Hon'ble Shashi Kant,J.
Dr. Raj Kumar Batra has approached this Court questioning the validity of the order dated 23.10.2013 passed by the Senior Superintendent of Police, Meerut transferring the investigation from District Meerut to District Ghaziabad pursuant to the order dated 17.10.2013 passed by the Inspector General of Police, Meerut Zone, Meerut.
Record in question reflects that First information report has been lodged by the petitioner on 21.10.2012 as Case Crime No. 193 of 2012, under Sections 498A, 324, 504, 506, 307 IPC and ¾ D.P. Act, Police Station Railway Rod, District Meerut.
Validity of lodging of first information report has been challenged by Aditya Mehra by filing Criminal Misc. Writ Petition No. 1331 of 2013 wherein this Court on 5.2.2013 disposed of the said writ petition with the direction to respondent no.5 to appear before the Court below and obtain bail within 30 days.
In the writ petition in question, positive statement of fact has been mentioned that after conducting investigation, police submitted charge sheet on 6.3.2013 in the Court of Additional Chief Judicial Magistrate, Court No.7, Meerut and on the same Court of competent jurisdiction has taken cognizance on 15.3.2013.
It has been sought to be contended that in-spite of repeated summons, all the accused persons remained absconding and are continuously evading the process of law and accordingly, 'Non Bailable Warrant' has been issued on 16.5.2013. Thereafter an application was preferred before the Court below to recall the 'Non Bailable Warrant', but the said application was rejected on 3.6.2013. Said order dated 3.6.2013 was challenged by preferring Criminal Misc. Application (482 Cr. P.C.) No.19762 of 2013 and same was got dismissed as not pressed. Petitioner has tried to contend that accused persons have not at all been co-operating and proceeding under section 82 Cr. P.C. was also sought to be initiated. Petitioner submits that thereafter order impugned 23.10.2013 has been passed by the authority concerned, transferring the investigation from District Meerut to District Ghaziabad.
On the presentation of the writ petition, this Court on 29.1.2014 has passed following order:-
"Learned AGA has accepted notice on behalf of respondent nos.1 to 3.
Issue notice to respondent no.4 by registered post A.D. returnable within six weeks. Steps to be taken within a week.
All may file counter affidavit by the next date.
List after seven weeks.
Apart from other arguments, it is urged that after submission of the charge sheet there was no occasion to transfer the investigation and that too at the behest of the accused persons.
Accordingly, the operation of the order dated 23.10.2013, Annexure-1 to the writ petition, shall remain stayed."
Counter affidavit has been filed and therein it has been sought to be contended that by mentioning incorrect statement of fact that charge sheet has filed in the Court below and cognizance has been taken, petitioner has succeeded in procuring interim order, whereas it is totally wrong and incorrect statement of fact, and accordingly petitioner has not approached this Court with clean hands. It has been mentioned that investigation was not proceeding on correct line and accordingly complaint had been made to the National Human Right Commission on 27.6.2013 and National Human Right Commission asked the Inspector General of Police, Meerut Zone, Meerut for redressing grievance of respondents. Petitioner submits that in connection with the same, correspondence has been done and ultimately Senior Superintendent of Police, Ghaziabad handed over the matter to Superintendent of Police (Crime) Ghaziabad and thereafter matter was thoroughly looked into by Superintendent of Police (Crime), Ghaziabad who submitted his report dated 4.10.2013 and therein various irregularities in the investigation made by Meerut police had been pointed out. It has been sought to be contended that Senior Superintendent of Police, Ghaziabad has mentioned that further investigation in the matter is required to be conducted and thereafter Inspector General of Police, Meerut Zone Meerut after considering the contents of letter of the DIG, passed order dated 17.10.2013 thereby directing the further investigation in case Crime No. 193 of 2012, by Mahila Police Station of Ghaziabad, in view of same, present writ petition is liable to be dismissed.
Short counter affidavit has been filed by the State Government and therein also factum of filing charge sheet has been disputed and it has been contended that Smt. Sneha Mehra has surrendered and Aditya Mehra is still absconding.
After pleadings inter-se parties have been exchanged, thereafter, present writ petition has been taken up for final hearing/ disposal with the consent of the parties.
Sri. Anoop Trivedi, learned counsel for the petitioner contended with vehemence that in the present case wrongful and arbitrary order has been passed on 23.10.2013 transferring the investigation from District Meerut to District Ghaziabad, and that to at the behest of accused person as such this Court should come to the rescue of the petitioner, and accordingly writ petition is liable to be allowed.
Learned A.G.A. As well as Sri. Satyendra Nath Tiwari, Advocate on the other hand contended that original order of transferring the investigation has not at all been challenged and interim order has been procured on incorrect fact, and even accused have a right to claim fair investitation,as such writ petition is liable to be dismissed.
After respective arguments have been advanced, factual situation that has so emerged in the present case is that investigation in question has been directed to be transferred on account of letter sent by the National Human Right Commission dated 27.6.2013 and same had been considered by the Inspector General of Police, Meerut Range, Meerut. Thereafter, Superintendent of Police (Crime), Ghaziabad has submitted detailed report dated 4.10.2013 pointing out various irregularities in the investigation made by the Meerut police. Thereafter Senior Superintendent of Police, Ghaziabad mentioned that further investigation in the matter is required to be conducted and Inspector General of Police, Meerut Zone Meerut after considering the contents of letter of the DIG, passed order dated 17.10.2013 thereby directing for further investigation of the matter in case Crime No. 193 of 2012 by Mahila Police Station, Ghaziabad.
In the present case this much is reflected that order dated 17.10.2013 of Inspector General of Police, Meerut Zone, Meerut directing for transferring of the investigation for further investigation has not at all been assailed in the writ petition in question and to the contrary only consequential order of compliance where the investigation has been directed to be transferred from Mahila Police Station Meerut to Mahila Police Station Ghaziabad by S.S.P. Meerut, has been challenged. Once validity of principle order dated 17.10.2013 passed by Inspector General of Police, Meerut, remains unchallenged, then challenge made to consequential order of compliance dated 23.10.2013 by Superintendent of Police, Ghaziabad is of no avail and petitioner in no eventuality would succeed, in such a situation. This much is also clear from the body of the writ petition that incorrect statement of fact has been mentioned that charge sheet has been filed and cognizance has been taken, whereas in the fact of the case this much is clear that charge sheet has not been filed till date and till date cognizance has not been taken, in view of the same, power of police to undertake further investigation under Section 173(8) Cr. P.C. remains un-fettered.
This Court finds that whatsoever exercise has been sought to be undertaken, same is in the direction of further investigation and the authority of Inspector General of Police to transfer the investigation for further investigation, from one District to another has not at all been questioned, rather challenge is being made that at the choice of accused, investigation of criminal case cannot be transferred and for the said preposition heavy reliance has been placed on judgement of this Court in the case of Jeet Singh Vs. State of U.P. 2013 (3) JIC Alld. HC 470.
In the case of Jeet Singh, the order of transferring investigation from civil police to C.B.C.I.D. was not approved for the reason (i) that no reason worth name had been disclosed for according transfer of investigation (ii) Circular letter dated 15.9.1995 holds the field for transferring of investigation from civil police to C.B.C.I.D., and none of the grounds mentioned in circular were in existence (iii) the hidden object of transferring investigation was to stall action by local police and to evade the arrest of offender.
Certainly, if such are the objectives of accused person, the investigation in question cannot be transferred from local police to C.B.C.I.D., but it cannot be laid down as an absolute preposition, that accused person have no right to demand transfer of investigation, even if, investigation in question is not fair. Both the complainant/informant and the accused persons have a right to demand investigation that is judicious, fair and transparent and equally it is the corresponding duty of State apparatus to ensure free, fair and impartial investigation, as the Apex Court has now taken the view in the case of Babu Bhai Vs. state of Gujrat 2010(12) SCC 254, that not only fair trial but fair investigation is also part of constitutional rights guaranteed under Article 20 and 21 of the Constitution of India. Aforesaid judgement has been followed in the case of Hema Vs. State through Inspector of Police, Madras reported in (2013) 10 SCC 192 wherein Apex Court has once again repeated that the investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner and in case biased investigation or tainted investigation is there then certainly same would never result in fair trial. Therefore, the investigation must be fair, transparent, judicious as it is the minimum requirement of law. Even the case of Jeet Lal has subscribed to the said view, that State should ensure fair investigation. The request for transfer of investigation can be entertained both at the behest of informant and the accused persons, provided they substantiate with hard material and circumstances, that current status of investigation is not at all fair, transparent and judicious, then after objective consideration and giving reasons, the authority of transfer of investigation can be exercised by the Authority concerned and such authority of transfer of investigation should not be exercised at the whims and fancies merely because, to someone, the result of investigation is not suiting and is not conducive.
Even the circular dated 12.12.2012, issued by Additional Director General of Police (Law and order), U.P. Lucknow in reference of transfer of investigation, does not put complete embargo on the accused persons to apply for transfer of investigation, rather it proceeds to mention that ordinarily on the asking for by the accused investigation should not be transferred, and in case investigation is to be transferred at the request of accused, then as per paragraph 5 of the said circular letter, as per the directives of U.P. Police Head Quarter, special reasons will have to be got recorded. In the said circular itself in paragraph 8, the guidelines that are to be adhered in the matter of effectuating transfer has also been specified. The essence of this circular is also to ensure free, fair and impartial investigation with expedition and to avoid unnecessary obstacles/impediments/road blocks in the on going investigation, as the sole effort of fair investigation is to bring guilty to law and to give strong message that no body stands above law dehors his position and influence in the society.
Accordingly, present writ petition is dismissed.
Dt.08.09.2014 T.S.