# Silpa Devi Patel v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 38
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-08
- **Case number:** Crl. Misc. Writ Petition No. 24908 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/silpa-devi-patel-v-state-of-u-p-ors-45596
- **Pages:** 4

## Headnote

A. Criminal Law-Indian Penal Code, 1860Sections 323,376,504,506,452 & Prevention
of Children from Sexual Offence Act, 2012Sections 3/4 -challenge to- quashing of order
passed by Secretary,U.P. Government for
transferring
the
investigation
to
the
C.B.C.I.D.-while police already submitted
chargesheet-cognizance taken of -trial is
pending-accused availed various remedy
available from high court to Apex court-when
he failed, he applied for transfer the
investigation agency just to avoid the trial-it
is the trite law that accused persons can not
choose as to which investigation agency must
investigate the alleged offence-accused has
no right with reference to the matter of
investigatin
or
mode
of
prosecutionHence,dismissed.(Para 8 to 12)

Crl. Misc. writ petition dismissed. (E-6)

List of Cases Cited:-

## Text

38 INDIAN LAW REPORTS ALLAHABAD SERIES
to effectuate their arrest and in doing so he
has committed no fault in moving before
the Court to obtain non-bailable warrant or
initiate proceedings under Section 82
Cr.P.C.

16. No doubt, personal liberty of a
person is paramount and the Courts are not
expected to issue warrant in casual manner
without proper application of mind. In the
instant case when the petitioners were not
paying any heed to the summons, learned
Magistrate has resorted to issuance of nonbailable warrant of arrest after being fully
satisfied that the petitioners are avoiding to
appear
before
the
investigating
officer
intentionally. Instead of appearing before the
investigating officer, it is the audacity of the
petitioners to have approached before this
court to quash the order of non-bailable
warrant which is highly contemptible also.

17. Thus, we see no ground to quash the
order dated 17.09.2019 passed by the learned
Chief Judicial Magistrate, Jalaun at Orai or to
quash the impugned FIR in Case Crime No.
00141 of 2019, under Sections 366, 506, 328,
354 IPC, Police Station Nadigaon, district
Jalaun. The writ petition sans any merit is
accordingly dismissed.

18. However, it is provided that in case
the petitioners appear before the court
concerned within four weeks from today and
apply for bail in the aforesaid case, their prayer
for bail shall be considered and disposed of in
accordance with law.
----------
(2020)02ILR A38
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2020
BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Crl. Misc. Writ Petition No. 24908 of 2018

Silpa Devi Patel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mamta Sen, Sri Kailash Pati Singh Yadav,
Sri Rakesh Prasad

Counsel for the Respondents:
A.G.A., Swati Agrawal

A. Criminal Law-Indian Penal Code, 1860Sections 323,376,504,506,452 & Prevention
of Children from Sexual Offence Act, 2012Sections 3/4 -challenge to- quashing of order
passed by Secretary,U.P. Government for
transferring
the
investigation
to
the
C.B.C.I.D.-while police already submitted
chargesheet-cognizance taken of -trial is
pending-accused availed various remedy
available from high court to Apex court-when
he failed, he applied for transfer the
investigation agency just to avoid the trial-it
is the trite law that accused persons can not
choose as to which investigation agency must
investigate the alleged offence-accused has
no right with reference to the matter of
investigatin
or
mode
of
prosecutionHence,dismissed.(Para 8 to 12)

Crl. Misc. writ petition dismissed. (E-6)

List of Cases Cited:-

1. Narmada Bai Vs. St. Of Guj. &
Ors.,(2011) 5 SCC 79

2. Sajiv Rajendra Bhatt Vs. UOI & Ors,
(2016) 1 SCC 1

3. Romila Thapar & Ors. Vs. UOI & Ors.,W.P.No, 260
of 2018

(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Ajit Kumar, J.)

1. Sri Rakesh Prasad has filed
vakalatnama on behalf of the petitioner
4 All. Silpa Devi Patel Vs. State of U.P. & Ors.
39
 which is taken on record. He states that he
has taken no objection from Ms. Mamta
Sen earlier counsel for the petitioner.

2. Heard Sri Rakesh Prasad, learned
counsel for the petitioner, Ms. Swati
Agrawal, learned counsel appearing for
respondent no. 6, Sri Gaurav Pratap Singh,
learned A.G.A. for the State and perused
the record.

3. By means of present writ petition,
the petitioner has prayed for quashing the
order
dated
20.7.2018
passed
by
respondent
no.
2
transferring
the
investigation to the C.B.C.I.D. in case
crime no. 217 of 2016 under sections 323,
376, 506 I.P.C. and 3/4 POCSO Act,
police station Utraon, District Allahabad
and case crime no. 255 of 2016 under
sections 323, 504, 506, 452 I.P.C., police
station Utraon, District Allahabad.

4. Brief facts of the case are that a
First Information Report has been lodged
by
the
petitioner
against
accusedrespondent no. 6 Lal Chand Patel which
was registered as case crime no. 217 of
2016 under sections 323, 376, 506 I.P.C.
and 3/4 POCSO Act at police station
Utraon, District Allahabad and after
investigation, the police submitted chargesheet against accused-respondent no. 6 on
13.10.2016 and the Additional District
Judge-V has taken cognizance of the
offence on 14.11.2016 and the trial is
pending against him.

5. The argument advanced by learned
counsel for the petitioner is that at the
behest of accused-respondent no. 6 further
investigation of the case crime no. 217 of
2016 under sections 323, 376, 506 I.P.C.
and 3/4 POCSO Act, police station Utraon,
District Allahabad as well as case crime
no. 255 of 2016 under sections 323, 504,
506 I.P.C. and 3/4 POCSO Act, police
station Utraon, District Allahabad has been
transferred to C.B.C.I.D. by respondent
no.
2
Secretary
U.P.
Government,
Lucknow by passing the impugned order
dated 20.7.2018 though the civil police has
already submitted charge-sheet against
accused-respondent no. 6 in case crime no
217 of 2016 which was lodged by the
petitioner for the aforesaid offence and the
court below has taken cognizance on the
same
and
summoned
the
accusedrespondent no. 6 to face trial. He submits
that as the accused-respondent no. 6 is
avoiding the trial, a non bailable warrant
has been issued against him by the trial
court on 24.3.2017. He submits that the
accused-respondent no. 6 had challenged
the charge-sheet of case crime no. 217 of
2016 before this Court in Crl. Misc. 482
Cr.P.C. Application No. 11551 of 2017
which was disposed of by this Court
directing the accused-respondent no. 6 to
obtain bail. Thereafter, he preferred Crl.
Misc. Writ Petition No. 8918 of 2017
which was also disposed of on 23.5.2017
in which this Court directed that the
investigation of the case be carried out in a
fair manner independently and police
report be submitted within four months.
He contended that another 482 Cr.P.C.
Application No. 11551 of 2017 was filed
by respondent no. 6 in which he prayed for
staying of order dated 11.8.2017 issued
under section 82 Cr.P.C. by the trial court
in case crime no. 217 of 2016 for the
aforesaid offence which too was disposed
of by this Court on 24.8.2017 directing the
applicant to surrender before the court
concerned and apply for bail. He argued
that against the order dated 18.4.2017
passed
in
Crl.
Misc.
482
Cr.P.C.
Application No. 11551 of 2017, the
accused-respondent no. 6 preferred S.L.P.
40 INDIAN LAW REPORTS ALLAHABAD SERIES
(Criminal) No. 7367 of 2017 before the
Apex Court which too was dismissed and
accused-respondent no. 6 was given liberty
to move regular bail before the trial court
concerned, if so advised, but the accusedrespondent no. 6 did not appear before the
trial court and got the investigation of the
case transferred by the State Government
just to delay the trial. He urged that the
impugned order which has been passed
transferring the investigation of the case to
C.B.C.I.D. shows that the respondent no. 6
has only alleged that he has been falsely
implicated in the present case on account
of some inimical relationship with S.I.
Narendra Pratap. He next submitted that
respondent no. 6 is named in the F.I.R. by
the petitioner and further in the statement
of the victim recorded under sections 164
Cr.P.C. it has been categorically stated that
the respondent no. 6 has committed rape
on her. The cognizance of the offence had
already been taken by the trial court and
the trial against the accused-respondent no.
6 is pending and the impugned order
passed at the behest of the accusedrespondent no. 6 is just to escape the
criminal liability, hence the same be
quashed.

6. Per contra, learned counsel for the
respondent no. 6 has vehemently opposed
the prayer for quashing of the impugned
order and submitted that respondent no. 6
is a Journalist. He has protested against the
illegal activities of S.I. Narendra Pratap as
he in collusion of with the father of the
victim was getting the victim married to
one Pramod Patel though she was a minor
girl. She further submitted that against the
illegal activities, the respondent no. 6 and
other villagers have demonstrated before
the S.S.P. Allahabad and because of same
he has been falsely implicated in the
present case. She submits that respondent
no. 6 had also moved an application before
the court concerned under section 156 (3)
Cr.P.C. for registering an F.I.R. against
S.I. Narendra Pratap to which learned
counsel for the petitioner submits that the
said application under section 156 (3)
Cr.P.C. moved by respondent no. 6 was
rejected by the court concerned. She could
not dispute the fact that charge-sheet has
been submitted against the respondent no.
6 in case crime no. 217 of 2016 for the
offence in question and the trial court had
taken the cognizance on the same and trial
is pending against him.

7. Considered the submissions
advanced by learned counsel for the
parties and perused the record.

8. It is an admitted fact that an F.I.R.
was lodged against respondent no. 6 under
sections 323, 376, 506 I.P.C. and 3/4
POCSO Act registered as case crime no.
217 of 2016 on 20.7.2018 and chargesheet has been submitted on which the
court had taken cognizance and the trial is
pending and when he failed to appear
before the trial court non bailable warrant
has been issued against respondent no. 6,
who in turn has challenged the chargesheet of case crime no. 217 of 2016 before
this Court by filing a 482 Cr.P.C
application
which
was
disposed
of
directing him to appear before the
competent court and obtain bail but he did
not comply with the said order and
challenged the same before the Apex
Court by filing S.L.P. (Criminal) which
too was dismissed with a direction to the
respondent no. 6 to obtain regular bail.
The act and conduct of respondent no. 6
goes to show that he is avoiding the trial of
the present case on one pretext or the
other. Moreover, the impugned order
transferring the investigation of case crime
2 All. State of U.P. Vs. Rajbeer & Anr.
41
 no. 217 of the 2016 and case crime no.
255 of 2016 shows that respondent no. 2
only consider the false implication of
respondent no. 6 by the petitioner in case
crime no. 217 of 2016 and had transferred
the investigation. There appears to be no
sound reason given by respondent no. 2 for
transferring
the
investigation of
the
aforesaid cases. Moreover, the respondent
no. 6, who is an accused has no right to
choose the investigating agency as has
been laid down by the Apex Court in
catena of decisions such as Narmada Bai
vs. State of Gujrat and others reported in
2011 (5) SCC 79. In para-64 of the said
judgment, the Apex Court has observed as
under:-

" 64...... It is trite law that
accused persons do not have a say in the
matter of appointment of an investigation
agency. The accused persons cannot
choose as to which investigation agency
must investigate the alleged offence
committed by them."

9. Further in the case of Sajiv
Rajendra Bhatt vs. Union of India and
others reported in 2016 (1) SCC 1, in
para-68, the Apex Court has observed as
under:-

"68. The accused has no right
with
reference
to
the
manner
of
investigation or mode of prosecution.
Similar is the law laid down by this Court
in Union of India vs. W.N. Chadha,
Mayawati v. Union of India, Dinubhai
Boghabhai Solanki v. State of Gujrat, CBI
v. Rajesh Gandhi, Comptition Commission
of India v. SAIL and Janta Dal v. H.S.
Choudhary."

10. Recently the Apex Court in the
case of Romila Thapar and others vs.
Union of India and others in Writ
Petition (Criminal) No. 260 of 2018
decided on 28.09.2018 following its earlier
judgment has observed in para-27 of the
said judgment as under:-

" ..... it is clear that the
consistent view of this Court is that the
accused cannot ask for changing the
Investigating Agency or to do investigation
in a particular manner including for Court
monitored investigation. ..........".

11. In view of the above, the
impugned order dated 20.7.2018 is hereby
quashed.

12. The writ petition is dismissed.

13. The trial court is directed to
proceed with the trial of the present case
and conclude the same expeditiously.
----------

(2020)02ILR A41
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I,
J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal Defective No. 119 of 2018

State of U.P. ...Appellant
Versus
Rajbeer & Anr. ...Opposite Parties

Counsel for the Appellant:
A.G.A.

Counsel for the Opposite Parties:
------