Sonu Verma vs State Of U.P. & Others
2013 Latest Caselaw 5273 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 
 
Criminal  Misc. Writ Petition  No. 14250 of 2012
 
Sonu Verma  Vs. State of U.P. and others 
 
Connected With
 
Criminal  Misc. Writ Petition  No. 712  of 2012
 
Sonu Verma  Vs. The State of U.P. and others 
 

 
Hon'ble Ravindra Singh, J.

Hon'ble Anil Kumar Agarwal, J.

(Delivered by Hon. Ravindra Singh, J.)

Heard Sri Dilip Kumar, Sri S.P.S. Chauhan, Smt. Meenakshi Chauhan, Sri Niklank Jain, counsel for the petitioner of both the writ petitions, Sri Viresh Misra, Senior Advocate assisted by Sri Sudhanshu Srivastava, counsel for Sri Anurodh Singh.

The Criminal Misc. Writ Petition No. 14250 of 2012 has been moved by the petitioner Sonu Verma with the following prayers :

(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned undated letter/order issued by the respondent no. 2 to the respondent no. 3 (Annexure no. 5 to the writ petition);

(ii) to issue any such other and further writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case; and

(iii) to award the cost of the petition in favour of the petitioner.

The Criminal Misc. Writ Petition No. 712 of 2012 has been moved by the petitioner Sonu Verma with the following prayers :

(i) to issue a writ order or direction in the nature of mandamus commanding and directing the respondent no. 1 to 6 to take appropriate action/arrest to the respondent no. 7 to 11 in Case Crime No. 145 of 2011, under sections 147, 148, 149, 302, 307, 404 I.P.C. and 7 Criminal Law Amendment Act, Police Station Jaithara, District Etah.

(ii) to issue a writ order or direction in the nature of mandamus commanding/ directing the respondent no. 1 to investigate the Case Crime No.145 of 2011, under section 147, 148, 149, 302, 307, 404 I.P.C. and 7 Criminal Law Amendment Act, Police Station Jaithara, District Etah through any other superior investigating agency.

(iii) to issue any other writ order or direction in which this Hon'ble Court which may deem fit and proper under the circumstances of the case.

The above mentioned both the writ petitions are arising out of case crime No. 145 of 2011 under sections 147, 148, 149, 302, 307, 404 I.P.C. and 7 Criminal Law Amendment Act, in both the writ petitions the petitioner is Sonu Verma who has lodged the FIR of Case Crime No. 145 of 2011 on 10.6.2011 at 1.30 P.M. at Police Station Jaithra, district Etah, both the writ petitions have been connected and are being disposed of by a common judgement.

The fact, in brief, of this case are that FIR has been lodged by petitioner Sonu Verma on 10.6.2011 at 1.30 A.M. at police station Jaithra, district Etah in respect of the incident allegedly occurred on 10.6.2011 at about 11.45 A.M., in the said FIR, 14 persons are named as accused, 8 to 10 were unknown miscreants but named accused are Dinesh, Arvind, Pawan, Yogesh, Manoj, Neta, 3 sons of Sugarh Singh, Kripal Singh, Jairam, Udai Bhan and Tej Bhan, Santosh, Manoj and Ram Chandra, it is alleged in the FIR that on 10.6.2011 the deceased Vijay Singh Verma (father of the first informant), the deceased Abhinav Verma aged about 14 years (brother of the first informant), Smt. Poonam Devi (mother of the first informant) and a private gunner the deceased Santosh Kumar were cleaning their shop, all of a sudden, at about 11.45 A.M. the above mentioned accused persons armed with fire arms came there on motor cycles, in which accused Dinesh was armed with Semi automatic rifle, accused Arvind was armed with country made rifle, accused Pawan was armed with country made gun, accused Yogesh was armed with 315 bore rifle and other accused persons were armed with country made pistols, they entered into the shop of the deceased Vijai Singh Verma (petitioner's father) and hurled abuses by saying that he used to lodge false cases, today, all shall be finished. The accused persons discharged the shots indiscriminately, consequently, the deceased Vijay Singh Verma, deceased Abhinav Verma, deceased Santosh Kumar sustained injuries, who succumbed to their injuries on spot, after death of the deceased Vijay Singh Verma & Abhinav Verma, the injuries were caused on their persons to damage their dead bodies, the first informant and his mother shouted for 'rescue', the firing was made towards them also, fortunately they did not receive any injury but they fled away to save their lives. For creating the terror in the town, the accused persons hurled bombs, consequently panic was created in the town, the alleged incident was witnessed by Jitendra, Dinesh, Raj Kumar and residents of town Jaithra, due to fear and terror, the shop keepers closed their shops. The accused persons after committing the murders discharged the shot, indiscriminately in the air also, the accused persons taken away 315 bore rifle of deceased Santosh Kumar, the cash and jewellery from the shop of the deceased. The shots discharged by accused persons hit the nearby shops also. About 5 or 6 months prior to the alleged incident, the accused persons had discharged the shots after entering into the shop of the father of the informant in which one of the miscreants had also sustained the gunshot injuries, on account of this enmity, the present offence has been committed by accused persons. The dead bodies of the 3 persons were lying on the spot. Its investigation was taken in his hands by the officer incharge of P.S. Jaithra, District Etah.

In respect of the same incident in with a different version, the brother of the deceased Santosh Kumar namely 'Anurodh Singh' moved an application under section 156(3) Cr.P.C. alleging therein that his brother the deceased Santosh Kumar, (Ex Army man) was engaged in security of the deceased Vijay Singh Verma through security agency of Farrukhabad, for the last one month , he was having his licenced 315 bore rifle. There was Bhandara at the house of his uncle Deepak @ Dev Chand on 24.5.2011, to attend the same, the deceased Santosh had also come to his village where two persons namely Arvind and Jairam came, they asked the deceased Santosh that they have been sent by the Dairy Minister Sri Awadh Pal Singh to communicate you, that being Yadav withdraw himself from the security of Vijay Singh because Vijay Singh had committed murder of a Yadav, on any day, Vijay Singh may be attacked. It was also told by Arvind that in lieu of withdrawing from the security, he shall be provided service, in dairy department by the Hon'ble Minister, but in its reply deceased Santosh stated that he was serving there through security agency, in case the agency sends other person in his place, he would be relieved. When Jairam and Arvind were going back, Anurodh Singh, in their company came to the place where their a Safari Vehicle was parked, he saw Ranjeet Singh son of Sri Awadh Pal Singh, who was sitting in the vehicle along with two or three persons. Anurodh Singh paid him respect by saying 'Ram-Ram'. The deceased Santosh again joined his duty of the deceased Vijai Singh Verma. On 5.6.2011 at about 8.00 A.M., Arvind Singh and Jairam again came to the village of Anurodh Singh, they stayed at the house of Nepal Singh and Ramveer for considerable period and had the conversations with Nepal Singh, Ram Teerath and Surjeet, which created the suspicion in the mind of Anurodh Singh and his uncle Dev Chand then they conveyed the message of danger to deceased Santosh and to search another service after having a talk with Minister Awadh Pal Singh. Thereafter Anurodh Singh and deceased Santosh came to know that on 8.6.2011 Sri Awadh Pal Singh may meet in Tahsil, then Anurodh Singh and his brother Santosh reached to the Tahsil Aliganj at about 11.00 A.M., they saw Sri Awadh Pal Singh, Chandra Pratap Singh, Amar Pal Singh, Ranjeet Singh, Arvind and Jairam who were chatting by standing under the tree of Peepal, Anurodh Singh, his uncle and brother Santosh Kumar also standing on opposite side, under the tree of Peepal. They heard the conversation of Sri Awadh Pal Singh who was saying that 'at present S.S.P., C.O. Aliganj and S.O. Jaithra were of his persons, in case the revenge is taken, do hurry, at any of time S.S.P. may be transferred, at this movement, a complete support may be provided by him. Immediately thereafter, Anurodh Singh, his uncle Deepak, deceased Santosh Kumar met with Sri Awadh Pal Singh by disclosing their identity & the purpose of their meeting with him, then Sri Awadh Pal Singh stated that 'you persons are Yadav by caste that's why he was having their care, he asked the deceased Santosh Kumar to leave the service of Sunar (deceased Vijai Singh Verma) because there was a danger.' In its reply the deceased Santosh Kumar stated that all right, after taking his salary he shall leave the service, at that time some other persons were also present there who heard their conversation.

On 11.6.2011, the deceased Santosh Kumar was to attend the proceedings of the Court at Aliganj, but he was not able to attend the court, he called his brother Anurodh Singh at Jaithra for providing him the fees of his lawyer also. On 10.6.2011 at about 10 A.M. Anurodh Singh and his uncle Deepak went to Jaithra, they met the deceased Santosh who stated that after opening the shop of Verma Ji, he shall provide the money by bringing the same from the shop, then Anurodh Singh, his uncle Deepak and the deceased Santosh Kumar came to the shop of Sri Vijay Verma. After opening the shop Vijay Verma, Abhinav Verma, Smt. Poonam Devi and Santosh Kumar became busy in cleaning the shop, at about 11.45 A.M. accused persons namely Arvind, Jairam, Nepal, Ram Teerath along with 15-20 unknown persons armed with fire arms came there on motorcycles, they entered into the shop of Vijay Verma and committed the murder of Vijay Singh Verma, Abhinav Verma and Santosh Kumar, thereafter they taken away the rifle of deceased Santosh Kumar. The accused persons hurled the bombs also. The accused persons discharged the shots towards Sonu Verma, Poonam Devi, Devendra and Anurodh Singh but fortunately, they did not sustain any injury. After commission of the alleged incident, the police came at the place of incident, at that time Sonu and Pratap Singh were shouting by saying that the murder has been committed at the instance of the Minister Awadh Pal Singh, before lodging the FIR. Anurodh Singh apprised the petitioner's Sonu about the incident dated 24.5.2011 and 5.6.2011. The report of this incident was lodged at the police station by the petitioner Sonu Verma, at that time Anurodh Singh and Deepak were weeping near the dead body of the deceased Santosh Kumar. At the time of the post mortem examination of the dead bodies it was stated by the petitioner Sonu that the story narrated by Anurodh Singh was also mentioned in the FIR. The FIR version was printed in newspapers in which the names of Awadh Pal Singh, Ranjeet, Surjeet Singh, Nepal and Ram Teerath as disclosed by Anurodh Singh to the petitioner Sonu, were not mentioned as accused, then Anurodh Singh came to Jaithra and obtained the FIR from the petitioner, in which the names of the above mentioned persons as accuse were not found, even the presence of Anurodh Singh and his uncle was not shown at the place of occurrence, thereafter Anurodh Singh went to the police station to lodge the FIR having complete version but he was not listened by the police, then he gave an application to S.S.P. Etah for including the names of Awadh Pal Singh, Ranjeet Singh, Surjeet Singh, Nepal and Ram Teerath as accused in the above mentioned case, but no action was taken by S.S.P. Etah also, thereafter, he moved an application dated 27.6.2011 under section 156 (3) Cr.P.C. in the court of learned C.J.M. Etah, the same was allowed by C.J.M. Etah on 5.8.2011 by directing the Officer Incharge of police station, Jaithra to register the case and investigate the same, but the compliance of the order dated 5.8.2011 was not made by the Officer Incharge of P.S. Jaithra and no case was registered, till today.

Being aggrieved from the investigation of the present case Smt. Santosh wife of the accused Manoj Kumar moved a Criminal Misc. writ petition No. 18740 of 2011 before this court with a prayer that a suitable direction may be issued to the respondents to transfer the investigation of case crime No. 145 of 2011 under section 396 IPC and section 7 of Criminal Law Amendment Act, P.S. Jaithra, District Etah to either C.B.I. or C.B.C.I.D., the same was dismissed by another bench of this court on 27.9.2011 after considering the preposition of law laid down in case of C.B.I. and another Vs. Rajesh Gandhi and another 1997 Cr.L.J. 63 (Vol-8) in which it has been held that no one can insist that an offence be investigated by a particular agency.

The petitioner Sonu Verma has filed the instant two writ petitions having 'self contradictory prayers', the Criminal Misc. Writ Petition No. 712 of 2012 is having the prayer that suitable direction may be issued for taking the appropriate action/ arrest against respondents No. 7 to 11 and issue a direction to investigate this case by other superior investigating agency, but during its pendency, the State Government has taken the decision to transfer the investigation of this case to C.B.C.I.D. Kanpur Sector, Kanpur, the relief sought in writ petition, to transfer the investigation, has been granted by the State Government itself, its communication has been made to Director General of C.B.C.I.D., U.P. Lucknow by Joint Secretary of the Home Department, but the petitioner challenged this order passed by the State Government by which his relief sought in writ petition No. 712 of 2012 has been granted by transferring the investigation from Civil Police to C.B.C.I.D., Kanpur sector, Kanpur by way of filing the writ petition No. 14250 of 2012.

It is submitted by the learned counsel for the petitioner that the petitioner is the first informant of this case. He lodged the FIR in case crime no. 145 of 2011 under section 396 IPC and section 7 Criminal Law Amendment Act in which charge sheet has been submitted against 15 persons namely Arvind, Manoj S/o Sher Singh (both absconding) Dinesh, Pawan, Manoj son of Kirpal Singh, Kirpal, Jairam, Yogesh, Kamlesh, Servesh, Durgesh, Neta, Tejbhan, Ram Chand and Santosh for the offence punishable under sections 147, 148, 149, 307, 302 and 404 IPC and section 7 Criminal Law Amendment Act by keeping the investigation pending against Uday Bhan and others. On the basis of the charge sheet submitted by the I.O. the learned magistrate concerned has taken cognizance, thereafter, the case has been committed to the court of sessions where the charge has been framed against the accused persons, who either arrested or appeared before the court concerned. In S.T. No. 562 of 2011, the charge under sections 147,148,149,307,302,404 I.P.C. and 7 Criminal Law Amendment Act has been framed and in connected S.T. No. 563, 564, 565 of 2011 the charge under section 25/27 of Arms Act has also been framed against the accused persons Manoj son of Kirpal Singh, Pawan and Neta. At this stage, the transferring of the investigation of above mentioned case to C.B.C.I.D. is not proper on the following grounds :

(i) It has been done under the political pressure to affect the proceedings of the trial on the letter dated 14.5.2012 sent by Sri Rameshwar Singh Yadav, M.L.A. from Samaj wadi Party and the application moved by Sri Anurodh Singh Yadav son of Hakim Singh Yadav r/o Navsara, P.S. Kamalganj, district Farrukhabad ,Sri Anurodh Singh Yadav, is also local leader of Samajwadi party, which is ruling party in the State of U.P.

(ii) The letter sent by Madan Kishore Srivastava, Joint Secretary, U.P. Government Lucknow to Director General of C.B.C.I.D. U.P. Lucknow shows that the State Government has taken the decision to transfer the investigation of case crime no. 145 of 2011 under sections 147, 148, 149, 307, 302 and 404 IPC and section 7 Criminal Law Amendment Act P.S. Jaithra, district Etah to C.B.C.I.D. Kanpur Sector from Civil Police to C.B.C.I.D. Kanpur Sector, is having no rhyme or reason.

(iii) The transfer of investigation shall not serve any fruitful purpose because after completing the investigation against 15 persons charge sheet has been submitted on which charges have been framed by the trial court.

(iv) No case was registered in pursuance of the order dated 5.8.2011 passed by the court concerned in exercise of the power conferred under section 156(3) Cr.P.C. on the application moved by Sri Anurodh Singh Yadav, because the version of the incident taken therein was merged into the investigation conducted by the local police, therefore, there is no need to register a separate case and separate investigation.

(v) The local police was not doing the fair investigation, because the local police was under the influence of Awadh Pal Singh, then Minister of U.P. Government and without doing fair investigation, even the accused persons namely Arvind, Manoj son of Sher Singh, Ranu, Devendra & Atar Singh have not been arrested in which accused Arvind & Manoj were named in FIR, according to the statements of witnesses, the accused Ranu, Devendra & Atar Singh also they played an active role in commission of the offence that is why the petitioner himself moved a criminal misc. writ petition no. 712 of 2012 which has been reported on 11.1.2012 and presented before the court on 16.1.2012 with a prayer to issue direction in the nature of mandamus commanding and directing the State Government and the police authority to take proper action/arrest against Arvind, Manoj son of Sher Singh, Ranu, Devendra and Atar Singh and to transfer the investigation to other superior investigating agency,

(vi) The order transferring the investigation has been passed at a very belated stage, when the local police has submitted the charge sheet against 15 persons on which charge has been framed by the trial court, it has been passed without verifying the fact that in the present case charges have been framed by the trial court.

(vii) The order transferring the investigation has been passed without obtaining the permission of the trial court.

(viii) The State Government in an arbitrary manner has taken the decision transferring the investigation to C.B.C.I.D. Kanpur Sector, Kanpur which is illegal, the same may be quashed.

In reply of the above contention, it is submitted by learned A.G.A. for the State of U.P. and Sri Viresh Mishra, Senior Advocate, counsel for Anurodh Singh that;

(I)the petitioner is first informant of the present case, both petitions have been filed by him- the main prayers sought there in are self contradictory, in the first writ petition bearing the number Criminal Writ Petition no. 712 of 2012, he himself sought the relief that the investigation of the present case may be transferred to other superior investigating agency and to take the action against all accused persons.

(II) The petitioner clearly stated in paragraph-8 of the writ petition that during course of the investigation an application under section 156(3) Cr.P.C. was also filed by Anurodh Singh, the brother of the deceased Santosh Kumar, against ten persons including then sitting Minister Sri Awadh Pal Singh Yadav & his son Ranjeet Singh. In its paragraph-9, it has been clearly mentioned that on that application learned C.J.M. Etah passed the order dated 5.8.2011 to register and investigate the case against accused persons named therein, the specific allegation has been made that due to political influence the investigating officer has not arrested the main accused who are named in FIR, they are moving freely and accused whose names have been disclosed by the witnesses, are extending the threats to the petitioner and his family members.

(III) During pendency of this writ petition No. 712 of 2013 the State Government has taken the decision to transfer the investigation of this case to C.B.C.I.D. Kanpur Sector, Kanpur it was the relief sought by the petitioner in Criminal Misc. Writ Petition No. 712 of 2012 the same has been granted by the State Government, even then the same petitioner filed the writ petition No. 14250 of 2012 challenging such order passed by the State Government. Both the writ petitions are having self contradictory prayers. It is a unique case in which the petitioner himself has sought relief that the investigation of this case may be transferred from local police to any superior investigating agency, on passing such order by the State Government transferring the investigation of this case to C.B.C.I.D. (a superior Investigating agency), the petitioner has challenged the same also by filing another writ petition.

(IV) In the present case the petitioner has lodged the FIR of case in which three persons have been shot dead. The deceased Vijai Singh Verma & Abhinav Verma (who were father and brother of the petitioner respectively) the deceased Santosh Kumar (the real brother of Anurodh Singh) The allegation has been made by Anurodh Singh that due to influence of Sri Awadh Pal Singh, the then Minister of State of U.P., proper FIR was not registered. Sri Anurodh Singh moved an application under section 156(3) Cr.P.C. in which Sri Awadh Pal Singh, the then State Minister of Government of U.P., his son & two brothers were made accused. The application u/s 156 (3) Cr.P.C. was allowed on 5.8.2011 by the learned C.J.M. Etah, directing the Officer Incharge of police station to register the case and investigate the same, this order has neither been set aside nor stayed or modified by any higher court, it has become final, but the officer in charge of the P.S. Jaithra District Etah disobeyed order dated 5.8.2011 and did not register the FIR, in its compliance.

(V) On petitioner's FIR, a part of investigation has been completed, the charge sheet dated 19.9.2011 has been submitted against 15 accused persons but the investigation against some persons was kept pending, without doing fair and impartial investigation, the investigation of the above mentioned case was done under the influence and dictate of Sri Awadh Pal Singh Yadav, the then sitting Minister of State of U.P. It is a case in which in respect of the same incident two versions came forward. In respect of the version given by the petitioner, the FIR was registered but in respect of another version given by Sri Anurodh Singh Yadav, no FIR has been registered whereas, learned C.J.M. Etah directed the Officer Incharge of Police Station, Jaithra to register the case and investigate the same, in exercise of the power conferred under section 156(3) Cr.P.C., it was not registered only because Sri Awadh Pal Singh, his son and two brothers were also made the accused therein, the Officer Incharge of police station Jaithra has disobeyed the order of learned C.J.M. Etah by not registering the case. It is very serious matter in which the officer in charge of P.S. Jaithra has disobeyed the Court's order, in order to show his supremacy, and to give the message that Hon'ble Minister was above all.

(VI) According to the charge sheet dated 19.9.2011 also, the investigation of case crime No. 145 of 2011 P.S. Jaithra, District Etah has not been completed, it is pending against the accused Uday Bhan and others, the part of the investigation has been completed by which the charge sheet has been submitted against 15 persons whose case is pending before the trial court where no evidence has been adduced. In respect of the same incident the 'another version' has not been registered by disobeying the order dated 5.8.2011 passed by learned C.J.M. Etah and it has not been made the part of above investigation, in such circumstances where proper investigation has not been done, if the trial proceeded, the miscarriage of justice may be done. This case may be example of the interference in the investigation and high handedness of the Minister of the State Government. The investigation done by the local police may not be fair and impartial, it has been done under the political influence, the part of the investigation is still pending. The State Government is under obligation to ensure the fair investigation, the State Government has not committed any error in transferring the investigation to C.B.C.I.D. Kanpur Sector, Kanpur.

(VII) The State Government has passed the order transferring the investigation to CBCID on the letter sent by Sri Rameshwar Singh Yadav, MLA and the application moved by Anurodh Singh Yadav whose brother has been killed in the said incident, his FIR was not registered by the officer-in- charge of the police station Jaithra, by disobeying the order of the learned C.J.M.Etah. It is a case, in which three persons have been killed, in which the deceased Santosh Kumar was real brother of Anurodh Singh. The petitioner lodged the FIR in which some facts and name of some persons as accused were not mentioned, then Anurodh Singh moved the application under section 156(3) Cr.P.C., the same was allowed by the learned C.J.M.Etah, directing the officer in charge of the P.S. Jaithra to register the case and investigate the same, even then his FIR was not registered by the officer incharge of P.S. Jaithra, District Etah, he is also aggrieved party, he was having the option to approach the State Government through a public representative, for redressal of his grievance, he adopted the same, on which the State Government transferred the investigation to C.B.C.I.D.

(VIII) The letter sent by Sri Madan Kishore Srivastava, Joint Secretary to the Director CBCID Lucknow clearly reveals that State Government has taken the decision transferring the investigation from local police to CBCID Kanpur Sector Kanpur after considering the facts and circumstances of the case. There is no illegality in transferring the investigation. The writ petitioner has not come with clean hands, the Criminal Misc. Writ Petition No. 14250 of 2012 has been filed with ulterior motive or under pressure of accused persons who were not named in his FIR but named in the application under section 156(3) Cr.P.C., in both writ petitions, the petitioner himself is deponent whose signatures are not same/ similar in nature in both writ petitions. The writ petition No. 14250 of 2012 is devoid of merit, the same may be dismissed. The Crl. Misc. Writ Petition No. 712 of 2012 filed by the petitioner has become infrauctuous because the relief sought therein has been granted by the State Government itself by transferring the investigation of the above mentioned case from local police to CBCID who is superior investigation agency.

After considering the submissions made by counsel for the petitioner, learned A.G.A., counsel for Sri Anurodh Singh, and perusing the record, it appears that it is a case in which the FIR has been lodged by the petitioner at P.S. Jaithra, District Etah in case crime No. 145 of 2011, under section 396 IPC and section 7 Criminal Law Amendment Act on 10.6.2011 at 1.30 P.M. in respect of the incident allegedly occurred on 10.6.2011 at 11.45 A.M. According to the FIR version, in the said incident 'three persons namely Vijay Singh Verma, Abhinav Verma aged about 14 years and Santosh Kumar' were shot dead by the accused persons in which some were named in FIR and some were unknown. The investigation was taken in his hand by the officer in charge of P.S.Jaithra. but during investigation the case was converted under sections 147, 148, 149, 307, 302, 404, 506 IPC and section 7 of Criminal Law Amendment Act and the charge sheet was submitted against 15 persons out of which two persons namely ''Arvind and Manoj' son of Sher Singh were absconding, but a part of investigation was kept pending against the accused Uday Bhan and others, on the charge sheet, the learned Magistrate concerned took the cognizance and thereafter the case was committed to the court of sessions. The learned Sessions Judge, Etah framed the charge under sections 147,148,149,397,302 and 404 IPC and 7 Criminal Law Amendment Act on 17.3.2012 in S.T. No. 562 of 2011 and the charge under section 25/27 Arms Act framed against accused Manoj, Pawan and Neta Yadav in connected S.T. No. 563, 564, 565 of 2011.

After petitioner's FIR, Anurodh Singh, the real brother of the deceased Santosh Kumar, approached the concerned police authorities for lodging his FIR with a different version by making allegations against Sri Awadh Pal Singh, then Minister of the State of U.P., his son Ranjeet Singh, his brothers Chandra Pratap Singh, Amar Pal Singh and others, but his FIR was not registered, thereafter, he moved an application under section 156(3) Cr.P.C. in the court of learned C.J.M. Etah, the same was allowed on 5.8.2011 and the Officer-in-charge of P.S. Jaithra, district Etah was directed to register the case and investigate the same. The order dated 5.8.2011 has not been stayed, set aside or modified by any higher court, it has become final but the Officer-in-charge of the P.S. Jaithra, district Etah, has not registered the FIR in compliance of the above order dated 5.8.2011, even the allegation made in the application under section 156(3) CrP.C. have not been investigated by the investigating officer along with the FIR of the petitioner. The investigating officer submitted the charge sheet dated 19.9.2011 against 15 persons in case crime no. 145 of 2011, P.S. Jaithra district Etah by keeping the investigation pending against the accused Uday Bhan and others. The charge sheet dated 19.9.2011 shows that Anurodh Singh is not the witness of the above mentioned charge sheet. It is a very serious matter in which the order dated 5.8.2011 passed by the learned C.J.M. Etah has not been complied with by the officer-in- charge of P.S. Jaithra, it is shocking and alarming, it infers that the officer- in-charge of the P.S. Jaithra was either glove in hand with Sri Awadh Pal Singh Yadav or under his pressure, it also infers that the S.S.P. Etah and other higher police officers were also in the same position, that's why they did not take any step for ensuring the compliance of the order dated 5.8.2011 passed by the C.J.M. Etah. In respect of the same incident two versions came forward in which one version was registered at the police station Jaithra and the second version was ordered to be registered and investigated but deliberately it was not registered by the officer-in-charge of the police station Jaithra. The law requires to ensure the compliance of the order dated 5.8.2011 passed by the learned C.J.M. Etah. The petitioner himself has moved a criminal misc. writ petition no. 712 of 2012 making allegations against the local police and the then Minister Sri Awadh Pal Singh Yadav, with a prayer that a suitable direction in the nature of mandamus be issued for taking action against the accused Arvind, Manoj son of Sher Singh, Atar Singh and to issue a direction in the nature of mandamus commanding respondent no. 1 State of U.P. through its Secretary, Department Home, U.P. Government Lucknow for doing investigation through any other superior investigating agency, but this relief to transfer the investigation to other superior investigating agency has been granted by the state of U.P. itself, it is surprising that against such order passed by the State Government the second writ petition has been filed by the petitioner. In the present case the prayer sought by the petitioner, in criminal misc. writ petition no. 712 of 2012 which has been granted by the State Government itself by transferring the investigation of this case from the local police to C.B.C.I.D. Kanpur Sector Kanpur which is a superior investigating agency but the same petitioner has challenged such order also by way of filing the criminal misc. writ petition no. 14250 of 2012, it shows that the petitioner has not come with clean hands, in normal circumstances, such petition may not be filed against the relief granted which was sought by the petitioner himself in his earlier writ petition filed, it may be filed by the petitioner under undue pressure of some person or it may be filed by some other person in the name of petitioner because the signatures of the petitioner in both the writ petitions are not same, but we are not entering into this controversy.

The State Government has considered all the facts and circumstances of the case. Neither Sri Rameshwar Singh Yadav, MLA nor Sri Anurodh Singh Yadav is accused in the present case. Sri Rameshwar Singh Yadav, MLA is having no concern with this case and Sri Anurodh Singh Yadav is aggrieved person whose brother Santosh Kumar has also been killed in the said incident, his FIR has not been registered by the Officer- In-charge of P.S. Jaithra, in spite of such order dated 5.8.2011 passed by learned C.J.M. Etah. In normal circumstances, no Officer- In-charge dares to disobey the order of the court, it may be disobeyed in abnormal circumstances. In the present case, the abnormal circumstance may be the accusation of the sitting Minister of the State of U.P. and his family members. If the Officer-In-charge of police station, Jaithra did not register the FIR in compliance of the order dated 5.8.2011, it was the duty of other superior officer of District Etah including the S.S.P. to take the steps for ensuring the compliance of the order dated 5.8.2011 passed by C.J.M. Etah, but no step has been taken by any superior officer of the police of District Etah. In such circumstances, the fair investigation of the above mentioned case by the local police was not expected, such allegation has been made by the petitioner himself in the writ petition No. 712 of 2011. In the present case, on FIR of the petitioner, local police submitted the charge sheet against 15 persons and the investigation was kept pending against Uday Bhan and others. The submission made by learned counsel for the petitioner that version given by Anurodh Singh has also been made the part of the investigation, is having no substance. In the present case two versions came forward, both the versions require proper investigation. In case, both the versions are not properly investigated, the real culprits may not be prosecuted or some innocent persons may be victimised. The State government is under obligation to ensure the fair investigation, the State Government has discharged his duty by transferring the investigation to C.B.C.I.D. Kanpur Sector, Kanpur. The order of transferring the investigation to C.B.C.I.D. does not appear to be passed for lingering on the prosecution or to provide undue benefit to any particular person. It has not been passed at the instance of any accused. The facts as mentioned above were revealing that fair investigation was not expected from the local police of Etah district. Only on the basis of a letter sent by Sri Rameshwar Singh Yadav, MLA to the Government along with application of Anurodh Singh, it may not be said that the investigation has been transferred on the political reason to provide a benefit to a particular person. Sri Rameshwar Singh Yadav being MLA happens to be public representative in a democratic system, he may approach the Government to redress the individual/ public grievance, no adverse inference without any proper reason may be drawn. We are also of the view that proper investigation of this case is required by specialised investigating agency. The order transferring the investigation to C.B.C.I.D. Kanpur Sector Kanpur may not be said to be passed under the political influence. The order passed by the Government may not come under the category of arbitrariness also. It is a case in which a part of the investigation has been completed, the investigation in respect of some accused is still pending, the another version of the same incident as narrated in the application under section 156(3) Cr.P.C. has not been registered and it has not been made the part of investigation of FIR lodged by the petitioner whereas the learned CJM, Etah has already directed to register and investigate the case, therefore, no fresh permission of the court concerned is required.

In such circumstances. criminal misc. writ petition no. 712 of 2012 filed by the petitioner with a prayer for issuing a direction for conducting the investigation from a superior investigating agency, has become infructuous because prior issuing such direction State Government has transferred the investigation of this case to C.B.C.I.D. Kanpur Sector Kanpur. So far as it prayer no. 1 to take proper action against the accused persons is concerned, there is no need to issue such direction because the court below is competent to pass appropriate orders in accordance with law.

In the present case compliance of the order dated 5.8.2011 passed by the learned C.J.M. Etah in Misc. Application No.389 of 2011 moved by Anurodh Singh under section 156(3) Cr.P.C. has not been made by the officer-in-charge of the P.S. Jaithra district Etah, therefore, the S.S.P. Etah is expected to ensure, the compliance of the order dated 5.8.2011 passed by the C.J.M. Etah forthwith, provided the order dated 5.8.2011 is not stayed, modified or set-aside. If in compliance of the order dated 5.8.2011 the FIR is registered, its investigation shall also be done by same investigating agency expeditiously.

In view of above discussion, the prayer sought in criminal misc. writ petition no. 14250 of 2012 to quash the undated letter/order (Annexure No 5 to the writ petition) issued by the respondent nos. 2 to 3, transferring the investigation of the case crime no. 145 of 2011 under sections 147,148,149,307,302,404 and 506 I.P.C. P.S. Jaithra district Etah to C.B.C.I.D. Kanpur Sector Kanpur, is refused.

The interim order dated 27.9.2012 is hereby vacated.

Accordingly both the writ petitions are dismissed.

Dt.30.8.2013

SU/RPD/NA