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2009 Supreme(All) 254
[2009(4) ADJ 504 (DB)]
ALLAHABAD HIGH COURT
BEFORE : AMAR SARAN AND R.N. MISRA, JJ.
HOSHIYAR SINGH, ETC. ETC. .....Petitioners
Versus
STATE OF U.P. AND OTHERS, ETC. ETC. .....Respondents
(Criminal Misc. Writ Petition Nos. 428, 370 and 903 of 2009,
decided on 23rd January, 2009)
Counsel :
G.S. Chaturvedi, in W.P. No. 428/09; V.P. Srivastava, in W.P. No. 370/09; S.K. Tyagi in W.P. No. 903/09; A.N. Singh for Complainant and Smt. Vibha Tiwari and Vikash Sahai, Addl. Govt. Advocate.
Headnote:(Indian) Penal Code, 1860—Sections 323, 342, 457, 364, 302, 201 and 120-B—U.P. Criminal Law (Amendment) Act—Section 7—Offence thereunder—F.I.R.—Petition for quashing—Filed by accused—Allegations in F.I.R. against accused was that on 24.12.2008 at 6.20 a.m., there was knocking of door of complainant—On enquiry from husband of widow (i.e. M.K. Gupta, an Engineer) accused replied they are C.I.D. persons from Delhi—On breaking open their doors, two assailants (Tyagi and Bhatia), asked Executive Engineer to pass their Bills—Assailants assaulted her husband with lathis and whip—And repeatedly talking on mobile phone—Then, assailants took her (i.e. complainants) husband on a vehicle, after putting a latch on door from outside—Then, injured was brought dead to C.H.C. Auraiya at 5.10 a.m. on 24.12.2008 by petitioner Station Officer—He was described as an unknown person—In post-mortem of deceased there were 23 injuries on head and also on all other parts of body of deceased—Evidence collected by Investigating Agency, detail mobile conversations during relevant period with petitioner (Hoshiyar Singh, S.O.) and petitioner (Vibha Tiwari), wife of co-accused Shekhar Tiwari, M.L.A. between petitioner (Manju Pandey), representative of Shekhar Tiwari, M.L.A., and co-accused Yogendra Dohre, Ex-District President B.S.P. and also of Vibha Tiwari (petitioner-accused) with co-accused Rambabu—Those were phone calls between deceased (Manoj Gupta) and co-accused Shekhar Tiwari prior to incident—In petition, petitioners contended that they were falsely implicated in the case, as their names were not in F.I.R.—First petitioner, Hoshiyar Singh, S.O., P.S. Dibiyapur also pleaded that he was falsely implicated—As a fall out of steps taken by Government, a charge-sheet was promptly submitted against Shekhar Tiwari M.L.A., Vinay Tiwari, Manoj Awasthi, Pal Singh and Gajraj Singh on 3.1.2009 under Section 302/201, I.P.C.—And cognizance was also taken by concerned Magistrate on 6.1.2009—In writ petitions against Court held that “directions for separating” law and order, and investigation wings of police and other related issues for making investigation process more objective, fair and scientific were issued by apex Court in Prakash Singh’s case and Pramod Kumar’s case—Our anxiety is that if we do not act now to bring about these changes, time may not be too far when there may be no rule of law at all, as every one may decide to take law in their own hands—However, Court directed that investigation may be concluded within six months as far as possible with their own discretion. [Paras 2 to 6, 15 and 16]
By the Court.—These three writ petitions filed for quashing of an FIR dated 24.12.2008 in case crime No. 299 of 2008, under Sections 323/342/457/364/302/201/120-B, IPC and 7 of U.P. Criminal Law (Amendment ) Act, Police Station Divyapur, district Auraiya, are being heard and disposed of together by this common judgment.
2. We have heard Shri G.S. Chaturvedi, learned Senior Counsel in Writ Petition No. 428 of 2009 preferred by Hoshiyar Singh, Shri V.P. Srivastava, learned Senior Counsel in Writ Petition No. 370 of 2009 preferred by Smt. Vibha Tiwari and Shri S.K. Tyagi, learned counsel in Writ Petition No. 903 preferred by Manjul Pandey.
3. We have also heard Shri A.N. Singh, who appeared for the complainant in the writ petitions preferred by Hoshiyar Singh and Smt. Vibha Tiwari and Shri Vikas Sahai learned Additional Government Advocate and have perused the writ petitions and the case diary, which has been produced by the learned Additional Government Advocate on our direction.
4. In a short compass the facts of the case are that an FIR was lodged by Smt. Shashi Gupta at 6.20 a.m. on 24.12.2008 at Police Sation Divyapur, district Auraiya alleging that earlier in the night at about 1.30 or 2.00 a.m. there was a knocking at the door of their house. When her husband, Manoj Kumar Gupta, who was an Engineer enquired as to who was knocking, they replied that they were CID persons from Delhi. Thereupon they broke open the door, whilst Smt. Shashi Gupta hid by locking herself in the bathroom from where she overheard the names of two assailants, Tyagi and Bhatia and her husband crying for mercy. They were saying that first the Executive Engineer would easily pass their bills, but now because of Manoj Gupta’s interference they were not being passed. The assailants were assaulting her husband with lathis and whip. They were also repeatedly talking on a mobile phone. They then took away her husband on a vehicle after putting a latch on the door from outside.
5. The injured was brought dead to CHC Auraiya at 5.10 a.m. on 24.12.2008 by the petitioner Hoshiyar Singh, S.O., P.S. Dibiyapur. He was described as an unknown person.
6. The post mortem report on the body of the deceased Manoj Kumar Gupta on 24.12.2008 at 6.30 p.m. showed the presence of 23 injuries which included contusions, multiple abraded contusions, lacerated wounds, and electrocution marks on different parts of the body of the deceased. There were a large number of injuries on the head region.
7. The investigating agency has also collected evidence of call details of mobile conversations during the relevant period between petitioner Hoshiyar Singh and petitioner Vibha Tiwari, wife of co-accused Shekhar Tiwari, MLA, between petitioner Manjul Pandey, representative of Shekhar Tiwari and co-accused Yogendra Dohre @ Bhatia, ex-district president BSP and also of Vibha Tiwari, with co-accused Rambabu @ Puti. There were also call details of calls between the deceased Manoj Gupta and co-accused Shekhar Tiwari, prior to the incident.
8. So far as petitioners are concerned, it is contended that they were not named in the FIR and have subsequently been implicated in this case and it is claimed that the police wants to arrest them in a mala fide manner even though no case is disclosed against them.
9. With regard to petitioner Hoshiyar Singh, S.O., P.S. Diviyapur it was argued by Shri G.S. Chaturvedi that he has been falsely implicated with a dual intent. It was argued that after the hue and cry were raised in the press and elsewhere against the engineer’s murder the BSP leadership have decided to project an image of fairness, even though they were directly involved in the torture and murder of the engineer to fill party coffers, and to wash their sullied hands they have made a scape goat of the S.O. by first suspending him, and then implicating him in this crime without any legal evidence. Secondly, it is argued that by making Hoshiyar Singh an accused in the offence, the party i
