IMPORTANT POINT
The accused cannot demand a change in the investigating agency without clear evidence of mala fide conduct, emphasizing the need for caution in exercising such powers.

JUDGMENT :

Ram Manohar Narayan Mishra, J.

1. By means of present writ petition, the petitioners, who are accused in present case, have prayed for issuance of a writ of mandamus directing the respondent Nos.1 and 2 to appoint another agency for fair investigation in Case Crime No.116 of 2023, under Sections 452, 376, 313, 506, 323, 427 IPC, P.S. Madhian, District Mirzapur, within stipulated period as fixed by this Hon’ble court.

2. Heard learned counsel for the petitioners, learned counsel for the respondent No.4, Sri Amit Sinha learned AGA for the State and perused the material placed on record.

3. The factual matrix of the case in brief are that the informant moved an application under Section 156(3) Cr.P.C. before the Court of Magistrate in District Court Mirzapur with allegations that on 17.7.2023, at around 7:00 AM, she was alone in the house, accused Girja Shanker @ Gopal (petitioner no.2) forcefully made his entry in her house and asked her for a spade. When she stated that her husband had taken the same to field, he tried to molest her and started touching her private parts by hand whereupon she raised cry. The accused dashed her on a cot and inserted finger in her private part; her husband reached there on hearing her noise, thereupon co-accused Satya Prakash and Devendra Tripathi arrived there together with an unknown person. They dashed her husband on ground and assaulted the victim and her husband by kicks and fists. When the victim prayed for mercy to miscreants on the ground of her pregnancy, then they assaulted her on her abdomen by kicks and have torn her clothes and outraged her modesty. They also assaulted her on her private parts which resulted in bleeding from her private parts and her child got killed in womb. Some persons reached there co-accidentally and then the accused persons fled away from the spot after damaging her household goods and threatening the victim and her husband with life. Her report was not lodged at police station concerned. The FIR was lodged on 27.8.2023, at 17:47 hours vide GD Entry No.032, dated 27.8.2023 time 17:47 hours, at police station concerned following the order of learned Magistrate passed on the application under Section 156(3) Cr.P.C. The police investigated the case and filed a charge-sheet against accused Satya Prakash Tripathi for charge under Sections 313, 323, 427, 452 and 506 IPC. The learned Magistrate took cognizance f the offence and summoned the accused. The investigation has been kept pending against co-accused Girja Shanker @ Gopal and Devendra Tripathi, who are son and father, respectively.

4. Learned counsel for the petitioners against whom the investigation has been kept pending have stated that they have prayed for a writ of mandamus from this Court to appoint another agency for fair investigation in said criminal case. FIR version is totally wrong, baseless and concocted. Petitioner No.1 is a very old person of 75 years of age and petitioner No.2 is his son. It is inconceivable that father and son would involved in such type of offence together. The FIR has been lodged maliciously by the informant by filing an application under Section 156(3) Cr.P.C. before the Magistrate. The said application was filed belatedly before the Court after 9 days of the incident i.e. on 26.7.2023. The real bone of contention between the parties is that a partition suit bearing Case No.38 of 2017, under Section 116 of UP Revenue Code is pending before the Court of Sub Divisional Magistrate, Mirzapur, in which petitioner No.1 is plaintiff and other co-owners are respondents. The respondent No.4 (Informant) on the basis of a forged sale deed dated 4.6.2020, filed a mutation case before Tehsildar, Madhian, which bears Case No.91/631 of 2020 (Nitu Kumari vs. Rajendra Prasad), which is pending in the Court of Nayab Tehsildar, Madhian, in which petitioner No.1 filed objection. When the informant and her colleagues came on spot to take over possession of the land, then the petitioner got