Hon'ble Rajeev Singh,J.
(Per Rajeev Singh, J.) Heard Shri L.P. Mishra, learned counsel for the petitioners, Shri Sachindra Pratap Singh, learned A.G.A. and Shri Qazi Vakil Ahmad for the complainants.
This petition has been filed seeking the following main reliefs:
"(a) To issue a writ, order or direction in the nature of certiorari quashing the impugned Government Order dated 24.12.2003 passed by the Opp-Party No. 1 together with all the consequential orders passed and the action taken in furtherance of the said Government Order dated 24.12.2003 by declaring the same as void, the true copy of which is contained as Annexure No. 1 to the writ petition.
(b) To issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 19.02.2005 lodged against the petitioners U/S 342, 379, 427, 467, 468, 471, 120-B IPC and U/S 8/20/29 NDPS Act at Police Station Nawabganj, district Bahraich giving rise to the case crime No. 67 of 2005, the true copy of which is contained as Annexure No. 2 to the writ petition."
Facts giving rise to the dispute are that the petitioners, who are the police personnels, arrested one Sarfaraz Khan s/o Izhar Khan on 18th June, 2003 with one kilogram ''Charas' and prepared the recovery memo dated 18.06.2003. On the basis of the said recovery memo, an F.I.R. bearing Case Crime No. 202 of 2003 under Section 8/20 of NDPS Act, P.S. Nawabganj, District Bahraich was registered by petitioner no. 1 being Station House Officer and petitioner no. 2, being the Investigating Officer, recorded the statement of witnesses. After completion of the investigation, a charge sheet dated 6th July, 2003 in accordance with the provisions of Section 173 (2) of the Code of Criminal Procedure was prepared and submitted before the competent court against the accused, Sarfaraz Khan under Section 8/20 NDPS Act. The competent court took cognizance on the aforesaid charge sheet on 28th July, 2003. In the meantime, respondent no. 7, who is the father of the accused-Sarfaraz Khan made complaints to the Human Rights Commission as also to the State Government with the allegation that his son was taken into custody by the police illegally on 16th June, 2003 in connection with the abduction of one girl, namely, Sarita Devi d/o Chhote Lal Madesia r/o Nawabganj, Bahraich. Superintendent of Police, Bahraich ordered for inquiry on the complaint of respondent no. 7 by appointing Circle Officer, Nanpara, District Bahraich, namely, Sukh Ram Bharti as Inquiry Officer on 15th October, 2003. In this connection, Special Secretary, Home Department, Government of U.P. also sought report from the Superintendent of Police, Bahraich in writing vide letter dated 31st October, 2003. Circle Officer, Nanpara inquired into the matter and submitted his report to the Superintendent of Police, Bahraich on 17th November, 2003 with the finding that the application of respondent no. 7 is not tenable as the trial of Case Crime No. 202 of 2003, under Section 8/20 of NDPS Act against Sarfaraz is pending before the competent court on the basis of charge sheet No. 62 dated 06.07.2003 and, therefore, no any investigation is required by C.B.C.I.D. Superintendent of Police vide letter dated 19.11.2003 also recommended that there is no necessity for the matter being inquired by the C.B.C.I.D.
State Government vide impugned Government Order No. 4488(1)/Chha Pu-14-60(35)/2003 dated 24.12.2003 directed to handover the papers of Case Crime No. 202 of 2003, under Section 8/20 NDPS Act, P.S. Nawabganj, Bahraich to C.B.C.I.D. and also ordered to investigate the case. In pursuance to the aforesaid Government Order, further investigation was conducted by Nihal Prasad-respondent no. 5, Inspector, C.B.C.I.D., who submitted final report on 10th February, 2005 in Case Crime No. 202 of 2003 (supra) and wrote a letter to the Station Officer of police station Nawabganj, District Bahraich to register F.I.R. against the petitioners under Section 342, 379, 427, 467, 468, 471 and 120-B I.P.C. and Section 8/20/29 NDPS Act. Similarly, Sector Officer, C.B.C.I.D., Gorakhpur also requested to the Superintendent of Police, Bahraich to direct the Station Officer, Nawabganj to lodge the F.I.R. against the petitioners. Thereafter, Superintendent of Police, Bahraich ordered for lodging of the F.I.R. against the petitioners, which was registered as Case Crime No. 67 of 2005 under Sections 342, 379, 427, 467, 468, 471 and 120B IPC and Sections 8/20/29 of NDPS Act, P.S. Nawabganj, District Bahraich on 19th February, 2005 against six persons (petitioners herein).
Hence, this petition.
Submission of Shri L.P. Mishra, learned counsel for the petitioners is that the petitioners, in discharge of their duties as police personnels, on 18th June, 2003 arrested one Sarfaraz Khan s/o Izhar Khan with one kilogram ''Charas' and also prepared the recovery memo. On the basis of the said recovery memo, F.I.R. bearing Case Crime No. 202 of 2003 under Section 8/20 of NDPS Act, P.S. Nawabganj, District Bahraich was registered against the Sarfaraz Khan. He further submitted that statements of the witnesses were recorded and after completion of the investigation, Charge Sheet No. 62 of 2003 was prepared on 6th July, 2003 and submitted before the court concerned. Learned counsel for the petitioners also submitted that the cognizance on the aforesaid charge sheet was also taken by the competent court on 28th July, 2003.
Learned counsel for the petitioners submitted that Sarfaraz Khan s/o Intezar Khan, who is a permanent resident of 95/35, Pench Bagh, Kanpur Nagar was arrested on 18th June, 2003 at 9.00 p.m. at village Sagar Gaon, Tiraha Bandha (Nepal border) with one kilogram illicit ''Charas' from his possession. He further submitted that when Sarfaraz Khan was arrested and charge sheeted then respondent no. 7-Izhar Khan, who is the father of the accused, started making frivolous applications to various authorities with the allegation that his son was arrested by the police illegally on 16th June, 2003 in connection with the abduction of one girl Sarita Devi d/o Chote Lal Madesia r/o Nawabganj, Bahraich. Learned counsel for the petitioners further submitted that the Superintendent of Police, Bahraich had ordered for the matter being inquired in regard to the allegations made by respondent no. 7 by appointing Circle Officer, Nanpara, District Bahraich, namely, Sukh Ram Bharti as Inquiry Officer on 15th October, 2003. Circle Officer, Nanpara inquired into the matter and submitted his report to the Superintendent of Police, Bahraich on 17th November, 2003 with the clear finding that the application of respondent no. 7 is not tenable. The Inquiry Officer also recommended that since the trial is pending before the competent court, therefore, no investigation in the matter is required by the C.B.C.I.D. Learned counsel for the petitioners further submitted that the Circle Officer, Nanpara before submitting the report dated 17.11.2003 had taken into consideration the telegram of one Riyazuddin, who is the real brother of respondent no. 7, which was sent on 18th June, 2003 at 10.15 p.m., i.e., after 1 hour and 15 minutes of the arrest of the accused Sarfaraz Khan. The Inquiry Officer also noted in his report that the said telegram was sent by Riyazuddin r/o 95/35, Pench Bagh, Kanpur Nagar and not from Bahraich. Learned counsel for the petitioners made emphasis that this circumstance is sufficient to show that Sarfaraz Khan was arrested on 18th June, 2003 at 9.00 p.m. and not on 16th June, 2003, as was alleged in the complaint made by respondent no. 7. He further submitted that the respondent no. 7 has alleged that Sarfaraz Khan was beaten brutally by petitioner no. 1, but in the medical report dated 19th June, 2003 of Sarfaraz Khan, who was medically examined at the time of admission into jail by the doctor, no injury was found on the body of the Sarfaraz Khan.
Another submission of the learned counsel for the petitioners is that from a perusal of the General Diary dated 16th June, 2003 of Police Station Nawabganj, the allegation that petitioner no. 1 arrested the accused Sarfaraz Khan on 16th June, 2003 itself becomes falsified, as it is clear that petitioner no. 1 was not accompanied by any of the other petitioners, who were the members of the police party at the time of arrest of Sarfaraz Khan on 18th June, 2003, but was accompanied by two other constables, namely, Bajrangi Yadav and Ravindra Nath Sharma and had visited the police out post Samtalia at the Nepal border.
Learned counsel for the petitioners further submitted that on the report sought by the State Government vide letter dated 31.10.2003, Superintendent of Police, Bahraich, on the basis of detail report submitted by the Circle Officer, Nanpara dated 17th November, 2003 in the matter, vide letter dated 19.11.2003 informed that the matter is pending before the competent court and also recommended that fresh investigation by C.B.C.I.D. is not required. However, all of sudden, impugned Government Order No. 4488(1)/Chha Pu-14-60(35) of 2003 dated 24th December, 2003 was issued by the State Government. In pursuance of the said Government Order dated 24.12.2003, respondent no. 5 was appointed as Investigating Officer by respondent no. 2 by means of order dated 13th January, 2004. Thereafter, vide letter dated 26th February, 2004, respondent no. 6 asked to Superintendent of Police, Bahraich for handing over the papers, case diary and other documents to the authorised Constable, in pursuance to which, Circle Officer, Nanpara sent a report dated 26th February, 2004 that all the papers are in the trial court. It has, thus, been submitted that respondent no. 5 only did the table work and prepared the statement of witnesses without any interaction with them and also prepared all the Parchas of the case diary in a fraudulent manner. However, on 8th April, 2004, respondent no. 5 moved an application before the Special Judge, Court No. 10, District Bahraich and informed that as per the order of the State Government, the matter had to be further investigated by the C.B.C.I.D. and prayed for staying of the trial of Case Crime No. 202 of 2003 (supra) till conclusion of the further investigation. Learned counsel for the petitioners also submitted that since the charge sheet dated 28th July, 2003 in Case Crime No. 202 of 2003 had already been submitted by petitioner no. 2 in the matter and the trial was also pending before the court of Sessions Judge, Bahraich after framing of charge against the Sarfaraz Khan, therefore, it was not open to the State Government to direct for further investigation by another Investigating Agency. Moreover, no permission of any kind was taken by the State Government from the competent court before issuance of the impugned order dated 24th December, 2003 and the same is wholly illegal and contrary to the provisions of the Code of Criminal Procedure and is liable to be quashed. He also submitted that the Order dated 24th December, 2003 is politically motivated.
It has also been submitted that the illegal investigation, which had started on the basis of the impugned Government Order dated 24th December, 2003, culminated into filing of the final report dated 10th February, 2005 in Case Crime No. 202 of 2003. It has next been submitted by the learned counsel for the petitioners that the F.I.R. bearing Case Crime No. 67 of 2005 under Sections 342, 379, 427, 467, 468, 471 and 120B IPC and Sections 8/20/29 of NDPS Act, P.S. Nawabganj, District Bahraich, which had been lodged against the petitioners at the behest of M.L.A. from Bahraich only with the intention to save Sarfaraz Khan, is also liable to be quashed with a direction to the trial court to proceed on the charge sheet filed by petitioner no. 2 in Case Crime No. 202 of 2003.
Shri L.P. Mishra summarised his argument by submitting that once an Investigating Officer submitted a charge sheet under Section 173 Cr.P.C. in a criminal case and the court of competent jurisdiction took cognizance of the offence so mentioned in the charge sheet, the State Government is not at all competent to pass an order directing for further investigation by another Investigating Agency. He further submitted that any police officer belonging to any Investigating Agency could, at best, submit a report of investigation to a Magistrate of competent jurisdiction, and cannot issue a direction to Officer-in-Charge of a police station to lodge an F.I.R. against its police officers.
Relying on the decision of the Hon'ble Supreme Court in the case of C.B.I. & Anr. Vs. Rajesh Gandhi & Anr., AIR 1997 SC 93 and also the decisions of this Court in the case of Sandeep Kumar Yadav Vs. State of U.P., 2006 Crl.L.J. 3316, Smt. Reena Vs. State of U.P. & Ors., 2013 (2) JIC 215 (All), Jeet Singh Vs. State of U.P. & Ors., 2013 (3) JIC 470 (All), Parvez Ahmad Vs. State of U.P. & Ors., 2011 (1) JIC 448 (All) and Sweta Pandey Vs. State of U.P. & Ors., 2015 (1) JIC 429 (All), Shri Mishra has submitted that during the pendency of trial, investigation of a case cannot be transferred to another Investigating Agency at the behest of an accused person. He also relied on the Government Orders dated 5th September, 1995 and 22nd October, 2014 to submit that the investigation cannot be transferred on the request of the accused.
Further, placing reliance on the decisions of the Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. A.S. Peter, (2008) 2 SCC 383, K. Chandrashekhar Vs. State of Kerala & Ors., (1998) 5 SCC 223, Ramachandran Vs. R. Udhayakumar & Ors., (2008) 5 SCC 413, Koneru Vara Prasada Rao. Vs. State of A.P. Rep. by Sub-Divisional Police Officer & Ors., 2007 CrLJ 2898 and Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors., (2013) 5 SCC 762, he submitted that investigation cannot be transferred to another Investigating Agency after submission of charge sheet and taking cognizance by the competent authority.
Shri Sachindra Pratap Singh, learned A.G.A. as well as Shri Qazi Vakil Ahmad and Shri Umesh Chandra Tripathi, Advocates appearing for the complainant have vehemently opposed the arguments of the learned counsel for the petitioners.
Learned counsel for the complainant, on the contrary, has placed a different narrative of the case. He submitted that respondent no. 7, namely, Izhar Ahmad Khan is a permanent resident of 95/35 Pench Bagh, P.S. Bekanganj, Kanpur Nagar, but was running a restaurant in Kasba Nawabganj, P.S. Nawabganj, District Bahraich in the name of Sarfaraz restaurant. His son, namely, Sarfaraz Khan also accompanied respondent no. 7 to run the said restaurant. He further submitted that adjacent to the restaurant, family of one Chote Lal Madesia was also residing, who has two daughters, namely, Pinki (elder) and Sarita (younger). Sarfaraz Khan and Sarita were liking each other and were in relation and they decided to get married on their own choice. The decision of marriage of her daughter with Sarfaraz Khan was strongly opposed by Chote Lal Madesia as well as his family members. As a result, Sarita left her parental house in the night of 10th June, 2003. Chote Lal Madesia approached to the Police Station Nawabganj to register the F.I.R., but the same was not registered, therefore, he approached to the then Housing and Urban Minister, U.P. Government, Lucknow and on his direction, a recommendatory letter was written by his subordinate official to the Superintendent of Police, Bahraich and requested for recovery of the daughter of Chote Lal Madesia. The copy of the aforesaid letter is appended as Annexure SA 1 to the supplementary affidavit dated 18th April, 2019. In pursuance to the aforesaid letter, the police took action and recovered Sarita along with Sarfaraz Khan on 16th June, 2003 at about 4 p.m. from the house of Abdul Karim, Mohalla Maholipura, City Bahraich in presence of a lot of persons and both were brought to the police station Nawabganj by the police. It has further been stated that during the arrest, from 16.06.2003 upto 18.06.2003, Sarfaraz Khan was brutally harassed and tortured by the police, as had been stated by respondent no. 7 in his complaint (Annexure 5 to the writ petition). Pressure was also made upon Sarita to change her stand, but since she was not ready for the same and had stood with Sarfaraz Khan, she was handed over to her father. Then the petitioners planted one kilogram Nepali ''Charas' on Sarfaraz Khan and registered F.I.R. bearing Case Crime No. 202 of 2003 under Section 8/20 NDPS Act. Learned counsel for respondent no. 7 also submitted that the uncle of Sarfaraz Khan, namely, Riyazuddin, as soon as came to know about the incident, sent a telegram to Superintendent of Police, Bahraich as well as Chief Minister, U.P. The said telegram is appended as Annexure 6 to the writ petition. Learned counsel for the respondent no. 7 also drew attention of the Court towards Annexure 3 to the supplementary affidavit dated 18.04.2019, which is a news item published in the daily news paper, Dainik Jagran on 25th June, 2003 and submitted that the recovery of Sarita along with Sarfaraz Khan was published in several news papers.
Learned counsel for the respondent no. 7 has next submitted that the police of P.S. Nawabganj had wrongly submitted charge sheet in Case Crime No. 202 of 2003 without considering the grievance of respondent no. 7. Thereafter, respondent no. 7 made a detail complaint to the National Human Rights Commission, New Delhi on 2nd August, 2003. (Annexure 4 to the supplementary affidavit), which was forwarded to the Superintendent of Police, Bahraich vide letter dated 5th October, 2003 and also asked for a report regarding the action taken within six weeks from the date of receipt of the letter. A copy of the letter dated 5th October, 2003 issued by Assistant Registrar (Law), National Human Rights Commission is appended as Annexure 5 to the supplementary affidavit. In pursuance to the aforesaid letter, Superintendent of Police directed to Circle Officer, Nanpara vide letter dated 15th October, 2003 to conduct inquiry in relation to the contents of the complaint dated 2nd August, 2003, in pursuance to which, Circle Officer, Nanpara, Bahraich conducted an inquiry and recorded the statements of complainant-respondent no. 7, Hazi Mohammad Ali, Mohd. Arif, Dr. Intezar. The aforesaid persons categorically stated that Sarfaraz Khan was running a hotel near Hajjin Masjid, Kasba Nawabganj, Bahraich since last several years and he fell into love with the daughter of Chote Lal Madesia. Learned counsel for the complainant further submitted that during the aforesaid inquiry, respondent no. 7 has also stated that Sarfaraz Khan had a telephone connection in his own name, which was installed in the restaurant bearing No. 262384. Chote Lal Madesia, in his statement, has categorically stated that Sarfaraz Khan is basically a resident of Kanpur Nagar and about six years back, he came to Kasba Nawabganj and started a hotel and since last two years, he had taken a rented accommodation from his cousin brother, namely Onkar s/o Auri Lal Madesia to run the hotel. Chote Lal Madesia also admitted in his statement that he has two daughters, Pinki as well as Sarita and Sarita was married near Nepalganj, Village Gureya, District Banke, Nepal and was living in her in-laws house since about one month. Learned counsel for respondent no. 7 submitted that the date of marriage of Sarita has not been mentioned by Chote Lal Madesia, therefore, it is clear that at the time of incident, i.e., on 16th June, 2003, she was not married at all. In fact, Sarita was married with Radheyshyam s/o Late Kaledeen r/o House No. 259, village Parwanigod, P.S. Motiganj, District Bahraich, which is evident from the Parivar register. Circle Officer, Nanpara, in his report dated 17th November, 2003 gave a finding that Sarfaraz Khan was running a restaurant near Hajjin Masjid, Kasba Nanpara, Bahraich and the family of Chote Lal Madesia was also living near to his restaurant.
It has been submitted by the learned counsel for respondent no. 7 that despite the aforesaid facts, Circle Officer, Nanpara, has reported that since the matter is sub-judice before the Court, therefore, there is no requirement of investigation by the C.B.C.I.D. The inquiry report of the Circle Officer dated 17th November, 2003 is annexed as Annexure 6 to the writ petition. He further submitted that Superintendent of Police, Bahraich also wrongly relying on the aforesaid inquiry report of Circle Officer wrote to the Special Secretary (Home) that the appears not requirement to conduct the inquiry by C.B.C.I.D.
Learned counsel for the respondent no. 7 has lastly submitted that the Government of U.P., after due consideration, decided to transfer the investigation of Case Crime No. 202 of 2003 with immediate effect to the C.B.C.I.D. vide impugned Government Order dated 24.12.2003. He further submitted that the aforesaid Government Order was not challenged before any court of law and the Investigating Officer of C.B.C.I.D., respondent no. 5 rightly took over the investigation and moved an application before the Special judge on 8th April, 2004 informing the court that the investigation of Case Crime No. 202 of 2003 has been transferred to C.B.C.I.D. and also requested to stay the further trial till conclusion of the investigation. It has further been submitted that after proper investigation, respondent no. 5 found that Sarfaraz Khan had not committed any offence and, thus, the final report dated 10th February, 2005 was submitted in Case Crime No. 202 of 2003 requesting the S.H.O., Nawabganj to register the F.I.R. against the petitioner. Thereafter, on 19th February, 2005, Case Crime No. 67 of 2005 under Sections 342, 379, 427, 467, 468, 471 and 120B I.P.C. and Section 8/20/29 NDPS Act, P.S. Nawabganj, District Bahraich was registered against the petitioners. It has further been submitted that Special Judge (SC/ST Act), Bahraich vide order dated 4th January, 2006 rejected the said final report ex parte, without hearing the C.B.C.I.D. or the counsel appearing for Sarfaraz Khan. Learned counsel for the respondent no. 7 has also submitted that a Criminal Misc. Case No. 1316 of 2006 under Section 482 Cr.P.C. was filed challenging the charge sheet, which was disposed of ex parte with the direction to file discharge application vide order dated 18th September, 2012. In pursuance to the order dated 18th December, 2012, a discharge application was moved before the trial court, which was rejected, in challenge to which, Criminal Revision No. 411 of 2013 was filed, which is pending before this Court and is also connected with this petition.
In support of his submission that there is no illegality in the aforesaid Government Order, learned counsel for the respondent no. 7 relied on the decision of the Hon'ble Apex Court in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors. (Criminal Appeal No. 1171 of 2016), Dharam Pal Vs. State of Haryana & Ors., 2016 (4) SCC 160, Chandra Babu @ Moses Vs. State through Inspector of Police & Ors. (Criminal Appeal No. 866 of 2015) and Zahira Habibulla H Sheikh & Anr. Vs. State of Gujrat & Ors. (Criminal Appeal No. 446-449 of 2004). He also submitted that Government Order dated 24.12.2003 is well within the purview of Section 3 of Police Act, 1861.
Learned counsel for the respondent no. 7 also submitted that the present petition is not maintainable in relation to the prayer no. 2, which for quashing of the F.I.R. bearing Case Crime No. 67 of 2005 which was lodged by Nihal Prasad, Inspector, C.B.C.I.D., Gorakhpur. He also submitted that there is no rider on the cross F.I.R., as in both the FI.Rs., there are two different versions and the first was lodged by petitioner no. 1 against Sarfaraz Khan and the second F.I.R. was lodged by Nihal Prasad, Inspector, C.B.C.I.D. after investigation of Case Crime No. 202 of 2003. He further submitted that learned counsel for the petitioners has only addressed in relation to the Government Order dated 24th December, 2003 by which the investigation of Case Crime No. 202 of 2003 was transferred by the State Government to C.B.C.I.D., but he has not addressed on the issue for quashing of the F.I.R. of Case Crime No. 67 of 2005.
We have considered the arguments advanced by learned counsel for the parties.
The main thrust of the argument advanced by the learned counsel for the petitioners has three folds, which are as under:
1. Investigation cannot be transferred on the request of the accused persons.
2. Once an Investigating Agency has submitted a police report/charge sheet under Section 173(2) Cr.P.C., and the court has taken the cognizance of the offence so mentioned in the charge sheet, the State Government is not at all competent to pass an order directing for furtherinvestigation by another Investigating Agency, without taking leave from the court concerned.
3. Any police officer belonging to any Investigating Agency could only submit a report of investigation to the court of competent jurisdiction and could not direct to the officer-in-charge of a police station to lodge F.I.R. against its police officers.
After going through the contents of pleadings as well as the written submissions, it is found that the impugned Government Order dated 24th December, 2003 was issued on the representation of the Izhar Khan, respondent no. 7, and the investigation of Case Crime No. 202 of 2003 was transferred to C.B.C.I.D. It is also evident from the record that F.I.R. as Case Crime No. 202 of 2003 under Section 8/20 NDPS Act, P.S. Nawabganj was registered on 18th June, 2003, on the written complaint of S.H.O., Parshu Ram Dohare (petitioner no. 1) alleging that during the course of duty, he was checking the luggage at village Sagar Gaon, Tiraha Bandha on 18th June, 2003. At about 9 p.m., one person, who was coming from Bandha to village Holia, when asked about his name after stopping him, informed that he was Sarfaraz Khan s/o Izhar Khan r/o 95/35 Pench Bagh, P.S. Begum Ganj, District Kanpur. Sarfaraz Khan was having one black polybag and after checking inside the said polybag, one kilogram Nepali ''Charas' was found.
However, on a perusal of Annexure 1 of the supplementary affidavit dated 18.04.2019 filed by respondent no. 7, it is evident that, as a matter of fact, the daughter of Chote Lal Madesia was missing and the subordinate official deployed with the then Minister of Housing & Urban Development wrote a letter dated 12th June, 2003 to Superintendent of Police, Bahraich for making effective efforts for recovery of girl and registering of the case. It is also evident from the record that a telegram was also sent by the brother of respondent no. 7, Riyazuddin on 18th June, 2003 to various authorities that his nephew Sarfaraz Khan had been taken into custody by the police deployed at P.S. Nawabganj, District Bahraich and he might be implicated in the fake case.
It is also evident from the record that in relation to the Case Crime No. 202 of 2003 (supra), Sub Inspector Shrinath Yadav was appointed as Investigating Officer, who prepared the charge sheet on 6th July, 2003, which was numbered as 62 of 2003 and filed it in the court below (Annexure 4 to the petition), on which the trial court took cognizance on 28th July 2003. In the meantime, respondent no. 7 and his family members were running from pillar to post and moving applications to several authorities including the Chairman, Human Rights Commission, New Delhi. The copy of the complaint is appended as Annexure 5 to the petition. It is also relevant to mention here that the said complaint was forwarded by the Human Rights Commission to the Superintendent of Police, Bahraich, who directed the inquiry to be conducted by Circle Officer, Nanpara. In the said inquiry report also, it is clearly emerged that Sarfaraz Khan was running a restaurant at Nawabganj. In the complaint of the respondent no. 7, it was the specific allegation that Sarfaraz Khan and Sarita d/o Chote Lal Madesia were in love, but since Chote Lal Madesia was not agreed with their relations, therefore, Sarfaraz Khan and Sarita started living at Mohalla Mahlipura, District Bahraich in the house of Abdul Karim. Due to interference of the subordinate official of the Minister of the State Government, on the initiative of Chote Lal Madesia, Sarfaraz Khan and Sarita were recovered on 16th March, 2003 at 4 p.m., which was evidenced by a large number of persons and were brought to the police station and the girl was handed over to her parents forcefully and Sarfaraz Khan was beaten brutally on the direction of petitioner no. 1 and thereafter he was booked in a false case by planting one kilogram Nepali ''Charas'.
Further, from the report dated 17th November, 2003 of the Circle Officer, Nanpara, it is evident that in their statements, Hazi Mohammad Ali, Mohd. Arif, Dr. Intezar r/o Nawabganj have specifically stated that it was the S.H.O. himself, who while interacting with them, informed that Sarfaraz Khan had enticed away the girl of Chote Lal Madesia. Chote Lal Madesia had also stated in his statement that Sarfaraz Khan was living in Kasba Nawabganj since last six years and was running a restaurant in the shop of his cousin brother since last two years. He had also admitted that the news item in relation to the Sarfaraz Khan and his daughter was published in the news paper and submitted that it was false news. Chote Lal Madesia had further stated that his elder daughter, Pinki was married four years ago, but when asked about his daughter Sarita, he stated that she was married at Nepal and was living in her in-laws house since one month.
Apparently, in the conclusion part of the inquiry, Circle Officer, Nanpara has not given any finding about the elopement of Sarfaraz Khan and Sarita, and only submitted that Sarfaraz Khan was arrested in Case Crime No. 202 of 2003 under Section 8/20 NDPS Act, in which charge sheet was filed and the trial is pending before the court concerned after taking cognizance and, therefore, there is no requirement for further investigation of the matter by the C.B.C.I.D.
It is also evident from the record that in pursuance of the Government Order dated 24.12.2003, the investigation was started by the Inspector, C.B.C.I.D., respondent no. 5 after giving the proper application to the court concerned on 8th April, 2004 and had submitted the final report in Case Crime No. 202 of 2003. Respondent no. 5, when, after proper investigation, found guilt of police officials, who implicated Sarfaraz Khan in a false case, requested the S.H.O. concerned to lodge the F.I.R. against them. Second Investigating Officer of Case Crime No. 202 of 2003, i.e., respondent no. 5 prepared Parcha no. 8 on 21.12.2004 with the finding that during investigation, it was found that the illicit ''Charas' was planted on Sarfaraz Khan and he was challaned on 18.06.2003 on the behest of petitioner no. 1, then Station House Officer. It has further been mentioned by respondent no. 5 in his letter dated 10.02.2005 that the final report/ charge sheet was sent for approval to the Director General of C.B.C.I.D., which has been approved for submitting in the court concerned. The letter dated 10.02.2005, for ready reference, is reproduced as under:
"5- vijk/k 'kk[kk ds lEiw.kZ foospuk ls ik;k x;k fd vfHk;qDr ljQjkt dLck uokcxat esa pk; ehBk uedhu dh nqdku djrk Fkk mlds nqdku ds cxy Jh NksVs yky egsf'k;k dh edku gS Jh NksVs yky dh o;Ld iq=h lfjrk mQZ fiadh ls izse lEcU/k gksus ds dkj.k ,d nwljs dh jtkeanh ls fnukad 10-6-03 dks dLck uokcxat NksMdj cgjkbp 'kgj essa fdjk;s ds edku ysdj crkSj ifr iRuh jg jgs Fks] yMdh ds firk NksVs yky dh f'kdk;r ij ,l0vks0 uokcxat e; QkslZ fnukad 16-6-03 dks cgjkbp 'kgj ls vfHk0 ljQjkt o yMdh dks muds lkeku lfgr idMdj Fkkuk uokcxat ykdj fnukad 18-6-03 rd cstk fgjklr esa j[ks rFkk yMdh dks tcju mlds ekrk firk dks lqiqnZ dj ljQjkt ds nwdku dh rksM QksM dj muds ikl ls QthZ pjl dh cjkenxh fn[kk;s gS vijk/k 'kk[kk dh foospuk ls vfHk0 ds fo:) /kkjk [email protected] ,u0Mh0ih0,l0 ,sDV dk vijk/k izekf.kr ugha ik;k x;kA vr% foospuk tfj, vfUre fjiksVZ lekIr dj foospuk dh dk;Zokgh ls U;k;ky; dks voxr djk;k tk jgk gS fd LFkkuh; iqfyl }kjk vfHk0 ljQjkt ds fo:) izsf"kr lh ,l vUrxZr /kkjk [email protected] ,u0Mh0ih0,l0 ,sDV ij fopkj.k xq.k nks"k ds vk/kkj ij fd;k tk;A foospuk lekIr dj nks"kh deZpkjh ds fo:) foHkkxh; dk;[email protected];ksx vafdr gsrq i=kpkj lacaf/kr dh gksxh layXud 1- jks0[kkl 1 odZ 2- ,Q0vkj0 [email protected] 1 odZ 3- vkns'k ,l0ih0lh0ch0lh0vkbZ0Mh0 Nk;kizfr 1 odZ g0 viBuh;
10-2-05"
Thereafter, the written complaint was given to the Station Officer, P.S. Nawabganj, District Bahraich for lodging of the F.I.R. against the accused officials on 10th February, 2005, but the same was not registered and only when the Sector Officer, C.B.C.I.D., Gorakhpur wrote a letter to the Superintendent of Police, Bahraich for lodging the F.I.R., then only the impugned F.I.R. as Case Crime No. 67 of 2005 was registered on 19th February, 2005 against the petitioners herein.
Now before dealing with the first issue that the investigation cannot be transferred on the request of an accused, it is requisite to first go through the U.P. Police Regulations. As per the provisions of para 107 of U.P. Police Regulations, Investigating Officer of a case is under an obligation to conduct the investigation to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt an evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully, if produced.
Para 107 of the U.P. Police Regulation is reproduced as under:
"107. An investigating officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. In every case he must use his own expert observations of the scene of the offence and of the general circumstances to check the evidence of witnesses, and in cases in which the culprits are unknown to determine the direction in which he shall look for them. He must study the methods of local offenders who are known to the police with a view to recognizing their handiwork, and he must be on his guard against accepting the suspicions of witness and complainants when they conflict with obvious inferences from facts. He must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt a evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject."
In the present case, the grievance of respondent no. 7 was that the police personnels arrested Sarfaraz along with the daughter of Chote Lal Madesia, namely, Sarita, on the basis of the letter of subordinate official of the Minster of the State Government and the girl was handed over to her parents forcefully. Thereafter, Sarfaraz was challaned under the provisions of Sections 8 and 20 of the NDPS Act by planting ''Charas'. Under the directions of Human Rights Commission given on the complaint of respondent no. 7, an inquiry was conducted by the Circle Officer, Nanpara. During the enquiry, statements of local residents of Nawabganj, place of incident, namely, Hazi Mohammad Ali, Mohd. Arif, Dr. Intezar were recorded. While interacting with them, they had categorically informed that they were called in the month of June by the S.O. and when they went to police station, S.O. asked them that Sarfaraz enticed away the girl of Chote Lal Madesia and also directed for cooperation in the recovery of girl and the arrest of Sarfaraz. However, in the conclusion part of the inquiry report, Circle Officer, Nanpara had not given any findings in relation to the ingredients of the complaint of respondent no. 7. The Investigating Officer had observed that Sarfaraz was arrested since illicit ''Charas' was recovered from him, as such, he was challaned in Case Crime No. 202 of 2003 (supra). Circle Officer, Nanpara also recommended in his report dated 17th November, 2003 that it is not needed to conduct any enquiry/investigation from the C.B.C.I.D., mentioning that the allegations levelled in the complaint of respondent no. 7 are incorrect.
While going through the judgments relied by the learned counsel for the petitioners in support of his submission that the accused person or his family members cannot request for transfer of investigation, viz., CBI Vs. Rajesh Gandhi (supra), Sandeep Kumar Yadav (supra), Smt. Reena (supra), Jeet Singh (supra), Parvez Ahmad (supra) and Shweta Pandey (supra), we find that though in these judgments, it has been observed that the accused person does not have the right to choose the Investigating Agency, but the issue, that if the accused has falsely been implicated by the police officials, then also he cannot request for the fair investigation, has not been dealt with. Therefore, the decisions of the aforesaid judgments are not applicable in the present case.
Learned counsel for the petitioners has also placed reliance on the Government Orders dated 5th September, 1995 and 22nd October, 2014 in support of his submission.
From a perusal of the Government Order dated 5th September, 1995, it is evident that the State Government has itself made it clear that, in case, it is found to be difficult to conduct impartial investigation by the local police, then the investigation can be transferred. In the present case, the allegations were levelled against the police personnels itself, who were posted in the concerned district and in such circumstances, Sarfaraz and his family members, who are the victims, had requested for transfer of the investigation.
A Constitutional Bench of the Hon'ble Supreme Court in the case of State of West Bengal & Ors. Vs. Committee for Protection of Democratic Rights, West Bengal & Ors., (2010) 3 SCC 571 has explicitly held that the victim also has the right to pray for transfer of the investigation and the State has a duty to ensure the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers.
Relevant portion of the judgment is quoted hereunder:
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(emphasized by us) In view of aforesaid facts and circumstances, constitutional right of an accused cannot be curtailed. As the specific allegations of sending the Sarfaraz to jail in the false case by planting the ''Charas', were levelled against the petitioners, who were the police personnels, in such circumstances, even the accused person, i.e., Sarfaraz or his family members are having all the rights to pray for fair investigation and the ''fair investigation' includes the ingredients for transfer of the investigation and there is no illegality in transferring the investigation on the request of the family members of the accused, who were being the victim of the incident. Hence, the first argument of the learned counsel for the petitioners has no legs to stand and is hereby rejected.
On the point of second argument, it is found that the police of State of U.P. is governed by the Police Act, 1861, because it has not enacted any Police Act of its own. In Section 1 of the Act, the word 'Police' is defined to include all persons who shall be enrolled under the Act and the words ''general police districts' are defined to embrace any presidency, State or place, or any part of any presidency, State or place, in which the Act shall be ordered to take effect. Section 3 of the Indian Police Act provides as under:
"3. The superintendence of the police throughout a general police-district shall vest in and, shall be exercised by the State Government to which such district is subordinate; and except as authorised under the provisions of this Act, no person, officer or Court shall be empowered by the State Government to supersede or control any police functionary."
The general power of superintendence as conferred by Section 3 of the Act 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.
In terms of Section 3 of the Police Act, 1861 when read with Section 36 of the Code of Criminal Procedure, the State has ultimate supervisory jurisdiction over the investigation of an offence and if it intends to hand over further investigation to other Investigating Agency, even after filing of the charge sheet, it may do so. An order of further investigation in terms of Section 173(8) of the Code by the State in exercise of its jurisdiction under Section 36 of the Code read with Section 3 of the Police Act stands good.
Sections 36 and 173(8) Cr.P.C. read as under:
"36. Powers of superior officers of police.--Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."
"173. Report of police officer on completion of investigation.--
(1) ..... ...... ......
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
Hon'ble Supreme Court in the case of Amrutbhai Shambhubhai Patel (supra) has held that the Investigating Agency/Officer is authorised to make further investigation in exercise of its statutory jurisdiction under Section 173(8) Cr.P.C. after informing the court and obtaining its approval at any stage of proceeding.
In such circumstances, we have no hesitation in holding that once an Investigating Agency has submitted a police report/charge sheet under Section 173(2) Cr.P.C. and the court has taken cognizance of the offence, the State Government is competent enough to pass an order directing for further investigation by another Investigating Officer without taking leave from the court concerned, but it is the duty of the Investigating officer to inform the Court before going ahead in pursuance of the order of the State Government for further investigation. In the present case, the court was duly informed by the respondent no. 5, Nihal Prasad-Investigating Officer, before starting further investigation. Thus, the decisions relied by learned counsel for the petitioners on this point are not applicable in the present case and there is no illegality in the order passed by the State Government or in conducting the further investigation by respondent no. 5 in pursuance of the impugned Government Order dated 24.12.2003. Second argument also does not have any force and is hereby rejected.
In relation to the third question that whether a police officer belonging to any Investigating Agency can lodge any other F.I.R. on the basis of the conclusion of the investigation of a crime, it has been brought into the notice of the Court by the learned A.G.A., Shri Sachindra Pratap Singh that the Director General of Police, U.P. issued a Circular being D.G. 21/16 dated 26.04.2016 that in relation to one incident, multiple F.I.R.s cannot be registered, but, in case, any cross version is found, then fresh F.I.R. has to be lodged and there is no illegality in the same.
In the present case, in pursuance of the Government Order dated 24.12.2003, further investigation was conducted by respondent no. 5, Investigating Officer, C.B.C.I.D. in Case Crime no. 202 of 2003 (supra), who found that, as a matter of fact, Sarfaraz and Sarita went away against the wishes of her father, Chote Lal Madesia, as a result, on the interference of official of one Minster of the State Government, Sarfaraz and Sarita were recovered and Sarita was handed over to her father and Sarfaraz was illegally challaned by planting 'Charas' in the aforesaid case and police report was submitted in the court below. In these circumstances, a request was made by respondent no. 5 for lodging F.I.R. against the petitioners, as a result of which, the F.I.R. as Case Crime No. 67 of 2005, P.S. Nawabganj, District Bahraich under Sections 342, 379, 427, 467, 468, 471, 120-B IPC and U/S 8/20/29 NDPS Act, Police Station Nawabganj, District Bahraich was lodged and there is no illegality in lodging the F.I.R. as Case Crime No. 67 of 2005 (supra) against the petitioners.
For the facts and discussions made above, writ petition has no merit and is accordingly, dismissed. Consequences to follow.
September 30 ,2019 VKS