# Devendra Tripathi & Anr v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-10
- **Case number:** Criminal Misc. Writ Petition No. 15393 of 2024
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-tripathi-anr-v-state-of-u-p-ors-52512
- **Pages:** 6

## Headnote

Criminal Law - Constitution of India,1950
- Article 226 -prayer seeking appointment
of another agency-fair investigation-FIR
registered under Sections 452, 376, 313,
506, 323, 427 IPC- alleging bias due to
ongoing civil disputes with the informant-
accused individuals cannot demand a
change in the investigating agency- unless
there is clear evidence of malafide actions
by the current investigators- petitioners
failed
to
demonstrate
such
malafide
intent-petition dismissed. (Paras 8 and 9)
HELD:
With above observations, the Hon'ble Apex
Court concluded that "In view of the above, it is
clear that the consistent view of this Court is
that the accused cannot ask for changing the
Investigating Agency or to do investigation in a
particular manner including for Court monitored
investigation. However, Hon'ble Apex Court
while placing reliance on an earlier judgement in
In Narmada Bai v St. of Gujarat,22 the
petitioner filed a writ 22 (2011) 5 SCC 79,
observed that "this case supports my view that
in the interest of justice, and particularly when
there
are
serious
doubts
regarding
the
investigation being carried out, it is not only
permissible, but our constitutional duty to
ensure that the investigation is carried out by a
special
investigation
team
or
a
special
investigative agency so that justice is not
compromised. (Para 8)

In present case, the main contention raised on
behalf of the petitioners is that they have been
roped in by the informant in present criminal
case with a view to exert pressure in a civil suit
filed at the instance of petitioner No.1 for
avoidance of a sale deed propounded by
respondent No.4, the informant with regard to
disputed land on which petitioners claimed their
title and possession. Only, on this count, it
cannot be discerned that the case lodged at the
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
instance of the informant is malicious or
investigation carried out by the police has been
shoddy or perfunctory or partial. Law will take
its own course. (Para 9)

Petition dismissed. (E-13)

List of Cases cited:

## Text

9 All. Devendra Tripathi & Anr. Vs. State of U.P. & Ors.
1433
taking any fruitful action to conduct the
investigation for the death of daughter of
the petitioner in United States of America.

17. By our earlier order dated
12.9.2024 statement made by learned
counsel for the Union of India and C.B.I.
was noted and in paragraph 2 of the order it
was observed that the matter will be sorted
out between them by the next date and
appropriate action will be taken.

18. We find that by filing short
counter affidavit again Union of India and
other
respondents
are
shirking
their
responsibilities and are doing nothing.

19.

In view
of
the
peculiar
circumstances,
this
Court
direct
the
respondent
no.
2-Central
Bureau
of
Investigation, New Delhi and respondent
no. 3-Secretary, Ministry of Home Affairs,
North Block, New Delhi to conduct the
investigation regarding death of daughter of
the
petitioner
(first
informant)
by
completing necessary formalities within a
period of 15 days from the date of
production of a certified copy of this order
before them.

20. With the aforesaid observations,
present petition stands allowed.
----------
(2024) 9 ILRA 1433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Misc. Writ Petition No. 15393 of 2024

Devendra Tripathi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ramesh Kumar Singh

Counsel for the Respondents:
Jitendra Kumar Shukla, G.A.

Criminal Law - Constitution of India,1950
- Article 226 -prayer seeking appointment
of another agency-fair investigation-FIR
registered under Sections 452, 376, 313,
506, 323, 427 IPC- alleging bias due to
ongoing civil disputes with the informant-
accused individuals cannot demand a
change in the investigating agency- unless
there is clear evidence of malafide actions
by the current investigators- petitioners
failed
to
demonstrate
such
malafide
intent-petition dismissed. (Paras 8 and 9)
HELD:
With above observations, the Hon'ble Apex
Court concluded that "In view of the above, it is
clear that the consistent view of this Court is
that the accused cannot ask for changing the
Investigating Agency or to do investigation in a
particular manner including for Court monitored
investigation. However, Hon'ble Apex Court
while placing reliance on an earlier judgement in
In Narmada Bai v St. of Gujarat,22 the
petitioner filed a writ 22 (2011) 5 SCC 79,
observed that "this case supports my view that
in the interest of justice, and particularly when
there
are
serious
doubts
regarding
the
investigation being carried out, it is not only
permissible, but our constitutional duty to
ensure that the investigation is carried out by a
special
investigation
team
or
a
special
investigative agency so that justice is not
compromised. (Para 8)

In present case, the main contention raised on
behalf of the petitioners is that they have been
roped in by the informant in present criminal
case with a view to exert pressure in a civil suit
filed at the instance of petitioner No.1 for
avoidance of a sale deed propounded by
respondent No.4, the informant with regard to
disputed land on which petitioners claimed their
title and possession. Only, on this count, it
cannot be discerned that the case lodged at the
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
instance of the informant is malicious or
investigation carried out by the police has been
shoddy or perfunctory or partial. Law will take
its own course. (Para 9)

Petition dismissed. (E-13)

List of Cases cited:

1. Romila Thapar & ors.Vs U.O.I. & ors., (2018)
10 SCC 753

2. Narmada Bai Vs St. of Guj. (2011) 5 SCC 79

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. By means of present writ petition,
the petitioners, who are accused in present
case, have prayed for issuance of a writ of
mandamus directing the respondent Nos.1
and 2 to appoint another agency for fair
investigation in Case Crime No.116 of
2023, under Sections 452, 376, 313, 506,
323, 427 IPC, P.S. Madhian, District
Mirzapur, within stipulated period as fixed
by this Hon'ble court.

2. Heard learned counsel for the
petitioners,
learned
counsel
for
the
respondent No.4, Sri Amit Sinha learned
AGA for the State and perused the material
placed on record.

3. The factual matrix of the case in
brief are that the informant moved an
application under Section 156(3) Cr.P.C.
before the Court of Magistrate in District
Court Mirzapur with allegations that on
17.7.2023, at around 7:00 AM, she was
alone in the house, accused Girja Shanker
@ Gopal (petitioner no.2) forcefully made
his entry in her house and asked her for a
spade. When she stated that her husband
had taken the same to field, he tried to
molest her and started touching her private
parts by hand whereupon she raised cry.
The accused dashed her on a cot and
inserted finger in her private part; her
husband reached there on hearing her noise,
thereupon co-accused Satya Prakash and
Devendra Tripathi arrived there together
with an unknown person. They dashed her
husband on ground and assaulted the victim
and her husband by kicks and fists. When
the victim prayed for mercy to miscreants
on the ground of her pregnancy, then they
assaulted her on her abdomen by kicks and
have torn her clothes and outraged her
modesty. They also assaulted her on her
private parts which resulted in bleeding
from her private parts and her child got
killed in womb. Some persons reached
there co-accidentally and then the accused
persons fled away from the spot after
damaging
her
household
goods
and
threatening the victim and her husband
with life. Her report was not lodged at
police station concerned. The FIR was
lodged on 27.8.2023, at 17:47 hours vide
GD Entry No.032, dated 27.8.2023 time
17:47 hours, at police station concerned
following the order of learned Magistrate
passed on the application under Section
156(3) Cr.P.C. The police investigated the
case and filed a charge-sheet against
accused Satya Prakash Tripathi for charge
under Sections 313, 323, 427, 452 and 506
IPC.
The
learned
Magistrate
took
cognizance f the offence and summoned
the accused. The investigation has been
kept pending against co-accused Girja
Shanker @ Gopal and Devendra Tripathi,
who are son and father, respectively.

4. Learned counsel for the petitioners
against whom the investigation has been
kept pending have stated that they have
prayed for a writ of mandamus from this
Court to appoint another agency for fair
investigation in said criminal case. FIR
version is totally wrong, baseless and
9 All. Devendra Tripathi & Anr. Vs. State of U.P. & Ors.
1435
concocted. Petitioner No.1 is a very old
person of 75 years of age and petitioner
No.2 is his son. It is inconceivable that
father and son would involved in such type
of offence together. The FIR has been
lodged maliciously by the informant by
filing an application under Section 156(3)
Cr.P.C. before the Magistrate. The said
application was filed belatedly before the
Court after 9 days of the incident i.e. on
26.7.2023. The real bone of contention
between the parties is that a partition suit
bearing Case No.38 of 2017, under Section
116 of UP Revenue Code is pending before
the Court of Sub Divisional Magistrate,
Mirzapur, in which petitioner No.1 is
plaintiff
and
other
co-owners
are
respondents.
The
respondent
No.4
(Informant) on the basis of a forged sale
deed dated 4.6.2020, filed a mutation case
before Tehsildar, Madhian, which bears
Case No.91/631 of 2020 (Nitu Kumari vs.
Rajendra Prasad), which is pending in the
Court of Nayab Tehsildar, Madhian, in
which petitioner No.1 filed objection.
When the informant and her colleagues
came on spot to take over possession of the
land, then the petitioner got apprised of a
forged sale deed on which basis respondent
No.4 filed mutation application. Petitioner
No.1 filed Civil Suit No.37 of 2023
(Devendra Tripathi vs. Nitu Kumari and
others) on 29.5.2023 with a prayer to
declare the said sale deed dated 4.6.2020
void and also for decree of injunction on
29.5.2023 and after filing of the present
suit by petitioner No.1, the respondent
No.4 moved an application on 23.7.2023
under
Section
156(3)
Cr.P.C.
for
registration of FIR with regard to an
alleged incident dated 17.7.2023 with wild
allegations against the petitioners and coaccused Satya Prakash Tripathi. He next
submitted that the said FIR was lodged
only with a view to exert pressure on
petitioners and co-accused Satya Prakash
Tripathi as latter filed various applications
against respondent No.4 and her husband
regarding raising of illegal construction on
disputed land. The copy of medical
examination and radiological examination
of the informant has been filed as
annexure to present petition, which reveal
that no clinically injury seen in private
parts, genitalia and any body parts, only
slightly bleeding P/V was found present.
Petitioner
No.1
has
also
filed
an
application under Section 156(3) Cr.P.C.
against respondent No.2 and others before
the Court of Magistrate on 6.7.2023 for
lodging of FIR with regard to execution of
forged sale deed on 4.6.2020 with a view
to cause wrongful loss to him and said
application has been treated as complaint
by
learned
Magistrate
and
directed
recording of statement under Sections 200
and 202 Cr.P.C., which is still pending
before the court concerned. Various civil
cases are pending before the competent
courts between the contesting parties.
Respondent No.4 bears political cloud and
local police is in her pressure. Therefore,
the
petitioners
do
not
expect
fair
investigation
from
local
police
and
therefore, some other agency may be
entrusted the investigation of the case
lodged against the petitioners.

5. Per contra, learned counsel for the
respondent
No.4
and
learned
AGA
vehemently
opposed
the
prayer
for
appointing another agency for investigation
of the case.

6. Learned AGA cited an authority of
Hon'ble Apex Court in Romila Thapar
and others vs. Union of India and others,
(2018) 10 SCC 753, in support of his
contention that the prayer made in present
petition is not tenable legally. In said case
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Apex Court formulated following
questions for consideration:-

(i)
Should
the
Investigating
Agency be changed at the behest of the
named five accused?

(ii) If the answer to point (i) is in
the negative, can a prayer of the same
nature be entertained at the behest of the
next friend of the accused or in the garb of
PIL?

(iii) If the answer to question
Nos.(i) and/or (ii) above, is in the
affirmative, have the petitioners made out a
case for the relief of appointing Special
Investigating Team or directing the Court
monitored investigation by an independent
Investigating Agency?

(iv) Can the accused person be
released merely on the basis of the
perception of his next
friend (writ petitioners) that he is an
innocent and law abiding person?

7. The Hon'ble Apex answered
question No.1 in following manner:

"24. This Court in the case of
Divine Retreat Centre Vs. State of Kerala and
Ors.12, (2008) 3 SCC 542 has enunciated
that High Court in exercise of its inherent
jurisdiction cannot change the investigating
officer in the midstream and appoint an
investigating officer of its own choice to
investigate into a crime on whatsoever basis.
The Court made it amply clear that neither
the accused nor the complainant or informant
are entitled to choose their own Investigating
Agency to investigate the crime in which they
are interested. The Court then went on to
clarify that the High Court in exercise of its
power under Article 226 of the Constitution
can always issue appropriate directions at
the instance of the aggrieved person if the
High Court is convinced that the power of
investigation has been exercised by the
investigating officer mala fide.

25. Be that as it may, it will be
useful to advert to the exposition in State of
West Bengal and Ors. Vs. Committee for
Protection of Democratic Rights, West
Bengal and Ors.13 In paragraph 70 of the
said
decision,
the
Constitution
Bench
observed thus:

"70. Before parting with the case,
we deem it necessary to emphasise that
despite wide powers conferred by Articles 32
13 (2010) 3 SCC 571 and 226 of the
Constitution, while passing any order, the
Courts must bear in mind certain selfimposed limitations on the exercise of these
Constitutional powers. The very plenitude of
the power under the said articles requires
great caution in its exercise. Insofar as the
question of issuing a direction to the CBI to
conduct investigation in a case is concerned,
although no inflexible guidelines can be laid
down to decide whether or not such power
should be exercised but time and again it has
been reiterated that such an order is not to be
passed as a matter of routine or merely
because a party has levelled some allegations
against the local police. This extraordinary
power
must
be
exercised
sparingly,
cautiously and in exceptional situations
where it becomes necessary to provide
credibility
and
instil
confidence
in
investigations or where the incident may have
national and international ramifications or
where such an order may be necessary for
doing complete justice and enforcing the
fundamental rights. Otherwise the CBI would
be flooded with a large number of cases and
with limited resources, may find it difficult to
properly investigate even serious cases and
in the process lose its credibility and purpose
with unsatisfactory investigations."

26. In the present case, except
pointing
out
some
circumstances
to
question the manner of arrest of the five
9 All. Devendra Tripathi & Anr. Vs. State of U.P. & Ors.
1437
named accused sans any legal evidence to
link
them
with
the
crime
under
investigation, no specific material facts and
particulars are found in the petition about
mala fide exercise of power by the
investigating
officer.
A
vague
and
unsubstantiated assertion in that regard is
not enough. Rather, averment in the
petition as filed was to buttress the reliefs
initially prayed (mentioned in para 7
above) - regarding the manner in which
arrest was made. Further, the plea of the
petitioners of lack of evidence against the
named accused (A16 to A20) has been
seriously disputed by the Investigating
Agency and have commended us to the
material already gathered during the
ongoing investigation which according to
them indicates complicity of the said
accused in the commission of crime. Upon
perusal of the said material, we are of the
considered opinion that it is not a case of
arrest because of mere dissenting views
expressed or difference in the political
ideology of the named accused, but
concerning their link with the members of
the banned organisation and its activities.
This is not the stage where the efficacy of
the material or sufficiency thereof can be
evaluated nor it is possible to enquire into
whether the same is genuine or fabricated.
We do not wish to dilate on this matter any
further lest it would cause prejudice to the
named accused and including the coaccused who are not before the Court.
Admittedly, the named accused have
already resorted to legal remedies before
the jurisdictional Court and the same are
pending. If so, they can avail of such
remedies as may be permissible in law
before the jurisdictional courts at different
stages during the investigation as well as
the trial of the offence under investigation.
During the investigation, when they would
be produced before the Court for obtaining
remand by the Police or by way of
application for grant of bail, and if they are
so advised, they can also opt for remedy of
discharge at the appropriate stage or
quashing of criminal case if there is no
legal evidence, whatsoever, to indicate
their complicity in the subject crime.

27. In view of the above, it is
clear that the consistent view of this Court
is that the accused cannot ask for changing
the
Investigating
Agency
or
to
do
investigation in a particular manner
including
for
Court
monitored
investigation. The first two modified reliefs
claimed in the writ petition, if they were to
be made by the accused themselves, the
same would end up in being rejected. In the
present case, the original writ petition was
filed by the persons claiming to be the next
friends of the concerned accused (A16 to
A20). Amongst them, Sudha Bhardwaj
(A19), Varvara Rao (A16), Arun Ferreira
(A18) and Vernon Gonsalves (A17) have
filed signed statements praying that the
reliefs claimed in the subject writ petition
be treated as their writ petition. That
application deserves to be allowed as the
accused
themselves
have
chosen
to
approach this Court and also in the
backdrop of the preliminary objection
raised by the State that the writ petitioners
were completely strangers to the offence
under investigation and the writ petition at
their instance was not maintainable. We
would, therefore, assume that the writ
petition is now pursued by the accused
themselves and once they have become
petitioners themselves, the question of next
friend pursuing the remedy to espouse their
cause cannot be countenanced. The next
friend can continue to espouse the cause of
the affected accused as long as the
concerned accused is not in a position or
incapacitated to take recourse to legal
remedy and not otherwise.
1438 INDIAN LAW REPORTS ALLAHABAD SERIES

8. With above observations, the
Hon'ble Apex Court concluded that "In
view of the above, it is clear that the
consistent view of this Court is that the
accused cannot ask for changing the
Investigating
Agency
or
to
do
investigation in a particular manner
including
for
Court
monitored
investigation. However, Hon'ble Apex
Court while placing reliance on an earlier
judgement in In Narmada Bai v State of
Gujarat,22 the petitioner filed a writ 22
(2011) 5 SCC 79, observed that "this case
supports my view that in the interest of
justice, and particularly when there are
serious doubts regarding the investigation
being carried out, it is not only permissible,
but our constitutional duty to ensure that
the investigation is carried out by a special
investigation team or a special investigative
agency so that justice is not compromised."

9. In present case, the main contention
raised on behalf of the petitioners is that they
have been roped in by the informant in present
criminal case with a view to exert pressure in a
civil suit filed at the instance of petitioner No.1
for avoidance of a sale deed propounded by
respondent No.4, the informant with regard to
disputed land on which petitioners claimed
their title and possession. Only, on this count,
it cannot be discerned that the case lodged at
the instance of the informant is malicious or
investigation carried out by the police has been
shoddy or perfunctory or partial. Law will take
its own course.

10. Without expressing any opinion
on the version and counter version of the
informant and accused side and placing
reliance on the dictum of Hon'ble Apex
Court in above cited case, we are of the
considered opinion that the prayer made in
present writ petition is not liable to be
granted.

11. Accordingly, present writ petition
stands dismissed.

12. However, it is made clear that any
observation made hereinabove will have no
bearing on the merits of the case.
----------
(2024) 9 ILRA 1438
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.09.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matters Under Article 227 No. 3907 of 2024

The New India Assurance Company Ltd.,
Lakhimpur Kheri ...Petitioner
Versus
Permanent Lok Adalat, Lakhimpur Kheri &
Anr. ...Respondents

Counsel for the Petitioner:
Asit Srivastava

Counsel for the Respondents:

Civil Law - Constitution of India,1950 -
Article
227
-validity
of
judgement
delivered
by
Permanent
Lok
Adalat
challenged-dispute regarding insurance
claim for a truck accident-whether the
owner of the truck who had agreed to sell
the truck to some other person retained
insurable interest- statutory provision
regarding transfer of vehicles- contained
in Section 157 of the Motor Vehicles Act,
1988- as the truck's ownership had not
legally
transferred-no
change
in
ownership-respondent
owner
thus
entitled to claim- legislative intent to hold
insurers liable even if ownership transfer
isn't recorded-petition dismissed. (Paras
13, 14, 16, 17 and 18)

HELD:
Further, Section 157 provides that upon transfer
of ownership of a vehicle, the certificate of
insurance and the policy described in the
certificate shall be deemed to have been