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Deota Maurya v. State Of U.P And Others - CRIMINAL MISC. WRIT PETITION No. 1096 of 2004 [2006] RD-AH 14768 (30 August 2006)


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Crl. Misc. Writ Petition No. 1096 of 2004

Hon'ble Sushil Harkauli, J.

Hon'ble G.P. Srivastva, J.

The complaint of the petitioner contained in Annexure 1 to this writ petition is addressed to the District Magistrate and Superintendent of Police, Basti. The abduction of one Shiv Shankar alias Balai aged about 13 years son of Devta Maurya on 10.9.2003 is merely a background. The real offence is said to have been committed on 21.6.2004 where the accused of the abduction case in collusion with the police are said to have attacked the house of the complainant Devta Maurya and committed rioting and looting on account of their being annoyed because of lodging of the criminal case of abduction.

The grievance of the petitioner is that this complaint has not been heeded to either by the District Magistrate or by the Superintendent of Police of Basti. Accordingly, the petitioner has prayed for protection of himself and his family as also registration of criminal case with regard to the incident dated 26.1.2004 and then investigation by the C.B.I. Counter affidavits were called for in this case.

On 1.8.2006, it was found that the two counter affidavits filed by the State two years ago merely state that the investigation is going on and, therefore, a supplementary affidavit was required either by the Station Officer or by the Investigating Officer for the present status of the investigation.

In response to that order dated 1.8.2006, an affidavit of one Bhim Nath Rai posted as Sub-Inspector, P.S. Bakhira, Sant Kabir Nagar wrongly mentioned as Sant Ravi Das Nagar, sworn on 21.8.2006 has been filed.

In the affidavit, Bhim Nath Rai says in the first paragraph that he has been deputed to file counter affidavit. It is not stated by whom Bhim Nath Rai has been deputed. Further, if he has been deputed to file counter affidavit, it is not clear as to why he has filed an affidavit and not a counter affidavit, because the affidavit dated 21.8.2006 does not say that it is a counter affidavit.

Further, the affidavit appears to be deliberate attempt to cause confusion inasmuch as it refers to a charge sheet and an acquital of the accused in th criminal case regarding the abduction of Shiv Shankar dated 10.9.2003. Nothing has been said with regard to the incident of 21.6.2004.

It is obvious that when the allegations are against the civil police, the investigation can not be entrusted to the same department.

For the same reasons, we are of the opinion that the argument of the learned AGA that the petitioner has a remedy under section 156(3) Cr. P.C., is without substance. It would not be proper for the Magistrate to send the petitioner back to the same police station, officers of which station are the accused in the complaint of the petitioner.

In the circumstances, we direct the respondent No. 1 i.e., the Home Secretary to ensure within a month that the complaint of the petitioner with regard to the incident dated 26.1.2004 is immediately registered and investigated by the C.B.,C.I.D., within a time frame which the Home Secretary considers reasonable in the facts of the present case. The direction to the same will be issued by the Home Secretary within one month of the date on which certified copy of this order is presented before him either personally or by registered post.

We also direct the District Magistrate, Basti, to get the matter enquired into by a responsible officer other than the police officers as to whether the petitioner and his family requires protection in view of the background pointed by the petitioner and, if protection is called for despite lapse of so much time, the District Magistrate will issue appropriate directions for such protection as may be called for and for such duration as may be considered necessary by the District Magistrate in the light of the fact found by him.

The writ petition is disposed of with the aforesaid directions.

Dated: 30.8.2006



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