Babloo Dubey vs State Of U.P. And 5 Others
2014 Latest Caselaw 7955 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 42
 

 

 
  Criminal Misc. Writ Petition No.19393  of 2014
 

 
Babloo Dubey   Vs. State of U.P.& others 
 

 
                                                              *****	
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Mohd.Tahir, J.

Heard Sri A.B.L.Gour, Senior Advocate, assisted by Sri Manoj Kumar, learned counsel for the petitioner and learned A.G.A.for the State of U.P.

The present writ petition has been filed by the petitioner Babloo Dubey with the following prayers to :-

(i) issue a writ,order or direction in the nature of certiorari quashing the order dated 7.10.2014 passed by the Senior Superintendent of Police, Gorakhpur (Annexure-15 to this writ petition).

(ii) issue a writ, order or direction in the nature of mandamus directing the respondent No.2 and 3 to make fair and proper investigation in Case Crime No. 463 of 2014, under sections 147, 148, 149, 504, 307, 302, 396 I.P.C.relating to Police Station Khorabar, District Gorakhpur.

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

(iv) to award costs of the writ petition to the petitioner.

The facts, in brief, of this case are that an FIR has been lodged by respondent No. 6 -Sadhu Yadav alias Shiv Pratap Yadav on 8.8.2014 at 11.40 A.M.in respect of the incident allegedly occurred on 8.8.2014 at 10.00 A.M. in Case Crime No. 463 of 2014 under sections 147, 148, 149, 504, 307, 302, 396 I.P.C., Police Station Khorabar, District Gorakhpur in which the petitioner Babloo Dubey is one of the named accused persons. Its investigation was entrusted to Officer-In-charge of Police Station Khorabar, District Gorakhpur but on the application moved by Smt. Shanti Devi, the mother of the petitioner, the investigation of the above mentioned case was transferred from Police Station Khorabar, District Gorakhpur to some other district by Director General of Police, U.P. Lucknow ,he directed the D.I.G. Gorakhpur Range, Gorakhpur to ensure the investigation of the aforesaid case by police of some other district vide order dated 28.8.2014. In pursuance of the order dated 28.8.2014, the investigation of the aforesaid case was transferred from Police Station Khorabar, District Gorakhpur to District Kushi Nagar. In pursuance of the order dated 28.8.2014, the D.I.G. Gorakhpur Range Gorakhpur transferred the investigation of the aforesaid case to District Kushi Nagar, its communication was made to S.S.P. Gorakhpur vide letter dated 6.9.2014, pursuant to the above mentioned letter, the S.S.P. Gorakhpur transferred the investigation to district Kushi Nagar. The transfer of the investigation of the above mentioned case from Police Station Khorabar, District Gorakhpur to District Kushi Nagar has been challenged by respondent no. 6 Sadhu Yadav @ Shiv Pratap Yadav by way of filing Criminal Misc. Writ Petition No. 17232 of 2014 in which by another Bench of this Court took the cognizance and passed the order dated 26.9.2014 directing the Director General of Police U.P. to file his personal affidavit indicating as to which provision of law he issued orders for transferring the investigation from one district to another, when two of the accused persons have already been arrested and it is alleged that recovery has also been made and that too without applying mind to the allegations made in the FIR and without recording any reason.. Further no information was called for from any of the concerned officers with regard to the truthfulness of the allegations made in the application for transfer of investigation. The following observation has also been made :-

" Prima facie, we are of the opinion that such orders by the D.G.P.are the abuse of the powers and shakes the confidence of a common man in the police system of the State."

After considering the above mentioned order dated 26.9.2014 and the observation made by the Court, the investigation of the above mentioned case was transferred to the same Investigating Officer Sri J.P.Singh, officer- in- charge of Police Station Khorabar, District Gorakhpur from District Kushi Nagar by sending the letter dated 2.10.2014 to S.S.P. Gorakhpur for ensuring the investigation to be done by Sri J.P.Singh officer- in- charge of Police Station Khorabar. In pursuance of the letter dated 2.10.2014, the S.S.P. Gorakhpur entrusted the investigation to Sri J.P.Singh officer- in -charge of Police Station Khorabar, District Gorakhpur on 7.10.2014. The order dated 7.10.2014 has been challenged in the present writ petition.

It is contended by learned counsel for the petitioner that serious allegations have been made against the Investigating Officer Sri J.P.Singh, officer-in-charge of Police Station Khorabar, District Gorakhpur. In this regard a complaint was made by way of sending the letter to the Home Secretary, U.P. Lucknow by Sri Hari Shanker Tiwari. The Police of Police Station Khorabar raided the house of the petitioner on 8.8.2014 and picked up Vinod Dhar Dubey and Badri Vishal Dhar Dubey, who are father and brother of the petitioner, respectively, along with one Scorpio Vehicle No. U.P. 53 AV-2121, licensed Rifle and other ornaments. On 11.8.2014, an application was filed by Shiv Dhar Dubey ( brother of the petitioner) in the court of Additional Chief Judicial Magistrate-I, Gorakhpur in respect of the aforesaid incident, on which learned Magistrate concerned called the police report. Surprisingly, Vinod Dhar Dubey was shown to be challaned on 11.8.2014 under section 3/25 Arms Act in Case Crime no.;477 of 2014 at Police Station Khorabar, District Gorakhpur, subsequently, they were released on bail by Additional Chief Judicial Magistrate-I, Gorakhpur. Due to above mentioned act done by the police of Police Station Khorabar, District Gorakhpur an atmosphere of fear and terror has been created showing the high handedness of the police. The investigation of the above mentioned case was transferred from Police Station Khorabar, District Gorakhpur to District Kushi Nagar after considering the fact that fair investigation was not possible but without any proper reason, the investigation has again been transferred to the police of Police Station Khorabar, District Gorakhpur and the same has been entrusted to Sri J.P.Singh, the fair investigation is right of the accused also. In such a circumstance, the fair investigation is not expected from the present Investigating Officer Sri J.P. Singh, Officer-in-Charge of Police Station Khorabar, District Gorakhpur. The same may be transferred to some other independent agency or any other competent authority.

In reply of the above contention, it is submitted by learned A.G.A.that in the present case, initially the investigation was entrusted to Sri J.P.Singh, Officer- in- Charge of the Police Station Khorabar, District Gorakhpur but without any proper reason on the application moved by mother of the petitioner the investigation was transferred by D.G.P., U.P., its cognizance was taken by another bench of this Court by passing serious remark, considering the same, the investigation of the above mentioned case was transferred back to the same I.O. i.e. Sri J.P.Singh, Officer- in -Charge of Police Station Khorabar, District Gorakhpur and by consequential order the S.S.P.Gorakhpur passed the impugned order dated 7.10.2014. The impugned order dated 7.10.2014 is not suffering from any illegality or irregularity. The present writ petition is devoid of the merits, the same maybe dismissed.

Considering the facts, circumstances of the case, submission made by counsel for the petitioner, learned A.G.A.and from the perusal of record, it reveals that the petitioner is an accused in Case Crime No. 463 of 2014 under sections 147, 148, 149, 504, 307, 302, 396 I.P.C., relating to Police Station Khorabar, District Gorakhpur, its investigation was entrusted to Sri J.P.Singh, Officer-In-Charge of Police Station Khorabar, District Gorakhpur but on the application moved by the mother of the petitioner, the Director General of Police, U.P. directed the D.I.G., Gorakhpur Range, Gorakhpur to ensure the investigation of the above mentioned case in his supervision. In pursuance of the such direction, the D.I.G. Gorakhpur Range, Gorakhpur transferred the investigation of the above mentioned case to District Kushi Nagar and its communication has been made to S.S.P. Gorakhpur vide letter dated 6.9.2014, in pursuance of the impugned letter dated 6.9.2014, the S.S.P. Gorakhpur transferred the investigation to District Kushi Nagar on 10.9.2014. The transfer of the investigation of the above mentioned case from police Station Khorabar, district Gorakhpur to district Kushi Nagar was challenged before the High Court by way of filing Criminal Misc. Writ Petition No. 17232 of 2014 by the complainant Sadhu Yadav alias Shiv Pratap Yadav in which vide order dated 26.9.2014, by another bench of this Court took the cognizance by directing the Director General of Police U.P. to file his personal affidavit and the following observation was made therein.

" Prima facie, we are of the opinion that such orders by the D.G.P.are the abuse of the powers and shakes the confidence of a common man in the police system of the State."

Considering the above mentioned observation, the investigation of the above mentioned case was transferred back to the Police Station Khorabar,District Gorakhpur by entrusting it to the same Investigating Officer Sri J.P. Singh, Officer-in- Charge Police Station Khorabar, District Gorakhpur by the D.I.G., Gorakhpur Range, Gorakhpur on 2.10.2014, the impugned order dated 7.10.2014 passed by S.S.P. Gorakhpur is a consequential order. In the present writ petition allegation has been made against Sri J.P.Singh, Officer-in-Charge of Police Station Khorabar, District Gorakhpur with regard to the raid made by him at the house of the petitioner, but there is no personal allegation against the Investigating Officer to show his prejudice against the petitioner or having close proximity with the complainant (Respondent No. 6). The fair investigation is right of the complainant, victim and the accused. It is expected that the S.S.P. Gorakhpur shall ensure the fair investigation of the above mentioned case but there is no good ground to interfere in the impugned order dated 7.10.2014 passed by S.S.P.Gorakhpur and there is no good ground to issue mandamus directing the Respondent Nos. 2, 3 and 4 to transfer the investigation from Police Station Khorabar, district Gorakhpur to any other police station of district Gorakhpur. Therefore, such prayers sought by the petitioner are refused.

Accordingly, this petition is dismissed.

Dated : November 3, 2014.

Su