# Bennet Castelino v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-29
- **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bennet-castelino-v-state-of-u-p-ors-44360
- **Pages:** 12

## Text

8 All. Bennet Castelino Vs State Of U.P. & Ors.
593
(2016) 8 ILRA 593
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Misc. Bench No.- 9910 Of 2016

Bennet Castelino ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Bennet Castelino(In Person)

Counsel for Respondents:
Govt. Advocate, Gyan Prakash, Rishad Murtaza

Legislation referred to : Code of Criminal Procedure, 1973 - S. 161; Indian Penal Code, 1860 - S. 364;
Constitution of India - Art. 226.

NATURE OF PROCEEDINGS :
Public Interest Litigation filed under Article 226 of the Constitution of India praying for issuance of a writ of
mandamus directing the Central Bureau of Investigation (CBI) to investigate the mysterious disappearance of
Dr. Rahul K. Sachan, a key prosecution witness in the criminal cases pending against Asumal Harpalani alias
Asaram Bapu and his son Narayan Sai in the States of Rajasthan and Gujarat, who went missing on
25.11.2015 while under State police protection.

FACTS :
Dr. Rahul K. Sachan (son of Ram Kumar Sachan of Kanpur) was a key prosecution witness in criminal cases
pending against Asumal Harpalani alias Asaram Bapu and his son Narayan Sai at Jodhpur (Rajasthan) and at
Surat and Ahmedabad (Gujarat). He had described himself as the Personal Assistant of Asaram Bapu from
2009 to 2013 with personal knowledge of the accused's activities. Apprehending threat to his life, he had filed
an affidavit in Writ Petition (Criminal) No. 156 of 2015 before the Supreme Court of India seeking protection.
The Supreme Court, vide order dated 14.09.2015, directed the Trial Court to provide adequate protection to
witnesses apprehending genuine threats. Pursuant thereto, Dr. Sachan was granted State protection in the
form of a police Gunner.
Constable Vijay Bahadur, the regular Gunner assigned to Dr. Sachan, proceeded on leave for one week w.e.f.
21.11.2015, during which Constable Amit Kumar Singh from the Reserve Police Lines was deputed in his
place. On 25.11.2015, Constable Amit Kumar Singh, at the request of Dr. Sachan, took him on a motorcycle
from his residence at Mari Mata Mandir, Campbell Road, Balaganj, Lucknow to the Kaiserbagh Bus Station,
Lucknow at 9.00 a.m. and left him there. Dr. Sachan stated he would return the next day and would
telephone. No such call was received and his mobile phone was found switched off thereafter. Despite this,
the FIR was lodged only on 20.12.2015 - approximately one month after the disappearance - as Case Crime
No. 1071 of 2015 under Section 364 IPC, P.S. Thakurganj, District Lucknow.
594 INDIAN LAW REPORTS ALLAHABAD SERIES

The petitioner Bennet Castelino, a practising Advocate and Barrister enrolled with the Bar Council of
Maharashtra and Goa, had earlier filed Writ Petition (Criminal) No. 156 of 2015 before the Supreme Court
seeking protection for Dr. Sachan and thereafter filed Writ Petition No. 14 of 2016 before the Supreme Court
for transfer of investigation to CBI. The Supreme Court, by order dated 04.03.2016, granted liberty to the
petitioner to approach the High Court of Allahabad with a similar prayer. The present PIL was accordingly
filed.
The case diary was produced before the Court. The call data record of Dr. Sachan's mobile phone, obtained
by the then Investigating Officer in December 2015 itself, disclosed that his last location on 25.11.2015 was at
Mohalla Mallawan, District Hardoi. Despite this information, the subsequent Investigating Officer who took
charge on 09.04.2016 proceeded to investigate at Hardoi only after six months, on 03.06.2016. The Gunners
and security personnel provided to Dr. Sachan were not subjected to any meaningful interrogation. The entire
investigation was confined to paper formality - trips to New Delhi to a female friend's residence, to Kanpur to
his father's residence, and publication of a missing report in newspapers on the basis of a Panchkula ration
card. No action was taken against any of the investigating officers.
After the PIL came up before the Court, the State responded by awarding censure entries to the two Gunners
(Constable Vijay Bahadur and Constable Amit Kumar Singh) vide orders dated 18.08.2016, constituting a
Special Investigation Team (SIT) vide letter dated 21.08.2016 of the Additional Director General of Police
(Law & Order), Lucknow, and ordering a preliminary enquiry by the Additional Superintendent of Police (City)
(West), Lucknow. The learned Additional Advocate General urged that these steps demonstrated genuine
intent to investigate and that the SIT should be permitted to continue. However, the Court noted that all
these steps were taken only after and owing to the pendency of the present PIL before the Court.

QUESTIONS OF LAW :
(i) What are the principles governing transfer of investigation from the State Police to the Central Bureau of
Investigation (CBI) under the writ jurisdiction of the High Court under Article 226 of the Constitution of India,
and whether a last-minute constitution of a Special Investigation Team (SIT) by the State, taken only after
the matter comes to court and found to be lacking in credible investigation, would be sufficient to decline such
transfer?
(ii) Whether the slipshod, dilatory and non-diligent investigation conducted by the State Police into the
mysterious disappearance of a protected prosecution witness in a high-profile criminal case, compounded by
delayed FIR registration, non-interrogation of assigned security personnel, and failure to pursue leads from
call data records for months, warrants transfer of investigation to the CBI to preserve public confidence in the
criminal justice system?

HELD :
(i) Principles governing transfer of investigation to CBI - The power of the High Court under Article
226 of the Constitution to direct transfer of a police investigation to the CBI is well-settled. Such transfer is
warranted where the investigation conducted by the State Police has been found to be unfair, non-diligent,
slipshod or lacking in credibility, and where continued investigation by the State Police would fail to inspire
public confidence in the criminal justice system. The power is to be exercised sparingly and with great
caution, but it is available where the peculiar facts and circumstances of the case so demand. The nature of
the crime, the identity of the missing person as a key prosecution witness in a high-profile criminal case, and
the manner in which the investigation has been conducted are all relevant considerations. [Relied upon:
Secretary, Minor Irrigation v. Sahngoo Ram Arya, (2002) 5 SCC 521; State of West Bengal v. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571; Pooja Pal v. Union of India, (2016) 1 Crimes 626]
(ii) Failure to investigate diligently - Flawed investigation established from case diary - A
perusal of the case diary placed before the Court prima facie establishes a complete lack of diligence in the
investigation. Despite the call data record of the missing person's mobile phone disclosing his last location at
District Hardoi on 25.11.2015, the Investigating Officer who took charge on 09.04.2016 visited Hardoi for
investigation only on 03.06.2016, i.e., more than six months after the disappearance. The two Constables who
8 All. Bennet Castelino Vs State Of U.P. & Ors.
595
were assigned as Gunners to Dr. Sachan on and immediately before the date of his disappearance were not
subjected to any meaningful interrogation. The FIR itself was lodged after a delay of approximately one
month. The sum and substance of the investigation is a paper formality. There is not a single piece of credible
investigative work disclosed in the case diary that could inspire confidence. The possibility of involvement of
police personnel in the disappearance has not been examined at all.
(iii) Last-minute constitution of SIT - Insufficient to decline transfer of investigation - The
constitution of a Special Investigation Team (SIT) by the State, and the issuance of censure entries to the two
Gunners, almost simultaneously with and after the pendency of the present PIL and the Court's orders, cannot
be regarded as a genuine and independent step to remedy the investigation. These steps came too late in the
day and do not inspire confidence that the investigation will be conducted fairly and diligently by the State
machinery. The request of the learned Additional Advocate General to allow the SIT to continue the
investigation is accordingly declined. The principles laid down in all the judgments relied upon by the learned
Additional Advocate General are consistent with the approach adopted herein and do not lead to a different
conclusion on the peculiar facts of the present case.
(iv) Protected prosecution witness - Disappearance under State guard - Public confidence in
justice system - The missing person Dr. Rahul K. Sachan was not an ordinary citizen but a prosecution
witness who had specifically apprehended threats to his life, who had approached the Supreme Court of India
for protection, and who had thereafter been provided with a State police Gunner. The fact that he went
missing precisely during the period of State protection, and that the investigation into his disappearance was
thereafter conducted in the slipshod manner disclosed in the case diary, completely undermines public
confidence in the criminal justice system. It is imperative in cases of this nature that investigation be
entrusted to an independent agency unconnected with the State police whose personnel may themselves be
required to be interrogated.

DIRECTIONS :
(i) The Central Bureau of Investigation (CBI) is directed to take over the investigation of Case Crime No. 1071
of 2015 under Section 364 IPC, P.S. Thakurganj, District Lucknow, forthwith.
(ii) The State Police is directed to hand over all original records and documents collected during the
investigation to the CBI immediately.
(iii) Sri Rishad Murtaza, Advocate for the CBI, is directed to communicate this order to the CBI and bring it to
the notice of the learned Assistant Solicitor General of India for appropriate action.
(iv) The CBI is expected to conclude the investigation and file its police report expeditiously, preferably within
six months from the date of the order.

RESULT :
PIL disposed of with the aforesaid directions. Investigation of Case Crime No. 1071 of 2015 under Section 364
IPC, P.S. Thakurganj, District Lucknow transferred from the State Police to the Central Bureau of Investigation
(CBI). Liberty reserved to any aggrieved person to approach this Court in the event further directions are
required.

Cases Referred:
Secretary, Minor Irrigation & Rural Engineering Services v. Sahngoo Ram Arya, (2002) 5 SCC 521
(SC)
State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, (2010) 3
SCC 571 (SC)
Pooja Pal v. Union of India, (2016) 1 Crimes 626 (SC);
Subrata Chattoraj v. Union of India, (2014) 8 SCC 768 (SC)
 Sudipta Lenka v. State of Odisha, (2014) 11 SCC 527 (SC)
 K. Saravanan Karuppasamy v. State of Tamil Nadu, (2014) 10 SCC 406 (SC)
 Bharati Tamang v. Union of India, (2013) 15 SCC 578 (SC)
596 INDIAN LAW REPORTS ALLAHABAD SERIES

K.V. Rajendran v. Superintendent of Police, CBCID, (2013) 12 SCC 480 (SC)
Sukiri Vasu v. State of U.P., (2008) 2 SCC 409 (SC)
W.P. No. 18005 of 2016 (PIL) - Rape with Mother and Daughter at NH91 (All HC - DB).

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Dr. Vijay Laxmi, J.)

1. This P.I.L. was entertained on 6.5.2016 and the following order was passed:-

"Notices on behalf of respondent Nos.1 and 2 have been accepted by learned
Government Advocate and for the respondent No.3 notice has been accepted by Mr.Alok Singh,
learned Advocate holding brief of Mr.Rishad Murtaza, learned Advocate.

The petitioner has prayed for issuing a mandamus to the Central Bureau of
Investigation, New Delhi to investigate the disappearance of Mr.Rahul Sachan, prime prosecution
witness in the case of death and assault of Asumal Harpalani aka Asaram Bapu.

Mrs.Ruhi Siddiqui, learned Government Advocate, on the basis of instructions, has
submitted that in the matter an First Information Report has been lodged and the matter is under
police investigation. She has sought two months time to bring on record the investigation.

Time as prayed for is allowed.

List in the 1st week of August 2016."

2. The matter was again heard on 20.8.2016 when this Court had passed the following
order:-

"Heard learned counsel for the petitioner in person and Ms. Bulbul Godiyal,
learned Additional Advocate General for the State.

This petition involves the missing of a prosecution witness in one of the most high
profile cases where the missing person is none else than one of the prosecution witness who had
not only apprehended threats but had also approached the Apex Court seeking an appropriate
protection as a witness in Writ Petition (Criminal) No.156 of 2015 that was disposed of by the Apex
Court on 14.9.2015.

The said prosecution witness who has been described in the investigation
document as Dr. Rahul K. Sachan (described as 'Rahul Sachan' in the petition), and is stated to be
the son of Ram Kumar Sachan of Kanpur, unfortunately went missing according to the First
Information Report on 25.11.2015.
8 All. Bennet Castelino Vs State Of U.P. & Ors.
597
Prior to this, he had been granted State Protection of a police guard. One Mr.
Vijay Bahadur was posted with him. It appears that Vijay Bahadur went on leave for a period of
one week on 21.11.2015 and in between Constable Amit Kumar Singh from the Reserve Police
Lines was pressed into service for his protection. It was during his protection that it is alleged that
Dr. Rahul K. Sachan went missing but the First Information Report was lodged almost after a
month on 20.12.2015. The investigation proceeded under one Sub-Inspector Shri Vijay Pandey,
P.S. Thakurganj, Lucknow and it is alleged that he had obtained the call details record of the
mobile phone of the said Dr. Rahul K. Sachan which indicated his last location on 25.11.2015 at
Mohalla Mallawan, District Hardoi. Thereafter, the investigation appears to have proceeded but
with a pace that discloses that in spite of this information of his last location at Hardoi, the
Investigating Officer who subsequently took charge on 9.4.2016 went to Hardoi for investigating
the matter after six months on 3.6.2016. The case diary has been produced before us. Without
commenting anything further on the materials so collected during investigation, we are, prima
facie, satisfied that this sort of investigation in such a high profile case completely lacks diligence
as well as it dilutes the confidence of the public at large in such high profile cases. We are, prima
facie, satisfied that the investigation has not been diligently carried out and therefore, this Court
may consider grant of relief in the present writ petition for handing over the investigation to the
Central Bureau of Investigation.

Shri Rishad Murtaza is present for the respondent no. 3. He may also obtain
instructions by Monday, i.e.22.8.2016.

In this matter, the entire case diary and the file produced by the Advocate General
are hereby directed to be sealed by the Senior Registrar today itself.

The Bench Secretary shall hand over the said file along with the sealed record to
the Senior Registrar and the same shall be produced before us on Monday.

Put up on Monday, i.e.22.8.2016."

3. Arguments were advanced on 22.8.2016 and the Court summoned the case diary that
was retained in sealed cover in the Court itself. The same was again perused with the help of the
learned Additional Advocate General who also handed down the orders passed by the present
Senior Superintendent of Police, Lucknow dated 18.8.2016, whereby censure entries were awarded
to Constable Vijay Bahadur and Constable Amit Kumar Singh, the two Constables who were on
duty as Gunners for the protection of Dr. Rahul K. Sachan recording that there was a dereliction of
duty and negligence on their part. The two orders have been placed before the Court.

4. The Senior Superintendent of Police also handed over a letter dated 21.8.2016 whereby
the Senior Superintendent of Police has called upon the Additional Superintendent of Police (City)
(West), Lucknow to undertake a preliminary enquiry in the case in question as it appeared that the
investigation had not been carried out in depth nor any sufficient interest had been shown in the
598 INDIAN LAW REPORTS ALLAHABAD SERIES

investigation indicating negligence and slackness on the part of the Station House Officer or the
officials involved in the investigation. The same is also taken on record.

5. The fourth letter placed before the Court dated 21.8.2016 has been issued by the
Additional Director General of Police (Law & Order), Lucknow Sri Daljeet Singh Chaudhary
calling upon the Inspector General of Police (STF) and the Senior Superintendent of Police (STF),
Lucknow to take over the investigation to be conducted by a Special Investigation Team in view of
the special circumstances of the case. The Senior Superintendent of Police had also passed the
order to that effect constituting a Special Investigation Team (SIT) and a copy of the said letter has
also been placed on record.

6. All these letters emanated almost simultaneously after the present petition remained
pending before the Court and after the Court had passed the orders quoted here-in-above.

7. The petitioner-Mr.Bennet Castelino while disclosing his credentials has described
himself as an Overseas Indian Citizen presently residing at 60, Castlefinn Drive, Auckland, New
Zealand 2103 and being a Lawyer practicing at Mumbai has also given his Indian Address as 15,
DG Chambers, Nagindas Master Road, Fort, Mumbai - 400 001. He had earlier filed a Writ Petition
(Criminal) No. 156 of 2015, Bennet Castelino versus Union of India and others, before the
Supreme Court of India for securing adequate protection to the witness Rahul K. Sachan in the
criminal case that has given rise to this P.I.L. and the same was disposed of at the instance of the
petitioner on 14.9.2015 by the following order:-

"Looking at the peculiar facts of the case, we direct that the Trial Court shall give
adequate protection to the witnesses who approach the Trial Court apprehending some threat, if,
according to the Trial Court, the threat is genuine.

The Trial Court shall give protection to the witnesses by passing an appropriate
order, wherever it is necessary.

With the above directions, the Writ Petition is disposed of."

8. It appears that a Gunner was provided by the State Government thereafter.

9. He filed another petition before the Apex Court being Writ Petition No.14 of 2016 that
was taken up on 4.3.2016 submitting that the person for whom the protection had been earlier
sought had gone missing and an F.I.R. has been lodged. The petitioner appears to have prayed for
transfer of the investigation to the C.B.I. but the writ petition was disposed of by the same Bench
that had heard the earlier writ petition on 4.3.2016 by the following judgment giving liberty to the
petitioner to file the present writ petition before the High Court:-
8 All. Bennet Castelino Vs State Of U.P. & Ors.
599
"It has been submitted by the petitioner, who appears in person that Rahul Sachan,
who was one of the witnesses is now missing. A complaint with regard to the incident has already
been lodged in the State of Uttar Pradesh.

In the circumstances, it will be appropriate if the petitioner approaches the High
Court of Allahabad by filing a petition with a similar prayer. If such a petition is filed, the High
Court is requested to look into it and dispose of the same on merits.

In view of the above, the petitioner seeks permission to withdraw this writ petition
so as to approach the High Court of Allahabad.

Permission is granted.

The writ petition is, accordingly, disposed of as withdrawn."

10. The petitioner has described himself as a practicing Advocate and the Member of the
Bar Council of Maharashtra and Goa enrolled on 27.2.1985 and also a member of The Institute of
Company Secretaries of India as well as a qualified Chartered Secretary holding qualifications in
Commerce, Law, Finance and Management. He has also stated that he is a Barrister and Solicitor as
well of the High Court of New Zealand with eligibility to practice Law in Australia. Disclosing his
financial status, he has stated that he is a Tax Payer Overseas and is also filing Income Tax Returns
in India. To explain his bona fides, the petitioner has disclosed his social activities and has stated
that he has filed numerous P.I.Ls especially for protecting the rights of Christian beneficiaries and
Christian trust properties. Several other pursuits have been disclosed by him indicating that he has
no private motive, personal gain or oblique reason for filing this P.I.L.

11. The petitioner has disclosed that since he was keenly following the arrest of one
Asumal Harpalani aka Bapu Asaram, he came across Dr. Rahul K. Sachan on whose behalf he filed
the earlier writ petition. He also disclosed that he was in constant touch with Dr. Rahul K. Sachan
but he lost contact since 21.11.2015. This sudden disappearance and absence of any trace inspite of
an F.I.R. having been lodged led to the filing of this P.I.L. for transferring the investigation.

12. The criminal case giving rise to this controversy appears to have it's genesis in the trial
against Asumal Harpalani aka Asaram Bapu and his son Narayan Sai as well as other associates
with regard to which criminal cases are going on in the State of Rajasthan at Jodhpur and in the
State of Gujarat at Surat and Ahmedabad. Dr. Rahul K. Sachan is stated to be one of the witnesses.
Apprehending threat of his life Dr. Rahul K. Sachan describing himself as the Personal Assistant of
Asumal Harpalani aka Asaram Bapu since 2009 to 2013 and having personal knowledge of the
activities of the accused, he filed an affidavit to that effect in Criminal Writ Petition No.156 of
2015 that had been earlier filed by the petitioner seeking adequate protection, the order whereof has
been extracted here-in-above. A copy of the affidavit of the said Dr. Rahul K. Sachan and also one
of Mahender Chawla who is also a prosecution witness in the case registered at Jodhpur alongwith
Dr. Rahul K. Sachan is on record of this petition. It is in this background that this prosecution
600 INDIAN LAW REPORTS ALLAHABAD SERIES

witness Dr. Rahul K. Sachan who was having the protection of a Gunner from the said police went
mysteriously missing and this disappearance is stated to have occurred on 25.11.2015.

13. We had called upon the State to produce the case diary that has been placed before us
and we find from the narration in the information registered on 20.12.2015 that Constable Vijay
Bahadur who was on duty with Dr. Rahul K. Sachan went on leave for a week w.e.f. 21.11.2015 for
seven days that had been sanctioned. During his leave, Constable Amit Kumar Singh was posted in
his place as a Gunner with Dr. Rahul K. Sachan. The said Amit Kumar Singh while giving his
statement under Section 161 Cr.P.C. during investigation has stated that on 25.11.2015, on the
asking of Dr. Rahul K. Sachan, he took him on a motorcycle from his residence at Mari Mata
Mandir, Campbell Road, Balaganj, Lucknow at 9 A.M. to the Kaiserbagh Bus Station, Lucknow
where he left him. According to Amit Kumar Singh, Dr. Rahul K. Sachan had stated that he is
going somewhere and he would be coming the next day whereupon he shall call on phone.
However, no such phone call was received on the next day and when the said Constable tried to
contact him on his mobile phone the same appeared to be switched off. He then informed the
Shadow/Gunner In-charge orally in the Police Lines at Lucknow but he did not remember the day
and time about such information. The case diary also discloses that the Original Gunner Sri Vijay
Bahadur who had been posted along with Dr. Rahul K. Sachan after returning from a week's leave
was informed by Mr. Afzal Hasan Mehandi, Shadow/Gunner In-charge in the Police Lines on
30.11.2015 that Dr. Rahul K. Sachan had gone to some unknown destination who can return back
any time, and believing this, the said Constable Vijay Bahadur reached the residence of Dr. Rahul
K. Sachan where he did not find him. He tried to contact him on his mobile but the same was
switched off. This information was again conveyed to Shadow/Gunner In-charge Mr. Afzal Hasan
Mehandi. The date mentioned in the case diary is 1.11.2015 which is being explained by the
Additional Advocate General that it may be an error as it can be 1.12.2015. The said Constable
Vijay Bahadur was asked by the Shadow/Gunner In-charge that until further orders, he should
station himself at the residence of Dr. Rahul K. Sachan. The absence of Dr. Sachan according to
Constable Vijay Bahadur was being reportedly given orally but on 17.11.2015 this was done in
writing and he was again asked to continue at the residence of Dr. Sachan. The F.I.R. was lodged
almost after a month on 20.12.2015 and was registered as Case Crime No.1071 of 2015 under
Section 364 I.P.C., P.S. Thakurganj, District Lucknow.

14. The case also reveals that after lodging of the F.I.R., the then Investigating Officer had
obtained the call data record of the mobile phone of Dr. Rahul K. Sachan in December itself and
his last location according to the said call data on 25.11.2015 was at Hardoi nearby a town of
Lucknow. The case diary does not indicate any such effort on the part of the then Investigating
Officer, except for the fact that trips were made to New Delhi at the residence of a female friend of
the missing person and then also to Kanpur where his father resided.

15. The surprising part is that there is hardly any investigation or interrogation of the two
Gunners, the Shadow/Gunner In-charge of the Police Lines or those connected with the security of
the missing person in order to have a clue as to why they did not possess any information about his
whereabouts after having left Lucknow on 25.11.2015. The case diary does not indicate any
8 All. Bennet Castelino Vs State Of U.P. & Ors.
601
interrogation further worth the name from Constable Amit Kumar Singh who was in his security as
a Gunner with Dr. Rahul K. Sachan on the date when he went missing. The Investigating Officer
who was then conducting the investigation has maintained the case diary in a manner, which is not
proper to be discussed at this stage, except for the fact that some documents were collected and a
missing report was published in the newspapers on a ration card of Panchkula in Haryana and about
the information at Delhi in Govind Ganj near Kalkaji Mandir, New Delhi where a visit appears to
have been made but with no clue in the case diary at all. The subsequent Sub-Inspector who took
over the investigation in April, 2016 his memos do not indicate any information worth the name or
investigation having been conducted so as to inspire confidence. The sum and substance of the case
diary that has been placed before the Court is that a paper formality appears to have been concluded
in a crime of this nature.

16. The learned Additional Advocate General has filed an affidavit of Mr. Ram Bahadur
Pal, the current Investigating Officer who is a Sub-Inspector at P.S. Thakurganj, District Lucknow
wherein it is stated that in January, 2016, the then Investigating Officer had gone to the residence of
one Ekta Verma in Delhi and few other persons were also contacted but the gap thereafter in the
case diary has nowhere been explained. There is nothing on record to indicate that any serious
effort was made at all in this regard.

17. It is in this background that the respondent-State appears to have now tried to give a
hope of investigation by constituting a Special Investigation Team (SIT) and giving censure entries
to the two Constables who were on duty as Gunners. No explanation was called for from the
investigating officers nor any action has been taken against them. The learned Additional Advocate
General vehemently urged that serious steps are being taken and there is a genuine effort now to
conduct the investigation and therefore, this Court may consider this aspect of the matter as well
before directing any change of investigation. The learned Additional Advocate General has placed
before the Court the following judgments to urge that applying the principles laid down by the
Supreme Court in the said cases, it would be appropriate to allow the Special Investigation Team
(SIT) to continue the investigation that is likely to bring about results.

(i) Pooja Pal v. Union of India and others [(2016) 1 Crimes 626 (SC) 45]

(ii) Subrata Chattoraj v. Union of India and others [(2014) 8 SCC 768]

(iii) Sudipta Lenka v. State of Odisha and others [(2014) 11 SCC 527]

(iv) K. Saravanan Karuppasamy and another v. State of Tamil Nadu and others
[(2014) 10 SCC 406]

(v) Bharati Tamang v. Union of India and others [(2013) 15 SCC 578]

(vi) K. V. Rajendran v. Superintendent of Police, CBCID, South Zone, Chennai
and others [(2013) 12 SCC 480]
602 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii) State of West Bengal and others v. Committee for Protection of Democratic
Rights, West Bengal and others [(2010) 3 SCC 571]

(viii) Sukiri Vasu v. State of Uttar Pradesh and others [(2008) 2 SCC 409]

18. Having considered the aforesaid aspects, it is not possible for us to gather as to the
circumstances of the missing person conclusively, inasmuch as the missing person Dr. Rahul K.
Sachan may have been quite possibly a victim keeping in view the nature of the crime or
alternatively he could have gone underground voluntarily which is yet a matter of investigation, but
the fact remains that the flaw in the investigation is clearly reflected while interrogating the
Gunners and the security personnel who were provided as Guards for the person of Dr. Rahul K.
Sachan. To proceed to investigate at Hardoi after six months remains unexplained. It is this
surprising part which impels this Court to prima facie believe that the police has failed to carryout
the investigation fairly and diligently. No effort worth the name has been made towards the
possibility of involvement of the police itself that could have revealed something further. The
investigation therefore far from being credible does not inspire confidence. These aspects have
been clearly dealt with and the principles on which an investigation can be transferred has also
been explained in the decision of Secretary, Minor Irrigation & Rural Engineering Services v.
Sahngoo Ram Arya and another [(2002) 5 SCC Page 521]. It has further been followed in the
case of State of West Bengal and others v. Committee for Protection of Democratic Rights
[(2010) 3 SCC Page 571]. The judgments that have been relied on by the learned Additional
Advocate General are almost on the same lines, the latest being that of in the case of Pooja Pal
(supra). These aspects were considered by a Division Bench of our Court very lately in an another
case of prime importance where the investigation was not found to be fairly going in the right
direction in Writ Petition No.18005 of 2016 (PIL) in the Matter of Rape with Mother and
Daughter at NH91.

19. The nature of the crime, the mysterious circumstances in which Dr. Rahul K. Sachan
has gone missing and the slipshod manner of investigation therefore compel us not to believe the
hope expressed for some better investigation by the State which has come too late in the day as
indicated above. We, therefore, decline the request of the learned Additional Advocate General to
get the investigation carried out by the Special Investigation Team (SIT).

20. Consequently, we direct the Central Bureau of Investigation (CBI) to take over the
investigation of Case Crime No.1071 of 2015 under Section 364 IPC, P.S. Thakurganj, District
Lucknow forthwith.

21. The case diary that was placed before the Court is being returned to the learned
Additional Advocate General and the concerned Police Station is directed to handover the original
records/documents relating to the investigation collected uptil now immediately to the Central
Bureau of Investigation (CBI), which shall proceed with the investigation.
8 All. Bennet Castelino Vs State Of U.P. & Ors.
603
22. Since Sri Rishad Murtaza, learned Counsel for the CBI has already assisted the Court,
we direct him to communicate this order to the CBI immediately for appropriate action and also
bring it to the notice of the learned Assistant Solicitor General of India for communicating it to the
concerned officials for appropriate action.

23. Since we have issued these directions, we do not find it necessary to keep the matter
pending without prejudice to the rights of an aggrieved person to approach this Court in the event
any further directions are required in this regard.

24. It is expected that the CBI shall conclude the investigation and file the police report
expeditiously, preferably not later than six months from today and if possible earlier.

25. Disposed off with the said directions.
----------
604 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Misc. Bench No.- 10724 Of 2016

Vishal Jaiswal & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Indrajeet Shukla

Counsel for Respondents:
Govt. Advocate.

Legislation referred to : Indian Penal Code, 1860 - Ss. 361, 363, 366; Constitution of India - Art. 226;
Code of Criminal Procedure, 1973 - Ss. 164, 482

FACTS:
Petitioner No. 1 (Vishal) and Petitioner No. 2 (the prosecutrix/alleged kidnappee) got married on 20.04.2016
of their own free will and accord. Respondent No. 4 (father/complainant of the prosecutrix), not accepting the
said marriage, lodged First Information Report bearing Case Crime No. 60 of 2016 under Sections 363 and
366 I.P.C. at Police Station Mankapur, District Gonda against the petitioners. In the course of investigation,
statement of the prosecutrix/petitioner No. 2 was recorded under Section 164 Cr.P.C. wherein she
categorically stated that she had not been kidnapped, that she had voluntarily gone and married Vishal
(Petitioner No. 1), and that she wanted to live with him as his wife. She further stated that she had been
subjected to beatings by her father and had been forced to discontinue her education on account of her love
for Vishal. She expressed apprehension of danger to her life at the hands of her parents. The medical
examination report (Annexure SCA-2) disclosed the radiological/medical age of the prosecutrix to be
approximately 19 years - a fact admitted by the prosecution. The petitioners filed the present writ petition
under Article 226 of the Constitution of India seeking issuance of a writ in the nature of certiorari quashing
the impugned F.I.R. and the consequent proceedings.

ISSUES:
(i) Whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution and
inherent powers under Section 482 Cr.P.C., is competent to quash criminal proceedings at the stage of
investigation/trial, and if so, on what parameters.

(ii) Whether the ingredients of Section 363 I.P.C. read with Section 361 I.P.C. and Section 366 I.P.C. are
satisfied on the facts and circumstances of the case, particularly when the prosecutrix herself states that she
was neither kidnapped nor abducted but had voluntarily accompanied and married the petitioner.