Allahabad High Court
Bhopal And Ors. vs State Of U.P. And Anr. on 6 November, 1996
Equivalent citations: 1997CRILJ2363
Author: G.P. Mathur
Bench: G.P. Mathur, D.C. Srivastava
JUDGMENT G.P. Mathur, J.
1. This petition under Article 226 of the Constitution of India has been filed for quashing the order dated 4-8-1995 passed by the State Government whereby earlier order entrusting the investigation to CB, CID of Case Crime No. 129 of 1994 of P.S. Doghat, District, Meerut was rescinded and the local police was directed to investigate the same.
2. One Raghubir was murdered in the evening of 5-10-1994 and the FIR of the incident was lodged by Rajpal Singh alleging that the appli- cants had committed his murder by assaulting him with knives. A case was registered as Crime No. 129/94 under Section 302, IPC at P.S. Doghat, District Meerut against all the three applicants. The local police investigated the matter and after investigation submitted a charge-sheet dated 25-11-1994 in the Court of CJM, Meerut. Curiously enough, in the charge-sheet the applicants were shown as absconding though the first informant had moved applications before the CJM alleging that the applicants were roaming scotfree in the village. It appears that before the charge-sheet had been submitted by the local police, the State Government had passed an order directing that the case shall be investigated by CB, CID. An application was also moved by an Inspector of CID (Meerut Zone) before the CJM, Meerut on 11-1-1995 seeking permission of the Court to investigate the case. Subsequently, the State Government passed an order on 4-8-95 by which the earlier order directing investigation by CB, CID was rescinded and it was further provided that the local police shall investigate the case. It is this-order which has been impugned in the present writ petition.
3. Shri G.C. Saxena, learned counsel for the petitioners has submitted that once the investiga-tion had been entrusted to CB,CID it was not open to the State Government to rescind the said order and entrust the investigation to the local police. Learned State Counsel has, on the other hand, urged that the case did not come within the purview of the Government Order dated 15-9-1995, and therefore, now there is no justification for issuing any direction for investigation of the case by CB, CID. The prayer made by the petitioners has to be examined in the light of the aforesaid Government order and, therefore, it is being reproduced in extenso.Another Government Order was issued on 11-10-1995 wherein it is provided that the Director General of Police shall also have power to entrust investigation of a criminal case to CB, CID and he shall give information of any such order passed by him within a week to the State Government. We have considered the various clauses of the Government order and in our opinion, they appear to be quite reasonable. Our experience shows that whenever a case is entrusted to the CB, CID, its investigation takes a long time and further till the conclusion of investigation, no effort is made to arrest the accused and as a consequence thereof, they roam about freely for number of years. In one of the cases which came before us (Crl. Misc. Writ Petition No. 637/96, Adya Singh v. State), though the murder took place in 1981 and State Government passed an order in the year 1987 for investigation by CB, CID, but the investigation has not yet been concluded and the accused have also not been taken into custody so far. Delay in investigation of a case is normally to the advantage of the accused as the witnesses become reluctant to give evidence and consequently it results in miscarriage of justice. If a large number of cases are entrusted to CB, CID it is obvious that it cannot perform its duty properly and the purpose for which investigation is taken over from the local police and is entrusted to CB, CID is lost. Therefore, the different guidelines laid down in the Government Order dated 15-9-1995 appear to be just and proper.
4. The FIR of the case shows that, three persons came to the house of the first informant Rajyapal at about 6.15 p.m. on 5-10-1994 and after dragging the deccased-Raghubir to a Sugar Cane field assaulted him with knives. The incident was seen by the first informant-Rajyapal, his father and one more person. The FIR was lodged at 3.05 a.m. on 6-10-1994 at 14 km. distant police station Doghat. Apparently, the case does not appear to be a very complicated one nor its investigation requires to be conducted across the inter-State or international borders. There is no allegation in the writ petition that on account of any extraordinary condition, local police was not in a position to investigate the case fairly. It is true that the impugned order of the State Government was passed prior to the issuance of the Government Order, dated 15-9-1995 but investigation being part of procedure (Chapter XII of the Code of Criminal Procedure), the same shall be deemed to be retrospective in operation on the general principle that Statutes dealing with merely matter of procedure are presumed to be retrospective. The controversy raised has, therefore, to be decided after taking into consideration the Government Order. In view of the guidelines laid down by the Government Order the crime in question is not such which may require investigation by CB, CID. The State Government was, therefore, perfectly justified in rescinding its earlier order and directing the investigation of the case by local police.
5. Shri Saxena, on the strength of two Division Bench decisions of this Court rendered in Writ Petition No. 16355/94 (Ram Bharose Dubey v. State of U.P.) decided on 20-9-1994 and Writ Petition no. 32597/94 (Chandra Vir v. State of U.P.) decided on 9-3-1995, urged that the impugned order of the State Government deserves to be quashed. It. may be pointed out that both these cases were decided prior to the issuance of the Government Order, dated 15-9-1995. In the case of Ram Bharose Dubey (supra) despite several opportunities to file a return, no counter-affidavit was filed by the State.'The writ petition was allowed with the following observations:
... Firstly, for the reasons that the respondents have shown apathy towards the Court's proceedings and secondly, frequent shuttle cooking of investigation from regular police to the CB, CID and back to the regular police would not only be counter-productive but it would adversely affect the investigation of a crime wherein society at large has a stake....
In the case of Chandra Vir v. State of U.P., it was observed as follows:
...We cannot allow the State Government to blow hot and cold in the same breath. The ink by which earlier order dated 4-8-1994 withdrawing the investigation of the case from local police and entrusting it to CB, CID had yet not dried when the impugned order dated 9-9-1994 was passed by the State Government, cancelling its earlier order and re-transferring the investigation of the case to local police from CB, CID. This order cannot be said to be justified and we cannot allow such type of order to remain in force....
The only ground given for allowing the writ; petitions appear to be that once the State Government passes an order transferring investigation to; CB, CID it should not retransfer the same back to! local police. With profound respects, we are unable to agree with the aforesaid view. There is no such prohibition under any statute nor there is any such rule, notification or order that once the State Government has transferred investigation from! Local Police to CB, CID it cannot recall or rescind' the said order and entrust the investigation back to the local police. In fact, such a power is possessed! by the State Government in view of Section 21 of U. P. General Clauses Act which provides that] whereby any Uttar Pradesh Act a power to issud statutory instrument is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition (if any) to add, amend, vary or rescind any statutory instrument so issued. In view of Section 4(42-B), any notification or order would be a statutory instrument. Therefore, the State Government has the power to rescind the order by which investigation may have been entrusted to the CB, CID and such a power can be exercised at any subsequent stage. Section 21 of U.P. General Clauses Act was not taken note of in the aforesaid two decisions. In fact the mandate of Section 156(1) Cr. P. C. is that an officer in charge of a police station has to investigate any cognizable case within the limits of such station. It has been held in B. Shama Rao v. U. T., Pondicherry, AIR 1967 SC 1480, that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein. In Krishna Kumar v. UOI, AIR 1990 SC 1782 (Para 18), it has been observed that doctrine of precedent is limited to the decision itself and as to what is necessarily involved in it. Judicial authority belongs not to the exact words used in this or that judgment, nor even to all reasons given but only to the principle accepted and applied as necessary grounds of decision. What is of essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in it. We are unable to discern any principle of law in the aforesaid decisions that once the State Government transfers the investigation from local police to CB, CID it cannot rescind that order or re-transfer the investigation to the local police.
6. Sri Saxena has also placed reliance on Gudalure M.J. Cherian v. Union of India (1992) 1 Crimes 2, where a direction for conducting investigation by the CBI was issued by the Supreme Court. In this case three persons entered the premises of a Convent in the dead of night by breaking open the window and forcibly removed the wrist watch and earnings of a maid servant and also committed rape on three Nuns of the Convent. This shocking incident was widely reported by the media and created a furore in the whole country. A public interest litigation, by way of a writ petition under Article 32 of the Constitution, was instituted in the Supreme Court by some prominent Catholic Priests on the ground that the local police had arrested those who were not real culprits and was asking the Sisters to identify some property which was in fact not looted property. It is important to note that the petition had been filed not by the accused but by the representatives of victims and according to their version the local police was not conducting the investigation fairly. It was in these circumstances that the Apex Court directed the CBI to investigate the matter in order to do justice between the parties and instill confidence in the public mind. A case where a complainant or victim comes to the Court and marks a grievance that the local police is not investigating the crime fairly stands on entirely different footing. In such a case the Court may issue a direction for investigation by CB, CID or some other impartial agency so that the crime is properly investigated and the confidence of the public at large is restored.
7. Learned counsel has next submitted that the petitioners had also filed a petition under Section 482, Cr. P.C. being Crl. Misc. Application No. 958/95 wherein a stay order was passed on 25-5-1995 staying further proceedings before the CJM, Meerut in CrimeNo. 129/94 till the submission of charge-sheet by CB, CID and in view of the aforesaid order, proceedings before the learned Magistrate should be stayed. We wanted to examine the record of the aforesaid case but the office has given a report that the file of the said case is missing and in spite of best efforts, it could not be traced. We do not want to go into the question as to who is responsible for the disappearance of the file but one thing is obvious that the stay order is operating to the benefit of the petitioners as the proceedings against them have been stayed. A photo copy of a certified copy of the said stay order has been filed as Annexure-8 to Crl. Misc. Application No. 2860/95 which was filed by the petitioner under Section 482, Cr. P. C. on 11 -9-95 where similar prayer for quashing the same order of State Government dated 4-8-95 has been made. We have serious doubt about the genuineness of theorder as on the top the name of Judge passing the order is different from the one mentioned at the bottom of the order. As the CID is no longer entrusted with the investigation of the case, the question of submission of charge-sheet by it does notarise. Therefore, the stay order dated 25-5-95 can have no hearing now on the proceedings pending before the CJM. It has also been held in DayaShankarSinghv.Stateof U.P., 1988 All Cri C 270 : (1988 All LJ 740), that the Court is not bound to stay proceedings of a case merely on the ground that re-investigation by CB, CID has been ordered. We are in complete agreement withthe aforesaid view. That apart in view of seven Judges Full Bench decision of our Court in Ram Lal Yadav v. State, 1989 All WC 270 : (1990 All LJ 47), that the power under Section 482, Cr. P.C. cannot be exercised during investigation stage,Crl. Misc. Application No. 958 of 1995 is not maintainable.
8. For the seasons mentioned above, there is no merit in this petition which is accordingly dismissed. In order to remove any doubt, the stay order dated 25-5-1995 passed in Crl. Misc. Application No. 958/95 is vacated. Crl. Misc. Application No. 2860 of 1995 filed under Section 482, Cr. P. C. by the petitioners, wherein same relief has been sought as in the present writ petition, is dismissed as not maintainable. The CJM, Meerut is directed to proceed with the case expeditiously and in accordance with law. The office is directed to send a copy of this order to CJM, Meerut within a week.