Jagdish Sharma vs State Of U.P. And 8 Others
2014 Latest Caselaw 8855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 42
 

 
Criminal Misc. Writ Petition No. 1375 of 2014
 
Jagdish Sharma Versus State of U.P. and others
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Mohd. Tahir,J.

Heard Sri R.C. Maurya, Sri Arun Kumar Soni, learned counsel for the petitioner, learned A.G.A. for the State of U.P., Sri Rajeev Lochan Shukla, learned counsel for respondent no. 9 and Sri Sushil Kumar Dubey, learned counsel for accused respondents 4,5,6,7 and 8.

This petition has been filed by the petitioner Jagdish Sharma with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.11.2013 (Annexure no. 7 to this writ petition) bearing no. 1583MM/6PU-3-2013-15(28)P/201 passed by respondent no. 1 in First Information Report dated 23.8.2013 in Case Crime No. 251 of 2013 under sections 302,307,147,148,149 I.P.C. Police Station, Bakewar district Etawah.

The facts in brief of this case are that the FIR of this case has been lodged by the petitioner Jagdish Sharma on 23.8.2013 at 9.35 p.m. in respect of the incident allegedly occurred on 23.8.2013 at about 6.30 p.m. against the accused persons namely Sita Ram, Mohit Sharma, Tinku Sharma, Jaiki alias Somnath, Ramshesh alias K.K in case crime no. 251 of 2013 under sections 147,148,149,302 and 307 I.P.C. alleging therein that on 23.8.2013, the petitioner and his brother-in-law Anil Kumar were going on a motor cycle to his village from Bakewar, the elder brother of the first informant namely Rakesh Kumar alias Mini was also going on a motor cycle to his village, he was ahead to the motorcycle of the petitioner, at about 6.30 p.m., they reached near Sati Temple Barthana Road, where the accused persons namely Sita Ram, Mohit Sharma, Tinku Sharma and J.K. alias Somnath and Ramshesh alias K.K. armed with firearm were standing there waiting for the arrival of the deceased and others, they intercepted at the point of firearm and exhorted to commit the murder of the petitioner and others, then the accused Mohit Singh discharged a shot, which hit on neck of the deceased Rakesh Kumar, after sustaining the injury, he fell down, then other accused persons also fired at him. The petitioner and his brother-in-law made an attempt to save the life of the deceased, the firing was made towards them also with the intention to commit their murder but any how, they saved their lives by escaping from the place of incident. The first informant and his brother-in-law came back to the place of incident and saw the deceased who were lying in injured condition, the passer-by also gathered at the place of incident, the deceased was brought to the District Hospital, Etawah where he was declared dead by the doctor. The petitioner went to the police station to lodge the FIR leaving the dead body at District Hospital Etawah. On account of the pendency of litigation the deceased has been killed by the accused persons, after lodging the FIR investigation of this case was taken in the hand by Sri Yogesh Kumar Sharma Officer-in-charge of the police station Bakewar but on the basis of the report dated 10.11.2013 submitted by the Circle Officer Barthana, mentioning therein that it was not possible to do the fair investigation, due to political pressure, investigation of the above mentioned case was transferred from police station, Bakewar to the crime branch of district Etawah by the S.S.P. Etawah on 11.11.2013. In pursuance of the order dated 11.11.2013, the investigation of the above mentioned case was entrusted to the crime branch district Etawah, thereafter, on the application moved by respondent no. 9, Ram Sarower, father of the accused Mohit Sharma( respondent no.5) investigation of the above mentioned case, was transferred by the State Government to C.B. C.I.D., its communication was made by Sri Kamal Saxena, Secretary, U.P. Government Lucknow to D.G. C.B.C.I.D. U.P. Lucknow vide letter dated 28.8.2013. In pursuance of the order dated 28.11.2013 the investigation of the above mentioned case has been entrusted to CBCID. It is a case in which FIR has been lodged within 3.05 hour, all the five accused persons are named in the FIR but nobody was arrested and the investigation has been transferred to CBCID whereas the process under section 82 Cr.P.C. was also issued to ensure the arrest of the accused persons, being aggrieved from the impugned transfer by which the investigation has been transferred to CBCID the petitioner has filed the present writ petition.

It is submitted by learned counsel for the petitioner that in the present case the FIR has been lodged by the petitioner in which five persons have been accused but the accused persons did not appear before the court concerned in pursuance of the FIR lodged against them nor they were arrested by the police. The proceedings under sections 82/83 Cr.P.C. were also initiated against them to ensure their arrest even then they did not appear before the court concerned, they were evading their arrest, they are very influential and powerful persons, they were having the political approach also and they persuaded the Circle Officer, Bharthana to report the S.S.P. Etawah that it was not possible to do the fair investigation in the present case due to political pressure who reported the S.S.P. Etawah on 10.11.2013 whereas Circle Officer, Bharthana was not Investigating Officer of the present case. The Investigating Officer of police station, Bakewar had not reported his higher officers that fair investigation is not possible under the political pressure. Thereafter on the basis of the report submitted by the Circle Officer the investigation of the above mentioned case was transferred to crime branch of district Etawah by S.S.P. Etawah vide order dated 11.11.2013. In pursuance of the order dated 11.11.2013 the investigation was being done by the crime branch of district Etawah. The efforts were made to ensure the arrest all the accused persons but no accused could be arrested, to evade the arrest of the accused persons the respondent No. 9 Shri Ram Sarovar who is father of the accused Mohit Sharma moved an application dated 27.09.2013 to the State Government for transferring the investigation of the above mentioned case to C.B.C.I.D. on which the report was summoned from S.S.P. Etawah then S.S.P. Etawah called for the report from Circle Officer, Bharthana in this regard who submitted the report dated 15.10.2013 mentioning therein that the investigation of the above mentioned case was taken in the hand by Sri Yogesh Kumar Sharma then Officer Incharge of police station, Bakewar, after his transfer its investigation was being done by Sri Rajendra Singh, Officer Incharge of P.S. Bakewar and for ensuring the arrest of the accused persons team has been constituted which had made the raids at the different places to ensure the arrest of the accused persons but he submitted that in case investigation of the above mentioned case is transferred to CBCID or any other investigating agency he was having no objection. But no report was submitted by the Circle Officer that fair investigation was not possible or there was any pressure upon the I.O. Contrary to it it was reported that accused persons were absconding for their arrest. The team was constituted and raids were made on the basis of the report submitted by the Circle Officer, Bharthana, the report was submitted by SSP Etawah to the Department of the (Home) on 17.10.2013. He had also not reported that the transfer of the above mentioned case is required. But ignoring the report of the SSP Etawah the investigation of the above mentioned case has been transferred to CBCID by the impugned order. The government itself has not followed the guidelines issued by the Chief Secretary U.P. Government vide circular dated 5.9.1995.The impugned order is having no reason to transfer the investigation of the above mentioned case to CBCID, it has been passed in a arbitrary manner ignoring the guidelines either transferring the investigation to CBCID issued by the Chief Secretary, Govt. of U.P. The impugned order has been passed without applying the judicial mind but it has been passed either on political pressure or on some other extraneous consideration and it has having no reason to transfer the investigation of the above mentioned case to CBCID whereas SSP himself had submitted the report mentioning therein that in the present case accused persons were absconding, to ensure their arrest police team were constituted who were giving the raids, the impugned order is illegal and the same may be quashed.

In reply of the above contention, it is submitted by learned A.G.A. that after following the due procedure the impugned order has been passed by the Govt. of U.P. on the circular dated 27.09.2013 passed by the respondent No. 9. The grounds for transferring the investigation to CBCID the Home department has called for the report from SSP Etawah. The SSP Etawah also obtained the report of the Circle Officer, Bharthana in this regard and submitted the report that he was having no objection in transferring the investigation of the above mentioned case to CBCID. The grounds mentioned in application dated 21.09.2013 submitted by the respondent No. 9 Sri Ram Sarovar is having the proper ground to transfer the investigation of the above mentioned case to CBCID. The respondent No. 9 is not politically empowered person, if he is not having high office in the State Government in this regard no allegation has been made by the petitioner in the writ petition itself and there is no ground or allegation showing extraneous consideration on which the Government has taken the decision to transfer the investigation of the above mentioned case to CBCID. The impugned order has been passed so that fair investigation may be ensured. It is a duty of the state to ensure the fair investigation of every criminal case. The impugned order is not suffering for any illegality or irregularity.

On behalf of respondent No. 9 it is submitted by his counsel Sri Rajiv Lochan Shukla that even in the writ petition no allegation has been made against the respondent No. 9 and other co-accused persons to shows that they have used any political link. Respondent No. 9 is not a powerful person, he is an ordinary person, he moved an application mentioning therein that fair investigation was not possible from the police of the Etawah and the fair investigation was not expected by police of district Etawah, he had shown the ground. In the present case Circle Officer, Bharthana himself has reported to S.S.P. Etawah that due to political interference fair investigation was not possible by the police of Bakewar. There is no political interference and no allegation has been made with regard tot he extraneous consideration for passing the impugned order. The government has not committed any error in transferring the investigation to CBCID. The CBCID is a better investigating agency, it is also under the control of the State Government and no threat has been extended by the respondent No. 9. According to the DVD prepared in the night of the incident at district hospital, Etawah by the media persons particularly by Sahara Samay news shows that no one had seen the incident and the deceased had sustained the injuries in some other manner. Even according to the statement given by Sri Vivek @ Chaudhary, the elder brother of the deceased to media persons that he and his family members came to know about the said incident through the police station. Some relevant facts in this regard and indicating that accused named in FIR are innocent. It is submitted on behalf of the accused respondents No. 4 to 8 by their counsel that they are innocent persons and they have not committed the above mentioned offence but police of district Etawah is intended to arrest them without any proper reason. In case the investigation of the above mentioned case is not done by the CBCID or any other independent investigating agency, they shall suffer irreparable loss. It is submitted by learned counsel for the respondent No. 4 to 9 that the State Government has taken the decision for getting the investigation of the above mentioned case by CBCID. The impugned order transferring the investigating to CBCID is not suffering from any illegality or irregularity, the present writ petition is devoid of merits, the same may be dismissed.

Considering the facts, circumstances of the case, submission made by learned counsel for the petitioner, learned A.G.A. and counsel for the respondents No. 4 to 9 and from the perusal of the writ petition, counter affidavit, rejoinder affidavit filed by the affidavits it appears that the petitioner is the first informant of case crime no. 251 of 2013, under sections 147, 148, 149, 307, 302 IPC, P.S. Bakewar, District Etawah. Its FIR has been lodged on 23.8.2013 at 9.35 P.M, after lodging the FIR its investigation was taken in his hand by then Officer Incharge of the police station, Bakewar Sri Yogesh Kumar Sharma. On his transfer from police station, Bakewar, the investigation was entrusted to Sri Rajendra Singh who took over the charge of the police station, Bakewar. It is a case in which five accused persons are named in the FIR, After lodging the FIR neither any of the accused persons appeared before the court concerned nor any one was arrested by the police. For ensuring the arrest of the accused persons process under section 82/83 Cr.P.C. have been initiated, the team has been constituted to ensure the arrest of the accused persons. But none of the accused persons could be arrested. On the report dated 10.11.2013 submitted by Circle Officer, Bharthana mentioning therein that fair investigation was not possible by the police of P.S. Bakewar and the recommendation for transferring the investigation to crime branch of District Etawah or any other investigating agency was made. On the basis of the reported of Circle Officer, Bharthana the S.S.P. Etawah transferred the investigation of the above mentioned case to crime branch of District Etawah vide order dated 11.11.2013. In pursuance of the order dated 11.11.203 the investigation of the above mentioned case was taken by the CBCID. At present the investigation is being done by CBCID, Kanpur. According to the affidavit of Sri Rajendra Singh, Inspector CBCID, District Kanpur shows that the police of P.S. Bakewar has obtained the order to issue the process under section 82/83 Cr.P.C. since the accused persons evading their arrest. The CBCID was not lingering on the investigation, it shall be concluded as soon as possible. According to the affidavit of the State Government submitted by Sri Chhedi Lal, Deputy Secretary (Home Anubhag) on behalf of the respondent No. 1 shows that on application dated 27.09.2013 moved by respondent No. 9 Ram Sarovar the report was called for from the S.S.P. Etawah after receiving the comments from S.S.P. Etawah. The impugned order has been passed by the State Government transferring the investigation to CBCID. The guidelines of the Government Order dated 5.9.1995 issued by the Chief Secretary, U.P. Government, Lucknow have been properly followed. The impugned order has been passed so that the fair investigation may be ensured. The impugned orders have been passed after considering the ground taken by the respondent No. 9 in his application. It is a case in which admittedly accused persons were not appeared before the court concerned and they were not arrested by the police whereas the process under section 82/83 Cr.P.C. was issued against them and according to the report submitted by S.S.P. Etawah to the Home Department of the State Government also for ensuring the arrest of the accused persons the teams were constituted. In the report submitted by S.S.P. Etawah is clearly showing that S.S.P. Etawah was not having no objection in transferring the investigation to CBCID or any other investigating agency. Naturally being S.S.P. of the Etawah he was having no personal interest from either of the side but the impugned order has been passed without showing any reason or transferring the investigation to CBCID. The impugned order has been passed in pursuance of the order dated 5.09.1995 issued by the then Chief Secretary, State Government, U.P. Lucknow. In order dated 5.09.1995 the guidelines have been given and four grounds as mentioned below have been formulated for transferring the investigation to C.B.C.I.D.

(१) अपराध की प्राक्िट इतनी जटिल और पेचीदगी से भरी हो कि स्थानीय पोलीस के स्तर पर उसकी सभी प्रकार से विवेचना किया जाना संभव ना हो.

(२) अपराध अंतर-राष्ट्रीय राज्य या प्रदेशव्यापी या अंतर-मंडलीय/ परिच्छेत्रीय हो।

(३) स्थानीय परिस्थितियाँ ऐसी हो कि जिनके कारण स्थानीय पुलिस द्वारा किसी मामले मे निस्पक्ष रूप से जांच करना मुश्किल हो।

(४) ऐसी परिस्थितियाँ उत्पन्न हो गयी हो कि जन-सामान्य के दिमागमे किसी मामले कि विवेचना को लेकर स्थानीय पुलिस कि निष्पक्षता पर प्रसन् चिन्ह लग गया हो।

Though no allegation has been made with regard to the use of political influence or extraneous consideration. Therefore, it may not be said that the impugned order has been passed either on political interference or on extraneous consideration. But the impugned order has been passed in an ordinary manner even ignoring to report/ comments of SSP, Etawah and guidelines issued by the then Chief Secretary, U.P. on 5.9.1995. The impugned order does not show that in any manner it has been passed in public interest or to interfere in fair investigation which was not expected from the crime branch of district Etawah. Therefore, the impugned order is illegal, it is hereby set aside and it is directed that the investigation of the above mentioned case shall be done by the crime branch of district Etawah. The I.O. of CBCID is directed to hand over all the above mentioned documents or any other material collected during investigation to S.S.P. Etawah forthwith. The S.S.P. Etawah is directed that the investigation of the above mentioned case be entrusted to the Crime Branch of the District Etawah again and he shall ensure the fair and expeditious investigation of the above mentioned case.

With the above observation, this petition is finally disposed of.

Dt:20.11.2014

NA/RPD