Gurmeet Singh vs State Of U.P. & Others
2012 Latest Caselaw 5481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.42
 
Criminal Misc. Writ Petition No. 7818 of 2010.
 
Gurmeet Singh                    ...Petitioner.
 
Versus
 
State of U.P. & others           ... Respondents.
 
Hon'ble Dharnidhar Jha, J.

Hon'ble Ramesh Sinha, J.

This writ petition seeks the following reliefs:-

"1. A writ, order or` direction in the nature of mandamus commanding the respondents to take action in accordance with law against the accused persons in pursuance of the F.I.R. dated 22.12.2009 lodged by the petitioner under Section 147, 148, 149, 323, 394, 307, 302, 342, 336, 436, 427, 324, 120B I.P.C. Case Crime No. 1081A of 2009, police station New Agra, District Agra.

2. A writ, order or direction in the nature of mandamus commanding the respondents to conclude the investigation through any independent agency/C.B.I.. in pursuance of the offence committed by Bhuri Singh and other accused.

3. A writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

4. Award cost of this petition in favour of the petitioners."

The prelude to the seeking the reliefs has been stated in detail by the petitioner, who is the Secretary of Radhasoami Satsung Sabha (for short ' the Sabha') which is a religious and charitable society registered under the Societies Registration Act, 1860 and 1921. It appears that the Sabha has its properties located at different places, specially at Dayalbagh, district Agra which is its headquarter. As may appear from the averments made by the petitioner, the Sabha owns and possess over 160 Acres of land in and around Dayalbagh and the major part of the area is located at village Sikandarpur in several plots. The Sabha does social services by establishing and running a large number of charitable institutions in Dayalbagh and at other places in the country. There are huge number of schools which are also being run by the Sabha for imparting higher learning, vocational training besides running hospitals and other charitable institutions. The institutions established by the Sabha cater to the needs not only of persons at the places where the institutions are located, but they render services also to public at large. Education is provided by the Sabha from elementary level to the university level.

As per the averments of the petitioner, the master plan for Dayalbagh provided for low density population areas to be treated as green belts and that part of Dayalbagh Development Plan was included in Zone-II of Agra Master Plan to be preserved as a green belt and was proposed to form an echo-friendly village in the area. There were many plans of the Sabha for creating healthy locations which could be echo friendly but at the same time were supposed to be spars as regards the density of population. There were litigations arising out of plans for creating the echo Zone as Zone-II of the Agra master plan and some of them were pending before the Apex Court. On account of activities of the Sabha, certain persons, who as per the petitioner were land Mafias, were turning envious to the plans of the Sabha and as such were instigating villagers in the locality around Dayalbagh to encroach upon Sabha's land or to damage or otherwise retard the development works of the institutions or ruin the crops which could be grown by the Sabha on its land. The petitioner alleged that the gang of persons, who were land Mafias, was being led by one Bhuri Singh, who was very freely changing his political allegiance and at the relevant time was member of the then ruling party of Uttar Pradesh. It was stated by the petitioner that plot No. 167 was utilized for growing food grains by the Sabha and it had entered into an agreement with Agra Municipal Corporation to supply recycled water for the irrigational requirements of the land on concessional rates and, accordingly, the Sabha had also agreed to recast the irrigation-channels in the adjoining areas.

It was stated by the petitioner that several persons specially, Bhuri Singh, was raising strong objections to the constructions of channels and widening of chak-roads as envisaged by the master plan and was also averse to the development of residential area on Plot No. 161. It was alleged that merely at the behest of the said Bhuri Singh two members of Sabha were also arrested and were confined and thereafter produced before a Magistrate on a particular date on fabricated and concocted allegations while they were engaged in reconstructing the irrigation channels as per proposed plan. It was alleged that the police was acting according to the fiat of the said Bhuri Singh who was stopping the constructive/development work being carried out by the Sabha on its land by utilizing the police force illegally for the above purpose and accordingly, the proceedings which were initiated against the two members of the Sabha, who were engaged in reconstructing the channels were dropped by a Magisterial order dated 7.12.2009.

In the above background, it was stated that on 18.11.2009 and on subsequent dates also other obstructive activities were done by the said Bhuri Singh and others when some trenches were dug up on the Sabha-land and accordingly a complaint was also lodged by the officials of the Sabha with police on 25.11.2009. But, no case was registered and strangely, a false F.I.R. was lodged against some office bearers of the Sabha.

It appears that on 20th December, 2009, a Bhandara was organized for the Satsangis, who had gathered in Dayalbagh and after the Bhandara was over and Satsangis and Sat Gurus had left the site of Bhandara and while Sewaks along with some other small group of workers were left at the site of Bhandara, who were working on the water distribution channel, about 100 villagers of Sikandrapur, Khaspur, Lalgarhi- a hamlet within the village of Sikanderpur- led by Bhuri Singh, suddenly and without any provocation, appeared in agricultural field comprised by Plots No. 167 and 175. They looted the agricultural equipments from a tractor trolley stationed there, damaged barbed wire fencing mounted on wooden ballis along with the boundary wall erected on Plot No. 167 and removed most of the properties after demolishing the boundary wall from there, besides, damaging the irrigation channel of the Sabha land and also set at fire a water tanker and damaged a jeep bearing No. MBC 169 and looted several other properties by carrying them away along with the jeep. The drivers of the tractor-trolley and the jeep were beaten up as a result of which several injuries were caused to them and accordingly, a report was registered on 20th December, 2009 under different Sections of the I.P.C..

It was stated that in spite of the report being lodged the police had not paid any heed to it and was negligent and indifferent towards the highhanded acts of Bhuri Singh and his associates and, as such, the petitioner sent a letter on 21.12.2009 to D.I.G., Agra Range, Agra and requested for the expeditious investigation of the case by recovering the looted properties and further requested that apprehension was lying in the minds of the members of the Sabha regarding security and safety not only of the properties, but persons also. As such, action was also to be taken in that behalf. The petitioner alleged that no investigation was carried out on the above F.I.R., dated 20.12.2009.

On 22.12.2009, the petitioner went to inspect the standing crop on Plot No. 39 at village Sikandarpur and was at that time accompanied by three Sewadars, who were fully armed on account of security concerns arising out of the earlier incident at the time of Bhandara and loot of the Sabha properties, and when they were passing through village Sikandarpur, the above named Bhuri Singh along with a large number of villagers under his leadership stopped the vehicle of the petitioner near his house by placing a motorcycle across the narrow lane and forced the three persons, who were armed and were accompanying the petitioner to leave their vehicle and snatched their fire arms. The petitioner Gurmeet Singh was beaten up along with others during which course, two members of the party who were aged about 60 & 70 years, were seriously injured. Six of them were locked in two separate rooms of a house five in one room and the sixth in the other. The two jeeps which were used by the petitioner and his associates were set ablaze. It is stated that the petitioner Gurmeet Singh informed about the said incident the General Manager (Agriculture) of the Sabha and sought help from him as the lives of the petitioner and his associates were in danger. The police was also informed about the petitioner and his associates being illegally and wrongfully confined but the police was not prompt and appeared there half an hour after.

After receiving the information, a huge number of Sewadars converged upon the village to secure the release of the petitioner and others which included the son of the petitioner Gurmeet Singh, namely, Gur Sharan Singh. They were unarmed. The group was comprised by Sewaks from different States like Maharashtra, Gujrat, Rajasthan, Haryana and Delhi, who had come to participate in the Bhandara and when they had reached the village, they were stopped by the villagers, who were armed with country made pistols, Lathis and brick bats and opened indiscriminate firing upon them and assaulted them.

As a result of the attack, many of the Sewaks received injuries, some of whom were grievously injured. Thirty of them received gun shot injuries caused by country made pistols which was later on confirmed by the medical report. Some of the volunteers of the Sabha received gun shot injuries on their back while they were attempting to get away from the line of firing and this clearly indicated that the mob was bent upon killing these Sewaks, who went there to rescue the illegally confined persons, like, the petitioner and his associates.

The volunteers withdrew and retreated in to the compound of the nearby primary school and by that time some policemen had arrived there, but they were chased by the irate mob of villagers.

The villagers surrounded the school in spite of the presence of the police and started firing on unarmed volunteers. The whole incident was video recorded by the Sabha members and after great difficulty the volunteers after scaling the compound wall of the school, could come out of the village after having sustained serious injuries by fire arm and other weapons.

On the same day at about 8:15 am, Satsangis, who were going back to Dayalbagh after performing their sewa by a bus when they had reached the outskirts of village Sikandarpur, were attacked and the bus was also set at fire by the villagers. A total number of 64 volunteers were injured and many of them suffered serious, injuries including injuries on their heads and other such important parts of the body and were hospitalized in four different hospitals. Thirty five medical reports were submitted in respect of as many as thirty five persons while others were discharged from the hospital after first aid.

During the incident, Gur Sharan, son of petitioner Gurmeet Singh, who was aged about 38 years and had been married only five months earlier, received gun shot injuries on account of firing resorted to by Bhuri Singh on his back and he fell unconscious and later on succumbed to his injuries on 26th December,2009 without regaining consciousness after having battled for life in the ICU in Pushpanjali Hospital, at Agra. Post-mortem examination was, accordingly, held and it appears that for the above incident New Agra police station registered a Case bearing F.I.R. No. 682 of 2009 dated 22.12.2009 under different Sections of the Penal Code being Case Crime No. 1081A of 2009. Initially Section 302 I.P.C. was not inserted in the F.I.R. but on account of the death of Gur Sharan Singh,it was added up to the F.I.R. on 26.12.2009.

The police proceeded with the investigation. It is here that the petitioner has a grievance regarding the improper, unfair and partial investigation by the police and on that count, the present petition was filed seeking the above noted reliefs.

The reason for seeking the transfer of investigation from any wing of the state police to the Central Bureau of Investigation has been eloquently detailed by the petitioner in his petition, besides stating them clearly in their supplementary affidavit filed on 4.1.2012. The first such grievance of the petitioner is based on the fact that inspite of the case having been registered for an offence under Sections under Section 307 as also under Section 302 I.P.C., the police was submitting the first final report on 9.8.2010 sending up only four accused persons and that too under all bailable Sections of offences of I.P.C. The final report has been annexed as Annexure VIII. It was stated by the petitioner that his witnesses, including 34 persons, who were injured in the incident, had fully supported the incident but the police was minimizing the offence by unfairly recording their statements. The unfairness and partial attitude of the police in investigation of the case was highlighted by the petitioner by making allegation that the public influenced by Bhuri Singh, who was one of the Members of the Zila Parishad and was a member of a party which was then ruling the State of Uttar Pradesh and this was the reason that the accused persons were not arrested and if anyone had been arrested, he was illegally released. The allegation further was that the documents were manipulated for exonerating important accused persons and it appears that there was a race in the state police establishment for helping accused persons out as none else than the S.P,Agra was soliciting an affidavit from an accused for releasing him from custody. The averments of the petitioner was also that in spite of 34 Sewaks being injured seriously, most of whom were bearing fire arm injuries and in spite of vehicles having been set ablaze, no effort was made either to seize the arms or to seize the evidence of use of fire arms, like, empty cartridges from the scene of occurrence or the burnt up vehicles . All these requirements of fair investigation were being undermined by the police only to please the said Bhuri Singh, who was the assailant of the deceased.

Besides the above facts, our attention was drawn to different orders passed by the Court which we will notice while taking up the arguments of the parties for scrutiny.

We want to notice some of the statements also on improper investigation,like, non seizure of the incriminating articles.

The Petitioner in his supplementary affidavit has alleged that the burnt up jeep and buses were not seized nor any seizure memo was prepared and no steps were being taken for forcing the accused to appear before the police or a court and the police was sitting tight under influence of the said Bhuri Singh.

The State of Uttar Pradesh was denying the allegation on improper and unfair investigation by filing counter affidavit dated 22nd March, 2012 and it was refuting the submissions made in the affidavit either in detail or was explaining the statement by making various statements. It was stated that there were two stories in respect of the same incident and one such story was contained in the F.I.R. lodged by the said Bhuri Singh vide Case Crime No. 1081 of 2009 against petitioner Gurmeet Singh and other Satsangis and the other F.I.R. was the F.I.R. which was lodged by petitioner Gurmeet Singh vide Case Crime No. 1081A of 2009.In both the cases charge sheets had been submitted by the police after proper investigation. However, the above submission was qualified by the State of Uttar Pradesh as may appear from the same paragraph-6 of the counter affidavit dated 22.3.2012 when it was stated that "so far as the investigation in respect of Case Crime No. 1081 A of 2009 is concerned, the same is still pending. The fact is correct that the accused Bhuri Singhi, who is in jail, is a member of Zila Panchayat." The deponent of the affidavit dated 22.3.2012 was the Investigating Officer of the case and was probably the 4th Investigating Officer of the case as may appear from paragraphs-7 and 9 of same counter affidavit and he was claiming to carry out the investigation in a just and proper manner "Without any laches since 2.9.2010" and specially as per "the observations made during the course of hearing of the above noted cases as well as the directions issued by the Hon'ble Court". The State of Uttar Pradesh as may appear from paragraph-10 of the above noted counter affidavit dated 22.3.2012 was not completely negating or denying the allegation of the petitioner Gurmeet that the police was not conscious of its statutory obligation of investigating the case without disclosing the appropriate details or replying to the allegation on not seizing the burnt up bus and jeeps when it was stating in para-10 that "the seizure memo was prepared by the Investigating Officer after some time".

To the allegation that the police was completely indifferent and was probably acting with a helping attitude towards the accused as no accused was being arrested, reply was contained in paragraph-11 of the counter affidavit. It was stated that out of 44 accused persons "five accused persons have been arrested and against rest of the accused persons,the proceedings under Sections 82 and 83 has been done by the Investigating Officer. Subsequently, the charge-sheet had also been submitted in relevant Sections". Thus it was stated that the allegation of favouring the accused was wrong and baseless. As regards the further allegation of carrying out the investigation with bias towards the petitioner and in favour of the accused, the State was stating that the allegation of not searching for the weapons was also not true as three rifles were recovered from the open fields and accordingly they were seized,on 22.12.2009 and 28.12.2009and that Bhuri Singh was arrested on 29.07.2010 and was placed under judicial custody.

We want to note that Sri Vikas Sahai, learned Additional Government Advocate was appearing for the State through out in the matter and we had been expecting some positive actions on behalf of the State in the face of some serious allegations which were slapped on the fairness of the investigation by questioning the impropriety of the investigation being carried out in the improper manner by creating evidence by the police officer so as to exonerating some of the named accused persons. However, Sri Sahai could not get a better instruction for being placed before us than informing us that the State Government was not interested in handing over the investigation to any other investigating agency than to its own agency and that it had finally been handed over to the Crime Branch, Crime Investigation Department (CBCID).

Considering that the petition involves some serious issues relating to the establishment of rule of law, besides extending the protection of law to the citizens of the State, we were requesting the learned Advocate General by our order dated 13.9.2012 to assist us by placing his views on the issue. Initially the learned Advocate General was desirous of appearing before us and accordingly placed before us a letter addressed to Sri Sahai, learned AGA seeking to be accommodated as was recorded in our order dated 27.9.2012 as a result of which we adjourned the hearing of this petition to this day. Sri Akhilesh Singh, the learned Government Advocate has appeared before us and has pointed out that the learned Advocate General is out of Allahabad in connection with some compelling engagement and was not available for assisting us. Thus, finding that this petition was filed in the year 2010 and has remained pending with the Court for almost two and half years and further considering the importance of the issues which are involved herein, we decided to hear the parties and dispose of the petition finally.

We have heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Rajesh Punj and Sri Sunil Kumar Gaur, learned counsel appearing on behalf of the petitioner, Sri Akhilesh Singh, learned Government Advocate assisted by Sri Vikas Sahai, learned A.G.A. appearing for the State and Sri M.P. Pandey, learned counsel for the complainant.

Our attention was drawn to different aspects of the case, like, in spite of the case being registered under Section 302 I.P.C. and in spite of the evidence of witnesses including that of the doctor, holding the postmortem examination report, issuing the report (annexure-10), the police was minimizing the offence by submitting the police report dated 9.8.2010 only against four persons and that too under all bailable Sections of the Penal Code. Sri Punj submitted that, it was purposely done, so as to admitting the four arrested persons to bail. Submission was also that this partial and illegal attitude of the police and the Investigating Officer of the case in submitting the report was in spite of an order from this Court dated 3.8.2010 that investigation must not be concluded without obtaining an order from the Court. The order was passed by the Court after being informed that the main accused Bhuri Singh had been arrested and the Investigating Officer who had put personal appearance, gave an undertaking that other accused persons were likely to be arrested soon whose complicity was found in the incident. The Court was directing the Investigating Officer to appear before the Court on 25.8.2010 with a clear direction not to conclude the investigation. Submission was that arbitrary and somewhat contemptuous attitude of the Investigating Officer was recorded by the Court when it was passing an order on 25.8.2010 by recording that in spite of Court's order, the Investigating Officer had concluded the investigation. Our attention was also drawn to subsequent orders passed on 24.11.2010, 15.12.2010 and 11.1.2011 which orders indicate that the Court was assured by the Investigating Officer of the case on all those occasions about the case being further investigated into in spite of filing of the police report dated 9.8.2010, but that was not done. It was submitted by the counsel that they were obtaining one document or procuring the other even by fabricating them themselves to exonerate some of the accused persons. The Court's exasperation was recorded in its order dated 23.2.2011 when it noted that the Investigating Officer was not taking action against the accused and was attempting to exonerate some of the accused persons and in view of these submissions, the Court was directing the petitioner to file supplementary affidavit in support of the submission. The Court was again directing the Investigating Officer to lay down the final report. Our attention was also drawn to the orders passed by us on 28.3.2012, 30.4.2012, 15.5.2012 and 6.7.2012 and it was contended by referring to different paragraphs of the supplementary affidavit dated 4.1.2012, specially paragraph nos. 19 to 26 and the connecting annexures that while police was assuring this Court about a fair and impartial investigation, it was simply acting against its assurance by exonerating persons, who were injured or who had been the informant of the counter version of the incident. It was contended that it could not the conduct only of one Investigating Officer; all the four Investigating Officers, who had investigated the case were not different from the other. They were probably moving with a single agenda of consigning the case by exonerating the real culprits.

Submission was that this Court may not expect a fair, sincere and honest investigation by the State police through any of its wings and the court under the circumstances must order transfer of investigation to the C.B.I. Submission further was that directing the investigation to be transferred to C.B.I. for investigation was permissible in exercise of Court's powers under Article 226 of the Constitution of India so as to judicially reviewing the manner in which the case has been investigated into and thus judge as to whether the rule of law has appropriately been enforced or not enforced. It has always been the Constitutional concern of this Court as a constitutional obligation to ensure that every citizen of India is being extended the equal protection of law due to being equal before the law. Submission, as such, was that when the police itself was creating documents in defence of the accused persons or when the police is found negligent towards the seriousness of the incident on account of some political influence to protect a handful of persons then it could be the right case for being directed to be investigated into by an agency in which the petitioner and the suffering witnesses have trust and faith of acting impartially and with objectivity.

Sri Akhilesh Singh, learned Government Advocate while rising on his feet to make submissions, filed a supplementary affidavit by way of "compliance/progress report by the C.B.C.I.D." which is sworn by the Circle Officer, Agra Sector, district Agra to which the investigation of the case has been transferred/entrusted and has submitted that the petitioner and his witnesses were completely non-co-operative to the C.B.C.I.D. and were showing some sort of indifference towards the investigation by the agency as in spite of notices being issued by them, they were not turning up before the Investigating Officer of the case for recording their statements and this fact has been highlighted in different paragraphs of the supplementary affidavit dated 24.9.2012 filed today. It was contended that the Investigating Officer was also contacting the informant telephonically, calling upon him to come forwarded with his witnesses to give his evidence, but he was not paying any heed to it as a result of which the deponent-officer could not proceed further in the matter, except that he recorded the statements of previous Investigating Officers, who are named in different paragraphs of the affidavit. Sri Singh was submitting that the State was very much anxious in getting the fair investigation done to bring the culprits to justice and as such was submitting that we should allow the C.B.C.I.D. some time to come forward with some better compliance report.

Learned counsel for both the sides incidentally have placed reliance on the same judgment of the Supreme Court in the case of State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal reported in 2010 SCC (Crl.)-2- 401 and 2010 (68) ACC 985.

The counsel for both sides while making submissions did not challenge the jurisdiction of the Court that it could direct the transfer of an investigation or direct the same to be made by any particular agency other than the State police or any of its wings. This Court is also aware of the legal position that while exercising its powers under Article 226 of the Constitution of India it could direct investigation to be transferred or made by any particular agency like Central Bureau of Investigation (C.B.I.). We may refer to the case of State of Bihar vs. Ranchi Zila Samta Party reported in 1996 (3) SCC 682: AIR 1996 SC 1515; Nirmal Singh Kahlon V. State of Punjab reported in AIR 2009 SC 984, Sushil Kumar Modi v. State of Bihar reported in (1998)-8-SCC 661 and the case relied upon by both the sides, that is, State of West Bengal vs. Committee for Protection of Democratic Rights, W.B. (Supra).

The decision which has been relied upon by both the sides and to which we have just made reference to, i.e., State of West Bengal v. Committee for Protection of Democratic Rights, W.B. is also a decision which squarely covers the issues regarding the jurisdiction of the High Court in directing the transfer of investigation to C.B.I. It was a case in which the State of West Bengal had challenged the order passed by the Calcutta High Court on the ground that the High Court could not,in exercise of its powers under Article 226 of the Constitution of India, direct the Central Bureau of Investigation (C.B.I.) established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence allegedly committed within the territory of a State without the consent of that State, as appears in the present case as the State of U.P. refused to transfer the case to C.B.I. and instead directed its C.B.C.I.D. to investigate the case. This issue was framed by the Supreme Court in the very first paragraph of the judgment passed in the above noted case State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal and thereafter their Lordships of the Constitution Bench went on to consider the parameters of powers of judicial review of Courts by virtue of exercising their powers under Article 226 of the Constitution of India and after noticing a long line of decisions of the Apex Court, it was held that while exercising powers of judicial review, the High Court was competent to direct the investigation to be made by any other agency, like, the C.B.I. even if the investigation had been carried out finally by the State police. This finding was recorded without adverting to any further discussion as may appear from paragraph-3. Thus, in the light of the above concluded position as regards jurisdiction of this Court, we do not want to cumber the present judgment by making reference to findings of the Apex Court in different cases. We simply want to note that after the case having been investigated into initially by four Officers and the informant, i.e., the present petitioner being aggrieved with the manner of investigation and the attempts allegedly made by the Investigating Officer as is alleged by the petitioner under some political influence, the present petition was filed and as may appear from different orders passed by us, specially those passed on 28th of March, 2012, 30th April, 2012 and 15th May, 2012, the case was ultimately handed over for investigation to the C.B.C.I.D. as appears recorded in our order dated 6.7.2012. Before we notice the reasons giving rise to the filing of the present petition we want to point out that the learned Government Advocate was filing affidavit of compliance on 5.11.2012 to highlight the performance of the Investigating Officer of the C.B.C.I.D, as regards the investigation being conducted in a fair and impartial manner. Before we notice the facts stated in that affidavit, we want to record some of the provisions of the Cr.P.C. regarding the manner in which the investigation has to be made and for that purpose we refer to the provisions of Section 157 of the Cr.P.C. which is headed as "Procedure for Investigation" which reads as under:-

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:-

Provided that-

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.]

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."

A bare perusal of the above provision may point out that the investigation is surely to be done by any Investigating Officer in all cases in which the F.I.R. has been drawn up in view of Section 154 Cr.P.C. only after proceeding to the place of occurrence. The purpose for proceeding to the place of occurrence would be highlighted never in a better way than by pointing out that the statutory duty of investigating a case could never be confined to table work by any officer empowered or deputed to carry out the investigation for collecting material evidence of the case so as to placing it before the trial court in support of the basic prosecution case and the charges which might be required to be framed by the trial court. As such, the requirement of carrying out an investigation shall always be construed as an exercise in which different persons acquainted with the facts and circumstances of the case be questioned by the Investigating Officer and their statements be duly recorded in the case dairy. As soon as the Investigating Officer comes to know that any particular person is acquainted with the facts and circumstances of commission of a particular offence, which he is investigating into, then it is expected of such an Investigating Officer that he met that person by searching him out and in case of not tracing him out, makes all necessary and serious efforts to contact him for eliciting the facts connected with the commission of the offence. There might be a situation that the Investigating Officer could not be successful in getting the person before him immediately or as soon as he is making efforts in that behalf then for meeting out such exigency, the legislature in its wisdom laid down the provision of Section 160 Cr.P.C., empowering the Investigating Officer to issue notices or written orders to any person seeking him to appear before him on any particular date and at a particular place for being questioned by him in connection with the offence. It is, in our opinion, an enabling provision. It may never be the rule under which the Investigating Officer should only issue notices or orders in writing as per the provisions of Section 160 and that he should not go to the place of occurrence as is required by Section 157 Cr.P.C. in search of the material evidence or in search of a person who may a witness for being questioned or who may be accused required to be arrested for any purposes including for being questioned. The enabling provision, in our considered view, appears made the rule by the deponent of affidavit dated 24.9.2012 which was filed before us on 5.11.2012. The officer was issuing orders or notices as appears testified by him to different witness including the petitioner also for appearing before him but he was not proceeding to the place of occurrence. To our dismay he was not going to their respective houses as per the address, which we believe must be recorded in the earlier part of the investigation record so as to contact them and to elicit their statements for being put down in the case dairy in writing. Even the informant was not being contacted personally by Sri Krishna, the inspector of C.B.C.I.D., Agra Sector, District Agra. He was simply giving a call to the informant, as may appear from paragraph-8 of the affidavit dated 24.9.2012 filed before us on 5.11.2012 and the detail of that call incidentally does not relate to the facts or to the manner of commission of offence which he was investigating into rather the last line of that paragraph may be sufficient to convince us that it was an attempt by the Officer to know as to what was the progress of this case before us as the deponent has noted that "he was informed that due to the strike in Allahabad High Court, the next date had been fixed in the case."

We appreciate the anxiety of the learned Government Advocate and Sri Sahai, the learned A.G.A., both of whom have appeared before us in placing the efforts of the Investigating Officer Sri Krishna of the C.B.C.I.D. But the facts as stated by the Officer on affidavit,we are sure, simply did not deserve their anxiety. The Officer was probably unmindful of the seriousness of the offence, he had been handed out by the Government of U.P. to investigate and probably was sailing in the same boat as did the earlier four Investigating Officers . We are deeply dissatisfied with the claim of the State of U.P. that it has deep concern about the case being appropriately and fairly investigated into, so that the culprits be brought to justice.

What did the earlier Investigating Officer do in the present case? They were not seizing the incriminating materials connected with the offence unless and until the matter was being agitated before this Court and further when the informant, i.e., the present petitioner was writing letters to the higher police officers, like,the D.I.G. One such letter appears at page-65 of the present petition. The petitioner was complaining to the D.I.G., Agra Range, Agra that the police was sitting tight over the matter as no illegal weapons which were in large quantity along with unauthorized ammunitions, were being seized from the village of occurrence from the accused persons and the petitioner was stating before this Court on affidavit that the burnt up vehicles which were vandalized during the commission of the offence were also not being seized along with other incriminating evidence of occurrence. It was only when an affidavit was filed before this Court during the present proceeding that the State of U.P. in its affidavit dated 22.3.2012 was stating before this Court that in fact the burnt up vehicles had been seized but again the statement made by the State of U.P. in paragraph-10 of affidavit dated 22.3.2012 was as ambiguous as is known in the realm of pleadings to be filed by states in litigations before courts. The State of U.P. was stating as follows:-

"That the contents of paragraph 11 (1) of the supplementary affidavit are incorrect, hence denied. In reply thereto it is stated that the seizure memo of burnt up bus and jeep was prepared by the Investigating Officer after some time."

We could not get any particular date. We could not get any copy annexed to the affidavit. We appreciate the statement made thereon as regards the complaint of the petitioner on unfair investigation.

We have already extracted some of the submissions made by the petitioner in support of his grievance that the police was acting under some political influence and was not inclined to investigate the case fairly and appropriately so as to bringing to justice the perpetrators of the incident dated 22.12.2009. It was stated that out of 44 persons named in the F.I.R. no one was being arrested and for creating an eye wash that the case was or had been investigated into the police had arrested four persons and had submitted a police report dated 9.8.2010 under all bailable provisions of the Penal Code in spite of death of a person having occurred due to the violence. The contention was that the only purpose of the police was to satisfy the queries of this Court on the one hand and to benefit the accused persons by admitting them to bail under bailable provisions of the Penal Code on the other . While hearing the present petition and considering the facts and circumstances, we have been very careful in not paying our attention to any disputed fact. These are the facts which emerged from the records of the police that four persons were arrested and then were admitted to bail on account of the submission of the police report under all bailable Sections of the Penal Code. There were clear allegations that fire arms were used and 64 persons were injured, out of whom 35 persons were injured on account of being hit by gun shots and the injury details of 35 persons were placed in paragraph-17 of the present petition. These averments were not denied by the State. The F.I.R. was initially registered under Section 307 I.P.C. We believe that while registering the F.I.R., the police was conscious of illustration (c) to Section 307, I.P.C. but we could not be shown any acceptable reason as to why the case was not found true under that particular provision of the Penal Code.

The grievance of the petitioner is that the police was acting under political influence as they were not arresting the accused persons but were filing false affidavits indicating that searches were made, raids were conducted in their respective houses but they were found absent from the houses on account of having absconded and as such they could not be arrested. What appears is that one of the said accused, namely, Rakesh Kumar who was named in the F.I.R. was very much available to the police and later on the police was obtaining an affidavit from him by way of a document in proof of alibi of co-accused R.B. Shrama and that was the basis for not sending the said R.B.Sharma up for trial. Not only that the said Rakesh was available to the Investigating Officer daily, as the trial which was undertaken by the Magisterial Court on account of the submission of the police report, was being attended by the said Rakesh and others. In support of that particular submission,documents were brought into notice by the petitioner which were the copies of order sheets dated 21.12.2010, 27.1.2011, 7.2.2011, 8.6.2011 passed by the Magistrate showing that not only the above noted Rakesh, but other such accused persons also, who were reported absconding through affidavit by the Investigating Officer, had attended the Court proceedings as may appear from annexure SAA-6. These are copies of judicial records indicating the appearance and attendance in a Court not only of Rakesh but also of other persons, but the police were still trying to convince us that the accused persons were absconding and they were making serious efforts to trace them out.

The other fact which was brought into the notice of this Court regarding the creation of false records and submissions of a tainted final report was the fact that one Vijay Singh Baghel , who was named in the F.I.R. was shown admitted in Ganga Devi Hospital, Agra from 19.12.2009 to 23.12.2009, the date of occurrence falling on 22.12.2009 and, thus, it was pointed out by the Investigating Officer that he was not present at the scene of occurrence as the evidence of his alibi was concrete.

Our attention has been drawn to some of the documents on the basis of which the above noted Vijay Singh Baghel was not sentup for trial and those are available to us from pages 53 to 57. We are simply astonished to note that the date of admission of Vijay Singh Baghel in Ganga Devi Hospital, Agra was shown as 19.12.2009 and his date of discharge was 23.12.2009 as appears from annexure at page 53 of the present petition, but the other details regarding the treatment administered to the above named accused which appears at page 54 indicates as if his date of admission were 19.12.2010, i.e., one year after the date of occurrence, while his date of discharge was surprisingly shown to be 23.12.2009. Likewise the progress report regarding the treatment of Vijay Singh Baghel which was available at page 57 of the present petition records him being admitted from 19.12.2009 to 22.12.2009 but one of the dates which is second in the series of dates, was 20.12.2010. Human behaviour tells us that in putting a date we may put a wrong date but never a wrong year of any particular date. The above documents clearly indicate that the documents were fabricated probably for protecting an accused from being put to justice and that was the reason that different years were appearing with different dates. We do not find any reason to believe that the police officers specially the higher ups could not be so naive in overlooking these glaring defects in the documents upon which Vijay Singh Baghel was not sent up.

The next glaring thing being done under certain influence by the police appears in the case of Naval Singh and Vinod two accused, who were exonerated from the case. The reason we find not only wrong but gratuitous too to exonerate the aforesaid Naval Singh who had been cited as injured in the cross-F.I.R. registered by Bhuri Singh as Case Crime No. 1081 of 2009. In that particular F.I.R. the two persons, i.e., Naval Singh and Bhuri Singh had been described as persons, who had received injuries at the hands of the petitioner and his companions, who were the office bearers and Sewadars of the Sabha. The most curious aspect of that particular incident is that the two persons, who were accused in the other F.I.R. were filing affidavits before the higher officers of the police, like, the Superintendent of Police, Agra that they were not present at the scene of occurrence and on that basis an order exonerating Naval Singh and Vijay Bahadur was passed who was reported absconding by the police . We could not believe that on such a piece of evidence of alibi of an accused, the police could not be sending up the accused for trial but for shielding an accused from being put to justice. In our view even if there is no allegation, no reasonable person could have accepted that an accused claiming himself injured in the same incident,could be reported not present at the spot and having not participated in the incident.

These instances were not the end; yet another instance was of exonerating another accused Raghuvir S/o-Bhagwan Das named in the F.I.R. He was not sent up for trial and what did the Investigating Officer do was to file an affidavit before this Court on 4.7.2011 stating that the said Raghuvir was not the person who was the resident of village-Sikanderpur, the village where the occurrence had taken place rather he was still searching for him and it was someone, like, Raghuvir S/o Ram Das. But the most curious aspect of the case was that the said Raghuvir Singh S/o- Bhgawan Das was found by the Investigating Officer, he was questioned by him and his statement was also recorded in the case dairy. How, still, he was stating on affidavit that there was no such man of that name in village Sikanderpur.

We have several instances in spite of 62 years of our Constitution and 65 years of attaining independence that public functionaries while holding the public offices in trust of the public have regularly been influenced or pressurized or even intimidated if they had not yielded to the pressure of persons holding power in the government. Political bigwigs are known even to influence the independence and conscience of a functionary, like, a public prosecutor to withdraw from prosecution if any political interest of a particular political party, who had been in power, was served. We still have a lot of informations in our domain in which high ranking executive functionaries, like, Minister of the Union was influencing decisions at different strata of governance. When such functionaries, like, a Principal Secretary of a department or a public prosecutor, who is responsible only to the Court on account of being Officer of the Court and is further responsible to his statutory duties which have to be performed by him as per settled principles of law and also as per his conscience are getting influenced or intimidated to yield to such political pressures, we could not have wondered that an ordinary entity and soul, like, a Sub Inspector or a Inspector of police could not be buckling down under the immense pressure of his political masters. The above statement may appear something unusual coming from a Court but considering the prevailing situation in our society and affairs of the Government, we could take notice of these circumstances. It is true that the police stands for protecting the life and properties of the citizens of the State and it is also true that they are the elementary organization to provide equal protection of the laws by placing true and correct facts by appropriately investigating a case so that justice is imparted equally to the subjects of the State but what we have noticed earlier in the present judgment, leave nothing to doubt that the five Investigating Officers including the one from the C.B.C.I.D. were all unmindful of their statutory functions which were always in public interest and were further undermining the interest and safety of a minor religious denomination, who were prosecuting their ideology and belief so seriously guaranteed by the Constitution. The facts of the present case touching upon the actions or inactions of the police officers clearly present the manner in which police appears discriminating against two sets of citizens not for any lawful or real reasons, but only for pleasing their political masters, so much so, that not only the Investigating Officers but also the Superintendent of Police, Agra was not hesitating in asking for fictitious records for exonerating accused persons. It was their dispassionate duty not only to investigate the case but to ensure that the Courts of justice finally used them in putting the perpetrators of the offence to trial. But, what we find is that they were systematically acting against the interest of justice and were thus, acting against the constitutional guarantees at the instructions, probably, of their political masters by not appropriately investigating the case.

Police have enormous powers to investigate a cognizable offence,so much so, that except in rare cases, no court should interfere with its powers. We often find that this statutory power flowing from the legislated laws is misused or abused by them. This Court reminds the police that when a statute vests powers, it also creates duties to use that power impartially, honestly and fairly. Powers devoid of duty is arbitrary and tyranny and whenever this Court confronts that situation it has to step in under its constitutional obligations to enforce the due process of law by ensuring equal protection of the laws to the suffering citizen. In this case it appears necessary to be done.

We, thus, find that the State police has not been honest and fair in investigating the case appropriately and rather what we find is that there was not even a slim chance of a fair and honest investigation of the case by them.

In addition to the above what we further want to note is that we find from the order dated 3.8.2010 of this Court that the Investigating Officer of the case was present in Court and he was informing the Court that the main accused had been arrested by him and had assured that the other persons shall soon be arrested whose complicity was found in the incident including those, who were named in the F.I.R. The Court was directing the listing of the case on 25.8.2010 and was further directing the Investigating Officer present in the Court not to conclude the investigation till the next date. We find from order dated 25.8.2010 that in spite of the direction not to conclude the investigation having been issued to the Investigating Officer on 3.8.2010, charge sheet was submitted and again this Court was directing the petitioner to file an affidavit and was restraining the Investigating Officer not to submit the charge sheet. Sri R.K. Singh (Circle Officer) one of the Investigating Officers was appearing before the Court on 24.11.2010 and was producing the case dairy of the case before the Court and the Court was recording its dissatisfaction over the investigation of the case and was further recording the assurance of the Investigating Officer to proceed in the matter expeditiously and fairly. But, what we find is that in spite of the assurance given to this Court by Sri R.K. Singh on 24.11.2010, the Court was recording its dissatisfaction on the manner of investigation by recording that the same was not proper. This view of the Court was recorded on 15.12.2010. The Court in its order dated 23.10.2011 was recording that the Investigating Officer was not taking action against the accused persons, who were absconding and even no action had been taken against persons, who had been arrested in relation to the offence. These are some of the instances we have brought on record only to point out that in spite of being aware of the situation that this petition was in full cognizance of this Court and the Court had proceeded to pass above orders so as to ensuring fair investigation and thus, the fair protection of law, the Investigating Officers, one after the other, were indulging with impunity not only in disobedience to the orders of the Court, but appear also holding out false undertakings. While we were perusing different orders we failed to comprehend as to how such Officers, who were flaunting the orders of the Court with such impunity have been allowed to continue in service by the State which claims existing for all administrating fairness including imparting equal justice to its citizens and equal protection of the laws.

On consideration of the undisputed facts what emerged was that the Police Officers of the State of U.P. on account of being influenced by some political bigwigs or may be the government of those days, were simply unmindful of their statutory duties of investigating the case honestly and appropriately and that situation was prevailing even after the investigation has been transferred to the C.B.C.I.D.

Investigation, as we have noted, is the very part of imparting justice fairly and equally, besides being one of the modes of granting equal protection of the law to the citizens of the State. The police are the protectors of the citizens and when it is found that they simply discriminate between groups of citizens, then they could be said not proving themselves up to the expectation of the statutes and laws. If circumstances appeared as they do before us on unfair and partisan investigation so as to suppressing a murder or commission of offences for which the F.I.R. was registered, then we find no option than to direct the investigation to be carried out by the Central Bureau of Investigation. We, accordingly, direct the State Government through its Secretary (Home), respondent no.1 to immediately transfer the investigation of Cases Crime No. 1081 and 1081 A both of year 2009 registered at New Agra police station, district Agra to the Central Bureau of Investigation for investigation.

While issuing the above writ, we direct the Central Bureau of Investigation to register its case and to investigate not only the complicity of the accused persons, who are named in the F.I.R. or whose complicity may be found during investigation, but also the conduct of those police officers and other persons who may be found manipulating the records for creating pleas of alibi. The C.B.I. is expected not to spare any police officer howsoever highly placed he may be, could be found having connived with the accused persons so as to minimizing the gravity of the offence. The C.B.I. shall investigate the matter and file a status report before a Division Bench of this Court to be nominated by the Hon'ble the Chief Justice within six months from today. Registry to take action accordingly.

The writ petition bearing No. 7818 of 2010 stands allowed in terms of the directions as indicated above Relief no.1 was withdrawn at the very inception of the hearing of the petition by the learned counsel for the petitioner and we do not pass any order in respect of that relief.

We find that the petitioner in Crl. Misc. Writ Petition No. 1697 of 2010 did not proceed with the petition and did not appear ever before us and, as such, that writ petition stands dismissed/disposed of in terms of the directions recorded hereinabove.

Under the facts and circumstances of the case, we leave the parties at their own costs.

This petition shall remain pending for reviewing the investigation likely to be carried out by the C.B.I.

Dated 6.11.2012

Shiraz.