Allahabad High Court
Jogendra Prasad vs State Of U.P.& Others on 14 October, 2014
Bench: Ravindra Singh, Mohd. Tahir
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court no. 42
Criminal Misc. Writ Petition No. 15755 of 2012
Jogendra Prasad Versus State of U.P. and others
Hon'ble Ravindra Singh,J.
Hon'ble Mohd. Tahir,J.
Heard Sri Ashok Kumar Dwivedi, Rakesh Kumar Shukla, learned counsel for the petitioner and the learned A.G.A. for the State of U.P.
This petition has been filed by the petitioner Jogendra Prasad with a prayer to quash the order dated 27.6.2012 passed by respondent no. 1 by which the investigation of case crime no. 762 of 2010 under sections 498-A,304-B I.P.C. and section ¾ of Dowry Prohibition Act P.S. Kotwali Nagar district Banda has been transferred to CBCID.
The facts in brief of this case are that the FIR of this case has been lodged by the petitioner Jogendra Prasad Vishwakarma on 10.7.2010 at P.S. Kotwali Nagar district Banda in case crime no. 762 of 2010 under sections 498-A,30-B, 506 I.P.C. and section ¾ of D.P. Act against the accused persons namely Gaurav Sharma( husband of the deceased), Saurabh Sharma (Devar of the deceased) Sadhu Ram Sharma(Father in law of the deceased) and Smt. Brindawati( mother in law of the deceased) alleging therein that the daughter of petitioner was married with the accused Gaurav Sharma on 12.12.2009, thereafter a demand of Rs. 2 lacs, a colour T.V. a chain of gold and a ring was made by her in laws, the same could not be fulfilled that is why the deceased was killed on 26.6.2010. After completing the investigation the charge sheet dated 11.2.2011 against the accused persons namely Gaurav Sharma, Saurabh Sharma, Sadhu Ram Sharma and Smt. Brindawati has been submitted in the court of learned Chief Judicial Magistrate, Banda, on which the learned Chief Judicial Magistrate, Banda has taken cognizance on 10.8.2012. After submission of the charge sheet and cognizance taken on it by the learned Chief Judicial Magistrate, Banda, an application dated 6.2.2012 has been moved by the accused Sadhu Ram Sharma for transferring the investigation to CBCID on which the Government has taken decision to get the investigation done by the CBCID, its communication has been made by the Special Secretary, U.P. Government Lucknow to Additional Director of Police CBCID Lucknow on 27.6.2012, consequently, Sri Anirudh Kumar Tiwari, Inspector of CBCID Lucknow moved an application dated 11.7.2012 in the court of the Chief Judicial Magistrate, Banda for providing the case diary and other connected documents to do further investigation. The decision taken by the Government to transfer the investigation to CBCID has been challenged by the petitioner by way filing the present writ petition.
It is submitted by the learned counsel for the petitioner that it is a case in which after completing the investigation charge sheet has been submitted on which the learned Chief Judicial Magistrate, Banda has taken cognizance, thereafter, on an application moved by the accused Sadhu Ram Sharma, investigation has been transferred to CBCID by the State Government. The order passed by the State Government does not show that further investigation has been directed to be done but the application moved by the Inspector of CBCID in the court of learned Chief Judicial Magistrate. Banda shows that for conducting further investigation case diary and other connected documents were demanded by the court. It is a case in which without assigning any proper reason, the order for transferring the investigation to CBCID has been passed. It is a case in which charge sheet has been submitted against the accused persons as absconder, even after submission of the charge sheet and cognizance taken by the learned Chief Judicial Magistrate, Banda, the accused persons were not arrested. Therefore, the order of transferring the investigation to CBCID is illegal and the same has been passed without ascertaining the fact that in the present case investigation was also completed and on the police report, the learned Chief Judicial Magistrate, Banda had already taken cognizance against the accused persons. The application moved by the accused Sadhu Ram Sharma for transferring the investigation is full of malafide, which has been moved only to avoid from the arrest so that the accused persons may not be arrested whereas N.B.W. and the proceedings under sections 82/83 Cr.P.C. have already been issued from the court. Therefore, the impugned order may be quashed.
In reply to the above contention, it is submitted by the learned A.G.A. that it is admitted that on the application moved by the accused Sadhu Ram Sharma, State Government has taken decision transferring the investigation to CBCID after considering all the pros and cons and to meet the ends of justice so that fair investigation may be done, the impugned order has been passed. The communication made by the Special Secretary, U.P. Government, shows that the impugned order has been passed after obtaining the report from the S.P. Banda. The impugned order transferring the investigation to CBCID has been passed after following proper procedure and the same has been passed to meet the end of justice. The impugned order is not suffering from any illegality or irregularity, the present writ petition is devoid of merits, the same may be dismissed.
Considering the facts and circumstances of the case, submission made by the learned counsel for the petitioner and the learned A.G.A. and from the perusal of the record it reveals that the FIR of this case has been lodged by the petitioner, the death of the daughter of the deceased has occurred within seven years of her marriage, according to the allegation made it was unnatural death, in the impugned FIR the allegation with regard to the demand of dowry has been made, the civil police has conducted the investigation, after completing the investigation the charge sheet has been submitted against all the four accused persons who are named in the FIR. The charge sheet dated 22.7.2011 has been submitted in the court of Chief Judicial Magistrate, Banda on which the learned Chief Judicial Magistrate, Banda has taken cognizance on 10.8.2011. Thereafter, on the application dated 6.2.2012 moved by one of the accused Sadhu Ram Sharma, the State Government has taken decision to transfer the investigation to CBCID. It appears that it has not been brought to the notice of the State Government that in the present case investigation was not pending and the charge sheet was already submitted on which the learned Chief Judicial Magistrate had taken cognizance. The impugned order is not showing any ground to transfer the investigation even no ground has been shown to do further investigation, it is a none speaking order, which has been passed without any rhyme or reason, it has been passed in a routine manner without applying the judicial mind, even it has not been brought to the notice of the State Government that in the present case accused persons have not appeared before the court concerned, the charge sheet has been submitted against them in absconding, for ensuring their appearance N.B.W. and process under section 82/83 Cr.P.C. have been issued. It appears that the impugned order has been passed only to provide protection to the accused persons from their arrest. The impugned order transferring to CBCID is illegal and it is hereby set aside.
Accordingly this petition is allowed.
Dt. 14.10.2014
NA
