JUDGMENT

ALTAMAS KABIR, J. -

1. This Transfer Petition has been filed by one Surendra Pratap Singh, whose brother Raghvendra Pratap Singh, a practising Advocate of Pratapgarh, U.P., was murdered on 24th June, 2005. On the basis of the First Information Report lodged by the Petitioner on the same day at 9.30 p.m. at Antu Police Station, Case Crime No.19 of 2005 was registered against one Brijesh Mishra, MLA, his brother, Mahesh Mishra and associates, Hari Shankar and Gopi. During investigation, the Investigating Agency arrested three out of four accused persons, namely, Mahesh Mishra, Hari Shankar and Gopi, but did not arrest Brijesh Mishra, who was an MLA of the Bahujan Samaj Party. The Investigating Agency submitted charge-sheet No.79 of 2005 against all the accused persons under Sections 307 and 302 IPC in the Court of Chief Judicial Magistrate, Pratapgarh, wherein Brijesh Mishra was shown to be an absconder. On 24th August, 2005, the learned Magistrate took cognizance of the case and issued non-bailable warrant against the said Brijesh Mishra, which apparently was never executed.

2. On 15th September, 2005, the said Brijesh Mishra, who has been made Respondent No.2 herein, applied to the State Government for transfer of investigation from the local police to the C.B.C.I.D., but the same was rejected by the Principal Home Secretary on 15th September, 2005. However, on a Writ Petition filed by the said Respondent No.2, Brijesh Mishra, being W. P. No.4411 of 2005 the High Court gave a direction to the C.B.C.I.D. on 29th November, 2005, to investigate further into the case and to submit a report to the Magistrate within a reasonable time. The Magistrate was directed thereafter to deal with the said reports in accordance with law.

3. On 14th March, 2008, the Petitioner questioned the investigation conducted by Shri Sunil Kumar Saxena, Additional S. P., C.B.C.I.D., Kanpur Division, alleging that he was influencing the prosecution witnesses to change their statements in favour of the accused persons. - Ultimately, the said Sunil Kumar Saxena submitted his final report on 14th March, 2008, indicating that there were differences in the charge-sheet which had been filed by the local police and the investigation conducted by the C.B.C.I.D. and requested that appropriate action be taken on account of the differences between the two reports.

4. Subsequent thereto, on 22nd August, 2008, the Legal Remembrancer wrote to the District Magistrate, Pratapgarh regarding withdrawal of 8 cases against the Respondent No.2 which had been listed in his letter. Within a span of six days of the said letter being sent, on 28th August, 2008, an order was passed by the Chief Secretary, Government of U.P., for withdrawal of the said cases without waiting for any response from the District Magistrate, Pratapgarh, and without assigning any reason for such an order. Immediately thereafter, on 29th August, 2008, the Assistant Public Prosecutor moved an application before the Magistrate under Section 321 Cr.P.C. for withdrawal of the cases, but before anything further could be done on the said application, further proceedings before the Chief Judicial Magistrate, Pratapgarh were stayed by this Court on 12th December, 2008.

5. Learned counsel appearing for the Petitioner submitted that the aforesaid facts would clearly reveal that the investigating agencies, in connivance with the State Government, wanted to shield Brijesh Mishra Saurabh from prosecution in connection with the complaint filed by the Petitioner herein. It was submitted that in such circumstances there was a genuine apprehension in the mind of the complainant, who was the brother of the deceased, that the deceased would not receive free and fair justice within the State of Uttar Pradesh.

6. As against the above, Mr. Altaf Ahmad, learned Senior Advocate appearing for the Respondent No.2, Brijesh Mishra Saurabh, contended that the allegations made against the investigating authorities and the State Gover