# Bhawani Pher Dubey v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 827
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-18
- **Case number:** Misc. Bench No. 20867 of 2018
- **Bench:** Shabihul Hasnain, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhawani-pher-dubey-v-state-of-u-p-ors-44827
- **Pages:** 7

## Headnote

A. Criminal Law -Indian Penal Code, 1860
-Sections 307, 325, 323, 504 r/w Section
152 Railways Act-cross case-transfer of
investigation-father
of
accused(T.T.E.)
made a request for transferring the
investigation to CBCID just to save him.

B. when statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise.Otherwise, an order bad in the
beginning may, by the time it comes to
court on account of a challenge, get
validated
by
additional
grounds
later
brought out. (Para 7,8,19,20,22)

Petition allowed (E-6)

List of cases cited:-

## Text

3 All. Bhawani Pher Dubey Vs. State of U.P. & Ors.
827
(2019)11ILR A827

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2019

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE RAJEEV SINGH, J.

Misc. Bench No. 20867 of 2018

Bhawani Pher Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Karunakar Srivastava

Counsel for the Respondents:
Govt. Advocate, Sri Rajendra Kumar
Dwivedi

A. Criminal Law -Indian Penal Code, 1860
-Sections 307, 325, 323, 504 r/w Section
152 Railways Act-cross case-transfer of
investigation-father
of
accused(T.T.E.)
made a request for transferring the
investigation to CBCID just to save him.

B. when statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise.Otherwise, an order bad in the
beginning may, by the time it comes to
court on account of a challenge, get
validated
by
additional
grounds
later
brought out. (Para 7,8,19,20,22)

Petition allowed (E-6)

List of cases cited:-

1. Mohinder Singh Gill and another Vs. Chief
Election Commissioner, New Delhi and Ors,
(1978) 1 SCC 405

2. Commr. Of Police, Bombay Vs. Gordhandas
Bhanji, AIR 1952 SC 16
(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri Karunakar Srivastava,
learned counsel for the petitioner, Shri
Rajendra
Kumar
Dwivedi,
learned
counsel for the respondent No.6 and Shri
S.P. Singh, learned counsel for the State.

2. The petition seeks issuance of a
writ in the nature of certiorari quashing
order dated 19.06.2018 passed by Special
Secretary, Home, Government of U.P.
Lucknow
for
transferring
the
investigation of Case Crime No.208 A of
2015 Police Station G.R.P. Gonda on the
choice of accused side.

3. Learned counsel for the petitioner
has submitted that the son of petitioner
was working in Prism Cement Ltd. as
Assistant Manager (Sales) and due to
some official work, he was going to
Faizabad
from
Mankapur by Train
namely
Gorakhpur-Yashwan
Nagar
Express Train No.15023 and at the place
of Tikri. In the meantime, respondent
No.6
who
is T.T.E.
(Train Ticket
Examiner) in the Railways, came and
asked for the ticket and the son of the
petitioner has shown the ticket of General
Class. As a result, the respondent No.6
asked to pay the penalty to the ticket and
demanded Rs.1000/- and the son of
petitioner gave the same but neither the
ticket was made nor any receipt of
payment was given to the son of
petitioner. Therefore, his son requested to
make his ticket and also provide the
receipt of penalty but the opposite party
No.6 denied and started abusing by
showing his own pistol but when his son
raised objection, then he was thrown out
from the running train, as a result, he
received serious injuries and thereafter,
with the help of others, he was
828 INDIAN LAW REPORTS ALLAHABAD SERIES
immediately brought to the Community
Health Centre, Mankapur, District Gonda
and on the advise of doctor therein he was
referred to District Hospital, Gonda, but
due to serious condition and head injury,
his son was admitted in Raj Rajeshwari
Hospital, Faizabad.

4. Learned counsel for the petitioner
has further submitted that one FIR was
lodged as Case Crime No.Nil/29 of 2015
under Sections 332, 353, 392 I.P.C.,
Police Station G.R.P. Faizabad, District
Faizabad by the respondent No.6 with
intention to save him, which was
subsequently converted into the Case
Crime No.208 of 2015, under Sections
332, 353,392 I.P.C. Police Station G.R.P.
District Gonda in which under influence
of opposite party No.6, the chargesheet
under Sections 332 and 353 I.P.C. dated
16.08.2015 was filed by the Investigating
Agency and the ACJM, Railway Gonda
took cognizance and registered the case as
Case No.2833 of 2015.

5. Learned counsel for the petitioner
has further submitted that the FIR of
petitioner was transferred to the Police
Station
G.R.P., District
Gonda
and
registered as Case Crime No.208A of
2015, under Sections 307, 325, 323, 504
I.P.C. read with Section 152 Railways
Act, Police Station G.R.P., District
Gonda.

6. Being aggrieved with the
aforesaid FIR of the petitioner, the
respondent No.6 filed a writ petition
bearing Writ Petition No.10596 (M/B) of
2015 (Anil Kumar Singh Vs. State of
U.P.), the said writ petition was dismissed
vide
order
dated
03.02.2016,
after
considering the counter affidavit filed by
the Prosecuting Agency.

7. Learned counsel for the applicant
further submitted that under the influence
of respondent No.6, the investigation of
Case Crime No.208A of 2015 was going
on but it has been transferred from Gonda
to Deoria and again the matter was
transferred
to
G.R.P.
Gonda.
As
respondent No.6 was searching the
suitability, as a result, being aggrieved
with the aforesaid action for transferring
the investigation, the petitioner filed a
Writ Petition No.2435 (M/B) of 2017
before this Court in which vide order
dated 03.02.2017, this Hon'ble Court
directed
the
learned
counsel
for
Government
Railway
Police
(GRP),
Gonda to produce the original record by
which the investigation of Case Crime
No.208A of 2015(supra) was transferred
from G.R.P. Gonda to G.R.P. Charbagh,
District Lucknow. On several dates, the
time was sought by the learned A.G.A.
but the record was not produced. In the
meantime, final report was filed on
24.03.2017. As it was found by this Court
that Investigating Agency does not appear
to be fair. Therefore, this Hon'ble Court
directed vider order dated 10.05.2017 for
re-investigation by an officer not below
the Rank of Circle Officer and also
directed that the Re-Investigation would
be supervised by Superintendent of Police
G.R.P. The order dated 10.05.2017 passed
in the Writ Petition No.2435 of 2017 is
being reproduced as under:-

"1. Order dated 10.5.2017 reads
as under:-

"1.
The
petitioner
is
complainant of Case Crime No.208-A of
2015, under Sections 323, 325, 307 and
504 IPC read with Section 152 Railway
Act, Police Station GRP, District Gonda.

2. Short counter affidavit of Shri
Santosh Kumar Rai, Sub-Inspector, GRP,
3 All. Bhawani Pher Dubey Vs. State of U.P. & Ors.
829
Charbagh, Lucknow has been filed in
Court, which is taken on record. In para-5
of the affidavit, it has been stated that
there was skirmish between TTE (Train
Ticket Examiner) and other persons.
Scuffle took place. The injured fled from
the spot. No injuries were received by him
(Saurabhdhar
Dubey).
Medical
examination report does not find support
from the statement of the eye-witnesses.

3. We have referred to the injury
report placed on record as Annexure-4
with the main petition. Apparently, as
many as nine stitched wound have been
found on the person of Saurabhdhar
Dubey. There are other contusions and
abrasions also, large in number. The
stand of the investigating agency does not
appear to be fair and prima facie
justified.

4. Considering the medical
evidence and the vague reply filed by the
investigating agency, we hereby direct
that reinvestigation would be undertaken
by an officer not below the rank of Circle
Officer.

5. Reinvestigation would be
supervised by Superintendent of Police,
GRP.

6. Superintendent of Police,
GRP shall file his affidavit in Court after
conclusion of reinvestigation.

7. List on 31.7.2017.

8. Let a copy of this order be
conveyed to Inspector General of Police,
Railway, Lucknow, who shall depute the
investigating officer as directed above."

8. In pursuance of the aforesaid
Court's
order
nothing
was
done.
Therefore, vide order dated 16.11.2017
this Court directed the Authority for
submitting the explanation. In pursuance
of the order passed by this Court dated
10.05.2017 and 16.11.2017 in Writ
Petition No.2435 (M/B) of 2017, fair and
proper investigation was conducted under
the Supervision of Superintendent of
Police, GRP, Gorakhpur and investigating
officer submitted an affidavit in respect of
conclusion of investigation. Therefore,
vide order dated 20.12.2017 the aforesaid
writ petition was disposed of. The order
dated 20.12.2017 passed in Writ Petition
No.2435 of 2017 is being reproduced as
under:-

1. The petition seeks issuance of
a writ in the nature of certiorari quashing
order
dated
30.12.2016
passed
by
Superintendent
of
Police,
Railway,
Gorakhpur Annexure-1 and order dated
26.12.2016 passed by Inspector General
of Police, Railway, Lucknow.

The petition also seeks issuance
of a writ in the nature of mandamus
directing the respondents to conduct fair
and proper investigation in Case Crime
No.208-A of 2015, under Sections 323,
325, 307, 504 I.P.C. and Section 152
Railway Act.

2. Perusal of impugned order
Annexure-1 indicates that investigation
was transferred.

3. From the order-sheet, it
appears that considering various facts
and circumstances of the case emerging
from the documents, and discrepancies in
the investigation, this Court passed order
dated 10.05.2017 in the following terms:-

"1.
The
petitioner
is
complainant of Case Crime No.208-A of
2015, under Sections 323, 325, 307 and
504 IPC read with Section 152 Railway
Act, Police Station GRP, District Gonda.

2. Short counter affidavit of Shri
Santosh Kumar Rai, Sub-Inspector, GRP,
Charbagh, Lucknow has been filed in
Court, which is taken on record. In para-5
of the affidavit, it has been stated that
830 INDIAN LAW REPORTS ALLAHABAD SERIES
there was skirmish between TTE (Train
Ticket Examiner) and other persons.
Scuffle took place. The injured fled from
the spot. No injuries were received by him
(Saurabhdhar
Dubey).
Medical
examination report does not find support
from the statement of the eye-witnesses.

3. We have referred to the injury
report placed on record as Annexure-4
with the main petition. Apparently, as
many as nine stitched wound have been
found on the person of Saurabhdhar
Dubey. There are other contusions and
abrasions also, large in number. The
stand of the investigating agency does not
appear to be fair and prima facie
justified.

4. Considering the medical
evidence and the vague reply filed by the
investigating agency, we hereby direct
that reinvestigation would be undertaken
by an officer not below the rank of Circle
Officer.

5. Reinvestigation would be
supervised by Superintendent of Police,
GRP.

6. Superintendent of Police,
GRP shall file his affidavit in Court after
conclusion of reinvestigation.

7. List on 31.7.2017.

8. Let a copy of this order be
conveyed to Inspector General of Police,
Railway, Lucknow, who shall depute the
investigating officer as directed above. "

4. From the above, it is evident
that re-investigation was ordered by this
Court. The re-investigation was to be
supervised by Sri Abhishek Yadav, posted
as
Superintendent
of
Police,
GRP
Gorakhpur. Short affidavit has been filed
by Shri Abhishek Yadav in Court today
which is taken on record. In para 14 of
the
affidavit
conclusion
after
reinvestigation
has
been
given.
The
following needs to be considered:-

"14. That from the above facts
and circumstances of the case and after
going through the entire investigation, on
the basis of Case Diary the deponent who
is also monitoring the investigation has
arrived at conclusion that the accused
TTE Sri Anil Kumar Singh had pushed
Saurabhdhar Dubey by showing him his
Pistol from a running train or by his
action the victim was so terrified that he
after leaving all his belonging ran and
slipped from the train therefor, in view of
the above two conditions it can be
ascertained that commission of crime was
committed due to criminal action of TTE
Sri Anil Kumar Singh/ Apart from above
after going through the statement of the
witnesses and considering the entire
material evidences which is available on
record the offences under Sections 307,
323, 504, 325 IPC and Section 152
Railway Act prima facie found to be
committed by TTE Sri Anil Kumar Singh.

15. That till date the accused
TTE Sri Anil Kumar Singh has not joined
the investigation and never appeared
before the Investigating Officer for
recording his statement therefore, the
Prosecuting Agency has invoked Section
82 Cr.P.C. against him after order passed
by the concerned Court below."

5. The conclusion drawn by the
investigating officer appears to be that
TTE, Sri Anil Kumar committed the
offence.

6. While we understand the
anxiety of Shri Ravi Singh appearing for
respondent no.7 Anil Kumar on various
counts, however this Court in exercise of
writ jurisdiction will not ordinarily direct
the investigating officer to declare a
person to be innocent, or guilty. The
investigation as conducted is required to
be accepted, in peculiar facts and
circumstances of this case. We however,
3 All. Bhawani Pher Dubey Vs. State of U.P. & Ors.
831
record that reinvestigation has been
conducted under supervision of Shri
Abhishek Yadav, IPS officer posted as S.P.
GRP, Gorakhpur who is a senior officer.
In such circumstances, we find no reason
to pass any order to the contrary.

7.The petition is disposed of.

8.We
further
direct
that
investigation be concluded at the earliest.

9. The necessary consequences
would follow in regard to the cross case.
State counsel shall ensure compliance.

9. Learned counsel for the petitioner
has further submitted that although the
investigation was concluded under the
supervision of Superintendent of Police,
G.R.P. Gorakhpur in compliance of the
aforesaid directions of this Hon'ble Court,
the chargesheet was filed against the
opposite party No.6 and court below has
taken cognizance, the respondent No.6
was summoned but under the influence of
respondent
No.6
and
on
the
recommendation of Shri Raghvendra
Pratap Singh (Member of Legislative
Assembly), the investigation of Case
No.208A of 2015 (supra) was transferred
to CBCID without any rhyme and reason
vide order dated 19.06.2018. Learned
counsel for the petitioner has further
submitted that at the time of passing of
impugned order, the fact was not
considered by the State Government that
in pursuance of directions passed by this
Court in Writ Petition No.2435 (MB) of
2017, the investigation of Case Crime
No.208A of 2015 (supra) was conducted
under the supervision of Mr. Abhishek
Yadav (Superintendent of Police), GRP
Gorakhpur and chargesheet was filed .
Therefore, the impugned order dated
19.06.2018 is arbitrary and illegal.

10. At the admission stage, this
Hon'ble Court passed an interim order,
vide order dated 23.07.2018 staying the
operation of impugned order dated
19.06.2018.

11. Learned counsel for the
petitioner has further submitted that court
below took cognizance on the chargesheet
filed by the Investigating Officer in Case
Crime No.208A of 2015 (supra) which
was registered as Case No.98 of 2018 and
the petitioner filed a application under
Section 482 Cr.P.C. bearing Application
No.4921 of 2018 (Anil Kumar Singh Vs.
State of U.P. and others) on which was
dismissed on 13.08.2018.

12. Learned A.G.A. has submitted
that there is no illegality in the impugned
order and it was passed after following
due process of law.

13. The counter affidavit was filed
by
the
Principal
Secretary
Home,
Government of U.P. and submitted that
the investigation can be transferred by the
State Government and in para-4 of the
counter affidavit, he has stated that after
considering all the aspects of the matter
and following due process, the transfer
order
has
been
passed
and
the
investigation of Case Crime No.208A of
2015 (supra) was transferred to CBCID
and admitted that Sri Raghvendra Pratap
Singh, (MLA) recommended for transfer
of investigation. In para-5 it is mentioned
that while taking decision for transferring
the investigation three grounds were
considered i.e. (i) the case crime No.208A
of 2015 (supra) was lodged by the
petitioner only with intention to make
pressure
on
the
TTE
for
settlement/compromise and also obtained
forged medical report (ii) the Statement of
832 INDIAN LAW REPORTS ALLAHABAD SERIES
two witnesses under Section 164 Cr.P.C.
were recorded but the Investigating
Officer fail to consider the same (iii) in
the
departmental
inquiry,
the
TTE
(respondent No.6) was exonerated.

14. Learned counsel for the
respondent No.6 has submitted that there
is no illegality in the order passed by the
State Government for transferring the
investigation but he has not denied the
fact that the investigation of Case Crime
No.208A of 2015 (supra) was conducted
under the direction of this Court in Writ
Petition No.2435 (M/B) of 2017 and the
charesheet was filed and cognizance has
been taken by the court below.

15. It is also relevant to mention
here that the order dated 20.12.2017
passed by this Court in Writ Petition
No.2435 (M/B) of 2017 is available on
the original record, which was placed by
the learned A.G.A. in relation to the
impugned order but this fact was not
considered at the time of passing the
impugned order.

16. After considering the argument
of learned counsel for the parties,
pleadings and going through the record, it
is found that in compliance of the
directions given by this Court in Writ
Petition No.2435 (M/B) of 2017, the Case
Crime No.208A of 2015 (supra) was reinvestigated by Deputy Superintendent of
Police and thereafter, chargesheet was
filed on 12.02.2018 and cognizance was
taken by the court below and it was
registered as Case No.98 of 2018.

17. After examining the original
record in relation to the impugned order
for transferring the investigation of case
crime No.208A of 2015 (supra) it is found
that father of respondent No.6 made a
request for transferring the investigation
of aforesaid case to CBCID. The report
was asked from the Superintendent of
Police Railway Gorakhpur by Deputy
Secretary Home Police, U.P. vide letter
No.376 (1)MM/6-2-14-2017-70 931 of
2017 dated 11.04.2018 and the report
dated 16.04.2018 was sent by S.P. GRP,
Gorakhpur and clearly informed that the
investigation of aforesaid case was
conducted under the direction was given
by Hon'ble Court in Writ Petition
No.2435
(M/B)
of
2017
and
the
chargesheet has been filed on 12.02.2018
in the court below and further reported
that the application for transfer of
investigation is given by the father of
accused to save him.

18.

The
impugned
order
is
unreasoned and it was passed without
considering the fact that the investigation
of case Crime No.208A of 2015 (supra)
was
conducted
by
the
Deputy
Superintendent of Police under the
direction of this Hon'ble Court and the
report of S.P. GRP, Gorakhpur was also
not considered.

19. It is well settled by a
Constitution Bench of Hon'ble Supreme
Court of India in the case of Mohindhr
Singh Gill and another Vs. Chief
Election Commissioner, New Delhi and
others, 1978 (1) SCC 405 that when
statutory functionary makes an order
based on certain grounds, its validity must
be judged by the reasons so mentioned in
the order, and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise.

Para 8 (relevant portion) from
the judgment is reproduced hereinbelow.
3 All. Col.(Retd.) Harpal Singh Dhillon & Ors. Vs. District Judge Lucknow & Ors.
833

"8. The second equally relevant
matter is that when a statutory functionary
makes an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court
on account of a challenge, get validated by
additional grounds later brought out. We may
here draw attention to the observations of
Bose, J. in Gordhandas Bhanji[Commr. of
Police, Bombay v. Gordhandas Bhanji, AIR
1952 SC 16] :

"Public orders, publicly made, in
exercise of a statutory authority cannot be
construed in the light of explanations subsequently
given by the officer making the order of what he
meant, or of what was in his mind, or what he
intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the actings and conduct of those
to whom they are addressed and must be
construed objectively with reference to the
language used in the order itself."

20. Attention of the Court has also been
drawn towards Circular No. 27 of 2014 dated
10th May, 2014 issued by Director General of
Police related to the transfer of investigation. In
para 2(iv) of the said Circular, it is provided
that on the request of the accused,
investigation should not be transferred in
the ordinary circumstances. In para 2(x) of
the Circular, it is categorically provided that
the order by which investigation of a case
has been transferred, must be a speaking
order.

It
is
apparent
from
the
impugned order that neither it is a
reasoned order nor is speaking one.

21. The chargesheet of Case Crime
No.208 A of 2015 was challenged before
this Court in Criminal Misc. Case
No.4921 of 2018 (Anil Kumar Singh Vs.
State of U.P. and Ors.) which was
dismissed on 13.08.2018 by this Court
and the court below has taken cognizance.

22. In view of the aforesaid facts
and discussion, the petition is allowed and
the order dated 19.06.2018 passed by
Special Secretary, Home, Government of
U.P.
Lucknow
placed
on
record
(Annexure-1)
and
all
consequent
proceedings are hereby quashed.

23. The trial court is directed to
conclude the trial of Case Crime No.208
A of 2015 under Sections 307, 325, 323,
504 I.P.C. and Section 152 Railways Act,
Police
Station
G.R.P.
Gonda,
expeditiously
without
giving
any
unnecessary adjournment. The Senior
Registrar of this Court is directed to send
the copy of this order to the court
concerned for strict compliance.

24. The Bench Secretary will ensure
that the original record in relation to
impugned order be handed over to Mr.
S.P. Singh, (A.G.A.) forthwith.
----------
(2019)11ILR A833

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2019

BEFORE
THE HON'BLE MANISH MATHUR, J.

Misc. Single No. 40 of 2013 and Misc. Single
No. 843 of 2013

Col. (Retd.) Harpal Singh Dhillon & Ors.
 ...Petitioners
Versus
District Judge, Lucknow & Ors.
 ...Respondents