Madhya Pradesh High Court
Awadhesh Singh Tomar vs The State Of Madhya Pradesh on 19 August, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
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W.P. No.4473/2019(PIL)
HIGH COURT OF MADHYA PRADESH
W.P. No.4473/2019
(Awadhesh Singh Tomar Vs. The State of Madhya Pradesh)
Gwalior, dated: 19.08.2019
Per Justice Vivek Agarwal
Shri Awdhesh Singh Bhadoriya, learned counsel for the
petitioner.
Shri F.A. Shah, learned Govt. Advocate for respondents
No.1, 2, 3 and 6/State.
Shri Vivek Khedkar, learned Assistant Solicitor General for respondent No.7/CBI.
This Public Interest Litigation has been filed by the petitioner, who is a practicing lawyer, claiming handing over of investigation to Central Bureau of Investigation (CBI) in regard to Crime No.109/2019 registered at Police Station Civil Lines, Morena for its independent and effective investigation.
2. Brief facts leading to present petition are that on 24.02.2019 a report was lodged by one S.S. Sikarwar working as Senior Toll Plaza Manager at Chhoda Toll Plaza, to the effect that at 10.33 pm on 23.02.2019 he had received a call on his mobile phone from one Rahul Kansana S/o respondent No.5- Endal Singh Kansana, a former Minster and a sitting MLA and such call was attended by his Deputy Toll Manager, Hotam Singh, as complainant S.S. Sikarwar had left his mobile and had gone to attend call of nature 2 W.P. No.4473/2019(PIL) when Rahul Kansana abused Deputy Toll Manager Hotam Singh and threatened that he will see to it that toll plaza becomes in- operational. At about 00.50 am 15-20 persons armed with weapons came to toll plaza and shouted on the employees of toll plaza threatening them to kill. One of the voice out of these miscreants was that of Rahul. Thereafter 15-20 gun shots were fired causing damage to window panes and office furniture when staff working at toll plaza saved themselves by hiding here and there. Guards performing duty at toll plaza had also fired gun shots in their self defence. It is also alleged that a SUV, which was standing at the toll plaza, was also damaged. It is further mentioned that though miscreants had come in 4-5 vehicles but registration numbers of two Scorpio vehicles have been mentioned in the FIR registering Crime No.109/2019 with further request that such incident has been recorded in the CCTV cameras available at toll plaza and this incident was given effect to by Rahul Kansana so to permit free passage of his vehicles without payment of toll tax.
3. It is submitted that when aforesaid report was lodged at Police Station, then there was lot of pressure on the Superintendent of Police, namely; respondent No.4- Shri Riyaz Iqbal, who was transferred to Morena only on 11 th January, 2019 vide Annexure P/4 but soon after the incident he was transferred from Morena to Bhopal vide order dated 26 th February, 2019 (Annexure P/5), which 3 W.P. No.4473/2019(PIL) is indicative of extraordinary clout wielded by respondent No.5- Endal Singh Kansana on the authorities of the State and therefore, petitioner is not hopeful of any independent investigation in the matter and therefore, has prayed for transferring the case to Central Bureau of Investigation (CBI). It is also submitted that there is a criminal history of respondent No.5, as is evident from Annexure P/8.
4. It is further submitted that the case could have been transferred to Criminal Investigation Department (CID) only after following the procedure prescribed under Regulation 16 of Madhya Pradesh Police Regulations.
5. Reliance has been placed on the judgment of Division Bench of this Court in the case of Sanjay Singh and others Vs. State of M.P. and others decided on 07.11.2005 in W.P. No.2784/2005. Reliance has also been placed on the judgment of learned Single Judge of this Court in case of Ram Sharan Baghel Vs. State of M.P. decided on 18th April, 2018 in W.P. No.4651/2014, whereby investigation has been transferred to the Central Bureau of Investigation (CBI). Reliance has also been placed on the judgment dated 12th November, 2013 passed by the Division Bench of this Court in W.P. No.7645/2013 (PIL) [Umesh Kumar Bohare Vs. State of M.P.] and other connected matters.
6. Learned counsel for the State in its turn submits that though 4 W.P. No.4473/2019(PIL) petitioner has taken several pleas in regard to illegal mining in Gwalior and Chambal Division but has only sought one relief, namely; transfer of investigation in Crime No.109/2019 registered at Morena. It is submitted that petitioner has not made any prayer for investigation in regard to Crime No.111/2019 registered against the employees of toll plaza under Sections 307, 34 of IPC. It is submitted that seeking relief for investigation only in case registered at Crime No.109/2019 for offences punishable under Sections 147, 148, 149, 506, 307, 427 and 120B of IPC and not in a cross case clearly reveals that petitioner has not approached the Court with clean hands and has some ulterior motives. It is also submitted that after initial investigation by respondent No.6 matter has been transferred to Criminal Investigation Department (CID) for further investigation and Criminal Investigation Department (CID) is further investigating the matter. As far as transfer of respondent No.4- Shri Riyaz Iqbal is concerned, it is an incident of service and petitioner in Public Interest Litigation cannot question such transfer or attach any motive.
7. Assistant Solicitor General for Union of India has also filed a reply on behalf of respondent No.7 and has submitted that Central Bureau of Investigation (CBI) is a specialized investigation agency of the Government of India, dealing with the cases of corruption by public servants of Central Government Departments, Public Sector 5 W.P. No.4473/2019(PIL) undertakings etc. having inter-State or international ramifications. It is already burdened with the investigation of a number of cases and contents of the allegation putforth in the Writ Petition since have no inter-State or international ramification, in view of the fact that its hands are already full, no directions should be issued to the Central Bureau of Investigation (CBI) to take up such inconsequential investigation. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of State of West Bengal and others Vs. Committee For Protection of Democratic Rights, West Bengal and others as reported in (2010) 3 SCC 571, in regard to the limits of the powers of the High Court for issuance of direction in regard to investigation by Central Bureau of Investigation, (CBI), wherein it has been held as under :
"......This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramification or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations......"
In view of such facts, it is prayed that this Writ Petition is nothing 6 W.P. No.4473/2019(PIL) but an attempt towards self glorification by the petitioner and has been filed in gross misuse of the liberty and therefore, this petition be dismissed.
8. After hearing arguments of learned counsel for the parties and going through the record, certain facts are apparent:
(i) In the FIR registering Crime No.109/2019, there is no allegation of illegal mining or passage of those vehicles carrying load of illegal mining.
(ii) It is also not in dispute that there are counter cases registered by rival parties.
(iii) Petitioner has not been able to bring sufficient material on record to show that either these local Police or the authorities of Criminal Investigation Department (CID) are incompetent to investigate complaints made by rival parties except for singular incident of transfer of respondent No.4.
9. As far as reliance on the judgment of Division Bench in the case of Sanjay Singh and others (supra) is concerned, facts of that case are different and question which was raised in that case was in regard to intervention of politicians or people having influence on investigation in criminal case being hampered by conduct of parallel investigation or fresh investigation by the Police in violation of the provisions of Code of Criminal Procedure and Police Regulations. In that case facts were that one member of 7 W.P. No.4473/2019(PIL) Parliament had written a letter to the Chief Minister and on said letter, Chief Minister had directed that investigation be conducted by Criminal Investigation Department (CID). Allegation was levelled by the Counsel for the petitioner that parallel inquiry or re- investigation by Criminal Investigation Department (CID) is demoralizing the police force and the alleged accused have been released without any trial. Violation of Regulation 16 was also alleged and on considering the facts of the case, Division Bench had quashed the direction to hand over the investigation to Criminal Investigation Department (CID). In that case S.D.O. had already completed investigation when it was sought to be transferred to Criminal Investigation Department (CID).
10. In case of Umesh Kumar Bohare (supra) matter was in regard to stampede, which occurred near Ratangarh village in District Datia where is situated 'Ratangarh Mata' Mandir. In that case, deprecating the appointment of Commission of inquiry distinction has been drawn between investigation by an investigating agency to find out truth and the scope of judicial inquiry holding that later cannot take place or substitute the role of investigating agency. Taking note of the fact that in such stampede about 100 persons died involving devotees visiting said temple from not only Madhya Pradesh but also from neighbouring States as well, and treating it to be an exceptional situation, investigation 8 W.P. No.4473/2019(PIL) by Central Bureau of Investigation (CBI) was ordered opining that it will help the judicial commission to answer the reference made to it by the State Government.
11. In case of Ram Sharan Baghel (supra) learned Single Judge in a matter of custodial violence, torture and illegal confinement where petitioner had complained of kidnapping or abduction of his minor daughter on 26.07.2004 in a petition seeking writ of habeas corpus, issued direction to Central Bureau of Investigation (CBI) for the failure of the authorities of State to recover corpus of minor daughter of the petitioner.
12. However, facts in the present case are different, as has been pointed out by learned Assistant Solicitor General of Union of India and its instrumentalities that Central Bureau of Investigation (CBI) is a specialized body and it cannot be entrusted upon to conduct innocuous or trivial matters, without there being sufficient material to doubt competence of Criminal Investigation Department (CID) to carry out impartial investigation.
13. As far as transfer of respondent No.4 is concerned, it cannot be assailed in a Public Interest Litigation. Petitioner was duty bound to satisfy that the transfer of respondent No.4 is prejudicial to Public Interest and should have established that transfer was avoidable and the successor was not suitable. In absence of any allegation of unsuitability of the successor in office, the transfer of 9 W.P. No.4473/2019(PIL) State cadre Officer on deputation with CBI as Joint Director In- charge of a Special Investigation Group of BSF in equivalent post to IGP on account of promotion of the incumbent to the later post has been held to be in prejudicial to public interest; For authority please refer judgment of Hon'ble Supreme Court in the case of N.K. Singh vs. Union of India and others as reported in (1994) 6 SCC 98.
14. As far as requirement of Regulation 16 of Madhya Pradesh Police Regulations are concerned, language used in Regulation 16 is as under:
"16. Serious Crime- The co-ordination of the work of the Criminal Investigation Department with that of the district police is entirely in the hand of the Deputy Inspector General in charge of that department.
Superintendents will immediately report to him any case of special difficulty, which baffles the local police cases of professional, or organized crime and case of counterfeit coining or note forgery. He will also be sent copies of the special and supplementary reports in all cases of dacoit, administering stupefying drugs by suspected professionals and any other case of special interest. It will be for him to decide whether an officer of the Criminal Investigation Department should be deputed to assist the local police or whether the case should be taken out of the hands of the local police or whether the case should be taken out of the hands of the local police altogether by the Criminal 10 W.P. No.4473/2019(PIL) Investigation Department. He will submit once a month for the information of the Inspector General a summary of the work done by the criminal investigation Department."
15. Thus, it is apparent that in the case of professional or organized crime or cases of special difficulty, investigation can be transferred to the Criminal Investigation Department (CID) and therefore, allegation made by the petitioner that requirements of Regulation 16 are not fulfilled is devoid of merit, thus, deserves to be rejected and is rejected.
16. As far as reliance on the judgment of different Benches of this High Court in case of Sanjay Singh (supra), Umesh Kumar Bohare (supra) or Ram Sharan Baghel (supra) is concerned, they turn on their own facts and are distinguishable. In fact, in the light of the law laid down in the case of State of West Bengal and others (supra) and also looking to the fact that petitioner has adopted a partial approach in seeking investigation by Central Bureau of Investigation (CBI) only in regard to Crime No.109/2019 instituted against the complainant party, who had authored FIR registering Crime No.111/2019, this Court is of the opinion that facts of the present case do not present a situation exceptional in nature necessitating transfer of case to Central Bureau of Investigation (CBI), which is already flooded with cases of national and international ramification.
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W.P. No.4473/2019(PIL)
17. Petitioner has failed to make out any case of violation of constitutional or fundamental rights. Therefore, we are not inclined to grant writ as sought by the petitioner. Petition fails and is dismissed.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
shanu
SHANU
RAIKWAR
2019.08.22
17:50:35 -07'00'