The Allahabad High Court has disposed of a habeas corpus petition filed for the production of hostages after handing over the investigation to the CBI in the case of burning of bodies after the murder of Varanasi’s missing Shubham Kesari and Ravi Pandey in Mirzapur.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Shamim Ahmed passed this order while hearing a habeas corpus petition filed by Shivam Keshari And Another.
The writ petition has been filed by the petitioners praying for the following reliefs:-
“(I) Issue a writ or direction in the nature of habeas corpus directing respondents to produce the petitioner no.2 (corpus) before the Court on such date and time as the Court may deem fit and proper in the circumstances of the case and also direct the respondents to release the corpus from illegal confinement.
(1-a) Issue a writ order or direction in the nature of mandamus directing the Central Bureau of Investigation to investigate the cause of death and role of the police personals in death of Shubham Keshari (Corpus) and his friend Ravi Pandey and conclude the proceedings within stipulated period of time.
(1-b) Issue a writ order or direction in the nature of mandamus directing that the Judicial Inquiry may be conducted under the supervision of a retired High Court Judge of the Court.
(1-c) Issue a writ order or direction in the nature of mandamus directing the suspension of Senior Superintendent of Police, Varanasi, Station House Officer, P. S. Chowk, Varanasi, Station House Officer, P. S. Jaitpura, Varanasi, Station House Officer, P S. Pandeypur, Varanasi, Station House Officer, P. S. Crime Branch, Varanasi, from service so that the investigation, as directed by the Court may, not be influenced in any manner whatsoever.
The Court noted that by order dated February 8, 2021, the investigation in Case Crime dated January 18, 2021, under Sections 302, 201 IPC, P.S Kotwali, District Varanasi was transferred to the Central Bureau of Investigation, observing as under:
“24. On the facts of the present case as briefly noted in foregoing paragraphs-12 to 18 of this order and also the facts noted in the orders dated 05.01.2021, 06.01.2021, 19.01.2021 and 02.02.2021, and also in view of the nature of allegations, particularly against the State Police and lack of credibility in the investigation by it, we are of the view that to make the process of discovery of truth, credible and to have a fair, honest and complete investigation to instil confidence in the minds of the victim’s family as well of the public, the State Police Authorities should not be allowed to continue with the investigation and instead the investigation in the crime case in question be transferred to the respondent No.8 (Central Bureau of Investigation) for fair, honest, impartial and complete investigation so as to promote the cause of justice. Additional Advocate General for the State-respondents has also agreed for transfer of investigation from SIT to CBI as noted above in paragraph-9. Therefore, we find it a fit case to direct transfer of investigation from State Police/ SIT to CBI, i.e. the respondent No.8 and it is ordered accordingly.
25. Today, when the matter was taken up, this court specifically asked the Additional Advocate General as to whether respondent No.1 has taken any action as per statement made before this court on 02.02.2021. The learned Additional Advocate General admitted that action has not yet been taken against any police officers in terms of the statement of the Secretary (Home) recorded in the order dated 02.02.2021, but the action to be taken is under consideration of the State Government for which procedure is being followed.
26. Considering the facts and circumstances mentioned above and also no objection of the respondent No.1 for investigation by the respondent No.8, we direct the State – respondents including the SIT to forthwith transfer investigation to the respondent No.8 in First Information Report being Case Crime No.0006/2021 dated 18.01.2021 under Sections 302, 201 IPC, P.S. Kotwali District Varanasi. The respondent No.8 is directed to take up the investigation in the aforesaid FIR/ Case Crime No.006/2021 dated 18.01.2021 and complete the investigation fairly, impartially and in accordance with law, expeditiously. On the next date fixed, an affidavit on behalf of the respondent No.8 shall be filed indicating that the investigation in the above matter has been started by it. Thus, relief No.(1-a) stands.
27. So far as the relief No.(1-b) is concerned, presently we do not find any good reason to issue directions for judicial inquiry in the light of the grant of relief No.(1-a).
28. So far as the relief No.(1-c) is concerned, we abstain from issuing any order in exercise of powers under Article 226 of the Constitution of India in view of the assurance of the Home Secretary, Government of U.P. noted in the aforequoted order dated 02.02.2021.
Question left open:-
29. Whether rule of law should prevail and fundamental rights guaranteed to people under Articles 14 and 21 of the Constitution of India should be observed or deliberate inaction, misconduct and dereliction in duty of officers, if any, should be excused or protected, is an important question before the State Government under the facts and circumstances of the present case. Keeping in mind the statement of the Home Secretary noticed in the aforequoted order dated 02.02.2021 and the observations of the Supreme Court in Mohd. Haroon and others vs. Union of India and another14, (para-129), that “the officers responsible for maintaining law and order, if found negligent, should be brought under the ambit of law irrespective of their status,” we presently leave this question open to the wisdom of the State Government for proceeding departmentally against erring officers strictly in accordance with law.”
The corpus has been murdered and the investigation was entrusted to the CBI. Since the matter has been investigated by the CBI. Now, no cause of action survives in the habeas corpus writ petition,” the Court said.
“Under the circumstances, the habeas corpus writ petition is disposed of. The question as mentioned in paragraph-29 of the order dated 8.02.2021 is left open and we leave it to the State Government for appropriate action in the light of the detailed facts and observations made in the orders dated 19.01.2021 and 8.02.2021,”
-the Court ordered.