Kumari Aayasha vs State Of U.P. And 3 Others
2017 Latest Caselaw 6736 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 23910 of 2016
 

 
Petitioner :- Kumari Aayasha
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Indra Kumar Chaturvedi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra, J.)

The first informant Km. Aayasha has filed the present writ petition challenging the order dated 15.6.2016 passed by the respondent No. 2 Senior Superintendent of Police, Muzaffar Nagar, whereby the investigation of Case Crime No. 102 of 2016, under sections 147, 148, 149, 302/34 IPC, P.S. Meerapur, District Muzaffar Nagar, has been transferred from the local police of District Muzaffar Nagar to C.B.C.I.D., Meerut Region, Meerut. A further prayer has been made to call for the order dated 18.5.2016 passed by the respondent No. 1 the Secretary, Department of Home, Government of U.P., Lucknow, whereby a decision was taken by the State Government to transfer the investigation of the above mentioned crime number to the C.B.C.I.D.

We have heard Mr. I.K. Chaturvedi, learned counsel for the petitioner and Mr. Ajit Ray, learned A.G.A. representing the respondent Nos. 1, 2, 3 and 4.

Vide order dated 02.02.2017 passed on the writ petition, notices were issued to the respondent No. 5. The Office has submitted a report dated 26.7.2017 stating therein that pursuant to the order dated 2.2.2017, notices were issued to the respondent No. 5 by registered post with acknowledgement due fixing 20.3.2017, as the next date in the present writ petition. However, neither the acknowledgement, nor un-deliverred cover has been received so far. As such, the service of notice upon the respondent No. 5 shall be deemed to be sufficient under the provisions of Explanation II to Rule 12 of Chapter VIII of the High Court Rules.

The present writ petition was taken up for admission on 22.11.2016 and the learned A.G.A. representing the respondent Nos. 1 to 4 was directed to file a counter affidavit. Accordingly, a short counter affidavit has been filed on behalf of the respondent No. 1, whereby the order dated 18.5.2016 passed by the Secretary, Department of Home, Government of Uttar Pradesh, Lucknow, whereby a decision was taken at the Government level to transfer the investigation of the above mentioned case crime number to C.B.C.I.D., the G.O. dated 05.09.1995, the G.O. dated 22.10.2014 regarding transfer of investigation from the local police to the C.B.C.I.D. and the report of the Senior Superintendent of Police, Muzaffar Nagar, dated 30.3.2016, on the basis of which, the decision to transfer the investigation of the above mentioned case crime number to C.B.C.I.D. was taken have been brought on record.

Learned counsel for the petitioner Mr. I.K. Chaturvedi has submitted before us that the matter relating to the transfer of investigation from the local police to the C.B.C.I.D. is regulated under the provisions of G.O. dated 05.09.1995 as amended vide G.O. dated 22.10.2014. A conjoint reading of the Government Orders dated 05.09.1995 and 22.10.2014 leads to the inescapable conclusion that the transfer can be effected only upon the satisfaction of one or more of the conditions enumerated at Serial Nos. 1, 2 3 and 4 of the Government Order dated 05.09.1995 coupled with the condition as provided, vide G.O. dated 22.10.2014, to the effect that no transfer can be affected without obtaining the report of the Senior Superintendent of Police.

On the aforesaid factual basis, learned counsel for the petitioner vehemently contends before us that none of the conditions as provided for in the G.O. dated 05.09.1995 are satisfied in the present case. Furthermore, the report dated 30.03.2016 submitted by the Senior Superintendent of Police, Muzaffar Nagar also does not make any recommendation for transfer of the investigation of the above mentioned case crime number from the local police to the C.B.C.I.D., Meerut Region, Meerut. Thus, the learned counsel for the petitioner contends that the recommendation made on the report dated 30.03.2016 is wholly arbitrary. Elaborating his argument, learned counsel for the petitioner further submitted that once a decision has been taken without considering the material on the record as well as the subordinate legislation occupying the field, such a decision cannot be sustained in law.

In support of the aforesaid submission, learned counsel for the petitioner relied upon the judgement of Supreme Court in the case of State of U.P. Vs. Maharaja Dharmander Prasad Singh, AIR 1989 SC, 997, in which it has been held that when the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the relevance of the factors. Paragraph No. 28 of the aforesaid judgement, which is relevant for the controversy in hand is reproduced herein below:-

" It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion. It is true that amongst the many grounds put forward in the show cause notice dated 19-1-1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such."

It was next submitted before us that the order dated 18.05.2016 passed by the Secretary Department of Home, Government of U.P., whereby the decision was taken to transfer the investigation of the above mentioned case crime number from the local police to the C.B.C.I.D., Meerut Region, Meerut, has been passed at the behest of Smt. Safia, w/o Waqil Ahmad, who is named as an accused in the F.I.R. dated 16.02.2016.

It is the submission of the learned counsel for the petitioner that in view of the law laid down by the Hon'ble Supreme Court in the case of C.B.I. Vs. Rajesh Gandhi as reported in AIR 1997 SC, 93, the accuse has no right to choose his investigating agency. Reliance has been placed upon paragraph No. 7 of the judgement, which is reproduced herein below:-

"There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2.6.1994 is issued b y the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the powers and Jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station, on case No.159 of 9.3.1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (l) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120-8 and 201 I.P.C. and Section 4 of the Prevention Of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No.159 dated 9.3.1933 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police had not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result. the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate."

Elaborating his argument, learned counsel for the petitioner also referred to the judgements of the Supreme Court in the case of Sakiri Vasu Versus State of U.P. and others reported in AIR 2008 (2) SC 409, which has been recently followed in the case of Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and others reported in (2016) 6 SCC 277 in support of his submission that the accuse has no right to choose his investigating agency.

Upon consideration of the judgement of the Hon'ble Supreme Court referred to above we find that the order dated 18.5.2016 passed by the Secretary, Department of Home, Government of U.P., Lucknow, has been passed at the behest of the wife of one of the accused namely Waqil Ahmad. The only ground discernible from the order dated 18.5.2016 for transferring the case to C.B.C.I.D. appears to be the plea of alibi raised by the applicant Smt. Safia in respect of some of the accused persons. The order dated 18.5.2016 does not record a satisfaction regarding fulfilment of any of the conditions necessary for transfer of investigation from local police to C.B.C.I.D. as provided, vide G.O. dated 05.09.1995. Furthermore, the report dated 30.03.2016 submitted by the Senior Superintendent of Police, Muzaffar Nagar does not recommend for transfer of the above mentioned case crime number to the C.B.C.I.D. Thus, the learned counsel for the petitioner is right in contending before us that the impugned order dated 18.05.2016 passed by the respondent No. 1 is violative of the G.O. dated 22.10.2014 and contrary to the report dated 30.03.2016 submitted by the Senior Superintendent of Police, Muzaffar Nagar.

Consequently, for the reasons given above, the impugned order dated 18.05.2016 passed by the Secretary, Department of Home, Government of U.P. Lucknow, (Annexure No. 4 to the short counter affidavit) as well as the consequential order dated 15.06.2016 passed by the Senior Superintendent of Police, Muzaffar Nagar, (Annexure No. 9 to the writ petition) cannot be sustained and are liable to be quashed. Accordingly, the same are quashed.

The writ petition is allowed, however, we make no order as to costs.

Order Date :- 13.11.2017

HSM