IMPORTANT POINT
Court can constitute SIT when investigation is not fair and the investigating agency is hand in glove with the accused.

ORDER

S.Abdul Nazeer, J.

This writ petition has been filed under Article 32 of the Constitution of India seeking Court-monitored investigation/constitution of SIT by this Court in respect of FIR Nos. 221 of 2001 and 228 of 2002 registered at Police Station Pilakhua, Uttar Pradesh.

2. The brief facts of the case are that Smt. Seema Garg, daughter-in-law of petitioner No.1, and her two children were murdered on 24.7.2001 and an FIR No.221 of 2001 to this effect was lodged in Police Station Pilakhua, U.P. under Sections 302/394 of the Indian Penal Code, 1860 (for short `the IPC') and the investigation started. On 17.8.2001 the police filed the charge sheet in Session Trial No.977 of 2001. Nitin Garg, husband of deceased-Seema Garg, was arrested by the police on account of suspicion. Nitin Garg moved a writ petition before the Allahabad High Court for transfer of investigation of the case to an independent investigating agency. On 16.7.2002, Nitin Garg was also murdered and the second FIR No.228 of 2002 was lodged. The Trial Court by its judgment dated 16.10.2004 in Session Trial No. 977 of 2001, acquitted the accused persons observing as under:

"On the examination of this case is also necessary to be highlighted. In this case three persons have been murdered and the investigating officer on the basis of extra judicial confession has filed charges against the accused. The investigating officer against which two accused under trial has filed charge sheet in this court against them any witness of the prosecution has even not made any statement. Any of the witness of the prosecution not making any statement against accused Manveer and Mukesh the only conclusion arrived at may be that in this case the investigation has not been carried on properly. It has also to be mentioned that witness PW8 who is brother of the deceased and who had made statement against Rajendra and his son Nitin he also has not made any statement against accused P.W.8 not making any statement of any kind against accused Manveer and Mukesh indicates the investigation to be bad. In this case no criminal history of the accused Manveer and Mukesh has been produced by the prosecution. Therefore against these persons even presumption could not be made that the above accused are criminal history sheeters and they could commit grievous crime like murder."

(emphasis supplied)

3. In FIR No.228/2002, pertaining to the murder of Nitin Garg, which has been investigated by the State Police, the Fast Track Court, Ghaziabad, by its judgment and order dated 27.08.2004 acquitted the accused persons, namely, Sunil Kumar Bansal, son of Suresh Chand, Pradeep, son of Suresh Chand, Harish and Rinku sons of Brijesh. The acquittal of accused persons in the murder of Nitin Garg was confirmed by the High Court. The Special Leave Petition filed before this Court against the said judgment was also dismissed.

4. In the meanwhile, the petitioners had filed a petition before this Court, inter alia, seeking for re-investigation of both the above-mentioned cases by CBI, which was allowed by Order dated 28.10.2013. However, the petitioners prayed for withdrawal of the aforementioned order. Accordingly, the order directing investigation by CBI was withdrawn by this Court on 5.9.2014.

5. As noted above, the petitioners in this writ petition have prayed for constitution of Court-monitored investigation/SIT to re-investigate the aforesaid cases pertaining to FIR Nos.221 of 2001 and 228 of 2002 registered at Police Station Pilakhua, Uttar Pradesh.

6. We have heard the learned counsel for the parties and carefully perused the materials placed on record. Insofar as FIR No.228 of 2002 is concerned, the accused persons were acquitted by Additional Sessions Judge, Fast Track Court No.5, Ghaziabad, U.P. on 27.8.2004 in Session Trial Nos.500/2003 and 501/2003. This judgment was challenged by the State in Appeal No.6227 of 2004 before the High Court of Judicature at Allahabad. The petitioners had also challenged the sa