Hon'ble Bachchoo Lal,J.
1. Gist of the issue, raised by way of this petition, is recorded in order dated 26.03.2015. The order reads as under:
"1. Smt. Suchita Tiwari has approached this Court to seek a writ in the nature of Mandamus directing respondent police authorities to take immediate action against accused and investigate Case Crime no. 211 of 2015, under Sections 395, 447, 354, 323 and 504 Indian Penal Code, police station Kotwali Nagar, district Faizabad.
2. Contention of learned counsel for the petitioner is that petitioner being tenant of respondent no. 5 was threatened with eviction. A civil suit was filed in the Court of Civil Judge (Senior Division) Faizabad bearing No. 172 of 2015 titled Smt. Suchita Tiwari vs. Rekha Yadav. It has been brought out that vide order Annexure-3 dated 18th March, 2015, interim injunction was issued restraining defendant/respondent no. 5 from dispossessing the petitioner.
3. In the contention of learned counsel for the petitioner, when the respondents came to know about the order of stay issued under Order 39 Code of Civil Procedure, the private respondents took law in their hands and on 20th March 2015 threw out household goods of the petitioner and destroyed certain goods, took away three mobile phones and Rs. 10,000/- etc. The local police authorities were in collusion with the accused and, therefore, did not take any action so as to protect possessory rights of the petitioner. In such circumstances, the petitioner has approached this Court to seek a direction to the respondent investigating agency to take action in pursuance of the criminal proceeding initiated by the petitioner.
4. Perusal of order Annexure-3 indicates that, indeed, respondent-defendant was restrained from dispossessing the petitioner-plaintiff in proceedings under Order 39, Code of Civil Procedure. We have also taken serious note of allegations made in paras 12 to 17 of the petition, which need to be extracted for exact reference:
11. That when the private respondents came to know about the order passed by the learned court of Civil Judge Senior Division, then they became violent and in connivance of the local police authorities and the local Goons in the evening of 20-03-2015 the accused persons started throwing the household goods from the house and destroying the household goods of the petitioner. They also took away the various household belongings of the petitioner. Upon the information by the neighbours, the present petitioner immediately rushed to the place of incident and when the petitioner resisted the violent attack of the landlords and their Goons, then they attacked upon the petitioner too and snatched the purse of the petitioner and three mobile phones which were being carried by the petitioner having mobile nos. 9044088088, 7800617215, 7800434000 and has also snatched Rs. 10,000/- from the husband of the petitioner and assaulted upon the petitioner and threatened to open fire upon the petitioner and her husband.
12. That the petitioner tried her level best to get the assistance of the local police authorities but despite the specific communication and information to the police authorities, no police assistance was extended to the petitioner, which itself proves that the local police authorities are in connivance with the respondent - landlady and Gundas present over there.
13. That all these traumatic, painful and violent attack of destroying the household goods and taking the same away, took nearly 3 hours but no police assistance was extended to the helpless petitioner by the local police authorities.
14. That after such traumatic condition, the petitioner rushed to the local Police Station, and after much request and persuasion, the F.I.R. was lodged on 20/03/2015 at 22:45 hours under Section 395, 447, 354, 323, 504 IPC at Case Crime No. 211/2015.
15. That on the following day i.e. on 21-03-2015, the petitioner, somehow, managed to take out her remaining necessary household belongings from the said rented house facing threat and abusive languages from the accused persons.
16. That since the lodging of the F.I.R. i.e. on 20/03/2015, till date local police authorities / Investigating Officer have not taken any action into the matter against the respondents-accused.
17. That the local police authorities are assisting and conniving with the accused persons and they are deliberately not taking any action against the accused persons".
5. Order passed by Civil Court or other authority having competent jurisdiction is required to be protected by the police. Sequence of events indicates that the order was passed on 18th March, 2015, and allegedly the incident took place on 20th March, 2015.
6. Being a writ Court, this Court is not only concerned about possessory rights of the citizens but also maintaining sanctity of orders passed by Civil Court. The fact that F.I.R. at issue has been lodged indicates that the Police prima facie found commission of cognizable offence, and hence the F.I.R. was registered u/s 154 Cr.P.C. We also find that the F.I.R. alleges commission of serious offences, including that of committing Dacoity; criminal trespass and assault on woman with intent to outrage her modesty.
7. D.I.G., Faizabad Range, Faizabad is directed to examine the issue in context of what has been stated hereinabove in this order and averments made in the petition and issue appropriate directions to ensure that effective investigation is conducted. It should be ensured that law is enforced equally, and not while favouring one side.
8. It has been projected before this Court by learned counsel for the petitioner that offensive action taken by private respondent was recorded in video clip and would establish the facts, as asserted in this petition. D.I.G. concerned shall examine the video clips also so as to unearth true facts. In case it is found that local police has shown apathy towards the complainant and has favoured the accused, initially, the said officer shall also consider investigation by Circle Officer, or by police from another District / Police Station.
9. Let affidavit be filed by D.I.G., Faizabad Range, Faizabad on or before 20th April, 2015.
10. In case it is found as a fact that injunction order, as noted above, had indeed been issued on 18th March, 2015, and the petitioner was in possession of the house, and such incident occurred on 20th March, 2015, the officer shall indicate as to what remedial steps have been taken.
11.The D.I.G., Faizabad Range, Faizabad shall first conduct appropriate enquiries as regards possession and thereafter take action/file affidavit.
12. List the case on 20th April, 2015."
2. In deference to order dated 26.3.2015, Deputy Inspector General of Police, Faizabad Range, Faizabad filed an affidavit bringing out certain alarming facts indicating interference with the investigation process and pressure brought on the Investigating agency. Considering the affidavit, the following order was passed by the Court on 20.4.2015 :
"Shri P.K. Jaiswal, Advocate has appeared for respondents no.5, 6 and 8.
In deference to order dated 26th March, 2015, counter affidavit has been filed by Shri Sanjay Kakkar, Deputy Inspector General of Police, Faizabad Range, Faizabad. Notice of contents of para 12 are required to be taken. Para 12 of the counter affidavit reads as under:
"That it is most humbly and respectfully submitted before this Hon'ble Court that in the instant matter not only Sri Yamuna Prasad, IPS/Incharge Circle Officer (City), District Faizabad as well as the Investigating Officer of the case namely Sri Ram Pratap Singh Kushwaha, Senior Sub Inspector of Police Station Kotwali Nagar, District Faizabad is under pressure but also the deponent is under severe pressure in as much as on a number of occasions when strict action was being taken they were "Gheraowed" and put under constant pressure and even the house of the deponent was "Gheraowed" and in this regard a copy of the DVD i.e. Electronic evidence as well as the Photographs are being annexed herewith as Annexure No. SCA-2 and SCA-3 respectively for the kind perusal and consideration of this Hon'ble Court."
We have also gone through the documents appended with the affidavit filed by Shri Sanjay Kakkar.
On perusal of the affidavit, it has become evident that apprehension of the petitioner of investigation under pressure, was not without basis.
It has been demonstrated before this court that the police officials / investigating agency Sri Yamuna Prasad, IPS/Incharge Circle Officer (City), District Faizabad and investigating officer Sri Ram Pratap Singh Kushwaha, Senior Sub Inspector of Police Station Kotwali Nagar, District Faizabad, as also Sri Sanjay Kakkar, Deputy Inspector General of Police, Faizabad Range, Faizabad are under pressure. The said fact has been made evident from the report accompanying affidavit, and the photographs. It has been demonstrated before the court that the investigating agency is not only being pressurized but is also not being allowed to perform its functions as protector of law.
We deem it appropriate to send a copy of this order to the Principal Secretary (Home), who has superintending control under the Indian Police Act over the police of U.P.
12. Power of superintendence of the State Govt. over the investigating agency/police in context of provisions of Police Act, 1861 has been considered by Hon'ble Supreme Court of India in Nirmal Singh Kahlon versus State of Punjab, (2009) 1 SCC 441. The following has been held in para 61 of the judgment:
"We may, however, observe that the State as in terms of the provisions of the Code and the Act exercises two different and distinct jurisdictions. The power of supervision over investigation vested in the State in terms of Section 3 of the Police Act, 1861 is absolute. It may in a given case having regard to the nature and complexity of the offence may also direct that further investigation in the matter may be carried out by a central agency. The State in terms of the special statute, viz., the Act can always request the CBI to make an investigation / further investigation. The said power of the State is wholly unrestricted by Section 36 of the Act or otherwise. As a logical corollary if while making preliminary inquiry pursuant to the notification issued by the State in terms of Section 6 of the Act, the CBI comes to know of commission of other and further offence involving a larger conspiracy which required prosecution against a large number of persons who had not been proceeded against at all by the local police officers, we are of the opinion that even lodging of second FIR would not be a bar."
(Emphasis supplied by us)
13. In State of Bihar versus J.A.C. Saldanha, (1980) 1 SCC 554, the following has been held in para 16 of the judgment :
"The general power of superintendence as conferred by Section 3 would comprehend the power to exercise effective control over the actions, performance and discharge of duties by the members of the police force throughout the general district. The word 'superintendence' would imply administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. Such is the scope and ambit of power conferred by Section 3 on the State Government of superintendence over the entire police force of the State."
(Emphasis is ours) The affidavit sworn by Shri Kakkar, D.I.G., Faizabad Range indicates serious law and order problems created by certain elements who are mounting pressure over the investigating agency.
The court trusts that on going through the contents of the petition and the contents of the counter affidavit filed by a Senior Officer of the Rank of D.I.G., appropriate direction would be issued by Principal Secretary (Home) so as to ensure that law and order is effectively maintained.
The Principal Secretary is also required to issue necessary instructions so as to ascertain that the investigating agency at Faizabad is given sufficient force so as to ensure that they are protected from undesirable elements and they are able to investigate the case in a fair, free and effective manner, without pressure from any quarter.
The investigation report would be filed before this court on or before 29th May, 2015 by Principal Secretary (Home).
List on 29th May, 2015.
Let a copy of this order be conveyed to Principal Secretary (Home) through Shri Rajendra Kumar Dwivedi, learned counsel for the respondent-State."
3. Affidavit has been filed on behalf of the prosecuting agency in Court, which is taken on record. It has been stated that investigation has been concluded. Incriminating evidence has been found against all the named accused. Charge-sheet has been filed and trial has already commenced.
4. Learned counsel for the petitioner has argued that the offence has been substantially diluted in unfair and biased investigation. Section 395 I.P.C. has not been invoked while filing charge-sheet, so as to help the accused.
5. We have considered the rival stand of the prosecuting agency, as also the petitioner, complainant.
6. From the above extracted orders, it stands demonstrated that the Deputy Inspector General of Police, Faizabad Range, Faizabad was asked to intervene in the matter so as to ensure fair investigation. The Deputy Inspector General of Police, however, filed his affidavit stating that not only the investigating officer at the lower level but also the Deputy Inspector General of Police was under severe pressure.
7. We have also taken into account that Principal Secretary, Home had to be asked to intervene so as to ensure fair investigation.
8. Be that as it may, considering the fact that charge-sheet has been filed and trial has commenced, we dispose of the petition.
9. The petitioner complainant, however, would be at liberty to avail relevant remedies, available with the complainant to file application for invoking appropriate penal provisions, including Section 395 I.P.C., if there is material available on record, or application be filed as and when evidence is brought on record so as to indicate that offence under Section 395 I.P.C. has been committed.
10. This Court trusts that the Court dealing with the matter shall ensure that complete justice is done to the petitioner and rights of the petitioner, a lady, are protected.
Order Date :- 3.2.2016 Jitendra