Vinay Kumar Saxena vs State of U.P.

Dipak Misra, J.

Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance

of a direction to the respondents to properly investigate with regard to crime No. 114/99 instituted for offences punishable under Sections 147,

148/149, 365, 323, 294 and 506-511 of Indian Penal Code (in short ''IPC'') registered at Police Station Gorakhpur on the basis of FIR lodged

by the petitioner and further to quash the order by which the investigation has been transferred to Criminal Investigation Department, Bhopal.

Apart from these two reliefs other reliefs have been prayed which are essentially ancillary to the aforesaid reliefs.

Facts as have been portrayed in the writ petition are that the petitioner is a contractor and has undertaken the works of constructions in the

Housing Board. The petitioner had made a complaint against one A.K.S. Tomar, the Additional Commissioner, M.P. Housing Board, Jabalpur

regarding the corruption and an enquiry was conducted against said Shri Tomar. This complaint of the petitioner had annoyed said Tomar who had

harboured an ill-will against the petitioner. On 23-2-1999 the petitioner had gone to the office of Shri L.S. Songer, Deputy Housing Commissioner

along with his companions Ravindra Shrivastava and Dinesh Vishwakarma. Shri Tomar was called by Shri Songer but when he did not come to

the office of the Deputy Housing Commissioner Shri Songer asked the petitioner to meet Shri Tomar in the Office. Thereafter the petitioner

reached the office of the Administrative Officer. At that time Shri Tomar who was present over there started abusing the petitioner. Thereafter the

petitioner came out. and at that juncture Shri Tomar look away the petitioner to the University. According to directions of Shri Tomar the petitioner

was kidnapped in a jeep by Ashok Tomar and his three other companions, After being kidnapped the jeep reached at Gorakhpur where there was

a crowd and on a cry being made by the petitioner the jeep was surrounded and in between ASI Garg came over there and the said accused

persons were arrested. Against Ashok Tomar a series of offences had already been registered and against Satendra Singh two offences were

registered under Sections 307 and 506-II of IPC respectively. It is pleaded in the petition that the petitioner was sent for ''medical examination and

it. was found he had sustained grievous injury in his ear. Thereafter the said accused person filed application for grant of bail u/s 439 of Code of

Criminal Procedure (hereinafter referred to as ''the Code'') but the same was rejected by the Court of session. On that stage the petitioner came to

learn from the Inspector Kurchania that the crime No. 114/99 was not being investigated by the concerned officer of Gorakhpur Police Station

and same was being investigated by the Criminal Investigation Department on the basis of an order passed by the Department of Home. Thereafter

the petitioner was asked to remain present at police station Gorakhpur at 4 p.m. on 15-3-1999. The petitioner along with all the witnesses reached

police station, Gorakhpur but inspector Khurchania was not present. It is urged by the petitioner that the case has been transrferred to CID at the

behest of the accused person, Shri A.K.S. Tomar who has political connections and on the said basis he has managed to get the investigation

transferred to CTD inspite of the fact that the police Administration has not demanded for it. It is urged that transfer of the file to CID is in violation

of the Regulation 16 of the Police Manual. It is also put forth that Superintendent of Police had not demanded any investigation by the CID nor

there had been request by the Police of Police Station, Gorakhpur. It is also setforth that there is no request of the accused persons to the S.P.

Jabalpur in this regard. With these averments reliefs have been sought for as indicated hereinabove.

A reply has been filed by the respondents contending, inter alia, that A.K.S. Tomar is an Executive Engineer in M.P. Housing Board. He filed a

writ petition forming the subject matter of W.P. No. 1315/99 alleging that Police has not registered any offence on the basis of an FIR lodged by

him. He had made allegations against the local police. The reply filed by the respondents therein has been brought on record as Annexure R-1. Shri

Tomar also represented making allegations that on his complaint the local police had not taken any cognizance and requested that the matter should

be got investigated by some independent agency. Considering the rival allegations the matter has been handed over to the CID, and hence, there is

no illegality in the said decision.

A rejoinder affidavit has been filed by the petitioner reiterating the stand that the investigation was handed over to the CID without any basis and

solely due to political influence of said Shri Tomar.

I have heard Mr. Manish Datt, learned counsel for the petitioner and Mr. Ashok Agrawal, learned Panel Lawyer for the State.

It is submitted by Mr. Manish Datt that handing over of the investigation to the Criminal Investigation Department is regulated by the Regulation 16

of the Police Manual and certain conditions precedent are provided in the said Regulation but in the case at hand though the same had not been

satisfied the case has been handed over to the CID. It is urged by him that no reason has been given to handover the matter to the CID except a

bald stand that request was made by the accused to get the crime investigated by some independent agency and considering rival allegations the

mailer has been handed over to the CID for investigation. It is putforth by Mr. Datt that an accused has no right to get the matter investigated by a

particular agency. Learned counsel has placed reliance on the decisions rendered in the cases of Kirtan Bhuyan and others Vs. State of Orissa, ,

Union of India and another Vs. W.N. Chadha, , and Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, .

Mr. Ashok Agrawal, learned Panel Lawyer for the State has submitted that Shri Ashok Tomar had represented making allegations that on his

complaint the local police had not taken any cognizance of the matter, and taking various facts into consideration the order has been passed by the

competent authority to transfer the case to CID and hence, no fault can be found with the action of the respondents. The learned counsel has

submitted that conducting of investigation is the prerogative of the State Government and a complainant informant cannot seek a writ of mandamus

how the investigation has to be conducted.

Before I advert to the respective contentions raised at the Bar it is apposite to refer to the return filed in W.P. No. 1351/99 preferred by Shri

Tomar. In the said writ petition Shri Tomar has raised a grievance that the respondents, namely, the State and its functionaries are not performing

their statutory duties inasmuch as though he has lodged an FIR against some anti-social elements the same was being not registered. In the return it

was stated that a written complaint was sent to the Additional Superintendent of Police and incharge of Police Station, Gorakhpur marked the

complaint to ASI, A.K. Garg to make an enquiry. Mr. Garg had made an enquiry and submitted the report that allegations made in the complaint

were not correct and had been made to circumvent the report made by Shri Vinay Saxena. It was also pleaded that Shri Tomar was not available

during the enquiry conducted by Mr. Garg. In paragraph six of the return it has been stated that Shri Ashok Tomar and Satyendra Singh were

caught while taking Mr. Saxena in a vehicle and brought to the Police Station. It is also stated that the case has been transferred to the CID. The

aforesaid writ petition was disposed on 16-8-1999 by the learned single Judge of this Court who after noting down the allegations made by Shri

Tomar and referring to the letter by the Additional Superintendent of Police came to observe as under :

Learned counsel submitted that the Police is acting in highhanded manner and is not discharging its obligation.

If the Town Inspector has not conducted himself in a proper manner, then the appropriate course was to approach the higher authorities i.e.

Superintendent of Police, Inspector General of Police, Director General of Police and the Home Secretary. I do not find from the record that any

such steps were taken. It is not proper to express any opinion in regard to the nature of the offence as to whether it is cognizable or non-

cognizable, as I am of the view that the petitioner should have approached the concerned authorities.

In view of above, the writ petition is dismissed without expressing any opinion on the merit of the matter.

I have referred to the aforesaid case only to indicate that this Court had not issued any direction in regard to the complainant made by Shri Ashok

Tomar and in the return the respondent had commented on the conduct of Shri Tomar and his involvement in crime in question.

The moot question that arises for consideration is whether the investigation should have been transferred to the CID. Mr. Datt, learned counsel for

the petitioner has drawn the attention of this Court to Regulation 16 of M.P. Police Regulation. Chapter I of the said Regulation deals with the

constitution, organization and distribution of the State Police Force. Chapter II deals with the position and duties of superior officers. Regulation 13

deals with the functions of DIG. Regulation 15 deals with supervision of crimes by DIG. The said Regulation reads as under:

D.I.G. Supervision of Crime by. In matters criminal it is the duty of the Deputy Inspector General carefully to superintend the prevention

registration, investigation and detection of crime within his jurisdiction. He should aid and control his Superintendents in all important investigations

and they should be able to rely on him for encouragement, instruction and advice. He is responsible for seeing that the investigation of serious crime

is supervised by a suitable agency, and should pay particular attention to the maintenance of cordial relation with the magistracy, and of co-

operation between different districts.

Regulation 16 deals with the serious crime. The said Regulation is as under :

Serious Crime.-- The co-ordination of the work of the Criminal Investigation Department with that of the district police is entirely in the hand of

the Deputy Inspector-General in charge of that department. Superintendents will immediately report to him any case of special difficulty which

baffles the local police, cases of professionals, or organized crime, and cases of counterfeit coining or note forgery. He will also be sent copies of

the special and supplementary reports in all cases of dacoity, administering stupefying drugs by suspected professionals, and any other case of

special interest. It will be for him to decide whether an officer of the Criminal Investigation Department should be disputed to assist the local police

or whether the case should be taken out of the hands of the local police altogether by the Criminal Investigation Department. He will submit once a

month for the information of the Inspector-General a summary of the work done by the Criminal Investigation Department.

Submission of Mr. Datt is that the present case is one where Superintendent to Police had not reported to the D.I.G. mentioning any special

difficulty which baffled the local police or other type of matter that find mention in the said Regulation. It is putforth by Mr. Datt that DIG has the

authority to decide whether an officer of CID should assist the Local police or whether the case should be taken out of the hands of local police as

together by the CID but such a power cannot be exercised in an arbitrary and unreasonable manner. Mr. Datt has also referred to Section 154 to

175 of the Code to highlight the role of the Police Officers in the matter of investigation. It is not disputed by him that when Regulation 16 comes

into play the CID can be directed to investigate.

Hear of the matter is that whether in present case there was justification to transfer the case to CID. As has been stated the only stand taken in the

return that Shri Tomar had made complaint against the local police that it was not taking cognizance of the report. This Court while deciding the

W.P. No. 1351/99 had dealt with the matter and did not think it proper to interfere. True it is, the power vests with the authority to transfer the

case but the question that arises for consideration is whether the power can be exercised at the instance of accused and without any reason. This

court in order to find out on what basis the matter was transferred to the CID by order dated 14-12-2000 assed the following order :

Considering the allegations made in the petition, it is necessary to have a look at the file in which the order was passed transferring the case from

District Force to the Criminal Investigation Department.

Mr. P.D. Gupta, learned Dy A.G. is directed to produce the relevant file on 11-1-2001.

The matter was adjourned on four occasions and ultimately this Court was informed that there is no file in that regard. Thus it is apparent there is

nothing on record to show how the direction came to be issued.

At this juncture I may refer to a two Judge Bench judgment of the Apex Court rendered in the case of W.N. Chadha (supra) wherein the Apex

Court held as under :

The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie

case has or has not been made out, not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an

administrative one and a full-fledged enquiry follows is a relevant and indeed a significant -- factor in deciding whether at that stage there ought to

be hearing which the statute did not expressly grant.

xxxxxx xxx

Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of

being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

Their Lordships proceeded further to express as under in paragraph 92 of the judgment :

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 culmintes 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. In case the issue of process is postponed as contemplated u/s 202 of the Code, the accused may attend the

subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate

those decisions.

At this juncture 1 think it apposite to refer to a decision rendered in the case of State of Bihar and Another Vs. J.A.C. Saldanha and Others,

wherein the Apex Court while dealing with the powers of investigation by a Police Officer as contemplated u/s 156 of the Code has ruled thus:

There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the

field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The

executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have

been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having

been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits

report to the Court requesting the Court to take cognizance of the offence u/s 190 of the Code its duty comes to an end.

In this context I may refer to a decision rendered in the case of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another,

wherein the respondent No. 1, a Director of a company, along with another was an accused for offences punishable under Sections 457, 436,

427, 201 and 120B of IPC and u/s 4 of the Prevention of Damages to the Public Property Act, 1984. The investigation was carried on by the

local police. Thereafter at the request and with the consent of State of Bihar as per notification dated 2-6-1994 the Central Government by its

notification dated 26-10-1994 issued u/s 6 of the Delhi Special Police Establishment Act, 1946 authorised the Central Bureau of Investigation to

investigate the said offences. That was challenged by the respondent in a writ petition in the High Court of Patna and the learned single Judge

quashed the said notification on the ground that the notification did not disclose reasons why investigation was being entrusted to the Delhi Special

Police Establishment. Keeping the aforesaid factual matrix in view the Apex Court held as under :

8... The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused

cannot have a say in who should investigate the offence he is charged with. We also fail to see any provision of law for recording reasons for such

a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers u/s 6 of the

Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of

the Delhi'' Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No.

159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120B, Indian Penal Code and conspiracy arising out of the

dame and any other offence committed in course of the same. The notifications of 26-10-1994 is issued by the Government of India, Ministry of

Personnel in exercise of powers conferred by Sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act,

1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the

powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences u/s

457, 436, 427/120B and 201 IPC and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police

Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in

connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case.

There is no provision in law under which, while ranting 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. The learned single Judge of the

Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In

the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final

report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central

Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further

investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. u/s 173(8) of the Cr.

P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under Sub-section (2) has been

forwarded to the Magistrate.

We fail to see any requirement of law under which the reasons for further investigation by the C.B.I. are required to be recorded in the notifications

of the kind in question. The reasons can be shown independently.

The present factual matrix has to be tested keeping in view the aforesaid enunciation of law. As has been indicated earlier the return only indicates

that accused had represented making allegations that local police had not taken any cognizance of the report and requested the matter should be

got investigated by some independent agency and considering the facts of rival allegations the matter was handed over to the Criminal Investigation

Department for investigation. In this context, it is necessary to refer to the order passed in W.P. No. 1351/99 wherein the learned single Judge has

opined as under :

The petitioner submitted that neither his report was lodged, nor any action was taken by the Town Inspector, Police Station Gorakhpur where

against he approached the Superintendent of Police, Jabalpur, which is Annexure-P/5 dated 24th February, 1999. In fact it is a complaint against

the act of the Town Inspector of not registering the FIR. It is a letter not by the petitioner but by Additional Commissioner....

After so opining the learned single Judge quoted the prayer made in Hindi and held which has been referred to earlier. As has been held by the

Apex Court in various cases the accused has no say in the manner and mode of investigation. In the case of Rajesh Gandhi (supra) the Apex Court

while allowing the appeal preferred by the Central Bureau of Investigation with regard to the powers of the executive to direct the investigation by

an Agency has also observed that reasons are not to be recorded in the notification and reasons can be shown independently. In the case at hand

the only reason ascribed in the return is that accused made a request as the police officer concerned did not register his FIR. The grievance of the

accused was not entertained by this Court in W.P. No. 1351/99 and it was dismissed with a direction to approach the higher authorities. It is not

disputed that the Madhya Pradesh Police Regulations have been framed under Indian Police Act, 1861. It is also not disputed that as per

Regulation 16 Co-ordination of the work of the Criminal Investigation Department with that of the District Police is entirely in the hands of the

Deputy Inspector-General in charge of that department. He is the final authority to decide whether an officer of the Criminal Investigation

Department should be deputed to assist the local police or whether the case should be taken out of the hands of the local police altogether by the

Criminal Investigation Department. But as the Regulation stipulates there are certain guidelines for taking such decision. In the case at hand, the

unfortunate part is that file was not produced wherein the order was passed by the competent authority. It can not be presumed that there was

issuance of an oral direction. If the order had been passed by the competent authority there is no justification why the same has not been made

available to this Court. I am conscious the matter relating to investigation is within the domain of the executive. It is to be borne in mind that the

investigation is in the domain of the executive and accused does not have to say any thing about the method and mode of investigation in the matter.

But in the present case at the request of the accused has been acceded to which is precisely not permissible in law. I am not going to delve into the

matter whether the informant has anything to say with regard to the investigation of crime. The authority has to decide about the investigating

agency. But whew guidelines have been provided the authority is bound by it. Reason given in the return is far from being satisfactory. As the file

relating to the order of investigation has not been produced inspite of opportunities being granted it is to be presumed that no reason exists.

In view of my preceding analysis I am inclined to direct that Deputy Inspector-General or the competent authority shall keep in view the Regulation

16 and law governing the field about the role of an accused in the matter of investigation and pass appropriate order in accordance with law. If the

said authority finds there is justifiable reasons it may pass an order of transfer of investigation from the district police to the Criminal Investigation

Department. Such an order may be passed on consideration of facts in entirety with utmost objectivity and in a dispassionate manner within a

period of six weeks from today and till such a decision is taken the investigation by the Criminal Investigation Department shall not proceed further.

The writ petition is accordingly disposed of without any order as costs.