Mushtaq Khan vs State Of U.P. And 3 Others
2017 Latest Caselaw 3193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								         A.F.R.
 
Court No. - 45
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 16285 of 2017
 
Petitioner :- Mushtaq Khan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Nikhil Kumar
 
Counsel for Respondent :- G.A.
 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Delivered by Hon'ble Prabhat Chandra Tripathi, J.)

This writ petition petition has been filed, inter alia, for the following relief;

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 06.05.2017 and 10.07.2017 passed by the respondent no. 4 regarding change of Investigating Officer of Case Crime No. 901 of 2016, under Sections 147, 148, 149, 323, 324, 307 I.P.C. and Case Crime No. 904 of 2016, under Sections 147, 148, 149, 323, 307, 504 and 506 I.P.C.

Heard learned counsel for the petitioner, learned AGA and perused the record.

Learned counsel for the petitioner has submitted that the petitioner had lodged an F.I.R., which was registered as Case Crime No. 901 of 2016, under Sections 147, 148, 149, 323, 324, 307 I.P.C., Police Station Kotwali Gursahaiganj, District Kannauj on 14.12.2016 regarding an incident in which 18 named persons had violently beaten the brother and nephew of the petitioner who sustained grievous injuries. It is further submitted that on the basis of the F.I.R., the investigation was initiated by the Investigating Officer and accused Mohd. Raza, Abdul Jaleel, Irshad, Nafees and Sangu were arrested by the police on 14.12.2016 and from the possession of the accused Mohd. Raza one country made pistol and from the possession of Irshad one knife was recovered and recovery memo was prepared by the S.S.I. Naveen Kumar Singh. It is next submitted that for the same incident, the accused Irshad (informant of Case Crime No. 904 of 2016), who was in police custody, also lodged an F.I.R. which was registered as Case Crime No. 904 of 2016, under Sections 147, 148, 149, 323, 307, 504 and 506 I.P.C. as a counterblast against the 19 persons including the petitioner on 15.12.2016. It is further submitted that when the informant Irshad was arrested and from whose possession one knife was recovered, then it is clear that the cross F.I.R. was lodged by the informant Irshad in police custody on 15.12.2017 as a counterblast against the family members of the petitioner naming 19 persons including the petitioner as accused persons and nowhere it is mentioned that the informant Irshad had lodged the cross F.I.R. while he was in police custody.

Learned counsel for the petitioner further submitted that the investigation of both the cases were entrusted to Sub-Inspector Swayambar Singh but on account of political pressure of the accused persons named in Case Crime No. 901 of 2016, the Investigating Officer was changed and the investigation was entrusted to S.I. Sri Shoeb Khan. After completing the investigation, the Investigating Officer moved an application in the Court of Chief Judicial Magistrate, Kannauj for issuance of Non-Bailable Warrants against the accused persons named in Case Crime No. 901 of 2016 who were absconding and by order dated 10.01.2017 Non-Bailable Warrants were issued against the accused persons of Case Crime No. 901 of 2016 but prior to execution of the Non-Bailable Warrants, the respondent no. 3 by order dated 23.02.2017 transferred the investigation of Case Crime No. 904 of 2016 and Case Crime No. 901 of 2016 and the respondent no. 2 also by order dated 12.04.2017 transferred both the cases from District Kannauj to District Auraiya. In pursuance of the order dated 12.4.2017, the respondent no. 4-the District Superintendent of Police, Kannauj also passed an order dated 16.04.2017 entrusting the investigation of both the cases to S.I. Sri Farmood Ali Pundir. The new Investigating Officer submitted charge sheet in both the cases. It is also submitted that prior to submission of charge sheet, Non-Bailable Warrants were issued by the Chief Judicial Magistrate, Kannauj against Mushahid, Hashim and Rashid. It is pointed out by learned counsel for the petitioner that after submission of charge sheet, one Niyaz Ahmad claiming himself to be injured of Case Crime No. 904 of 2016, filed an application before the respondent no. 4 for transferring the Investigating Officer of both the cases and the respondent no. 4 by order dated 04.05.2017 transferred the investigation to S.S.I. Dibiyapur. The respondent no. 4 also passed an order dated 06.05.2017 transferring the investigation from Sri Farmood Ali Pundir to S.S.I. Sri Nanhe Lal. Lastly, the respondent no. 4 without assigning any reason by an order dated 10.07.2017 again changed the Investigating Officer. Both the orders dated 06.05.2016 and 10.07.2017 are impugned in the present writ petition.

Learned counsel for the petitioner submits that the impugned orders have been passed at the instance of the accused persons who have no locus to make request for change of investigating agency. The impugned orders have been passed without providing any opportunity of hearing to the petitioner. The impugned orders are apparently illegal, arbitrary and unjustified and the same are liable to be quashed

Learned A.G.A. vehemently opposed the submissions made by learned counsel for the petitioner and submitted that the orders passed by the respondent no.4 are perfectly legal and within the jurisdiction vested in him.

Section 157 Cr.P.C., 1973 is enumerated herein below:-

"157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

Provided that---

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:

[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality]

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."

U.P. POLICE REGULATIONS

Section A, Part I, Powers And Duties Of Officers, Chapter I, Superior Officers, Superintendent of Police.

Rule 12 of the U.P. Police Regulations is enumerated herein below:-

"12. The Superintendent is the head of the police force of the district; he is responsible for its efficiency and discipline and for the proper performance of its duties. He must see that the orders of Courts and other competent authorities are promptly carried out."

The power under Article 226 of the Constitution cannot be pressed into service to thwart or throttle the investigation at the threshold. It is only after the completion of investigation, it can be seen as to whether the facts, as disclosed in investigation prima facie make out any offence or not.

The investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government and the Court would not be justified without any compelling and justifiable reason to interfere with the investigation and quash it.

In the light of aforesaid discussions, this writ petition is liable to be dismissed.

The writ petition is dismissed.

Order Date :- 11.8.2017

Rmk.