Ramesh Sinha, J. - The present petition has been preferred by the petitioner with a prayer to quash the impugned order dated 5.5.2016 passed by respondent no.1, Principal Secretary (Home), U.P. Lucknow, whereby the investigation of Case Crime No.769 of 2015, under Sections 147, 148, 149, 302, 307, 504 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station-Kotwali Jalaun, District Jalaun has been transferred to CBCID and further to ensure the arrest of accused respondent nos. 4 to 7 in the present case.
2. The brief facts of the case are that petitioner, who is informant of the case, has lodged an FIR on 6.8.2015 for the murder of his son, namely, Surya Pratap @ Vidyur Ji, which was registered as Case Crime No.769 of 2015, under Sections 147, 148, 149, 302, 307, 504 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station-Kotwali Jalaun, District Jalaun for an incident taken place on 6.8.2015 at about 9.00 a.m. against five accused persons, namely, Sanjeev, Balveer Singh, Ravindra Singh @ Ramu, Lalla Raja & Sita Ram Upadhyay, who had shot dead his son by firearm weapons.
3. The investigation of the case was carried out by the civil police which submitted charge sheet against the accused persons on 12.11.2015, on which the Court took cognizance of the offence referred above.
4. The accused respondent nos. 4 to 8 did not surrender before the Court concerned in the present case and they were absconding, hence, the proceedings under Sections 82 &83 Cr.P.C. were initiated against them on 27.8.2015, further NBW were issued against them by the Court below and only the accused respondent no.8, namely, Ravindra Singh @ Ramu was arrested by the police on 28.8.2015 and was sent to jail.
5. The accused persons being aggrieved by the order dated 27.8.2015 passed by the C.J.M., Jalaun at Orai by which proceeding under Section 82 & 83 Cr.P.C. were initiated, preferred a Criminal Revision No.160 of 2015 before the In-charge Sessions Judge, Jalaun at Orai on 3.9.2015 along with a stay application and an ex-parte order was passed by the lower revisional court on the same day, i.e., 3.9.2015 admitting the said Criminal Revision and staying the execution of process of attachment under Section 83(1) Cr.P.C. against the accused respondent no.4 to 6.
6. In the meantime, it appears that accused respondent no.4, namely, Sita Ram Upadhyay filed a Crl. Misc. Writ Petition No.22989 of 2015, in which he prayed for a direction to respondent no.2 to get a free and fair investigation conducted of the present case. The said writ petition was dismissed by this Court vide order dated 21.9.2015 with an observation that there was no material brought before the Court for allowing the prayer of the accused respondent no.4 for directing free and fair investigation.
7. The petitioner being aggrieved by the order 3.9.2015 passed by the In-charge Sessions Judge, Jalaun at Orai passed in criminal revision preferred by the accused respondent nos. 4 to 6 staying the proceeding under Section 83(1) Cr.P.C.,challenged the same before this Court in Crl. Misc. 482 Cr.P.C. Application No.29360 of 2015 in which this Court directed the In-charge Sessions Judge, Jalaun at Orai to decide the aforesaid revision within a week, taking into account the manner in which the criminal revision was entertained against an interlocutory order and staying the proceedings under Section 83(1) Cr.P.C. vide order dated 30.9.2015.
8. The learned Sessions Judge, Jalaun at Orai dismissed the said Criminal Revision No.160 of 2015 preferred by the accused respondent nos. 4 to 6 vide order dated 13.10.2015 and affirmed the order dated 27.8.2015 passed by the learned C.J.M., Jalaun at Orai. Thereafter the attachment proceedings were initiated against the accused respondent no.4 under the orders of the learned Magistrate on 6.11.2015.
9. The accused respondent nos. 4 to 6 did not appear before the Court below in the present case and thereafter an effort was made by the accused respondent no.4, namely, Sita Ram Upadhyay through his wife, namely, Smt. Pushpa Upadhyay, i.e., respondent no.9, who moved an application on 18.8.2015 before Hon''ble the Chief Minister, of the State and prayed to transfer the investigation of the case to CBCID on the ground that her husband, namely, Sita Ram Upadhyay is a retired employee of Rajya Hathkargha Nigam and his physical condition is not good, hence, he is not in position to commit the offence in question. On the said application given by the wife of respondent no.4, the reports were called by the State Government from the District Authorities and one Umesh Dixit, President, International Laudh Institute, Lucknow also requested to the Principal Secretary, Home, U.P. Government Lucknow to issue order for transferring the investigation to CBCID.
10. In the meantime, Investigating Officer submitted charge sheet before the competent Court at Jalaun on 12.11.2015 against accused respondents except accused respondent no.8 because accused respondent nos. 4 to 7 were absconding, hence, charge sheet was submitted against them as absconder and the learned Magistrate has taken cognizance for the offence on 25.11.2015.
11. The application of the wife of accused respondent no.4, namely, Pushpa Upadhyay who is respondent no.9 in the present case, was considered by the State Government along with all the relevant documents including the order of this Court passed in Civil Misc. Writ Petition No.22989 of 2015 as well as Crl. Misc. 482 Cr.P.C. Application No.29360 of 2015 and rejected the application of the accused respondent no.9 for transferring the investigation to the CBCID vide order dated 28.12.2015.
12. In spite of the fact that application dated 18.8.2015 of the wife of accused respondent no.4, namely, Smt. Pushpa Upadhyay, i.e., accused respondent no.9 has been rejected by the State Government vide order dated 28.12.2015 for transferring the investigation of the case to CBCID, accused respondent no.9 again moved an application before the Ex. M.L.A, namely, Shri Pranat Pal Singh for transferring the investigation to CBCID to reconsider the matter on 12.2.2016 which was forwarded by the said Ex. M.L.A. to Hon''ble the Chief Minister of the State on his letter head, a copy of which has been annexed as Annexure-12 (at page-96) of the writ petition.
13. Further on 15.2.2016, an application was also addressed to Hon''ble the Chief Minister by respondent no.9 who is wife of accused respondent no.4 for further investigation/investigation in the matter by CBCID, which was also forwarded by the said Ex. M.L.A, namely, Shri Pranat Pal Singh on 17.2.2016 to Hon''ble the Chief Minister on his letter head, on which some orders were passed by the Office of Hon''ble the Chief Minister on 16.2.2016 and Principal Secretary, Home, U.P. Government, Lucknow on 23.2.2016 forwarded the said application to Hon''ble the Chief Minister, a copy of which has been annexed as Annexure-14 (at page-104) of the writ petition.
14. From the letter of the Ex. M.L.A. Shri Pranat Pal Singh dated 17.2.2016, the matter was considered by the State Government and a report was called from the Superintendent of Police, Jalaun who vide his report dated 11.4.2016 stated that charge sheet has been submitted against the accused persons in Court below on 12.11.2016 though in the order it appears that date for mentioning submission of charge sheet has been wrongly mentioned by him as 13.11.2015 in place of 12.11.2016 and he further stated that Investigating Officer has been given direction to complete the investigation on merits.
15. After receiving of the said report, the State Government again re-examined the case and a recommendation was made by the Secretary, Home Department on 5.5.2016 to transfer the investigation to CBCID for further investigation by it.
16. Being aggrieved by the said order dated 5.5.2016 passed by the State Government, the petitioner has preferred the present writ petition for quashing of the same on the ground that the said order is absolutely illegal, arbitrary and is at the instance of the accused.
17. When the matter was taken up as fresh on 20.5.2016 before another Bench, taking into account the seriousness and alarming situation of the case where accused respondent nos.4 to 7 were absconding and charge sheet was submitted against them as absconder, this Court passed an interim order staying the impugned order dated 5.5.2016 passed by respondent no.1.
18. When the matter was again taken up on 30.5.2016 a short affidavit on behalf of Investigating Officer was filed by the learned AGA stating therein that out of four accused persons, two accused persons, namely, Balveer Singh and Lalla Raja have been arrested and sent to jail while the remaining two accused have surrendered before the Court. Thus, it is admitted to the parties that all the accused are in jail in the present case as on date.
19. Counter and rejoinder affidavits have been exchanged between the parties.
20. Heard Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Sri Suresh C. Dwivedi, learned counsel for the petitioner, Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Sikandar B. Kochar, learned counsel for accused respondent no.4 and respondent no.9, who is wife of accused respondent no.4 on whose behalf the investigation has been transferred, Sri Imran Syed, learned AGA for the State and perused the record.
21. It has been argued by learned counsel for the petitioner that charge sheet has been submitted against accused respondent nos. 4 to 7 as absconder for the offence in question on 12.11.2015 and the learned Magistrate has taken cognizance on 25.11.2015 for the offence in question and only accused respondent no.8 was arrested by the police at the time of filing of the charge sheet. The accused respondent no.4 through his wife, i.e., respondent no.9, namely, Smt. Pushpa Upadhyay had been avoiding his arrest along with accused respondent nos. 5 to 7 and an application was moved by respondent no.9 to the State Government for transferring the investigation of the case to CBCID firstly on 18.8.2015 and further he also filed a Writ Petition before this Court for fair and impartial investigation which was dismissed on 21.9.2015 and after considering the application of respondent no.9, the State Government has rejected the said application vide order dated 6.12.2015 which was also communicated to Hon''ble the Chief Minister, Government of U.P., Lucknow and further an endorsement of the same was made by the Principal Secretary (Home), Government of U.P., Lucknow, respondent no.1 on 28.12.2015, a copy of which has been annexed as Annexure-11 to the writ petition. Hence, the second application dated 15.2.2016 has again been moved by the wife of accused respondent no.4, namely, Smt. Pushpa Upadhyay, i.e., respondent no.9 making a request for further investigation in the matter and transferring the investigation of the case to CBCID under the political influence before Hon''ble the Chief Minister of the State of U.P., which has been allowed by the State Government by passing the impugned order dated 5.5.2016, which also does not disclose any reason for ordering for further investigation by transferring the same to CBCID is absolutely illegal and arbitrary. Moreover, when the case has been committed to the Court of Sessions for trial and which is pending against them, hence, the same is liable to be quashed by this Court. He has also drawn the attention of the Court towards the fact that trial Court has framed the charges against the accused respondent nos. 4 to 8 on 29.8.2016, a copy of which has been annexed as Annexure-RA1 to the rejoinder affidavit.
22. On the other hand, Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Sikandar B. Kochar, learned counsel for respondent no.4 and respondent no.9 who is wife of accused respondent no.4, namely, Smt. Pushpa Upadhyay on whose application further investigation of the case has been transferred to CBCID, argued that no doubt the earlier application of respondent no.9 dated 18.8.2015 was rejected by the State Government on 6.12.2015 and communication of which is said to have been done by the Principal Secretary (Home), U.P. Government, Lucknow on 28.12.2016 was with respect to the transfer of investigation only and the second application which has been moved by respondent no.9 on 15.2.2016 before Hon''ble the Chief Minister of State of U.P. was for a request for further investigation in the matter and the same was transferred by the State Government after re-examining the matter again. He further submits that the impugned order passed by the State Government for transferring further investigation of the case by CBCID does not suffer from any illegality as it is within the powers of the State Government and police authorities under Section 173(8) Cr.P.C. for passing order for further investigation at any stage. To which, learned counsel for the petitioner has vehemently submitted that the impugned order which has been passed by the State Government even if it is for further investigation of the case assuming for the sake of argument also as has also been submitted by learned counsel for respondent no.s 4 & 9 is also illegal and arbitrary as there was no fresh material available before the State Government to order for transfer for further investigation in the case as the trial is proceeding against the accused respondent no. 4 to 7 and charges have been framed against them by the trial Court on the basis of material collected during the course of investigation, hence to say that the matter requires further investigation by the CBCID appears to be without any basis and further it shows the political interference in the matter as has been referred above in order to linger on the trial of the case. Hence, the impugned order cannot be sustained in the eyes of law and is liable to be quashed by this Court.
23. Learned AGA has also tried to justify the impugned order but he could not dispute the above mentioned facts which have been referred above.
24. Considered the submissions advanced by learned counsel for the parties and perused the impugned order as well as material available on record.
25. It is admitted to the parties that accused respondent nos.4 to 8 are in jail in the present case. Moreover, the application for transfer of further investigation of the case by CBCID was moved by the wife of accused respondent no.4, namely, Smt. Pushpa Upadhyay who is respondent no.9 and notice has been served to accused respondent nos. 4 and 9 and they are represented by their counsel. Therefore, we do not find any reason to issue notice to the accused respondent nos.5 to 8, proceed to hear the matter and decide the same on merits as they were made only formal parties by the petitioner.
26. It transpires from the record that the petitioner being the informant of the case had lodged an FIR for the murder of his son, namely, Surya Pratap @ Vidyur Ji, which was registered as Case Crime No.769 of 2015, under Sections 147, 148, 149, 302, 307, 504 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station-Kotwali Jalaun, District Jalaun against accused respondent nos.4 to 8 and the police during the course of investigation collected evidence against them and submitted charge sheet against them on 12.11.2015 as absconder except accused respondent no.8, namely, Ravindra Singh @ Ramu who was arrested during the course of investigation and charge sheet was submitted against him and the learned Magistrate has taken cognizance on 25.11.2016 against all of them and further committed the case to the Court of Sessions which is pending trial.
27. From perusal of the interim order passed by another Bench of this Court on 20.5.2016, it is apparent that the accused respondent nos. 4 to 6 did not appear before the Court below in the present case though they were named in the FIR and specific role of firing at the deceased has been assigned to them who died on account of firearm injuries caused by firearm. The accused respondent no.4, namely, Sita Ram Upadhyay through this wife respondent no.9 had moved the first application for transfer of the investigation of the case to CBCID on 18.8.2015 and further he also preferred the writ petition before this Court for fair and impartial investigation which was dismissed on 21.9.2015 and further when the proceeding under Sections 82 & 83 Cr.P.C. and NBW was issued against respondent no.4 to 6 by the learned Magistrate on 27.8.2015, they preferred a Criminal Revision before the learned Sessions Judge in which they were granted interim relief and proceeding under Section 83 (1) Cr.P.C. was stayed and the revision against the said order was not maintainable and dismissed the same vide order dated 13.10.2015. The petitioner being aggrieved against the order dated 13.10.2015 preferred a Crl. Misc. 482 Cr.P.C. application in which direction was given by this Court seeing the seriousness of the matter directing the Sessions Judge to dispose of the revision within a week in pursuance of the same revision and order of the learned Magistrate was affirmed.
28. The accused respondent no.8 was arrested after dismissal of the revision on 27.8.2015. The proceedings under Section 82 & 83 Cr.P.C. were initiated against the respondent nos.4 to 7 on 27.8.2015 and considering all the aspect of the matter the State Government rejected the application of respondent no.9, wife of accused respondent no.4 for transferring the investigation to CBCID vide order dated 6.12.2015/28.12.2015 and it was only when this Court passed an order dated 20.5.2016 in the present case the accused respondent nos. 5 and 6 were arrested and accused respondent nos. 4 & 7 surrendered before the Court below.
29. In spite of the earlier application of respondent no.9, wife of respondent no.4, for transfer of investigation of the present case was rejected by the State Government, she again moved an application on 15.2.2016 with a prayer before Hon''ble the Chief Minister of the State that further investigation be ordered and further investigation of the case to be conducted and the same may be transferred to CBCID and due to political interference of one Ex. M.L.A. further investigation of the case was transferred to CBCID by the State Government further without disclosing any reason for the same by passing the impugned order dated 5.5.2016.
30. It is surprisingly to note that accused respondent no.4, namely, Sita Ram Uapdhyay had preferred a writ petition before this Court for fair investigation in the matter and this Court had also observed that there was no material brought before it that investigation was not carried out in an unbiased manner and State Government after considering all the order also rejected the earlier application of the petitioner, hence, to allow the second application of the respondent no.9 for investigation/further investigation as has been stated due to political influence and further by a non-speaking order by respondent no.1 is wholly illegal, arbitrary and liable to set aside.
31. Moreover, there appears to be no further material available on record which may show that if any further investigation was required under Section 173(8) Cr.P.C. in the matter and recommendation of S.P., Jalaun for the same also appears to be politically motivated, on which the impugned order was passed by the State Government.
32. In view of the foregoing discussions, the impugned order dated 5.5.2016 passed by respondent no.1 for transferring the investigation/further investigation is not sustainable in the eyes of law, hence, the same is hereby quashed.
33. So far as the second prayer of the petitioner for giving direction to arrest the accused respondent nos. 4 to 7 in the aforesaid case has become infructuous as it is admitted to the learned counsel for the parties that they have been arrested and are in jail as on date.
34. The petition stands partly allowed.
35. No order as to costs.
