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2020 DIGILAW 1332 (ALL)

Bohati Devi v. State of U. P.

2020-11-17

PANKAJ NAQVI, VIVEK AGARWAL

body2020
JUDGMENT : 1. Heard Sri Vivek Kumar Singh, learned counsel for the petitioner, Sri Nipun Singh, learned counsel for respondents and Sri Deepak Mishra, learned AGA. 2. Petitioner has filed this writ petition for issuing a writ or direction or order in the nature of certiorari quashing the impugned order dated 13.2.2019 passed by respondent no. 1 / Secretary (Home), State of UP, Lucknow whereby he ordered for further investigation by CBCID of Case Crime No. 1069 of 2014 under Section 302, 120-B IPC at Police Station Baraut, district Baghpat. 3. Petitioner's case in short is that his son Satyveer alias Kallu was murdered by unknown persons, in respect thereof an FIR was lodged by the informant Sanjeev Kumar, S/o Ishwar Singh, son-in-law of the petitioner against Smt. Anju (Wife of deceased) and 2 unknowns. 4. Investigation was carried out by one Rajesh Kumar Varma, Inspector, Police Station Baraut, District Baghpat and had submitted charge sheet on 1.3.2015 against Sarvesh @ Mangal and Vikki on which cognizance was taken by learned Magistrate on 31.3.2015. 5. It is submitted that FIR was lodged against Smt. Anju and two other unknown persons. Contents of the FIR reveal that Smt. Anju is wife of the deceased Satyaveer alias Kallu and two unknown persons are alleged to be friends of Smt. Anju. 6. In further investigation another charge sheet bearing No. 84-A/2015 was filed on 2.12.2016 against Ashwani Kumar, S/o Rajveer Singh and Smt. Anju, W/o of late Satyaveer alias Kallu and cognizance of the same was taken by the learned Magistrate on 21.12.2016. 7. Respondent no 8 namely Ashwini Kumar filed A-482 Cr.P.C. application bearing NO. 20045/17 praying for quashing of the entire proceedings of the Case NO. 7629 of 2016 originating out of Case Crime NO. 1069 of 2014 as well as for quashing of the charge sheet dated 2.12.2016, but said application was dismissed by this Court as 5.7.2017. 8. Being aggrieved of order dated 5.7.2017, respondent no. 8 - Ashwani Kumar filed Special Leave to Appeal (Crl.) NO. 5599 of 2017 which was dismissed by the Hon'ble Supreme Court on 24.8.2018. The Supreme Court also vacated the interim protection granted to respondent no. 8 vide order dated 15.9.2017. 9. After passing of order dated 24.8.2018, the CJM, Baghpat issued non bailable warrant against respondent no. 8 on 18.9.2018 then mother of respondent no. 5599 of 2017 which was dismissed by the Hon'ble Supreme Court on 24.8.2018. The Supreme Court also vacated the interim protection granted to respondent no. 8 vide order dated 15.9.2017. 9. After passing of order dated 24.8.2018, the CJM, Baghpat issued non bailable warrant against respondent no. 8 on 18.9.2018 then mother of respondent no. 8 Smt. Raj Dulari moved an application dated 23.1.2019 to respondent no. 1 for transferring of investigation to CBCID. 10. In the present writ petition, allegation is that without affording an opportunity of hearing to the aggrieved persons, respondent no. 1 illegally and arbitrarily transferred the investigation to CBCID for further investigation. Petitioner's apprehension is that when charge sheet has already been filed, cognizance has been taken then transferring investigation to CBCID is an attempt to frustrate the trial and help respondent no. 8 with undue benefit. In this backdrop writ petition has been filed seeking quashing of the impugned order passed by respondent no. 1 ordering for further investigation by CBCID. 11. State counsel has filed an affidavit of compliance sworn by the Secretary, Department of Home, Government of UP, Lucknow in compliance of the order dated 25.3.2020, but there is no such order, in fact the order is of 25.2.2020 which reproduced the earlier order dated 8.5.2019 whereby the Secretary (Home) was required to file an affidavit disclosing reasons as to why the direction to further investigate the matter was considered necessary particularly when charge sheet has been submitted and trial was in progress. It was directed that the affidavit would also indicate whether permission of the trial court was obtained in that regard or not. 12. In this backdrop in the affidavit, it is mentioned that mother of the deceased during investigation had given a statement that Sohanveer, brother of the deceased Satyavir and Arjun nephew of Satyaveer were eye witnesses of the murder, but the fact is that they were incarcerated in District jail Bijnor on the fateful day i.e., 25.12.2014 in Case Crime No. 126 of 2014 and 127 of 2014 under Section 4/25 of the Arms Act. In the meanwhile, several meetings were reported to had taken place between several interested persons who were of the suspicious nature. It is also mentioned in that affidavit that deceased had left property worth several crores and that appears to be the motive behind the conspiracy to commit murder. In the meanwhile, several meetings were reported to had taken place between several interested persons who were of the suspicious nature. It is also mentioned in that affidavit that deceased had left property worth several crores and that appears to be the motive behind the conspiracy to commit murder. In para-7 of the affidavit, it is mentioned that permission of the trial court was obtained, an application requesting that the case diary and records to be made available for further investigation with the endorsement by the learned CJM, Baghpat on 1.3.2019 permitting the same is attached alongwith affidavit as Annexure-2. 13. Learned standing counsel for the State submits that Criminal Procedure Code, 1973 provides that investigating agency is not empowered to order “fresh” "de-novo" or "reinvestigation" in relation to the offence for which it has already filed a report in terms of Section 173(2) Cr.P.C, but only further investigation may be ordered by the investigating agency or the Magistrate. It is submitted that with the concurrence of the Magistrate only further investigation is being carried out inasmuch as no charge sheet has been filed in relation to respondent no. 8 and therefore, there is no illegality in the impugned order passed by respondent no. 1. 14. Learned counsel for respondent no. 8 at this stage submits that court is required to balance the interest of the victim as well as that of the accused and therefore, there is no infirmity and illegality in the impugned order which has been passed after taking leave of the Magistrate competent to do so. Reliance is placed on the judgment of Supreme Court in case of Vinay Tyagi vs. Rishad Ali @ Deepak and others wherein placing reliance on the provisions contained in Section 173 (8) Cr.P.C. it has been held that Magistrate has suo moto discretion to direct further investigation after filing of police report. Placing reliance on the judgment in the case of Bhawan Singh vs. Commissioner of Police, (1985) 2 SCC 537 , it is submitted that requirement of seeking prior leave of Court to conduct further investigation and/or to file supplementary report will have to be read into, and is a necessary implication of provisions of Section 173 (8) Cr.P.C. 15. Similarly, reliance is placed on the judgment of Supreme Court in the case of State of Bihar and another Vs. Similarly, reliance is placed on the judgment of Supreme Court in the case of State of Bihar and another Vs. JAC Saldana and other as reported in 1980 CrLJ 98 wherein it is held that there is no conflict between Section 3 of the Police Act and Section 173(8) Cr.P.C. and therefore, State Government is competent to direct Inspector General, Vigilance to take over investigation of cognizable offence. Placing reliance, on above judgments it is submitted that there is no infirmity in the impugned order, directing further investigation being passed with the concurrence of the concerned Magistrate. 16. Shri Deepak Mishra, learned counsel for State supports the submission of learned counsel for private respondents. 17. After hearing arguments and going through records and case laws in this behalf, especially one in case of Bhawan Singh vs. Commissioner of Police, (1985) 2 SCC 537 and State of Bihar and another Vs. JAC Saldana and other as reported in 1980 CrLJ 98 . this Court is of the opinion that there is no infirmity in the impugned order, directing further investigation. 18. The petition lacks merit and is dismissed.