Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1659 (ALL)

Ansar Ahmad v. State of UP Thru. Prin. Secy. Home

2019-07-10

RAJEEV SINGH, SHABIHUL HASNAIN

body2019
JUDGMENT : Rajeev Singh, J. 1. The present petition has been filed seeking issuance of a writ in the nature of certiorari quashing order dated 18th May, 2018 passed by respondent no. 4, by which the investigation of First Information Report No. 0017 of 2018, under Sections 147, 148, 149, 307, 302, 120-B, 34 Indian Penal Code and Section 3/4 Explosive Substances Act, Police Station Jagdishpur, District Amethi, has been transferred from local police to CBCID. 2. The impugned order dated 18th May, 2018 (Annexure-1) has been read in extenso. The order does not disclose any reason for transfer of investigation. The order rather reflects the name of wife of the accused and respondent no. 11 who happens to be Member of Legislative Assembly. 3. We have heard learned counsel for the petitioner Shri Brij Mohan Sahai, learned counsel for respondent no. 10, Sri Rajendra Kumar Dwivedi and learned counsel for the State Sri S.P. Singh. 4. Respondent no. 11 has not appeared despite service. 5. Ground for challenging the impugned order is that the investigation of the aforesaid case has been transferred on the choice of wife of the named accused, Rakesh Vikram Singh/respondent no. 10 in violation of the provisions of Government Order No. 4173-C/Chha Pu-3-27P/94 dated 5th September, 1995. 6. Learned counsel also relied on various judgments rendered by Hon'ble Supreme Court of India, viz. Union of India and another Vs. W.N. Chadha, 1993 SCC (Cri.) 1171, Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, 1997 SCC (Cri.) 88, Narender G. Goel Vs. State of Maharashtra and another, (2009) 2 SCC (Cri.) 933, Kedar Narayan Parida and others Vs. State of Orissa and another, (2010) 1 SCC (Cri.) 36, Prema Devi Vs. State of U.P. and others, 2014 (84) ACC 948 and Tausiful Hasan Vs. State of U.P. and others, 2016 (92) ACC 557. 7. On the strength of above decisions, learned counsel for the petitioner submits that on the request of wife of the named accused in a murder case, the investigation cannot be transferred. 8. Learned counsel for the petitioner further submitted that it is evident from the impugned order that the investigation of the First Information Report No. 17 of 2018 (supra) has been transferred on the recommendation of respondent no. 8. Learned counsel for the petitioner further submitted that it is evident from the impugned order that the investigation of the First Information Report No. 17 of 2018 (supra) has been transferred on the recommendation of respondent no. 11, Smt. Shobha Singh Chauhan, Member of Legislative Assembly, which was accompanied by the application of Smt. Kanchan Singh w/o Rakesh Vikram Singh (named accused). No reason has been assigned for transferring the investigation of the said case. Respondent no. 11 evidently has influenced the investigating agency and official respondents and has managed the passing of impugned order. 9. Counter affidavit on behalf of the State dated 16th August, 2018 was filed by Shri Arvind Kumar, Principal Secretary, Department of Home, Government of U.P. stating that on the written complaint of the petitioner, First Information Report No. 17 of 2018 (supra) was registered on 30th January, 2018. The allegation in the First Information Report is that the complainant's son, Ashfaq Ahmad was murdered in broad day light. 10. In para 3-B of the counter affidavit, it is asserted that the complainant as well as accused side were involved in the gang war for dominance and belonged to different political parties, which was affecting the law and order situation and after the incident of murder in question, communal problem had arisen. Due to said reason, the Station House Officer, Shri Shyam Sunder, Police Station Jagdishpur, District Amethi had sent a report dated 6th April, 2018 (Annexure CA 1) to the then Superintendent of Police, Amethi with the recommendation that further investigation of the aforesaid case may be conducted by CBCID. 11. After going through the aforesaid report of Station House Officer dated 6th April, 2018, it is apparent that he himself (Shri Shyam Sunder, Station House Officer) was conducting the investigation and in the course of investigation, incriminating evidences were found against nine persons. Out of nine, five persons were arrested. 12. Non-bailable warrants were issued against respondent no. 10, Rakesh Vikram Singh. However, since his application for surrender was pending before the Court concerned, order under Section 82 Cr.P.C. could not be passed. Against rest of the accused persons, orders under Section 82 Cr.P.C. were passed by the concerned court. 13. Out of nine, five persons were arrested. 12. Non-bailable warrants were issued against respondent no. 10, Rakesh Vikram Singh. However, since his application for surrender was pending before the Court concerned, order under Section 82 Cr.P.C. could not be passed. Against rest of the accused persons, orders under Section 82 Cr.P.C. were passed by the concerned court. 13. Main reason for transferring the investigation, as shown by Shri Shyam Sunder, Investigating Officer, Station House Officer, is that the alleged incident was of broad day light, sensational and heinous in nature, as a result of which, there was possibility of disturbance of law and order as also communal complication. Station House Officer in his report dated 6th April, 2018 also stated that the complainant and the accused, both are related to different political parties, in such circumstances there might be difficulty in impartial investigation and it would be appropriate that the investigation of the aforesaid case be conducted by CBCID. 14. In the report, at Item no. 15A, the Station House Officer has specifically mentioned that during the course of investigation by the district police, name of nine persons came in the light on the basis of evidence, out of which five accused have been arrested and confined to jail. It is also apparent from the report that efforts were being made for arresting rest of the four accused including respondent no. 10 and local police was conducting the investigation in fair manner. 15. On the basis of the aforesaid report, Superintendent of Police, Amethi sent his recommendation dated 8th April, 2018 (Annexure CA 2). The reasons for recommendation were a reiteration of the report of the Station House Officer. The report of the Superintendent of Police, Amethi dated 8th April, 2018 was forwarded by Deputy Inspector General of Police, Faizabad Range to Additional Director General of Police, Lucknow Zone, Lucknow recommending for transfer of the investigation of the case. Additional Director General of Police, Lucknow Zone, Lucknow also forwarded the report of the Deputy Inspector General of Police, Faizabad to Inspector General (Public Grievance), U.P., Lucknow, who in turn, forwarded the aforesaid recommendation to Special Secretary (Home) for transferring the investigation to CBCID. 16. Additional Director General of Police, Lucknow Zone, Lucknow also forwarded the report of the Deputy Inspector General of Police, Faizabad to Inspector General (Public Grievance), U.P., Lucknow, who in turn, forwarded the aforesaid recommendation to Special Secretary (Home) for transferring the investigation to CBCID. 16. In the counter affidavit, emphasis has been given by the Principal Secretary, Shri Arvind Kumar that the investigation has been transferred on the initiation of Shri Shyam Sunder, Station House Officer, Police Station Jagdishpur, District Amethi dated 6th April, 2018 and not on the basis of choice/recommendation made by any political person and wife of named accused. 17. The relevant part (para 3-G) of the counter affidavit is reproduced here-in-below : "3............. G-That a bare perusal of the aforesaid correspondence of the Police Officers would indicate that there is no whisper about any recommendation made by any political person for transfer of the case to CBCID. The decision of the case has been taken for transferring the investigation to the CBCID only on the basis of police report." 18. From a perusal of the impugned order, it is very much evident that the investigation has been transferred on the basis of recommendation of Smt. Shobha Singh Chauhan, Member of Legislative Assembly dated 2nd April, 2018 and choice of Smt. Kanchan Singh wife of Rakesh Vikram Singh (named accused). 19. It is well settled by a Constitution Bench of Hon'ble Supreme Court of India in the case of Mohindhr Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others, 1978 (1) SCC 405 that when statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned in the order, and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 20. Para 8 (relevant portion) from the judgment is reproduced here-in-below. "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 ] : "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting’s and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older." 21. Attention of the Court has also been drawn towards Circular No. 27 of 2014 dated 10th May, 2014 issued by Director General of Police related to the transfer of investigation. In para 2(iv) of the said Circular, it is provided that on the request of the accused, investigation should not be transferred in the ordinary circumstances. In para 2(x) of the Circular, it is categorically provided that the order by which investigation of a case has been transferred, must be a speaking order. 22. It is apparent from the impugned order that neither it is a reasoned order nor is speaking one. In para 5 of the writ petition, it has categorically been mentioned that the provisions of the Government Order dated 5th September, 1995 issued by Chief Secretary, Government of U.P., Lucknow related to the transfer of investigation from local police to CBCID has not been complied with, inasmuch as the four guidelines mentioned in the aforesaid Government Order were not taken into consideration while transferring the investigation of First Information Report No. 17 of 2018 (supra). 23. In reply to para 5 of the writ petition, vague averment has been made in the counter affidavit that as it is evident from the said Government Order that an investigation may be transferred from local police to CBCID. 24. We have referred to the said four guidelines of Government Order dated 5th September, 1995, which read as under: "1. In reply to para 5 of the writ petition, vague averment has been made in the counter affidavit that as it is evident from the said Government Order that an investigation may be transferred from local police to CBCID. 24. We have referred to the said four guidelines of Government Order dated 5th September, 1995, which read as under: "1. The nature of crime is so complicated and full of complexities that it is not possible for the local police to properly investigate the same. 2. The crime is International, Inter-State or Inter-Divisional/Inter-range. 3. Local conditions are such that it is difficult for the local police to investigate the same in an independent manner. 4. Such circumstances have arisen that due to which general public raised a question mark over the impartiality on the local police." 25. A perusal of the impugned order shows that at the time of passing of the impugned order, the said four guidelines mentioned in the Government Order dated 5th September, 1995 were not taken into account. 26. As per the law laid down by Hon'ble Supreme Court in the cases relied by learned counsel for the petitioner, viz. Union of India and another Vs. W.N. Chadha, 1993 SCC (Cri.) 1171, Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, 1997 SCC (Cri.) 88, Narender G. Goel Vs. State of Maharashtra and another, (2009) 2 SCC (Cri.) 933, Kedar Narayan Parida and others Vs. State of Orissa and another, (2010) 1 SCC (Cri.) 36, Prema Devi Vs. State of U.P. and others, 2014 (84) ACC 948 and Tausiful Hasan Vs. State of U.P. and others, 2016 (92) ACC 557 referred in above portion of this order, it is well settled that ordinarily the accused has no choice to choose the Investigating Agency. 27. In the case of Union of India and another Vs. W.N. Chadha (Supra) the Hon’ble Supreme Court is of the view that the accused has no right to say as regard the manner and method of investigation, Para-92 (relevant portion) from the judgment is reproduced hereinbelow:- “92. More so, the accused has no right to have any say as regards the manner and method of investigation. W.N. Chadha (Supra) the Hon’ble Supreme Court is of the view that the accused has no right to say as regard the manner and method of investigation, Para-92 (relevant portion) from the judgment is reproduced hereinbelow:- “92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.” 28. In the case of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another (supra) the Hon’ble Supreme Court is of the view that the accused cannot have a say in who should investigate the offences he is charged with, Para-8 (relevant portion) from the judgment is reproduced hereinbelow:- “8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate.” 29. In the case of Narender G. Goel Vs. State of Maharashtra and another (supra) the Hon’ble Supreme Court is of the view that the accused has no right to be heard at the stage of investigation, Para-11 (relevant portion) from the judgment is reproduced here-in-below:- “11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [ (1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed: (SCC p. 743, para 11).” 30. In the case of Kedar Narayan Parida and others Vs. State of Orissa (supra), the Hon’ble Supreme Court declined to interfere in the judgment passed by the High Court as it was found that the Director General of Police interfered with a direction to Inspector General of Police, Central Range, Cuttak to submit a fresh test note despite the supervisory report which had been submitted by the Additional S.P. Jajpur and the Hon’ble Supreme Court also observed that there was an attempt to shield some of the accused persons, Para-49, 50, 52 and 53 (relevant portion) from the judgment is reproduced hereinbelow:- “49. We are unable to accept Mr Sharma's submissions that the High Court could not have interfered with the directions given by the Director General of Police to the Inspector General of Police, Central Range, Cuttack, to submit a fresh test note despite the supervisory report which had been submitted by the Additional SP, Jajpur, indicating that a case had been made out to go to trial as against all the nineteen accused. When any illegality and/or mala fide action on the part of the investigating authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the investigating authorities. The decision in H.S. Bains case [ (1980) 4 SCC 631 : 1981 SCC (Cri) 93 : AIR 1980 SC 1883 ] clearly reiterates such proposition. 50. In the instant case, although, the supervisory report submitted by the Additional SP, Jajpur, had been duly accepted not only by the Inspector General of Police, Central Range, Cuttack, but also by the Director General of Police, which was sufficient for the Magistrate to frame a charge against all the accused persons, a fresh direction was given to the Inspector General of Police, Central Range, Cuttack, to submit a test note. Such a direction given after the intervention of Dr. Parameswar Sethi, who has gone to the extent of providing an alibi for two of the accused, Jyoti Parida and Shakti Parida, claiming that they were present in his house when the incident had occurred, not only exudes an unpleasant flavour, but raises doubts about the bona fides of the police authorities at the highest level. In fact, it is on account of such intervention that initially charge was filed only against four of the accused and thereafter three more. No steps were taken as far as the remaining twelve accused were concerned and it is only when the action of Dr. Parameswar Sethi was questioned before the High Court, that charge was also filed against the remaining twelve accused persons. 52. No steps were taken as far as the remaining twelve accused were concerned and it is only when the action of Dr. Parameswar Sethi was questioned before the High Court, that charge was also filed against the remaining twelve accused persons. 52. As we have observed in other cases, the courts and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the investigating authority, the High Court or this Court may certainly step in to correct such injustice or failure of justice. Such a view was indicated in Comptroller and Auditor General of India case [ (1986) 2 SCC 679 : 1986 SCC (L&S) 345 : (1986) 1 ATC 1] as far back as in 1986 when on the failure of the administrative machinery a mandamus had to be issued by this Court to grant relief to the petitioner to which he was entitled from the said authorities, and also in H.S. Bains case [ (1980) 4 SCC 631 : 1981 SCC (Cri) 93 : AIR 1980 SC 1883 ] referred to hereinbefore. 53. We are inclined to agree with Mr Altaf Ahmed that in the peculiar facts and circumstances of this case, it was necessary for such a direction to be given by the High Court in order to prevent an injustice from being done on account of the intervention of influential persons, which not only had the effect of negating the supervisory report of the Additional SP, Jajpur, but also resulted in an attempt to shield some of the accused persons.” 31. In the case of Prema Devi Vs. State of U.P. and others (supra), a Division Bench of this Court set aside the order by which the investigation was transferred to the Economic Offence Wing without any rhyme or reason. 32. In the case of Tausiful Hasan Vs. State of U.P. and others (supra), Division Bench of this Court has categorically observed that any right to accused may accrue only when there is possibility of infringement of any of his constitutional right and observed that the accused has no right to interfere in the investigation, Para-10 (relevant portion) from the judgment is reproduced hereinbelow:- “10. Any right to accused/petitioner may accrue only when there is possibility of infringement of any of his constitutional right. Any right to accused/petitioner may accrue only when there is possibility of infringement of any of his constitutional right. As held earlier the accused/petitioner has no right to interfere in investigation. There is no likelihood of violation of any right of petitioner by impugned order. The doctrine of audi alteram partem is not applicable during investigation because the work of any investigating agency is not to decide any right but only to collect the evidences to be placed before the court. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case.” 33. It is clear from the impugned order that the investigation of First Information Report No. 17 of 2018 (supra) has been transferred on the application made by wife of the named accused (Rakesh Vikram Singh/respondent no. 10) dated 2nd April, 2018, which was accompanied by the recommendation of Smt. Shobha Singh Chauhan Member of Legislative Assembly. 34. Considering the argument advanced by the learned counsel for the parties; the pleadings and the discussions made above, it is prima facie clear that the investigation of First Information Report No. 17 of 2018 (supra) has been transferred on the choice of wife of the named accused who was, admittedly, an absconder, ignoring the provisions of Government Order dated 05.09.1995, Circular No. 27 dated 10.05.2014 of Director General of Police and law laid down by Hon'ble Supreme Court (supra). 35. The impugned order does not disclose that it would be in the interest of better investigation that the investigation be transferred. From the investigation already conducted, as referred to above, nine accused have already been identified and some of the accused have already been arrested. From the circumstances, it appears that only when steps were being taken to arrest respondent no. 10, so as to defeat the investigation process and derail it, the investigation has been transferred to shield the abscander. 36. Considering the facts and circumstances of the case, the order dated 18th May, 2018 passed by respondent no. From the circumstances, it appears that only when steps were being taken to arrest respondent no. 10, so as to defeat the investigation process and derail it, the investigation has been transferred to shield the abscander. 36. Considering the facts and circumstances of the case, the order dated 18th May, 2018 passed by respondent no. 4, by which the investigation of First Information Report No. 0017 of 2018, under Sections 147, 148, 149, 307, 302, 120-B, 34 Indian Penal Code and Section 3/4 Explosive Substances Act, Police Station Jagdishpur, District Amethi, has been transferred from local police to CBCID and all consequent proceedings are hereby quashed. 37. We further direct that the investigation may go on under the supervision of Superintendent of Police, District Amethi and same shall completed, expeditiously. 38. In view of the aforesaid facts and discussion, the petition is allowed.