Allahabad High Court
Shivam Keshari And Another vs State Of U.P. And 5 Others on 8 February, 2021
Author: Shamim Ahmed
Bench: Surya Prakash Kesarwani, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 1 of 2021 Petitioner :- Shivam Keshari And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ran Vijay Singh Counsel for Respondent :- G.A.,Gyan Prakash Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Shamim Ahmed,J.
1. Heard Sri Ran Vijay Singh, learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General, assisted by Sri A.K. Sand, learned A.G.A.-I for the State-respondents and Sri Gyan Prakash, learned Assistant Solicitor General of India, assisted by Sri Sanjay Yadav, Advocate, representing the proposed respondent nos. 7 and 8.
2. Learned counsel for the petitioners has filed an impleadment application and an amendment application.
3. Learned counsel for the petitioners has served a copy of the writ petition along with applications and other affidavits upon Sri Gyan Prakash, learned Assistant Solicitor General of India, assisted by Sri Sanjay Yadav, Advocate. He has accepted notice on behalf of the respondent Nos.7 and 8.
4. After hearing learned counsels for the parties and with their consent, the impleadment application as well as the amendment application are allowed. The Union of India through Ministry of Home, New Delhi and Central Bureau of Investigation, New Delhi, through its Director, Plot No. 5-B, CGO Complex, Lodhi Road, New Delhi are allowed to be impleaded as respondent Nos. 7 and 8, during the course of the day. Amendment be also incorporated during the course of the day.
5. This writ petition has been filed praying for the following reliefs:
"(i) Issue a writ or direction in the nature of habeas corpus directing respondents to produce the petitioner no.2 (corpus) before this Hon'ble Court on such date and time as this Hon'ble Court may deem fit and proper in the circumstances of the case. And also direct the respondents to release the corpus from illegal confinement.
(1-a) Issue a writ order or direction in the nature of mandamus directing the Central Bureau of Investigation to investigate the cause of death and role of the police personals in death of Shubham Keshari (Corpus) and his friend Ravi Pandey and conclude the proceedings within stipulated period of time.
(1-b) Issue a writ order or direction in the nature of mandamus directing that the Judicial Inquiry may be conducted under the supervision of a retired Hon'ble High Court Judge of this Hon'ble Court.
(1-c) Issue a writ order or direction in the nature of mandamus directing the suspension of Senior Superintendent of Police, Varanasi, Station House Officer, P. S. Chowk, Varanasi, Station House Officer, P. S. Jaitpura, Varanasi, Station House Officer, P.S. Pandeypur, Varanasi, Station House Officer, P. S. Crime Branch, Varanasi, from service so that the investigation, as directed by this Hon'ble Court may, not be influenced in any manner whatsoever.
(ii) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(iii) Award costs in favour of petitioner."
6. In paragraphs-13-A, 13-B, 13-C, 13-D and 13-E of the writ petition, the petitioners have made serious allegations against the State Police and stated that the conduct of Police shows that the Police is attempting to save the actual culprits who caused the death of the corpus and there is no possibility of fair investigation by the Police of State of Uttar Pradesh and only investigation by a central agency would cause fair and proper investigation. Paragraphs-13-A, 13-B, 13-C, 13-D and 13-E of the writ petition, are reproduced below:
"13-A. That on 22.01.21 the oral undertaking was furnished on behalf of the State respondent that no police men will visit the house of the petitioner no. 1 and also no harassment would be done, inspite the team of SIT had gone to the house of the petitioner no. I on 24.01.2021 at 4:00 pm and inquired into the matter but during the inquiry a video was being made of the petitioner no.1, his mother and his sister and during making of the video regarding of the video was being paused by the police personnel when the mother and sister of the petitioner no. 1 and the petitioner no. 1 were stating names of the police personnel who were involved in the case. The signature of the aforesaid petitioner no.1, his mother and his sister were obtained on plain paper thereafter an application was immediately moved to the Chief Ministers and DGP Uttar Pradesh through e-mail on 24.01.202 1 has already been filed as Annexure No. RA-1 to the rejoinder affidavit dated 28.01.2021 and is part of record before this Hon'ble Court.
13-B. That in paragraph no. 8 of the short counter affidavit is has been shown that aadhaar card of the corpus was recovered but the aadhaar card of the corpus, in original, is in the house of the corpus and is in possession of the petitioner no.l and his family. A copy of the aadhar card has also being filed as Annexure No. RA-2 to the rejoinder affidavit dated 28.01.2021 and is part of record before this Hon'ble Court.
13-C. That police personnel have been named specifically by the petitioner no. 1 and as family members namely Gaurav Nigam and Suneel Nigam in application dated 26.11.2020 and 28.12.2020 and 31.12.2020 and no action has been taken by the police and till date FlR has been lodged by the police.
13-D. That despite of order dated 06.01.2021 passed by this Hon'ble Court has been taken by the police and as soon as the order dated 06.01.2021 was passed by this Hon'ble Court the corpus was encountered by the police which is evident from the post mortem report of the corpus which shown the duration of death of the corpus alter the order dated 06.01.2021.
13-E. That the conduct of the police shows that the police is attempting to save the actual culprits who caused the death of the corpus and there is no possibility at all of fair investigation by the state police of Uttar Pradesh and only investigation by a central agency could cause fair and proper investigation in which no police personnel of state agency government would be permitted to interfere."
Submissions on behalf of the petitioners:-
7. Learned counsel for the petitioners submits that the corpus - petitioner No.2 and one his friend Ravi Pandey, have been brutally murdered in which the respondent Nos.2 to 6 and one Gaurav Nigam and Suneel Nigam have played role. He submits that despite applications dated 23.12.2020, 26.12.2020, 28.12.2020 and 31.12.2020 submitted before various Police Authorities including Crime Branch, Senior Superintendent of Police, Varanasi and Director General of Police, Uttar Pradesh, through speed post, fax and e-mail, no action was taken, until the corpus - petitioner No.2 (Shubham Kesari) and his friend Ravi Pandey were brutally murdered and FIR was registered on 18.01.2021. The respondent Nos.2 to 6 have also not taken any action despite specific orders passed by this court on 05.01.2021 and 06.01.2021 in which one of the application of the petitioner dated 31.12.2020 addressed to the respondent No.2, was also reproduced by this Court. After this Court passed the order dated 05.01.2021, the respondents have entered only the missing report in GD on 05.01.2021. Thus, the respondents have entered only the missing report in GD after about 14 days of the submission of the first application by the petitioner No.1 and have registered FIR No.0006/2021 under Sections 302, 201 IPC, P.S. Kotwali, District Varanasi on 18.01.2021 against unknown persons on the basis of First Information Report being Case Crime No.10 of 2021 dated 15.01.2021 under Sections 302, 201 I.P.C., P.S. Ahraura, District Mirzapur where the dead bodies of the corpus - petitioner No.2 and Ravi Pandey were recovered. This court in its order dated 05.01.2021 and 06.01.2021 quoted various paragraphs of the writ petition and issued directions to the respondent No.2 and yet no action was taken. The personal affidavit of the respondent No.2 dated 18.01.2021 which has been extensively reproduced in paragraph-7 of the order of this court dated 19.01.2021, would show that the respondent No.2 has tried to mislead this court and attempted to misdirect the investigation. Despite directions and observations made by this court in its various orders, the respondent No.2 and other State-respondents have not taken any action even against the persons who were named in various applications moved by the petitioner No.1, particularly the application dated 31.12.2020. It is only after registration of the aforesaid First Information Report No.0006/2021 dated 18.01.2021 under Sections 302, 201 IPC (on transfer of the case from Mirzapur to P.S. Kotwali on 18.01.2021 at 15:05 hours as mentioned in paragraph-16 of the personal affidavit of the respondent No.2 dated 18.01.2021), merely one of the named persons, i.e. Suneel Kumar Nigam and four other persons were arrested at 06:44 hours on 19.01.2021 and alleged recovery of motorcycle, helmet, black jacket and adhar cards of both the deceased was shown from the alleged spot identified and pointed out by the arrested persons as alleged in paragraph-8 of the short-counter affidavit filed on behalf of the respondent No.2. He further submits that the respondent Nos.2 to 6 are destroying the evidences. He submits that even the adhar card of the corpus - petitioner No.2 is with the petitioners' family members whereas the respondents are showing its alleged recovery as afore-stated. He further submits that the investigating officer of the SIT to whom investigation has been transferred, is under influence of the respondent No.2 and the SIT cannot fairly investigate particularly when the investigation is being influenced by the respondent No.2. He further submits that investigation by police lacks credibility and it is necessary for having "a fair, honest and complete investigation", the investigation in the aforesaid Case Crime No.0006/2021 be transferred forthwith to the respondent No.8 otherwise the relevant evidences shall further be destroyed by the respondent Nos.2 to 6 to save the real culprits.
8. He further submits that the reliefs No.(1-a), (1-b) and (1-c) may also be granted.
Submissions on behalf of State - respondents:-
9. Sri Manish Goyal, learned Additional Advocate General assisted by Sri A.K. Sand, learned A.G.A.-I representing the State-respondents submits that the State Government also wants fair investigation and, therefore, in the event an order for investigation by the respondent No.8 (C.B.I.) is passed by this Court, the State Government has no objection to it and shall fully cooperate in the investigation.
Submissions on behalf of the respondent Nos.7 and 8:-
10. Sri Gyan Prakash, learned Assistant Solicitor General of India, representing respondent nos. 7 and 8 submitted that respondent nos. 7 and 8 shall follow the directions, which may be issued by this Court for CBI investigation in relation to the initially registered missing report dated 05.01.2021, FIR/ Case Crime No.10 of 2021, dated 15.01.2021, under Sections 302 and 201 I.P.C., Police Station Ahraura,District Mirzapur and transferred FIR No. 06 of 2021, dated 18.01.2021, under Sections 302 and 201 I.P.C., Police Station Kotwali, District Varanasi.
Discussion:
11. We have carefully considered the submissions of the learned counsels for the parties.
12. It is admitted fact of the case that the petitioner No.1 approached the respondent Nos.2 to 6 and submitted various applications to various authorities including the respondent Nos.2 and 3 and the Director General of Police, U.P. Lucknow being applications dated 23.12.2020, 26.12.2020 and 31.12.2020. These applications were sent to the authorities including the respondent No.2 by speed post, fax and e-mail. The corpus - petitioner No.2 was missing since 22.12.2020. In his application dated 26.12.2020, the petitioner No.1 specifically stated that the Police of Crime Branch, Police of Police Stations - Chowk, Jaitpura and Pandeypur, have lifted the corpus - petitioner No.2 and one Ravi Pandey at about 7 P.M. on 22.12.2020 when the corpus petitioner No.2 and his friend Ravi Pandey were returning on a motorcycle bearing registration No.UP65AT8867. It was also specifically stated in the aforesaid application that the applicant/ petitioner No.1 has apprehension that the police may implicate the corpus petitioner No.2 in a false case in which the police of the P.S. Chowk Varanasi may have main role. In his application dated 31.12.2020 addressed to various authorities including the respondent No.2 and sent by fax, speed post and e-mail, the petitioner No.1 specifically stated that the corpus - petitioner No.2 and his friend Ravi Pandey were lifted by the local police and in kidnapping of the corpus - petitioner No.2, the main conspirators are the police of P.S. Chowk Varanasi, one Gaurav Nigam S/o Mohan Nigam, resident of House No.CK48/189, Chowk, P.S. Chowk, Varanasi and Suneel Nigam (maternal uncle of Gaurav Nigam) and raised apprehension that the corpus - petitioner No.2 and his friend Ravi Pandey may be murdered in a planned manner.
13. By order dated 05.01.20211, this court incorporating averments made in paragraphs-4, 5, 6, 8, 9, 10, 11 and 12 of the writ petition; made certain observations and directed the respondent No.2 (Senior, Superintendent of Police, Varanasi) to file his personal affidavit. The relevant portion of the order dated 05.01.2021 is reproduced below:
"The petitioners have moved several applications before the S.S.P. Varanasi, Director General of Police, Uttar Pradesh (D.G.P.) and other authorities through Speed Post, email and Fax yet neither any FIR has been registered nor whereabouts of the petitoner no.2 namely Shubham Keshari has been apprised to his family members.
Considering the facts and circumsances of the case and the submissions of learned counsel for the parties, we direct the respondent no.2 Senior Superintendent of Police, Varanasi to file his personal affidavit by tomorrow.
Put up on 06.01.2021 for further hearing at 2.00 p.m. "
14. Pursuant to the aforesaid order dated 05.01.2021, the respondent No.2 has not filed his personal affidavit and instead a personal affidavit of Sravan Kumar Singh, Superintendent of Police (Traffic), District Varanasi/ Incharge, Senior Superintendent of Police, Varanasi was filed in which it was attempted to demonstrate that the corpus - petitioner No.2 is an accused in some criminal cases and was on parole from 16.05.2020 on the basis of the order passed by Hon'ble Supreme Court in the background of COVID-19 Pandemic and in order to avoid returning to jail as per parole conditions, he appears to have gone underground.
15. Since no action was taken by the State - respondents despite the aforesaid orders of this court dated 05.01.2021, therefore, this court passed an order dated 06.01.2021 in which an application of the petitioner No.1 in which facts were noted and even the application of the petitioner No.1 dated 31.12.2020 received by the respondent No.2 was also quoted. Paragraphs-6, 7, 8 and 9 of the order dated 06.01.2021 are reproduced below:
"6. Despite the aforesaid application filed by the petitioner no.1, the respondent no.2 had not taken any action. Even in the personal affidavit filed today, there is no whisper about any action taken on the basis of the aforequoted application of the petitioner no.1, dated 31.12.2020.
7. Learned A.G.A. submits that a better personal affidavit of the respondent no.2 alongwith upto date progress of investigation shall be submitted on or before the next date fixed.
8. Let a personal affidavit be filed by the respondent No.2 with upto date progress of investigation. The respondent no.2 is also directed to produce the petitioner no.2 on the next date fixed.
9. Put up in the additional cause list on 19.01.2021."
16. In the order dated 19.01.20212, which is made part of the present order, this Court referred and reproduced various paragraphs of the personal affidavit of the respondent No.2 dated 18.01.2021, short counter affidavit dated 19.01.2021 and supplementary affidavit of the petitioner No.1 dated 19.01.2021 and observed as under:
"10. Copies of newspaper cutting and photographs of the dead bodies filed alongwith the supplementary affidavit as Annexure - SA-3 clearly reveals that the petitioner No.2 and Ravi Pandey have been brutally murdered and burnt and thereafter their bodies were thrown in a trench so as to hide out the identity of the persons murdered, namely, the petitioner no.2 and Ravi Pandey. It is not only surprising, but extremely shocking that despite the application of the petitioner No.1, dated 26.10.2020 and 31.12.2020, about missing of the petitioner no.2, the respondents entered the missing report in G.D. on 05.01.2021 after this Court passed an order dated 05.01.2021 in the present writ petition. Even after this Court passed the order dated 06.01.2021, no investigation or action whatsoever was taken in relation to the police Officers/local police of Police Stations Chowk, Jaitpura, Lalapur Pandeypur, District Varanasi and named persons, namely, Gaurav Nigam and Sunil Nigam.
11. The respondents remained silent and neither investigated nor took any positive step to investigate the matter with respect to the persons mentioned in the application of the petitioner no.1, dated 31.12.2020 and the police personnels. The personal affidavit of respondent no.2 filed today is totally silent in this regard. Even in the short counter affidavit filed by respondent no.2, there is no whisper with respect to any investigation or action by the respondent pursuant to the application of petitioner no.1 dated 31.12.2020. In the short counter affidavit, it has been stated in the aforequoted paragraph nos. 6, 7, and 8 that one Sunil Nigam and four others have been arrested at 6:44 hours on 19.01.2021, from whose possession one motorcycle TVS Apache, bearing registration No. UP-65-AP-0725 and the motorcycle used by the deceased Subham Keshari were recovered. There is no whisper that from whose possession it was recovered. Nothing has been stated that why respondents remained silent and have not taken any action or investigated the matter pursuant to the application of the petitioner no.1, dated 31.12.2020, till the petitioner no.2 was brutally murdered and body was recovered by the police of District Mirzapur on 15.01.2021 and the investigation was transferred on 18.01.2021 to Varanasi police.
12. In the light of the facts and circumstances mentioned above, the role of respondents - Varanasi police including the respondent no.2 in the matter of brutal murder of the petitioner No.2 and one Ravi Pandey, is prima faice under serious cloud. Apart from above the conduct of the respondent no.2 shows not only deliberate gross disobedience and disrespect to the orders of this court but also deliberate and intentional breach of fundamental rights granted under Article 21 of the constitution of India as well as deliberate gross dereliction in duty resulting in murder of the petitioner No.2 and one Ravi Pandey."
17. On 02.02.2021, this court heard the matter and passed the following order:
"Heard Sri Ran Vijay Singh, learned counsel for the petitioners and Sri Manish Goyal, learned Additional Advocate General, assisted by Sri Sheo Kumar Pal, learned Government Advocate and Sri A.K. Sand, learned A.G.A.-I for the State - respondents.
Rejoinder affidavit dated 28.01.2021, filed today by learned counsel for the petitioners, is taken on record.
Learned counsel for the petitioners referred to paragraphs 5, 6, and 13 of the rejoinder affidavit and Annexure 3 (copy of application dated 23.12.2020 of petitioner no.1) of the personal affidavit of the respondent no.2, dated 06.01.2021 and Annexure 1 (page 16 - copy of application of the petitioner No.1) of the counter affidavit of the respondent no.1, dated 22.01.2021 and submitted that manipulations are being done by the local police and its Senior Officers. He has also orally named several police Officers alleging their involvement and also referred to the facts noted in the orders of this Court dated 05.01.2021, 06.01.2021 and 19.01.2021 and submitted that investigation in FIR No.0006/2021, dated 18.01.2021, under Sections 302, 201 I.P.C. P.S. - Kotwali, City - Varanasi, may be transferred to the Central Bureau of Investigation, New Delhi, so that justice may be done.
Sri Manish Goyal, learned Additional Advocate General, has stated on instructions of Sri Tarun Gauba, Home Secretary, Government of U.P., Lucknow, who is present in Court; that the State Government shall immediately take appropriate action in the matter.
Learned counsel for the petitioners prays for and is granted liberty to move an appropriate application to amend the prayer and to implead Central Bureau of Investigation, New Delhi, through its Director, as respondent.
Put up as a fresh case on 08.02.2021 at 10 A.M."
18. In State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others3, (Paras-68 and 69), Hon'ble Supreme Court held as under:
"68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precludwe clarify that the department concerned is free to take appropriate action in accordance with the statute/rules/various orders applicable to them, after affording reasonable opportunity of hearing.ed from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
19. Sri Ashok Kumar Todi vs. Kishwar Jahan and others,4 (Paras-37 and 56), Hon'ble Supreme Court while affirming order for investigation by CBI also considered the directions passed by the High Court to take action against the officers on departmental side, and held as under:
"37. Even as early as in 1990, this Court has held that everyone associated with enforcement of law is expected to follow the directions and failure shall be seriously viewed and drastically dealt with. We also reiterate that the directions of this Court are not intended to be brushed aside and overlooked or ignored. Meticulous compliance is the only way to respond to directions of this Court.
56. Coming to the directions passed by the High Court about the conduct of the officers and taking action against them on the departmental side, we clarify that the department concerned is free to take appropriate action in accordance with the statute/rules/various orders applicable to them, after affording reasonable opportunity of hearing. It should not be taken as neither the High Court nor this Court concluded the issue about the allegations made against them. However, we agree with the observation of the learned single Judge in respect of the conduct of the officers in interfering with the conjugal affairs of the couple even without any formal complaint against any one of them."
20. In the case of K.V. Rajendran vs. Superintendent of Police vs. CBCID, South Zone, Chennai and others5, (Paras-13, 14 and 17), Hon'ble Supreme Court observed that investigation can be transferred from the State Investigating Agency to any other independent agency like CBI and the power of transferring such investigation should be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind or where investigation by the State Police lacks credibility and it is necessary for having "a fair, honest and complete investigation" and particularly when it is imperative to retain public confidence in the impartial work of the State Agencies. In the aforesaid case, Hon'ble Supreme Court referred to its decision in Rubabbuddin Sheikh v. State of Gujarat & Ors6 and observed that in order to do justice and instil confidence in the minds of the victims as well of the public, the State Police Authorities could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. It was further observed that where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased, the court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases.
21. In Mithilesh Kumar Singh vs. State of Rajasthan and others7, (Para-15), Hon'ble Supreme Court while emphasizing the need of fair, proper and impartial investigation, considered the transfer of investigation to CBI and held as under:
"15. Suffice it to say that transfers have been ordered in varied situations but while doing so the test applied by the Court has always been whether a direction for transfer, was keeping in view the nature of allegations, necessary with a view to making the process of discovery of truth credible. What is important is that this Court has rarely, if ever, viewed at the threshold the prayer for transfer of investigation to CBI with suspicion. There is no reluctance on the part of the Court to grant relief to the victims or their families in cases, where intervention is called for, nor is it necessary for the petitioner seeking a transfer to make out a cast-iron case of abuse or neglect on the part of the State Police, before ordering a transfer. Transfer can be ordered once the Court is satisfied on the available material that such a course will promote the cause of justice, in a given case."
22. The criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be right, just and fair and not arbitrary, fanciful or oppressive, vide Menka Gandhi vs. Union of India8 (para-7) and Vinubhai Haribhai Malviya and others vs. State of Gujrat and another9 (paras-16 and 17) and Subramanian Swamy vs. C.B.I.10 (para-86). Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the procedure established by law in a fair trial which assures the safety of the accused. The assurance of a fair trial is the first imperative of the dispensation of justice, vide Commissioner of Police, Delhi vs. Registrar, Delhi High Court, New Delhi11 (para-16). The ultimate aim of all investigation and inquiry whether by the police or by the Magistrate is to ensure that those who have actually committed a crime, are correctly booked and those who have not, are not arraigned to stand trial. This is the minimal and fundamental requirement of Article 21 of the Constitution of India. Interpretation of provisions of Cr.P.C. needs to be made so as to ensure that Article 21 is followed both in letter and in sprit. "A speedy trial" is the essence of companion in concept in "fair trial". Both being inalienable jurisprudentially, the guarantee under Article 21 of the Constitution of India embraces both life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and, therefore, cannot be alienated from each other. A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice. However, no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case.
23. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Proper result must be obtained by recourse to proper means, otherwise it would be an invitation to anarchy, vide Rampal Pithwa Rahidas vs. State of Maharastra12 (para-37). Investigation must be fair and effective and must proceed in the right direction in consonance with the ingredients of the offence and not in a haphazard manner moreso in serious case. Proper and fair investigation on the part of the investigating officer is the backbone of rule of law vide Sasi Thomas vs. State13 (para-15 and 18).
24. On the facts of the present case as briefly noted in foregoing paragraphs-12 to 18 of this order and also the facts noted in the orders dated 05.01.2021, 06.01.2021, 19.01.2021 and 02.02.2021, and also in view of the nature of allegations, particularly against the State Police and lack of credibility in the investigation by it, we are of the view that to make the process of discovery of truth, credible and to have a fair, honest and complete investigation to instil confidence in the minds of the victim's family as well of the public, the State Police Authorities should not be allowed to continue with the investigation and instead the investigation in the crime case in question be transferred to the respondent No.8 (Central Bureau of Investigation) for fair, honest, impartial and complete investigation so as to promote the cause of justice. Learned Additional Advocate General for the State-respondents has also agreed for transfer of investigation from SIT to CBI as noted above in paragraph-9. Therefore, we find it a fit case to direct transfer of investigation from State Police/ SIT to CBI, i.e. the respondent No.8 and it is ordered accordingly.
25. Today, when the matter was taken up, this court specifically asked the learned Additional Advocate General as to whether respondent No.1 has taken any action as per statement made before this court on 02.02.2021. The learned Additional Advocate General admitted that action has not yet been taken against any police officers in terms of the statement of the Secretary (Home) recorded in the order dated 02.02.2021, but the action to be taken is under consideration of the State Government for which procedure is being followed.
26. Considering the facts and circumstances mentioned above and also no objection of the respondent No.1 for investigation by the respondent No.8, we direct the State - respondents including the SIT to forthwith transfer investigation to the respondent No.8 in First Information Report being Case Crime No.0006/2021 dated 18.01.2021 under Sections 302, 201 IPC, P.S. Kotwali District Varanasi. The respondent No.8 is directed to take up the investigation in the aforesaid FIR/ Case Crime No.006/2021 dated 18.01.2021 and complete the investigation fairly, impartially and in accordance with law, expeditiously. On the next date fixed, an affidavit on behalf of the respondent No.8 shall be filed indicating that the investigation in the above matter has been started by it. Thus, relief No.(1-a) stands granted.
27. So far as the relief No.(1-b) is concerned, presently we do not find any good reason to issue directions for judicial inquiry in the light of the grant of relief No.(1-a).
28. So far as the relief No.(1-c) is concerned, we abstain from issuing any order in exercise of powers under Article 226 of the Constitution of India in view of the assurance of the Home Secretary, Government of U.P. noted in the aforequoted order dated 02.02.2021.
Question left open:-
29. Whether rule of law should prevail and fundamental rights guaranteed to people under Articles 14 and 21 of the Constitution of India should be observed or deliberate inaction, misconduct and dereliction in duty of officers, if any, should be excused or protected, is an important question before the State Government under the facts and circumstances of the present case. Keeping in mind the statement of the Home Secretary noticed in the aforequoted order dated 02.02.2021 and the observations of the Hon'ble Supreme Court in Mohd. Haroon and others vs. Union of India and another14, (para-129), that "the officers responsible for maintaining law and order, if found negligent, should be brought under the ambit of law irrespective of their status," we presently leave this question open to the wisdom of the State Government for proceeding departmentally against erring officers strictly in accordance with law.
30. Affidavit of compliance on behalf of the State Government and the respondent No.8 shall be filed on the next date fixed.
31. Put up in the additional cause list on 19.02.2021.
Order Date :- 08.02.2021 NLY APPENDIX-I Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 1 of 2021 Petitioner :- Shivam Keshari And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ran Vijay Singh Counsel for Respondent :- G.A.,Gyan Prakash Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Shamim Ahmed,J.
Heard Shri Ran Vijay Singh, learned counsel for the petitioners and learned AGA for the State.
This writ petition has been filed by the petitioers praying for the following reliefs:-
(I) Issue a writ or direction in the nature of habeas corpus directing respondents to produce the petitioner no.2 (corpus) before this Hon'ble Court on such date and time as this Hon'ble Court may deem fit and proper in the circumsances of the case and also direct the respondents to release the corpus from illegal confinement.
In paragraph nos.4, 5, 6, 8, 9, 10, 11 and 12 of the Habeas Corpus Writ Petition, it has been stated as under:-
"4. That, an incident took place on 22.12.2020 at 7.00 PM with the petitioner no.2 (corpus), the police of police station Chowk, Police Station Jaitpura, police station Pandeypur and Crime Branch of district Varanasi caught the petitioner no.2 and his friend namely Ravi Pandey near the house of Sunil Gupta.
5. That, the petitioner number no.1 is brother of the petitioner no.2. After the alleged incident petitioner no.1 got information by the locality that the petitioner no.1 has been picked up by the police. After this information petitioner no.1 alongwith his family members went to concern police station Pandeypur where no information was given regarding the arresting of the petitioner no.2, thereafter petitioner no.1 and his family members started to search in other police station of district Varanasi, but no information could be collected regarding the petitioner no.2.
6. That, being compelled petitioner no.1 moved an application to Senior Superintendent of Police and Superintendent of Police (Crime) Varanasi through post on 26.12.2020 and also moved an application to District Magistrte, Varanasi on 26.12.2020 therein stating all correct facts of the matter, but no action was taken by the authorities. A photocopy of the applications along with the receipts dated 26.12.2020 are being filed collectively herewith and marked as Annexure No.1 to this writ petition.
8. That, the petitioner no.1 moved an application to DGP U.P., Senior Superintendent of Police and also moved an application to District Magistrate Varanasi on 31.12.2020 through e-mail, fax and post therein stating all correct facts of the matter, but no action was taken by the authorities. A photocopy of the applications along with the receipts dated 31.12.2020 are being filed collectively herewith and marked as Annexure No.3 to this writ petition.
9. That, the petitioner no.1 has been informed by the people of locality that his brother-petitioner no.2 has been taken away by the cops of the district Varanasi, but the police stations of district Varanasi are not given any information regarding the petitione no.2.
10. That, the petitioner no.2 has been detained illegally by the police of district Varanasi against his wishes.
11. That, the illegal confinement of the petitioner no.2 shows his life is in danger; he may be killed in fake encounter by the police.
12. That it is submitted that the continued illegal confinement of the petitoner no.2 by respondents against his wishes in violation of his right and liberty guaranteed under Article 21 of the Constitution of India and he is entitled to a direction from this Hon'ble Court to be set at liberty forthwith."
The petitioners have moved several applications before the S.S.P. Varanasi, Director General of Police, Uttar Pradesh (D.G.P.) and other authorities through Speed Post, email and Fax yet neither any FIR has been registered nor whereabouts of the petitoner no.2 namely Shubham Keshari has been apprised to his family members.
Considering the facts and circumsances of the case and the submissions of learned counsel for the parties, we direct the respondent no.2 Senior Superintendent of Police, Varanasi to file his personal affidavit by tomorrow.
Put up on 06.01.2021 for further hearing at 2.00 p.m. Order Date :-05.01.2021 SFH APPENDIX-II Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 1 of 2021 Petitioner :- Shivam Keshari And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ran Vijay Singh Counsel for Respondent :- G.A. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Shamim Ahmed,J.
1. Heard Sri Ran Vijay Singh, learned counsel for the petitioners and Sri N.K. Verma, learned A.G.A. for the State - respondents.
2. A personal affidavit of Sri Amit Pathak, Deputy Inspector General of Police/Senior Superintendent of Police, District - Varanasi, dated 18.01.2021, and a short counter affidavit dated 19.01.2021, of Sri Vikas Chandra Tripathi, Additional Superintendent of Police (City), District - Varanasi, on behalf of the respondent no.2, have been filed today which are taken on record.
3. A supplementary affidavit dated 19.01.2021 by the petitioner no.1 has been filed today which is also taken on record.
4. On 06.01.2021, this Court passed the following order :-
"1. Heard learned counsel for the petitioner and Sri Patanjali Misra, learned A.G.A.
2. On 5.01.2021, this Court passed the following order :-
"Heard Shri Ran Vijay Singh, learned counsel for the petitioners and learned AGA for the State.
This writ petition has been filed by the petitioers praying for the following reliefs:-
(I) Issue a writ or direction in the nature of habeas corpus directing respondents to produce the petitioner no.2 (corpus) before this Hon'ble Court on such date and time as this Hon'ble Court may deem fit and proper in the circumstances of the case and also direct the respondents to release the corpus from illegal confinement.
In paragraph nos.4, 5, 6, 8, 9, 10, 11 and 12 of the Habeas Corpus Writ Petition, it has been stated as under:-
"4. That, an incident took place on 22.12.2020 at 7.00 PM with the petitioner no.2 (corpus), the police of police station Chowk, Police Station Jaitpura, police station Pandeypur and Crime Branch of district Varanasi caught the petitioner no.2 and his friend namely Ravi Pandey near the house of Sunil Gupta.
5. That, the petitioner number no.1 is brother of the petitioner no.2. After the alleged incident petitioner no.1 got information by the locality that the petitioner no.1 has been picked up by the police. After this information petitioner no.1 alongwith his family members went to concern police station Pandeypur where no information was given regarding the arresting of the petitioner no.2, thereafter petitioner no.1 and his family members started to search in other police station of district Varanasi, but no information could be collected regarding the petitioner no.2.
6. That, being compelled petitioner no.1 moved an application to Senior Superintendent of Police and Superintendent of Police (Crime) Varanasi through post on 26.12.2020 and also moved an application to District Magistrate, Varanasi on 26.12.2020 therein stating all correct facts of the matter, but no action was taken by the authorities. A photocopy of the applications along with the receipts dated 26.12.2020 are being filed collectively herewith and marked as Annexure No.1 to this writ petition.
8. That, the petitioner no.1 moved an application to DGP U.P., Senior Superintendent of Police and also moved an application to District Magistrate Varanasi on 31.12.2020 through e-mail, fax and post therein stating all correct facts of the matter, but no action was taken by the authorities. A photocopy of the applications along with the receipts dated 31.12.2020 are being filed collectively herewith and marked as Annexure No.3 to this writ petition.
9. That, the petitioner no.1 has been informed by the people of locality that his brother-petitioner no.2 has been taken away by the cops of the district Varanasi, but the police stations of district Varanasi are not given any information regarding the petitioner no.2.
10. That, the petitioner no.2 has been detained illegally by the police of district Varanasi against his wishes.
11. That, the illegal confinement of the petitioner no.2 shows his life is in danger; he may be killed in fake encounter by the police.
12. That it is submitted that the continued illegal confinement of the petitioner no.2 by respondents against his wishes in violation of his right and liberty guaranteed under Article 21 of the Constitution of India and he is entitled to a direction from this Hon'ble Court to be set at liberty forthwith."
The petitioners have moved several applications before the S.S.P. Varanasi, Director General of Police, Uttar Pradesh (D.G.P.) and other authorities through Speed Post, email and Fax yet neither any FIR has been registered nor whereabouts of the petitioner no.2 namely Shubham Keshari has been apprised to his family members.
Considering the facts and circumstances of the case and the submissions of learned counsel for the parties, we direct the respondent no.2 Senior Superintendent of Police, Varanasi to file his personal affidavit by tomorrow.
Put up on 06.01.2021 for further hearing at 2.00 p.m."
3. In compliance to the aforequoted order, a personal affidavit of Sri Shrawan Kumar Singh, Superintendent of Police (Traffic), District - Varanasi/incharge, Senior Superintendent of Police, Varanasi, dated 06.01.2021, has been filed today, which is taken on record.
4. In paragraph 6 of the aforesaid personal affidavit, it has been admitted that the information given by the petitioner no.1 by application on 23.12.2020 regarding missing of the petitioner no.2 was entered in the G.D. No.040, dated 05.01.2021. In paragraph 7 it has been stated that the petitioner has neither been arrested nor detained in any police station in District - Varanasi. In paragraph 9 it has been stated that the petitioner no.2 was on parole from 16.05.2020 on the basis of the order passed by the Hon'ble Supreme Court in the back ground of COVID - 19 Pandemic and he had been incarcerated in Case Crime No.178 of 2019 under Sections 406, 420 I.P.C., P.S. Chowk, District - Varanasi and Case Crime No.190 of 2019 under Section 406 I.P.C., P.S. Chowk, District - Varanasi. It has further been stated in paragraph 9 of the personal affidavit that in order to avoid returning to jail as per parole conditions, the petitioner no.2 appears to have gone under ground.
5. The aforesaid personal affidavit prima facie appears to be unsatisfactory and indicates inaction on the part of the police inasmuch as the application was given by the petitioner no.1 for missing of the petitioner no.2 on 23.12.2020 but missing report has been entered in the G.D. on 05.01.2021 after this Court passed the aforequoted order. That apart, the petitioner no.1 has moved an application dated 31.12.2020 through speed post and fax, before the Senior Superintendent of Police, Varanasi, in which he has clearly stated as under :-
"सेवा में, श्रीमान् वरिष्ठ पुलिस अधीक्षक महोदय, जिला वाराणसी।
विषयः- प्रार्थी के भाई एवं उसके मित्र की पुलिस एवं विपक्षियों द्वारा अपहरण करके सुनियोजित हत्या करने की साजिश के सम्बन्ध मेः-
मोहदय, निवेदन है कि प्रार्थी शिवम केशरी पुत्र रमाशंकर केशरी निवासी मकान नम्बर -के.64/48 गोला दीनानाथ, थाना कोतवाली, जिला वाराणसी का रहने वाला है। प्रार्थी का छोटा भाई शुभम केशरी दिनांक 22/12/2020 ई० को घर से अपने मित्र रवि पाण्डेय के साथ पड़ोस में रहने वाले सुनील गुप्ता के घर पर गया हुआ था। उसी दिन सायं लगभग 7:00 बजे प्रार्थी का भाई एवं उनका मित्र रवि पाण्डेय उक्त सुनील गुप्ता की मोटर साईकिल संख्या- UP 65 AT 8867 लेकर घर को वापस आ रहा था उसी समय पुलिस विभाग की अपराध शाखा एवं स्थानीय थाना चौक, वाराणसी, स्थानीय थाना जैतपुरा, वाराणसी तथा स्थानीय थाना लालपुर पाण्डेयपुर, जिला वाराणसी के पुलिस कर्मचारी प्रार्थी के भाई एवं उसके मित्र रवि पाण्डेय को सुनील गुप्ता के घर के पास से मारते पीटते हुए उठा ले गये। प्रार्थी अपने भाई एवं रवि पाण्डेय के परिवार वाले जिला के सभी थानों पर उनका पता लगाये तो उनका कहीं भी पता नहीं लग रहा है। प्रार्थी के भाई एवं उसके मित्र के अपहरण में थाना चौक, जिला वाराणसी के पुलिस वालों एवं गौरव निगम पुत्र स्व० मोहन निगम निवासी मकान नम्बर-सी.के.48/189 हड़हा चौक, थाना चौक, जिला वाराणसी तथा गौरव निगम के मामा सुनिल निगम के द्वारा प्रमुख रूप से साजिश की गयी है। प्रार्थी को आशंका है कि उक्त साजिशकर्ताओं द्वारा प्रार्थी के भाई एवं उसके मित्र की सुनियोजित हत्या की जा सकती है। प्रार्थी की कहीं भी सुनवाई नहीं हो रही है। इस कारण प्रार्थी श्रीमान् जी के समक्ष पुनः प्रार्थना पुत्र प्रस्तुत कर रहा है।
प्रार्थना अतः श्रीमान जी से निवेदन है कि प्रार्थी के प्रार्थना पत्र के प्रकाश में जाँच करवा कर आवश्यक कार्यवाही करने का आदेश देने की कृपा करें। प्रार्थी आप श्रीमान् जी का सदैव आभारी रहेगा।
दिनांक :- 31/12/2020 ई० हस्ताक्षर प्रार्थी शिवम केशरी मो०नं० - 9919891196"
6. Despite the aforesaid application filed by the petitioner no.1, the respondent no.2 had not taken any action. Even in the personal affidavit filed today, there is no whisper about any action taken on the basis of the aforequoted application of the petitioner no.1, dated 31.12.2020.
7. Learned A.G.A. submits that a better personal affidavit of the respondent no.2 alongwith upto date progress of investigation shall be submitted on or before the next date fixed.
8. Let a personal affidavit be filed by the respondent No.2 with upto date progress of investigation. The respondent no.2 is also directed to produce the petitioner no.2 on the next date fixed.
9. Put up in the additional cause list on 19.01.2021."
5. In compliance to the aforesaid order dated 06.01.2021, the personal affidavit dated 18.01.2021 of the respondent no.2 has been filed today. In paragraphs 2 and 3 of his personal affidavit the respondent no.2 has stated that pursuant to the order dated 06.01.2021, he is filing a better personal affidavit alongwith upto date progress of investigation.
6. In paragraphs 4 to 14 of his personal affidavit the respondent no.2 has stated that the sub - Inspector Sachidanand Singh, constable Sudhir Bharti and constable Dinesh Kumar Yadav made searches at all likely places in an effort to trace out the petitioner No.2. In this process they inquired the petitioner no.1, one Sri Anil Gupta, boatman Arun Kumar, Ram Shanker Kesari (father of the petitioner no.2), Sunil Gupta, (friend of the petitioner) and relative Mohit Kesari and also affixed photo posters at various places but nothing fruitful could be achieved by these efforts and, therefore, reports were prepared and information were given to the DCRB Surveillance cell, Social Media, Electronic Media and news channel to try and trace out the petitioner No.2. In these paragraphs i.e. paragraphs 4 to 14 the aforesaid alleged investigation date wise i.e. on 06.01.2021 to 16.01.2021 have been mentioned. In paragraph 14 it has been stated that on 16.01.2021, the police team made efforts to try and trace out the location ("pata rasi surag rasi") at various places. Telephone calls made by the Station House Officer of Police Station Ahraura, District - Mirzapur and Circle Officer - Naxal, were received by Inspector Kotwali that in the jurisdiction of police station Ahraura two dead bodies have been found in half burnt condition which were the bodies of petitioner no.2 and one Sri Ravi Pandey.
7. The aforesaid personal affidavit of the respondent no.2 runs in 18 paragraphs. Above referred paragraphs 4 to 16 of the personal affidavit of the respondent no.2 are reproduced below :-
"4. That on 6.1.2021, Sub Inspector Sachidanand Singh, Constable Suldhir Bharti and Constable Dinesh Kumar Yadav made searches at all likely places in an effort to trace out the person named Shubham Kesari. The brother of the said Shubham Kesari, named Shivam Kesari, upon being questioned disclosed that on 22.12.2020, at about 3 p.m., his brother named Shubham had gone with Ravi Pandey, son of Ashok Pandey, resident of Ashok Nagar Colony, Mahmoorganj, P.S. Bhelupur, Varanasi, to the house of their neighbour named Sunil Gupta, son of late Chhotey Lal Gulpta, resident of CK49/5, Bhooletan, P.S. Chowk, Varanasi. They had gone on Honda Shine Motorcycle, bearing registration No.UP 65-AT8867, and never returned. Sunil Gupta was contacted and questioned. He said that he was at home on 22.12.2020, and at about 3 p.m., Shubham Kesari came, and asked for his Bike (supra), as he had to go somewhere with his friend named Ravi Pandey. Sunil Gupta stated that he gave his Bike, but it never returned, neither dead Shubham Kesari. People of the locality confirmed that Shubham Kesari had been seen on a motorcycle in the afternoon of 22.12.2020, but did not know where he went. Examination of Footage of nearby CCTV Cameras could also not shed light on anything useful. Posters bearing the photograph of the missing Shubham Kesari were affixed at prominent public places and distributed in several mohallas, like Gola Dina Nath, Kashipura, Resham Katra, Bhooletan, Maidagin, Boolanala, Chowk, Godowalia and various Ganga Ghats. The police team went to Bhelupur, Lanka, Cantt, Kashi and Dharamshalas. They also visited hotels, bus-stands and railway sations and affixed posters with the Photograph, and made inquiries from the public. Nothing fruitful, however, could be achieved by these efforts. Reports were prepared and information given to the DCRB, the Surveillance Cell, Social Media, Electronic Media and News Channels to try and trace out Shubham Kesari.
5. That on 07.01.2021 Sub Inspector Sachidanand Singh, constable Suhir Bharti and constable Dinesh Kumar Yadav made searches at all likely places in a effort to trace out the person named Shubham Kesari, went to Bhooletan where Anil Gupta, son of Late Chhotey Lal Gupta, resident of CK 49/5 Bhooletan, P.S. Chowk, Varanasi. Confirmed that Shubham Kesari along with Ravi Pandey often used to visit their house. He corroborated his brother Sunil's statement that Shubham Kesari and Ravi Pandey had came to their house on 22.12.2020 at about 3 p.m., and borrowed his brother Sunil's bike. They left and never returned. Police summoned informant (mukhbir khaas) and enquired about Shubham Kesari but nothing fuitful emerged. The police team affixed posters bearing the photograph of the missing Shubham Kesari, at prominent public places and distributed in several mohallas, like Maidagin, Bisheshwar Ganj. Adampur Gol Gatta, Rajghat Kash, Padaun, Soojabad, Ram Nagar, Lanka, and Godowlia. Nothing fruitful, however, could be achieved by these efforts.
6. That on 08.01.2021, sub inspector Sachidanand Singh, and constable Ramu Yadav went to try and trace out Shubham Kesari, to many places, including, Maidagin, Chowk, Godowlia and affixed the photo posters at various public places, while enquiring from members of the public about the said Shubham Kesari. The team also proceeds to Dashshamedh where boatman Arun Kumar son of Faujdar and others were questioned and shown the photo posters, but they could not give any worthwhile information. The team also proceeded to Rajghat Padaun, Dulhipur where people were questioned and shown the photo posters, but they could not give any worthwhile information. They went to Kashi Station and affixed the photo-posters on train bogies and made enquiries from the public.
7. That on 09.01.2021 the police team made searches at all likely places in an effort to trace out the person named Shubham Kesari, and visited the father of Shubham Kesari who could not shed any light regarding his son's whereabouts. Sunil Gupta was again questioned who repeated his earlier statement (supra) and said he would inform the police if he got any information about Shubham Kesari. Photo posters were affixed at various public places and after summoning police informers, enquiries were made but these efforts did not yield any information. Head Constable Deo Narain was sent to various districts in order to get information.
8. That on 10.01.2021 police team made efforts to try and trace out the location ("pata rasi surag rasi") at various places. Ram Shanker Kesari, the father of Shubham Kesari and Sunil Gupta were again questioned, but could not reveal anything useful. They promised to inform the police if anything positive came to their knowledge. The Corporator of Shabd Sagar named Bhaiya Lal Yadav was questioned but could not give any useful information. The spots where photo (posters had earlier been affixed were visited and enquiries made, but nothing fruitful emerged. The footage of CCTV cameras on the likely route taken by Shubham Kesari was examined.
9. That on 11.01.2021 police team made efforts to try and trace out the location ("pata rasi surag rasi") at various places. They questioned one Mohit Kesari, relative of Shubham Kesari, but he could not shed any light on the location of Shubham Kesari. Sunil Gupta was again questioned, but could not reveal anything useful. He promised to inform the police if anything positive came to their knowledge. Anil Gupta (brother of Sunil Gupta) was present and corroborated his earlier statement. The spots at public places where the photo posters weere affixed erlier were visited and enquiries made from the public, but nothing fruitful emerged. The team went to the DCRB office and made enquiries about progress, and were informed that the CDRs had been obtained and were being examined.
10. That on 12.01.2021 the police team visited all likely placed including houses of relatives but nothing fruitful emerged from the enquiries. The spots at public places where the photo posters were affixed earlier were visited and enquiries made from the public and local shop keepers, but nothing fruitful emerged. The team went to Ramakant Nagar Colony, P.S. Sigra, where Sanjay Kumar Jaiswal and Neeraj Pandey were questioned but could not give any useful information.
11. That on 13.01.2021, the police team made efforts to try and trace out the location ( " pata rasi surag rasi") at various places. They questioned Mohit keshari and Sunil Gupta but nothing fruitful emerged . CCTV footage was examined, and the persons on whose premises they were installed, were also questioned. The footage revealed that Shubham Kesari was seen driving the bike alone on 22.12.2020. The spots at public places where the photo posters were affixed earlier were visited and enquiries made from the public and local shop keepers, but nothing fruitful emerged. When the team reached Padaun, a friend of Shubham Kesari named Dilsher Ahmad was enquired about but he was not available. The team went to the office of the DCRB, where the " talaash gasti" of the police had been issued on 12.01.2021. The telecast and broadcast at all districts of U.P., had been made by Doordarshan, Lucknow and Aakashvani Kendra, Varanasi. Head constable Deo Narain returned from Ghaipur, Mau, Azamgarh, GRP and DCRB ( of all three districts) after affixing photo posters at various places. The Circle Officer Kotwali constituted a team to trace out Shubham kesari.
12. That on 14.01.2021, the police team made efforts to tray and trace out the location (" pata rasi surag rasi") at various places. They again questioned Mohit Kesari and Sunil Gupta but nothing fruitful emerged. The spots at public places where the photo posters were affixed earlier were visited and enquires made from the public and local shop keepers, but nothing fruitful emerged. When the team reached Padaun, the friend of Shubham Kesari named Dilsher Ahmad was was found, who said that he had met Shubham Kesari in the jail. Since then they had been in touch. Often, Shubham Kesari used to say that his parole was about to end, but he was unable to arrange the money for bail. In case the money was not arranged, Subham Kesari had said that he would go underground.
13. That on 15.01.2021, the police team made efforts to try and trace out the location ("Pata rasi surag rasi") at various places. The spots at public places where the photo posters were affixed earlier were visited and enquiries made from the public and local shop keepers, but nothing fruitful emerged. The CDR of the mobile No. 9151674317 belonging to Subham Kesari was obtained which revealed that he was in constant touch with mobile number 9451436168 of one Neeraj Pandey. Police questioned the said Neeraj Pandey who said that on 22.12.2020 Shubham Kesari and Ravi Pandey had come and he had taken them to Phool Mandi, Sigra, where one Vicky came and took Shubham Kesari and Ravi to some hotel.
14. That on 16.01.2021, the police team made efforts to try and trace out the location (" pata rasi surag rasi") at various place. Telephone calls made by Station House Officer of police station Ahraura, District Mirzapur and Circle Officer Naxal district Mirzapur were received by Inspector Kotwali that in the jurisdiction of police station Ahraura, two dead bodies had been found in a half burnt condition. Relatives of Shubham Kesari and Ravi Pandey were taken to Mirzapur, where they identified the dead bodies as being those of Shubham Kesari and Ravi Pandey. The relevant entry was incorporated in the General Diary at 14:19 hours.
15. That a first information report was lodged on 15.01.2021 bearing Case Crime No. 10 of 2021 under sections 302,201 I.P.C. at Police Station Ahraura, District Mirzapur, against unknown accused, by one Raj Kumar, who stated in the F.I.R. that he had chanced upon the dead bodies. A copy of the first information report is being attached and marked as Annexure No.1 to this personal affidavit.
16. That the said case was transferred from Mirzapur to Police Station Kotwali on 18.01.2021 at 15:05 hours, and the same shall be investigated with due diligence in a fair and impartial manner."
8. The short counter affidavit dated 19.01.2021 filed today on behalf of the respondent no.2 runs in ten paragraphs. In paragraphs 6, 7, 8 and 9 of the aforesaid short counter affidavit it has been stated as under :-
"6. That at Varanasi at 03.05 hours by Rapat No. 07 dated 18.01.2021, case crime No. 06 of 2021 under sections 302, 201 of I.P.C. was registered against unknown persons.
7. That the investigation of the aforesaid case was undertaken by the Station House Officer of Police Station Kotwali, District Varanasi and while conducting the investigation, the names of following persons was revealed as being involved in the crime in question:-
i. Sunil Kumar Nigam s/o of Daya Prasad Nigam ii. Parvez Ahmad s/o Kausar Ali.
iii. Guddu Rajbhar s/o Bachau.
iv. Dilsher s/o Jaleel Ahmad v. Neeraj Pandey s/o Dayananad Pandey
8. That the team, which had been constituted in the case arrested the aforesaid five accused persons at 06.44; hours on 19.01.2021, from whose possession, the motorcycle TVS Apache bearing its registration No. UP-65-AP-0725 and the motorcycle used by the deceased Shumbam Keshari Hero Honda Shine were recovered. The one helmet of Shubham Keshari and black jacket of Ravi Pandey and the aadhar cards of both the deceased were recovered from the spot identified and pointed out by the arrested accused persons.
9. That the investigation in the case is being conducted in a fair and impartial manner with due diligence."
9. In supplementary affidavit dated 19.01.2021, the petitioner no.1 has stated in paragraphs 2 to 6 as under :
"2. That on 10.1.2021 at about 13:05 P.M. Sub Inspector Sachidanand Singh and two Constable came to house of the petitioner No.1 and asked his mobile for putting on surveillance and took away the mobile Phone of the petitioner asking passward. It is stated that the Sub Inspector Sachidanand Singh started to send message through Whatsapp to relatives of the petitioner No.1 writing a message as "Subham ko bolana phone n kare". As soon as this fact came into the knowledge of the petitioner No.1, he immediately, moved applications to SSP and DM through Fax on 10.1.2021. A Photocopy of the applications alongwith receipts dated 10.1.2021 are being filed collectively and marked as Annexure No. SA-1 to this affidavit.
3. That, the petitioner no.1 also moved applications to DM, DGP and SSP through post as well as through e-mail to DGP on 11.1.2021 regarding the above incident. A photocopy of the applications alongwith receipts dated 11.1.2021 being filed collectively and marked as Annexure No. SA-2 to this affidavit.
4. That, it is relevant to mention here that the Sub Inspector Sachidanand Singh, another Sub Inspector and three Constable came to house of the petitioner No.1 and returned back the aforesaid mobile of the petitioner no.1 to his family member on 16.1.2021 and took signature on a plane paper.
5. That, on 16.1.2021 the petitioner No.1 and his family member got information through newspaper "Dainik Jagran" that two unknown dead bodies have been found in police station-Ahraura, Mirzappur, thereafter petitioner No.1 immediately moved to Ahraura, Mirzapur where the dead body was lying in Chunar Mortuary, the petitioner No.1 made identification and found that the dead body was of petitioner no.2 (Corpus). A photocopy of the Newspaper "Dainik Jagran" dated 16.1.2021 along with photographs of dead body of petitioner No.2 being filed collectively and marked as Annexure No.SA-3 to this affidavit.
6. That, the petitioner no.1 has seen to Ashutosh Tiwari, SHO Chowk, Varanasi several times on the shop of Sunil Nigam situated Sarai Hadha, P.S. Chowk after picked up the petitioner no.2 by the police, it can be identified through collecting CCTV Footage near the shops."
10. Copies of newspaper cutting and photographs of the dead bodies filed alongwith the supplementary affidavit as Annexure - SA-3 clearly reveals that the petitioner No.2 and Ravi Pandey have been brutally murdered and burnt and thereafter their bodies were thrown in a trench so as to hide out the identity of the persons murdered, namely, the petitioner no.2 and Ravi Pandey. It is not only surprising, but extremely shocking that despite the application of the petitioner No.1, dated 26.10.2020 and 31.12.2020, about missing of the petitioner no.2, the respondents entered the missing report in G.D. on 05.01.2021 after this Court passed an order dated 05.01.2021 in the present writ petition. Even after this Court passed the order dated 06.01.2021, no investigation or action whatsoever was taken in relation to the police Officers/local police of Police Stations Chowk, Jaitpura, Lalapur Pandeypur, District Varanasi and named persons, namely, Gaurav Nigam and Sunil Nigam.
11. The respondents remained silent and neither investigated nor took any positive step to investigate the matter with respect to the persons mentioned in the application of the petitioner no.1, dated 31.12.2020 and the police personnels. The personal affidavit of respondent no.2 filed today is totally silent in this regard. Even in the short counter affidavit filed by respondent no.2, there is no whisper with respect to any investigation or action by the respondent pursuant to the application of petitioner no.1 dated 31.12.2020. In the short counter affidavit, it has been stated in the aforequoted paragraph nos. 6, 7, and 8 that one Sunil Nigam and four others have been arrested at 6:44 hours on 19.01.2021, from whose possession one motorcycle TVS Apache, bearing registration No. UP-65-AP-0725 and the motorcycle used by the deceased Subham Keshari were recovered. There is no whisper that from whose possession it was recovered. Nothing has been stated that why respondents remained silent and have not taken any action or investigated the matter pursuant to the application of the petitioner no.1, dated 31.12.2020, till the petitioner no.2 was brutally murdered and body was recovered by the police of District Mirzapur on 15.01.2021 and the investigation was transferred on 18.01.2021 to Varanasi police.
12. In the light of the facts and circumstances mentioned above, the role of respondents - Varanasi police including the respondent no.2 in the matter of brutal murder of the petitioner No.2 and one Ravi Pandey, is prima faice under serious cloud. Apart from above the conduct of the respondent no.2 shows not only deliberate gross disobedience and disrespect to the orders of this court but also deliberate and intentional breach of fundamental rights granted under Article 21 of the constitution of India as well as deliberate gross dereliction in duty resulting in murder of the petitioner No.2 and one Ravi Pandey.
13. Sri Sheo Kumar Pal, learned G.A. prays for and is granted two days' time to enable the respondent No.1 to file counter affidavit to the writ petition and the supplementary affidavit by means of his personal affidavit. The respondent No.2 shall also file counter affidavit by means of his personal affidavit annexing therewith postmortem report of the petitioner No.2 and Ravi Pandey. They shall file counter affidavits on or before the next date fixed failing which both the respondent No.1 and 2 shall remain personally present.
14. Put up in the additional cause list on 22.01.2021 at 2.00 P.M.
15. Copy of this order be given by the office to the learned Government Advocate for communication and necessary compliance.
Order Date :- 19.1.2021/vkg