IMPORTANT POINT
Secretary (Home) cannot pass order for further investigation by CBCID.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Allahabad in Criminal Misc. Writ Petition No. 7093/2019, by which, the High Court has dismissed the said writ petition preferred by the appellant herein – mother of the deceased – Satyveer alias Kallu, in which, the appellant challenged order dated 13.02.2019 passed by the Secretary (Home), State of UP, Lucknow, whereby he ordered for further investigation by CBCID of Case Crime No. 1069/2014, the original writ petitioner has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under: -

2.1 That son of the appellant – Satyaveer @ Kallu was murdered by un-known persons. An FIR was lodged by the informant Sanjeev son-in-law of the appellant against Smt. Anju and two un-known persons. The investigation was carried out by the Inspector of Police, Baraut, District Baghpat who submitted chargesheet on 01.03.2015 against two persons of which cognizance was taken by the learned Magistrate on 31.03.2015. That thereafter, on the complaint/application by the appellant, the investigation was handed over to the District Crime Branch. A supplementary chargesheet was filed on 02.12.2016 against one Ashwani Kumar – respondent No. 8 herein (son of respondent No. 9 herein) and Smt. Anju -respondent No. 11 herein. The learned Magistrate took cognizance of the same on 21.12.2016. That thereafter, respondent No. 8, namely, Ashwani Kumar filed the quashing petition before the High Court for quashing of the entire criminal proceedings of Case No. 7626/2016 originating out of Case Crime No. 1069/2014 as well as for quashing of the chargesheet dated 02.12.2016. The said application came to be dismissed by the High Court on 05.07.2017. Being aggrieved of order dated 05.07.2017, respondent No. 8 – Ashwani Kumar approached this Court by way of Special Leave Petition (Crl) No. 599/2017 which was dismissed by this Court on 24.08.2018. This Court also vacated the interim protection granted to respondent No. 8 vide order dated 15.09.2017. The learned CJM, Baghpat issued non-bailable warrant against respondent No. 8 vide order dated 08.09.2018. That thereafter and after non-bailable warrant was issued against respondent No. 8 herein, mother of Ashwani Kumar – accused moved an application dated 23.01.2019 to the Secretary (Home), State of Uttar Pradesh for transferring the investigation to CBCID, inter-alia, on the ground that respondent No. 8 has been arraigned as accused on the basis of statements of two witnesses who in fact were in the Jail and therefore, their statements cannot be believed. That by order dated 13.02.2019, Secretary (Home) State of U.P., Lucknow, ordered further investigation by CBCID. The order passed by the Secretary (Home) transferring investigation to CBCID was impugned before the High Court by way of present petition. By the impugned judgment and order the High Court has dismissed the writ petition by observing that further investigation was ordered after intimation to the learned Magistrate and therefore, there is no infirmity in the order passed by the Secretary (Home) directing further investigation. The impugned judgment and order passed by the High Court is the subject matter of present appeal.

3. Ms. Vibha Datta Makhija, learned Senior Advocate has appeared on behalf of the appellant and Shri S. Nagamuthu and Shri Rameshwar Singh Malik, learned Senior Advocates have appeared on behalf of respondent Nos. 8 and 11. Shri Anand Sanjay M. Nuli, learned counsel has appeared on behalf of the intervenor.

4. Ms. Makhija, learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that the order passed by the Secretary (Home) transferring the investigation to CBCID is absolutely illegal and contrary to the provisions of the Code of Criminal Procedure (Cr.PC).

4.1 It is submitted that in the present case after thorough investigation by the investigating a