# Rama Shankar Mishra v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** Criminal Misc. Writ Petition No. 6539 of 2020
- **Bench:** Pankaj Naqvi, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shankar-mishra-v-state-of-u-p-ors-47442
- **Pages:** 14

## Headnote

A. Criminal Law - Constitution of India,
1950-Article 226 & Indian Penal Code,
1860-Section
147,
366-applicationseeking
direction
in
the
nature
of
mandamus to transfer of the investigation
to CBCID -jurisdictional magistrate taken
cognizance against the accused-Learned
magistrate rejected the Final reports
submitted by investigating officer and
issued
summon
against
the
accused
persons-vehicle
in
question
used
in
abduction has not been recovered by the
I.O.-Magistrate has power to investigate
further after the statement of victim u/s
164, final reports have been submitted
and the accused persons were releasedthe power of Magistrate's u/s 156(3) is
very wide and would continue to ensure
such power at all stages of the criminal
proceedings
until
the
trial
itself
commences.(Para 1 to 40)

The writ petition is disposed off. (E-6)

List of Cases cited:

## Text

_Characters 0–39,822 of 46,073. This is a partial read: ask again with offset=39822 for what follows._

52 INDIAN LAW REPORTS ALLAHABAD SERIES
from the official website of High Court
Allahabad, self attested by the petitioner
alongwith a self attested identity proof of
the said person (preferably Aadhar Card)
mentioning the mobile number to which the
said Aadhar Card is linked.

28. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)09ILR A52
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 6539 of 2020

Rama Shankar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dheeraj Kumar Dwivedi, Sri K.K.
Tripathi

Counsel for the Respondents:
G.A.

A. Criminal Law - Constitution of India,
1950-Article 226 & Indian Penal Code,
1860-Section
147,
366-applicationseeking
direction
in
the
nature
of
mandamus to transfer of the investigation
to CBCID -jurisdictional magistrate taken
cognizance against the accused-Learned
magistrate rejected the Final reports
submitted by investigating officer and
issued
summon
against
the
accused
persons-vehicle
in
question
used
in
abduction has not been recovered by the
I.O.-Magistrate has power to investigate
further after the statement of victim u/s
164, final reports have been submitted
and the accused persons were releasedthe power of Magistrate's u/s 156(3) is
very wide and would continue to ensure
such power at all stages of the criminal
proceedings
until
the
trial
itself
commences.(Para 1 to 40)

The writ petition is disposed off. (E-6)

List of Cases cited:

1. Amar Nath Chaube Vs UOI & ors. (2021) AIR
SC 109

2. In Manohar Lal Sharma Vs Principal Secretary
and ors. (2014) 2 SCC 532

3. Pooja Pal Vs U.O.I. (2016) 3 SCC 135

4. Vinay Tyagi Vs Ishad Ali (2013) 5 SCC 762

5. Babubhai Vs St. of Guj.(2010) 12 SCC 254

6. Bharati Tamang V. U.O.I. (2013) 15 SCC 578

7. Sakiri Basu Vs St. of U.P.(2008) 2 SCC 409

8. St. of Ker. Vs Rasheed (2019) AIR SC 721

9. St. of Guj. Vs Kishanbhal & ors.(2014) 5 SCC
108

10. Perumal Vs Janaki (2014) 5 SCC 377

11. St. of Guj. Vs Kishanbhai (2014) 5 SCC 108

12. Vinubhai Haribhai Malaviya ors. Vs The St.
of Guj. & ors.(2019) 17 SCC 1

(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. The present writ petition under
Article 226 of the Constitution of India was
initially preferred for seeking direction in
the nature of mandamus to transfer of the
investigation of Case Crime No. 3 of 2020,
P.S. Meja, District Prayagraj to Crime
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
53
Branch Criminal Investigation Department
(C.B.C.I.D.) or any other independent
agency to ensure a fair investigation and
prayed for following principal reliefs:

"(i) Issue a writ order or
direction in the nature of mandamus direct
the respondent no. 2 to transfer the
investigation of present case, i.e. Case
Crime No. 03 of 2020, under Sections 147,
366 I.P.C. Police Station Meja, District
Prayagraj to C.B.C.I.D. or any other any
other independent agency to ensure fair
investigation.

(ii) Issue a writ order or direction
in the nature of mandamus commanding
the respondent no. 2 and 3 to arrest the
accused persons in the present case."

2. We, after hearing the learned
counsel for the parties, passed a detailed
order on 1.10.2020. The operative part of
the said order is quoted hereunder:-

(i) The order of cognizance dated
1.5.2020 passed by the Remand Magistrate
in Case Crime No. 3/2020, under Sections
147/366 IPC, P.S. Meja, Prayagraj is
quashed.
The
learned
Jurisdictional
Magistrate is directed to take fresh
cognizance on available materials at the
earliest.

(ii) The Competent Authority is
directed to immediately place the I.O.s of
Case Crime No. 3 & 264, both of 2020 and
the
Circle
Officer
concerned
under
suspension
and
institute
disciplinary
proceedings against them which shall be
conducted by an officer not below the rank
of
Superintendent
of
Police.
The
disciplinary
proceedings
shall
be
completed as expeditiously as possible
preferably within 2 months and the action
taken be apprised to the court in a sealed
cover on 18.12.2020.

(iii) The Disciplinary Authority
shall not hesitate in invoking the provisions
of Section 166-A IPC and other offence, if
need be, against the erring police officials.

(iv) The victim shall be provided
adequate security (24 X 7) at the expense of
the State. She shall be escorted in a police
vehicle to record her evidence in the Court
and
the
witness
protection
scheme
formulated by the Apex Court in Mahendra
Chawla and Others vs. Union of India and
others in Writ Petition (Criminal) No.
156/2016 on 5.12.2018 shall be adhered
to."

3. We kept the petition pending.

4. Pursuant to our detail order dated
01.10.2020, it was reported that not only
the two I.O.'s of Case Crime Nos. 3 & 264,
both of 2020 but the C.O.'s concerned were
suspended
and
disciplinary
inquiries
initiated in which the two I.O.'s namely
Mohd. Azhar Khan and Sri Munna Lal
were found guilty in discharge of their
duties while Sri Navin Kumar Naik
(erstwhile C.O.- Meja) was found partly
guilty whereas Sri Sachidanand (erstwhile
C.O- Meja) stood exonerated.

5. Sri Shiv Kumar Pal, learned
Government
Advocate
for
the
State
submitted that pursuant to quashing of the
cognizance
order
by
this
Court
on
1.10.2020, further investigation of Case
Crime Nos. 3 of 2020 and 264 of 2020 was
transferred to Crime Branch, both the cases
were
independently
investigated
by
Inspector Vridhi Chand Gautam, Crime
Branch who after completing investigation
of both the cases fairly and impartially,
submitted Final Reports in both the cases
before the jurisdictional Magistrate. He
further
pointed
out
about
materials
collected during further investigation but
54 INDIAN LAW REPORTS ALLAHABAD SERIES
fairly admitted that at the time of
submitting
the
police
report,
the
investigation agency has no scope to
discard the statements of the victim under
Section 164 of the Code.

6. Learned Government Advocate
further argued that the jurisdictional
Magistrate issued summons after taking
cognizance vide order dated 22.3.2021, on
the basis of materials collected during the
investigation against respondents no. 5 to 7
and Abhishek Singh @ Shani under
Sections 363 and 376D of the IPC after
rejecting the Final Report in Case Crime
No. 3 of 2020. It is further submitted that
the jurisdictional Magistrate has also issued
summons against accused Arun Kumar
Singh, Ashish Singh, Amrendra Pratap
Singh, and Abhishek Singh in Case Crime
No. 264 of 2020 under Sections 363, 366,
and 376D of the IPC vide order dated
2.4.2021, after taking cognizance.

7. Learned counsel for the petitioner
admitted that although the jurisdictional
Magistrate took cognizance in Case Crime
No. 3 of 2020 and 264 of 2020 and issued
summons against the accused persons yet
the local police has not served the process.

BRIEF FACTS OF THE CASE:

8. The first incident took place on
25.12.2019 when after taking objection to
the conduct of the informant/cousin of the
victim and his family in not letting a road
to be constructed, respondents no. 5 to 7
and Shani Singh came to the house of the
victim at about 6:30 AM. They hurled
filthy abuses and inflicted serious injuries
to the family members of the victim. First
Information Report (in short "FIR") of the
incident was lodged by Vinod Kumar
Mishra, against the respondents no. 5 to 7
and Shani Singh on 26.12.2019 at 6:27 PM
as Case Crime No. 1070 of 2019 under
Sections 452, 323, 504, and 506 of the IPC
at Police Station Meja, Prayagraj.

9. On 1.1.2020, the second incident
took place at about 8:00 PM, when the
victim had gone to ease herself on the rear
side of her house, respondents no. 5 to 7,
Abhishek @ Shani, and 4 other unknown
persons were waiting for the arrival of the
victim and when she came, 8 accused
persons forcibly dragged her in an
unnumbered vehicle (Red Renault Duster).
On hearing her cries for help, the petitioner
and other family members came out from
the house, saw the armed accused persons,
who threatened them with life, and the
victim
abducted.
On
25.12.2019,
respondent nos. 5 to 7 and Abhishek @
Shani had extended a threat that the family
of the informant would be given a new year
gift. An FIR of the above incident was
lodged by the petitioner/ father of the
victim against respondents no. 5 to 7,
Abhishek @ Shani, and 4 other unknown
persons on 2.1.2020 at 13.48 hours as Case
Crime No. 3 of 2020 under Sections 147,
and 366 of the IPC at P.S. Meja, Prayagraj.

10. Sub-Inspector Mohd. Azhar Khan
started the investigation, recorded the
statements of the petitioner Rama Shankar
Mishra (informant/father of the victim),
Daya Shankar Mishra (brother of the
informant), Om Shankar Mishra (brother of
the informant), Ruchi Mishra (sister of the
victim) and Shivam Mishra (brother of the
victim) as eyewitnesses of the incident,
under Section 161 the Code on 7.1.2020.

11. Statement of the victim under
Section 161 of the Code was recorded on
8.1.2020 by S.I. Munna Lal II I.O., wherein
she stated that on 1.1.2020 at 8:30 PM that
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
55
when she had gone to ease herself on the
rear side of her house, all the accused
persons along with Shani @ Abhishek were
standing there with firearms to commit
murder of her cousin Vinod Kumar Mishra.
All the accused persons caught her and
closed her mouth with a handkerchief and
put her in a Red Duster car. She does not
remember where they took her. She stayed
with the accused persons for 7 days. She
stayed 2 days in a room and 5 days in the
dicky of the car. They used to take her into
the room and commit rape with her while
keeping her unconscious. After 7 days,
respondents no. 5 to 7, Abhishek @ Shani
Singh, and 4 other unknown persons left
her near her house.

12. The victim was medically examined
on 9.1.2020 at 1:00 PM in Community
Health Centre, Ram Nagar by Dr. Reeta
Dwivedi, which indicated that her hymen was
torn with slight redness in the region. During
medical examination, hair of the scalp, nail
scrapings of both hands, and vaginal smear
(air-dried) for semen examination of the
victim were collected.

13. On 14.1.2020, statement of the
victim under Section 164 of the Code was
recorded
by
Judicial
Magistrate
-II,
Allahabad, which is extracted as:

ˮघटना 1/1/20 की हैं। मैं शाम 8.30
बजे अपने चाचा को खाना देकर घर के पीिे
शौचालय जा रही थी । तब मैंने तहसीलदार नसिंह,
अरूण नसिंह, आशीश नसिंह, सन्नी नसिंह को देखा ।
3 - 4 और लोग थे नजन्हे मैंने नहीिं पहचाना।
तहसीलदार नसिंह ने मेरा मुह दबा नदया नजससे मैं
बोल नहीिं पाई । नर्र मैं बेहोश हो गई । जब होश
आया तब आूँखे, मुूँह और हाथ बिंधे थे । आूँख में
पट्टी होने के कारण मुझे कुि नहीिं समझ आ रहा
था नक जगह क्या है । ऐसा लगता था नकसी कमरे
में है । 3 - 4 नदन खाने को कुि नहीिं नदया, पानी
देते थे । एक दो नदन बाद नकसी ने मेरी सलवार
उतारी
।
मेरे
साथ
गलत
काम
नकया
(बलात्कार)/गलत काम करने के बाद सलवार
पहना दी । 2 - 3 नदन बाद बेहोश करके नडक्की
में रखा गाडी की । मुझे नहीिं पता नकतने समय
नडक्की में थी । आूँखोिं में पट्टी बिंधी थी । मुझे नही
पता गाडी में नकतने लोग थे । मेरे साथ 3 - 4 बार
गलत काम (बलात्कार) नकया गया परिु नकसने
नकए यह नहीिं पता । 8/1/2020 को मुझे घर के
पीिे गाडी से उतार नदया गया । जब मुझे िोडा
तब हाथ खोल कर िोडा । तब मैंने आिंखो की
पट्टी खोली और देखा लाल रिंग की गाडी जा रही
थी । नबर नहीिं देख पाई । तहसीलदार, अरूण
नसिंह और उनके बेटोिं से जमीन का नववाद चल
रहा था हमने 25/12/19 को पुनलस बुलाई तब सन्नी
नसिंह ने कहा था नक बच्ची मैं तुम्हें नए साल के नदन
नगफ्ट दूगाूँ । जब मैं घर गई तब पुनलस थी। इसके
अनतररि मुझे कुि नहीिं कहना।ˮ

14. On 22.1.2020, the petitioner
approached the Assistant Director General
of Police, Prayagraj Zone by way of an
application to get the investigation of case
Crime no. 3 of 2020 transferred to any
other police station of the district. He stated
that the police of Police station Meja had
colluded with the accused persons and the
police were not taking any concrete action
against the accused persons.

15.

On
28.3.2020,
co-accused
Abhishek @ Shani Singh was arrested and
sent to judicial custody. On 29.3.2020, after
completing investigation, S.I. Munna Lal
submitted
a
charge
sheet
against
respondents no. 5 to 7 and Abhishek @
Shani Singh under Sections 323, 504, and
506 of the IPC only, while exonerating all
the accused persons under Sections 147,
366, and 376D of the IPC. The Magistrate
took cognizance under Sections 323, 504,
56 INDIAN LAW REPORTS ALLAHABAD SERIES
and 506 of the IPC only. As a result,
accused Abhishek @ Shani Singh after
being enlarged on bail under Sections 323,
504, and 506 of the IPC started extending
threat to the victim, therefore, the victim
had to be shifted to the house of her
maternal uncle.

16. The second incident of abduction
took place on 17.5.2020 at about 7:30 PM,
when the victim had gone to attend the call
of nature from the house of her maternal
uncle, where she was residing for 25 days
prior to the incident. When she did not
return after a long time then her maternal
uncle and aunt searched for her and dialed
112 to inform the police about the incident.
The informant came to know that a boy
came on a motorcycle and abducted the
victim. An FIR was lodged by her uncle
namely Umakant Dubey, on 19.5.2020 at
3:27 PM against unknown persons as Case
Crime No. 264 of 2020 under Sections 363
and 366 of the IPC at P.S. Meja, Prayagraj.

17. On 16.6.2020, a Division Bench
of
this
Court
directed
the
Senior
Superintendent of Police, Prayagraj to
recover and produce the victim before the
Court in a Habeas Corpus Writ Petition No.
277 of 2020 which was filed by the
petitioner for the recovery of the victim.

18. On 17.8.2020, subsequently in
Case Crime No. 264 of 2020, the statement
of the victim under Section 164 of the Code
was recorded by Civil Judge (Sr.D.)/F.T.C.
Prayagraj which is extracted as under:

"1/01/2020
को
मेरा
आपहरण
अरूण नसिंह, पवन नसिंह उर्ा तहसीलदार,
आशीश नसिंह, अनभशेक नसिंह उर्ा सनी ने नकया
था । और आठ नदन कर मुझे एक कमरे में रखा
। और मेरे साथ जबरदस्ती सिंबिंध बनाया । उस
समय आशीश नसिंह और अरूण नसिंह ने मेरे साथ
शारीररक सिंबिंध बनाया था । इस घटना की FIR
भी हुयी थी । दूसरी बार 17/05/2020 को मेरा
आपहरण अमरेन्द्र नसिंह उर्ा पिंकज, आशीर्
नसिंह ने नकया । मैं अपने मामा के घर गयी थी।
वहाूँ से मेरा अपहरण नकया । एक मनहना तक
मुझे एक कमरे में बन्द करके रखा । वहाूँ पर
अरूण नसिंह ने मेरे साथ जबरदस्ती शारीररक
सिंबिंध बनाया । एक और आदमी भी आता था
लेनकन वो मुिंह ढक कर आता था । उसने भी मेरे
साथ शारीररक सिंबिंध बनाया । एक नदन मौका
देखकर मैं वहाूँ से ननकल गयी । तब रास्ते में
एक आदमी नमल गया नजसका नाम नीरज नसिंह
उर्ा नडग्री था । उसने तीन चार लोग को बुला
नलया और मुझे जबरदस्ती साडी पहनाकर थाने
पर िोड नदया । थाने पर पुनलस ननत्यानन्द,
राकेश चौरनसया ने मुझसे जबरदस्ती कागज पर
हस्ताक्षर करवाया । और जबरदस्ती नलखवाया
नक मैं धमापाल की पिी हूँ । जब की धमापाल से
मैंने शादी नहीिं की, धमापाल 45 - 50 साल का
आदमी है । और उसकी एक पिी भी है । जब
मेरा मेनडकल हो रहा था तो मनहला आरक्षी नेहा
नतवारी ने डाक्टर को बोल कर अपने मन से
ररपोटा नलखाई । और वहािं पर भी जबरदस्ती
नेहा नतवारी ने नलखवाया नक मैं धमापाल की पिी
हूँ । धमापाल आज भी यहाूँ कोटा में मेरा पीिा
करते हुये आया है । और शादी का झूठा कागज
बनवा कर लाया है । अरूण नसिंह ने मेरी मम्मी
को डडे से मारा था । और जान से मारने की
धमकी नदया । मैंने धमापाल नसिंह के साथ शादी
नहीिं की है । अरूण नसिंह, आशीर् नसिंह, पवन
नसिंह और सनी ने मेरे घर आकर बन्दूक चलाये
और पापा मम्मी को मारे । मैंने पुनलस को बुला
नदया था । सनी नसिंह ने मेरे भाई के ऊपर गोली
चलाई थी । जो मेरे चाचा को िू कर ननकल गयी
। पुनलस वालोिं ने सब गलत कागज पर हस्ताक्षर
करवाया अरूण नसिंह के कहने पर । मैं अपनी
मम्मी पापा के साथ रहना चाहती हूँ । मेरी जान
को बहुत खतरा है ।"
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
57

19. The victim was medically examined
again on 22.6.2020 at 1:30 PM in
Community Health Centre, Ram Nagar by
Dr. Reeta Dwivedi, which indicated that her
hymen was old, torn and healed. During
medical examination, hair of the scalp, nail
scrapings of both hands and vaginal smear
(air-dried) of the victim were collected for
semen examination.

20. We, in view of above background
were constrained to pass a detailed order on
1.10.020
and
it
appears
that
further
investigation
in
respect
of
both
the
occurrences was conducted by the Crime
Branch.

21. On 10.2.2021, accused persons of
case Crime No. 264 of 2020 Amrendra
Pratap Singh, Arun Kumar Singh, and Ashish
Singh were also released by the jurisdictional
Magistrate on the basis of the Final report,
submitted by the investigating officer of
Crime Branch after completing further
investigation vide order dated 10.2.2021.

22. On 22.3.2021, on a protest
application of the petitioner, the jurisdictional
Magistrate issued summons after taking
cognizance vide order dated 22.3.2021, on
the basis of materials collected during
investigation against respondents no. 5 to 7
and Abhishek Singh @ Shani under Sections
363 and 376D of the IPC after rejecting the
Final Report in Case Crime No. 3 of 2020.
The Magistrate also issued summons against
accused person respondents no. 6, 7 and
Amrendra Pratap Singh, and Abhishek Singh
in Case Crime No. 264 of 2020 under
Sections 363, 366, and 376D of the IPC vide
order dated 2.4.2021 on protest application
which has been filed by the petitioner, after
taking cognizance, on the basis of materials
collected
during
the
investigation
and
rejected the Final Report.

23. In compliance of the order dated
4.8.2021, Sri Vridhhi Chand Gautam,
investigating officer of Crime Branch has
filed a compliance affidavit, wherein he
stated
that
he
conducted
further
investigation of both the cases i.e. Case
Crime No. 3 of 2020 and Case Crime No.
264 of 2020, as ordered by Deputy
Inspector General of Police, Prayagraj, with
a team of competent police officials. He
claims to have conducted the investigation
fairly and impartially.

24. Another compliance affidavit has
also been filed by the Superintendent of
Police (Crime) on 16.8.2021, wherein he
stated that he is the supervisory authority of
the investigation of both the cases after
perusal of the Final Reports, he found that
the
investigation
was
conducted
in
accordance with law.

25. Without going to the details of the
evidence collected during the investigation
and further investigation of both the cases, it
is clear that the Final Reports were submitted
after discarding the statements of the
informants, the victim, and her family
members which were recorded under Section
161 of the Code. The I.O. also discarded the
statements of the victim, recorded under
Section 164 of the Code. It is also clear that
the investigating officer has not enquired
about the Red Duster car by which the victim
was abducted on 1.1.2020 as stated by the
eye-witnesses
and
the
victim
in
her
statements under Sections 161 and 164 of the
Code. The medical examinations of the
victim have also not been considered by the
investigating officer.

26. In Amar Nath Chaubey v.
Union of India (UOI) and Ors., AIR 2021
SC 109, (3 Judge), the Supreme Court
observed as follows:
58 INDIAN LAW REPORTS ALLAHABAD SERIES

"8. The police has a statutory duty
to investigate into any crime in accordance
with law as provided in the Code of Criminal
Procedure. Investigation is the exclusive
privilege and prerogative of the police which
cannot be interfered with. But if the police
does not perform its statutory duty in
accordance with law or is remiss in the
performance of its duty, the court cannot
abdicate its duties on the precocious plea that
investigation is the exclusive prerogative of
the police. Once the conscience of the court is
satisfied, from the materials on record, that
the police has not 49investigated properly or
apparently is remiss in the investigation, the
court has a bounden constitutional obligation
to ensure that the investigation is conducted
in accordance with law. If the court gives any
directions for that purpose within the
contours of the law, it cannot amount to
interference
with
investigation.
A
fair
investigation is, but a necessary concomitant
of Articles 14 and 21 of the Constitution of
India and this Court has the bounden
obligation to ensure adherence by the police.

9. In Manohar Lal Sharma v.
Principal Secretary and Ors. (2014) 2 SCC
532, the Apex Court observed as follows:

24. In the criminal justice system
the investigation of an offence is the domain
of the police. The power to investigate into
the cognizable offences by the police officer is
ordinarily not impinged by any fetters.
However, such power has to be exercised
consistent with the statutory provisions and
for legitimate purpose. The courts ordinarily
do not interfere in the matters of investigation
by police, particularly, when the facts and
circumstances do not indicate that the
investigating officer not functioning bonafide.
In very exceptional cases, however, where the
courts finds that the police officer has
exercised his investigatory powers in breach
of the statutory provision putting the personal
liberty and/or the properly of the citizen in
jeopardy by illegal and improper use of the
power or there is abuse of the investigatory
power and process by the police officer or the
investigation by the police is found to be not
bonafide or the investigation is tainted with
animosity, the court may intervene to protect
the personal and/or property rights of the
citizens.

25. Lord Denning has described
the role of the police thus:

In safeguarding our freedoms, the
police play a vital role. Society for its defence
needs a well-led, well-trained and welldisciplined force of police whom it can trust:
and enough of them to be able to prevent
crime before it happens, or if it does happen,
to detect it and bring the Accused to justice.

The police of course, must act
properly. They must obey the Rules of right
conduct. They must not extort confessions by
threats or promises. They must not search a
man's house without authority. They must not
use more force than the occasion warrants."

26. One of the responsibility of
the police is protection of life, liberty and
property of citizens. The investigation of
the offences is one of the important duties
of the police has to perform. The aim of
investigation is ultimately to search for
truth and bring the offender to book.

39. ..In the rare and compelling
circumstances referred to above, the
superior
courts
may
monitor
an
investigation
to
ensure
that
the
investigating
agency
conducts
the
investigation in a free, fair and time-bound
manner without any external interference."

27. In Pooja Pal v. Union of India,
(2016) 3 SCC 135, the Supreme Court
observed as under:

"87. Any criminal offence is one
against the society at large casting an
onerous responsibility on the State, as the
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
59
guardian and purveyor of human rights
and protector of law to discharge its
sacrosanct
role
responsibly
and
committedly, always accountable to the
law-abiding citizenry for any lapse. The
power of the constitutional courts to direct
further investigation or reinvestigation is a
dynamic component of its jurisdiction to
exercise judicial review, a basic feature of
the Constitution and though has to be
exercised with due care and caution and
informed with self-imposed restraint, the
plenitude and content thereof can neither
be enervated nor moderated by any
legislation.

88. The expression "fair and
proper
investigation"
in
criminal
jurisprudence was held by this Court in
Vinay Tyagi v. Ishad Ali (2013) 5 SCC 762)
to encompass two imperatives; firstly, the
investigation must be unbiased, honest, just
and in accordance with law; and secondly,
the entire emphasis has to be to bring out
the truth of the case before the court of
competent jurisdiction.

96. The avowed purpose of a
criminal investigation and its efficacious
prospects with the advent of scientific and
technical advancements have been candidly
synopsised in the prefatory chapter dealing
with the history of criminal investigation in
the treatise of Criminal Investigation-
Basic Perspectives by Paul B. Weston and
Renneth M. Wells:

'Criminal investigation is a lawful
search for people and things useful in
reconstructing the circumstances of an
illegal act or omission and the mental state
accompanying it. It is probing from the
known to the unknown, backward in time,
and its goal is to determine truth as far as
it can be discovered in any post-factum
inquiry.

Successful
investigations
are
based on fidelity, accuracy and sincerity in
lawfully searching for the true facts of an
event under investigation and on an equal
faithfulness, exactness, and probity in
reporting the results of an investigation.
Modern investigators are persons who stick
to the truth and are absolutely clear about
the time and place of an event and the
measurable aspects of evidence. They work
throughout
their
investigation
fully
recognising
that
even
a
minor
contradiction
or
error
may
destroy
confidence in their investigation.

The joining of science with
traditional
criminal
investigation
techniques offers new horizons of efficiency
in criminal investigation. New perspectives
in investigation bypass reliance upon
informers and custodial interrogation and
concentrate upon a skilled scanning of the
crime scene for physical evidence and a
search for as many witnesses as possible.
Mute evidence tells its own story in court,
either by its own demonstrativeness or
through the testimony of an expert witness
involved in its scientific testing. Such
evidence may serve in lieu of, or as
corroboration of, testimonial evidence of
witnesses found and interviewed by police
in an extension of their responsibility to
seek out the truth of all the circumstances
of
crime
happening.
An
increasing
certainty in solving crimes is possible and
will contribute to the major deterrent of
crime the certainty that a criminal will be
discovered, arrested and convicted."

28. After submitting police report
under Section 173(2) of the Code, it is only
further investigation that can be ordered
under Section 173(8) of the Code. The
power may be exercised if the court comes
to the conclusion that the investigation has
been done in a manner to help someone to
escape from the clutches of law. In such
exceptional circumstances the court may, in
60 INDIAN LAW REPORTS ALLAHABAD SERIES
order to prevent miscarriage of criminal
justice direct de novo investigation. [Vide:
Babubhai v State of Gujarat, (2010) 12
SCC 254]. Fair investigation is a part of a
constitutional
right
guaranteed
under
Article 21 of the Constitution of India. In
Babubhai v State of Gujarat, (2010) 12
SCC 254 the Apex Court observed as:

"45. Not only fair trial but fair
investigation is also part of constitutional
rights guaranteed Under Articles 20 and 21
of the Constitution of India. Therefore,
investigation must be fair, transparent and
judicious as it is the minimum requirement
of Rule of law. The investigating agency
cannot be permitted to conduct an
investigation in a tainted and biased
manner. Where non-interference of the
court would ultimately result in failure of
justice, the court must interfere. In such a
situation, it may be in the interest of justice
that independent agency chosen by the
High Court makes a fresh investigation."

29. In Bharati Tamang v. Union of
India, (2013) 15 SCC 578, the Apex Court
relied on the following extract from Zahira
Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158, as follows:

"33...Courts have to ensure that
Accused persons are punished and that the
might or authority of the State are not used to
shield themselves or their men. It should be
ensured that they do not wield such powers
which under the Constitution has to be held
only in trust for the public and society at
large. In deficiency in investigation or
prosecution is visible or can be perceived by
lifting the veil trying to hide the realities or
covering the obvious deficiencies, courts
have to deal with the same with an iron hand
appropriately within the framework of law. It
is as much the duty of the prosecutor as of the
court to ensure that full and material facts
are brought on record so that there might not
be miscarriage of justice."

30. In Sakiri Basu v. State of Uttar
Pradesh, (2008) 2 SCC 409, the Supreme
Court observed in paragraph 10 and 11 as
under:

"10. It has been held by this Court
in CBI v. Rajesh Gandhi, 1997 Cri LJ 63 that
no one can insist that an offence be
investigated by a particular agency. We fully
agree with the view in the aforesaid decision.
An aggrieved person can only claim that the
offence he alleges be investigated properly,
but he has no right to claim that it be
investigated by any particular agency of his
choice.

11. In this connection we would
like to state that if a person has a grievance
that the police station is not registering his
FIR under Section 154 Cr.P.C., then he can
approach the Superintendent of Police under
Section 154(3) Cr.P.C. by an application in
writing. Even if that does not yield any
satisfactory result in the sense that either the
FIR is still not registered, or that even after
registering it no proper investigation is held,
it is open to the aggrieved person to file an
application under Section 156(3) Cr.P.C.
before the learned Magistrate concerned. If
such an application under Section 156(3)
Cr.P.C. is filed before the Magistrate, the
Magistrate can direct the FIR to be
registered and also can direct a proper
investigation to be made, in a case where,
according to the aggrieved person, no proper
investigation was made. The Magistrate can
also under the same provision monitor the
investigation
to
ensure
a
proper
investigation."

Directions issued by the Apex
Court:
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
61

31. For the time bound conclusion of
the criminal trial the Apex Court in State
of Kerala v. Rasheed, AIR 2019 SC 721,
held as under:

"The
following
practice
guidelines should be followed by trial
courts in the conduct of a criminal trial, as
far as possible:

(i) a detailed case-calendar must
be prepared at the commencement of the
trial after framing of charges;

(ii)
the
case-calendar
must
specify the dates on which the examinationin-chief
and
cross-examination
(if
required) of witnesses is to be conducted;

(iii) the case-calendar must keep
in view the proposed order of production of
witnesses
by
parties,
expected
time
required for examination of witnesses,
availability of witnesses at the relevant
time,
and
convenience
of
both
the
prosecution as well as the defence, as far
as possible;

(iv)
testimony
of
witnesses
deposing on the same subject matter must
be proximately scheduled;

(v) the request for deferral under
Section 231(2) of the Cr.P.C. must be
preferably made before the preparation of
the case-calendar;

(vi) the grant for request of
deferral must be premised on sufficient
reasons justifying the deferral of crossexamination of each witness, or set of
witnesses;

(vii) while granting a request for
deferral of cross-examination of any
witness, the trial courts must specify a
proximate date for the cross-examination of
that witness, after the examination-in-chief
of such witness (es) as has been prayed for;

(viii) the case-calendar, prepared
in accordance with the above guidelines,
must be followed strictly, unless departure
from
the
same
becomes
absolutely
necessary;

(ix) in cases where trial courts
have granted a request of deferral,
necessary steps must be taken to safeguard
witnesses from being subjected to undue
influence, harassment or intimidation."

32.

In
State
of
Gujarat
v.
Kishanbhai and Ors., (2014) 5 SCC 108,
the Supreme Court has observed with
regard to the glaring lapses in the
investigation by the investigating agency,
in para 20 reads as under:

"20. Every acquittal should be
understood as a failure of the justice
delivery system, in serving the cause of
justice. Likewise, every acquittal should
ordinarily lead to the inference, that an
innocent
person
was
wrongfully
prosecuted. It is therefore, essential that
every State should put in place a
procedural
mechanism,
which
would
ensure that the cause of justice is served,
which would simultaneously ensure the
safeguard of interest of those who are
innocent. In furtherance of the above
purpose, it is considered essential to direct
the Home Department of every State, to
examine all orders of acquittal and to
record reasons for the failure of each
prosecution case. A standing committee of
senior
officers
of
the
police
and
prosecution departments, should be vested
with
aforesaid
responsibility.
The
consideration at the hands of the above
committee,
should
be
utilized
for
crystallizing mistakes committed during
investigation, and/ or prosecution, or both.
The Home Department of every State
Government will incorporate in its existing
training
programmes
for
junior
investigation/prosecution officials course
content
drawn
from
the
above
62 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration. The same should also
constitute
course-content
of
refresher
training
programmes,
for
senior
investigating/ prosecuting officials. The
above responsibility for preparing training
programmes for officials, should be vested
in the same committee of senior officers
referred to above. Judgments like the one
in hand (depicting more than 10 glaring
lapses in the investigation/prosecution of
the case), and similar other judgments, may
also be added to the training programmes.
The course content will be reviewed by the
above committee annually, on the basis of
fresh inputs, including emerging scientific
tools of investigation, judgments of Courts,
and on the basis of experiences gained by
the standing committee while examining
failures, in unsuccessful prosecution of
cases. We further direct, that the above
training programme be put in place within
6 months. This would ensure that those
persons who handle sensitive matters
concerning investigation/ prosecution are
fully
trained
to
handle
the
same.
Thereupon, if any lapses are committed by
them, the would not be able to feign
innocence, when they are made liable to
suffer departmental action, for their lapses.

21. On the culmination of a
criminal case in acquittal, the concerned
investigating
/prosecuting
official
(s)
responsible
for
such
acquittal
must
necessarily be identified. A finding needs to
be recorded in each case, whether the lapse
was innocent or blameworthy. Each erring
officer must suffer the consequences of his
lapse, by appropriate departmental action,
whenever
called
for.
Taking
into
consideration the seriousness of the matter,
the concerned official may be withdrawn
from
investigative
responsibilities,
permanently or temporarily, depending
purely on his culpability. We also feel
compelled to require the adoption of some
indispensable measures, which may reduce
the malady suffered by parties on both
sides of criminal litigation. Accordingly, we
direct, the Home Department of every State
Government, to formulate a procedure for
taking
action
against
all
erring
investigating/
prosecuting
officials/
officers. All such erring official / officers
identified, as responsible for failure of a
prosecution case, on account of sheer
negligence or because of culpable lapses,
must suffer departmental action. The above
mechanism
formulated
would
infuse
seriousness
in
the
performance
of
investigating and prosecuting duties, and
would
ensure
that
investigation
and
prosecution are purposeful and decisive.
The instant directions shall also be given
effect to within 6 months.

23. A copy of the instant
judgment shall be transmitted by the
Registry of this Court, to the Home
Secretaries of all State Governments and
Union Territories, within one week. All the
concerned Home Secretaries, shall ensure
compliance of the directions recorded
above. The record of consideration, in
compliance with the above direction, shall
be maintained."

Duties of Superior Police Officer:

33. Sub-rule (iii) of Rule 122 of
Police Regulations provides that the final
report must in all cases be submitted
through the Superintendent of Police.

34.

The
Chief
Secretary
of
Government of Uttar Pradesh has issued a
direction to the Director General of Police
and Director General (Prosecution) on
5.8.219 in compliance of several directions
issued by the Supreme Court in Perumal v.
Janaki, (2014) 5 SCC 377 and State of
Gujarat v. Kishanbhai, (2014) 5 SCC 108
9 All. Ram Shankar Mishra Vs. State of U.P. & Ors.
63
for submitting charge-sheets/final report in
the competent court, relevant part of
aforesaid direction reads as under:

"(1) प्रत्येक नववेचना पूणा होने के
उपराि आरोप पत्र/अन्तिम ररपोटा प्रेनर्त करने
से पूवा नववेचक द्वारा क्षेत्रानधकारी के माध्यम से
केस डायरी जनपदीय अनभयोजन कायाालय में
प्रेनर्त की जायेगी । जहािं पर अनभयोजन
अनधकारी
द्वारा
केस
डायरी
के
अवलोकनोपराि/परीक्षणोपराि नववेचक के
मध्य सिंकनलत साक्ष्य आनद की समीक्षा की
जायेगी और यनद उसमे कोई कमी या नवसिंगनत
पायी जाती है तो स्वतिंत्र मन्तस्तष्क से उसको
इिंनगत करते हुए उसकी पूनता हेतु अग्रेतर
नववेचना हेतु प्रेनर्त की जायेगी । इस कायावाही
में केस डायरी नजस माध्यम से अनभयोजक के
पास परीक्षण हेतु प्रेनर्त की जाय उसी माध्यम से
अनभयोजक द्वारा पुनः परीक्षणोपराि ही यथा
न्तस्थनत आरोप पत्र अथवा अिंनतम ररपोटा न्यायालय
प्रेनर्त नकया जायेगी । इस काया की सुचारू रूप
से सम्पानदत करने हेतु जनपदीय अनभयोजन
कायाालय में एक केस डायरी प्राप्त करने का
पटल स्थानपत होगा, जहािं पर आवश्यकतानुसार
कान्सटेनबल मोहररार लगाये जायेगे । उि
समस्त कायावाही नबलबतम 07 नदन में पूणा
करनी होगी। यनद अपररहायातावश 07 नदन से
अनधक के समय लग रहा हो तो इस न्तस्थनत में
वस्तुन्तस्थनत का उल्लेख करते हुये अननवायातः 15
नदन में कायावाही पूणा करनी होगी ।"

35. The object behind recording of the
statement of witness under Section 164 of the
Code is to ensure that the investigation is in
the right direction, against the right person
which will instil a sense of feeling in the
mind of the witness that he/she should not
retract later. The statement of witness has to
be recorded like a statement recorded from a
witness in the court. Before recording the
statement, oath has to be administered to the
witness. Although the statement of a witness
recorded under Section 164 of the Code is
also a previous statement like recorded under
Section 161, it has some higher value as it is
recorded by a Magistrate.

36. We now revert to submission of the
learned counsels for the parties. It is an
admitted
fact
that
the
jurisdictional
Magistrate has taken cognizance in Case
Crime No. 3 of 2020 under Sections 363,
376D of the IPC against respondents no. 5 to
7 and Abhishek Singh @ Shani and in Case
Crime No. 264 of 2020 under Sections 363,
366, 376D of IPC against respondents no. 6,
7, Amrendra Pratap Singh and Abhishek
Singh. Learned Magistrate rejected the Final
Reports submitted by the investigating officer
of Crime Branch vide order dated 22.3.2021,
2.4.2021 respectively and has issued the
summon against the accused persons. It is
also admitted fact that all the accused person
were in judicial custody during further
investigation
but
were
released
after
submitting of the Final Reports.

37. At this juncture, one question
remains unanswered, why the vehicle in
question used in abduction of the victim has
not been recovered or what attempts/ efforts
were made by the I.O. to recover the same?

38.