# Shivam Keshari & Anr v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-08
- **Case number:** Habeas Corpus Writ Petition No. 1 of 2021
- **Bench:** Surya Prakash Kesarwani, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-keshari-anr-v-state-of-u-p-ors-46810
- **Pages:** 23

## Headnote

A. Constitution of India, 1950-Article 226 -
Indian
Penal
Code,
1860-Sections
302,201-the
police
encountered
the
petiitoner's brother and his brother's
friend to save the real culprits and SSP
also misdirect the investigation
-the
respondents did not take any action
despite court's order-even against the
persons who were named in various
applications moved by the petitioner-both
the deceased's body was recovered in
mirzapur district other than Varanasirespondent entered missing report in G.D.
after the order passed by the Court, no
investigation or action taken against the
two culprits-conduct of the respondents
shows
not
only
deliberate
gross
disobedience and disrespect to the order
of the court but also intentional breach of
fundamental rights-respondents including
the SIT transfer investigation to the CBI
for
fair,
impartial,expeditious
and
according to law investigation.(Para 1 to
29)

The petition is allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,157 of 77,110. This is a partial read: ask again with offset=39157 for what follows._

4 INDIAN LAW REPORTS ALLAHABAD SERIES
accompanied along with the application
filed under Order 9 Rule 13 of the C.P.C. A
subsequent application for permission to
furnish the security cannot be entertained."

 (Emphasis supplied)

9. In such view of the matter, the orders
impugned herein are not sustainable in the
eye of law as admittedly both the applications
as mentioned above were filed on the same
date i.e. 5.10.2017 and should have been
considered by the trial court on its own merit
and such application filed under Section 17 of
the Act could not have been rejected as not
maintainable.

10.

For
the
reasons
discussed
hereinabove, present petition stands allowed.
The impugned orders dated 25.2.2020 and
14.5.2019 are set aside and the application
filed under Section 17 of the Act stands
restored to its number and shall be considered
and decided by the court below on its own
merit, preferably within a period of one
month from the date of production of a selfverified copy of this order, which can be
verified from the official website of this
Court.

11. It is made clear that this Court has
not considered the merits of the application
filed either under Section 17 of the Act or
application filed under Order 9 Rule 13 CPC.

No order as to costs.
----------
(2021)02ILR A4
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2021,
05.01.2021, 19.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 1 of 2021

Shivam Keshari & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ran Vijay Singh

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article 226 -
Indian
Penal
Code,
1860-Sections
302,201-the
police
encountered
the
petiitoner's brother and his brother's
friend to save the real culprits and SSP
also misdirect the investigation
-the
respondents did not take any action
despite court's order-even against the
persons who were named in various
applications moved by the petitioner-both
the deceased's body was recovered in
mirzapur district other than Varanasirespondent entered missing report in G.D.
after the order passed by the Court, no
investigation or action taken against the
two culprits-conduct of the respondents
shows
not
only
deliberate
gross
disobedience and disrespect to the order
of the court but also intentional breach of
fundamental rights-respondents including
the SIT transfer investigation to the CBI
for
fair,
impartial,expeditious
and
according to law investigation.(Para 1 to
29)

The petition is allowed. (E-5)

List of Cases cited:-

1. St. of W. B. & ors. Vs Committee for
Protection of Democratic Rights, W. B. &
ors.,(2010) 3 SCC 571

2. Ashok Kumar Todi Vs Kishwar Jahan &
ors.,(2011) 3 SCC 758

3. K.V. Rajendran Vs SSP Vs CBCID , South
Zone, Chennai & ors.,(2013) 12 SCC 480
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
5
4. Rubabbuddin Sheikh Vs St of Guj. &
ors.,(2010) 2 SCC 200

5. Mithilesh Kumar Singh Vs St.of Raj. &
ors,(2015) 9 SCC 795

6. Menka Gandhi Vs U.O.I.,(1978) AIR SC 597

7. Vinubhai Haribhai Malviya & ors. Vs St. of
Guj. & anr.,(2019) AIR SC 5233

8. Subramanian Swamy Vs C.B.I.(2014) 8 SCC
682

9. Commr. of Police, Delhi Vs Registrar ,Delhi
High Court, New Delhi,(1997) AIR SC 95

10. Rampal Pithwa Rahidas Vs St. of Mah.(1994)
Suppl. 2 SCC 73

11. Sasi Thomas Vs State,(2006) 12 SCC 421

12. Mohd. Haroon & ors. Vs U.O.I. & anr.,(2014)
5 SCC 252

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. &
Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ran Vijay Singh, learned
counsel for the petitioners, Sri Manish
Goyal,
learned
Additional
Advocate
General, assisted by Sri A.K. Sand, learned
A.G.A.-I for the State-respondents and Sri
Gyan Prakash, learned Assistant Solicitor
General of India, assisted by Sri Sanjay
Yadav,
Advocate,
representing
the
proposed respondent nos. 7 and 8.

2. Learned counsel for the petitioners
has filed an impleadment application and
an amendment application.

3. Learned counsel for the petitioners
has served a copy of the writ petition along
with applications and other affidavits upon
Sri
Gyan
Prakash,
learned
Assistant
Solicitor General of India, assisted by Sri
Sanjay Yadav, Advocate. He has accepted
notice on behalf of the respondent Nos.7
and 8.

4. After hearing learned counsels for
the parties and with their consent, the
impleadment application as well as the
amendment application are allowed. The
Union of India through Ministry of Home,
New
Delhi
and
Central
Bureau
of
Investigation, New Delhi, through its
Director, Plot No. 5-B, CGO Complex,
Lodhi Road, New Delhi are allowed to be
impleaded as respondent Nos. 7 and 8,
during the course of the day. Amendment
be also incorporated during the course of
the day.

5. This writ petition has been filed
praying for the following reliefs:

"(i) Issue a writ or direction in
the nature of habeas corpus directing
respondents to produce the petitioner no.2
(corpus) before this Hon'ble Court on such
date and time as this Hon'ble Court may
deem fit and proper in the circumstances of
the case. And also direct the respondents to
release
the
corpus
from
illegal
confinement.

(1-a) Issue a writ order or
direction in the nature of mandamus
directing
the
Central
Bureau
of
Investigation to investigate the cause of
death and role of the police personals in
death of Shubham Keshari (Corpus) and
his friend Ravi Pandey and conclude the
proceedings within stipulated period of
time.

(1-b) Issue a writ order or
direction in the nature of mandamus
directing that the Judicial Inquiry may be
conducted under the supervision of a
retired Hon'ble High Court Judge of this
Hon'ble Court.
6 INDIAN LAW REPORTS ALLAHABAD SERIES

(1-c) Issue a writ order or
direction in the nature of mandamus
directing
the
suspension
of
Senior
Superintendent of Police, Varanasi, Station
House Officer, P. S. Chowk, Varanasi,
Station House Officer, P. S. Jaitpura,
Varanasi, Station House Officer, P.S.
Pandeypur,
Varanasi,
Station
House
Officer, P. S. Crime Branch, Varanasi,
from service so that the investigation, as
directed by this Hon'ble Court may, not be
influenced in any manner whatsoever.

(ii) any other writ, order or
direction as this Hon'ble Court may deem
fit and proper in the circumstances of the
case; and

(iii) Award costs in favour of
petitioner."

6. In paragraphs-13-A, 13-B, 13-C,
13-D and 13-E of the writ petition, the
petitioners have made serious allegations
against the State Police and stated that the
conduct of Police shows that the Police is
attempting to save the actual culprits who
caused the death of the corpus and there is
no possibility of fair investigation by the
Police of State of Uttar Pradesh and only
investigation by a central agency would
cause
fair
and
proper
investigation.
Paragraphs-13-A, 13-B, 13-C, 13-D and
13-E of the writ petition, are reproduced
below:

"13-A. That on 22.01.21 the oral
undertaking was furnished on behalf of the
State respondent that no police men will
visit the house of the petitioner no. 1 and
also no harassment would be done, inspite
the team of SIT had gone to the house of
the petitioner no. I on 24.01.2021 at 4:00
pm and inquired into the matter but during
the inquiry a video was being made of the
petitioner no.1, his mother and his sister
and during making of the video regarding
of the video was being paused by the police
personnel when the mother and sister of the
petitioner no. 1 and the petitioner no. 1
were stating names of the police personnel
who were involved in the case. The
signature of the aforesaid petitioner no.1,
his mother and his sister were obtained on
plain paper thereafter an application was
immediately moved to the Chief Ministers
and DGP Uttar Pradesh through e-mail on
24.01.202 1 has already been filed as
Annexure No. RA-1 to the rejoinder
affidavit dated 28.01.2021 and is part of
record before this Hon'ble Court.

13-B. That in paragraph no. 8 of
the short counter affidavit is has been
shown that aadhaar card of the corpus was
recovered but the aadhaar card of the
corpus, in original, is in the house of the
corpus and is in possession of the petitioner
no.l and his family. A copy of the aadhar
card has also being filed as Annexure No.
RA-2 to the rejoinder affidavit dated
28.01.2021 and is part of record before this
Hon'ble Court.

13-C. That police personnel have
been named specifically by the petitioner
no. 1 and as family members namely
Gaurav Nigam and Suneel Nigam in
application
dated
26.11.2020
and
28.12.2020 and 31.12.2020 and no action
has been taken by the police and till date
FlR has been lodged by the police.

13-D. That despite of order dated
06.01.2021 passed by this Hon'ble Court
has been taken by the police and as soon as
the order dated 06.01.2021 was passed by
this Hon'ble Court the corpus was
encountered by the police which is evident
from the post mortem report of the corpus
which shown the duration of death of the
corpus alter the order dated 06.01.2021.

13-E. That the conduct of the
police shows that the police is attempting to
save the actual culprits who caused the
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
7
death of the corpus and there is no
possibility at all of fair investigation by the
state police of Uttar Pradesh and only
investigation by a central agency could
cause fair and proper investigation in
which no police personnel of state agency
government
would
be
permitted
to
interfere."

Submissions on behalf of the
petitioners:-

7. Learned counsel for the petitioners
submits that the corpus - petitioner No.2
and one his friend Ravi Pandey, have been
brutally murdered in which the respondent
Nos.2 to 6 and one Gaurav Nigam and
Suneel Nigam have played role. He submits
that despite applications dated 23.12.2020,
26.12.2020, 28.12.2020 and 31.12.2020
submitted before various Police Authorities
including
Crime
Branch,
Senior
Superintendent of Police, Varanasi and
Director General of Police, Uttar Pradesh,
through speed post, fax and e-mail, no
action was taken, until the corpus -
petitioner No.2 (Shubham Kesari) and his
friend Ravi Pandey were brutally murdered
and FIR was registered on 18.01.2021. The
respondent Nos.2 to 6 have also not taken
any action despite specific orders passed by
this court on 05.01.2021 and 06.01.2021 in
which one of the application of the
petitioner dated 31.12.2020 addressed to
the respondent No.2, was also reproduced
by this Court. After this Court passed the
order dated 05.01.2021, the respondents
have entered only the missing report in GD
on 05.01.2021. Thus, the respondents have
entered only the missing report in GD after
about 14 days of the submission of the first
application by the petitioner No.1 and have
registered
FIR
No.0006/2021
under
Sections 302, 201 IPC, P.S. Kotwali,
District Varanasi on 18.01.2021 against
unknown persons on the basis of First
Information Report being Case Crime
No.10 of 2021 dated 15.01.2021 under
Sections 302, 201 I.P.C., P.S. Ahraura,
District Mirzapur where the dead bodies of
the corpus - petitioner No.2 and Ravi
Pandey were recovered. This court in its
order dated 05.01.2021 and 06.01.2021
quoted various paragraphs of the writ
petition and issued directions to the
respondent No.2 and yet no action was
taken. The personal affidavit of the
respondent No.2 dated 18.01.2021 which
has
been
extensively
reproduced
in
paragraph-7 of the order of this court dated
19.01.2021,
would
show
that
the
respondent No.2 has tried to mislead this
court and attempted to misdirect the
investigation.
Despite
directions
and
observations made by this court in its
various orders, the respondent No.2 and
other State-respondents have not taken any
action even against the persons who were
named in various applications moved by
the
petitioner
No.1,
particularly
the
application dated 31.12.2020. It is only
after registration of the aforesaid First
Information Report No.0006/2021 dated
18.01.2021 under Sections 302, 201 IPC
(on transfer of the case from Mirzapur to
P.S. Kotwali on 18.01.2021 at 15:05 hours
as mentioned in paragraph-16 of the
personal affidavit of the respondent No.2
dated 18.01.2021), merely one of the
named persons, i.e. Suneel Kumar Nigam
and four other persons were arrested at
06:44 hours on 19.01.2021 and alleged
recovery of motorcycle, helmet, black
jacket and adhar cards of both the deceased
was shown from the alleged spot identified
and pointed out by the arrested persons as
alleged in paragraph-8 of the short-counter
affidavit filed on behalf of the respondent
No.2.
He
further
submits
that
the
respondent Nos.2 to 6 are destroying the
8 INDIAN LAW REPORTS ALLAHABAD SERIES
evidences. He submits that even the adhar
card of the corpus - petitioner No.2 is with
the petitioners' family members whereas
the respondents are showing its alleged
recovery as afore-stated. He further submits
that the investigating officer of the SIT to
whom investigation has been transferred, is
under influence of the respondent No.2 and
the
SIT
cannot
fairly
investigate
particularly when the investigation is being
influenced by the respondent No.2. He
further submits that investigation by police
lacks credibility and it is necessary for
having "a fair, honest and complete
investigation", the investigation in the
aforesaid Case Crime No.0006/2021 be
transferred forthwith to the respondent
No.8 otherwise the relevant evidences shall
further be destroyed by the respondent
Nos.2 to 6 to save the real culprits.

8. He further submits that the reliefs
No.(1-a), (1-b) and (1-c) may also be
granted.

Submissions on behalf of State -
respondents:-

9. Sri Manish Goyal, learned
Additional Advocate General assisted by
Sri
A.K.
Sand,
learned
A.G.A.-I
representing the State-respondents submits
that the State Government also wants fair
investigation and, therefore, in the event an
order for investigation by the respondent
No.8 (C.B.I.) is passed by this Court, the
State Government has no objection to it and
shall fully cooperate in the investigation.

Submissions on behalf of the
respondent Nos.7 and 8:-

10. Sri Gyan Prakash, learned
Assistant
Solicitor
General
of
India,
representing respondent nos. 7 and 8
submitted that respondent nos. 7 and 8 shall
follow the directions, which may be issued
by this Court for CBI investigation in
relation to the initially registered missing
report dated 05.01.2021, FIR/ Case Crime
No.10 of 2021, dated 15.01.2021, under
Sections 302 and 201 I.P.C., Police Station
Ahraura,District Mirzapur and transferred
FIR No. 06 of 2021, dated 18.01.2021,
under Sections 302 and 201 I.P.C., Police
Station Kotwali, District Varanasi.

Discussion:

11. We have carefully considered the
submissions of the learned counsels for the
parties.

12. It is admitted fact of the case that
the
petitioner
No.1
approached
the
respondent Nos.2 to 6 and submitted
various applications to various authorities
including the respondent Nos.2 and 3 and
the Director General of Police, U.P.
Lucknow
being
applications
dated
23.12.2020, 26.12.2020 and 31.12.2020.
These applications were sent to the
authorities including the respondent No.2
by speed post, fax and e-mail. The corpus -
petitioner
No.2
was
missing
since
22.12.2020.
In
his
application
dated
26.12.2020, the petitioner No.1 specifically
stated that the Police of Crime Branch,
Police of Police Stations - Chowk, Jaitpura
and Pandeypur, have lifted the corpus -
petitioner No.2 and one Ravi Pandey at
about 7 P.M. on 22.12.2020 when the
corpus petitioner No.2 and his friend Ravi
Pandey were returning on a motorcycle
bearing registration No.UP65AT8867. It
was also specifically stated in the aforesaid
application that the applicant/ petitioner
No.1 has apprehension that the police may
implicate the corpus petitioner No.2 in a
false case in which the police of the P.S.
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
9
Chowk Varanasi may have main role. In
his
application
dated
31.12.2020
addressed to various authorities including
the respondent No.2 and sent by fax, speed
post and e-mail, the petitioner No.1
specifically stated that the corpus -
petitioner No.2 and his friend Ravi Pandey
were lifted by the local police and in
kidnapping of the corpus - petitioner No.2,
the main conspirators are the police of
P.S. Chowk Varanasi, one Gaurav
Nigam S/o Mohan Nigam, resident of
House No.CK48/189, Chowk, P.S. Chowk,
Varanasi and Suneel Nigam (maternal
uncle of Gaurav Nigam) and raised
apprehension that the corpus - petitioner
No.2 and his friend Ravi Pandey may be
murdered in a planned manner.

13. By order dated 05.01.20211, this
court incorporating averments made in
paragraphs-4, 5, 6, 8, 9, 10, 11 and 12 of
the writ petition; made certain observations
and directed the respondent No.2 (Senior,
Superintendent of Police, Varanasi) to file
his personal affidavit. The relevant portion
of
the
order
dated
05.01.2021
is
reproduced below:

"The petitioners have moved
several applications before the S.S.P.
Varanasi, Director General of Police,
Uttar
Pradesh
(D.G.P.)
and
other
authorities through Speed Post, email and
Fax yet neither any FIR has been
registered nor whereabouts of the petitoner
no.2 namely Shubham Keshari has been
apprised to his family members.

Considering
the
facts
and
circumsances
of
the
case
and
the
submissions of learned counsel for the
parties, we direct the respondent no.2
Senior Superintendent of Police, Varanasi
to file his personal affidavit by tomorrow.

Put up on 06.01.2021 for further
hearing at 2.00 p.m. "

14. Pursuant to the aforesaid order
dated 05.01.2021, the respondent No.2 has
not filed his personal affidavit and instead a
personal affidavit of Sravan Kumar Singh,
Superintendent of Police (Traffic), District
Varanasi/ Incharge, Senior Superintendent
of Police, Varanasi was filed in which it
was attempted to demonstrate that the
corpus - petitioner No.2 is an accused in
some criminal cases and was on parole
from 16.05.2020 on the basis of the order
passed by Hon'ble Supreme Court in the
background of COVID-19 Pandemic and in
order to avoid returning to jail as per parole
conditions, he appears to have gone
underground.

15. Since no action was taken by the
State - respondents despite the aforesaid
orders of this court dated 05.01.2021,
therefore, this court passed an order dated
06.01.2021 in which an application of the
petitioner No.1 in which facts were noted
and even the application of the petitioner
No.1 dated 31.12.2020 received by the
respondent
No.2
was
also
quoted.
Paragraphs-6, 7, 8 and 9 of the order
dated 06.01.2021 are reproduced below:

"6.
Despite
the
aforesaid
application filed by the petitioner no.1, the
respondent no.2 had not taken any action.
Even in the personal affidavit filed today,
there is no whisper about any action taken
on the basis of the aforequoted application
of the petitioner no.1, dated 31.12.2020.

7. Learned A.G.A. submits that a
better personal affidavit of the respondent
no.2 alongwith upto date progress of
investigation shall be submitted on or
before the next date fixed.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Let a personal affidavit be filed
by the respondent No.2 with upto date
progress of investigation. The respondent
no.2 is also directed to produce the
petitioner no.2 on the next date fixed.

9. Put up in the additional cause
list on 19.01.2021."

16. In the order dated 19.01.20212,
which is made part of the present order, this
Court referred and reproduced various
paragraphs of the personal affidavit of the
respondent No.2 dated 18.01.2021, short
counter affidavit dated 19.01.2021 and
supplementary affidavit of the petitioner
No.1 dated 19.01.2021 and observed as
under:

"10. Copies of newspaper cutting
and photographs of the dead bodies filed
alongwith the supplementary affidavit as
Annexure - SA-3 clearly reveals that the
petitioner No.2 and Ravi Pandey have been
brutally murdered and burnt and thereafter
their bodies were thrown in a trench so as
to hide out the identity of the persons
murdered, namely, the petitioner no.2 and
Ravi Pandey. It is not only surprising, but
extremely shocking that despite the
application of the petitioner No.1, dated
26.10.2020 and 31.12.2020, about missing
of the petitioner no.2, the respondents
entered the missing report in G.D. on
05.01.2021 after this Court passed an
order dated 05.01.2021 in the present writ
petition. Even after this Court passed the
order dated 06.01.2021, no investigation
or action whatsoever was taken in relation
to the police Officers/local police of Police
Stations
Chowk,
Jaitpura,
Lalapur
Pandeypur, District Varanasi and named
persons, namely, Gaurav Nigam and Sunil
Nigam.

11. The respondents remained
silent and neither investigated nor took
any positive step to investigate the matter
with respect to the persons mentioned in
the application of the petitioner no.1,
dated
31.12.2020
and
the
police
personnels. The personal affidavit of
respondent no.2 filed today is totally silent
in this regard. Even in the short counter
affidavit filed by respondent no.2, there is
no
whisper
with
respect
to
any
investigation or action by the respondent
pursuant to the application of petitioner
no.1 dated 31.12.2020. In the short counter
affidavit, it has been stated in the
aforequoted paragraph nos. 6, 7, and 8 that
one Sunil Nigam and four others have been
arrested at 6:44 hours on 19.01.2021, from
whose possession one motorcycle TVS
Apache, bearing registration No. UP-65AP-0725 and the motorcycle used by the
deceased Subham Keshari were recovered.
There is no whisper that from whose
possession it was recovered. Nothing has
been
stated
that
why
respondents
remained silent and have not taken any
action or investigated the matter pursuant
to the application of the petitioner no.1,
dated 31.12.2020, till the petitioner no.2
was brutally murdered and body was
recovered by the police of District
Mirzapur
on
15.01.2021
and
the
investigation
was
transferred
on
18.01.2021 to Varanasi police.

12. In the light of the facts and
circumstances mentioned above, the role
of respondents - Varanasi police including
the respondent no.2 in the matter of brutal
murder of the petitioner No.2 and one
Ravi Pandey, is prima faice under serious
cloud. Apart from above the conduct of
the respondent no.2 shows not only
deliberate
gross
disobedience
and
disrespect to the orders of this court but
also deliberate and intentional breach of
fundamental rights granted under Article
21 of the constitution of India as well as
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
11
deliberate
gross
dereliction
in
duty
resulting in murder of the petitioner No.2
and one Ravi Pandey."

17. On 02.02.2021, this court heard
the matter and passed the following order:

"Heard Sri Ran Vijay Singh,
learned counsel for the petitioners and Sri
Manish
Goyal,
learned
Additional
Advocate General, assisted by Sri Sheo
Kumar Pal, learned Government Advocate
and Sri A.K. Sand, learned A.G.A.-I for the
State - respondents.

Rejoinder
affidavit
dated
28.01.2021, filed today by learned counsel
for the petitioners, is taken on record.

Learned
counsel
for
the
petitioners referred to paragraphs 5, 6, and
13 of the rejoinder affidavit and Annexure
3 (copy of application dated 23.12.2020 of
petitioner no.1) of the personal affidavit of
the respondent no.2, dated 06.01.2021 and
Annexure 1 (page 16 - copy of application
of the petitioner No.1) of the counter
affidavit of the respondent no.1, dated
22.01.2021
and
submitted
that
manipulations are being done by the local
police and its Senior Officers. He has also
orally named several police Officers
alleging
their
involvement
and
also
referred to the facts noted in the orders of
this Court dated 05.01.2021, 06.01.2021
and
19.01.2021
and
submitted
that
investigation in FIR No.0006/2021, dated
18.01.2021, under Sections 302, 201 I.P.C.
P.S. - Kotwali, City - Varanasi, may be
transferred to the Central Bureau of
Investigation, New Delhi, so that justice
may be done.

Sri
Manish
Goyal,
learned
Additional Advocate General, has stated
on instructions of Sri Tarun Gauba,
Home Secretary, Government of U.P.,
Lucknow, who is present in Court; that
the State Government shall immediately
take appropriate action in the matter.

Learned
counsel
for
the
petitioners prays for and is granted liberty
to move an appropriate application to
amend the prayer and to implead Central
Bureau of Investigation, New Delhi,
through its Director, as respondent.

Put up as a fresh case on
08.02.2021 at 10 A.M."

18. In State of West Bengal and
others vs. Committee for Protection of
Democratic Rights, West Bengal and
others3, (Paras-68 and 69), Hon'ble
Supreme Court held as under:

"68. Thus, having examined the
rival contentions in the context of the
Constitutional Scheme, we conclude as
follows:

(i)
The
fundamental
rights,
enshrined in Part III of the Constitution,
are inherent and cannot be extinguished by
any Constitutional or Statutory provision.
Any law that abrogates or abridges such
rights would be violative of the basic
structure doctrine. The actual effect and
impact of the law on the rights guaranteed
under Part III has to be taken into account
in determining whether or not it destroys
the basic structure.

(ii) Article 21 of the Constitution
in its broad perspective seeks to protect the
persons of their lives and personal liberties
except
according
to
the
procedure
established by law. The said Article in its
broad application not only takes within its
fold enforcement of the rights of an accused
but also the rights of the victim. The State
has a duty to enforce the human rights of a
citizen providing for fair and impartial
investigation against any person accused of
commission of a cognizable offence, which
may include its own officers. In certain
12 INDIAN LAW REPORTS ALLAHABAD SERIES
situations even a witness to the crime may
seek for and shall be granted protection by
the State.

(iii) In view of the constitutional
scheme and the jurisdiction conferred on
this Court under Article 32 and on the High
Courts
under
Article
226
of
the
Constitution the power of judicial review
being an integral part of the basic structure
of the Constitution, no Act of Parliament
can exclude or curtail the powers of the
Constitutional Courts with regard to the
enforcement of fundamental rights. As a
matter of fact, such a power is essential to
give practicable content to the objectives of
the Constitution embodied in Part III and
other parts of the Constitution. Moreover,
in a federal constitution, the distribution of
legislative powers between the Parliament
and
the
State
Legislature
involves
limitation on legislative powers and,
therefore, this requires an authority other
than the Parliament to ascertain whether
such limitations are transgressed. Judicial
review acts as the final arbiter not only to
give effect to the distribution of legislative
powers between the Parliament and the
State Legislatures, it is also necessary to
show any transgression by each entity.
Therefore, to borrow the words of Lord
Steyn, judicial review is justified by
combination
of
"the
principles
of
separation of powers, rule of law, the
principle of constitutionality and the reach
of judicial review".

(iv) If the federal structure is
violated by any legislative action, the
Constitution takes care to protect the
federal structure by ensuring that Courts
act as guardians and interpreters of the
Constitution and provide remedy under
Articles 32 and 226, whenever there is an
attempted violation. In the circumstances,
any direction by the Supreme Court or the
High Court in exercise of power under
Article 32 or 226 to uphold the Constitution
and maintain the rule of law cannot be
termed as violating the federal structure.

(v) Restriction on the Parliament
by the Constitution and restriction on the
Executive by the Parliament under an
enactment, do not amount to restriction on
the power of the Judiciary under Article 32
and 226 of the Constitution.

(vi) If in terms of Entry 2 of List
II of The Seventh Schedule on the one hand
and Entry 2A and Entry 80 of List I on the
other, an investigation by another agency is
permissible subject to grant of consent by
the State concerned, there is no reason as
to why, in an exceptional situation, court
would be precludwe clarify that the
department concerned is free to take
appropriate action in accordance with the
statute/rules/various orders applicable to
them,
after
affording
reasonable
opportunity of hearing.ed from exercising
the same power which the Union could
exercise in terms of the provisions of the
Statute. In our opinion, exercise of such
power by the constitutional courts would
not violate the doctrine of separation of
powers. In fact, if in such a situation the
court fails to grant relief, it would be
failing in its constitutional duty.

(vii) When the Special Police Act
itself provides that subject to the consent by
the State, the CBI can take up investigation
in relation to the crime which was
otherwise within the jurisdiction of the
State Police, the court can also exercise its
constitutional power of judicial review and
direct the CBI to take up the investigation
within the jurisdiction of the State. The
power of the High Court under Article 226
of the Constitution cannot be taken away,
curtailed or diluted by Section 6 of the
Special Police Act. Irrespective of there
being any statutory provision acting as a
restriction on the powers of the Courts, the
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
13
restriction imposed by Section 6 of the
Special Police Act on the powers of the
Union, cannot be read as restriction on the
powers of the Constitutional Courts.
Therefore, exercise of power of judicial
review by the High Court, in our opinion,
would not amount to infringement of either
the doctrine of separation of power or the
federal structure.

69. In the final analysis, our
answer to the question referred is that a
direction by the High Court, in exercise of
its jurisdiction under Article 226 of the
Constitution, to CBI to investigate a
cognizable offence alleged to have been
committed within the territory of a State
without the consent of that State will
neither impinge upon the federal structure
of the Constitution nor violate the doctrine
of separation of power and shall be valid in
law. Being the protectors of civil liberties
of the citizens, this Court and the High
Courts have not only the power and
jurisdiction but also an obligation to
protect the fundamental rights, guaranteed
by Part III in general and under Article 21
of the Constitution in particular, zealously
and vigilantly."

19. Sri Ashok Kumar Todi vs.
Kishwar Jahan and others,4 (Paras-37
and 56), Hon'ble Supreme Court while
affirming order for investigation by CBI
also considered the directions passed by the
High Court to take action against the
officers on departmental side, and held as
under:

"37. Even as early as in 1990,
this
Court
has
held
that
everyone
associated with enforcement of law is
expected to follow the directions and
failure shall be seriously viewed and
drastically dealt with. We also reiterate
that the directions of this Court are not
intended
to
be
brushed
aside
and
overlooked
or
ignored.
Meticulous
compliance is the only way to respond to
directions of this Court.

56. Coming to the directions
passed by the High Court about the
conduct of the officers and taking action
against them on the departmental side, we
clarify that the department concerned is
free
to
take
appropriate
action
in
accordance with the statute/rules/various
orders applicable to them, after affording
reasonable opportunity of hearing. It
should not be taken as neither the High
Court nor this Court concluded the issue
about the allegations made against them.
However, we agree with the observation of
the learned single Judge in respect of the
conduct of the officers in interfering with
the conjugal affairs of the couple even
without any formal complaint against any
one of them."

20. In the case of K.V. Rajendran vs.
Superintendent of Police vs. CBCID,
South Zone, Chennai and others5,
(Paras-13, 14 and 17), Hon'ble Supreme
Court observed that investigation can be
transferred from the State Investigating
Agency to any other independent agency
like CBI and the power of transferring such
investigation should be exercised in rare
and exceptional cases where the court finds
it necessary in order to do justice between
the parties and to instil confidence in the
public mind or where investigation by the
State Police lacks credibility and it is
necessary for having "a fair, honest and
complete investigation" and particularly
when it is imperative to retain public
confidence in the impartial work of the
State Agencies. In the aforesaid case,
Hon'ble Supreme Court referred to its
decision inRubabbuddin Sheikh v. State
of Gujarat & Ors6 and observed that in
14 INDIAN LAW REPORTS ALLAHABAD SERIES
order to do justice and instil confidence in
the minds of the victims as well of the
public, the State Police Authorities could
not be allowed to continue with the
investigation when allegations and offences
were mostly against top officials. It was
further observed that where high officials
of State authorities are involved, or the
accusation itself is against the top officials
of
the
investigating
agency
thereby
allowing
them
to
influence
the
investigation, and further that it is so
necessary to do justice and to instil
confidence in the investigation or where the
investigation is prima facie found to be
tainted/biased, the court could exercise its
Constitutional powers for transferring an
investigation from the State investigating
agency
to
any
other
independent
investigating agency like CBI only in rare
and exceptional cases.

21. In Mithilesh Kumar Singh vs.
State of Rajasthan and others7, (Para15),
Hon'ble
Supreme
Court
while
emphasizing the need of fair, proper and
impartial investigation, considered the
transfer of investigation to CBI and held as
under:

"15. Suffice it to say that transfers
have been ordered in varied situations but
while doing so the test applied by the Court
has always been whether a direction for
transfer, was keeping in view the nature of
allegations, necessary with a view to
making the process of discovery of truth
credible. What is important is that this
Court has rarely, if ever, viewed at the
threshold the prayer for transfer of
investigation to CBI with suspicion. There
is no reluctance on the part of the Court to
grant relief to the victims or their families
in cases, where intervention is called for,
nor is it necessary for the petitioner seeking
a transfer to make out a cast-iron case of
abuse or neglect on the part of the State
Police, before ordering a transfer. Transfer
can be ordered once the Court is satisfied
on the available material that such a
course will promote the cause of justice, in
a given case."

22. The criminal justice system
mandates that any investigation into the
crime should be fair, in accordance with
law and should not be tainted. It is equally
important that interested or influential
persons are not able to misdirect or hijack
the investigation, so as to throttle a fair
investigation resulting in the offenders
escaping punitive course of law. These are
important facets of the rule of law. Breach
of rule of law amounts to negation of
equality
under
Article
14
of
the
Constitution of India. Article 21 of the
Constitution of India makes it clear that the
procedure in criminal trials must be right,
just and fair and not arbitrary, fanciful or
oppressive, vide Menka Gandhi vs. Union
of India8 (para-7) and Vinubhai Haribhai
Malviya and others vs. State of Gujrat
and another9 (paras-16 and 17) and
Subramanian Swamy vs. C.B.I.10 (para86). Article 21 enshrines and guarantees the
precious right of life and personal liberty to
a person which can only be deprived on
following the procedure established by law
in a fair trial which assures the safety of the
accused. The assurance of a fair trial is
the first imperative of the dispensation of
justice, vide Commissioner of Police,
Delhi vs. Registrar, Delhi High Court,
New Delhi11 (para-16). The ultimate aim
of all investigation and inquiry whether by
the police or by the Magistrate is to ensure
that those who have actually committed a
crime, are correctly booked and those who
have not, are not arraigned to stand trial.
This is the minimal and fundamental
2 All. Shivam Keshari & Anr. Vs. State of U.P. & Ors.
15
requirement
of
Article
21
of
the
Constitution of India. Interpretation of
provisions of Cr.P.C. needs to be made so
as to ensure that Article 21 is followed both
in letter and in sprit. "A speedy trial" is the
essence of companion in concept in "fair
trial".
Both
being
inalienable
jurisprudentially,
the
guarantee
under
Article 21 of the Constitution of India
embraces both life and liberty of the
accused as well as interest of the victim, his
near and dear ones as well as of the
community at large and, therefore, cannot
be alienated from each other. A fair trial
includes fair investigation as reflected from
Articles 20 and 21 of the Constitution of
India. If the investigation is neither
effective nor purposeful nor objective nor
fair,
the
courts
may
if
considered
necessary, may order fair investigation,
further investigation or reinvestigation as
the case may be to discover the truth so as
to prevent miscarriage of justice. However,
no hard and fast rules as such can be
prescribed by way of uniform and universal
invocation and decision shall depend upon
facts and circumstances of each case.

23. Fair and proper investigation is
the primary duty of the investigating
officer. In every civilized society, the
police force is invested with powers of
investigation
of
a
crime
to
secure
punishment for the criminal and it is in the
interest of the society that the investigating
agency must act honestly and fairly and not
resort to fabricating false evidence or
creating false clues only with a view to
secure conviction because such acts shake
the confidence of the common man not
only in the investigating agency but in the
ultimate
analysis
in
the
system
of
dispensation of criminal justice. Proper
result must be obtained by recourse to
proper means, otherwise it would be an
invitation to anarchy, vide Rampal Pithwa
Rahidas vs. State of Maharastra12 (para37). Investigation must be fair and effective
and must proceed in the right direction in
consonance with the ingredients of the
offence and not in a haphazard manner
moreso in serious case. Proper and fair
investigation
on
the
part
of
the
investigating officer is the backbone of rule
of law vide Sasi Thomas vs. State13
(para-15 and 18).

24.