(Delivered by Hon'ble A. Mateen, J.) Heard Dr. L.P. Misra, learned counsel for the petitioners and learned Additional Government on behalf of opposite parties no. 1 to 4.
The Petitioners have approached this Court by filing the present Writ Petition under Article 226 of the Constitution of India for quashing order dated 10.12.2008 passed by the Principal Secretary (Home) Government of Uttar Pradesh, a copy of which has been annexed as Annexure-1 to the petition. By means of order dated 10.12.2008, the Principal Secretary (Home) has transferred investigation relating to Case Crime No. 68 of 2006, which was initially lodged under Sections 460 & 411 IPC of Police Station Umri Begumganj, district Gonda from the local police to the CB.,CID.
The facts as they emerge out are that an FIR was lodged by Shyamji Sahu, opposite party no. 5 to this petition with respect to murder of his sister and brother-in- law at Police Station Umri Begumganj, district Gonda under Sections 460 & 411 IPC (Case Crime No. 68 of 2006) against unknown persons. After making investigation, charge sheet was filed against five accused persons, i.e. Sunil and Ram Gopal (Annexure-6). Charge sheet in the above mentioned case crime number was also filed by the police against Rajendra Prasad Pandey alias Tittir, Pawan Tiwari and Satya Devi Shukla (Annexure-7). It appears that the son of the deceased, namely, Shiv Shanker felt that investigation has not been done fairly, as such, he moved an application before the State Government for getting the matter investigated properly and impartially by some other agency. In pursuance of the application of Shiv Shanker, the State Government passed the impugned order dated 10.12.2008 (Annexure-1) transferring the investigation of Case Crime No. 68 of 2006 from the local police to the CB.,CID.
Here we feel it relevant to mention that the petitioners have filed the present Writ Petition during the course of investigation in which, it appears, their names have come into light as accused in the commission of the crime and when process under Section 82 Cr.P.C has been issued against them.
Dr. L.P.Misra, learned counsel for the petitioner argued that that after submission of charges sheet against certain other accused persons, the matter cannot be 2 further got re-investigated under the provisions of Section 173 (8) Cr.P.C. He vehemently submitted that the order transferring the investigation is, per se, against the settled provisions of law and deserves to be quashed.
In rebuttal, learned Additional Government Advocate submitted that it is the ultimate supervisory domain of the State Government, as provided in Section 173 (8) Cr.P.C., to get the matter investigated by any agency even if Charge Sheet has been filed. He strenuously submitted that the State has the ultimate say in these matters and the accused cannot be given the right to challenge the order transferring investigation. He placed before the Court photo copy of order dated 25.06.2008 passed by the competent Magistrate on the application moved by the Circle Officer, Tarabganj, Gonda dated 23.06.2008 by means of which permission was granted by the Magistrate for re-investigation of the matter in accordance with law. The photo stat copy of the application bearing the order of the Chief Judicial Magistrate dated 25.06.2008 has already been taken on record.
Having given our anxious consideration to the facts of the case and the law as propounded by the apex Court, we are of the view that there is force in what has been argued by learned Additional Government Advocate.
In the case of Central Bureau of Investigation and another vs. Rajesh Gandhi and another reported in 1997 CRI. L. J. 63 the apex Court considering the question in issue has held that an accused cannot have a say in who should investigate the offence he is charged with and the decision of the competent authority on agency which should investigate, does not attract the principles of natural justice. In said case, it has been held by the apex in paragraph-8 as under:
"... The decision to investigate or the decision on the agency which should investigate, does not attract the principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with..... If investigation by the local police police is not satisfactory, a further investigation is not precluded."
(Emphasis supplied) In the case of Nirmal Singh Kahlon vs State of Punjab and others reported in 2009 CRI.L.J. 958 the apex Court has observed thus:
"54. The question can be considered from another angle. If the State has the ultimate supervisory jurisdiction over an investigation for an offence and if it intends to hand over a further investigation even after filing of the charge sheet, it may do so."
(Emphasis supplied) Reverting to the present case, we are of the view that it is the prerogative of the State to get the matter investigated by CB.CID (or any other agency) and if the State is of the view that investigation by the local police is not satisfactory, it is within the 3 domain of the State to order re-investigation and such an action of the State cannot be said to impinge upon the rights of an accused under Article 21 of the Constitution of India. No doubt, fair investigation and fair trial are concomitant to preservation of the fundamental right of an accused enshrined under Artcle 21, but at the same time, a larger obligation lies on the State to maintain law and order, public order and preservation of peace and harmony in the society. There is no gainsaying that the victim of the crime is equally entitled to a fair investigation.
Before parting with the case, we would be failing in our duty if we do not mention the case law cited by Dr Misra, learned counsel for the petitioners. Dr Misra cited the case of Reeta Nag vs. State of West Bengal and others (2009) 9 Supreme Court Cases 129). Suffice to mention that the facts of the case of Reeta Nag (Supra) are distinguishable from the facts of the present case.
A conceptus of our observations made in the foregoing paragraphs is that since it is in the domain of the State to direct investigation even in case where charge sheet has been filed and since the competent Magistrate has also granted permission for re- investigation on the application moved by the Circle Officer and process under Section 82 & 83 Cr.P.C have also been issued against the petitioners, the petitioners are not entitled to any relief in this petition which also deserves to be dismissed.
The writ petition is accordingly dismissed at the admission stage itself. No order as to costs.
Dated : February 3, 2010 anb