Judgment The abovementioned writ petitions have been filed by petitioner Ashish Mishra son of Sri Arun Kumar Mishra, who is accused in Case Crime No.72 of 2014, under Section 302 IPC, Police Station Gomati Nagar, District Lucknow relating to murder of Vijay Pandey alias Ashish Mishra and Rohit.
In Writ Petition No.1333 (M/B) of 2014, the relief sought is for quashing of the first information report by issuing a writ of certiorari and further for issuing mandamus against the opposite parties not to arrest the petitioner.
In Writ Petition No.7146 (M/B) of 2014, the relief sought is for issue a writ of certiorari quashing the order whereby the application moved by the mother of the petitioner to transfer the investigation to CBCID or any other independent agency, has been rejected by the Principal Secretary (Home) and further to issue a mandamus to the opposite parties to transfer the investigation of the abovementioned case to CBCID or other independent investigating agency to ensure fair and judicious investigation. In this writ petition, the mandamus sought by the petitioner for directing the opposite parties not to arrest him, the similar relief has already been sought by the petitioner in Writ Petition No.1333 (M/B) of 2014.
We have heard Dr. L.P. Mishra, Senior Advocate assisted by Sri R.P. Shukla, learned counsel for the petitioner and Sri Z. Jilani, learned Additional Advocate General for the State of U.P.
It has been submitted by Dr. Mishra, learned counsel for the petitioner that according to the first information report lodged by Anuj Yadav, the owner of the house, his tenants namely Vijay Pandey and Rohit were murdered but he was not disclosing the name of any person as accused. The incident was occurred in the night of 28/29.01.2014 at about 01:30 a.m. It has also been submitted by Dr. Mishra that Sushil Kumar Mishra, the father of the deceased Vijay Pandey alias Ashish Mishra came on the next day on the basis of information conveyed by the police of P.S. Gomati Nagar, District Lucknow. Thereafter, he handed over an application on 30.01.2014 suspecting the murder of his son by police personnel, namely, Ram Swaroop Verma, Inspector, Anupam Singh Sub-Inspector and Constable Bindu Lal Bind, who were posted at P.S. Jhunsi, District Allahabad at the relevant time. They were instrumental in making his son criminal and they were intending to eliminate him. In his application, he also mentioned that out of fear of these police personnel, his son was residing at Lucknow after concealing his identity. This application dated 30.01.2014 was entered in the general diary of P.S. Gomati Nagar, District Lucknow. The father of the deceased again moved an application on 03.02.2014 stating therein that in the night of 28/29.01.2014 his son Ashish Kumar Mishra and Rohit were murdered in House No.175-A, Vishal Khand, Gomati Nagar. His son was residing in that house, out of fear of his opponents after changing the name and address as Vijay resident of Gorakhpur. It has also been mentioned in the application that there was a dispute regarding transaction of money with Ashish Mishra alias Monguli son of Sri Arun Mishra, Ankit Dubey, Sumit Shukla @ Achyutanand Shukla and Anuj Singh. All the aforesaid four persons used to come along with his son in his house as they were the friends of his son but after dispute of transaction of money, they become inimical with his son and were searching to kill him. Out of fear of these persons, his son Ashish changed his name and address and started residing at Lucknow. For this reason, all the four persons have committed the murder of his son Ashish Mishra and Rohit. On 04.02.2014, the police apprehended Ankit Dubey. The complicity of these four persons was disclosed which was referred in the case diary prepared by I.O. in the parcha no.4 dated 03.02.2014. After arrest, Ankit Dubey made a confessional statement involving three persons, namely, Ashish Mishra @ Monguli, Sumit Shukla and Amit Singh in the commission of the crime. Thereafter additional statement of Sunil Kumar Mishra, the father of the deceased was recorded in the case diary. It was also disclosed that on 01.02.2014, the accused persons made an extra judicial confession about their guilt before one Ram Pyare. After arrest of Ankit Dubey certain recoveries were also made.
It has also been contended by Dr. L.P. Mishra that Sushil Kumar Mishra, the father of deceased categorically involved three police personnel in the commission of crime but he was put under pressure by the police and another application was taken from him when this Court passed an order in Writ Petition No.1333 (M/B) of 2014 on 18.02.2014 directing the Inspector General of Police, Lucknow Zone to file his own affidavit in this case. It was contended that the Investigating Officer is not fairly dealing with the case and wants to save the police personnel, who were involved by the father of the deceased in this case. It has also been contended that when Inspector Ram Swaroop Verma posted at Police Station Jhunsi, District Allahabad apprehended the deceased Ashish Mishra with intention to kill him, consequently, Sushil Kumar Mishra, father of the deceased filed habeas corpus petition against the police personnel. It has further been submitted that the application dated 03.02.2014 alleged to have been given by Sushil Kumar Mishra is ante dated for the reason that the same is not entered in the general diary dated 03.02.2014. The statement of Sushil Kumar Mishra was recorded on 25.02.2014 before filing the affidavit by Inspector General of Police, Lucknow Zone in the court, in pursuance of the order dated 18.02.2014, in which, Sushil Kumar Mishra stated that police personnel are good persons and on account of misconception he involved them. It has also been contended that the mother of the petitioner moved a representation on 08.02.2014 for transferring the investigation. On the said application, the Circle Officer, Gomati Nagar and S.S.P., Lucknow have submitted their reports on 18.02.2014 to Principal Secretary (Home) but there is no whisper about the application dated 30.01.2014 and the application dated 03.02.2014. It shows that the alleged ante dated application was not in existence till 08.02.2014. So far as motive part is concerned, the same appears from the statement of Ankit Dubey as well as from the statement of Sushil Kumar Mishra. It has been alleged that father of the petitioner, who was an advocate at Allahabad High Court, was engaged by deceased Ashish Mishra as a counsel for conducting the bail application of one Gulam Rasul and charged one lac as fee but when the case was not taken up, the deceased asked to return the fee consequently the petitioner who is the son of Sri Arun Kumar Mishra advocate conducting the bail application of Gulam Rashul, become annoyed but the father of Gulam Rasul namely Maqsud Ahmad moved an application to SSP, Lucknow with an affidavit dated 25.04.2014 stating therein that he himself engaged Sri Arun Kumar Mishra as an advocate and no one has concerned in the engagement of Sri Arun Kumar Mishra for moving the bail application and he has no dispute regarding fee. The statement of Maqsud Ahmad has not been recorded by the Investigating Officer. It has further been submitted that the Investigating Officer is not fair in conducting the investigation and virtually fabricating the evidence against the petitioner only to save the police personnel. The petitioner is suffering from serious ailment and was taking his treatment in Tej Bahadur Sapru Hospital, Allahabad and as per doctor of the hospital he was on bed rest from 28.01.2014 to 30.01.2014. It has also been submitted that the affidavit filed in Writ Petition No.1333 (M/B) of 2014 by the Inspector General is against the record as in the affidavit there is no whisper about the application dated 30.01.2014 given by the father of the deceased implicating the police personnel. The statement of Ram Swaroop Verma, who was posted at P.S. Jhunsi, District Allahabad, was recorded on 22.02.2014 and was exonerated on 23.03.2014 after the order passed in Writ Petition No.1333 (M/B) of 2014. In order to save the police personnel, no investigation has been carried out regarding other police personnel and private persons who allegedly committed the murder as per complaint dated 30.01.2014 made by the father of the deceased.
It has also been contended that the aforesaid exercise carried out in between 18.02.2014 to 25.02.2014 was with intention to save the police personnel as the affidavit has to be filed by Inspector General of Police before 27.02.2014. It is not clear in the affidavit of Inspector General of Police as to how the police came to know that deceased Vijay Pandey is Ashish Mishra and how they came to know the name, address and mobile number of his father particularly when the FIR was lodged on 29.01.2014 at 3:45 a.m. The aforesaid facts show that there was involvement of above said police personnel who gave every information relating to the case to the police of Police Station Gomati Nagar. There was pressure of print and electronic media on the police to workout the case properly, therefore, the police started hatching conspiracy and Ankit Dubey advocate who was doing pairvi of the case of the deceased at Allahabad was arrested.
It was also alleged that police made a phone call on the mobile of Ankit Dubey on 02.02.2014 calling him to Lucknow for certain information about the deceased. In pursuance thereof, Ankit Dubey came at Lucknow. He made a phone call to the police personnel who contacted to him. Thereafter, Ankit Dubey was taken in custody on 03.02.2014 but his arrest was shown on 04.02.2014 and was produced before the Magistrate on 05.02.2014. The name of Ankit Dubey was disclosed by Sri Ram Swaroop Verma to the police of Lucknow. The statement of Ankit Dubey was fabricated and designed in such a way so the police personnel may be saved.
Learned counsel for the petitioner relying upon the judgment of Apex Court in the case of Babubhai Vs. State of Gujarat and others; (2011) 1 SCC (Cri.) 336 has contended that the investigating agency in the present case is biased and acting malafide against the petitioners and is not conducting investigation in fair and impartial manner. It has further been submitted that fair investigation is a right of an accused protected under Articles 20 and 21 of the Constitution of India because tainted and biased investigation result into prejudice and harm to the parties which cannot be permitted to continue in appropriate cases, like the present. The investigation ought to have been transferred from local police to some other independent agency because the involvement of police personnel is obvious. He relied upon another judgment of the Apex Court in the case of Karan Singh Vs. State of Haryana and another; (2013) 3 JIC 177 SC in which almost similar view has been taken by the Apex Court. Learned counsel further relied upon the judgment of Apex Court in the case of Nirala Singh Kahlon Vs. State of Punjab and others; (2009) 1 SCC (Cri) 523 wherein the investigation against a minister, who was involved for the charges of corruption, conducted by CBCID was upheld. It was further held in this case that fair trial cannot be ensured unless there is a fair investigation. The fair trial is equally important for the accused as well as for the victim of the case. He further relied upon on the judgment in the case of Rubabbuddin Sheikh Vs. State of Gujarat and others; (2010) 2 SCC (Cri) 1006. In this case, the police personnel done a fake encounter of Sohrabuddin and the investigation was transferred to CBI. In this case, the Apex Court after completion of the investigation and after filing the charge-sheet transfer the investigation to CBI. On the basis thereof, it has been submitted by learned counsel for the petitioner that this Court may also transfer this investigation to an independent agency which will not only satisfy the accused but also the father of the deceased. Learned counsel for the petitioner also relied upon the judgment of the Apex Court in the case of Azija Begum Vs. State of Maharashtra and another; (2012) 2 SCC (Cri) 69 in which the investigation was entrusted by the court to other agency but the Senior Police Officer again handed over the investigation of the case to the same police authorities, therefore, the Apex Court upheld the order of the court and direct that order of the court should be followed.
Sri Z. Jilani, learned Additional Advocate General vehemently opposed and submitted that in this case, the father of the deceased moved an application on 30.01.2014 implicating the police personnel of Allahabad. The investigating agency, who conducted the investigation at Lucknow of this incident if intended to save the police personnel must have not entered the information given by father of the deceased in the general diary. It has further been submitted that the complicity of the accused along with other co-accused was already came to the notice of the police as is evident from the case diary of dated 03.02.2014. Ankit Dubey was under the watch of the police of Lucknow even on 03.02.2014 when according to the petitioner he was arrested. It has also been submitted that the police action was not objected by the father of the deceased as he is fully satisfied with investigation and is not pressing his earlier version given by way of application dated 30.01.2014. It is well settled that the investigation normally is not transferred as per the desire of the accused. It is true that fair investigation is not only a right of the accused protected under Article 21 of the Constitution of India but it is also the right of the victim. The Investigating Agency in the present case is proceeding fairly, impartially and the material evidence has been collected. The present petitioner has a criminal history as mentioned in the affidavit of the Inspector General of Police. The habeas corpus filed by the family member of the deceased was dismissed. It is also came from the evidence collected during investigation that petitioner's father assured that the cases against the deceased and his family members will be closed but after taking Rs.7 lac for this purpose, the writ petition was filed, but the same was dismissed and the aforesaid money was not returned. It has also been submitted that the material evidence collected so far is against the petitioner as well as against the other co-accused is sufficient to show the involvement of the petitioner in the commission of this double murder. It has further been submitted that the alleged illness of the petitioner is neither a ground for transfer of the investigation nor to issue mandamus not to arrest him. Therefore, both the writ petitions are liable to be dismissed.
We have carefully considered the submission of learned counsel for the parties and perused the record.
It is no doubt true that fair investigation is necessary for fair trial and unless the investigation is fairly conducted, the fair trial cannot be ensured. It is not denied that the accused as well as the victim would be seriously prejudiced if the fair trial is not ensured. It is not a rule of law or prudence that whenever involvement of police personnel is there in commission of any crime, the police personnel of the same department are debarred from conducting the investigation of such cases. It is also not a rule of law or prudence that whenever police personnel comes under the shadow of doubt, the investigation must be handed over to some other agency or an independent organization dealing with the investigation of criminal cases. There is no fast and straight jacket formula to transfer the investigation. The facts of each and every case has to be considered by the court while passing the order with regard to transfer of investigation. Ordinarily, courts are not supposed to interfere with the investigation but at the same time in appropriate cases power of transfer the investigation can be exercised under Article 226 of the Constitution of India by the courts where there is sufficient material to infer from the conduct of the Investigating Officer that he is not acting fairly and judiciously or in impartial manner.
In the light of the aforesaid discussion, now we are considering the facts and circumstances of the present case. In this case, it is not in dispute that two persons were murdered and cognizable offence under Section 302 IPC has been committed. The first information report was lodged by Anuj Yadav, who is the owner of the house, in which both deceased were living as a tenant. It is not in dispute that the deceased Ashish Mishra was living in the house after concealing his identity out of fear of his opponents, who were inimical to him. It is also not in dispute that Ram Swaroop Verma when posted at Allahabad at police station Jhunsi, District Allahabad tried to apprehended Ashish Mishra, the deceased but failed to do so because the father of the deceased in anticipation of the arrest of deceased by the police, the habeas corpus writ petition was filed and the same was dismissed. Mere filing of a writ petition against the police personnel or the act to arrest a criminal could not be said that they acted in illegal manner or they were biased towards the person to whom they were trying to arrest. More so in a blind murder if any family member of the deceased gives a clue, the Investigating Agency must have proceeded to verify the same. In this case the information given by the father of the deceased on 30.01.2014, the police entered the same in the general diary. However, clues which were found by the investigating agency involving Ankit Dubey and other co-accused persons is evident from the case diary prepared on 03.02.2014 and consequently the arrest of Ankit Dubey was made on 04.02.2014 by the police. Later on the statement was recorded. It is important to mention here that father of the deceased Ashish Mishra has not given any affidavit or raised any protest that investigation of the case of murder of his son is not going in a right direction. There is nothing on record to show that the investigating agency in any manner is protecting the police personnel alleged to have been involved on the basis of suspicion raised by the father of the deceased on 30.01.2014 but later on, he gave the names of other persons involved in the crime who were in the arena of investigation conducted by the police even after the letter dated 30.01.2014. Mere non mention of the application dated 30.01.2014 in the affidavit of the Inspector General does not ipso facto prove that police while investigating this case acted malafide or in a biased manner. As such petitioner fails to establish that investigation conducted in this case is not fair, impartial or judicious.
So far as, Writ Petition No.1333 (M/B) of 2014 is concerned, the relief sought for quashing the FIR in this writ petition cannot be granted to the petitioner for reason that the FIR itself discloses the commission of cognizable offence in respect of murder of two persons. Therefore, the prayer for quashing the FIR is refused.
Since, the investigation of the abovementioned case is going on, this Court cannot direct the Investigating Agency not to arrest the petitioner. Therefore, the mandamus sought by the petitioner to direct the opposite parties not to arrest him and to transfer the investigation cannot be issued, such prayer is refused.
In view of above discussion made by us, we are of the firm view that both the petitions are liable to be dismissed.
The interim order dated 18.02.2014 passed in Writ Petition No.1333 (M/B) of 2014 is hereby vacated.
However, considering the facts and circumstances of the case, it is directed that in case the petitioner appears before the court concerned within 30 days from today and applies for bail, the same shall be considered and disposed of expeditiously by the courts below in accordance with law.
Accordingly, the Writ Petition No.1333 (M/B) of 2014 is disposed of with the above direction and the Writ Petition No.7146 (M/B) of 2014 is dismissed.
Dated:04.09.2014 akverma