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SANDEEP KUMAR YADAV versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Sandeep Kumar Yadav v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 5382 of 2006 [2007] RD-AH 1101 (17 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 48)

Crl. Misc. Writ Petition No. 5382    of 2006

Sandeep Kumar Yadav Vs. State of U.P. and others  

........................

Hon'ble Imtiyaz Murtaza, J.

Hon'ble Amar Saran, J.

We have heard learned Govt. Advocate Sri V.S. Misra and learned AGA Sri A.K. Sand and have perused the counter affidavit dated 15.1.2007 filed on behalf of the Home Secretary, U.P. and the counter affidavit dated 16.1.2007 sworn by SP,  CBCID, Union of India on behalf of DG (CBCID), Lucknow. We have also perused the report dated 16.1.2007 submitted by the Registrar General.

At the outset we must express our pain and anguish at the desultory compliance of our orders by the State Government. In paragraph 10 of the counter affidavit filed on behalf of the Home Secretary it is mentioned that out of 1201 accused persons involved in 276 cases sanctions are required from the Union of India in cases relating to 225 accused persons and sanctions are needed from the State Home Department in respect of 976 accused persons who belong to the police force or other public service. Out of the said 976 accused persons no case for grant of sanction was found against three accused persons and sanction order was only issued against 9 accused persons. This is a shocking figure, considering that by our orders dated 15.9.2006 we had directed that at least 2/3rd of the total number of wanted accused should be arrested within 8 weeks. Again by our order dated 16.11.2006 we had directed the Principal Secretary (Home) to ensure that within 2 months the applications for sanction should be disposed of at the appropriate level by the State Government or the department concerned, (as applicable), but to our dismay we note that only in the case of 12 persons sanction matters have been disposed of after 16.11.2006, which is less than 1 % of the total number of 1201 accused persons whose sanctions are sought. It is mentioned in paragraph 8 of the counter affidavit filed by the CBCID that out of  1559 accused persons who could not be arrested prior to 15.11.2006, 243 persons have either been arrested or surrendered or had been accounted for otherwise and out of the remaining 1316 persons the principal reason why a large number of persons could not be arrested is because of want of sanction from the State Government or the concerned department. From this appears that either the State is indifferent to the fact whether charge-sheeted public servants be arrested or it is colluding with them, which casts a grave adverse reflection in the intention of the State to maintain law and order and to see that action is taken against prima facie culpable public servants.

We therefore have no option now but to direct the Principal Secretary (Home), U.P. to be personally present before this Court to submit his explanation along with an affidavit for this inexcusable laxity in the matter. We also direct the Principal Secretary (Home) to inform this Court about the efforts made to obtain sanctions in the said cases after our orders of today and also to give us the break-up of all pending cases where the matters have been referred for sanction for periods of 5 years and more, 1 to 5 years and less than 1 year (which have not been furnished in the State's counter-affidavit dated 15.1.07).

We also direct that the Union of India should also be given notice of this order through Dr. Ashok Nigam, Addl. Solicitor General, and the State Government should provide the list of the cases of 225 accused persons where the sanctions are required from the Union of India. We direct that the Union of India to dispose of the pending matters as far as possible where sanctions are sought by the next date of listing (20.2.07) , or at least to consider the cases for sanction of 2/3rd or more of the accused persons whose sanction is required at their level by the next date, and also to provide a break-up of the existing pending of cases for sanction for periods of 5 years and more, 1 to 5 years, and less than one year.

We also expect that the CBCID shall take stringent measures to conclude the investigations and to effect the arrests of the concerned accused persons who remain to be arrested or in whose  cases investigations are still pending, as per our earlier orders dated 24.5.06, 21.8.06 and 16.11.06 in the cases in which there is no legal impediment. The progress report shall be submitted by the DGP(CBCID) about the conclusion of investigations and arrests and the remaining impediments on the next date of listing.

We are also not satisfied with the circular letters dated 10.1.2007 and 12.1.2007 (annexures SA1 and SA 2) issued by the State Government to the SSPs/SPs of all districts as the circular dated 10.1.2007 unlike the order of the DG(CBCID) dated 8.9.2006 merely refers to the Government Order dated 5.9.1995 and the letter of the DG dated 8.9.2006 without emphasizing the ingredients or mentioning the criteria for selecting appropriate  cases for transfer of investigation to the CB CID, as have been clarified in our orders dated 16.11.06, 15.9.06, 21.8.06 and 24.5.06 that in accordance with the D.B. Decisions of this Court in Smt. Ramwati and others v. State of U.P, 2001 (42) ACC 751, Bhopal and others v State and others 1997 (34) ACC 371 etc. that based on relevant Government orders, transfer of investigation to the CBCID should only be made if (1) the crime is so complicated and involved that is not possible for the local police to properly investigate the crime, (2) the crime has international or inter-state or inter divisional ramifications, (3) the local conditions are such due to which it has become difficult for the local civil police to investigate the case fairly, and (4) such conditions have arisen due to which a doubt is created in the mind of the general public that the local police is not investigating the matter fairly. Also the circular should emphasize that transfers of investigations from the local police to the CBCID are not to be effected in a routine manner simply to please political functionaries by the district level officers mechanically giving ''No Objection' opinions but that the transfer are only to be effected after the district level competent officers exercises their independent mind and give reasons in accordance with Government Order dated 5.9.2005 and the DGP's circular dated 8.9.2006, and as clearly mandated in the present and abovementioned earlier orders.

The ingredients of the said Government letter dated 5.9.2005 and DGP's circular letter dated 8.9.06 were not mentioned in the circular dated 10.1.2007 or annexed with the circular. Instead the said circular seems to suggest that the State Government was interested only in paper compliance and no real compliance of our orders and they appear to be extremely interested in retaining powers for arbitrarily transferring cases to CBCID as per their own ipse dixit and uncanalized discretion even though the transfers could not be effected under the criteria laid down for such transfers. The circular letter dated 12.1.2007 which contains a proforma  prepared by the Home Secretary for the DGP simply leaves out two small  spaces where the criteria as per the G.O. dated 5.9.1995 may be mentioned but actually appears to be more a circular which could facilitate transfers at the sweet-will and arbitrary ipse dixit of the State Government. This circular and proforma annexed therewith shows that the State Government is not interested in complying with our orders in letter and spirit, that transfers from the local police to the CB CID should not be done in a routine manner, only because the State government wants to prevent arrests of its political allies with a criminal record.

The report of the Registrar General mentions that so far as 14 cases mentioned at Sl. Nos. 92 to 99, 101, 102 and 105 to 108 mentioned in  praroop (proforma)-1 relating to the proceedings in which stay orders have been obtained from the concerned courts, the particulars have not been supplied by the DG(CBCID) and the Principal Secretary (Home). We accordingly direct the DG(CBCID) to supply better particulars as mentioned in the report of the Registrar General dated 16.1.2007 within 3 weeks. A copy of the report of the Registrar General dated 16.1.2007 may also be handed over to the learned Government Advocate within 72 hours for compliance of this order. The Registrar General has pointed out in his report dated 16.1.2007 that the Hon'ble the Chief Justice has approved our suggestion for listing of 131 cases as per the enclosed list furnished by the CBCID and 41 of the said cases have already been disposed of. We direct that the rest of the cases (including the cases whose lists containing correct particulars will be supplied by the DG (CBCID) may also be listed as far as possible before the next date of listing of this case and efforts be made for their disposal  and a report be submitted by the Registrar General in respect of these matters on the next date of listing.

In connected Crl. Misc. Writ Petition No. 5523 of 2006: Singara Singh Vs. State of U.P., it was argued by the learned AGA that a petition had been filed which sought to stay the effect and operation of the order dated 25.1.2006 (annexure 6 to the writ petition) passed by the Special Secretary (Home). It was pointed out that even though in the said case the investigation had been transferred from the local police to the CBCID by an order dated 25.1.2006 because Smt. Balwinder Kaur, wife of deceased Balwinder Singh, had given an application that she was an eye-witness of the incident and had named the petitioner, Singara Singh, as an accused in her application, but the police had wrongly implicated another accused Puran Singh and as a result of the filing of the writ petition in this Court even though no interim order was passed in favour of the petitioner, Singara Singh, the Magistrate had not granted permission to the CBCID to investigate the matter, consequently the investigations, arrests and further progress in the cases against both Puran Singh and Singara Singh appear to have been restrained. We accordingly direct that in this case as there is no stay order staying the investigation of the CBCID which was ordered by the State Government, not at the instance of the accused but at the instance of the wife of the  deceased who claimed to be  an eye-witness, the Magistrate concerned may direct the CBCID to take up the investigation and conclude the same as far as possible within 2 months. Sri Ramendra Asthana, learned counsel for the petitioner, Singara Singh, chose to remain absent at the time of hearing of this petition today even though the case was specifically listed. The progress report of this investigation to be conducted by the CBCID should also be submitted to this Court on the next date of listing.

A copy of this order may be given to the learned AGA and the concerned parties within 72 hours for necessary compliance.

Registrar General shall also ensure compliance of this order.  

Dated: 17.1.2007/sks.            

AS-123/sks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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