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Reserved
AFR
Writ Petition No. 751 (MB) 2010
Shiv Chandra Pandey, &
Narendra Prasad Misra vs. State of U.P. & others.
Hon'ble A. Mateen, J
Hon'ble Y.K.Sangal,J.
(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
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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
3domain 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