Mahant Tiwari and Another vs State of U.P.

J.C. Gupta and S.K. Agarwal, JJ.—We have heard the Learned Counsel for the petitioners, Sri A.B. L. Gaur, and the learned A.G.A. for the State.

By this petition, the Learned Counsel for the petitioners want us to quash the order of the Government of U.P. dated 20.3.1998 on the grounds, inter alia, that the order dated 20.3.1998 is a non-speaking order and no reasons have been assigned for canceling the order dated 18.11.1997, that cancellation of the earlier order dated 18.11.1997 by the impugned order dated 20.3.1998 is malicious, and thirdly, that the impugned order dated 20.3.1998 has been passed without any application of mind and under the political influence of Sri Markandey Chandra, who is a Minister in Government of U.P. In order to appreciate the above contention raised by the Learned Counsel, Sri A.B. L. Gaur, a few facts are necessary to be discussed. An incident had taken place on 7.10.1996 at 6 p.m. This was the day on which the polling for the State Assembly was going on and the injured party was returning after the conclusion of the polling when this assault occurred.. In this incident one person, viz.. Om Prakash, lost his life and three persons had received injuries. An F.I.R. of this incident was lodged on 8.10.1996 at 3.40 p.m. after the medical examination, etc. of the injured and the deceased were completed.

In this case, the local police, i.e., P.S. Belaghat, district Gorakhpur, initially took up the investigation. Kailash Nath Pandey. S.I. initially proceeded with the investigation, which was subsequently taken over by the Station Officer, Ram Kumar Gautam. He, ultimately, on the conclusion of the investigation, had submitted a charge-sheet against the accused person nominated in the F.I.R.

In the meantime, the Home Secretary, Government of U.P., on 13.11.1996, ordered the investigation of this case to be transferred to a superior agency, viz.C.B.C.I.D., presumably on the application of the petitioners. Sri Sailesh Krishna, Secretary, (Home), passed this order. It is alleged in the petition in paragraph No. 9 that the aforesaid order of the Home Secretary was received by the Deputy Inspector General of Police (hereinafter referred to as the �D.I.G.�), Gorakhpur and the Senior Superintendent of Police (in short called as �S.S.P.�), Gorakhpur on 15.11.1996.

In pursuance of the aforesaid order. Inspector Abhai Singh of the C.B.C.I.D. had initiated the investigation of this case Crime No. 155 of 1996. It has further been alleged that the S.S.P., Gorakhpur, and the D.I.G., Gorakhpur did not communicate the order to the local police, in time. This lapse on their part resulted into submission of charge-sheet by Ram Kumar Gautam, S.O., P.S. Belaghat, district Gorakhpur against the accused persons. On the submission of charge-sheet, it appears that learned C.J.M. has also taken cognizance.

It further transpires from the averments made in paragraph No. 12 of the petition that Abhai Singh, Inspector, C.B.C.I.D., who had started the investigation in this case, had also moved an application before the IInd Additional Chief Judicial Magistrate, Gorakhpur, for providing papers of the previous investigation. A copy of this application has been appended as Annexure-3 to this petition. A perusal of this application shows that the Investigating Officer, Abhai Singh, on the date of moving this application before C.J.M., Gorakhpur, was aware of the fact of submission of charge-sheet by the local police and also of the registration of the Case No. 1386 of 1996, State v. Umesh and Ors.. Thus, it is apparent from these circumstances that a fresh investigation was being directed by the Government of U.P. in the matter by a superior investigative agency, although a charge-sheet had already been submitted earlier. This application does not bear any date, as will be apparent from a perusal of the application itself. No such date is disclosed in the petition or rejoinder-affidavit as well. So, we cannot take into consideration the factum of the date on which this application was moved by Abhai Singh, Inspector, C.B.C.I.D., before the Court concerned. It may also be available from these facts that C.B.C.I.D., for all practical purposes, took over the investigation after the submission of charge-sheet by local police.

Seeking quashing of the impugned order dated 20.3.1998, it has been urged that Abhai Singh is closely related, associated and connected with Sri Markandey Chandra, who was contesting the election for U.P. Assembly on a B.S.P. ticket. The deceased party, according to the averments in the F.I.R., was supporting Sri Markandey Chandra, whereas the accused side was working for some other candidate. Para 14 of the petition further discloses that an application (Annexure-4) was moved by one of the accused nominated in the F.I.R., viz., Sarju Mishra, to the Chief Minister providing details for the transfer of the investigation from Abhai Singh to some other person. In this application, no such reason, as alleged in paragraph No. 14, was disclosed. The reason given in this application was that the local police had not investigated the case fairly, had acted under the influence of the informant, and subsequently the investigation was handed over to the Inspector, C.B.C.I.D., Abhai Singh. Abhai Singh, when reached the spot of occurrence, was informed by hundreds of persons that Om Prakash had sustained injuries by the fire made by his own brother, Shri Prakash Mishra. It is further alleged in paragraph 2 of this application that the I.O., Abhai Singh, had made a note of these statements, but when the Case Diary was perused by the accused, it was found that no such statements of these persons had been recorded by him in the Case Diary. The only allegation made in paragraph 3 of this application is that Abhai Singh is a close relation of Sri Markandey Chandra. The daughters of Sri Markandey Chandra and Abhai Singh are married to the brOrs.. They are, inter se, Devrani and Jethani (sister-in-laws). Apart from this, in paragraph 4, an attempt has been made to show that the complainant/informant had paid money to the I.O. In paragraph 5 of this application, it has been averred that in the circumstances stated above, Abhai Singh had not made a fair investigation in the case and had sided with the complainant party. From the grounds detailed above, it is clearly discernible that the maker of this application was not serious about allegations. Their sole intention was to delay, as best as possible, the commitment of the case for trial. The main purpose is not far to seek. Long delay in trial often leads to sagging of morale of die-hard witness, and submission by those witness who sit on the fence to various considerations. We need not elaborate them. The allegations against investigating agencies were general in nature.

As a result of this application, the investigation was withdrawn from the Inspector, C.B.C.I.D., Abhai Singh, and was directed to be handed over to some other officer by the Government Order dated 18.11.1997. This order is appended as Annexure-5 to this petition. Sri Jagdish Lal, Joint Secretary, signed this order. This order does not assign any reason for withdrawing the investigation from Abhai Singh.

In pursuance of this order dated 18.11.1997, the investigation came to be transferred to Shyam Rathi Arya. He too had moved an application, which is Annexure-6 to this petition, before the C.J.M., Gorakhpur for providing him the copies of the charge-sheet, case diary and other papers for proceeding with the investigation u/s 173(8) of the Code of Criminal Procedure. This also shows that the charge-sheet has already been submitted in the case and the Court concerned had taken the cognizance. This application was moved on 3.2.1998, although the application shows the date as 3.2.1997, which appears to be a typing error. Thereafter the impugned order dated 20.3.1998 came into existence which directs the Investigating Agency, i.e., the C.B.C.I.D., that the order dated 18.11.1997 is cancelled and it further directs that immediate action be taken on the basis of the investigation conducted earlier by the C.B.C.I.D. This order is Annexure-7 to the writ petition.

Taking into consideration the facts and circumstances in its entirety, we come across certain anomalies, which weigh very heavily against the petitioners, as under :

(a) There is no averment regarding the date on which Shyam Rathi Arya took over the investigation.

(b) From the facts detailed in paras 16 and 21, it appears that before Shyam Rathi Arya could take up the investigation, Abhai Singh, previous C.B.C.I.D. Inspector had already submitted the charge-sheet in Court.

(c) Annexure-6, an application filed by Shyam Rathi Arya, provides clear proof for this situation. A perusal of Annexure 3, wherein Abhai Singh seeks return of charge-sheet and other papers submitted by local police, clearly shows that no such reference is there in this application.

The above facts are undisputed. We have gathered them from the petition (paras 16 and 21 and Annexures-6, 4 and 3).

The above facts clearly lead us to the conclusion that some force other than Markandey Chandra was working behind these orders. The petitioners did not feed this agency with correct facts. This is exhibited from the orders dated 18.11.1997 and 20.3.1997. First order for an investigation by C.B.C.I.D. is dated 13.11.1996. The second order dated 18.11.1997 transferring the investigation to Shyam Rathi Arya apparently was passed exactly after a year on an application (Annexure-4) by one of the petitioners. A perusal of this application (Annexure-4) clearly indicates that even the Inspector, C.B.C.I.D., Abhai Singh, has also submitted a report in Court fully cndorsing the charge-sheet submitted by local police. No investigation, thus, was pending on the date when the order dated 18.11.1997 was passed.

In this background, we intend to examine now the order dated 20.3.1998, i.e., the impugned order. We have already shown above that order dated 18.11.1997 was clearly passed after the investigation by C.B.C.I.D. was over. Conspicuously enough, neither Annexure-3 nor Annexure-4 provides us any date on which these applications were moved before the concerned Court and the authority. We are not prepared to accept that these applications did not bear dates. Thus, we are of clear opinion that the order dated 18.11.1997 was completely a non-est order from its inception and, therefore, when the Government came to know of these facts and circumstances, it simply recalled its previous order dated 18.11.1997 by the impugned order dated 20.3.1998. In these circumstances, we do not find any justifiable ground to quash the impugned order dated 20.3.1998 which too was a wholly inconsequential and innocuous order.

In the above background, we do not find any necessity to deal with the argument regarding investigation being mala fide and conducted under any influence from Markandey Chandra, a Minister in the State Cabinet in detail. The petitioners have not arrayed as parties in this petition Markandey Chandra, D.I.G. and S.S.P., Gorakhpur. Sri R.K. Gautam, S.H.O., P.S. Belaghat, Gorakhpur, similarly too has not been arrayed as a party to the petition. Thus, we have been deprived of their stands. The fact that local police had submitted a charge-sheet in Court on 21.11.1996 and subsequently the Inspector. C.B.C.I.D., too had submitted his report endorsing the fairness of the investigation conducted by local police. The only intention behind procuring these orders dated 18.11.1997 and 20.3.1998 was to delay their commitment and consequently trial as far long as possible. To a large extent the petitioners have been successful in delaying their trial. This will certainly dilute the intensity or animosity of the witnesses whose next of kin was killed in the incident and Ors. who have no such affinity will wither, succumb or avoid. In villages, equations change very rapidly. The petitioners have already had enough of time. No more can be allowed.

The petition is accordingly dismissed. The committing Court is directed to expeditiously conclude the commitment proceedings. Stay if any, stands vacated.