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Omendra Singh v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. 8102 of 2005 [2005] RD-AH 3295 (21 September 2005)


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Court No.21

Criminal Misc.Writ Petition No.8102 of 2005

Omendra Singh v. State of U.P. and others


Criminal Misc.Writ Petition No. 7278 of 2005

Madhav Ram v. State of U.P. and others.


Hon'ble S.S.Kulshrestha, J

Hon'ble K.N.Ojha, J

Heard and also perused the materials on record.

Both the petitions are taken together as they enjoin the identical question of law and fact and have been brought against the one and same order dated 11.6.2005 passed by the State Government transferring investigation of Case Crime No. 10 of 2005 under section 147/148/149/307/302 IPC and also under section 3(2) V S.C./S.T. Act and Case Crime No. 10-A of 2005 under section 147/148/149/307 IPC, Police Station Alapur, district Budaun from CB-CID to local Police.

It is said that the State Government arbitrarily exercised powers for transferring back the investigation from CB-CID to the local police under the influence of Sri Banwari Singh Yadav, Minister of State and also on the ground that the accused have their alignment with that of the ruling party/samajwadi party. Further it is said that the CB-CID was making effective investigation and there was no occasion for the State Government to have transferred back the investigation, that too on the request of the accused. That would mean that the State is encouraging investigation to be made by the Agency of the choice of the accused.  In that background the allegations made in the petition may also be referred.

Incident for which both the reports at Case Crime No. 10 of 2005 and 10A of 2005 were registered at Police Station Alapur, district Budaun had taken place on 8.1.05. In that incident Sri Arvind and Ashok sustained fatal injuries and they succumbed to their injuries. For that report was registered at Case Crime No. 10 of 2005, postmortem was also conducted on 9.1.05 .One Sri Omendra Pratap Singh also sustained injuries and he was also medically examined. It was a broad day light incident where two persons died and ample evidence was collected but with a view to thwart a fair investigation a counter report was also got registered by the accused persons at Case Crime No. 10 A of 2005 at that Police Station. The police was also not making fair and effective investigation because the accused have long criminal history and are associated with the ruling party. There was no possibility of having fair investigation from local Police.  

Smt. Neelam wife of Sri Omendra Pratap Singh moved an application to the State Government for transferring of the investigation to CB-CID for fair and expeditious investigation. The State Government after having the report from the concerned SSP, finding it reasonable and justified, transferred the investigation of both the cases to CB-CID. It is further said that CB-CID was making effective investigation but at the instance of the accused an application was moved for re-transferring the investigation to the local police and under the pressure of Sri Banwari Singh Yadav, Minister of State this investigation was transferred back to the local police.

However, from the side of the State counter affidavit has been filed in both the cases in which it has been stated that due procedure was adopted by the State Government. Director CB-CID was asked to submit his report but despite sufficient notice that report has not come and the State has transferred back the investigation to the local police.

We have gone through the impugned order. There is no denial of the fact that at the instance of the accused the investigation was transferred to the local police. It may further be mentioned that once the State Government feels satisfied for not having fair investigation by CB-CID it may transfer investigation but representation of the accused would not be the ground for transferring the investigation back to the local police. Accused cannot dictate for the transfer of investigation to the Agency of their choice. Reliance may be placed in the case of Chandravir and others v. State of U.P. and others, ACC 1995(32) page 683.

In order to appreciate the salient points raised in this case it shall be necessary to examine the statutory provisions made with regard to the investigation and taking of the cognizance. Section 2(h) of the Code defines "investigation" and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. It ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a chargesheet under section 173 [See State of U.P. v. Bhagwant Kishore Joshi AIR 1964 SC 221 (Para 8) and H.N. Rishbud and Inder Singh v. The State of Delhi 1955 (1) SCR 1150 at 1157].

  Having regards to the facts and circumstances of the case the impugned order No. MM11/6: -Pu-12-05-9 (4) D/05 dated 11th June, 2005 is hereby quashed. The CB-CID will proceed with the investigation and submit its report expeditiously. If the evidence is appearing against one or other accused the CB-CID shall be free to make the arrest.

The petition is disposed of accordingly.

Dated: 21.9.2005



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