Akash Saxena vs State of Uttar Pradesh and Others

Heard learned counsel for the petitioner, learned AGA for the respondent Nos. 1 to 4 and Sri Mumtaz Ahmad Siddiqui, learned counsel for the respondent No. 5. At the very outset, Sri Siddiqui has informed the Court that the charge-sheet in this case has been filed against the mother of the petitioner and the investigation against the petitioner is still pending.

This is a peculiar case, where the grand mother of the petitioner has allegedly committed suicide after consuming some poisonous substance. The FIR has been lodged by none other than the grand father of the petitioner, who is the respondent No. 5. The allegations in the FIR are that the wife of the complainant felt harassed at the hands of the petitioner and his mother due to family circumstances indicated therein and that she consumed poison on the fatal day after writing a suicide note. This is how the petitioner alongwith his mother is sought to be prosecuted under Section 306 I.P.C.

Learned counsel for the petitioner submits that the family dispute was on account of the disturbed marital relationship of the husband and wife who are parents of the petitioner. In this regard, litigation was going on and the matter reached up to the Apex Court in the year 2011 where an indication was given that they have settled their dispute and they have started living together whereupon the Apex Court passed orders on 25.2.2011, copy whereof has been filed as Annexure-2 to the writ petition. However, it appears that this incident took place where after the parties started leveling allegations against each other. The FIR came to be questioned by the petitioner and his mother in writ petition No. 765 of 2013. The writ petition was dismissed making observations that the petitioners may apply for bail.

On a dismissal of the said writ petition on 23.1.2013, copy of the order whereof is Annexure-1 to the writ petition, the petitioner alongwith his mother made a second attempt by filing an Application under Section 482 No. 15122 of 2014, which was disposed of by the following order:

"Heard learned counsel for the applicants, learned A.G.A. and perused the record.

The applicants have filed this application under Section 482 of the Code of Criminal Procedure 1973, (in short ''the Code'') seeking direction to the lower Court concerned to consider and decide their bail applications on the same day if filed by the applicants in the Court below in Case Crime No. 1137 of 2012, under Section 306 I.P.C. Police Station-Kotwali, District-Rampur.

It is submitted by the learned counsel for the applicants that the Court below be directed to consider and dispose of bail application of the applicants on the same day on which it is to be filed, in view of law laid down in the case of Amrawati and another v. State of U.P., 2004 (57) ALR 290 , which has been affirmed by the Hon''ble Supreme Court in Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, (2009) 7 JT 327 : (2009) 4 SCALE 77 : (2009) 4 SCC 437 : (2009) 4 SCR 1027 : (2009) 4 UJ 1588 .

Learned A.G.A. repudiates the submission made as above. It is argued that this Court cannot exercise its inherent power under Section 482 of the Code giving direction regarding the manner in which the bail application of the applicants should be considered by the Court below as held by the Apex Court in S.E. Investment Ltd. v. Purnendu Shekharmal Jain and others, in Criminal Appeal No. 1493 of 2012.

A seven Judges Bench of this Court in Amrawati''s Case (Supra) has dealt with comprehensively with the law in respect to the prayer for hearing the bail application on the same day which has been approved by the Apex Court in Lal Kamlendra Pratap Singh''s Case (Supra).

The law declared by the Hon''ble Supreme Court shall be binding on all Courts. All authorities, civil and judicial in the territory of the country shall act in aid of the Supreme Court as enshrined under Articles 141 and 144 of the Constitution of India. Therefore, no specific direction need be issued to follow the law laid down as above in Lal Kamlendra Pratap Singh''s Case (Supra). The Courts below are supposed to follow the law laid down as above by this Court in Amrawati''s Case (supra) which has been approved by Hon''ble Supreme Court in Lal Kamlendra Pratap Singh''s Case (Supra) in letter and spirit.

The application is disposed of finally."

The complainant on the other hand had earlier come up before this Court by filing Criminal Misc. Writ Petition No. 8743 of 2013 where a direction was issued that the police may monitor a fair and impartial investigation in this regard. The said order dated 8.5.2013 is extracted herein under:

"Heard learned counsel for the petitioner and learned AGA.

This writ petition has been filed by the petitioner with the prayer that a suitable direction may be given to the respondent Nos. 2 and 3 to arrest respondent Nos. 4 and 5 in Case Crime No. 1137 of 2012, under Sections 306 I.P.C. P.S. Kotwali Rampur, District Rampur.

From perusal of record, it appears that the petitioner is the first informant in the case. The direction for making arrest of the respondent Nos. 4 and 5 cannot be issued. In case he is having any grievance, the same may be raised before the S.P. Rampur, who shall look into the matter so that fair and impartial investigation may be ensured.

With the aforesaid direction the writ petition is disposed of."

Now, the petitioner has come up praying that the investigation is not being carried out fairly inasmuch as the statement of the accused have not been recorded by the Investigating Officer and that after the investigation was handed over to a Special Investigation Team, it has not been carried out and the police are trying to help the respondent No. 5. It is in this background that the petitioner prays that the authorities be directed to transfer the investigation from the local police to the C.B.C.I.D., a copy of the application dated 22.1.2014 is filed as Annex-ure-9 to the writ petition, where a request has been made to Deputy Inspector General of Police for issuing necessary directions.

It may be reiterated that this application is prior in point of time to the disposal of the 482 Application on 1.5.2014. It is not understood that if this was the situation, then the learned Single Judge ought to have been apprised of the pendency of such an application.

Learned AGA has invited the attention of the Court to the circular issued by the Principal Secretary, Government of Uttar Pradesh dated 22.10.2014, whereby in view of the directions issued in the case of Vandana Srivastava and another v. State of U.P. and others, C.M. Writ Petition No. 6973 of 2014 decided on 21.5.2014, certain directions have been issued before proceeding to transfer an investigation from the local police to the C.B.C.I.D. These directions are in relation to the earlier circular dated 5.9.1995 which have been now clarified through a check list indicating as to how such matters shall proceed after an application is filed for transfer for investigation to the C.B.C.I.D. The same has been placed before the Court, which is extracted herein under:

Having considered the submissions raised and having perused the record, at this stage, it cannot be said that as to whether all the conditions do exist for transfer of investigation inasmuch as the police have investigated the matter and have filed a charge-sheet only against the mother of the petitioner. No charge-sheet has been filed against the petitioner. In this view of the matter, the petitioner''s apprehension that fair investigation is not being carried out does not appeal to us at this stage.

So far as transfer of investigation is concerned, we are of the view that the same is subject-matter of consideration in the light of the circular dated 22nd October, 2014 and the check list appended thereto. In the circumstances, we leave it open to the competent authority before whom an application has been filed by the petitioner to take an appropriate decision in the light of the said circular after making such inquiry as the said authority may deem fit in the circumstances of the case. The writ petition is disposed of with the aforesaid observations.