Chandar Sheel Dwivedi vs State Of U.P. And Ors.
2014 Latest Caselaw 1045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 6593 of 2010
 
Petitioner :- Chandar Sheel Dwivedi
 
Respondent :- State Of U.P. And Ors.
 
Counsel for Petitioner :- B.K. Shukla,R.L.Shukla,Santosh Kumar
 
Tripathi,Subash Kumar
 
Counsel for Respondent :- Govt. Advocate,Anurag Khanna,Anurag
 
Khar,Manish Trivedi,R.B.Singhal,Vikash Sahai
 
Hon'ble Arun Tandon,J.

Hon'ble Dr. Satish Chandra,J.

Written submission filed on behalf of respondent no.7 is taken on record.

This petition has been filed by the father of missing child with the prayer

that the investigation of case crime no. 262/2010 under Section-364 IPC be

transferred to the Central Bureau of Investigation. The other prayer made is for

quashing of the first information reports bearing case crime no. 144/2010 under

Sections-307, 394, 504, 506 IPC and case crime no. 146/2010 under Sections-

452, 504 & 506 IPC lodged against the petitioner.

We are of the considered opinion that there is no good reason to quash

the first information report relating to case crime no. 144/2010 and Case Crime

No. 146/2010. The first information reports disclose cognizable offence and

therefore the prayer in that regard is rejected.

So far as the first prayer is concerned we find that the son of the

petitioner is alleged to have been abducted on 06.04.2010. Despite best effort

the State agencies have not been able to trace out the missing child Raksham.

We may record that the investigation of the offence was early handed over to

S.T.F., but it also did not result in any successful recovery of the child.

In the said circumstances since the child could not be recovered for more

than 4 years as on date, the High Court vide order dated 26.07.2012 required

the A.G.A. to inform the Court as to whether the State are willing to transfer the

investigation to Central Bureau of Investigation (C.B.I.) or not. On the same

date C.B.I. was also impleaded as one of the respondent to the present writ

petition.

The State Government vide order dated 22.04.2012 took a decision to

transfer the investigation of Case Crime No. 262 of 2010 to the C.B.I.

The Joint Director, C.B.I., Lucknow vide letter dated 16.07.2012, however

refused to investigate the crime on the ground that the C.B.I. is over worked

and the State Government has alternative machinery for investigation namely

C.B.C.I.D. The Court passed an order on 06.09.2012 requiring the counsel for

the C.B.I. to inform the court as to whether even after issuance of a notification

under Section-6 of the Delhi Special Police Establishment Act, 1946 by the State

Government for investigation of the case crime no. 262/2010 by C.B.I. can its

Joint Director refuse to investigate the crime on the ground that the C.B.I. was

over worked.

In response to the aforesaid order an affidavit was filed by the Joint

Director, C.B.I. stating therein that unless a notification under Section-5 of the

Delhi Special Police Establishment Act, 1946 is reissued of the Case Crime No.

262 of 2010 by Central Government. The C.B.I. is not obliged to investigate the

offence even after a notification under Section-6 of the Delhi Special Police

Establishment Act, 1946 by the State Government.

This Court after noticing the said stand issued notice to the Central

Authority to clarify its stand on the issue.

The Under Secretary, Department of Personnel, Public Grievance &

Pension, Government of India, New Delhi has filed an affidavit disclosing four

reasons in para-7 of the affidavit for refusing to investigate the Case Crime No.

262 of 2010 despite notification of the State Government under Section-6 of the

Delhi Police Establishment Act, 1946.

This Court was not satisfied with the stand taken and therefore proceed to

hear the petitioner and the learned Additional Solicitor General of India on the

said aspect of the matter.

A written submission has been filed on behalf of the Union of India by the

Additional Solicitor General of India and in para-3 it is stated that presently

C.B.I. is over burdened with the cases referred by the High Court as well as by

the State Government it has to cope with the same with limited resources. The

State Government has the option of getting the investigation of the case

conducted by the C.B.C.I.D. which is an independent agency. In para-7 following

four reasons have been stated for refusing investigation of Case Crime No. 262

of 2010 by the C.B.I. The reasons are quoted herein below:-

"(i) That a final report has been submitted in this case and the

case being more than two and a half years old it is very difficult

for the C.B.I. to gather any fresh evidence about the

disappearance or trace or recover Master Raksham.

(ii) That the present matter neither has any inter-state or

international ramification nor involves any larger public interest or

issue.

(iii) That the C.B.I. is over burdened with the cases referred by

the Hon'ble High Court as well as State Governments and is

trying to cope up with the same with limited resources.

(iv) That the State Government as another remedy of getting the

investigation of the case conducted by the C.B.C.I.D. which is an

independent agency."

Counsel for the C.B.I. has also referred to Section-2, 3, 4, 5 & 6 of the Act

and it is submitted that it is with the exclusive power of the Central Government

alone under Section-5 to extend the Delhi Special Police Establishment to any

area of the another State. The word 'area' as mentioned is for the purpose to

include a particular offence by the orders of the Central Government to be

investigated in that area by C.B.I.

Reliance has been placed upon the judgement reported in 2010 (3) SCC

571 State of West Bengal & others Vs. Committee for Protection of

Democratic Rights, West Bengal and others and 1998 (1) SCC 226

Vineet Narain & others Vs. Union of India & others .

We at outset record that the stand which has been taken on behalf of

Central Government and as have been canvassed by Sri R.B. Singhal, Additional

Solicitor General of India on behalf of the Union is wholly misconceived. It is a

clear case of misreading of the provisions of Delhi Special Police Establishment

Act, 1946.

The Apex Court in the case of State of West Bengal & others Vs.

Committee for Protection of Democratic Rights, West Bengal and

others (Supra). In para-32, 33, 34, 35 & 36 after taking note of Sections-2, 3,

4, 5 & 6 of the Act has opined as follows:-

"..........Section 2 contains three sub sections. Subsection

(1) empowers the Central Government to

constitute a special police force to be called the Delhi

Special police Establishment for the investigation of

offences notified under Section 3 in any Union

Territory; sub-section (2) confers upon the members of

the said police establishment in relation to the

investigation of such offences and arrest of persons

concerned in such offences, all the powers, duties,

privileges and liabilities which police officers of that

Union Territory have in connection with the

investigation of offences committed therein and subsection

(3) provides that any member of the said police

establishment of or above the rank of Sub-Inspector be

deemed to be an officer in charge of a police station.

Under Section 3 of the Special Police Act, the Central

Government is required to specify and notify the

offences or classes of offences which are to be

investigated by the Delhi Special Police Establishment

constituted under the Special Police Act, named

"C.B.I." Section 4 deals with the administrative control

of the establishment and according to sub-section (2),

the "superintendent" of the establishment vests in the

Central Government and the administration of the said

establishment vests in an officer appointed in this

behalf by the Central Government. Explaining the

meaning of the word "superintendence" in Section 4(1)

and the scope of the authority of the Central

Government in this context, in Vineet Narain v. Union

of India, a Bench of three Judges of this Court said:

(SCC p. 261, para 40).

"40....The word 'superintendence' in Section 4(1)

cannot be construed in a wider sense to permit

supervision of the actual investigation of an offence by

CBI contrary to the manner provided by the statutory

provisions. The broad proposition urged on behalf of

the Union of India that it can issue any directive to CBI

to curtail or inhibit its jurisdiction to investigate an

offence specified in the notification issued under

Section 3 by a directive under Section 4(1) of the Act

cannot be accepted. The jurisdiction of CBI to

investigate an offence is to be determined with

reference to the notification issued under Section 3

and not by any separate order not having that

character.

34. Section 5 of the Special Police Act empowers the

Central Government to extend the powers and

jurisdiction of the Special Police Establishment to any

area, in a State, not being a Union Territory for the

investigation of any offences or classes of offences

specified in a notification under Section 3 and on such

extension of jurisdiction, a member of the

Establishment shall discharge the functions of a police

officer in that area and shall, while so discharging such

functions, be deemed to be a member of the police

force of that area and be vested with the powers,

functions and privileges and be subject to the liabilities

of a police officer belonging toi that police force.

35. Section 6, the pivotal provision, reads as follows :

"6. Consent of State Government to exercise of powers

and jurisdiction-Nothing contained in Section 5 shall be

deemed to enable any member of the Delhi Special

Police Establishment to exercise powers and

jurisdiction in any area in a State, not being a Union

Territory or railway area, without the consent of the

Government of that State.

(emphasis supplied)

Thus, although Section 5(1) empowers the Central

Government to extend the powers and jurisdiction of

members of the Delhi Special Police Establishment to

any area in a State, but Section 6 imposes a restriction

on the power of the Central Government to extend the

jurisdiction of the said Establishment only with the

consent of the State Government concerned.

Para-33 of the judgment in the Case of Vineet Narain and others Vs. Union

of India & others reproduced as under:-

"The decision in J.A.C. Saldanha is on Section 3 of the Police

Act, 1861 and deals with the ambit and scope of State

Government's power of "superintendence" thereunder. It was

held in J.A.C. Saldanha that the power further investigation

under Section 173(8) Cr.P.C. That was a case in which there was

occasion to require further investigation because of the

unsatisfactory nature of the investigation done earlier of a

cognizable offence. Thus, in that case the power of

superintendence was exercised for directing further investigation

to complete an unsatisfactory investigation of a cognizable

offence to promote the cause of justice and not to subvert it by

preventing investigation. In our opinion, in the present context,

that decision has no application to support the issuance of the

Single Directive in exercise of the power of superintendence,

since the effect of the Single Directive might thwart investigation

of a cognizable offence and not promote the cause of justice by

directing further investigation leading to a prosecution."

"The word superintendence in Section 4(1) cannot be in a wider sense to

permit the actual investigation of an offence by C.B.I. contrary to provide by the

statutory provisions on behalf of Union of India that it can issue any direction to

the C.B.I. to curtail its jurisdiction to investigate an offence specified in the

notification issued under Section-3 by a directing under Section-4 of the Act

cannot be accepted. The jurisdiction of the C.B.I. to investigate an offence is to

be determined with reference to the investigation and not by any separate order

not having that character."

And thereafter in para-35 it has been noticed that "Section-5 (1)

empowers the Central Government to extend the powers and jurisdiction of the

members of the Delhi Special Police Establishment to any area in the State. But

Section 6 imposed a restriction on the power of the Central Government to

extend the jurisdiction of the said establishment only with the consent of State

Government concerned.

What follows from reading of judgement of the Apex Court in the case of

Vineet Narain (supra) and the State of West Bengal (supra) is that the Central

Government has the power under Section-5(1) to extend the jurisdiction of the

Delhi Special Police Establishment Act to any area of the State and that the

power of the Delhi Special Police, called C.B.I. to investigate the crime of part of

the crime is confined to the offences which have been included in the

notification issued under Section-3 by the Central Government. Subject to the

consent of the State Government under Section 6 of the Act for the said crime

being investigated by C.B.I.

In the facts it is not disputed that the offence as alleged in Case Crime No.

262 of 2010 is one of the offences included under the notification issued by the

Central Government in exercise of powers under Section-3 and further that by a

notification issued under Sections-4 & 5 the Central Government has extended

the jurisdiction of the Delhi Special Police Establishment to the area of the State

of Uttar Pradesh including Allahabad and lastly the State Government has

granted its consent for investigation of the offence by C.B.I. of case crime no.

262/2010 as per the order dated 22.04.2012 already noticed above.

Therefore, all the requirements of the Act stand satisfied and there is no

further power with the Central Government or for that purpose with the Joint

Director of C.B.I. to refuse to investigate the offence so referred to it by the

State Government.

The stand taken to the contrary by the Joint Director, C.B.I. as well as

Secretary, Department of Personnel, Public Grievance & Pension, Government of

India, New Delhi is untenable in the eyes of law. We clarify that, if an offence to

be investigated is found to be included the notification issued under Section-3

by the Central Government and that there is a notification under Section-5

extending the jurisdiction of Delhi Special Police Establishment Act, 1946 in

respect of the area of the State and there is consent of the State Government

as required under Section-6 for an investigation of the said offence by the

C.B.I., then there is no power with any of the executive authority including the

Joint Director to refuse to investigate the crime.

Burden of the work cannot be the excuse for refusing to discharge the

statutory duties. The Joint Director of C.B.I. could not have refused to

investigate the offence once the notification dated 22.04.2012 was issued by the

State Government.

The delay in the investigation in the facts of the case by C.B.I. has only

been occasioned cause of the arbitrary stand taken by the Joint Director, C.B.I.

as well as by the Union of India.

Even otherwise, if this Court had called upon the C.B.I. to investigate the

crime in exercise of the power under Section-226 of the Constitution, there was

little or no reason for the Joint Director, C.B.I., Lucknow or for that purpose with

the Secretary, Department of Personnel, Public Grievance & Pension,

Government of India, New Delhi to have refused to comply with the direction so

issued.

We may refer to para-69 of the judgment of the Hon'ble Apex Court in the

case of State of West Bengal & others Vs. Committee for Protection

of Democratic Rights, West Bengal and others which reads as follows:-

"In the final analysis, our answer to the question

referred is that a direction by the High Court, in

exercise of its jurisdiction under Article 226 of the

Constitution, to CBI to investigate a cognizable

offence alleged to have been committed within the

territory of a State without the consent of that State

will neither impinge upon the federal structure of the

Constitution nor violate the doctrine of separation of

power and shall be valid in law. Being the protectors

of civil liberties of the citizens, this Court and the

High Courts have not only the power and jurisdiction

but also an obligation to protect the fundamental

rights, guaranteed by Part III in general and under

Article 21 of the Constitution in particular, zealously

and vigilantly."

We, therefore, issue a writ of mandamus directing the C.B.I. through its

Joint Director, Lucknow to investigate the case crime No. 262/2010 and to

complete the investigation preferably within six months from the date a certified

copy of this order is produced before him.

Having regard to the interim order which was granted in the petition and

which has counted till date as well as for the fact on record we further direct

that the petitioner may not be arrested till the submission of the police report in

Case Crime No. 144 of 2010 under Sections-307, 394, 504, 506 IPC and case

crime no. 146/2010 under Sections-452, 504 & 506 IPC.

With the aforesaid direction, the present writ petition is disposed of

finally.

Order Date :- 21.4.2014

pp/Anurag