Ashok Kumari And Another vs State Of U.P. And 5 Others
2022 Latest Caselaw 2581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1464 of 2022
 

 
Petitioner :- Ashok Kumari And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Gaurav Singh,Pusp Raj Singh,Sr. Advocate
 
Counsel for Respondent :- G.A.,Birendra Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Rajnish Kumar,J.

1. This petition is filed by the accused-petitioners with the prayer to quash the order dated 13.01.2022 passed by the State Government transferring investigation of case Crime No.8 of 2021 to the local investigation agency.

2. In response to our previous orders the Special Secretary of the State has filed the counter affidavit justifying their action of restoring investigation with the local investigation agency.

3. A cross F.I.R. has been lodged under various sections as Case Crime No.8 of 2021 and 15 of 2021, Police Station- Girwan, District- Banda. One of the F.I.Rs. i.e. Case Crime No.8 of 2021 is under Section 147, 148, 149, 302, 307, 323, 504 I.P.C. whereas the other F.I.R. is under Sections- 427, 308, 506, 504,323, 149, 148, 147 I.P.C. The investigation proceeded in the matter where after one of the accused persons in Case Crime No.8 of 2021 made an application to the State Government for transference of investigation to other agency. Consequently, the State Government passed an order on 22.02.2021 directing investigation in the matter to be conducted by C.B.C.I.D. This order came to be challenged before the writ court in Writ Petition No.5186 of 2021 in which following orders were passed on 25.08.2021:-

"The impugned order dated 22.2.2021, transferring the investigation of Case Crime No. 08 / 2021 dated 8.1.2021, under Section 147, 148,149, 302, 307, 323, 506 and 34 IPC, P.S. Girwan, District Banda, has been passed on the application of Smt. Ashoka Kumari, wife of the main accused namely Anoop Singh, who as per the aforesaid FIR No. 08 of 2021, shot dead the nephew of the petitioner namely Ajeet.

The contention of learned counsel for the petitioner is that in view of the law laid down by Hon'ble the Apex Court in Romila Thapar Vs. Union of India, 2018 (10) SCC 753, the investigating agency cannot be changed at the behest of named accused. By the impugned order dated 22.2.2021 passed by Additional Chief Secretary, Home, Government of U.P. on the application of Ashoka Kumari, wife of main accused i.e. Anoop Singh, respondent no. 6 dated 22.2.2021 (same day), the investigation of Case Crime No. 08 of 2021 and Case Crime No. 15 of 2021 have been transferred to C.B.C.I.D. Learned counsel for the petitioner submits that investigating agency could not have been changed by respondent no. 1 at the behest of named accused in view of the law laid down by the Supreme Court in the case of Romila Thapar (supra).

Sri Vishnu Gupta, learned Senior Advocate assisted by Sri Ashok Gupta, learned counsel appearing on behalf of respondent no. 6 submits that investigation has been transferred to C.B.C.I.D. not only of Case Crime No. 08 of 2021 but also of Case Crime No. 15 of 2021, which was lodged from the side of respondent no. 6.

Learned counsel for respondent no. 6 states that he has also got instructions from respondent nos. 7 to 12 and vakalatnama shall be filed very shortly. He admits that respondent no. 6 could neither be arrested nor has surrendered.

Thus it appears that respondent no. 6, who is the main accused in FIR No. 08 of 2021, is absconding.

Learned AGA appearing for State-respondents as well as learned counsel for private respondents pray for and are granted a week's time to file counter affidavit in the matter. The petitioner shall have three days, thereafter, to file rejoinder affidavit.

The State- respondents shall disclose in their counter affidavit the steps taken under the relevant provisions of Cr.P.C. against the main accused i.e. respondent no. 6 as well as other accused for their arrest.

Put up as fresh on 6.9.2021.

On the next date fixed, respondent no. 6 shall show cause for non-cooperation in the investigation in respect of the impugned FIR no. 08 of 2021."

4. The State Government thereafter proceeded to recall earlier order after taking note of the observations contained in the judgment of this Court in Writ Petition No.6973 of 2014 decided on 21.05.2014 wherein following observations were made:-

"We deem it fit and proper to issue following directions in the matter of transfer of investigation by the higher police authorities or by the State Government:

(a) normally there should be no any order of transfer of investigation on an application made by an accused.

(b) Every attempt should be made by the higher police authorities/State on receipt of an application for transfer of investigation to first ensure that the investigation is done by the concerned Police Station/concerned police authority in a fair and diligent manner.

(c) Before passing any order on an application for transfer of investigation, the minimum expected from the State Government or from the higher police officers is to obtain a report from the Investigating Officer qua the status of the investigation and the order of the High Court, if any, in respect of the case crime number.

d.If it is absolutely necessary to pass an order of transfer of investigation on the application of an accused, then the minimum required would be that the order must be supported by cogent reasons with reference to the material available with the authority transferring the investigation.

(e) If necessary and permissible, an opportunity should also be afforded to the informant/complainant before making any such order of transfer.

The directions issued by us herein above must be strictly complied with and there should be no occasion for any complaint being made to this Court that the higher authorities/State Government have disobeyed the directions, so issued.

For the reasons recorded above, the order impugned is, hereby, quashed.

We further hold that the complainant would be entitled to a cost of Rs. 20,000/- (Rupees Twenty Thousand) to be paid by the officer, who had made the impugned order of transfer of investigation, as cost for uncalled for litigation being generated and for the investigation being prolonged unnecessarily because of such an order.

A copy of this order shall be forwarded to the Secretary (Home), U.P. Shasan, Lucknow for necessary compliance.

Writ petition is allowed with cost as quantified above."

5. The State Government thereafter issued notices to the parties in compliance of the above observations and ultimately vide order dated 13.01.2022 a decision has been taken for the investigation to be continued by the local police. It is this order which is challenged in the present petition.

6. Learned Senior Counsel for the petitioner states that the order impugned contains no reasons and the contention advanced by way of representations made before the State Government have not been adverted to. It is also submitted that a charge sheet has already been filed by the C.B.C.I.D. against four accused persons and it would thus not be appropriate to direct the part of the investigation to be continued by an agency other then the agency which has already submitted the charge sheet.

7. The petition is opposed by the private respondent represented through Shri Virendra Singh and Shri Anuj Srivastava. Shri Ali Murtaza, learned A.G.A. has appeared for the State.

8. Learned A.G.A. states that the State Government has merely corrected its stand and has allowed the investigation to be undertaken by the competent agency since it was found that no specific reasons existed for the investigation to be withdrawn from the routine investigation agency. It is also stated that the previous decision was not in accordance with law laid down by this Court and therefore the impugned actions suffers from no infirmity in the eyes of law.

9. We have heard the learned counsel for the parties and perused the materials available on record.

10. Law is settled that the investigation in a criminal case would ordinarily be conducted by the agency entrusted with the task of such investigation and it is only for justifiable or valid reasons that any departure would be warranted so as to transfer the investigation to any other agency. It is otherwise settled vide Romilla Thapar Vs. Union of India : 2018 10 SCC 753 that the investigation agency can not be changed at the behest of the named accused. We have examined the records of the present case but no substantial ground has been urged before us in order to question the impartiality of the local investigation agency which may justify the transference of investigation to any other agency. No reasons otherwise were disclosed in the previous order of the State Government and that is why the State after being confronted with the order of this Court in Writ Petition No.5186 of 2021 has rightly recalled its previous order. We are further informed that petitioner is one of the accused in the offence under Section 302 I.P.C. but has neither surrendered nor has been arrested. At his instance therefore we are not inclined to examine the matter any further particularly when the action of the State in directing the investigation to be carried out by the local investigation agency is not shown to be perverse or erroneous for any reason. So far as the investigation having being undertaken by the C.B.C.I.D. in part is concerned, we are informed that investigation had already been undertaken in part by the local investigation agency and certain arrest was also made by them. In such circumstances no prejudice of any kind is shown to have been caused to the fair investigation if the investigation of the aforesaid two cases is restored to the local investigation agency.

11. The writ petition lacks merit and it is, accordingly, dismissed.

Order Date :- 12.5.2022

Haseen U.