Allahabad High Court
Praveen Pandey Son Of Sri Bal Krishna ... vs State Of U.P., Senior Superintendent Of ... on 27 May, 2005
Author: Amar Saran
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT Amar Saran, J.
1. This writ petition has been filed for a direction in the nature of mandamus commanding the State of U.P. to transfer investigation of case Crime No. 17 of 2005 under Sections 147/148/149/307/427 IPC and 7 Criminal Law Amendment Act, PS Handia, District Allahabad, to CBCID or any other investigating agency other than the police of PS Handia, District Allahabad.
2. We have heard Sri Vinod Prasad for the petitioner, and the learned A.G.A representing the State and perused the record.
3. Counter affidavit has been filed by Sri Prem Kumar Yadav, the present investigating officer of this case. As the learned counsel for the petitioner did not want to file a rejoinder affidavit hence this case has been heard on merits.
4. The basic ground for moving this petition was that respondent No. 4, Lal Pratap Singh, belonged to the ruling party, hence the petitioner was apprehensive that the accused would not get justice in this case from the police of police station, Handia, as they were hand in gloves with respondent No. 4 and were trying to implicate the petitioner in the crime. It is further urged that the real reason for lodging of the FIR against the petitioner was that the petitioner ran a school and a local leader, Sri Santosh Singh, who belonged to the rival group, was trying to capture the said school with the help of the local police of P.S. Handia, District Allahabad.
5. In this respect, some applications were given by the petitioner and his father and mother to the authorities, One such undated application was given by the petitioner's father, Bal Krishna Pandey, which has been annexed as Annexure No. 2 to the writ petition. This application mentioned that on 20.1.2005 at about 11 a.m. some persons had assaulted the petitioner, Praveen Kumar Pandey, with lathis and dandas and on the arrival of the villagers, the assailants had run away after firing in the air with their countrymade pistols and after hurling abuses at the petitioner. No action was taken on this report by Bal Krishna. On 24.2.2005 at about 11 pm the accused of the earlier case demolished the walls of the college in which Bal Krishan was the manager causing loss of about one lakh rupees and humiliation to Bal Krishan. However, no action was taken on that report as well. This is to be contrasted with the prompt action of the police in trying to arrest the petitioner in the present case, hence the police of PS Handia was to the petitioner and the other accused in the present report. On this ground the petitioner would like to get the case transferred to the CBCID or some other independent agency.
6. In the counter affidavit filed by the investigating officer, Prem Kumar Yadav, it is mentioned that initially the case against the petitioner and others was investigated by the in-charge of the police outpost Saidabad of PS Handia. Thereafter, the SHO of PS Handia investigated the case and submitted a charge-sheet against one accused Rajeshwar Misra on 23.4.2005. Against the petitioner and two other accused persons, Miththoo Pandey and Anresh Pandey, the ACJM III, Allahabad, issued a warran of arrest. Thereafter, the SSP, Allahabad vide his order daied 25.4.2005 has transferred the investigation from PS Handia to PS Sarai Inayat, hence the deponent Prem Kumar Yadav, who 'is the station officer of PS Sarai Inayat, was presently investigating the matter.
7. As the investigation has already been transferred to PS Sarai Inayat, and the allegations in the writ petition were against the police of PS Handia for having colluded with respondent No. 4, Lal Pratap Singh, and Santosh Singh, who is said to be a member of the ruling party, hence the very bottom of this case is knocked out by this simple fact. Moreover, nothing turns on the fact that in the two incident alluded to in respect of the undated application (annexure 2 to the writ petition) arrests were not effected or because according to the petitioner adequate action was not taken, as the nature of injuries that were said to have been received by the petitioner with lathies and dandas on 20.1.2005 were not described and in the second incident dated 24.2.2005 only some walls of the school are said to be demolished but no one was said to have received any injury. In the case of Jogendra Kumar v. State of U.P., 1994(31) ACC 431 it has been pointed out that it is not necessary for the police to arrest the accused in all cases. However, no inference may be drawn ipso facto from this that the Handia police was hostile to the petitioner and siding with the opposite party.
8. It may be noticed that the allegations in the present FIR relating to the incident dated 29.1.2005 which took place at about 5 pm were that the petitioner and Miththoo Pandey were following the Ambassador car on which the informant Lal Pratap Singh and Santosh Kumar Singh and some others were travelling from Handia to their village Pakki Rasoolpur on a motor cycle. When the car slowed down near a speed breaker near Rukmani market near the village Vivran, these persons along with some others started firing with their firearms indiscriminately on the vehicle resulting in grievous firearm injuries to Santosh Singh and Dilip Mani. The car was also damaged is a result of the firing. The firing continued even when Lal Pratap and others tried to flee in the car. In view of the gravity of the allegations of this case it is quite understandable if the police were trying to arrest the accused of the instant FIR and simply because the police had not arrested the accused in the earlier incidents against the petitioner and others, which have been mentioned in annexure 2 to the writ petition, and which do not appear to be so grave, it cannot be inferred per se that the police were prejudicially disposed against the petitioner's part. Also, as the investigation in this case has already passed through the hands of three investigating officers, the first investigating officer being the SI of outpost Saidabad, the second was SHO of PS Handia and, lastly, the SO of PS Sarai Inayat. The last transfer of investigation was on the orders of the SSP, Allahabad. This fact itself suggests that the petitioner himself is fairly influential and simply because Santosh Singh is claimed to be a member of the ruling party, there is no reason for assuming that the investigation would be unfair against the petitioner and others.
9. Learned AGA has drawn our attention to an earlier Division Bench decision of this court, consisting of Hon. G P. Mathur and Hon. D.C. Srivastava, JJ: Bhopal and Ors. v. State of U.P. and Anr., reported in 1997 JIC 95 (All). The said decision has approvingly quoted the Government Order dated 15.11.1995 in extenso issued by the State Government. The said G.O. disapproves of the practice of transferring investigations to the, CBCID as a result of which the number of matters with the CBCID have mounted, preventing the CBCID from giving appropriate time for investigation of those matters, which are actually very important and which could properly be investigated by the CBCID alone. It has further been observed that some parties get the investigation transferred to the CBCID so that they could be saved from the immediate action of the local police against them. The G.O. further notes that in normal course the investigation of the matters should be done by the local police. A case could be transferred to the CBCID only when, (1), the nature of the crime is so complex that the local police may not be in a position to investigate it properly; (2), the nature of the crime is international or statewide or interdivisional/ interregional, and, (3) the local conditions may be such that the local police may not be in a position to investigate the matter impartially or (4) such conditions have arisen, that the general public is of the opinion that the investigation by the local police would raise a question-mark on the impartiality of the investigation.
10. It has also been seen that whenever a question has arisen whether a particular matter should be assigned to the CBCID, and a report from the concerned district has been called for. The report is usually very ambiguous and after mentioning the particulars of the matter it only normally states that if the matter is transferred to the CBCID they would have no objections. In future it should be seen that such unclear recommendations are not made. Whenever an opinion is sought in any matter, an explicit opinion should be given that consent is being given for transferring the matter to the CBCID or that consent is being denied. In both circumstances, detailed reasons for the opinion should be mentioned. The opinion, individually or jointly of the authority should show independent application of mind, and not be a mere formality by reiterating the attached opinion of the subordinate officials.
11. The Government Order further stated that in any criminal matter the decision to transfer the case to the CBCID is to be taken at the state level and such order should not be passed at any other level. Before passing the order transferring the case to the CBCID, a detailed opinion should be sought and the decision taken only on the basis of that opinion. The district level administrative and police officers are expected to give explicit consent or refusal whenever their opinion is sought in the matter. The G.O. was expected to be followed strictly.
12. The Division Bench in the case of Bhopal and others (Supra) has observed as under:
"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 CBCID, 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 cases which came before us (Crl. Misc. Writ Petition No. 637 of 1996 Adya Singh and Ors. v. State), though the murder took place in 1981 and State Government passed an order in the year 1987 for investigation by CBCID, 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 larger number of cases are entrusted to CBCID, it is obvious that it cannot perform its duty property and the purpose for which investigation is taken over from the local police and is entrusted to CBCID is lost. Therefore, the different guidelines laid down in the government order dated 15.9.1995 appear to be just and proper."
13. As indicated above, the facts of the present case is not so complex that the local police will not be in a position to investigate the case properly as it was a case of simple attempt to murder in which two persons received grievous fire arm injuries when firing was done on their car by the accused and they-were injured eye witnesses in broad daylight incident. The nature of crime has no inter-state or state wide dimensions; there was no local condition which precluded the police of police station Safai Inayat to investigate the matter and no such conditions had arisen that would have caused the general public to question the impartiality of the investigation.
14. In this view of the matter, we feel there is no force in this writ petition. It is, accordingly, dismissed.
15. It is hoped that the investigating officer shall take steps to conclude the investigation expeditiously.