 8 years have been done to death at 5.30 hours on 31.01.2018 inside their house by accused Golu, for which an FIR has been lodged on 31.01.2018 at 10.50 hours and in the said FIR only accused Golu was named. 3. The learned counsel for the petitioner has submitted that free, fair and transparent investigation has not at all been carried out by the Investigating Officer because the family members of the Bhawanideen alias Devi Deen, who is father of the respondent No. 5 Ramjas was in the high post of Police Department. It was further submitted that eye witness Awadh Naresh son of deceased Mahadeo, who was fortunately left unharmed after the incident as he was sleeping in an another room with his brother had also witnessed the occurrence but his statement under Section 161, Cr.P.C. was not recorded by the Investigating Officer for reasons best known to him. It was also submitted that statement of an other eye-witness Ranshi, who is the daughter of the deceased Mahadeo was recorded under Section 161, Cr.P.C. by the Investigating Officer but her statement under Section 164, Cr.P.C. was not recorded. It was also submitted that statement of an other eye-witness Ranshi, who is the daughter of the deceased Mahadeo was recorded under Section 161, Cr.P.C. by the Investigating Officer but her statement under Section 164, Cr.P.C. was not recorded. It was further submitted that eye witnesses of this incident namely Awadh Naresh and Ranshi disclosed that there were many persons involved in the killing of her father, mother and brothers and they had identified Bhawani Deen alias Devi Deen, Golu, Anil alias Raja son of Sharda and Ramjas son of Bhawani Deeen alias Devi Deen, but the Investigating Officer did not include the said assailants in the interrogation. Learned counsel for the petitioner also submitted that against this backdrop petitioner has been requesting the authorities concerned for C.B.I. or C.B.C.I.D. investigation but without any success, which has impelled the petitioner to come before this Court with the prayer quoted above. 4. Learned A.G.A., Sri. A.N. Mulla has resisted the stand taken by the petitioner by submitting that in para No. 27 of the writ petition the petitioner has mentioned that in this case Investigating Officer has forwarded the charge sheet to the Court on 23.03.2018 and Court has taken the cognizance on 03.05.2018. It was further submitted that Investigating Officer concluded fair and transparent investigation in the matter and the writ petition as framed and drawn be dismissed. 5. In the present case, it is not disputed that after investigation Police has submitted the charge sheet before the Court on 23.03.2018 and Court has taken cognizance on 03.05.2018. The grievance of the petitioner is that Investigating Officer has not recorded the statement of Awadh Naresh under Section 161, Cr.P.C. and the statement of the eye-witness Ranshi was also not recorded under Section 164, Cr.P.C. Only on this basis, it cannot be said that Investigating Officer has not conducted free, fair and transparent investigation and he concluded the investigation in a tainted and biased manner. In catena of decisions Hon'ble Apex Court has held that free, fair and transparent investigation is the rule of the day and same is the part of the constitutional right guaranteed under Articles 20 and 21 of the Constitution of India. There is nothing on record to show that it is a case of mala fide exercise of power by Investigating Officer. 6. There is nothing on record to show that it is a case of mala fide exercise of power by Investigating Officer. 6. In case of reported in West Bengal and Others v. Committee for protection of Democratic Rights, (2010) 3 SCC 571 and 2010 (68) ACC 985 : ( AIR 2010 SC 1476 ) Hon'ble Apex Court observed as follows: 70. "Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." 7. In the Case of reported in K.V. Rajendran v. Superintendent of Police, C.B.C.I.D., (2013) 82 AllCriC 958 (SC) : (2013 AIR SCW 5144) Hon'ble Apex Court has observed as follows:- "The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual" 8. In the case of Manohar Lal Sharma v. Principal Secretary, (2014) 2 SCC 532 : ( AIR 2014 SC 666 ) Hon'ble Apex Court again has emphasized that the aim of investigation is ultimately to search for truth and bring the offender to book and Court may in appropriate cases intervene to protect personal/property rights of citizens. In the above case role of Police has been discussed as follows: "25. Lord Denning has described the role of the police thus: In safe guarding our freedoms the police play vital role. Society for its defence needs a well-led, well trained and well disciplined force or Police whom it can trust and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force that the accusation warrants" 26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force that the accusation warrants" 26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book." 9. No doubt in present case four persons have lost their lives. Police has conducted the investigation and submitted the charge sheet before the Court and Court has taken the cognizance on 03/05/2018. Murder of four persons above could not be a sole ground for transferring the investigation to C.B.I./C.B.C.I.D. after submission of the charge sheet. 10. Accordingly, this writ petition is devoid of merit and is dismissed.