Kushlendra Pal Singh vs State of U.P. and Others

M.C. Agarwal, J.—By this petition Under Article 226 of the Constitution of India, the Petitioner seeks the following relief�s:

(i) to issue a writ, order or direction in the nature of certiorari, calling for record of the case and quash the impugned order of Respondent No. 1 dated 22.4.1998 (Annexure-5).

(ii) to issue a writ, order or direction in the nature of mandamus, commanding the Respondents, not to enforce the impugned order of Respondent No. 1 dated 2 2.4.1998 (Annexure-5) against the Petitioner on any ground and in any manner whatsoever.

(iii) to issue an interim mandamus, staying operation of the impugned order of Respondent No. 1 dated 22.4.1998 . (Annexure-5) pending decision of the writ petition."

Counter and rejoinder-affidavits have been exchanged.

We have heard Sri B.B. Paul, learned Counsel for the Petitioner, the learned A.G.A., for Respondent Nos. 1, 3, 6 and 7 and Sri J.S. Sengar, learned Counsel for Shiv Raj Singh, Respondent No. 5.

An F.I.R. was lodged at police station Kotwali, Mainpuri on 6.9.1996 alleging that the Petitioner along with several others had waylaid the first informant and his companions Gajendra Singh, Hem Singh Yadav, Mahesh Singh Yadav, Ashok Parihar, Naresh Dixit, Devendra Singh, Santosh Gupta, and informant''s brother Santosh who were traveling in a jeep and started indiscriminate firing with their firearms, i.e., rifles and guns declaring that they will roast them today. The first informant Surendra Singh, Santosh Gupta, Santosh Singh and Devendra Singh managed to escape while other persons were done to death by the aforesaid group of persons. The present Petitioner is one of them. The case was investigated by the local police. Subsequently an order dated 17.10.1996, a copy of which is Annexure-4 to the writ petition, was made by the Government that the case be investigated by the crime branch of C.I.D. The impugned order dated 22.4.1998 was issued stating that the Government has on a consideration of the matter decided that the investigation be withdrawn from the C.B.C.I.D. and transferred to the local civil police. It is this subsequent order that is challenged in the present writ petition. It is alleged that the impugned order is erroneous, arbitrary, discriminatory, male fide, perverse and without jurisdiction and violates Articles 14, 21 and 300A of the Constitution of India and the principles of natural justice and fair play inasmuch as no opportunity of hearing was given to the Petitioner before making the said order. It is also claimed that the impugned order has been passed at the instance of Shiv Raj Singh Respondent No. 5 who is a former M.L.A. from Bhogaon Constituency and is the real brother of the first informant Surendra Singh Respondent No. 3.

In the counter-affidavit filed on behalf of Respondent Nos. 2 and 6. namely, the Station Officer, police station Bhogaon and the S.S.P., Mainpuri (the counter-affidavit wrongly mentions serial number of Respondent No. 6 as Respondent No. 5). it has been stated that the case was investigated by the local police and a charge-sheet has been submitted on 27.9.1996 and the concerned Magistrate has taken cognizance of the case on 23.5.1998. It is stated in paragraph 7 of the said counter-affidavit that the order dated 17.10.1996 transferring the investigation to the C.B.C.I.D. was passed on initiation of the present Petitioner who was a strong supporter of an important leader who was then the Defense Minister at the Centre and the Petitioner himself was the sitting President of Samajwadi Party at Bewar district Mainpuri. It is stated that the C.B.C.I.D. did nothing in the matter and the local police has already submitted a charge-sheet against the Petitioner and other persons. According to the Respondents, the State Government is vested with the power to transfer the investigation to any agency which is considered fit in the facts and circumstances to meet the ends of justice and that the investigation seems to have been re-transferred to the local police because it had already concluded the investigation and the C.B.C.I.D. did nothing.

In the rejoinder-affidavit filed on behalf of the Petitioner, it is admitted that a charge-sheet has already been filed before the concerned Magistrate on 23.5.1998 on which the cognizance has been taken. The Petitioner has filed a copy of an order dated 16.6.1998 passed by the learned Magistrate in which the aforesaid fact is stated.

Sri B.B. Paul, learned Counsel for the Petitioner, contended that the State Government had no power to re-transfer the case from the C.B.C.I.D. to the local police. He places reliance on a judgment of the Hon''ble Supreme Court in K. Chandrasekhar Vs. The State of Kerala and Others, , in which certain persons were accused of offences under the Indian Officials Secrets Act, 1923, and the investigation was entrusted to the Central Bureau of Investigation under the Delhi Special Police Establishment Act, 1944 with the consent of the State Government of Kerala. Subsequently, the Government of Kerala withdrew the consent and the question was whether the State Government could do so. The Hon''ble Supreme Court held that having once given the consent, the State of Kerala could not withdraw the same. On the analogy of this judgment, it is contended by Sri Paul that the State Government having once entrusted the investigation to the C.B.C.I.D. could not divest it from the power of investigation and confer the same on the local police. In our view, this judgment cannot be applied to the facts of the present case. That was a case under the Officials Secrets Act and the investigation was entrusted to the C.B.I., a Central Agency, in accordance with the statutory provision contained in Section 6 of the Delhi Special Police Establishment Act, 1944. After the matter was entrusted to the C.B.I., the State Government was divested of the power of supervision over the investigation. Further a case under Officials Secrets Act could be instituted only by a complaint filed by or at the instance of the Central Government. It was for these reasons that the Hon''ble Supreme Court held that the State Government has no jurisdiction to cancel or to withdraw the consent given u/s 6 which was not reversible.

u/s 3 of the Police Act, 1861, the State Government has the power of superintendence over the police. The said section reads as under:

"3. Superintendence in the State Government.-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 authorized 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 question of the nature of the power conferred by Section 3 of the said Act came up for consideration before the Hon''ble Supreme Court in the State of Bihar and Another Vs. J.A.C. Saldanha and Others, and the Hon''ble Supreme Court observed as under:

"16. The general power of superintendence as conferred by Section 3 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. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. Such is the scope and ambit of power conferred by Section 3 on the State Government of superintendence over the entire police force of the State."

In Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, , it has been held that the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice and that the accused cannot have a say in who should investigate the offences he is charged with. It was also held that there is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification.

On behalf of the Petitioner, reliance was also placed on Ram Lal Narang Vs. State (Delhi Administration), . There is nothing in this case that deals with the type of controversy raised by the present Petitioner and it was held that inspire of a Magistrate having taken cognizance of the offence upon a police report submitted u/s 173 of the Code, the right of the police to further investigate the matter is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There is, thus nothing in this judgment that helps the Petitioner.

As stated above, admittedly a charge-sheet has already been submitted to the Court concerned and cognizance of the offence has been taken. The impugned order dated 22.4.1998 entrusting the investigation to the civil police was within the authority of the State Government conferred on it by Section 3 of the Police Act.

Although the allegations of male fides have been made against Respondent No. 1 but there are no averments which may show the existence of male fides. Simply because the Respondent No. 5 Shiv Raj Singh sent a letter to the Government and the impugned order makes a reference to that letter, it cannot be assumed that the Government acted on irrelevant considerations amounting to male fides.

For the above reasons, we find no force in this writ petition and the same is hereby dismissed. Parties will, however, bear their own costs.