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Allahabad High Court · body

2020 DIGILAW 84 (ALL)

Silpa Devi Patel v. State Of U. P.

2020-01-08

AJIT KUMAR, RAMESH SINHA

body2020
JUDGMENT : 1. Sri Rakesh Prasad has filed vakalatnama on behalf of the petitioner which is taken on record. He states that he has taken no objection from Ms. Mamta Sen earlier counsel for the petitioner. 2. Heard Sri Rakesh Prasad, learned counsel for the petitioner, Ms. Swati Agrawal, learned counsel appearing for respondent no. 6, Sri Gaurav Pratap Singh, learned A.G.A. for the State and perused the record. 3. By means of present writ petition, the petitioner has prayed for quashing the order dated 20.7.2018 passed by respondent no. 2 transferring the investigation to the C.B.C.I.D. in case crime no. 217 of 2016 under sections 323, 376, 506 I.P.C. and 3/4 POCSO Act, police station Utraon, District Allahabad and case crime no. 255 of 2016 under sections 323, 504, 506, 452 I.P.C., police station Utraon, District Allahabad. 4. Brief facts of the case are that a First Information Report has been lodged by the petitioner against accused-respondent no. 6 Lal Chand Patel which was registered as case crime no. 217 of 2016 under sections 323, 376, 506 I.P.C. and 3/4 POCSO Act at police station Utraon, District Allahabad and fter investigation, the police submitted charge-sheet against accused-respondent no. 6 on 13.10.2016 and the Additional District Judge-V has taken cognizance of the offence on 14.11.2016 and the trial is pending against him. 5. The argument advanced by learned counsel for the petitioner is that at the behest of accused-respondent no. 6 further investigation of the case crime no. 217 of 2016 under sections 323, 376, 506 I.P.C. and 3/4 POCSO Act, police station Utraon, District Allahabad as well as case crime no. 255 of 2016 under sections 323, 504, 506 I.P.C. and 3/4 POCSO Act, police station Utraon, District Allahabad has been transferred to C.B.C.I.D. by respondent no. 2 Secretary U.P. Government, Lucknow by passing the impugned order dated 20.7.2018 though the civil police has already submitted charge-sheet against accused-respondent no. 6 in case crime no 217 of 2016 which was lodged by the petitioner for the aforesaid offence and the court below has taken cognizance on the same and summoned the accused-respondent no. 6 to face trial. He submits that as the accused-respondent no. 6 is avoiding the trial, a non bailable warrant has been issued against him by the trial court on 24.3.2017. He submits that the accused-respondent no. 6 had challenged the charge-sheet of case crime no. 6 to face trial. He submits that as the accused-respondent no. 6 is avoiding the trial, a non bailable warrant has been issued against him by the trial court on 24.3.2017. He submits that the accused-respondent no. 6 had challenged the charge-sheet of case crime no. 217 of 2016 before this Court in Crl. Misc. 482 Cr.P.C. Application No. 11551 of 2017 which was disposed of by this Court directing the accused-respondent no. 6 to obtain bail. Thereafter, he preferred Crl. Misc. Writ Petition No. 8918 of 2017 which was also disposed of on 23.5.2017 in which this Court directed that the investigation of the case be carried out in a fair manner independently and police report be submitted within four months. He contended that another 482 Cr.P.C. Application No. 11551 of 2017 was filed by respondent no. 6 in which he prayed for staying of order dated 11.8.2017 issued under section 82 Cr.P.C. by the trial court in case crime no. 217 of 2016 for the aforesaid offence which too was disposed of by this Court on 24.8.2017 directing the applicant to surrender before the court concerned and apply for bail. He argued that against the order dated 18.4.2017 passed in Crl. Misc. 482 Cr.P.C. Application No. 11551 of 2017, the accused-respondent no. 6 preferred S.L.P. (Criminal) No. 7367 of 2017 before the Apex Court which too was dismissed and accused-respondent no. 6 was given liberty to move regular bail before the trial court concerned, if so advised, but the accused-respondent no. 6 did not appear before the trial court and got the investigation of the case transferred by the State Government just to delay the trial. He urged that the impugned order which has been passed transferring the investigation of the case to C.B.C.I.D. shows that the respondent no. 6 has only alleged that he has been falsely implicated in the present case on account of some inimical relationship with S.I. Narendra Pratap. He next submitted that respondent no. 6 is named in the F.I.R. by the petitioner and further in the statement of the victim recorded under sections 164 Cr.P.C. it has been categorically stated that the respondent no. 6 has committed rape on her. The cognizance of the offence had already been taken by the trial court and the trial against the accused-respondent no. 6 is named in the F.I.R. by the petitioner and further in the statement of the victim recorded under sections 164 Cr.P.C. it has been categorically stated that the respondent no. 6 has committed rape on her. The cognizance of the offence had already been taken by the trial court and the trial against the accused-respondent no. 6 is pending and the impugned order passed at the behest of the accused-respondent no. 6 is just to escape the criminal liability, hence the same be quashed. 6. Per contra, learned counsel for the respondent no. 6 has vehemently opposed the prayer for quashing of the impugned order and submitted that respondent no. 6 is a Journalist. He has protested against the illegal activities of S.I. Narendra Pratap as he in collusion of with the father of the victim was getting the victim married to one Pramod Patel though she was a minor girl. She further submitted that against the illegal activities, the respondent no. 6 and other villagers have demonstrated before the S.S.P. Allahabad and because of same he has been falsely implicated in the present case. She submits that respondent no. 6 had also moved an application before the court concerned under section 156 (3) Cr.P.C. for registering an F.I.R. against S.I. Narendra Pratap to which learned counsel for the petitioner submits that the said application under section 156 (3) Cr.P.C. moved by respondent no. 6 was rejected by the court concerned. She could not dispute the fact that charge-sheet has been submitted against the respondent no. 6 in case crime no. 217 of 2016 for the offence in question and the trial court had taken the cognizance on the same and trial is pending against him. 7. Considered the submissions advanced by learned counsel for the parties and perused the record. 8. It is an admitted fact that an F.I.R. was lodged against respondent no. 6 under sections 323, 376, 506 I.P.C. and 3/4 POCSO Act registered as case crime no. 217 of 2016 on 20.7.2018 and charge-sheet has been submitted on which the court had taken cognizance and the trial is pending and when he failed to appear before the trial court non bailable warrant has been issued against respondent no. 6, who in turn has challenged the charge-sheet of case crime no. 217 of 2016 on 20.7.2018 and charge-sheet has been submitted on which the court had taken cognizance and the trial is pending and when he failed to appear before the trial court non bailable warrant has been issued against respondent no. 6, who in turn has challenged the charge-sheet of case crime no. 217 of 2016 before this Court by filing a 482 Cr.P.C application which was disposed of directing him to appear before the competent court and obtain bail but he did not comply with the said order and challenged the same before the Apex Court by filing S.L.P. (Criminal) which too was dismissed with a direction to the respondent no. 6 to obtain regular bail. The act and conduct of respondent no. 6 goes to show that he is avoiding the trial of the present case on one pretext or the other. Moreover, the impugned order transferring the investigation of case crime no. 217 of the 2016 and case crime no. 255 of 2016 shows that respondent no. 2 only consider the false implication of respondent no. 6 by the petitioner in case crime no. 217 of 2016 and had transferred the investigation. There appears to be no sound reason given by respondent no. 2 for transferring the investigation of the aforesaid cases. Moreover, the respondent no. 6, who is an accused has no right to choose the investigating agency as has been laid down by the Apex Court in catena of decisions such as Narmada Bai vs. State of Gujrat and others reported in 2011 (5) SCC 79 . In para-64 of the said judgment, the Apex Court has observed as under:- " 64...... It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them." 9. Further in the case of Sajiv Rajendra Bhatt vs. Union of India and others reported in 2016 (1) SCC 1 , in para-68, the Apex Court has observed as under:- "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Further in the case of Sajiv Rajendra Bhatt vs. Union of India and others reported in 2016 (1) SCC 1 , in para-68, the Apex Court has observed as under:- "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India vs. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujrat, CBI v. Rajesh Gandhi, Competition Commission of India v. SAIL and Janta Dal v. H.S. Choudhary." 10. Recently the Apex Court in the case of Romila Thapar and others vs. Union of India and others in Writ Petition (Criminal) No. 260 of 2018 decided on 28.09.2018 following its earlier judgment has observed in para-27 of the said judgment as under:- " ..... it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation. ..........". 11. In view of the above, the impugned order dated 20.7.2018 is hereby quashed. 12. The writ petition is dismissed. 13. The trial court is directed to proceed with the trial of the present case and conclude the same expeditiously.