Gaaurav Tripathi vs State Of U P And 9 Others
2023 Latest Caselaw 6741 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 15.02.2023
 
Delivered on 02.03.2023
 
Court No. - 43
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 7952 of 2022
 

 
Petitioner :- Gaaurav Tripathi
 
Respondent :- State Of U P And 9 Others
 
Counsel for Petitioner :- Sundeep Shukla,Navin Kumar Sharma
 
Counsel for Respondent :- G.A.,Bharat Singh
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Kshitij Shailendra,J.

(Delivered by Kshitij Shailendra, J.)

1. Heard Sri Sandeep Shukla, learned counsel for the petitioner, Sri Bharat Singh, learned counsel appearing for the respondent no. 10 and Sri G.P. Singh, learned A.G.A. appearing for the State.

2. Pursuant to the orders of this Court dated 17.1.2023 and 30.1.2023 learned A.G.A. has produced before this Court attested copy of the order dated 17.5.2022 alongwith other documents, which are taken on record.

3. This petition has been filed inter alia claiming following reliefs:-

"a. Issue a writ, order or direction in the nature of mandamus calling for the record of order dated 17.05.2022 passed by respondent number 3, being number वी.आई.पी.-15/ 39-4-2022-50 ,e (01)/2021 and further to issue a writ of certiorari quashing impugned order dated 17.05.2022 and consequential order dated 02.06.2022 passed by respondent number 7 directing transfer of investigation of Case Crime Number 5 of 2021 from Gorakhpur Sector of Uttar Pradesh (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment).

b. Issue a writ, order or direction in the nature of mandamus commanding upon the respondent number 4 to pass appropriate order under section 19 of The Prevention of Corruption Act, 1988 on the police report submitted in First Information Report dated 16.09.2021 bearing Case Crime Number 5 of 2021, under section 7 The Prevention of Corruption Act, 1988 Police Station Gorakhpur Sector (Vigilance Establishment), District Gorakhpur."

4. The necessary facts giving rise to the present writ petition are that the petitioner was working as Assistant Teacher at Primary School, Barhauwa, Vikas Khand Saltauva, Gopalpur and on 26.08.2021, petitioner was suffering from cold, cough, fever etc. problem and for medical treatment he went to District T.B. Hospital, Basti having O.P.D. registration number 6034; on account of aforesaid medical problem, petitioner took leave on 26.08.2021, the said information was duly communicated to the Principal of school and it was duly noted in the school register; the online portal for sanction of leave was nonfunctional (due to technical error) in the entire Uttar Pradesh from 21.08.2021 to 27.08.2021, that is why petitioner applied offline for the leave and the information was given to respondent no.10; the respondent no.10 visited the school on 26.08.2021 and created a chaos there. He has also made overwriting in the attendance register and marked petitioner absent; as soon as the petitioner got the abovementioned information from school staff after he came back on 28.08.2021, he went to meet private respondent after school hours; the petitioner was asked to meet at 06:00 pm in front of Boons restaurant at District Basti and there an illegal demand of Rs. 10,000/- (finally settled for Rs. 7,000/-) was raised by respondent no.10 from petitioner; on the said illegal demand being raised by respondent no. 10, a complaint dated 06.09.2021 was made before Superintendent of Police, Vigilance Department, Gorakhpur raising his grievances; acting on the said complaint dated 06.09.2021, inquiry was done, averments of complaint were found genuine and it came into the knowledge that respondent no.10 is a corrupt officer; later on after following due process, trap was organized on 15.09.2021 and respondent number 10 was caught red handed by the trap team taking bribe of Rs. 7,000/-; for the offence committed by respondent no.10, first information report dated 16.09.2021 was registered at Police Station Gorakhpur Sector (Vigilance Establishment) under Section 7 of the Prevention of Corruption Act, 1988 against respondent no.10; once respondent no.10 was arrested and sent to judicial custody, vide order dated 24.09.2021 he was suspended; bail application was moved by the respondent no.10 before Additional District and Sessions Judge (P.C. Act), Court Number 5, Gorakhpur being Bail Application Number 4445 of 2021 and the same was rejected vide order dated 28.09.2021; being aggrieved by bail rejection order dated 28.09.2021, Bail Application Number 43678 of 2021 (Manoj Kumar Singh Vs. State of U.P.) was filed before this Court; since charge sheet was not submitted within prescribed period, therefore an application under section 167(2) Cr.P.C. was moved by the respondent no.10 before the court below with a prayer to release on bail; Investigating Officer and Special Public Prosecutor submitted report before the court below that entire documents were sent to the Government but prosecution sanction had not been given; the learned Additional District and Session Judge (P.C. Act), Court Number 5, Gorakhpur granted bail to respondent n.10 vide order dated 16.11.2021; once bail application of respondent no.10 was allowed by the court below, bail application filed before this Court was dismissed as infructuous vide order dated 09.12.2021.

5. This Court while entertaining the writ petition at the initial stage passed order dated 08.07.2022, relevant portion whereof is extracted herein-below:

"Learned counsel for the petitioner submits that the petitioner was working as Assistant Teacher at Primary School, Barhauwa, Vikas Khand Saltauva, Gopalganj, District Gorakhpur. On 26.8.2021 he was suffering from fever and cold/cough and due to illness, he took leave on 26.8.2021. Shri Monoj Kumar Singh, Block Education Officer/respondent no.10 visited the school on the said date and marked the petitioner as 'absent'. On some illegal demand made by the respondent no.10, the petitioner made a complaint before the Superintendent of Police, Vigilance Department, Gorakhpur on 06.9.2021 against him. Thereafter, the respondent no.10 was caught red handed by the trap team while taking bribe of Rs.7000/- and consequently, the first information report was lodged against him on 16.9.2021 at Police Station Gorakhpur Sector (Vigilance Establishment) under Section 7 of the Prevention of Corruption Act, 1988 against him. He was arrested on 24.9.2021 and sent to judicial custody. It is also alleged that the respondent no.10 is an influential person and has been reinstated in service. The competent authority is sitting tight in the matters relating to prosecution sanction. A bare perusal of the order impugned dated 02.6.2022, it is crystal clear that the impugned order dated 17.5.2022 is passed on the recommendation of the political persons and even their names are also mentioned. As per business rules, they have no authority to intervene in the proceeding. By the impugned order dated 02.06.2022, respondent no. 7 has directed for transfer of the investigation of Case Crime Number 05 of 2021 from Gorakhpur Sector of Uttar Pradesh (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment), that too on the pretext of the accused person, which clearly shows that the impugned orders are passed just to provide benefit to respondent no. 10. In support of his submission, he has placed reliance on paragraph no. 39 of the judgment passed by Hon'ble Apex Court in Writ Petition (Crl) No. 130 of 2020 (Arnab Ranjan Goswami vs. Union of India & Ors).

Before proceeding further in the matter, let learned A.G.A. seek instructions in the matter and file an affidavit of the respondent no.3, Additional Chief Secretary, Home and Vigilance Establishment Government of U.P., Lucknow and respondent no. 4, Additional Director Education (Basic) Prayagraj, on or before the next date fixed in the matter.

Put up this case again as fresh on 13.07.2022."

6. This Court, by its subsequent order dated 30.01.2023, directed the learned AGA to produce the order dated 17.05.2022 passed by the Additional Chief Secretary, which has been impugned in the present petition, inasmuch as the contention of the petitioner is specific to the effect that the said order was not made available to him.

7. Today, learned AGA has produced the order dated 17.05.2022, which reads as follows:-

" आर०पी0 सिंह, 					    गोपनीय
 
विशेष सचिव ।			अर्द्धशा०प०सं०-वीआईपी-15/39-4-2022
 
							50एम (01)/2021 
 
							उत्तर प्रदेश शासन 
 
							सतर्कता अनुभाग-4 
 
						लखनऊ: दिनांक : 17 मई, 2022
 
प्रिय महोदय,
 

कृपया श्री मनोज कुमार सिंह, खण्ड शिक्षा अधिकारी, शिक्षा क्षेत्र सल्टौआ, जनपद बस्ती के ट्रैप आख्या विषयक विशेष निदेशक, उ०प्र० सतर्कता अधिष्ठान के अ0शा0प0सं0-स0अ0/अनु-2-ट्रैप-225/2021 दिनांक 16.03.2022 एवं अपर मुख्य सचिव, गृह एवं सतर्कता विभाग को सम्बोधित श्री जय प्रताप सिंह, पूर्व मंत्री, उ०प्र० सरकार के पत्र दिनांक 18.04.2022 (मूलप्रति संलग्न), श्री अजय सिंह, मा० सदस्य, विधान सभा, हर्रेया, बस्ती के पत्र दिनांक 20.04.2022 (मूलप्रति संलग्न) एवं श्री जयवीर सिंह, मंत्री, पर्यटन एवं संस्कृति, उत्तर प्रदेश के पत्र दिनांक 27.04.2022 (मूलप्रति संलग्न) का सन्दर्भ ग्रहण करने का कष्ट करें ।

2- इस सम्बन्ध में मुझसे यह कहने की अपेक्षा की गयी है कि शासन द्वारा सम्यक् विचारोपरान्त प्रश्नगत ट्रैप के सम्बन्ध में श्री मनोज कुमार सिंह, खण्ड शिक्षा अधिकारी, शिक्षा क्षेत्र सल्टौआ, जनपद बस्ती द्वारा प्रत्यावेदन में उल्लिखित तथ्यों एवं संलग्न किये गये 20 साक्ष्यों के परिप्रेक्ष्य में प्रकरण की निष्पक्ष जॉच / विवेचना गोरखपुर सेक्टर के स्थान पर उ०प्र० सतर्कता अधिष्ठान के लखनऊ सेक्टर से कराये जाने का निर्णय लिया गया है।

3- अत: अनुरोध है कि कृपया उल्लिखित आरोपों एवं साक्ष्यों को विवेचना में सम्मिलित करते हुए प्रकरण की जॉच उ०प्र० सतर्कता अधिष्ठान के लखनऊ सेक्टर से कराने एवं जॉच आख्या 15 दिन में शासन को उपलब्ध कराने का कष्ट करें।

संलग्नक- यथोक्त। (मूलरूप में वापसी अपेक्षित)

भवदीय

S/d

(आर०पी० सिंह)"

8. Pursuant to the order dated 08.07.2022, personal affidavit of Shri Awanish Kumar Awasthi, posted as Additional Chief Secretary (Home /Vigilance), Government of Uttar Pradesh, Lucknow was filed. Paragraph Nos. 5 to 7 of the affidavit are quoted herein-below:

"5. That the impugned order dated 02.06.2022, consequential to the order dated 17.05.2022, was passed after carefully considering the representation moved by Shri Manoj Kumar Singh.

6. That the representation moved by the delinquent Manoj Kumar Singh, comprised 20 issues on which he prayed for objective, fair and impartial investigation.

7. That it is noteworthy, that various pieces of evidence were annexed to the representation moved by Manoj Kumar Singh, in support of the prayer for fair investigation on the 20 issues raised by the accused. The fact of the annexures in support of his prayer, finds mentioned in both the impugned orders dated 17.05.2022 and 02.06.2022."

9. It is contended by the learned counsel for the petitioner that the respondent no.10, after having been released from jail, is threatening the petitioner to get the matter compromised. Learned counsel for the petitioner submits that thereafter the order impugned dated 17.05.2022 and consequential order dated 02.06.2022 has been passed and the investigation in relation to Case Crime No.5 of 2021 has been transferred from Gorakhpur Sector to Lucknow Sector at the behest of the accused person, namely, the respondent no.10. He further submits that the order impugned dated 17.05.2022 has been passed on the recommendation of political persons to accord benefit to the respondent no.10. While referring to Annexure No.6 to the writ petition, it has been submitted that the investigating officer, by letter dated 12.11.2021 brought to the notice of Special Judge (Prevention of Corruption Act), Gorakhpur that the entire proceedings of investigation have already been completed and the necessary documents have been forwarded to the State Government but, till date, requisite sanction has not been accorded at the State Level due to which it was not possible to submit charge sheet. The letter further indicates the stand of the investigating officer that after obtaining sanction from the State Government, further proceedings will be held.

10. The sheet anchor of the argument of the learned counsel for the petitioner is that the investigation could not have been transferred at the behest of accused person and that in this case there was neither any justification nor any occasion for the authorities to transfer investigation once it was clearly opined that the entire proceedings of investigation were already over.

11. The contention of the learned counsel for the petitioner to the effect that the impugned transfer order has been passed at the behest of the accused persons stands substantiated from paragraph 2 of the order dated 17.05.2022 (afore-quoted) which speaks that in relation to the concerned trap, taking into consideration the stand taken by Manoj Kumar Singh (respondent no.10), the decision to transfer investigation from Gorakhpur Sector to Lucknow Sector has been taken. In support of the contention to the effect that investigation cannot be transferred from one investigating agency to the other at the behest of accused persons, learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in case of Arnab Ranjan Goswami Vs. Union of India & others: (2020) 14 SCC 12. The Apex Court in paragraphs 47 and 48 of aforesaid judgment has observed as follows:-

"47. As we have observed earlier, the petitioner requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the N.M. Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was under investigation. The petitioner now seeks to pre-empt an investigation by the Mumbai Police. The basis on which the petitioner seeks to achieve this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency. The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation. In P Chidambaram v Directorate of Enforcement (2019) 9 SCC 24, R Banumathi, J. speaking for a two judge Bench of this Court held that:

"66...there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused."

(Emphasis supplied)

This Court held that so long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation. In adopting this view, this Court relied upon its earlier decisions in State of Bihar v P P Sharma and Dukhishyam Benupani, v Arun Kumar Bajoria in which it was held that the investigating agency is entitled to decide "the venue, the timings and the questions and the manner of putting such questions" during the course of the investigation.

48. In CBI v Niyamavedi: (1995) 3 SC 601, Sujata V Manohar, J. speaking for a three judge Bench of this Court held that the High Court should have:

"4...refrained from making any comments on the manner in which investigation was being conducted by the CBI, looking to the fact that the investigation was far from complete."

This Court observed that:

"4...Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences."

This Court adopted the position that courts must refrain from passing comments on an ongoing investigation to extend to the investigating agencies the requisite liberty and protection in conducting a fair, transparent and just investigation."

12. Learned counsel for the petitioner has further placed reliance upon a decision of the Apex Court in the case of Bimal Gurung and Ors. Vs. Union of India (UOI) and Ors.: (2018) 15 SCC 480, in paragraphs 29 and 53 of the said judgment, the Apex Court has observed as follows:-

29. The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. Such power has to be exercised in rare and exceptional cases. In K.V. Rajendran vs. Superintendent of Police, (2013) 12 SCC 480, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer of investigation from State Police to CBI such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii) where investigation prima facie is found to be tainted/biased.

53. Most of the cases which were cited before us by the parties are the cases where this Court exercised jurisdiction under Article 32 in transferring the investigation at the instance of the victims. For a victim the investigation in a case is of much significance. In the event, a proper investigation is not carried out and relevant evidence which would have been collected by due care and caution, is not collected, the victim is sure not to get justice on such faulty investigation. In case of faulty investigation, where an accused has been wrongly roped in, he has the right to seek all remedies before the Court of Law for further investigation and a Court of Law is able to marshall all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an accused to move a Court of Law for transfer of investigation, but on the facts of this case as noted above, we do not think it to be a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases enmasse to an independent agency. The present case cannot be said to be a case of individual's persecution by the State authority."

13. Learned counsel for the petitioner has also placed reliance upon a decision of of this Court in the case of Omveer Vs. State of U.P. and others: 2008 (5) ADJ 698 (DB), paragraphs 13 and 15 of the said judgment read as follows:-

"13. The perusal of the application filed by the wife of Charan Singh accused does not indicate any cogent reasons on the basis of which further investigation was required. His application mentioned only earlier incident and the enmity. How and on what reasons the State Government came to the conclusion that further investigation is required is not born out from the impugned order. No reasons has been assigned by the State Government to give a latitude to the wife of the charge-sheeted absconding accused of a murder charge to have say in a matter of investigation. In our opinion, the impugned order seems to have been passed because of extraneous consideration and under political pressure. Learned AGA has also failed to point out any reason as to why investigation by SIS or any other agency was an indispensable necessity. The State Government, was not excepted to give a long rope to the accused of a murder charge to remain absconding and make him subject to the jurisdiction of the Court. Since the charge sheet has already been submitted and the accused never participated in the investigation and brought their version before the I.O. we fail to understand the reason why the State Government has allowed them to have a say in the matter when those absconding accused have got a scanty respect for the law.

15. In such a view, we are of the opinion that the impugned order has been passed because of extraneous consideration by the State Government and follow up order by the S.S.P. and therefore, we quash the impugned order dated 27.3.2008 passed by SSP Gautam Budh Nagar in case crime No. 302 of 2007, under Sections 302, 307 IPC and also order by State Government dated 26.3.2008. We direct the court concerned to proceed with the case forthwith after securing the presence of the accused persons. The accused persons would have full right to raise their grievance in the trial at the proper stage of framing of charge."

14. Learned counsel for the petitioner has also placed reliance upon a decision of this Court in the case of Kumari Aayasha Vs. State of U.P. and Ors: 2018(1) ADJ 85 (DB), paragraph 10 of the said judgment reads as as follows:-

"10. 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."

15. The learned counsel for the petitioner has also placed reliance upon a decision of this Court passed in Smt. Vandana Srivastava Vs. State of U.P. and 4 others: 2014 (7) ADJ 679 (DB). Relevant portion of the aforesaid judgment reads follows:-

"We may only record that despite specific query being made to the learned Government Advocate and the battery of the learned AGAs, who are present in the Court, none could inform the Court as to what Government orders apply in matter of exercise of power of transfer. What has been referred to, to this Court is only a letter of the Additional Director General of Police (Apraadh Evam Kanoon Vyawastha, U.P.) dated 12th December 2012. We fail to understand as to how a letter of the Additional Director General of Police can control the discretion of the State Government, being a subordinate officer.

But what we find is that under the said circular, guidelines have been laid down in the matter of transfer of investigation and it has specifically been provided various clauses that in normal circumstances no order for transfer should be made on an application of an accused. Every attempt should be made to get the investigation completed on merits in a fair and diligent manner. It has again been repeated that normally no transfer could be affected on the asking of the accused. In paragraph 5 of the circular it has been mentioned that if it is necessary to transfer the investigation in special circumstances, then the conditions existing for such transfer should specifically be mentioned in the order itself and an intimation be given to the higher authorities/State etc.

We are of the opinion that what applies in the matter of transfer of the investigation by the higher police officers applies with full force in the matter of exercise of discretion for transfer by the State Government. In as much as, it is the case of the State itself that the power to transfer the investigation both in favour of the State Government as well as in favour of the higher police authorities flows from Section 36 of the Code of Criminal Procedure read with section 3 of the Police Act, 1961.

We are very sorry to record that the State will not follow any guideline in the matter of exercise of discretion qua transfer of investigation and would continue to act arbitrarily. This Court is facing petitions every day where orders of transfer of investigation are being challenged not only on merit but also on the ground that they contain no reasons.

The practice must be put to an end. Such kinds of orders of transfer of investigation have the affect of loss of confidence of common public in the criminal justice system of this State.

The higher the authorities the higher the responsibility for exercise of power of transfer on cogent grounds and sparingly. Power of transfer of investigation cannot be made a tool in the hands of accused or other involved in the matter to prolong the investigation on some pretext or the other.

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."

16. Per contra, the contention of the learned counsel for the respondent no.10 is that he was selected on the post of Block Education Officer on 24.03.2021 and was posted at Block Saltauwa on 29.06.2021 and at the time when inspection of the school was done on 26.08.2021, the petitioner was absent and when the school was inspected again on 01.09.2021, the petitioner was absent on that date too. It is further contended that the matter was referred to B.S.A. on 08.09.2021 and on the date of trap, no matter was pending before the respondent no.10. Learned counsel for the respondent no.10 has relied upon the judgment of the Apex Court in the case of Mohan Lal Vs. State of Punjab: AIR 2018 SC 3853 with specific reference to paragraphs 11 and 12. For ready reference, paragraphs 11 and 12 of the said judgment are being quoted below:-

"11. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.

12. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254: as follows:

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth".

33. In State of Bihar v. P.P. Sharma (AIR 1991 SC 1261) this Court has held as under:

"57. ... Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.

* * *

59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. ...

61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."

17. Learned counsel for the respondent no.10 has further placed reliance upon a decision of Madras High Court in the case of A.V. Bellarmin Vs. Mr. V. Santhakumaran Nair passed in Criminal O.P. (MD) No.12212 of 2013 and M.P. (MD) Nos.1 and 2 of 2013, decided on 13.08.2015. Paragraph no. 14 of the aforesaid judgment reads as follows:-

"14. Instrumentality of a State and its officials must conform to the Rule of Law leading to fairness in action. It has been well established that fairness is a facet of Article 21 of the Constitution of India. Such a fairness in action is also mandatorily to be followed in a criminal investigation. A right to a fair investigation is not only a constitutional right but a natural right as well. In Sathyavani Ponrani v. Samuel Raj, 2010 (4) CTC 833, while dealing with fair investigation, this Court has held that the same is mandatory under Articles 14, 21 and 39 of the Constitution of India. The following paragraphs would be apposite:

6.Free and Fair Investigation and Trial is enshrined in Article 14, 21 and 39-A of the Constitution of India. It is the duty of the state to ensure that every citizen of the country should have the free and fair investigation and trial. The preamble and the constitution are compulsive and not facultative, in that free access to the form of justice is integral to the core right to equality, regarded as a basic feature of our Constitution. Therefore such a right is a constitutional right as well as a fundamental right. Such a right cannot be confined only to the accused but also to the victim depending upon the facts of the case. Therefore such a right is not only a constitutional right but also a human right. Any procedure which comes in a way of a party in getting a fair trial would in violation of Article 14 of the Constitution.

67.The Hon'ble Apex Court in ZAHIRA HABIBULLA H. SHEIKH v. STATE OF GUJARAT [(2004) 4 SCC 158] has observed as follows:

"36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all-comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."

18. Learned counsel for the respondent no.10 has further relied upon a decision of the Apex Court in the case of Nirmal Singh Kahlon Vs. State of Punjab and others: (2009) 1 SCC 441. Paragraph 28 of the aforesaid judgment reads as follows:-

"An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation. When serious allegations were made against a former Minister of the State, save and except the cases of political revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose of investigating into the matter."

19. Learned counsel for the respondent no.10 has further relied upon same authorities that have been relied upon by the petitioner side viz. Vandana Srivastava (supra), Km Aayasha (supra), Omveer (supra), Bimal Gurung (supra).

20. In sum and substance the contention of the learned counsel for the respondent no.10 is that fair investigation as well as fair trial is fundamental right of the accused and, therefore, it is the duty of the investigating agency as well as the courts of law to ensure that investigation is conducted in fair and impartial manner.

21. Learned AGA, on the other hand, submits that investigation was already on its conclusion when the present writ petition was filed and on account of interim order passed by this Court on 04.01.2023, no further proceedings, either way, could be held. He has also placed for perusal of court Parcha No.14 dated 04.01.2023 being part of the record of investigation, which recites that most of the evidences and statements have already been collected/recorded during the course of investigation.

22. During the course of arguments, a dispute arose with respect to the aspect of sanction. Whereas the contention of the learned counsel for the petitioner is to the effect that papers for obtaining requisite sanction under the Statute have already been sent to the State Government as stands reflected from Annexure No.6 to the writ petition, the learned counsel for the respondent no.10 on the other hand submits that no such record is available with the State Government and, therefore, the contention advanced with regard to sanction is fallacious.

23. Having heard the learned counsel for the parties, having perused the record and having carefully examined the ratio laid down in the authorities cited at the Bar, we find that the impugned order dated 17.05.2022 transferring investigation from Gorakhpur Sector to Lucknow Sector of the Vigilance Department is based upon letters of Ministers on the one hand and representation of the accused (respondent no.10) on the other. The order impugned does not disclose any other cogent or valid reason for transferring the investigation. Even from perusal of affidavit of Shri Awanish Kumar Awasthi, this Court finds that it is admitted to the State-Authorities that the orders impugned dated 17.05.2022 and 02.06.2022 have been passed after considering the representation moved by respondent No. 10 (Shri Manoj Kumar Singh). Further stand taken in the affidavit of Shri Awasthi that the reasons for transfer are mentioned in both the said impugned orders, does not stand reflected from the orders impugned as no reason other than political interference and representation of respondent No. 10 has been mentioned in both the said orders.

24. Therefore, we find substance in the arguments of the learned counsel for the petitioner that the law laid down by the Supreme Court as well as this Court to the effect that investigation normally cannot be transferred at the behest of accused person has been violated in the present case and, even otherwise, political interference in the matter of transfer of investigation from one agency to the other is apparent even from bare perusal of the order impugned dated 17.05.2022. This Court does not find any speaking reason or ground which could justify transfer of investigation except the reasons disclosed in the order impugned dated 17.05.2022. Further the case is not of exceptional or rare nature in which transfer of investigation could be said to be justified.

25. Keeping in view all the aforesaid facts and circumstances of the case, we find that the order impugned dated 17.05.2022 being based on political interference and having been passed at the behest of accused (respondent no.10) and being bereft of any valid or cogent reasoning, cannot be sustained and is liable to be set aside. Similarly the consequential order dated 02.06.2022 also cannot be sustained and is liable to be set aside.

26. Accordingly, the writ petition is allowed. The order impugned dated 17.05.2022 as well as consequential order dated 02.06.2022 transferring investigation of Case Crime No.5 of 2022 from Gorakhpur Sector of U.P. (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment) are hereby quashed by issuing a writ of certiorari.

27. At this stage, learned counsel for the petitioner presses prayer no.(b), which is with regard to issuing a direction to the respondent no.4 to pass appropriate orders under Section 19 of the Prevention of Corruption Act, 1988, regarding sanction of prosecution. We find that at this stage the prayer (b), as claimed, cannot be granted, inasmuch as, once the orders impugned dated 17.05.2022 and 02.06.2022 are set aside, further consequences would certainly follow in accordance with law and hence with regard to prayer made in relation to Section 19 of the Prevention of Corruption Act, it is for the competent authority to take final call in this regard within a period of three months from the date a certified copy of this order is produced before the said authority.

Order Date :-02.03.2023

AKShukla/-