Allahabad High Court
Km. Rachana Goswami vs State Of U.P. & Others on 23 August, 2013
Author: Ravindra Singh
Bench: Ravindra Singh, Arvind Kumar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Case :- CRIMINAL MISC. WRIT PETITION No. - 7173 of 2010 Petitioner :- Km. Rachana Goswami Respondent :- State Of U.P. & Others Counsel for Petitioner :- S.M.G. Asghar,V.M. Zaidi Counsel for Respondent :- Govt. Advocate,Anurag Khanna,N.I.Jafri,V.P.Srivastava,Vipin Kumar Hon'ble Ravindra Singh,J.
Hon'ble Arvind Kumar Tripathi,J.
(Delivered by Hon.Arvind K.Tripathi,J) Heard learned counsel for the parties and perused the record.
The present writ petition has been filed with the prayer to issue writ of mandamus commanding the respondents no.1 & 2 to transfer the investigation of the Case Crime No.264/10 under section 364 I.P.C. PS. Cant District Bareilly from local police to some other independent agency to get fair investigation of the same according to law.
The case of the petitioner is that she is resident of 339, PS Sadar Bazar, Police Line, PS. Cant, District Bareilly. There is temple of petitioner's family known as Dhopeshwar Mahadev Birajman Mandir Bhopa, Sadar Bazar Bareilly. The grand father of the petitioner Late Mahant Gokaran Giri, aged about 95 years was the Mahant and Manager of the said temple. In respect of the properties belonging to the temple there was a old grant in favour of Hindu Community and the ancestor of the petitioner's family were looking after the management and Puja. The said temple is situated in Cant area District Bareilly. The temple consists of building of the temple, Thakurdwara, New Durga Mandir, Vaishno Ji Mandir, Hanumanji Ka Mandir, Sai Dev Mandir, Ardhnarishwar and Gufa, Dhopeshwar Nath Park, Dhopeshwar Nath Tank. Apart from the said building/property of the temple Dhopeshwar Nath Mahadev Temple, there are six residential houses situated in Mohalla Sadar Bazar, Cant Bareilly within the premises of the said temple. There are ten shops. Out of ten shops, five shops are in possession of the respondent no.5 who has put his locks and closed the same. There is open land adjacent to the premises of the said temple measuring about 15 bighas. The entire constructed and open land which are in possession of the family of the petitioner and belongs to the said temple are measuring about 30 bighas. Hence there are huge movable and immovable property which were being managed by and under control of late Mahant Gokaran Giri for the last several years. The respondent no.5 Virendra Singh Gangwar, M.L.A of the then ruling party in the State, wanted to grab the management and properties of the said temple with the help of his supporters and the district administration was also supporting him. In connivance with the District Administration and certain officials of the cantonment board he tried to create a trust and constituted a committee of management, for management of the properties of the Mandir consisting off his own persons. He also tried to interfere in the management and affairs of the temple. He had also given threat to the life and properties of late grand father of the petitioner namely Mahant Gakaran Giri regarding which complaint was lodged to the concerned authorities but due to influence of respondents no.5 no action was taken to protect the life and property of late Mahant Gokaran Giri and property of the temple. As there was threat to grand father of the petitioner and other family members to their lives, hence the representation was sent to the National Human Right Commission, New Delhi and other concerned authorities. When there was no response from the above mentioned authorities, then the Writ Petition No.34761/2009 was filed to issue direction to the district administration and S.S.P. Bareilly, to consider the claim of the petitioner for providing protection to his life and liberty. The division bench of this Court disposed off the writ petition on 21.7.2009, directing the District Magistrate, Bareilly to consider the claim of the petitioner, late Mahant Gokaran Giri filed a copy of the order before the District Magistrate, Bareilly, however, he did not decide the representation and no step was taken for protection and he was not communicated regarding any decision and order passed by the District Magistrate, hence the contempt petition was filed. Thereafter again the Writ Petition No.67407 was filed for providing security for protection of the life of late Mahant Gokaran Giri and other family members. In that writ petition the respondent.5 was also arrayed as respondent no.6 and that writ petition was decided by order dated 11.12.2009 with direction to consider and decide the representation of the petitioner. Again an application was filed to provide protection or to pass any order on the representation. The petitioner was not communicated by any order. Subsequently when the counter affidavit was filed in the present writ petition it was communicated that the representation was decided by the District Magistrate. Inspite of pressure and threat from the side of the respondent no.5 and his supporters late Mahant Gokaran Giri did not surrender before him. Thereafter on 13.2.2010 respondent no.5 along with his associates illegally entered into the premises of temple and abducted late Mahant Gokaran Giri, the grand father of the petitioner, regarding which the First Information Report was lodged on the same day and registered as Case Crime No.264/10 under section 364 I.P.C. at Police Station Cantt, Bareilly, subsequently the dead body was recovered from the pond. The investigating officer who was under the influence of the respondent no.5, failed to make fair investigation and due to political pressure forwarded final report dated 4.4.2010 stating therein that the deceased Mahant Gokaran Giri committed suicide by observing Jal Samadhi but the Circle Officer/Additional S.P. before whom the final report was forwarded, found some contradiction in the investigation and as such directed for further investigation. However, again final report dated 17.7.2010 was submitted under to influence of respondent no.5, disclosing the opinion, that it was an accidental death and not a murder.
It was further submitted that ordinarily reinvestigation is not permissible only the direction can be issued for further investigation.
However, in exceptional circumstances since there is gross abuse of power and failure of justice, hence the Hon'ble Court may direct for reinvestigation also. In view of the decision of the Apex Court in the case of Babu Bhai vs. State of Gujrat and others, 2011(1) SCC (Crl.) 336 he further contended that in the present case since the investigation was under influence and political pressure of the respondent no.5, the then ruling party M.L.A. and as such in the interest of justice the direction be issued for fresh investigation by independent agency i.e. C.B.I. Learned Standing Counsel and counsel for the respondent no.5 opposed the aforesaid prayer of the petitioner for transfer of the investigation.
Learned A.G.A. submitted that earlier after investigation, the Investigating Officer came to the conclusion that late Mahant Gokaran Giri committed suicide due to some family dispute and problems and no offence under section 364 and 302 I.P.C. was made out, hence final report dated 4.4.2010 was submitted. Since it was found by the Circle Officer, City III that there was contradiction in the investigation, he directed for further investigation. After further investigation it was found that there was no evidence of commission of offence and crime under section 364, 302 I.P.C. The investigating officer recorded the statement of the witnesses including doctor who conducted post mortem examination on the body of the deceased Baba Gokaran Giri and no external injuries were found on the body of the deceased. The statement of the independent witnesses and diverse were also recorded. Videography and status of body was mentioned in the post mortem examination report. The deceased Baba Gokaran Giri was aged about 95 years who had gone to pond on 13.1.2010 and he himself fell therein due to sudden slip and as such the investigating officer submitted the expunge report dated 17.5.2010 as no offence was made out. The investigation was not under the influence of any person or party and as such the present petition is liable to be dismissed.
Counsel appearing on behalf of the respondent no.5 submitted that the First Information Report was lodged and registered on 13.2.2010 under section 364 I.P.C. against 11 persons. However, in the present writ petition only one person respondent no.5 has been arrayed as party, hence there is non joinder of the party. The allegation that the respondent no.5 and other co-accused wanted to grab the property of the temple though from the perusal of the First Information Report and copy of the trust deed it would be clear that any of the accused mentioned in the First Information Report have no concerned in respect to the trust deed and management of the temple. Subsequently trust was created by cantonment board. However, the respondent no.5 was not shown as trustee. There was direction for further investigation. However, it was again found that no offence was made out. There was no anti mortem injury and cause of death was found asphyxia due to anti mortem drowning. The temple is property of cantonment board. No one has right over the property of the temple just to maintain peace and harmony the Chief Executive officer of the cantonment board created a trust for management of the temple. The trust deed was executed in the name of Dhopeshwar Nath temple on 6.6.2005. He further contended that the final report was submitted and as the petitioner/complainant has a right to file the protest petition. However, inspite of knowledge of notice petitioner did not appear before the court of C.J.M. and instead of filing the protest petition the present petition has been filed. If she has any complaint against the investigation, the protest petition might have been filed. The representations filed by the family members and the pairokar of late Mahant Gokaran Giri were decided by the district magistrate. The allegations are incorrect and misconceived that the respondent no.5 wanted to grab the property. He never gave threat to the deceased Mahant Gokaran Giri or his family members. The investigation was free and fair. No evidence was available regarding involvement of the respondent no.5 or other co-accused. Rightly the final report was submitted and as such the present petition is liable to be dismissed.
Considered the submissions of learned counsel for the parties.
In view of the complaint made on behalf of late Mahant Gokaran Giri by his pairokar and by his family members and the writ petition filed on his behalf before this Court it is clear that as per allegation there was threat to his life and life of his family members and there was threat to grab the property of the temple. Had the grievance of late Mahant Gokaran Giri been considered by the district administration, this unfortunate incident dated 13.2.2010 might have not taken place. The investigation is not required to be transferred merely because there is request either on behalf of the accused or on behalf of the complainant but if it is found that there was unfair investigation and investigation might have been done under influence and the same was biased and tented then in the interest of justice to prevent miscarriage of the justice, direction can be issued not only for further investigation but in view of the fact and circumstances even the direction can be issued for reinvestigation/fresh investigation In the present case there was complaint on behalf of late Mahant Gakaran Giri regarding threat to life and properties and subsequently the incident took place on 13.2.2013 causing his death. The circumstances shows that there was no chance of free and fair investigation. First time when the case was investigated, the opinion of the Investigating Officer was that it was a case of suicide due to family dispute and problems. Subsequently the supervisory officer/circle officer found that there was contradiction in the investigation and directed for further investigation. After further investigation the opinion of the investigating officer was that it was case of accidental death as late Baba Mahant Gakaran Giri had gone to the pond on 13.2.2010 and he himself fell down due to sudden slip. Whether it is a case of abduction and murder as mentioned in the First Information Report, as submitted on behalf of the petitioner or it is a case of suicide or accidental death due to sudden slip, is required to be investigated by independent agency. According to the allegation late Mahant Gokaran Giri was forcibly taken away by respondent no.5 and his supporter and there was apprehension that he might be killed, hence the report was lodged under section 364 I.P.C. Subsequently after recovery of the dead body, section 302 I.P.C. was added. Admittedly late Mahant Gokaran Giri was aged about 95 years, hence he was not expected to go alone near pond without taking any help or without accompanied with any disciple or supporter. The question is not whether respondent no.5 and those persons who are named in the First Information are involved in the incident but firstly the question is whether it was a murder or suicide or accidental death and if it was a preplanned abduction and murder then who are the persons, who are involved in the incident dated 13.2.2013. The matter requires investigation by independent agency to find out truth and to place the same before the court concerned.
Hence in view of the fact of this case, irrespective of the fact that final report has been submitted and the same has been accepted or not, the C.B.I. is directed to investigate the matter with regard to Case Crime No.264/2010 under section 302 I.P.C. PS.Cantt, Bareilly and to submit the report within a reasonable time before the court concern in accordance with law. If final report submitted by the civil police has already been accepted the same stands quashed.
On the request of Investigating Officer, C.B.I. the requisite papers of case diary shall be handed over.
Accordingly this writ petition is hereby allowed. However, no order as to cost.
Let a copy of this order be supplied to Mr.Aurag Khanna/Mr. N.I.Zafri, learned counsel for C.B.I. for follow up action, to communicate the authorities concerned for compliance of the order.
Date: 23.8.2013 RK RESERVED Case :- CRIMINAL MISC. WRIT PETITION No. - 7173 of 2010 Petitioner :- Km. Rachana Goswami Respondent :- State Of U.P. & Others Counsel for Petitioner :- S.M.G. Asghar,V.M. Zaidi Counsel for Respondent :- Govt. Advocate,Anurag Khanna,N.I.Jafri,V.P.Srivastava,Vipin Kumar Hon'ble Ravindra Singh,J.
Hon'ble Arvind Kumar Tripathi,J.
The present application has been filed on behalf of the respondent no.5 to initiate criminal proceeding under section 340 Cr.P.C. against Kunwar Pal Puri who filed an affidavit in support of the petition and petitioner namely Km.Rachna Goswami for filing forged and fabricated paper, S.R.-2 with Supplementary Rejoinder Affidavit dated 15.2.2011.
Learned counsel for the applicant contended that the petitioner and his pairokar have not approached the court with clean hand and filed forged and fabricated annexure along with supplementary rejoinder affidavit. Whether the said annexure is forged one or genuine, copy of which was available to the pairokar of the petitioner and the same was filed, this matter requires to be enquired after giving opportunity to the concerned parties.
So for as trust deed accepted on 6.6.2005 is concerned this is subsequent trust deed and admittedly temple is very old one and late Mahant Gokaran Giri was pujari and looking after the management of the temple. Whether the land was given to the Hindu community and whether the subsequent trust executed in June 2005 are valid or not, this is a separate matter. It has to be decided by the competent authority/court after hearing the parties, hence at this stage no direction or order is required to be passed on the present application.
Hence in view of the fact of this case the present application is hereby rejected.
Date : 23.8.2013 RK