# Km. Rachana Goswami v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-23
- **Case number:** Criminal Misc. Writ Petition No. 7173 of 2010
- **Bench:** Ravindra Singh, Arvind Kumar Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-rachana-goswami-v-state-of-u-p-and-ors-42663
- **Pages:** 5

## Headnote

Constitution of India, Art. 226- Change
of Investigation from Civil Police to
C.B.I.-due to interference of Political
Leader-to take the administrative control
of temple-on apprehension-FIR lodged
under section 364 I.P.C.-Police under
influence submitted closure report-being
perplexed
the
Mahant
taken
Jal
Samadhi-whether death was accidental
or suicide-to be investigated by C.B.I.-
without
being
prejudice
with
fact
whether final report by civil police
accepted or not-as same stand quashed.

Held: Para-11
Hence in view of the fact of this case,
irrespective of the fact that final report
has been submitted and the same has
been accepted or not, the C.B.I. is
directed to investigate the matter with
regard to Case
Crime No.264/2010
under
section
302
I.P.C.
PS.Cantt,
Bareilly and to submit the report within a
reasonable time before the court concern
in accordance with law. If final report
submitted by the civil police has already
been accepted the same stands quashed.

## Text

3 All] Km. Rachana Goswami Vs. State of U.P. and Ors.
1225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2013

BEFORE
THE HON'BLE RAVINDRA SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI, J.

Criminal Misc. Writ Petition No. 7173 of
2010
Km. Rachana Goswami
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.M. G. Asghar, Sri V.M. Zaidi

Counsel for the Respondents:
A.G.A., Sri Anurag Khanna
Sri N.I. Jafri, Sri V.P. Srivastava
Sri Vipin Kumar

Constitution of India, Art. 226- Change
of Investigation from Civil Police to
C.B.I.-due to interference of Political
Leader-to take the administrative control
of temple-on apprehension-FIR lodged
under section 364 I.P.C.-Police under
influence submitted closure report-being
perplexed
the
Mahant
taken
Jal
Samadhi-whether death was accidental
or suicide-to be investigated by C.B.I.-
without
being
prejudice
with
fact
whether final report by civil police
accepted or not-as same stand quashed.

Held: Para-11
Hence in view of the fact of this case,
irrespective of the fact that final report
has been submitted and the same has
been accepted or not, the C.B.I. is
directed to investigate the matter with
regard to Case
Crime No.264/2010
under
section
302
I.P.C.
PS.Cantt,
Bareilly and to submit the report within a
reasonable time before the court concern
in accordance with law. If final report
submitted by the civil police has already
been accepted the same stands quashed.

(Delivered by Hon'ble Arvind K.Tripathi, J)

1. Heard learned counsel for the
parties and perused the record.

2. The present writ petition has been
filed with the prayer to issue writ of
mandamus commanding the respondents
no.1 & 2 to transfer the investigation of
the Case Crime No.264/10 under section
364 I.P.C. PS. Cant District Bareilly from
local police to some other independent
agency to get fair investigation of the
same according to law.

3. The case of the petitioner is that
she is resident of 339, PS Sadar Bazar,
Police Line, PS. Cant, District Bareilly.
There is temple of petitioner's family
known
as
Dhopeshwar
Mahadev
Birajman Mandir Bhopa, Sadar Bazar
Bareilly.
The
grand
father
of
the
petitioner Late Mahant Gokaran Giri,
aged about 95 years was the Mahant and
Manager of the said temple. In respect of
the properties belonging to the temple
there was a old grant in favour of Hindu
Community and the ancestor of the
petitioner's family were looking after the
management and Puja. The said temple is
situated in Cant area District Bareilly. The
temple consists of building of the temple,
Thakurdwara,
New
Durga
Mandir,
Vaishno Ji Mandir,
Hanumanji Ka
Mandir, Sai Dev Mandir, Ardhnarishwar
and
Gufa,
Dhopeshwar
Nath
Park,
Dhopeshwar Nath Tank. Apart from the
said building/property of the temple
Dhopeshwar Nath Mahadev Temple,
there are six residential houses situated in
Mohalla Sadar Bazar, Cant Bareilly
within the premises of the said temple.
There are ten shops. Out of ten shops, five
shops are in possession of the respondent
no.5 who has put his locks and closed the
same. There is open land adjacent to the
premises of the said temple measuring
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
about 15 bighas. The entire constructed
and open land which are in possession of
the family of the petitioner and belongs to
the said temple are measuring about 30
bighas. Hence there are huge movable and
immovable property which were being
managed by and under control of late
Mahant Gokaran Giri for the last several
years. The respondent no.5 Virendra
Singh Gangwar, M.L.A of the then ruling
party in the State, wanted to grab the
management and properties of the said
temple with the help of his supporters and
the district administration was also
supporting him. In connivance with the
District
Administration
and
certain
officials of the cantonment board he tried
to create a trust and constituted a
committee
of
management,
for
management of the properties of the
Mandir consisting off his own persons.
He also tried to interfere in the
management and affairs of the temple. He
had also given threat to the life and
properties of late grand father of the
petitioner namely Mahant Gakaran Giri
regarding which complaint was lodged to
the concerned authorities but due to
influence of respondents no.5 no action
was taken to protect the life and property
of late Mahant Gokaran Giri and property
of the temple. As there was threat to
grand father of the petitioner and other
family members to their lives, hence the
representation was sent to the National
Human Right Commission, New Delhi
and other concerned authorities. When
there was no response from the above
mentioned authorities, then the Writ
Petition No.34761/2009 was filed to issue
direction to the district administration and
S.S.P. Bareilly, to consider the claim of
the petitioner for providing protection to
his life and liberty. The division bench of
this Court disposed off the writ petition
on 21.7.2009, directing the District
Magistrate, Bareilly to consider the claim
of the petitioner, late Mahant Gokaran
Giri filed a copy of the order before the
District Magistrate, Bareilly, however, he
did not decide the representation and no
step was taken for protection and he was
not communicated regarding any decision
and
order
passed
by
the
District
Magistrate, hence the contempt petition
was filed. Thereafter again the Writ
Petition No.67407 was filed for providing
security for protection of the life of late
Mahant Gokaran Giri and other family
members. In that writ petition the
respondent.5
was
also
arrayed
as
respondent no.6 and that writ petition was
decided by order dated 11.12.2009 with
direction to consider and decide the
representation of the petitioner. Again an
application was filed to provide protection
or to pass any order on the representation.
The petitioner was not communicated by
any order. Subsequently when the counter
affidavit was filed in the present writ
petition it was communicated that the
representation was decided by the District
Magistrate. Inspite of pressure and threat
from the side of the respondent no.5 and
his supporters late Mahant Gokaran Giri
did not surrender before him. Thereafter
on 13.2.2010 respondent no.5 along with
his associates illegally entered into the
premises of temple and abducted late
Mahant Gokaran Giri, the grand father of
the petitioner, regarding which the First
Information Report was lodged on the
same day and registered as Case Crime
No.264/10 under section 364 I.P.C. at
Police
Station
Cantt,
Bareilly,
subsequently
the
dead
body
was
recovered
from
the
pond.
The
investigating officer who was under the
influence of the respondent no.5, failed to
make fair investigation and due to
3 All] Km. Rachana Goswami Vs. State of U.P. and Ors.
1227
political pressure forwarded final report
dated 4.4.2010 stating therein that the
deceased Mahant Gokaran Giri committed
suicide by observing Jal Samadhi but the
Circle Officer/Additional S.P. before
whom the final report was forwarded,
found
some
contradiction
in
the
investigation and as such directed for
further investigation. However, again
final
report
dated
17.7.2010
was
submitted
under
to
influence
of
respondent no.5, disclosing the opinion,
that it was an accidental death and not a
murder.

4. It was further submitted that
ordinarily
reinvestigation
is
not
permissible only the direction can be
issued for further investigation.

5.

However,
in
exceptional
circumstances since there is gross abuse
of power and failure of justice, hence the
Hon'ble
Court
may
direct
for
reinvestigation also. In view of the
decision of the Apex Court in the case of
Babu Bhai vs. State of Gujrat and others,
2011(1) SCC (Crl.) 336 he further
contended that in the present case since
the investigation was under influence and
political pressure of the respondent no.5,
the then ruling party M.L.A. and as such
in the interest of justice the direction be
issued
for
fresh
investigation
by
independent agency i.e. C.B.I.

6. Learned Standing Counsel and
counsel for the respondent no.5 opposed
the aforesaid prayer of the petitioner for
transfer of the investigation.

7. Learned A.G.A. submitted that
earlier
after
investigation,
the
Investigating
Officer
came
to
the
conclusion that late Mahant Gokaran Giri
committed suicide due to some family
dispute and problems and no offence
under section 364 and 302 I.P.C. was
made out, hence final report dated
4.4.2010 was submitted. Since it was
found by the Circle Officer, City III that
there
was
contradiction
in
the
investigation, he directed for further
investigation. After further investigation it
was found that there was no evidence of
commission of offence and crime under
section 364, 302 I.P.C. The investigating
officer recorded the statement of the
witnesses including doctor who conducted
post mortem examination on the body of
the deceased Baba Gokaran Giri and no
external injuries were found on the body
of the deceased. The statement of the
independent witnesses and diverse were
also recorded. Videography and status of
body was mentioned in the post mortem
examination report. The deceased Baba
Gokaran Giri was aged about 95 years
who had gone to pond on 13.1.2010 and
he himself fell therein due to sudden slip
and as such the investigating officer
submitted the expunge report dated
17.5.2010 as no offence was made out.
The investigation was not under the
influence of any person or party and as
such the present petition is liable to be
dismissed.

8. Counsel appearing on behalf of
the respondent no.5 submitted that the
First Information Report was lodged and
registered on 13.2.2010 under section 364
I.P.C. against 11 persons. However, in the
present writ petition only one person
respondent no.5 has been arrayed as party,
hence there is non joinder of the party.
The allegation that the respondent no.5
and other co-accused wanted to grab the
property of the temple though from the
perusal of the First Information Report
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
and copy of the trust deed it would be
clear that any of the accused mentioned in
the First Information Report have no
concerned in respect to the trust deed and
management of the temple. Subsequently
trust was created by cantonment board.
However, the respondent no.5 was not
shown as trustee. There was direction for
further investigation. However, it was again
found that no offence was made out. There
was no anti mortem injury and cause of death
was found asphyxia due to anti mortem
drowning. The temple is property of
cantonment board. No one has right over the
property of the temple just to maintain peace
and harmony the Chief Executive officer of
the cantonment board created a trust for
management of the temple. The trust deed
was executed in the name of Dhopeshwar
Nath temple on 6.6.2005. He further
contended that the final report was submitted
and as the petitioner/complainant has a right
to file the protest petition. However, inspite
of knowledge of notice petitioner did not
appear before the court of C.J.M. and instead
of filing the protest petition the present
petition has been filed. If she has any
complaint against the investigation, the
protest petition might have been filed. The
representations filed by the family members
and the pairokar of late Mahant Gokaran Giri
were decided by the district magistrate. The
allegations are incorrect and misconceived
that the respondent no.5 wanted to grab the
property. He never gave threat to the
deceased Mahant Gokaran Giri or his family
members. The investigation was free and
fair. No evidence was available regarding
involvement of the respondent no.5 or other
co-accused. Rightly the final report was
submitted and as such the present petition is
liable to be dismissed.

9. Considered the submissions of
learned counsel for the parties.

10. In view of the complaint made
on behalf of late Mahant Gokaran Giri by
his pairokar and by his family members
and the writ petition filed on his behalf
before this Court it is clear that as per
allegation there was threat to his life and life
of his family members and there was threat
to grab the property of the temple. Had the
grievance of late Mahant Gokaran Giri been
considered by the district administration, this
unfortunate incident dated 13.2.2010 might
have not taken place. The investigation is not
required to be transferred merely because
there is request either on behalf of the
accused or on behalf of the complainant but
if it is found that there was unfair
investigation and investigation might have
been done under influence and the same was
biased and tented then in the interest of
justice to prevent miscarriage of the justice,
direction can be issued not only for further
investigation but in view of the fact and
circumstances even the direction can be
issued for reinvestigation/fresh investigation
In the present case there was complaint on
behalf of late Mahant Gakaran Giri regarding
threat to life and properties and subsequently
the incident took place on 13.2.2013 causing
his death. The circumstances shows that
there was no chance of free and fair
investigation. First time when the case was
investigated, the opinion of the Investigating
Officer was that it was a case of suicide due
to
family
dispute
and
problems.
Subsequently the supervisory officer/circle
officer found that there was contradiction in
the investigation and directed for further
investigation. After further investigation the
opinion of the investigating officer was that it
was case of accidental death as late Baba
Mahant Gakaran Giri had gone to the pond
on 13.2.2010 and he himself fell down due to
sudden slip. Whether it is a case of abduction
and murder as mentioned in the First
Information Report, as submitted on behalf
3 All] Ashok Pande Vs. Union of India & Ors.
1229
of the petitioner or it is a case of suicide or
accidental death due to sudden slip, is required
to be investigated by independent agency.
According to the allegation late Mahant
Gokaran Giri was forcibly taken away by
respondent no.5 and his supporter and there
was apprehension that he might be killed,
hence the report was lodged under section 364
I.P.C. Subsequently after recovery of the dead
body,
section
302
I.P.C.
was
added.
Admittedly late Mahant Gokaran Giri was
aged about 95 years, hence he was not
expected to go alone near pond without taking
any help or without accompanied with any
disciple or supporter. The question is not
whether respondent no.5 and those persons
who are named in the First Information are
involved in the incident but firstly the question
is whether it was a murder or suicide or
accidental death and if it was a preplanned
abduction and murder then who are the
persons, who are involved in the incident dated
13.2.2013. The matter requires investigation by
independent agency to find out truth and to
place the same before the court concerned.

11. Hence in view of the fact of this
case, irrespective of the fact that final
report has been submitted and the same
has been accepted or not, the C.B.I. is
directed to investigate the matter with
regard to Case Crime No.264/2010 under
section 302 I.P.C. PS.Cantt, Bareilly and
to submit the report within a reasonable
time
before
the
court
concern
in
accordance with law. If final report
submitted by the civil police has already
been accepted the same stands quashed.

12. On the request of Investigating
Officer, C.B.I. the requisite papers of case
diary shall be handed over.

13. Accordingly this writ petition is
hereby allowed. However, no order as to cost.

14. Let a copy of this order be
supplied
to
Mr.Aurag
Khanna/Mr.
N.I.Zafri, learned counsel for C.B.I. for
follow up action, to communicate the
authorities concerned for compliance of
the order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.08.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, CHIEF
JUSTICE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc. Bench No. 7444 of 2013(P.I.L.)

Ashok Pande

 ...Petitioner
Versus
Union of India & Ors.
 ...Respondents

Counsel for the Petitioner:
Asok Pande(In Person)

Counsel for the Respondents:
A.S.G.

Constitution of India, Art. 226- Public
Interest
litigation-petition
seeking
prohibition of publishing photographs of
such political leader-bearing no portfolio
in government-like Sonia Gandhi and to
recover part of cost of such publicationheld-it will be hazardous to lay down any
ideal relationship between government
or their leader-petition dismissed.

Held: Para-10
Ultimately, in a public interest litigation,
the petitioner is required to show that
the prayer, which he is seeking, shall
promote public interest. It is very
difficult for the Court, considering the
set of facts and controversial issues, to
come to any final conclusion that the
petitioner's prayer, if granted, shall
promote public interest. Functioning of a
democracy in a healthy and vibrant