Allahabad High Court
Prema Devi vs State Of U.P. & 13 Others on 10 February, 2014
Bench: Surendra Singh, Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Case :- CRIMINAL MISC. WRIT PETITION No. - 13818 of 2013 Petitioner :- Prema Devi Respondent :- State Of U.P. & 13 Others Counsel for Petitioner :- Sanjai Srivastava, Ashish Kumar Gupta Counsel for Respondent :- Govt. Advocate, Dr. S.B. Singh Hon'ble Surendra Singh,J.
Hon'ble Rakesh Srivastava, J.
(Delivered by Hon'ble Rakesh Srivastava, J.)
1. The factual matrix of the case as emerges from the pleading of the parties is that on 24.04.2013 the petitioner, Smt. Prema Devi, who alleges herself to be the owner of 1360 Sq ft. of land of Arazi No. 153 situated at Mauza Bharlai, Pargana Shivpur, Tehsil and District Varanasi lodged a First Information Report against respondent nos. 7 to 14 under sections 147, 148, 149, 427, 504, 506, 352, 354, 419, 420, 467, 468, 471 & 120-B IPC at Police Station Shivpur, District Varanasi. As per the said FIR, on coming to know that the boundry wall constructed by the petitioner over the plot of land mentioned above was being demolished by the accused persons, the petitioner reached the spot where she was assaulted and her modesty was outraged. It was alleged by the petitioner that the respondents no. 12 & 13 had executed two agreements to sale with respect to same Arazi No. 153 (including the land of the petitioner) one in favour of respondents no. 8, 9 & 11 and the other in favour of respondent no. 14 and as such in view of the averments made in the FIR the respondents no. 7 to 14 had committed forgery. The said case was registered as case crime no. 89 of 2013. The matter was being investigated by the local police.
2. Smt. Seema Prem Singh - private opposite party no. 8 and Smt. Neelam Rao - private respondent no. 11 preferred a Criminal Writ Petition No. 8135 of 2013, Seema Prem Singh & Anr. versus State of U.P. & Ors. before this Court for quashing the FIR dated 24.04.2013 in Case Crime No. 89 of 2013. The said writ petition was disposed of by this Court on 09.05.2013 with a direction to the petitioners of the said writ petition to appear before the court concerned within thirteen days and apply for bail.
3. After having failed to successfully challenge the FIR dated 24.04.2013, Smt. Neelam Rao is alleged to have made a representation to the Chief Minister, U.P. in which she stated that for a fair investigation in case crime no. 60 of 2013, 80 of 2013 and 89 of 2013, pending against her and her husband, the investigation be ordered to be conducted by Crime Branch, Crime Investigation Department (CB-CID).
4. On 16.05.2013 Shri Kailash Chaurasia, State Minister, Bal Vikas Evam Pustahar, Basic Shiksha, Lucknow wrote a letter to the Chief Minister, U.P. requesting the latter to pass necessary orders for investigation of the false cases lodged against the husband of Smt. Neelam Rao by the CB-CID. The letter / representation made by Smt. Neelam Rao alleged to have been enclosed along with the letter dated 16.05.2013 is not on record. The letter dated 16.05.2013 written by Shri Kailash Chaurasia to the Chief Minister, Uttar Pradesh is being quoted below:
ek0 eq[;eU=h th] d`i;k Jherh uhye jko iRuh Jh lat; dqekj jko fuokfluh & Q~ySV uEcj & 64] ujflag vikVZeasUV] egewj xat tuin &okjk.klh ds lyaXu izkFkZuk &i= dk voyksdu djus dk d"V djasA mDr }kjk vius ifr ds fo:) iathd`r eqdneksa dh fu"i{k tkWp lh0ch0lh0vkbZ0Mh0 }kjk djk;s tkus dk vuqjks/k fd;k x;k gSA vr% vkils lknj vuqjks/k gS fd Jherh uhye jko ds ifr ds fo:) iathd`r QthZ eqdneksa dh lh0ch0lh0vkbZ0Mh0 }kjk djk;s tkus ds vkns'k ikfjr djus dh d`ik djassA g0 viBuh;
16-5-2013 (dSyk'k pkSjfl;k) jkT; ea=h cky fodkl ,oa iq"Vkgkj] csfld f'k{kk foHkkx m0 iz0 'kklu
5. On the said letter of Shri Chaurasia a noting was been made by Shri Ahmad Hasan, Minister, Medical Health and Family Welfare, Child Welfare, Uttar Pradesh Government directing the Principal Secretary (Home) to get the matter investigated as desired by Shri Chaurasia. It may be mentioned that the second paragraph of the letter written by Shri Chaurasia was marked as ''X'. The following was the noting made by Shri Ahmad Hasan:
izeq[k lfpo x`g ek0 ea=hth ds vuqjks/kkuqlkj va'k "d" ds vuqlkj tkap djk;asA g0 viBuh;
27-5-2013 (vgen glu) ea=h fpfdRlk ,oa LokLF; ,oa ifjokj dY;k.k] f'k'kq dY;k.k mRrj izns'k 'kklu
6. Thereafter, the Senior Superintendent of Police, Varanasi (SSP, Varanasi) was required to give his report regarding the request of Smt. Neelam Rao for transfer of investigation to CB-CID. The SSP, Varanasi, on the basis of the report of Shri Kamlesh Dixit, SP (Crime), Varanasi, wrote a letter dated 04.06.2013 to the Secretary, Home (Police) in which the former opined that there was no justification / need to get the matter investigated by CB-CID.
7. On 12.06.2013 Shri Sudhir Singh Chauhan, Deputy Secretary, Government of U.P. wrote a letter to the Director General of Police Economic Offence Wing, Lucknow in which it was stated that the State Government had taken a decision that the investigation in Case Crime No. 89 of 2013 registered at Police Station Shivpur, Varanasi and Case Crime No. 60 of 2013 registered at Police Station Jaitpura, Varanasi be investigated by the Economic Offence Wing. The Director General of Police was directed to get the matter investigated and submit his report. The letter / order dated 16.5.2013 passed by Shri Chauhan is reproduced below:
izs'kd] lq/khj flag pkSgku mi lfpo] m0iz0 'kkluA lsok esa] iqfyl egkfuns"kd] vkfFkZd vijk/k vuqla/kku laxBu] y[kuÅA xksiu vuqHkkx 8 y[kuÅ fnukWd & 12 twu] 2013 fo'k;: tuin okjk.klh ds Fkkuk f"koiqj ij iathd`r eq0v0l0 89@2013 rFkk tSriqjk okjk.klh ij iathd`r eq0v0l0 60@2013 dh foospuk vkfFkZd vijk/k vuqla/kku laxBu ls djk;s tkus ds lEcU/k esaA egksn;] mi;qZDr fo'k;d ofj"B iqfyl v/kh{kd] okjk.klh ds i= la[;k lh,lVh@ vkjVhth&839@2013 fnukWd 04 twu] 2013 dh layXudksa lfgr Nk;kizfr ,rn}kjk layXu dj izsf'kr djrs gq;s eq>s ;g dgus dk funsZ"k gqvk gS fd "kklu }kjk lE;d fopkjksijkUr mijksDr iathd`r vfHk;ksxksa dh foospuk vkfFkZd vijk/k vuqla/kku laxBu ls djk;s tkus dk fu.kZ; fy;k x;k gSA 2 vr: vuqjks/k gS fd d`i;k le;c) :Ik ls mijksDr iathd`r vfHk;ksxksa dh foospuk iw.kZ djkdj foospuk vk[;k rhu izfr;ksa esa "kklu dks miyC/k djkus dk d'V djsaA layXud: mijksDrkuqlkj Hkonh;] ¼lq/khj flag pkSgku½ mi lfpo
8. The letter / order dated 12.06.2013 by means of which the investigation in Case Crime No. 89 of 2013 has been transferred from Civil Police, Varanasi to Economic Offence Wing (EOW) is under challenge in the present writ petition.
9. Shri Sanjay Srivastava, learned counsel for the petitioner has inter alia submitted that Smt. Neelam Rao was an accused and as such she had no right to choose the investigating agency, that the order dated 12.06.2013 was a non speaking order, that the order dated 12.6.2013 was passed on account of political interference.
10. On the other hand, Shri Kamal Krishna, learned Senior Advocate, appearing on behalf of respondent No. 11 has inter-alia submitted that the SSP, Varanasi was biased against respondent no. 11 and her husband and they apprehended that there would not be a fair investigation by the local police and as such there could not be any objection to the investigation by EOW, an independent investigating agency.
11. Heard Shri Sanjay Srivastava, Advocate assisted by Shri Ashish Gupta, learned counsel for the petitioners, learned Additional Government Advocate appearing for respondent nos. 1 to 6 and Shri Kamal Krishna, learned Senior Advocate assisted by Shri S.B. Singh learned counsel for respondent no. 11
12. We are of the opinion that this writ petition is liable to be allowed for more than one reason which we are going to enumerate hereinafter.
13. A perusal of order dated 12.06.2013 would show that no reason, whatsoever, has been assigned for transferring the investigation to the Economic Offence Wing. It is so well settled that even while taking administrative decision the authority concerned is obliged to record reasons. Recording of reasons operates as a valid restrain on any possible arbitrary exercise of administrative power. The reasons reassure that discretion has been exercised by the decision makers on relevant grounds and by disregarding extraneous considerations. This Court in a catena of decisions has held that transfer of investigation from local police to CB-CID by a non-speaking order cannot be sustained. The order dated 12.06.2013 by means of which the investigation has been transferred to the Economic Offence Wing is a totally non speaking order and is liable to be set aside on this ground alone.
14. Admittedly, the investigation in case crime no. 89 of 2013 has been transferred to Economic Offence Wing, at the behest of accused - Smt. Neelam Rao. The practice of transferring the investigation from one investigating agency to the other at the behest of the accused has been deprecated time and again by the Apex Court as well as this court.
15. In the case of Central Bureau of Investigation vs. Rajesh Gandhi reported in AIR 1997 SC 93 the Apex Court has categorically held that the accused cannot have a say in who should investigate the offences he is charged with.
16. The same view was taken by the Apex Court in Sakiri Vasu versus State of U.P. & Ors. Paragraph 10 of the said report is as follows:
"10. It has been held by this Court in CBI v. Rajesh Gandhi (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice."
17. A Division Bench of this Court in the case of Sandeep Kumar Yadav vs. State of U.P. & Ors. reported in 2006 (56) ACC 803 relying upon the decision of the Apex Court in the case of CBI vs. Rajesh Gandhi (supra) has held that ordinarily the accused has no locus standi in choosing the investigating agency which can conduct the investigation. In paragraph 14 of the said report this court has held as follows:
"Invariably the transfers had been effected on the recommendation of ministers and other political functionaries. These rampant transfers at the instance of the accused are in the teeth of the decision of the Apex Court in C.B.I. v. Rajesh Gandhi, which says ordinarily the accused has no locus standi in choosing the investigating agency which can conduct the investigation."
18. Again in the case of Saurabh Sahai Vs. State U.P. & Ors. reported in 2011 (Suppl.) ACC 617 a Division Bench of this Court quashed the order by means of which the investigation was transferred from Local Police to CB-CID at the behest of the accused and directed the matter to be investigated expeditiously by the local police. In paragraph no. 4 of the aforesaid judgment this court observed as follows:
"It is pointed out that the said order was passed on an application made by an accused, which was endorsed by Subhas Yadav, M.L.C. by his letter dated 9.7.2009. In our view, this is wholly a mala fide use of power by State Government. In C.B.C.I.D v. Rajesh Gandhi, it has been held that the investigation should normally not be transferred at the instance of the accused. The same view is also taken in Union of India v. W.N. Chaddha. In the compounding situation of the present case, we find that this is at the instance of the M.L.C. that the said transfer has been made, which is a blatant mala fide exercise of power."
19. In the case reported in 2013 (3) ADJ 627 (DB), Smt. Reena vs. State of U.P. & Ors. a Division Bench of this court quashed the order transferring the investigation of the case from Civil Police to CB-CID at the behest of the father of the accused. In paragraph 7 of the said report this court observed as follows:
"The State Government has taken a decision to transfer the investigation of this case from Civil Police to CB-CID on the application moved by Ramesh Chand Yadav, who is the father of the accused Ankur Yadav, the settled position of law is that the investigation of a criminal case may not be done at the choice of the accused, in the present case no reasons has been shown to transfer the investigation from Civil Police to CB-CID, even the guidelines framed by the State Government itself have not been followed in transferring the investigation of this case to CB-CID."
20. In yet another case, Criminal Misc. Writ Petition No. 16773 of 2012, Jeet Singh Vs. State of U.P. & Ors. this Court held as under:-
"It is a case in which issue of transferring the investigation from Civil Police to C.B.C.I.D. is involved. The impugned order dated 30.10.2012 shows that it is a case in which the investigation has been transferred from Civil Police to C.B.C.I.D. on the application given by the accused Pankaj Kumar Singh. No reason of trasnferring the investigation from Civil Police to C.B.C.I.D. has been shown therein whereas the State Government has issued a circular mentioning therein the grounds for transferring the investigation from Civil Police to C.B.C.I.D. Any of the grounds mentioned in the circular dated 15.09.1995 is not applicable in the present case. The hidden object of transferring the investigation to C.B.C.I.D. is to stall the action by the local police or to make the arrest of the offender."
21. The list of cases where investigation was transferred from the local police to CB-CID only at the behest of the accused has been set aside is endless. It is, thus, no more res integra that ordinarily, without there being anything more, the investigation cannot be transferred from one investigating agency to the other at the behest of the accused.
22. The fact that the investigation in the present case has been transferred from Local Police, Varanasi to the Economic Offence Wing at the instance of the accused is not in dispute. In view of the settled legal position the impugned order cannot be sustained and is liable to be set aside.
23. Despite repeated opportunities to the opposite parties to place on record the material on the basis of which the investigation in the present case was transferred to Economic Offence Wing, nothing has been placed on record. As already mentioned above, the SSP, Varanasi in his report dated 4.06.2013 has specifically stated that there was no justification / need to transfer the investigation from the local police. Thus, there is no escape from the conclusion that there was no material before the State Government to transfer the investigation from local police.
24. Moreover, we find from the record that the process for transfer of investigation in Case Crime No. 89 of 2013 from Local Police, Varanasi was initiated on the letter dated 16.05.2013 of Shri Kailash Chaurasia. In fact, all the notings have been made on the said letter. We further find that Shri Ahmad Hasan, Minister in Uttar Pradesh Government, who has no role in the matter has directed the Principal Secretary (Home) to get the matter investigated in accordance with the request of Shri Kailash Chaurasia and on the said order of Shri Hasan, comments were sought from SSP, Varanasi and thereafter the impugned order dated 12.06.2013 transferring the investigation to EOW was passed.
25. We further find that in the representation alleged to have been made by Smt. Neelam Rao for transfer of investigation from local police, she had requested that the case be transferred to CB-CID. Shri Kailash Chaurasia and Shri Ahmad Hasan had also recommended for investigation by CB-CID but by the impugned order the investigation in the present case has been transferred to the Economic Offence Wing.
26. On 04.09.2013 this Court passed an order directing the Principal Secretary Home, U.P. to file an affidavit disclosing the reason which warranted the transfer of the investigation from the regular local police to the Economic Offence Wing at the request of accused Smt. Neelam Rao and one State Minister.
27. In pursuance of order dated 04.09.2013 Shri R.M. Srivastava, Principal Secretary (Home Department), Government of U.P., Lucknow has filed a short counter affidavit. Along with said affidavit he has annexed a G.O. dated 18.09.1972 in which he has explained the necessity to establish the Economic Offence Wing. In the said short counter affidavit Shri R.M. Srivastava has also mentioned the reason as to why the investigation in the present case was transferred to the Economic Offence Wing. Paragraph 6 of the said affidavit is being quoted below:
"6. That the instant case relates to a dispute regarding very expensive real estate and the land is situate in the heart of a densely populated and sensitive city like Varanasi, and keeping in view the gravity of the allegations and counter allegations, it was decided to transfer the investigation to the E.O.W."
28. As per G.O. dated 18.09.1972 the Economic Offence Wing (EOW) is a part of CID and is a separate Specialized Investigation Branch of U.P. Police. The relevant portion of the G.O. dated 18.09.1972 is being quoted below:-
"vijk/k vuqla/kku foHkkx ds iqfyl mi egkfujh{kd ds v/khu LFkkfir vkfFkZd vfHklwpuk rFkk vuqla/kku bdkbZ dk eq[; laca/k ,sls vkfFkZd vijk/kks ls gksxk ftudk fo'ks"k egRo gks ;k ftudk flyflyk nwj&nwj rd gks vkSj ftudk jkT; ds jktLoksa ij izHkko iM+sA ;g bdkbZ eq[;r% /kks[kk/kM+h] tkylkth] feF;kx<+u diV] xcu] nqfoZfu;ksx] djksa rFkk mRiknu 'kqYd dk vioapu] t[khjsckth] rLdjh] pksjcktkjh vkSj LVkdksa rFkk 'ks;jksa esa onuh;rh ls pkyckth] vkfn ls lacaf/kr ,sls ekeyksa ds ckjsa esa dk;Zokgh djsxh tks mlds ikl ljdkj ds xksiu foHkkx }kjk Hksts tk;saxs"
29. From a perusal of the G.O. dated 18.09.1972 we find that Economic Offence Wing was constituted to conduct investigation and prosecution of cases of cheating, fraud and misappropriation of Government money concerning the departments of Forest, Transport, Food and Civil Supplies, Local Bodies, Industries, Excise, Agriculture, Panchayati Raj, Minor Irrigation, Sales Tax. However, the Government can also entrust this agency with cases concerning other departments and private persons, depending upon the ramification of the economic offences committed.
30. Thus, it is absolutely clear that only the cases which can be termed as "economic offence" can be referred for investigation to the EOW. By no stretch of imagination the offence alleged to have been committed by the accused in the present case can be said to be covered by G.O. dated 18.09.1972. It is not the case of the State that the present case relates to cheating, fraud or misappropriation of Government money. Merely because the dispute relates to a very expensive real estate and the land in dispute is situated in the heart of densely populated city i.e. Varanasi as alleged in the short counter affidavit dated 27.09.2013 filed on behalf of the State Government the investigation in the present case could not have been transferred to Economic Offence Wing. Moreover, the reason indicated in paragraph no. 6 of the short counter affidavit mentioned above is not borne out from record and appears to be an afterthought.
31. The Government Order dated 15.9.1995 lays down the conditions which are to be satisfied, before an order for entrusting investigation of a criminal case to the CB-CID may be passed. The four conditions laid down in the G.O. dated 15.9.1995 are as under:
1. The nature of the crime is so complicated and involved that it is not possible for the local police to properly investigate the case.
2. The crime has international, inter - State or interdivision ramifications.
3. The local conditions are such due to which it has become difficult for the civil police to investigate the case fairly.
4. Such conditions have arisen due to which a doubt is created in the mind of general public that the local police is not investigating the case fairly.
32. The conditions no. 1 to 3 of G.O. dated 15.09.1995 did not exist in the present case. Shri Kamal Krishna, learned counsel for the opposite party no.11 has vehemently submitted that SSP, Varanasi was biased against Smt. Neelam Rao and her husband and as such for a fair investigation, the case was transferred to EOW. The learned counsel has submitted that in the facts of the case, the writ petition is liable to be dismissed.
33. To appreciate the argument of Shri Kamal Krishna it would be prudent to examine the veracity of the allegation of bias made by Smt. Neelam Rao against the SSP, Varanasi in her representation dated 27.05.2013. The relevant portion of the representation dated 27.05.2013 is being quoted below:
"mDr iqfyfl;k dk;Zokgh dks ns[krs gq;s izkfFkZuh dks iw.kZ fo'okl gS fd okjk.klh iqfyl iz'kklu Hkw ekfQ;kvksa ls feydj izkfFkZuh rFkk mlds ifr ds fo:) ,sls gh QthZ ] eqdnesa yxkdj mls ekufld o 'kkjhfjd :i ls ijs'kku djuk pkgrk gSA ftlls izkfFkZuh ,oa mlds ifr mDr tehu ls gV tk;sA izkfFkZuh ;g Hkh crkuk vko';d le>rh gS fd mDr Hkw ekfQ;kvksa ds fo:) fofHkUu xEHkhj /kkjkvksa esa fofHkUu Fkkuksa esa eqdnes iathd`r gSA iajrq ftyk iqfyl iz'kklu muds fo:) dksbZ Hkh dk;Zokgh ugh dj jgk gSA ;g Hkh voxr djkuk lehphu gksxk fd ofj"B iqfyl v/kh{kd okjk.klh ds Nk= thou dk vf/kdka'k le; okjk.klh esa gh O;rhr gqvk gSA vr% izkfFkZuh dks iw.kZ fo'okl gS fd og ;k rks iwokZxzg ls xzflr gksdj ;k fQj fojksf/k;ksa ls feydj bu QthZ eqdneksa dh fu"i{k tkWp ugh djk;asxsA"
34. We find that in her representation dated 27.05.2013, Smt. Neelam Rao has stated that the SSP, Varanasi had spent most of the time of his student life in Varanasi and as such Smt. Neelam Rao was fully confident that the SSP, Varanasi, either on account of bias or in connivance with her opponents, would not get the matter investigated fairly.
35. The apprehension of not getting a fair and impartial investigation is required to be reasonable and not imaginary, based upon conjectures and surmises. In Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204, in paragraph 7 the apex court has held that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. It was observed that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises.
36. In order to substantiate her case of bias, Smt. Neelam Rao has relied upon a complaint alleged to have been made by her before the Human Rights Commission, New Delhi alleging bias on the part of SSP, Varanasi. The complaint was made to Human Rights Commission on 09.06.2013, after almost one month after the petitioner failed in her attempt to get an order in her favour in the writ petition preferred by her for quashing of the FIR. We find that in Criminal Writ Petition No. 8135 of 2013 preferred by Smt Neelam Rao for quashing the FIR dated 24.04.2013 in Case Crime No. 89 of 2013, neither the SSP, Varanasi was impleaded by name nor any allegation of bias was leveled against him. It was thereafter that the petitioner moved the alleged representation before the Chief Minister for transfer of investigation to CB-CID in which she leveled allegations of bias against the SSP, Varanasi. She thereafter approached Shri Kailash Chaurasia who wrote a letter dated 16.05.2013 to the Chief Minister for transfer of investigation. When, perhaps, she thought nothing was forthcoming she made a complaint to the Human Rights Commission. The complaint dated 09.06.2013 is as vague as it can be and does not inspire any confidence. Thus, it is apparent that the allegation of bias against the SSP, Varanasi was nothing but an after thought and as such Smt. Neelam Rao does not derive any benefit from the same.
37. In any case, the allegation of bias leveled by Smt Neelam Rao against SSP, Varanasi is absolutely vague. She has not stated as to why the SSP, Varanasi was biased against her and her husband. She has also not indicated as to with whom the SSP, Varanasi had connived against her. Moreover, we find that Smt. Neelam Rao is also not sure as to whether it was on account of the alleged bias on the part of SSP, Varanasi or his alleged connivance with her opponents that she was apprehending that the local police would not investigate the case fairly. Smt. Neelam Rao has not produced any material, whatsoever, either before the authorities or before this court, to establish the alleged nexus between the SSP, Varanasi and her alleged opponents. Allegations of bias and mala fide conduct are easy to make but not always as easy to prove. The SSP, Varanasi has in his report specifically stated that the matter was being investigated fairly and there was no justification or reason to transfer the investigation from local police.
38. It is trite to say that there must be cogent evidence available on record to come to the conclusion as to whether in fact there was existence of bias and malafide motive which may result in miscarriage of justice. The burden to prove bias or malafide was heavily upon Smt. Neelam Rao, which she has miserably failed to discharge. There is nothing on record from which this Court can infer that the SSP, Varanasi was biased against Smt. Neelam Rao or that the latter was in collusion with the alleged opponents of the former. Thus, the apprehension of Smt. Neelam Rao, that the local police would not have made fair investigation is totally unfounded.
39. 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. Delay in investigation of a case is normally to the advantage of the accused. We are of the opinion that all round effort has been made by Smt. Neelam Rao to stop the investigation by the local police, Varanasi.
40. Thus, there was no material before the authorities concerned on the basis of which the investigation in Case Crime No. 89 of 2013 could have been transferred to the EOW. The impugned order dated 12.06.2013 has been passed mechanically and without application of mind. Even the guideline framed by the State Government itself for transfer of investigation to EOW has not been followed in this case. The order dated 12.06.2013 has been passed merely at the diktat of political masters and is thus absolutely malafide. The order dated 12.06.2013 cannot be sustained and has to go.
41. Lastly, it has been submitted by the learned counsel for the respondent no.11 that that against the impugned order dated 09.05.2013 passed in Writ Petition No. 8135 of 2013, Seema Prem Singh and Neelam Rao Vs. State of U.P. & Ors. a Special Leave Petition has been filed in the Apex Court and on 05.07.2013 the Apex Court has stayed the arrest of Seema Prem Singh and Neelam Rao in Case Crime No. 89 of 2013. The learned counsel has submitted that the proceedings of this court should be stayed till the disposal of the said SLP. The request made by the learned counsel for respondent no. 11 is liable to be rejected. The question involved in the present writ petition is different from the one engaging the attention of the Apex Court and there is no bar in deciding this writ petition. Accordingly, this writ petition is being disposed of subject to any order passed by the Apex Court.
42. In view of the discussion made above this writ petition deserves to be allowed and is accordingly allowed. The impugned order dated 12.06.2013 by means of which the investigation has been transferred to the Economic Offence Wing is set aside.
43. The investigation of the above mentioned case shall now be done by the local police of district Varanasi. The Inspector, Economic Offence Wing, Varanasi Sector, Varanasi who is conducting the investigation of this case, is directed to hand over all the records of the present case to SSP, Varanasi within two weeks from this date. The SSP, Varanasi shall appoint an Investigating Officer not below the rank of Deputy Superintendent of Police. The new Investigating Officer appointed by the SSP, Varanasi is directed to investigate all aspects of the case expeditiously and file a report to the court concerned having jurisdiction within a period of three months from the date of taking over of the investigation from the Economic Offence Wing.
44. Let a copy of this order be supplied to learned Additional Government Advocate within two days for necessary compliance.
Order Date:- 10.02.2014 Pradeep/-