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2006 Supreme(All) 1574

[2006(5) ADJ 199 (DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : AMITAVA LALA AND SHIV SHANKER, JJ.
Smt. ALKA RAI AND ANOTHER ....Petitioners
Versus
UNION OF INDIA AND OTHERS ...Respondents
(Civil Misc. Writ Petition No. 1552 of 2006, decided on 23rd May, 2006)

Advocates:
Counsel :
R.N. Singh, V.K. Singh and G.K. Singh for the Petitioners; N.I. Jafri, G.S. Hajela, V.S. Misra, G.A., S. Ali Murtza, N.K. Verma, A.G.A. for the Respondents.

Headnote:Investigation—Entrustment of Investigation from one agency, i.e., State police to other agency, i.e., C.B.I.—Jurisdiction of High Court in writ petition for giving direction for such entrustment—Ambit and law relating to—Elaborated and clarified—Normally, High Court does not interfere in writ petition relating to prayer for transfer of investigation from State police to some other agency—But when facts and circumstances show that there is no chance of fair investigation by State police, High Court has unfettered power to direct transfer of investigation to CBI even after submission of charge-sheet by local police—In the instant case, sitting MLA of BJP was murdered—Accused persons were history sheeter criminals and political rivals, supported by ruling Government—Petitioners, widow and real brother of deceased expressed their dissatisfaction over investigation by local police—Matter was serious—State Government also directed investigation by CBCID earlier on pressure of other parties, but ultimately C.B.C.I.D., which is also a State agency returned matter to State—In view of this fact and requirement of fair, unbiased, effective, transparent and proper investigation—High Court directed State Government to entrust investigation to C.B.I., in spite of fact that charge-sheet has been submitted by State police agency—For direction by Court to entrust investigation to C.B.I., no consent of Government is required. [Delhi Police Establishment Act, 1946—Section 6—Criminal Procedure Code, 1973—Sections 173, 157 and 156]. [Paras 7, 9, 10, 12, 14, 15, 17 to 22, 26, 30 and 31]

       

JUDGMENT

Hon’ble Amitava Lala, J.—This writ petition is made for the following reliefs:

“(i) a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.1.2006 (Annexure 1 to this writ petition) passed by respondent No. 3.

(ii) a writ, order or direction in the nature of mandamus directing the respondents to transfer and entrust the investigation of the case crime No. 589 of 2005 under Sections 147, 148, 149, 302, 307, 120-B, IPC and 7th Crime Act, Police Station Bhanwarkol District Ghazipur to Central Bureau of Investigation and further direct the respondent No. 2 to carry out a speedy and expeditious investigation in the aforementioned case within a specified time.

(iii) a writ, order or direction in the nature of mandamus directing the State of U.P. to hand over the investigation of case crime No. 589 of 2005 to Central Bureau of Investigation as per the condition precedent under Section 6 of Delhi Police Establish Act, 1946 (read as Delhi Police Establishment Act, 1946).

(iv) any other writ, order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice.

(v) award cost of the petition to the petitioners.”

2. Factually, the petitioner No. 1 is the widow of Late Krishna Nand Rai and the petitioner No. 2 is his real brother, who is also the complainant. Late Sri Krishna Nand Rai had been contesting the assembly elections on Bhartiya Janta Party ticket from the constituency of Mohammadabad, District Ghazipur and he ultimately succeeded in trouncing Afzal Ansari, the real brother of Mukhtar Ansari, the two main accused in the present incident, and was ultimately elected as Member of Legislative Assembly.

3. According to the petitioners, Afzal Ansari is presently a sitting Member of Parliament from Ghazipur and is an active enrolled member of the Samajwadi Party. His real brother Mukhtar Ansari is an independent M.L.A. from Mau and is supported by the ruling party of the State. The very secured position of these persons backed politically by the present ruling government in the State emboldened them to eliminate their political rivals including Late Sri Krishna Nand Rai.

4. According to the petitioners, in order to appreciate their criminal background the criminal history of these persons is necessary to be enumerated, which is as follows :

History sheet No. 16-B Inter State Gang No. 191

(1) Case Crime No. 106/88, under Section 302 I.P.C., Police Station Kotwali, Ghazipur.

(2) Case Crime No. 201/88, under Section 302 I.P.C., Police Station Cantt, Varanasi.

(3) Case Crime No. 124/90, under Section 364/395/397 I.P.C., Police Station Bara Gaon, Varanasi.

(4) Case Crime No. 266/90, under Section 467/468/420 I.P.C., Police Station Mohammadabad, Ghazipur.

(5) Case Crime No. 399/90, under Section 147/148/149/307 I.P.C., Police Station Kotwali, Ghazipur.

(6) Case Crime No. 682/90, under Section 247/506 I.P.C., Police Station Kotwali, Ghazipur.

(7) Case Crime No. 172/91, under Section 147/148/302 I.P.C., Police Station Mohammadabad, Ghazipur.

(8) Case Crime No. 44/91, under Section 302 I.P.C., Police Station Kotwali, Ghazipur.

(9) Case Crime No. 294/91, under Sections 307/302 I.P.C., Police Station Mughal Sarai, District Chandauli.

(10) Case Crime No. 456/93, under Sections 365/387 I.P.C., Police Station Tilak Marg, New Delhi.

(11) Case Crime No. 503/93, under Section 5 TADA Act, Police Station K.G. Marg, New Delhi.

(12) Case Crime No. 834/95, under Sections 353/504/506 I.P.C., Police Station Kotwali, Ghazipur.

(13) Case Crime No. 165/96, under Sections 323/352/307 I.P.C., Police Station Kotwali, Ghazipur.

(14) Case Crime No. 169/96, under Section 302 I.P.C., Police Station Mohammadabad, Ghazipur.

(15) Case Crime No. 192/96, under Section 3 of U.P. Gangster Act, Police Station Kotwali, Ghazipur.

(16) Case Crime No. 284/96, under Section 3 N.S.A. Act, Police Station Kotwali, Ghazipur.

(17) Case Crime No. 285/90, under Section 302 I.P.C., Police









































































































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