Ubaish alias Kallan vs State of U.P. and Others

Vinod Prasad, J.—Ubaish alias Kallan has approached this Court through the instant writ petition praying that the order dated 23.3.2008, passed by Deputy Inspector General of Police, Moradabad Range, Moradabad be quashed.

According to the averments made in this writ petition, Hazi Rizwan Ahmad father of the Petitioner is an Ex-M.L.A. He had defeated Akbar Hussain in the Election for the said post. However, in the past election for the State Legislature the said Akbar Hussain was declared elected on the ticket of B.S.P. and now is a Cabinet Minister with independent charge. According to the Petitioner, because of the rivalry with the sitting minister, the police is harassing the Petitioner and his father.

Saud Ahmad son of Matloob Ahmad lodged an F.I.R. of Case Crime No. 363 of 2007, under Sections 323, 324, 504, 506, 452 and 307, I.P.C. on 9.8.2007 at 10.30 a.m. in which he made the Petitioner an accused alongwith Muzaffar and Nazir. The copy of the said F.I.R. is appended as Annexure-1 to this writ petition. The incident in the said F.I.R. was alleged to have occurred on 10.7.2007 in the morning. The case of the Petitioner further is that under the influence of the aforesaid Minister, the police of police station Manathore, district Moradabad is not conducting the investigation fairly instead it is investigating the whole case according to the wishes of the said Minister. On 12.2.2008, the investigation of the aforesaid crime was transferred by D.I.G., Moradabad, Range Moradabad to district Jyotiba Phule Nagar vide Annexure-2 to this writ petition. The police of police station Jyotiba Phule Nagar commenced the investigation and the Investigating Officer S.O. police station Amroha Dehat recorded the statement of many witnesses and, according to the version of the Petitioner, he came to the conclusion that the Petitioner has been falsely implicated and therefore, so far as Petitioner is concerned he gave a report that he has been wrongly nominated and the investigation in his respect is being closed.

It is then averred in the writ petition that under the influence of the aforesaid minister the impugned order has been passed on 23.3.2008 for re-transferring the investigation from Jyotiba Phule Nagar to Moradabad by D.I.G., Moradabad Range, Moradabad, which order has been questioned in the instant writ petition.

On the said fact, we have heard Sri D. S. Mishra, learned Counsel for the Petitioner and learned A.G.A. in opposition.

Sri D. S. Mishra, learned Counsel for the Petitioner invited our attention to various paragraphs from paragraphs 13 to 18 of the writ petition and contended that the Petitioner is being harassed at the instance of the Minister because of the rivalry with the father of the Petitioner. He further contended that there is no reason assigned in the impugned order for re-transferring the investigation from Jyotiba Phule Nagar to Moradabad and this transfer was done because the Investigating Officer of Jyotiba Phule Nagar had opined that the Petitioner has been wrongly nominated. He further contended that the impugned order is against the principle of natural justice as no opportunity of hearing was given to the Petitioner before passing the said order and because the impugned order of transfer is bereft of any reason hence, it is an arbitrary exercise of power. Concludingly, he contended that the impugned order of re-transferring the investigation from Jyotiba Phule Nagar to Moradabad be quashed.

Learned A.G.A. on the contrary contended that the impugned order has not been passed under any pressure and only for the purpose of fostering the fair investigation that the impugned order has been passed. He further contended that the instant writ petition is not maintainable at the instance of the Petitioner.

After hearing both the sides we find that what is not disputed in this writ petition is that the present Petitioner is an accused in Case Crime No. 363 of 2007. Investigation is still in progress. At this stage, there is an administrative order which has been challenged by the Petitioner transferring the investigation. In our view, the Petitioner cannot, as a matter of right claim hearing at the stage when the investigation is still going on. In what manner the investigation is to be conducted and by whom it has to be conducted are all which has to be looked into by investigating agency and the higher officials. Petitioner, who is an accused has got no right to be heard in that respect at all. This position has been crystallised by the Apex Court in many of the judgments. In Union of India v. W. N. Chadha 1993 SCC 1171, it has been held as follows:

In State of Haryana and others Vs. Ch. Bhajan Lal and others, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.), were parties after making reference to the decision of the Privy Council in AIR 1945 18 (Privy Council) and the decision of this Court in Abhinandan Jha and Others Vs. Dinesh Mishra, has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation....

More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report u/s 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued u/s 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued.

It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.

In another judgment the Apex Court has held that allowing the accused to participate at the stage of investigation will be putting cart before the horse, which will be self defeating and detrimental to the fair investigation. It has further been held by the Apex Court in the case of V. Panchal v. D. D. Ghandigaonkar AIR 1961 ISCR 1, as follows:

The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage, for such a person can be called upon to answer the allegation made against him only when a process has been issued.

It has further been held by the Apex Court in the case of Chandra Deo Singh v. Prakash Chandra Bose AIR 1963 ISCR 202, as follows:

Permitting the accused person to intervene during the inquiry would frustrate its very object and that is why Legislature has made no specific provision permitting an accused person to take part in the enquiry.

In view of what we have stated above, in our view, this petition is not maintainable at the behest of the Petitioner and is liable to be dismissed and we do dismiss this writ petition. This writ petition is dismissed.