Hon'ble V.C.Gupta,J.
` Heard Sri I.B. Singh, Senior Advocate, assisted by Sri Kumar Ayush and Sri Manish Mani Sharma, learned counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Amarjeet Singh Rakhra, learned counsel for the C.B.I.
This petition has been filed by Smt. Mithlesh Sharma with the following amended prayer.
1) to issue a writ, order or direction in the nature of mandamus directing the C.B.I. to take up the investigation of case crime no. 113 /2012 at P.S. Pasgawan, Lakhimpur Kheri.
Or
2) to issue a writ, order or direction in the nature of mandamus commanding the opposite party no.1 to transfer the investigation of case crime no. 113 of 2012 at P.S. Pasgawan, Lakhimpur Kheri to C.B.I.
3) issue a writ order or direction in the nature of mandamus directing O.P. No. 4 to decide the investigation of case crime no. 113 of 2012 under sections 302,120-B I.P.C. relating to police station Pasgawan, district Lakhimpur Kheri within a stipulated period, in the interest of justice.
4) issue any another writ, order or direction which this Hon'ble court may deem fit and proper under the circumstances of the case may also be passed in favour of the petitioner.
The facts in brief of this case are that in the present case, FIR has been lodged by the petitioner Smt. Mishlesh Sharma, on 17.2.2012 at 12.15 p.m. at P.S. Kotwali Sadar in respect of the incident allegedly occurred during the period 7.2.2012 to 15.7.2012 relating to the offence committed in the territory of P.S. Pasgawan in case crime no. Nil of 2012 under sections 302,120-B I.P.C. alleging therein that her husband deceased Mahendra Kumar Sharma, aged about 55 years, was posted at the Community Health Centre, Pasgawan, district Lakhimpur Kheri as a Senior clerk. He was on leave from 2.11.2011 to 26.11.2011, on account of the marriage of his daughter. When he returned to the Community Health Centre, after leave, he found that he was shown absent in the record during the aforesaid period, lock of the Almirah kept in the office was found broken and the documents and files were found missing. He made its complaint to the Chief Medical Officer Sri J.P. Bhargava, who directed him to hand over the charge to Rajesh Hans and join his service at Bijuwa, then her husband asked to issue the order of transfer in writing and it was told that the record and cheques taken out from the Almirah by breaking its lock were having concerned with the N.R.H.M. scam, which was being investigated by the C.B.I., if he was questioned what reply would be given by him, then the Chief Medical Officer Sri J.P. Bhargava, asked him to join at Bijuwa, on his saying the enquiry with regard to the record and cheques would be set up by him, when with the aforesaid conversation the first informant was apprised by the deceased, its information was given by the deceased to the Chief Medical Officer on 30.1.2012 through a letter, thereafter, the deceased did not join anywhere and remained at his residence. On 6.2.2012 at about 4.00 p.m. Sri Rajesh Hans, clerk at C.H.C. Pasgawan, Dr. H.C. Gupta, Kuldeep Mishra, President and Sri Munna Lal Verma, Secretary of U.P. Health Ministerial Association, Lakhimpur Kheri came to the house of the first informant,they told the deceased in her presence that the Chief Medical Officer has asked him to join at Pasgawan from tomorrow because some important documents and his signature were required, which were to be supplied to the team of C.B.I. The husband of the first informant responded that he would go to Pasgawan tomorrow. On 7.2.2012, he went to Pasgawan from his house, thereafter, for many days, he did not return to his house, then his search was made by the first informant and information was given to the police of Kotwali Lakhimpur Kheri. In the evening of 15.12.2012 she came to know that the dead body of her husband was lying at Community Health Centre, Pasgawan, then she came to C.H.C. Pasgawan, and saw the dead body of her husband having injuries. There was blood and mud on the body also, she was having strong belief that the deceased was killed at the instance of Rajesh Hans, Dr. H.C. Gupta, Kuldeep Mishra, President and Sri Munna Lal Verma, Deputy C.M.O. Balbir Singh and the C.M.O. J.P. Bhargava, only because he was an honest and gentleman and was not co-operating in their wrong doing. The report of his murder was not registered, even after the autopsy and cremation.
The petitioner Smt. Mithlesh Sharma, had given a written information dated 9.2.2012 to the S.H.O. Lakhimpur Kheri, mentioning therein that her husband was missing since 7.2.2012. The post mortem examination report done by a penal of doctors on 16.2.2012 at 2.00 p.m. shows that the deceased has sustained six ante mortem injuries in which injury no.1 was lacerated wound 4.5 cm x 4.8 cm x bone deep on front of nose, injury no. 2 was lacerated wound, 1.00 cm x 1.5 cm x bone deep on the root of nose, injury no. 3 was contusion 7.00 cm x 5.00 cm on the right side of face upper part of neck just below the right ear lobule, injury no. 4 was contusion 5.00 cm x 5.00 cm on the left side of face just below the left ear. injury no. 5 was contused abrasion 3.00 cm x 1.00 cm on the outer aspect of the left arm 12.00 cm below the top of left shoulder, injury no. 6 was contusion 3.00 cm x 1.00 cm over the inner and outer side of lower lip.
There was post mortem injury abrasion 2.00 cm x 8.00 cm on outer left arm. The cause of death was due to asphyxia. The viscera was also preserved, but during investigation the I.O. found that in the absence of the deceased record was taken out from the Almirah by breaking its lock and the information about the missing of the deceased was given by the first informant to the P.S. Kotwali Sadar Kheri on 9.2.2012 and on 5.2.2012 on the information given by Dr. Sharik Parvez Khan, the dead body of the deceased was found in his official residence allotted in C.H.C. campus, after breaking the door, which was closed from inside, the dead body was taken by the police I.e. by the then Officer in charge of the Police Station, its video0-ography was also done, the inquest report was prepared and by a forensic team the inspection of the place of incident was done, but the police team in a second search of his residence got a suicide note written by the deceased, the same was sent to Vidhi Vigyan Prayogshala. According to the Public Analyst Report, it was found to be written by the deceased himself. The investigation of this case has been initiated by the I.O. on the line of the suicide but the post mortem examination report was a hurdle in the story of suicide because according to the post mortem examination report the cause of death was smothering and according to the report of Public Analyst Aluminium Phosphide Ethyl alcohol poison was found in viscera, thereafter, medico legal opinion was obtained from the office of the Additional Director Rajkiya Chikitsa Vidhi Visheshagya, Uttar Pradesh, Aish Bagh Lucknow who, on the basis of the post mortem examination report, inquest report, viscera report, report of the suspected power and after perusing the vediography of the post mortem examination, gave report dated 23.4.2014 that the deceased had died due to smothering, Aluminium phosphide and cardiac respiratory failure. The medico legal opinion dated 23.4.2014 was contradicting the post mortem examination report, which was prepared by a penal of doctor. It is a case in which serious allegation has been raised against the Chief Medical Officer and the motive to commit the murder was connected with N.R.H.M. scam.
It is contended by the learned counsel for the petitioner that it is a case in which the deceased has been killed because he was an honest person, he was the head clerk of C.H.C., important documents and files were in his charge, which were kept in his Almirah in the office, the lock of the Almirah has been broken and the documents and files have been misplaced and he has been killed so that he may not be able to give evidence against the persons involved in N.H.R.M. scam. The persons involved in N.H.R.M. scam are very powerful and influential. The N.H.R.M. scam is being investigated by C.B.I., the recommendation was made by the Government of U.P. to Secretary, Karmik Lok Shikayat and Pension Mantralaya, Bharat Sarkar, New Delhi vide letter dated 26.2.2012 with the request that investigation of this case may be done by C.B.I. In this regard the order has already been issued by the Home Secretary, Government of U.P. Lucknow mentioning therein that in pursuance of the provision of section 6 of Delhi Special Police Establishment Act, 1946( 25 of 1946) Governor of the State of U.P. is pleased to accord sanction to the extension of power and jurisdiction of the member of the Delhi Special Police Establishment in the whole of the State of Uttar Pradesh for further investigation of case crime no. 113 of 2012 under sections 302,120-B I.P.C. registered at P.S. Pasgawan district Lakhimpur Kheri regarding the unnatural death of Sri Mahendra Kumar Sharma clerk working in Medical Health Department, Lakhimpur Kheri but the request of the State Government was turned down by the Ministry of Personnel PG Pension (Department of Personnel and Training) its communication was made to the Chief Secretary, Government of U.P. Lucknow vide letter dated 17.7.2012. The request of the Governor was turned down on the ground that no case pertaining to Lakhimpur Kheri relating to N.R.H.M. scam is presently being investigated by the C.B.I. Now the cases pertaining to Lakhimpur Kheri, relating to N.R.H.M. scam is being investigated by the C.B.I., in such circumstances, this case may also be referred to C.B.I. for investigation.
In reply to the above contention it is submitted by the learned A.G.A. that the State Government has already made request for holding investigation of the present case by the C.B.I. but its request has been turned down by the Ministry of Personnel, Government of India. In case, the investigation is transferred to C.B.I., the State is having no objection because the request has already been made by the State Government to the Ministry of Personnel, New Delhi.
It is submitted by Sri Amarjeet Singh Rakhra, learned counsel for the C.B.I. that a request of the State Government for holding investigation by C.B.I. has been turned down by the Ministry of Personal PG and pension Government of India, New Delhi its communication has been made to the Chief Secretary, Government of U.P. Lucknow vide letter dated 17.7.2012 mentioning therein that no case pertaining to the Lakhimpur Kheri related to N.R.H.M. scam, is presently being investigated by the C.B.I., its communication has been made long back on 17.7.2012. At present the cases pertaining to Lakhimpur kheri relating to N.R.H.M. scam is being investigated by the C.B.I.
Considering the facts and circumstances of the case, submission made by the learned counsel for the petitioner and the learned A.G.A. and Sri Amarjeet Singh Rakhra, learned counsel for the C.B.I. it reveals that according to the FIR itself the murder of the deceased Mahendra Kumar Sharma, Head Clerk of C.H.C. Pasgawan district Lakhimpur is related with the N.R.H.M. scam and the state Government has already made request to the Union of India to hold the investigation of this case by C.B.I. vide his letter dated 26.2.2012 but the request of the State Government was rejected only because no case pertaining to Lakhimpur Kheri relating to N.H.R.M. is being investigated by the C.B.I. its communication was made to the Chief Secretary, U.P. Government Lucknow vide letter dated 17.7.2012 but at present the position is otherwise because the cases pertaining to Lakhimpur Kheri relating to N.H.R.M. scam is being investigated by C.B.I. and according to the post mortem examination report prepared by a penal of doctor, the cause of death of the deceased Mahendra Kumar Sharma was smothering, he had sustained ante mortem injuries also, only on the basis of the recovery of the suicide note by the local Police, it may not be said at this stage that it was a case of suicide. In any case, if the cause of death is smothering, it may not be said to be suicide but it requires a through investigation, only on the basis of suicide note, the inference cannot be drawn that the deceased has committed suicide because the suicide note may be obtained in writing of the deceased under pressure and coercion etc. it also requires a proper investigation, in such circumstances we are of the opinion that it is a case in which Mahendra Kumar Sharma has lost his life, may be related with the N.H.R.M. scam. The N.H.R.M. pertaining to Lakhimpur is also pending investigation by the C.B.I. therefore, we direct that the investigation of case crime no. 113 of 2012 under section 302/120-B I.P.C. P.S. Pasgawan district Lakhimpur Kheri shall be done by the C.B.I. and S.P. Lakhimpur Kheri is directed to ensure that all the documents and other material collected during investigation by the I.O. shall be handed over to a competent officer of the C.B.I. and the C.B.I. shall take necessary steps to take investigation of this case in his hand.
Accordingly this writ petition is allowed.
Dt. 3.9.2014 NA Hon'ble Ravindra Singh,J.
Hon'ble V.C.Gupta,J.
Heard the learned counsel for the petitioner and the learned A.G.A. for the State of U.P.
This is amendment application no.3349 of 2014. The learned counsel for the petitioner is permitted to amend the prayer of this petition by adding prayers has sought in the amendment application.
Dt. 3.9.2014 NA/8240/2013/MB