Allahabad High Court
Smt. Vandana Srivastava vs State Of U.P. And 4 Others on 21 May, 2014
Bench: Arun Tandon, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 10 Case :- CRIMINAL MISC. WRIT PETITION No. - 6973 of 2014 Petitioner :- Smt. Vandana Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shashi Kant Kushwaha,Dr. D.K. Tiwari Counsel for Respondent :- Govt. Advocate,Swetashwa Agrawal Hon'ble Arun Tandon,J.
Hon'ble Shashi Kant,J.
Heard Dr. DK Tiwari, learned counsel for the petitioner, Sri Swetashwa Agarwal, learned counsel for respondent no. 5 and the learned AGA for the State authorities.
Petitioner before this Court is the victim and the first informant in Case Crime No. 56 of 2013, under sections 498-A, 323, 504 IPC and 3/4 of the Dowry Prohibition Act, P.S. Kotwali, District Fatehpur. She is aggrieved by the order of the State Government dated 12.03.2014 as communicated under the letter of the Senior Superintendent of Police, Fatehpur to the Senior Superintendent of Police, Lucknow vide letter dated 1st April 2014, annexure 5 to the writ petition. By means of the order impugned it has been informed that the State Government on an application made by Ram Krishna Srivastava, one of the accused in the said case crime, has decided vide order dated 12.03.2014 to transfer the investigation from district Fatehpur to district Lucknow and the investigation be got done through a Circle Officer. The Senior Superintendent of Police, Lucknow it has been requested to do the needful.
Challenging the order, learned counsel for the petitioner submitted that order of transfer of investigation in the facts of the case is an abuse of the powers by the State Government. The person who sought transfer, (respondent no. 5 herein) had filed Criminal Writ Petition No. 2803 of 2013 for quashing of the First Information Report. The High Court while entertaining the said petition directed the petitioner to appear before the the Police Station for mediation within twenty days and in case no result comes out of mediation the petitioner (respondent no. 5) was required to surrender and apply for bail within thirty days.
It is stated that no mediation could take place and without complying with the remaining directions issued by the Court qua surrender, the respondent no. 5 made an application for transfer of the investigation to district Lucknow. On the said application, the Senior Superintendent of Police, Fatehpur transferred the case for investigation to the Circle Officer, Zafarganj district Fatehpur vide order dated 25.05.2013. The investigation was completed by the Circle Officer, Zafarganj and a charge sheet was prepared for being submitted before the court concerned. At this stage, respondent no. 5 made another application before the Secretary, Home, U.P. Government for transfer of the investigation to the Lucknow jurisdiction and in pursuance thereof, the impugned order has been made.
The Court while entertaining the present Writ Petition on 18.04.2014 required the Secretary, Home to disclose the reason on which it was decided to transfer the investigation on a mere application made by one of the accused in the case crime.
From a perusal of the affidavit filed by the Secretary, Home we find that absolutely no records/materials has been disclosed to be available with the State Government at the time of making of the order of transfer. The affidavit refers the letter dated 23.01.2014 of the Superintendent of Police, Lucknow and to a letter of the Circle Officer (Traffic (Western), Lucknow). Admittedly, these letters have been written subsequent to the making of the order of transfer. Therefore, there letter could not have been the basis for the order of transfer dated 12.03.2014.
It is, therefore, writ large record that on the date the order of transfer was made by the State Government, there was only an application of one of the accused i.e. respondent no. 5. The order of transfer had been made without calling for any report and without having any instructions in respect to the order of the High Court and its compliance, referred to above, as also of the status of the investigation in terms thereof.
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.
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.
Order Date :- 21.5.2014 shailesh