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Allahabad High Court reinforces that investigation of criminal case cannot be transferred at behest of accused

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The Allahabad High Court while allowing the petition said that the investigation of a criminal case cannot be transferred at the behest of the accused.

The Division Bench of Justice Vivek Kumar Birla and Justice Kshitij Shailendra passed this order while hearing a petition filed by Gaurav Tripathi.

The petition has been filed claiming following reliefs:-

“(a) Issue a writ, order or direction in the nature of mandamus calling for the record of order dated 17.05.2022 passed by respondent number 3, being number V.I.P-15/ 39-4-2022- 50 ,e e (01)/2021 and further to issue a writ of certiorari quashing impugned order dated 17.05.2022 and consequential order dated 02.06.2022 passed by respondent number 7 directing transfer of investigation of Case Crime Number 5 of 2021 from Gorakhpur Sector of Uttar Pradesh (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment).

(b) Issue a writ, order or direction in the nature of mandamus commanding upon the respondent number 4 to pass appropriate order under section 19 of The Prevention of Corruption Act, 1988 on the police report submitted in First Information Report dated 16.09.2021 bearing Case Crime Number 5 of 2021, under section 7 The Prevention of Corruption Act, 1988 Police Station Gorakhpur Sector (Vigilance Establishment), District Gorakhpur.”

The necessary facts giving rise to the petition are that the petitioner was working as Assistant Teacher at Primary School, Barhauwa, Vikas Khand Saltauva, Gopalpur and on 26.08.2021, petitioner was suffering from cold, cough, fever etc. problem and for medical treatment he went to District T.B Hospital, Basti; on account of aforesaid medical problem, petitioner took leave on 26.08.2021, the said information was duly communicated to the Principal of school and it was duly noted in the school register; the online portal for sanction of leave was nonfunctional (due to technical error) in the entire Uttar Pradesh from 21.08.2021 to 27.08.2021, that is why petitioner applied offline for the leave and the information was given to respondent no10; the respondent no10 visited the school on 26.08.2021 and created a chaos there.

He has also made overwriting in the attendance register and marked petitioner absent; as soon as the petitioner got the abovementioned information from school staff after he came back on 28.08.2021, he went to meet private respondent after school hours; the petitioner was asked to meet at 06:00 pm in front of Boons restaurant at District Basti and there an illegal demand of Rs 10,000/- (finally settled for Rs 7,000/-) was raised by respondent no 10 from petitioner; on the said illegal demand being raised by respondent no 10, a complaint dated 06.09.2021 was made before Superintendent of Police, Vigilance Department, Gorakhpur raising his grievances; acting on the said complaint dated 06.09.2021, inquiry was done, averments of complaint were found genuine and it came into the knowledge that respondent no 10 is a corrupt officer; later on after following due process, trap was organized on 15.09.2021 and respondent number 10 was caught red handed by the trap team taking bribe of Rs 7,000/-; for the offence committed by respondent no10, first information report dated 16.09.2021 was registered at Police Station Gorakhpur Sector (Vigilance Establishment) under Section 7 of the Prevention of Corruption Act, 1988 against respondent no10; once respondent no10 was arrested and sent to judicial custody, vide order dated 24.09.2021 he was suspended; bail application was moved by the respondent no10 before Additional District and Sessions Judge (P.C Act), Gorakhpur and the same was rejected vide order dated 28.09.2021; being aggrieved by bail rejection order dated 28.09.2021, Bail Application was filed before the Court; since charge sheet was not submitted within prescribed period, therefore an application under section 167(2) Cr.P.C was moved by the respondent no10 before the court below with a prayer to release on bail; Investigating Officer and Special Public Prosecutor submitted report before the court below that entire documents were sent to the Government but prosecution sanction had not been given; the Additional District and Session Judge (P.C Act), Gorakhpur granted bail to respondent no 10 vide order dated 16.11.2021; once bail application of respondent no 10 was allowed by the court below, bail application filed before the Court was dismissed as infructuous vide order dated 09.12.2021.

It is contended by the counsel for the petitioner that the respondent no 10, after having been released from jail, is threatening the petitioner to get the matter compromised.

Counsel for the petitioner submitted that thereafter the order dated 17.05.2022 and consequential order dated 02.06.2022 has been passed and the investigation in relation to Case has been transferred from Gorakhpur Sector to Lucknow Sector at the behest of the accused person.

He further submitted that the order impugned dated 17.05.2022 has been passed on the recommendation of political persons to accord benefit to the respondent no 10.

The sheet anchor of the argument of the counsel for the petitioner is that the investigation could not have been transferred at the behest of accused person and that in this case there was neither any justification nor any occasion for the authorities to transfer investigation once it was clearly opined that the entire proceedings of investigation were already over.

The contention of the counsel for the petitioner to the effect that the impugned transfer order has been passed at the behest of the accused persons stands substantiated from paragraph 2 of the order dated 17.05.2022 (afore-quoted) which speaks that in relation to the concerned trap, taking into consideration the stand taken by Manoj Kumar Singh (respondent no 10), the decision to transfer investigation from Gorakhpur Sector to Lucknow Sector has been taken.

Per contra, the contention of the counsel for the respondent no10 is that he was selected on the post of Block Education Officer on 24.03.2021 and was posted at Block Saltauwa on 29.06.2021 and at the time when inspection of the school was done on 26.08.2021, the petitioner was absent and when the school was inspected again on 01.09.2021, the petitioner was absent on that date too.

In sum and substance the contention of the counsel for respondent no 10 is that fair investigation as well as fair trial is the fundamental right of the accused and, therefore, it is the duty of the investigating agency as well as the courts of law to ensure that investigation is conducted in fair and impartial manner.

“Having heard the counsel for the parties, having perused the record and having carefully examined the ratio laid down in the authorities cited at the Bar, we find that the impugned order dated 17.05.2022 transferring investigation from Gorakhpur Sector to Lucknow Sector of the Vigilance Department is based upon letters of Ministers on the one hand and representation of the accused (respondent no 10) on the other. The order impugned does not disclose any other cogent or valid reason for transferring the investigation.

Even from perusal of affidavit of Awanish Kumar Awasthi, the Court finds that it is admitted to the State-Authorities that the orders dated 17.05.2022 and 02.06.2022 have been passed after considering the representation moved by respondent No10 (Manoj Kumar Singh). Further stand taken in the affidavit of Awasthi that the reasons for transfer are mentioned in both the said impugned orders, does not stand reflected from the orders impugned as no reason other than political interference and representation of respondent No 10 has been mentioned in both the said orders.

Therefore, we find substance in the arguments of the counsel for the petitioner that the law laid down by the Supreme Court as well as the Court to the effect that investigation normally cannot be transferred at the behest of accused person has been violated in the case and, even otherwise, political interference in the matter of transfer of investigation from one agency to the other is apparent even from bare perusal of the order dated 17.05.2022. The Court does not find any speaking reason or ground which could justify transfer of investigation except the reasons disclosed in the order impugned dated 17.05.2022. Further the case is not of exceptional or rare nature in which transfer of investigation could be said to be justified.

Keeping in view all the aforesaid facts and circumstances of the case, we find that the order dated 17.05.2022 being based on political interference and having been passed at the behest of accused (respondent no10) and being bereft of any valid or cogent reasoning, cannot be sustained and is liable to be set aside. Similarly the consequential order dated 02.06.2022 also cannot be sustained and is liable to be set aside”, the Court observed while allowing the petition.

“The order dated 17.05.2022 as well as consequential order dated 02.06.2022 transferring investigation of Case from Gorakhpur Sector of U.P (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment) are hereby quashed by issuing a writ of certiorari”, the Court ordered.

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