Tausiful Hasan vs State Of U.P. And 6 Others
2015 Latest Caselaw 3452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 20966 of 2015
 
Petitioner :- 	Tausiful Hasan
 
Respondent :- 	State Of U.P. And 6 Others
 
Counsel for Petitioner :- 	Faizan Ahmad, S.F.A.Naqvi
 
Counsel for Respondent :- Govt. Advocate, Anil Kumar Pathak
 
Hon'ble Vikram Nath, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. The facts relating to this petition are that a first information report dated 31.12.2013 was lodged by Inspector, Crime Branch, CID, U.P., Lucknow regarding incident of 15.12.2005. On the basis of which, case crime no. 217 of 2013, under Sections 420, 467, 468, 471, 120-B, 409, 34 I.P.C. was registered against Tausiful Hasan (present petitioner and seven other persons). During investigation of this case, several other persons were made accused and investigation proceeded. During investigation one Smt. Ranu Agarwal wife of one accused Sharad Agarwal had moved application dated 06.07.2015 (Annexure-4 to present writ petition) before the Director General of Police, C.B.C.I.D., U.P., Lucknow with averment that accused Tausiful Hasan and other persons had made interpolation in evidences and proper investigation is not being carried out. Therefore, in light of new facts mentioned in this application order for further investigation/re-investigation be made. It is also stated in present petition that on said application of wife of one accused the S.P., Confidential, Crime Branch, C.I.D., U.P., Lucknow had passed order dated 22.07.2015 (Annexure-1 to present writ petition), by which investigation of said case was transferred from Crime Branch, C.B.C.I.D., Kanpur to Crime Branch, C.B.C.I.D., Allahabad Division, and direction was also given to the effect that further investigation be completed within two months. This order of transfer of investigation has been challenged in present writ petition. The impugned order of under challenge reads as under:-

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2. Against aforesaid order of transfer of investigation, present petition has been filed by another accused Tausiful Hasan on the following grounds and following reliefs:-

"GROUNDS

I. Because the order impugned is totally illegal and uncalled for in view of the various dictums laid down by this Hon'ble Court as well as by Hon'ble Apex Court that investigation of a case cannot be transferred at the behest of an accused against whom already overwhelming evidence has been collected by the investigating agency. Transferring of investigation is nothing but waste of public money as well it erodes the public faith over the police and system of investigation as well as judicial process.

II. Because it appears that the respondent No. 5 is bent upon to get himself exonerated from the crime and for that he is exerting all sorts of pressure, manipulation and threatenings upon the respondent authorities.

III. Because the impugned order passed by respondent No. 2 is wholly arbitrary, illegal and has been passed without considering the fact that respondent No. 5 has been found guilty of commission of offence in the enquiry and thereafter F.I.R. Of crime No. 217 of 2013 was lodged, and again he was found guilty in the report of submitted by CBCID. Thereafter, on the basis of an application moved by respondent no. 5 himself, a check up was made and in the said check up too, the respondent No. 5 has been found guilty. Now there was no justification for transferring the investigation of case crime No. 217 of 2013 that too on the application moved by respondent No. 6.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:-

(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dt. 22.7.2015 (Annexure No. 1) passed by the respondent No. 2.

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

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

3. Heard Sri S.F.A. Naqvi, Advocate assisted by Sri Faizan Ahmad, counsel for the petitioner, Sri A.K. Sand, learned A.G.A. for the State-respondent, Sri M.C. Chaturvedi, senior counsel assisted by Sri Anil Kumar Pathak representing respondent nos. 5 and 6, and perused the records.

4. The first ground in writ petition is that "in view of the various dictums laid down by this Hon'ble Court as well as by Hon'ble Apex Court that investigation of a case cannot be transferred at the behest of an accused against whom already overwhelming evidence has been collected by the investigating agency". This argument is unacceptable in light of various verdicts of Apex Court itself. In present matter neither any accused nor other person (including Ranu Agarwal wife of one accused Sharad Agarwal) had not made request for transferring the investigation. Rather request was for further/ re-investigation. It was decision of competent authority itself to transfer the investigation to CB CID Allahabad, the integrity of which has not been challenged by anyone so far. The discretion of police department to get the matter investigated by a particular Investigating Officer or Agency cannot be interfered with on request of an accused, especially when there is no special reason for the same. Whether there is sufficient matter to conclude investigation or not cannot be decided by accused or prospective accused.

5. In Rajesh Gandhi (1996) 11 SCC 253, the Apex Court held the law as follows:

"8. - - - The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice."

6. Apex Court in Narender G. Goel Vs. State of Maharashtra (2009) 6 SCC 65 held :

"11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case."

7. In Union of India Vs. W.N. Chadha 1993 Supp (4) SCC 260 the Apex Court had held :

"92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be."

8. So far the ground of "transferring of investigation is nothing but waste of public money as well it erodes the public faith over the police and system of investigation as well as judicial process" is concerned, this matter is also of none of the concern of accused (petitioner in present case). In Mohd. Anis v. Union of India, 1994 Supp (1) SCC 145 the Apex Court had held that:

"Fair and impartial investigation by an independent agency, not involved in the controversy, is the demand of public interest. If the investigation is by an agency which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to the public interest as well as the interest of justice."

9. Public money is always involved in meeting the expenses of investigation to help the Courts to get the truth, like hearing of present petition for imparting justice. So far point of public faith is concerned that cannot be decided by petitioner/ accused. There is no evidence to indicate that one division (of Kanpur) of Investigating Agency in question (C.B. C.I.D., U.P.) is honest and other branch (of Allahabad) may be unfair. It is within discretionary power of the concerned competent authority to decide as to when the matter will be given for investigation and to whom. For eradicating even the remote chances of unfairness or doubt, such power to transfer the investigation has to be exercised. The accused has no right to have any say in such matter.

10. Any right to accused/ petitioner may accrue only when there is possibility of infringement of any of his constitutional right. As held earlier the accused/ petitioner has no right to interfere in investigation. There is no likelihood of violation of any right of petitioner by impugned order. The doctrine of audi alterum partem is not applicable during investigation because the work of any investigating agency is not to decide any right but only to collect the evidences to be placed before the court. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case.

11. In Union of India Vs. W.N. Chadha 1993 Supp (4) SCC 260, the Apex Court had held as follows:

"89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all."

12. The other two grounds stated in the petition are based on conjuctures. The petitioner aprehends the respondents would get themselves exonerated in the investigation by exerting all kinds of pressures and manipulations. It is also apprehended that the respondents having already been found guilty may now manipulate to get themselves exonerated after the investigation has been transferred from Crime Branch, CID, Kanpur to Crime Branch, CID, Allahabad. On such apprehensions, no relief can be granted. In any case, the petitioner has a right to defend himself and in that process also has equal right as of the complainant to lead evidence. The accused are also at liberty to lead evidence against other co-accused. For the above reasons, the second and third ground also do not make out a case for interference.

13. In case, after the completion of investigation and submission of report under section 173(2) CrPC, any report is there against accused, then the he can certainly avail himself of an opportunity to cross-examine or otherwise controvert the authenticity, admissibility or legal significance of material evidence gathered in the course of further investigation. But during investigation he has no right to be heard for determining the investigating agency or any such other matter.

14. It has been admitted in present writ petition that evidence for commission of offence has been collected during investigation. Therefore the investigating agency should not be interfered with in discharge of their official duty. There is no reason to exercise power of writ jurisdiction, as held above, on petition of accused-petitioner. The power under Article 226 of Constitution of India can be exercised only for protection of or for the enforcement of any of the rights conferred by its Part III. No legal right of petitioner, much less a constitutional or fundamental, is under jeopardy by impugned order. Therefore this writ petition is dismissed.

Order Date :- 27.10.2015

SR