# Gaaurav Tripathi v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-02
- **Case number:** Crl. Misc. Writ Petition No. 7952 of 2022
- **Bench:** Vivek Kumar Birla, Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaaurav-tripathi-v-state-of-u-p-ors-49763
- **Pages:** 13

## Headnote

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Section 7 - Offence
relating to public servant being bribed -
The Code of criminal procedure, 1973 -
section 167(2) - Power of transferring
investigation
to
other
investigating
agency must be exercised in rare and
exceptional cases - where the Court finds
it necessary in order to do justice between
the parties to instil confidence in the
public mind - or where investigation by
the State Police lacks credibility - fair
investigation as well as fair trial is
fundamental right of the accused - An
accused person does not have a choice in
regard to the mode or manner in which
the investigation should be carried out or
in regard to the investigating agency.
(Para -11,12,20,)

Matter related to transfer of investigation from
Gorakhpur
Sector
to
Lucknow
Sector
of
Vigilance Department - based upon letters of
Ministers and representation of accused - non
disclosure of any cogent or valid reason for
transferring investigation - orders passed after
considering
representation
moved
by
respondent No. 10 - Political interference and
representation of respondent No. 10 are only
reasons for transfer - case not of exceptional or
rare nature.(Para -23,24)

HELD:-Order impugned dated 17.05.2022 and
the consequential order dated 02.06.2022
cannot
be
sustained
due
to
political
interference. No speaking reason or ground to
justify the transfer of investigation from one
agency
to
the
other.
Order
transferring
investigation quashed. (Para - 24,25,26)

Petition allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,824 of 44,346. This is a partial read: ask again with offset=39824 for what follows._

1010 INDIAN LAW REPORTS ALLAHABAD SERIES

14. For the aforesaid reasons, the
impugned
order
issuing
non-bailable
warrant against the petitioner by the
Special Judge, POCSO Court, Allahabad of
which quashment is sought, cannot be said
to suffer from any illegality so as to
persuade this Court to exercise its inherent
jurisdiction under Section 226 of the
Constitution of India.

15. The instant writ petition is,
accordingly, dismissed.
----------
(2023) 3 ILRA 1010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Crl. Misc. Writ Petition No. 7952 of 2022

Gaaurav Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sundeep Shukla, Sri Navin Kumar Sharma

Counsel for the Respondents:
G.A., Sri Bharat Singh

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Section 7 - Offence
relating to public servant being bribed -
The Code of criminal procedure, 1973 -
section 167(2) - Power of transferring
investigation
to
other
investigating
agency must be exercised in rare and
exceptional cases - where the Court finds
it necessary in order to do justice between
the parties to instil confidence in the
public mind - or where investigation by
the State Police lacks credibility - fair
investigation as well as fair trial is
fundamental right of the accused - An
accused person does not have a choice in
regard to the mode or manner in which
the investigation should be carried out or
in regard to the investigating agency.
(Para -11,12,20,)

Matter related to transfer of investigation from
Gorakhpur
Sector
to
Lucknow
Sector
of
Vigilance Department - based upon letters of
Ministers and representation of accused - non
disclosure of any cogent or valid reason for
transferring investigation - orders passed after
considering
representation
moved
by
respondent No. 10 - Political interference and
representation of respondent No. 10 are only
reasons for transfer - case not of exceptional or
rare nature.(Para -23,24)

HELD:-Order impugned dated 17.05.2022 and
the consequential order dated 02.06.2022
cannot
be
sustained
due
to
political
interference. No speaking reason or ground to
justify the transfer of investigation from one
agency
to
the
other.
Order
transferring
investigation quashed. (Para - 24,25,26)

Petition allowed. (E-7)

List of Cases cited:

1. Arnab Ranjan Goswami Vs U.O.I. & ors. ,
(2020) 14 SCC 12

2. Bimal Gurung & ors. Vs U.O.I. (UOI) & ors.
, (2018) 15 SCC 480

3. Omveer Vs St. of U.P. & ors. , 2008 (5) ADJ
698 (DB)

4. Kumari Aayasha Vs St. of U.P. & ors. ,
2018(1) ADJ 85 (DB)

5. Smt. Vandana Srivastava Vs St. of U.P. &
ors. , 2014 (7) ADJ 679 (DB)

6. Mohan Lal Vs St. of Punj. , AIR 2018 SC
3853

7. A.V. Bellarmin Vs Mr. V. Santhakumaran Nair
, Crl. O.P. (MD) No.12212 of 2013 & M.P. (MD)
Nos.1 & 2 of 2013

8. Nirmal Singh Kahlon Vs St. of Punj. & ors. ,
(2009) 1 SCC 441
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1011
(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Sri Sandeep Shukla, learned
counsel for the petitioner, Sri Bharat Singh,
learned
counsel
appearing
for
the
respondent no. 10 and Sri G.P. Singh,
learned A.G.A. appearing for the State.

2. Pursuant to the orders of this Court
dated 17.1.2023 and 30.1.2023 learned
A.G.A. has produced before this Court
attested copy of the order dated 17.5.2022
alongwith other documents, which are
taken on record.

3. This petition has been filed inter
alia 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
िी.आई.पी.-15/ 39-4-2022-50 ,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."

4. The necessary facts giving rise to
the present writ 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 having O.P.D. registration number
6034; 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 no.10; the
respondent no.10 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
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
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 no.10, 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 no.10; once respondent no.10
was arrested and sent to judicial custody,
vide order dated 24.09.2021 he was
suspended; bail application was moved by
the respondent no.10 before Additional
District and Sessions Judge (P.C. Act),
Court Number 5, Gorakhpur being Bail
Application Number 4445 of 2021 and the
same was rejected vide order dated
28.09.2021; being aggrieved by bail
rejection order dated 28.09.2021, Bail
Application Number 43678 of 2021 (Manoj
Kumar Singh Vs. State of U.P.) was filed
before this 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 no.10 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 learned Additional District
and Session Judge (P.C. Act), Court Number
5, Gorakhpur granted bail to respondent n.10
vide order dated 16.11.2021; once bail
application of respondent no.10 was allowed
by the court below, bail application filed
before
this
Court
was
dismissed
as
infructuous vide order dated 09.12.2021.

5. This Court while entertaining the writ
petition at the initial stage passed order dated
08.07.2022, relevant portion whereof is
extracted herein-below:

"Learned counsel for the petitioner
submits that the petitioner was working as
Assistant Teacher at Primary School,
Barhauwa,
Vikas
Khand
Saltauva,
Gopalganj,
District
Gorakhpur.
On
26.8.2021 he was suffering from fever and
cold/cough and due to illness, he took leave
on 26.8.2021. Shri Monoj Kumar Singh,
Block Education Officer/respondent no.10
visited the school on the said date and
marked the petitioner as 'absent'. On some
illegal demand made by the respondent
no.10, the petitioner made a complaint
before
the
Superintendent
of
Police,
Vigilance
Department,
Gorakhpur
on
06.9.2021 against him. Thereafter, the
respondent no.10 was caught red handed
by the trap team while taking bribe of
Rs.7000/- and consequently, the first
information report was lodged against him
on 16.9.2021 at Police Station Gorakhpur
Sector (Vigilance Establishment) under
Section 7 of the Prevention of Corruption
Act, 1988 against him. He was arrested on
24.9.2021 and sent to judicial custody. It is
also alleged that the respondent no.10 is an
influential person and has been reinstated
in service. The competent authority is
sitting tight in the matters relating to
prosecution sanction. A bare perusal of the
order impugned dated 02.6.2022, it is
crystal clear that the impugned order dated
17.5.2022 is passed on the recommendation
of the political persons and even their
names are also mentioned. As per business
rules, they have no authority to intervene in
the proceeding. By the impugned order
dated 02.06.2022, respondent no. 7 has
directed for transfer of the investigation of
Case Crime Number 05 of 2021 from
Gorakhpur
Sector
of
Uttar
Pradesh
(Vigilance Establishment) to Lucknow
Sector (Vigilance Establishment), that too
on the pretext of the accused person, which
clearly shows that the impugned orders are
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1013
passed just to provide benefit to respondent
no. 10. In support of his submission, he has
placed reliance on paragraph no. 39 of the
judgment passed by Hon'ble Apex Court in
Writ Petition (Crl) No. 130 of 2020 (Arnab
Ranjan Goswami vs. Union of India &
Ors).

Before proceeding further in the
matter,
let
learned
A.G.A.
seek
instructions in the matter and file an
affidavit
of
the
respondent
no.3,
Additional Chief Secretary, Home and
Vigilance Establishment Government of
U.P., Lucknow and respondent no. 4,
Additional Director Education (Basic)
Prayagraj, on or before the next date
fixed in the matter.

Put up this case again as fresh on
13.07.2022."

6. This Court, by its subsequent order
dated 30.01.2023, directed the learned
AGA
to
produce
the
order
dated
17.05.2022 passed by the Additional Chief
Secretary, which has been impugned in the
present petition, inasmuch as the contention
of the petitioner is specific to the effect that
the said order was not made available to
him.

7. Today, learned AGA has produced
the order dated 17.05.2022, which reads as
follows:-

" आर०पी0 शसंह, गोपनीय

शविेष सशचव । अर्द्टिा०प०सं०-वीआईपी-15/39-42022

50एम (01)/2021

उिर प्रिेि िासन

सतकटता अनुभाग-4

लखनऊ: शिनांक : 17 मई, 2022

शप्रय महोिय,

कृपया श्री मनोज कुमार शसंह, खण्ड शिक्षा अशधकारी,
शिक्षा क्षेि सलर्ौआ, जनपि बस्ती के रैप आख्या शवषयक
शविेष शनिेिक, उ०प्र० सतकटता अशधष्ठान के अ0िा0प0सं0स0अ0/अनु-2-रैप-225/2021 शिनांक 16.03.2022 एवं
अपर मुख्य सशचव, गृह एवं सतकटता शवभाग को सम्पबोशधत श्री
जय प्रताप शसंह, पूवट मंिी, उ०प्र० सरकार के पि शिनांक
18.04.2022 (मूलप्रशत संलग्न), श्री अजय शसंह, मा०
सिस्य, शवधान सभा, हरेया, बस्ती के पि शिनांक
20.04.2022 (मूलप्रशत संलग्न) एवं श्री जयवीर शसंह, मंिी,
पयटर्न एवं संस्कृशत, उिर प्रिेि के पि शिनांक 27.04.2022
(मूलप्रशत संलग्न) का सन्द्िभट ग्रहण करने का कष्ट करें ।

2- इस सम्पबन्द्ध में मुझसे यह कहने की अपेक्षा की गयी
है शक िासन द्वारा सम्पयक् शवचारोपरान्द्त प्रश्नगत रैप के सम्पबन्द्ध
में श्री मनोज कुमार शसंह, खण्ड शिक्षा अशधकारी, शिक्षा क्षेि
सलर्ौआ, जनपि बस्ती द्वारा प्रत्यावेिन में उशललशखत तथ्यों एवं
संलग्न शकये गये 20 साक्ष्यों के पररप्रेक्ष्य में प्रकरण की शनष्पक्ष
जॉच / शववेचना गोरखपुर सेक्र्र के स्थान पर उ०प्र० सतकटता
अशधष्ठान के लखनऊ सेक्र्र से कराये जाने का शनणटय शलया
गया है।

3- अत: अनुरोध है शक कृपया उशललशखत आरोपों एवं
साक्ष्यों को शववेचना में सशम्पमशलत करते हुए प्रकरण की जॉच
उ०प्र० सतकटता अशधष्ठान के लखनऊ सेक्र्र से कराने एवं जॉच
आख्या 15 शिन में िासन को उपलब्ध कराने का कष्ट करें।

संलग्नक- यथोक्त। (मूलरूप में वापसी अपेशक्षत)

भविीय

S/d

आर०पी० शसंह)"

8. Pursuant to the order dated
08.07.2022, personal affidavit of Shri
Awanish
Kumar
Awasthi,
posted
as
Additional
Chief
Secretary
(Home
/Vigilance), Government of Uttar Pradesh,
Lucknow was filed. Paragraph Nos. 5 to 7
of the affidavit are quoted herein-below:

"5. That the impugned order dated
02.06.2022, consequential to the order
dated
17.05.2022,
was
passed
after
carefully considering the representation
moved by Shri Manoj Kumar Singh.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES

6. That the representation moved by
the
delinquent
Manoj
Kumar
Singh,
comprised 20 issues on which he prayed for
objective, fair and impartial investigation.
7. That it is noteworthy, that various pieces
of
evidence
were
annexed
to
the
representation moved by Manoj Kumar
Singh, in support of the prayer for fair
investigation on the 20 issues raised by the
accused. The fact of the annexures in
support of his prayer, finds mentioned in
both the impugned orders dated 17.05.2022
and 02.06.2022."

9. It is contended by the learned counsel
for the petitioner that the respondent no.10,
after having been released from jail, is
threatening the petitioner to get the matter
compromised. Learned counsel for the
petitioner submits that thereafter the order
impugned
dated
17.05.2022
and
consequential order dated 02.06.2022 has
been passed and the investigation in
relation to Case Crime No.5 of 2021 has
been transferred from Gorakhpur Sector to
Lucknow Sector at the behest of the
accused person, namely, the respondent
no.10. He further submits 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. While referring to Annexure No.6 to
the writ petition, it has been submitted that
the investigating officer, by letter dated
12.11.2021 brought to the notice of Special
Judge (Prevention of Corruption Act),
Gorakhpur that the entire proceedings of
investigation have already been completed
and the necessary documents have been
forwarded to the State Government but, till
date, requisite sanction has not been
accorded at the State Level due to which it
was not possible to submit charge sheet.
The letter further indicates the stand of the
investigating officer that after obtaining
sanction from the State Government,
further proceedings will be held.

10. The sheet anchor of the argument
of the learned 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.

11. The contention of the learned
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.
In support of the contention to the effect
that investigation cannot be transferred
from one investigating agency to the other
at the behest of accused persons, learned
counsel for the petitioner has placed
reliance upon a decision of the Apex Court
in case of Arnab Ranjan Goswami Vs.
Union of India & others: (2020) 14 SCC
12. The Apex Court in paragraphs 47 and
48 of aforesaid judgment has observed as
follows:-

"47. As we have observed earlier, the
petitioner requested for and consented to
the transfer of the investigation of the FIR
from the Police Station Sadar, District
Nagpur City to the N.M. Joshi Marg Police
Station in Mumbai. He did so because an
earlier FIR lodged by him at that police
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1015
station was under investigation. The
petitioner now seeks to pre-empt an
investigation by the Mumbai Police. The
basis on which the petitioner seeks to
achieve this is untenable. An accused
person does not have a choice in regard to
the mode or manner in which the
investigation should be carried out or in
regard to the investigating agency. The
line
of
interrogation
either
of
the
petitioner or of the CFO cannot be
controlled or dictated by the persons
under investigation/interrogation. In P
Chidambaram
v
Directorate
of
Enforcement
(2019)
9
SCC
24,
R
Banumathi, J. speaking for a two judge
Bench of this Court held that:

"66...there is a well-defined and
demarcated function in the field of
investigation
and
its
subsequent
adjudication. It is not the function of the
court to monitor the investigation process
so long as the investigation does not violate
any provision of law. It must be left to the
discretion of the investigating agency to
decide the course of investigation. If the
court is to interfere in each and every
stage
of
the
investigation
and
the
interrogation of the accused, it would
affect the normal course of investigation.
It must be left to the investigating agency to
proceed in its own manner in interrogation
of the accused, nature of questions put to
him and the manner of interrogation of the
accused."

 (Emphasis supplied)

This Court held that so long as the
investigation does not violate any provision
of law, the investigation agency is vested
with the discretion in directing the course
of
investigation,
which
includes
determining the nature of the questions and
the manner of interrogation. In adopting
this view, this Court relied upon its earlier
decisions in State of Bihar v P P Sharma
and Dukhishyam Benupani, v Arun Kumar
Bajoria in which it was held that the
investigating agency is entitled to decide
"the venue, the timings and the questions
and the manner of putting such questions"
during the course of the investigation.

48. In CBI v Niyamavedi: (1995) 3 SC
601, Sujata V Manohar, J. speaking for a
three judge Bench of this Court held that
the High Court should have:

"4...refrained
from
making
any
comments on the manner in which
investigation was being conducted by the
CBI,
looking
to
the
fact
that
the
investigation was far from complete."

This Court observed that:

"4...Any
observations
which
may
amount to interference in the investigation,
should not be made. Ordinarily the Court
should refrain from interfering at a
premature stage of the investigation as that
may
derail
the
investigation
and
demoralise the investigation. Of late, the
tendency to interfere in the investigation is
on the increase and courts should be wary
of its possible consequences."

This Court adopted the position that
courts must refrain from passing comments
on an ongoing investigation to extend to the
investigating agencies the requisite liberty
and protection in conducting a fair,
transparent and just investigation."

12. Learned counsel for the petitioner
has further placed reliance upon a decision
of the Apex Court in the case of Bimal
Gurung and Ors. Vs. Union of India
(UOI) and Ors.: (2018) 15 SCC 480, in
paragraphs 29 and 53 of the said judgment,
the Apex Court has observed as follows:-

29. The law is thus well settled that
power of transferring investigation to
other
investigating
agency
must
be
exercised in rare and exceptional cases
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
where the Court finds it necessary in order
to do justice between the parties to instil
confidence in the public mind, or where
investigation by the State Police lacks
credibility. Such power has to be exercised
in rare and exceptional cases. In K.V.
Rajendran vs. Superintendent of Police,
(2013) 12 SCC 480, this Court has noted
few circumstances where the Court could
exercise its constitutional power to transfer
of investigation from State Police to CBI
such as: (i) where high officials of State
authorities are involved, or (ii) where the
accusation itself is against the top officials
of
the
investigating
agency
thereby
allowing
them
to
influence
the
investigation, or (iii) where investigation
prima facie is found to be tainted/biased.
53. Most of the cases which were cited
before us by the parties are the cases where
this Court exercised jurisdiction under
Article 32 in transferring the investigation
at the instance of the victims. For a victim
the investigation in a case is of much
significance. In the event, a proper
investigation is not carried out and relevant
evidence which would have been collected
by due care and caution, is not collected,
the victim is sure not to get justice on such
faulty investigation. In case of faulty
investigation, where an accused has been
wrongly roped in, he has the right to seek
all remedies before the Court of Law for
further investigation and a Court of Law is
able to marshall all evidence and capable
of discerning truth from evidence on
record. Although as a principle, there is no
fetter on an accused to move a Court of
Law for transfer of investigation, but on the
facts of this case as noted above, we do not
think it to be a fit case where this Court
may exercise jurisdiction under Article 32
to transfer the cases enmasse to an
independent agency. The present case
cannot be said to be a case of individual's
persecution by the State authority."

13. Learned counsel for the petitioner
has also placed reliance upon a decision of
of this Court in the case of Omveer Vs.
State of U.P. and others: 2008 (5) ADJ 698
(DB), paragraphs 13 and 15 of the said
judgment read as follows:-

"13. The perusal of the application
filed by the wife of Charan Singh accused
does not indicate any cogent reasons on the
basis of which further investigation was
required. His application mentioned only
earlier incident and the enmity. How and
on what reasons the State Government
came to the conclusion that further
investigation is required is not born out
from the impugned order. No reasons has
been assigned by the State Government to
give a latitude to the wife of the chargesheeted absconding accused of a murder
charge to have say in a matter of
investigation. In our opinion, the impugned
order seems to have been passed because of
extraneous
consideration
and
under
political pressure. Learned AGA has also
failed to point out any reason as to why
investigation by SIS or any other agency
was an indispensable necessity. The State
Government, was not excepted to give a
long rope to the accused of a murder
charge to remain absconding and make him
subject to the jurisdiction of the Court.
Since the charge sheet has already been
submitted
and
the
accused
never
participated in the investigation and
brought their version before the I.O. we fail
to understand the reason why the State
Government has allowed them to have a
say in the matter when those absconding
accused have got a scanty respect for the
law.
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1017
15. In such a view, we are of the opinion
that the impugned order has been passed
because of extraneous consideration by the
State Government and follow up order by
the S.S.P. and therefore, we quash the
impugned order dated 27.3.2008 passed by
SSP Gautam Budh Nagar in case crime No.
302 of 2007, under Sections 302, 307 IPC
and also order by State Government dated
26.3.2008. We direct the court concerned to
proceed with the case forthwith after
securing the presence of the accused
persons. The accused persons would have
full right to raise their grievance in the
trial at the proper stage of framing of
charge."

14. Learned counsel for the petitioner
has also placed reliance upon a decision of
this Court in the case of Kumari Aayasha
Vs. State of U.P. and Ors: 2018(1) ADJ 85
(DB), paragraph 10 of the said judgment
reads as as follows:-

"10.
Upon
consideration
of
the
judgement of the Hon'ble Supreme Court
referred to above we find that the order
dated 18.5.2016 passed by the Secretary,
Department of Home, Government of U.P.,
Lucknow, has been passed at the behest of
the wife of one of the accused namely Waqil
Ahmad. The only ground discernible from
the order dated 18.5.2016 for transferring
the case to C.B.C.I.D. appears to be the
plea of alibi raised by the applicant Smt.
Safia in respect of some of the accused
persons. The order dated 18.5.2016 does
not
record
a
satisfaction
regarding
fulfilment of any of the conditions
necessary for transfer of investigation
from local police to C.B.C.I.D. as
provided, vide G.O. dated 05.09.1995.
Furthermore, the report dated 30.03.2016
submitted by the Senior Superintendent of
Police,
Muzaffar
Nagar
does
not
recommend for transfer of the above
mentioned case crime number to the
C.B.C.I.D. Thus, the learned counsel for
the petitioner is right in contending before
us
that
the
impugned
order
dated
18.05.2016 passed by the respondent No. 1
is violative of the G.O. dated 22.10.2014
and
contrary
to
the
report
dated
30.03.2016
submitted
by
the
Senior
Superintendent of Police, Muzaffar Nagar."

15. The learned counsel for the
petitioner has also placed reliance upon a
decision of this Court passed in Smt.
Vandana Srivastava Vs. State of U.P. and
4 others: 2014 (7) ADJ 679 (DB). Relevant
portion of the aforesaid judgment reads
follows:-

"We may only record that despite
specific query being made to the learned
Government Advocate and the battery of
the learned AGAs, who are present in the
Court, none could inform the Court as to
what Government orders apply in matter of
exercise of power of transfer. What has
been referred to, to this Court is only a
letter of the Additional Director General of
Police (Apraadh Evam Kanoon Vyawastha,
U.P.) dated 12th December 2012. We fail to
understand as to how a letter of the
Additional Director General of Police can
control
the
discretion
of
the
State
Government, being a subordinate officer.

But what we find is that under the said
circular, guidelines have been laid down in
the matter of transfer of investigation and it
has specifically been provided various
clauses that in normal circumstances no
order for transfer should be made on an
application of an accused. Every attempt
should be made to get the investigation
completed on merits in a fair and diligent
manner. It has again been repeated that
normally no transfer could be affected on
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
the asking of the accused. In paragraph 5
of the circular it has been mentioned that
if
it
is
necessary
to
transfer
the
investigation in special circumstances,
then the conditions existing for such
transfer should specifically be mentioned
in the order itself and an intimation be
given to the higher authorities/State etc.

We are of the opinion that what
applies in the matter of transfer of the
investigation by the higher police officers
applies with full force in the matter of
exercise of discretion for transfer by the
State Government. In as much as, it is the
case of the State itself that the power to
transfer the investigation both in favour of
the State Government as well as in favour
of the higher police authorities flows from
Section 36 of the Code of Criminal
Procedure read with section 3 of the Police
Act, 1961.

We are very sorry to record that the
State will not follow any guideline in the
matter of exercise of discretion qua transfer
of investigation and would continue to act
arbitrarily. This Court is facing petitions
every day where orders of transfer of
investigation are being challenged not only
on merit but also on the ground that they
contain no reasons.

The practice must be put to an end.
Such kinds of orders of transfer of
investigation have the affect of loss of
confidence of common public in the
criminal justice system of this State.

The higher the authorities the higher
the responsibility for exercise of power of
transfer on cogent grounds and sparingly.
Power of transfer of investigation cannot
be made a tool in the hands of accused or
other involved in the matter to prolong the
investigation on some pretext or the other.

We deem it fit and proper to issue
following directions in the matter of
transfer of investigation by the higher
police
authorities
or
by
the
State
Government:

(a) normally there should be no any
order of transfer of investigation on an
application made by an accused.

(b) Every attempt should be made by
the higher police authorities/State on
receipt of an application for transfer of
investigation to first ensure that the
investigation is done by the concerned
Police Station/concerned police authority
in a fair and diligent manner.

(c) Before passing any order on an
application for transfer of investigation, the
minimum
expected
from
the
State
Government or from the higher police
officers is to obtain a report from the
Investigating Officer qua the status of the
investigation and the order of the High
Court, if any, in respect of the case crime
number.

d. If it is absolutely necessary to pass
an order of transfer of investigation on the
application of an accused, then the
minimum required would be that the order
must be supported by cogent reasons with
reference to the material available with the
authority transferring the investigation.

(e) If necessary and permissible, an
opportunity should also be afforded to the
informant/complainant before making any
such order of transfer."

16. Per contra, the contention of the
learned counsel for the respondent no.10 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. It is
further contended that the matter was
referred to B.S.A. on 08.09.2021 and on the
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1019
date of trap, no matter was pending before
the respondent no.10. Learned counsel for
the respondent no.10 has relied upon the
judgment of the Apex Court in the case of
Mohan Lal Vs. State of Punjab: AIR 2018
SC 3853 with specific reference to
paragraphs 11 and 12. For ready reference,
paragraphs 11 and 12 of the said judgment
are being quoted below:-

"11. A fair trial to an accused, a
constitutional guarantee under Article 21
of the Constitution, would be a hollow
promise if the investigation in a NDPS case
were not to be fair or raises serious
questions about its fairness apparent on the
face of the investigation. In the nature of
the reverse burden of proof, the onus will
lie on the prosecution to demonstrate on the
face of it that the investigation was fair,
judicious with no circumstances that may
raise doubts about its veracity. The
obligation of proof beyond reasonable
doubt will take within its ambit a fair
investigation, in absence of which there can
be no fair trial. If the investigation itself is
unfair,
to
require
the
accused
to
demonstrate prejudice will be fraught with
danger vesting arbitrary powers in the
police which may well lead to false
implication also. Investigation in such a
case would then become an empty formality
and a farce. Such an interpretation
therefore naturally has to be avoided.

12. That investigation in a criminal
offence must be free from objectionable
features
or
infirmities
which
may
legitimately lead to a grievance on part of
the accused was noticed in Babubhai vs.
State of Gujarat, (2010) 12 SCC 254: as
follows:

"32. The investigation into a criminal
offence must be free from objectionable
features
or
infirmities
which
may
legitimately lead to a grievance on the part
of the accused that investigation was unfair
and carried out with an ulterior motive. It
is also the duty of the investigating officer
to conduct the investigation avoiding any
kind of mischief and harassment to any of
the accused. The investigating officer
should be fair and conscious so as to rule
out any possibility of fabrication of
evidence and his impartial conduct must
dispel any suspicion as to its genuineness.
The investigating officer "is not merely to
bolster up a prosecution case with such
evidence as may enable the court to record
a conviction but to bring out the real
unvarnished truth".

33. In State of Bihar v. P.P. Sharma
(AIR 1991 SC 1261) this Court has held as
under:

"57. ... Investigation is a delicate
painstaking and dextrous process. Ethical
conduct
is
absolutely
essential
for
investigative professionalism. ... Therefore,
before countenancing such allegations of
mala fides or bias it is salutary and an
onerous duty and responsibility of the
court, not only to insist upon making
specific and definite allegations of personal
animosity against the investigating officer
at the start of the investigation but also
must insist to establish and prove them
from the facts and circumstances to the
satisfaction of the court.

* * *

59. Malice in law could be inferred
from doing of wrongful act intentionally
without any just cause or excuse or without
there being reasonable relation to the
purpose of the exercise of statutory power.
...

61. An investigating officer who is not
sensitive to the constitutional mandates,
may be prone to trample upon the personal
liberty of a person when he is actuated by
mala fides."
1020 INDIAN LAW REPORTS ALLAHABAD SERIES

17.

Learned
counsel
for
the
respondent
no.10
has
further
placed
reliance upon a decision of Madras High
Court in the case of A.V. Bellarmin Vs. Mr.
V.
Santhakumaran
Nair
passed
in
Criminal O.P. (MD) No.12212 of 2013 and
M.P. (MD) Nos.1 and 2 of 2013, decided
on 13.08.2015. Paragraph no. 14 of the
aforesaid judgment reads as follows:-

"14. Instrumentality of a State and its
officials must conform to the Rule of Law
leading to fairness in action. It has been
well established that fairness is a facet of
Article 21 of the Constitution of India. Such
a fairness in action is also mandatorily to
be followed in a criminal investigation. A
right to a fair investigation is not only a
constitutional right but a natural right as
well. In Sathyavani Ponrani v. Samuel Raj,
2010 (4) CTC 833, while dealing with fair
investigation, this Court has held that the
same is mandatory under Articles 14, 21
and 39 of the Constitution of India. The
following paragraphs would be apposite:

6.Free and Fair Investigation and
Trial is enshrined in Article 14, 21 and 39A of the Constitution of India. It is the duty
of the state to ensure that every citizen of
the country should have the free and fair
investigation and trial. The preamble and
the constitution are compulsive and not
facultative, in that free access to the form of
justice is integral to the core right to
equality, regarded as a basic feature of our
Constitution. Therefore such a right is a
constitutional
right
as
well
as
a
fundamental right. Such a right cannot be
confined only to the accused but also to the
victim depending upon the facts of the case.
Therefore such a right is not only a
constitutional right but also a human right.
Any procedure which comes in a way of a
party in getting a fair trial would in
violation of Article 14 of the Constitution.

67.The
Hon'ble
Apex
Court
in
ZAHIRA HABIBULLA H. SHEIKH v.
STATE OF GUJARAT [(2004) 4 SCC 158]
has observed as follows:

"36. The principles of rule of law and
due process are closely linked with human
rights protection. Such rights can be
protected effectively when a citizen has
recourse to the courts of law. It has to be
unmistakably understood that a trial which
is primarily aimed at ascertaining the truth
has to be fair to all concerned. There can
be no analytical, all-comprehensive or
exhaustive definition of the concept of a
fair trial, and it may have to be determined
in seemingly infinite variety of actual
situations with the ultimate object in mind
viz. whether something that was done or
said either before or at the trial deprived
the quality of fairness to a degree where a
miscarriage of justice has resulted. It will
not be correct to say that it is only the
accused who must be fairly dealt with. That
would be turning a Nelson's eye to the
needs of the society at large and the victims
or their family members and relatives. Each
one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as
is to the victim and the society. Fair trial
obviously would mean a trial before an
impartial judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial
means a trial in which bias or prejudice for
or against the accused, the witnesses, or
the cause which is being tried is eliminated.
If the witnesses get threatened or are forced
to give false evidence that also would not
result in a fair trial. The failure to hear
material witnesses is certainly denial of
fair trial."

18.

Learned
counsel
for
the
respondent no.10 has further relied upon a
decision of the Apex Court in the case of
3 All. Gaaurav Tripathi Vs. State of U.P. & Ors.
1021
Nirmal Singh Kahlon Vs. State of Punjab
and others: (2009) 1 SCC 441. Paragraph
28 of the aforesaid judgment reads as
follows:-

"An accused is entitled to a fair
investigation. Fair investigation and fair
trial are concomitant to preservation of
fundamental right of an accused under
Article 21 of the Constitution of India. But
the State has a larger obligation i.e. to
maintain law and order, public order and
preservation of peace and harmony in the
society. A victim of a crime, thus, is equally
entitled to a fair investigation. When
serious allegations were made against a
former Minister of the State, save and
except the cases of political revenge
amounting to malice, it is for the State to
entrust one or the other agency for the
purpose of investigating into the matter."

19.

Learned
counsel
for
the
respondent no.10 has further relied upon
same authorities that have been relied upon
by the petitioner side viz. Vandana
Srivastava (supra), Km Aayasha (supra),
Omveer (supra), Bimal Gurung (supra).

20. In sum and substance the
contention of the learned counsel for the
respondent no.10 is that fair investigation
as well as fair trial is 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.

21. Learned AGA, on the other hand,
submits that investigation was already on
its conclusion when the present writ
petition was filed and on account of interim
order passed by this Court on 04.01.2023,
no further proceedings, either way, could be
held. He has also placed for perusal of
court Parcha No.14 dated 04.01.2023 being
part of the record of investigation, which
recites that most of the evidences and
statements
have
already
been
collected/recorded during the course of
investigation.

22. During the course of arguments, a
dispute arose with respect to the aspect of
sanction.