# Smt. Nagina Devi and others v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-09
- **Case number:** Criminal Writ Petition No. 9489 of 2010
- **Bench:** Sabhajeet Yadav, Bala Krishna Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nagina-devi-and-others-v-state-of-u-p-and-others-41686
- **Pages:** 23

## Headnote

Constitution of India Art-226-Power of
writ court interference with mode of
investigation-offence under section 147,
148, 452, 324, 325, 504, 506 IPC-FIR
lodged as counter blast-as the Police
personal already facing investigation for
offence under section 147, 376, 354, 504
and 506 IPC-petitioner No. 2 and 3 minor
girl who were brought in Police Station,
S O. and other constables raped her
along with village Pradhan-Court came
of definite opinion about commission of
2 All] Smt. Nagina Devi and others V State of U.P. and others
729
cognizable offence of rape and outraging
the
modesty
of
unmarried
girlinvestigation officer as well as superior
officer trying hush up said crime-for
providing credibility and confidence in
investigation-C.B.I. directed to under
take investigation and such officer must
be the rank of S.P.-till submission of
chargesheet arrest stayed-full security
be provided to the petitioners-without
being prejudice with the provisions of
govt. orders

Held: Para 46

Thus,
from
totality
of
facts
and
circumstances of the case, we are of the
prima facie opinion that commission of
cognizable offence of rape and outraging
the modesty of unmarried girls in the
night of 19/20.4.2010 at Police Station
Kuber Sthan, District Kushi Nagar, and
involvement of Police personnel in the
said crime as accused is prima facie
established. We are also constrained to
say that the investigating officer and
superior police officers are trying to hush
up
the
said
crime
and
shield
the
offenders, thus it is exceptional situation
and fit case where this Court should
direct the investigation of aforesaid case
crime be made by C.B.I. for providing
credibility and confidence in investigation
and for doing complete justice to the
victims of said crime. Accordingly, we
direct the Director General of C.B.I. to
undertake the investigation of aforesaid
Case Crime No. 221/2010 registered at
P.S. Kuber Sthan, District Kushi Nagar,
under Sections 147, 376, 354, 504 and
506 I.P.C. and depute an officer not below
the rank of Senior Superintendent of
Police as in our opinion the conduct of
Investigating Officer and Superintendent
of Police is also subject matter of scrutiny
and complete the investigation within a
period of three months from the date of
supply of certified copy of this order to Sri
N.I. Jafri, learned advocate appearing for
C.B.I. in this Court.
Case law discussed:
A.I.R. 1966 S.C. 81, A.I.R. 1987 S.C. 537,
1993 Supp. (4) SCC 595, A.I.R. 1999 SC 2979,
A.I.R. 2010 SC 1476, A.I.R. 2002 S.C. 2225,
A.I.R. 2010 S.C. 1476, A.I.R. 2002 S.C. 2235,
JT 2010(4) SC 651,

## Text

_Characters 0–39,712 of 77,374. This is a partial read: ask again with offset=39712 for what follows._

728 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

12. Similar view has been taken by the
Apex Court in the case of Arjan Singh Vs.
Punit Ahluwalia, 2008 (8) SCC-348. In
that case it was held as follows :

"We agree with the High Court on this
issue. if the order of injunction was
operative up to a particular date, technically
the order of injunction shall not remain
operative thereafter."

13. In that case an injunction order
was passed for a limited period and
thereafter, it could not be extended.Since on
the date fixed the Presiding Officer was on
leave and later on, the case having been
transferred to another court, the order was
neither extended nor vacated. Despite the
fact that even the application for extension
was pending. The High Court took the view
that once no order of extension of the
interim order was passed and the interim
order was operating till particular date it
would not continue automatically and
would cease on the date on which it was
granted.

14. In the present case it appears that
lastly, the interim order was granted on
13.3.2008 by this Court.Thereafter, the case
had been listed for hearing on 20.3.2008,
25.8.2008, 1.9.2008, 17.10.2008, 6.11.2008,
17.11.2008, 17.2.2009 and on 7.4.2009 and
so on but the interim order was never
extended on those dates.

15. In view of the foregoing
discussions and the facts and circumstances
of the case, the impugned order passed by
the learned trial court on 9.11.2009,
7/8.2.2010 and on 30.4.2010 cannot be
justified and accordingly, the order passed
by the learned court below is hereby set
aside. There should be no doubt in the mind
of the court below that interim stay order
once granted by this Court for a limited
period will continue to be effective even in
future though not specifically extended on
future dates. The case is remanded back to
the trial court to pass a fresh order in the
light of the law laid down by the Apex
Court in the aforementioned case and to
proceed further with the case.

16. With the aforesaid observations,
the petition is finally disposed of.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2010

BEFORE
THE HON'BLE SABHAJEET YADAV, J.
THE HON'BLE BALA KRISHNA NARAYANA, J.

Criminal Writ Petition No. 9489 of 2010

Smt. Nagina Devi and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.N. Pandey
Sri V.K. Sharma
Sri Rahul Sripat
Sri V.R. Tiwari

Counsel for the Respondents:
Sri Nagendra Kumar Singh
A.G.A.

Constitution of India Art-226-Power of
writ court interference with mode of
investigation-offence under section 147,
148, 452, 324, 325, 504, 506 IPC-FIR
lodged as counter blast-as the Police
personal already facing investigation for
offence under section 147, 376, 354, 504
and 506 IPC-petitioner No. 2 and 3 minor
girl who were brought in Police Station,
S O. and other constables raped her
along with village Pradhan-Court came
of definite opinion about commission of
2 All] Smt. Nagina Devi and others V State of U.P. and others
729
cognizable offence of rape and outraging
the
modesty
of
unmarried
girlinvestigation officer as well as superior
officer trying hush up said crime-for
providing credibility and confidence in
investigation-C.B.I. directed to under
take investigation and such officer must
be the rank of S.P.-till submission of
chargesheet arrest stayed-full security
be provided to the petitioners-without
being prejudice with the provisions of
govt. orders

Held: Para 46

Thus,
from
totality
of
facts
and
circumstances of the case, we are of the
prima facie opinion that commission of
cognizable offence of rape and outraging
the modesty of unmarried girls in the
night of 19/20.4.2010 at Police Station
Kuber Sthan, District Kushi Nagar, and
involvement of Police personnel in the
said crime as accused is prima facie
established. We are also constrained to
say that the investigating officer and
superior police officers are trying to hush
up
the
said
crime
and
shield
the
offenders, thus it is exceptional situation
and fit case where this Court should
direct the investigation of aforesaid case
crime be made by C.B.I. for providing
credibility and confidence in investigation
and for doing complete justice to the
victims of said crime. Accordingly, we
direct the Director General of C.B.I. to
undertake the investigation of aforesaid
Case Crime No. 221/2010 registered at
P.S. Kuber Sthan, District Kushi Nagar,
under Sections 147, 376, 354, 504 and
506 I.P.C. and depute an officer not below
the rank of Senior Superintendent of
Police as in our opinion the conduct of
Investigating Officer and Superintendent
of Police is also subject matter of scrutiny
and complete the investigation within a
period of three months from the date of
supply of certified copy of this order to Sri
N.I. Jafri, learned advocate appearing for
C.B.I. in this Court.
Case law discussed:
A.I.R. 1966 S.C. 81, A.I.R. 1987 S.C. 537,
1993 Supp. (4) SCC 595, A.I.R. 1999 SC 2979,
A.I.R. 2010 SC 1476, A.I.R. 2002 S.C. 2225,
A.I.R. 2010 S.C. 1476, A.I.R. 2002 S.C. 2235,
JT 2010(4) SC 651,

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition, petitioners have
sought relief of writ of certiorari for
quashing the First Information Report
dated 17.5.2010 lodged against them
under Sections 147, 148, 452, 324, 323,
504, 506 I.P.C. registered as Case Crime
No. 244-A of 2010 at P.S. Kuber Sthan,
District
Kushi
Nagar,
contained
in
Annexure-1 of the writ petition and
further relief in the nature of mandamus
commanding the respondents and their
sub-ordinate officials not to arrest the
petitioners in pursuance of aforesaid case
crime and to issue any other suitable writ,
order or direction which this Court may
deem fit and proper in the circumstances
of the case have also been sought for.

2. The aforesaid reliefs are grounded
on the facts that the aforesaid F.I.R. dated
17.5.2010
was
lodged
against
the
petitioners by respondent no.4 as counterblast of two F.I.R. lodged by the
petitioners; one of which was registered
as Case Crime No. 244 of 2010 under
Sections 147, 323, 504, 506 I.P.C. at P.S.
Kuber Sthan, District Kushi Nagar, on
16.05.2010 though it was not registered in
proper sections and another F.I.R. was
registered as Case Crime No.221 of 2010
under Sections 147, 376, 354, 504, 506
I.P.C. at P.S. Kuber Sthan, District Kushi
Nagar.

3. It is stated in the writ petition that
on
19.4.2010
(wrongly
typed
in
Annexure-2 of the writ petition as
13.4.2010) in collusion and conspiracy of
village Pradhan, namely Ramayan Prasad
730 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Chauhan S/o Ram Raksha Chauhan,
Village Badgaon, P.S. Kuber Sthan,
District Kushi Nagar, the Station Officer
of said police station namely Sri Mohan
Ram,
Constables
Munna
Upadhyay,
Vimal Kumar Pandey and Jai Prakash
Singh, P.S. Kuber Sthan had arrested the
petitioner no. 1 Smt. Nagina Devi W/o
Aadya Singh and her husband Aadya
Singh and two minor daughters namely
Vandana aged about 15 years and
Archana aged about 14 years about 4
P.M. from her house and brought them at
police station Kuber Sthan District Kushi
Nagar. Thereafter, in the night at about 11
P.M. on 19.4.2010 Sri Mohan Ram
Station Officer, P.S. Kuber Sthan had
raped her daughter Km. Vandana in
police station and Constables Munna
Upadhyay, Vimal Kumar Pandey and Jai
Prakash Singh of P.S. Kuber Sthan and
Ramayan Prasad Chauhan S/o Ram
Raksha Chauhan, Village Pradhan of
village Badgaon P.S. Kuber Sthan had
outraged the modesty of her another
younger daughter namely Archana in the
police station in the said night (in the
manner disclosed in the FIR). And while
doing so the aforesaid police personnels
had also threatened the petitioner no.1 and
her husband and daughters that in case
they will speak about the same they may
be falsely implicated in other serious
offences like smuggling of Ganja and
Charas.

4. It is stated that on 20.4.2010 the
Station Officer, P.S. Kuber Sthan, District
Kushi Nagar had challaned/sent the
petitioners no.1, 2 and 3 alongwith Adya
Singh under Section 107, 116, 151
Cr.P.C. and had brought them before Sub
Divisional Magistrate, Padrauna. When
they were brought before Sub Divisional
Magistrate, Padrauna, they had moved
application to be released on bail but Sub
Divisional Magistrate concerned did not
accept their request instead thereof sent
them to District Jail, Deoria. Thereafter,
they were bailed out on 22.4.2010 and
released
from
jail
on
23.4.2010.
Thereafter
the
petitioner
no.1
had
approached the Police Station Officer,
P.S. Kuber Sthan to register the aforesaid
case but by abusing the petitioner no.1
Station Officer of said Police Station had
refused to register the FIR against himself
and other police personnels and Ramayan
Prasad Chauhan. Aggrieved by said
refusal the petitioner no.1 had sent an
application through registered post for
registering the aforesaid case crime to the
Superintendent of Police, District Kushi
Nagar purported to be U/s 154 (3) of Cr.
P. C. but when no F.I.R. was lodged
against the aforesaid police personnels
and Ramayan Prasad Chauhan, then on
1.5.2010 an application was moved before
A.C.J.M., Kasia District Kushi Nagar for
lodging an F.I.R. against the aforesaid
police personnels and Ramayan Prasad
Chauhan, Village Pradhan of the said
village. Thereupon on 3.5.2010 while
exercising the power U/s 156(3) Cr. P. C.
A.C.J.M., Kasia had directed the Circle
Officer, Sadar, Padrauna, District Kushi
Nagar to lodge an FIR of aforesaid crime
at P.S. Kuber Sthan against the aforesaid
persons
and
investigate
the
same.
Thereupon on 4.5.2010 an FIR was
lodged against Sri Mohan Ram, Station
Officer, P.S. Kuber Sthan, District Kushi
Nagar, Constables Munna Upadhyay,
Vimal Kumar Pandey, Jai Prakash Singh,
P.S. Kuber Sthan, District Kushi Nagar
and Ramayan Prasad Chauhan S/o Ram
Raksha Chauhan, Village Pradhan of
Badgaon, P.S. Kuber sthan, District-Kushi
Nagar under Sections 147, 376, 354, 504
and 506 IPC and registered as Case Crime
2 All] Smt. Nagina Devi and others V State of U.P. and others
731
No. 221 of 2010 at P.S. Kuber Sthan,
District Kushi Nagar . The copy of
aforesaid FIR is on record as Annexure-2
of the writ petition.

5. It is further stated in the writ
petition that on 16.5.2010 at 6.00 A.M. in
the morning Sri Suresh Chauhan S/o Ram
Raksha
Chauhan
and
Sri
Bhuwali
alongwith
several
other
persons,
mentioned in Annexrue-3 of the writ
petition, had approached the petitioners
no. 1, 2 and 3 and threatened them to
compromise in the rape case lodged by
the petitioner no.1. On refusal to do
compromise in the said case, the aforesaid
persons had beaten the petitioners No.1, 2
and 3 and their other family members and
caused several injuries including fractures
upon six persons from petitioners side.
Thereupon the petitioners had lodged FIR
against them on 16.5.2010 which was
registered as Case Crime No. 244 of 2010
under Sections 147, 323, 452, 504, 506
IPC at P.S. Kuber Sthan, District Kushi
Nagar but the said FIR was not registered
under proper sections according to the
nature of injuries sustained by the persons
of petitioners' side. A copy of aforesaid
FIR and the copies of injury reports of
Nagina Devi, Archana Singh, Vandana
Singh, Sindu Singh and X-ray report of
Vishwamber
Singh
are
filed
as
Annexures-3 and 4 of the writ petition. It
is stated that the present case against the
petitioners is counter-blast of aforesaid
two criminal cases filed by the petitioners.
It is stated that in a Case Crime No.244-A
of 2010 lodged against the petitioners
under Section 147, 148, 452, 324, 323,
504 and 506 IPC the police are trying to
arrest the petitioners, as such they have
approached this Court seeking relief for
quashing of aforesaid FIR and stay of
arrest with further prayer for issuance of
any other suitable writ, order or direction
as this Court may deem fit and proper in
the circumstances of the case.

6. The writ petition was filed in the
Summer vacation on 2.6.2010 but the
same was taken up as fresh for hearing on
9.6.2010 by this Court. Having regard to
the gravity of offences alleged to have
been committed by Sri Mohan Ram,
Station Officer and three constables
namely Munna Upadhyay, Vimal Kumar
Pandey and Jai Prakash Singh of P.S.
Kuber Sthan, District Kushi Nagar and
Ramayan Prasad Chauhan S/o Ram
Raksha Chauhan R/o Village Badgaon,
P.S. Kuber Sthan, District Kushi Nagar
under Sections 147, 376, 354, 504 and
506 IPC registered as Case Crime No. 221
of 2010 at said police station, the learned
counsel for the petitioners has urged that
the
F.I.R.
under
Sections
147,148,452,324,
323,
504,506
IPC
registered as Case Crime No. 244-A of
2010 at P.S. Kuber Sthan, District Kushi
Nagar was lodged by respondent no.4
against the petitioners as counter blast to
the aforesaid criminal cases against them,
at the instance of Station Officer namely
Mohan Ram and other police personnels
of Police Station Kuber Sthan and Village
Pradhan who are involved in the case of
rape and outraging the modesty of
petitioner nos. 2 and 3 for pressurising the
petitioners to compromise with the
accused persons of Case Crime No. 221
of 2010 and to withdraw the aforesaid
criminal case lodged against them. He has
further submitted that in spite of order
passed by A.C.J.M., Kasia District Kushi
Nagar on 3.5.2010 and on publication of
aforesaid incident in daily newspapers
circulated in the locality, no step has yet
been taken by superior police officers
against the police personnels, instead of
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
thereof
the
police
personnels
are
harassing the petitioners and are trying to
arrest them in Case Crime No. 244-A of
2010 registered at P.S. Kuber Sthan,
District Kushi Nagar.

7. Having considered the aforesaid
submission of learned counsel for the
petitioners and having regard to the
gravity of crimes alleged to have been
committed by police personnels of Police
Station Kuber Sthan, Kushi Nagar and
said village Pradhan under Section
147,376,354,504 and 506 IPC registered
as case crime No. 221 of 2010 at P.S.
Kuber Sthan, Kushi Nagar, in the night of
19/20.4.2010 and action expected to be
taken by investigation officer in the said
case crime and disciplinary measures
expected from Superintendent of Police,
District Kushi Nagar, the case was
ordered to be put up as fresh on 11.6.2010
and the Superintendent of Police, Kushi
Nagar was directed to appear in person
before the Court and show cause as to
why appropriate action has not yet been
taken against the erring police personnels.
However, on that day as interim measure
until further orders of this Court, the
petitioners' arrest in Case Crime No. 244A
of
2010
under
Sections
147,148,452,324,323,504 and 506 IPC
registered at P.S. Kuber Sthan, District
Kushi Nagar has also been stayed.

8. On 11.6.2010 this case was taken
up again by this Court and in pursuance of
direction given by us Superintendent of
Police, Kushi Nagar appeared before us
and has also shown Case Diary of Case
Crime No. 221 of 2010. We have gone
through
the
Case
Diary
wherein
statements of prosecutrix Vandana and
Archana and other prosecution, witnesses
have been recorded under Section 161
Cr.P.C., whereby the allegations levelled
against Mohan Ram Station Officer of
P.S. Kuber Sthan for committing rape
with Kumari Vandana (petitioner no. 2)
and
against
police
personnels
and
Ramayan Prasad Chauhan, Pradhan for
outraging the modesty of Km. Archana
daughters of Aadya Singh in the night of
19/20 .4.2010 in police station Kuber
Sthan have been fortified and supported.
After going through the case diary of said
crime
we
have
directed
the
Superintendent of Police, Kushi Nagar to
take appropriate action against the police
personnels in administrative side and also
directed the Superintendent of Police,
District Kushi Nagar and Principal
Secretary (Home), Government of Uttar
Pradesh to provide adequate security for
protection
to
the
complainant
and
prosecutrix of aforesaid Case Crime No.
221 of 2010 by deputing two armed
police with them at their residence with a
further direction to file an affidavit about
the action taken by him by the next date
while putting the case afresh for hearing
on 18th June, 2010.

9. On 18.6.2010 the Superintendent
of Police, Kushi Nagar has again
appeared before the Court and filed an
affidavit of compliance. From the perusal
of aforesaid affidavit, it appears that he
has merely attached the police personnels
at police line vide order dated 15.6.2010
passed by him, contained in Annexure-8A of the said affidavit and vide order
dated 15.6.2010 he has deputed Sri
Bajrangbali Chaurasia, Circle Officer,
Kasia to hold preliminary inquiry in
respect of case crime no. 221 of 2010
under Section 147,376,354,504,506 IPC
registered at P.S. Kuber Sthan, District
Kushi Nagar and in Case Crime No. 244A of 2010 registered at said police station
2 All] Smt. Nagina Devi and others V State of U.P. and others
733
under
Sections
147,
148,
452,324,323,504,506 IPC. However it
appears that the Superintendent of Police
has provided two armed police to the
complainants and prosecutrix referred
herein before.

10. The pertinent averments made in
para 4 to 10 of the said compliance
affidavit filed by Superintendent of
Police, Kushi Nagar on 18.6.2010 are
extracted as under:-

"4. That after the registration of the
case (Supra) the investigation of the same
was handed over to Circle Officer, Sadar
in compliance of the direction of the
Hon'ble
court.
However,
since
the
aforesaid
post
was
vacant
the
investigation was handed over to the link
officer namely Circle Officer, Khandda
and subsequently when the Circle Officer
Sadar took over the charge and pursuant
to the letter of Circle Officer, Khadda
dated 10.5.2010 the investigation was
transferred to Circle Officer, Sadar so
that the same could be completed without
any unnecessarily delay. Copies of
communications dated 10.5.2010 and
19.5.2010 (transferring the investigation)
are being filed hereto and marked as
Annexure 1and 2 to this affidavit.

5.
That
on
16.5.2010
the
complainant namely Nagina Devi had an
altercation with some villagers and as
consequent of the quarrel two cross first
information reports were lodged as Case
Crime No. 244 of 2010 under Sections
147, 323,504,506 and 452 of I.P.C lodged
by Nagina Devi against Suresh Chauhan
and 14 others on 16.5.2010 and other was
lodged by Ram Ashrey against Nagina
Devi being case crime no. 244-A of 2010 ,
under Section 147, 148,452 323, 324 504,
and 506 of I.P.C on 17.5.2010.

6. That considering the seriousness
of the incident, and in order to ensure
proper,
transparent
and
impartial
investigation the aforesaid two cases were
shifted form police station Kuber sthan to
police station Kotwali, Padrauna on
28.5.2010 and the investigation was
handed over to Sub-Inspector Sri Rajesh
Kumar Singh. A copy of transfer order
dated 28.5.2010 is being filed hereto and
marked as Annexure -3 to this affidavit.

7. That as per the direction of this
Hon'ble
Court
and
since
serious
allegations have been made against
police personnel, the deponent under took
the following steps to ensure a fair and
proper investigation, which culminate in
legal consequence4s and to ensure that
justice is done.

8. That in compliance of directions of
this Hon'ble court and to ensure that a
fair and impartial investigation could be
completed at the earliest without any fear
in the mind of the complainant by order
dated 12.6.2010 two armed Constables
namely constable 17 Ali Hasan and
Constable 74 Dharmsher Saroj has been
deployed
for
the
security
of
the
complainant and the prosecutrix. It is
further submitted that the Principal
Secretary, Home, Government of U.P. has
also requested to extend the period of
security by letter dated 16.6.2010, since
the deponent can only provide security for
a limited period and security shall be
extended on the direction of Principal
Secretary, Home after expiry of the period
of security which the deponent can
provide. Copies of two orders for
providing security dated 12.6.2010 and
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
communication
to
the
Principal
Secretary, Home dated 16.6.2010 are is
being filed hereto and marked as
Annexure -4,5 and 6 to this affidavit.

9. That in compliance of the
direction of this Hon'ble Court, since the
accused persons are police personnel
departmental action has been initiated
against them on 15.6.2010 in which
Bajrang Bali Chaurasiya, Circle Officer,
Kasaya was appointed as enquiry officer.
As per the procedure further action shall
be taken against the accused personnel
upon receipt of report of preliminarily
enquiry by the aforesaid enquiry officer.
The deponent under takes to ensure that
strict action shall be taken in accordance
with the law. A copy of order for taking
departmental proceeding against the
accused persons dated 15.6.2010 is is
being filed hereto and marked as
Annexure -7 to this affidavit.

10. That in compliance to ensure the
investigation
is
fair,
impartial
and
transparent, the accused police personnel
have been attached to the Police Line,
Kushi Nagar by order dated 15.6.2010.
Copies of orders dated 15.6.2010 are is
being filed hereto and marked as
Annexure -8 and 8A to this affidavit.

11. After going through the
aforesaid affidavit and having regard to
the case diary perused on 11.6.2010 of
Case Crime No. 221 of 2010 at P.S.
Kuber Sthan, District Kushi Nagar, we
were not satisfied about the action taken
by the Superintendent of Police, Kushi
Nagar as in our opinion that was not
proper
action
against
the
police
personnels who are involved in aforesaid
criminal case, as such we have directed
the case to be listed on 2nd July, 2010 as
part heard before us. On that day
Superintendent of Police, Kushi Nagar
was again directed to appear before the
Court and file an affidavit stating the
action taken by him on the date fixed.

12. On 2.7.2010 in pursuance of our
earlier direction given on 18.6.2010 the
Superintendent of Police, Kushi Nagar
has again appeared before us and filed
compliance affidavit whereby he has
informed the court that Sri Mohan Ram,
the then Station Officer of P.S. Kuber
Sthan, Constables Munna Upadhyay,
Vimal Kumar Pandey and Jai Prakash
Singh of said police station have been
placed under suspension vide order dated
20.6.2010 passed by him during the
pendency of disciplinary inquiry against
them. A copy of the order dated 20.6.2010
passed by him was also enclosed
therewith. Since the FIR was lodged
against the police personnels in respect of
commission of offence of rape and
outraging the modesty of girls in police
station and from perusal of case diary of
said case crime it appears that the
prosecution witnesses have supported the
story of F.I.R. in their statements recorded
by the Investigating Officer under Section
161 Cr.P.C., therefore, in given facts and
circumstances of the case, in our opinion,
instead of taking action under Rule 17
(1)(a) of U.P. Police Officers of the SubOrdinate
Ranks
(Punishment
and
Appeal) Rules, 1991, and placing the
police personnels under suspension during
the pendency of inquiry, it was proper
course to place them under suspension
under Rule-17 (1)(b) of the said Rules
during the pendency of investigation,
inquiry and trial of the said case crime. As
such,
we
have
again
directed
the
Superintendent of Police, Kushi Nagar to
take proper action in administrative side
2 All] Smt. Nagina Devi and others V State of U.P. and others
735
against police personnels involved in the
aforesaid criminal case and also inform
the
Court
about
the
progress
of
investigation in Case Crime No. 221 of
2010 registered at P.S. Kuber Sthan,
District Kushi Nagar. Since at earlier
occasion we have been told that the
statements of prosecutrix Vandana and
Archana D/o Aadya Singh were not
recorded under Section 164 Cr.P.C.
before the concerned Magistrate but
before 2.07.2010 the same were recorded
before
the
Magistrate
concerned,
therefore, we have also directed the
A.C.J.M., Kasia to produce the aforesaid
statements before us on the next date
fixed by us and the case was directed to
be listed on 9th July, 2010 before us as
part heard.

13.

Today
on
9.07.2010
Superintendent of Police, Kushi Nagar
has again appeared before this Court and
filed a compliance affidavit stating therein
that he has placed the police personnels
under
suspension
vide
order
dated
5.07.2010
during
the
pendency
of
investigation, inquiry and trial of Case
Crime No.221/2010 u/s 147, 376, 354,
504, 506 I.P.C. registered at Police
Station Kuber Sthan, District Kushinagar
by modifying the earlier order dated
20.06.2010. The copy of the aforesaid
order
has
also
been
enclosed
as
Annexure-1 of the said affidavit. In para 3
of the affidavit he has also stated that
Investigating Officer/Circle Officer has
also been directed to conclude the
aforesaid
investigation
as
soon
as
possible. A true copy of the direction
issued by him on 07.07.2010 is on record
as Annexure-2 of the said affidavit. He
has also filed status report of investigation
submitted by the Investigating Officer to
him on 07.07.2010 which has also been
enclosed as Annexure-3 of the said
affidavit,
whereby
the
Investigating
Officer
has
informed
that
after
investigation of Case Crime No.221/2010
u/s 147, 376, 354, 504, 506 I.P.C.
registered at Police Station Kuber Sthan,
District Kushinagar in pursuance of
direction of A.C.J.M., Kasiya u/s 156(3)
Cr.P.C. in absence of any evidence
against the accused persons final report
has been submitted as report no.7/2010 by
concluding
the
investigation.
But
subsequently in pursuant to order and
direction of Superintendent of Police
dated 1.07.2010 he has further started the
investigation and has taken the clothes of
Km. Vandana on 06.07.2010 and has sent
the same to Vidhi Vigyan Laboratory,
Police Lines, Varanasi for examination.

14. Besides this, Sri Suresh Chandra
Savita
A.C.J.M.,
Kasiya
District
Kushinagar
has
also
produced
the
statements
of
prosecutrix
namely
Vandana and Archana daughters of Aadya
Singh recorded u/s 164 Cr.P.C. before the
Magistrate and after perusal of the same
we have returned the aforesaid statements
to Sri Suresh Chandra Savita, A.C.J.M.,
Kasiya
District
Kushinagar.
In
the
aforesaid statements recorded u/s 164
Cr.P.C. before Magistrate Km. Vandana
has stated that Mohan Ram Sub Inspector
Police has raped her in the night of
19/20.04.2010 in police station and Km.
Archana has stated that aforesaid three
constables and village Pradhan Ramayan
Prasad Chauhan have outraged her
modesty in police station in the said night.

15. One application has also been
moved by Sri Rahul Sripat, Advocate on
behalf of Ramayan Prasad Chauhan S/o
Ram Raksha Chauhan of Village Badgaon
P.S. Kuber Sthan, District Kushi Nagar
736 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
with a prayer that he may be allowed to
intervene in the matter so that some real
facts of the case may be placed before the
Court. The aforesaid application is
supported by an affidavit of Sri Ramayan
Prasad Chauhan, wherein he has stated
that in Case Crime No.221/2010 u/s 147,
376, 354, 504, 506 I.P.C. registered at
Police Station Kuber Sthan, District
Kushinagar
he
has
been
falsely
implicated. It is stated in the said affidavit
that story set up against him in aforesaid
case is counter blast of the proceedings
initiated
by
District
Administration
against the petitioners no.1 to 4. It is
stated that the petitioners no.1 and 9 are
real sisters and petitioner no.4 is son-inlaw of petitioner no.9, who had forcibly
occupied the village pond No. 384 since
long back and had constructed building
over half portion of the pond. Being
village Pradhan he made efforts to
dispossess the petitioner no.4 from the
pond in question in accordance with the
provisions
of
law
by
making
measurement of the said pond on
19.4.2010, during which the petitioners
had forcibly opposed and threatened the
revenue authorities and lady police
personnels, ultimately they were arrested
on the spot and were sent to jail to
maintain
the
law
and
order.
For
measurement of the pond (pokhari) on
19.04.2010 by Land Revenue Inspector
and Area Lekhpal one lady Sub Inspector
of Police and six lady police constables
were provided by Superintendent of
Police, Kushinagar on the request of Sub
Divisional Magistrate, Padrauna, Kushi
Nagar. True copies of the various
correspondence made by the Revenue
authorities and order dated 18.04.2010
passed by Superintendent of Police
providing lady police constables and SubInspector have been filed as Annexures, 2,
3 and 4 of the said affidavit.

16. It is further stated in said
affidavit of Ramayan Prasad Chauhan that
on 20.04.2010 the petitioners no.1, 2 and
3 were medically examined but they did
not
offer
any
internal
medical
examination of their persons and even
before the Sub Divisional Magistrate,
Padrauna, they did not whisper a single
word about the rape case. It is also stated
that the petitioner no.2 was again
medically
examined
on
5.05.2010,
wherein neither any spermatozoa was
found in her vaginal smear nor any sign of
injury in private part of her body was
seen. The photostat copy of medical
report dated 20.04.2010 and 5.05.2010 are
on record as Annexures-5 and 6 of the
aforesaid affidavit. It is also stated that
coming to know about the F.I.R. against
the deponent of the aforesaid affidavit,
people residing nearby villages were
deeply shocked and more than hundreds
of people went to the District Magistrate,
Kushinagar demanding a magisterial
inquiry into the matter. The demand of
mob duly published in daily news papers
"Rashtriya Sahara" and "Dainik Jagaran"
dated
02.07.2010
is
on
record
as
Annexure-8 of the said affidavit.

17. Heard learned counsel for the
petitioners, learned A.G.A. for State
respondents and Sri Rahul Sripat for
intervener Ramayan Prasad Chauhan,
Village Pradhan of Village Badgaon, P.S.
Kuber Sthan District Kushinagar.

18. The submission of learned
counsel for the petitioners is that having
regard to the facts and circumstances of
the case and direct involvement of Sub
Inspector Police and three constables of
2 All] Smt. Nagina Devi and others V State of U.P. and others
737
P.S. Kuber Sthan as accused in Case
Crime No.221/2010 u/s 147, 376, 354,
504, 506 I.P.C. registered at Police
Station Kuber Sthan, District Kushinagar,
it is clear that police officers are not
properly responding in the investigation
of said case crime, instead thereof
Investigating Officer of aforesaid case
crime and superior police officers of the
State Government are trying to hush-up
the aforesaid crime and shield the police
personnels involved in that case, as such
the petitioners have no hope of justice
from such investigating agency of Uttar
Pradesh police. In such backdrop of the
case, learned counsel for the petitioners
has prayed that only an independent
investigating agency can properly and
fairly investigate the aforesaid case crime
and bring the accused persons to book. He
has requested that C.B.I. should be asked
to investigate the aforesaid case crime so
that police personnels of State police who
are accused in the aforesaid case crime
and village Pradhan of the said village
may be brought to book.

19. Having regard to facts and
circumstances of the case and rival
submissions of the learned counsel for the
parties,
first
question
arises
for
consideration is as to whether in given
facts and circumstances of the case this
Court can grant such relief without any
specific prayer in the writ petition or
not and as to whether the relief sought
for in the writ petition can be moulded
by this Court and appropriate relief
can be granted without any specific
prayer in writ petition under the
general prayer of " to issue any other
suitable writ, order or direction as in
circumstances of the case this Court
may deem fit and proper"?

20. In this connection, it would be
useful to refer some decisions of Hon'ble
Apex Court which have material bearing
on the question in issue. In Dwarka Nath
Vs. Income Tax Officer, Special Circle,
Kanpur and another A.I.R. 1966 S.C. 81
Hon'ble Apex Court while dealing with
the content and scope of power of this
Court
under
Article
226
of
the
Constitution of India in para 4 of the
decision observed as under:-

"......... This article is couched in
comprehensive phraseology and it ex
facie confers a wide power on the High
Court to reach injustice wherever it is
found. The Constitution designedly used a
wide language in describing the nature of
the power, the purpose for which and the
person or authority against whom it can
be exercised. ............... That apart, High
Courts can also issue directions orders or
writs other than the prerogative writs. It
enables the High Courts to mould the
reliefs
to
meet
the
peculiar
and
complicated
requirements
of
this
country....."

21. The aforesaid decision has also
been followed by Hon'ble Apex Court in
Comptroller and Auditor General of
India Vs. K. S. Jagannathan and
another A.I.R. 1987 S.C. 537, and in
Shri Anandi Mukta Sadguru Shree
Muktajee
Vandasjiswami
Suvarna
Jayanti Mahotsav Smarak Trust and
others Vs. V. R. Rudani and others
A.I.R. 1989 S.C. 1607

22. In S. Nagraj Vs. State of
Karnataka 1993 Supp. (4) SCC 595, the
Hon'ble Apex Court has observed that
"justice is a virtue which transcends all
barriers. Neither the rule of procedure nor
technicalities of law can stand in its way.
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Even the law bends before justice. Entire
concept of writ jurisdiction exercised by
the higher courts is founded on equity and
fairness."

23. In Common Cause Vs. Union of
India and others A.I.R. 1999 SC 2979,
while dealing with the power of review
the Hon'ble Apex Court in para 170 of the
decision has observed that the powers of
this Court under Article 32 and that of
High Court under Article 226 are plenary
powers and are not fettered by any legal
constraints.

24. The view earlier taken by Apex
Court in Dwarka Nath's case (supra) has
again been reiterated by the Apex Court
in
West
Bengal
and
others
Vs.
Committee of Protection of Democratic
Rights West Bengal A.I.R. 2010 SC
1476. In para 37 of the decision Hon'ble
Apex Court observed as under:-

"37. In Dwarkanath's case (AIR 1966
SC 81) (supra), this Court had said that
Article 226 of the Constitution is couched
in comprehensive phraseology and it ex
facie confers a wide power on the High
Court to reach injustice wherever it is
found. This Article enables the High
Courts to mould the reliefs to meet the
peculiar and extraordinary circumstances
of the case. Therefore, what we have said
above in regard to the exercise of
jurisdiction by this Court under Article
32, must apply equally in relation to the
exercise of jurisdiction by the High
Courts
under
Article
226
of
the
Constitution."

25. Thus, from the legal position
stated by Hon'ble Apex Court from time
to time there can be no scope for doubt to
hold that the Constitution has conferred
wide power on the High Courts under
Article 226 which is plenary power and is
not fettered by any legal constraints.
Neither the rule of procedure nor
technicalities of law can stand in its way
to reach injustice wherever it is found.
This article also enables the High Court to
mould the reliefs to meet peculiar and
extraordinary circumstances of the case.
Therefore, in our opinion if the basic
facts are founded in the writ petition or
brought before the Court through
affidavits or otherwise, this Court is
quite competent to mould the relief and
grant
appropriate
relief
to
meet
peculiar
and
extraordinary
circumstances of the case, even if such
relief is not specifically sought for in
the writ petition. In any view of the
matter an appropriate relief can be
granted by this Court under general
relief usually prayed for in the writ
petition to the effect that " to issue any
other suitable writ, order or direction
as in circumstances of the case this
Court may deem fit and proper".

26. Now next question arises for
consideration is that as to whether in
given facts and circumstances of the
case it would be appropriate to direct
the C.B.I. to investigate the Case Crime
No.221/2010 U/s 147, 376, 354, 504, 506
IPC registered at P.S. Kuber Sthan
District Kushi Nagar against police
personnels and Village Pradhan namely
Ramayan
Prasad
Chauhan
by
moulding the relief prayed for in the
writ petition and to investigate the other
criminal cases allegedly used by the
parties as counter-blast of each other such
as case crime No. 244 of 2010 and case
crime No.244-A of 2010 registered at
same police station?
2 All] Smt. Nagina Devi and others V State of U.P. and others
739

27. In order to answer aforesaid
question it would be useful to refer some
decisions of Hon'ble Apex Court, wherein
the Apex Court has occasion to consider
similar issue. In Secretary, Minor
Irrigation
and
Rural
Engineering
Services, U.P. and others Vs. Sahngoo
Ram Arya and another, A.I.R. 2002
S.C. 2225, while considering the power of
High Court to direct the investigation by
C.B.I. in para-5 of the decision Hon'ble
Apex Court observed as under:-

"5. While none can dispute the
power of the High Court under Article
226 to direct an inquiry by the CBI, the
said power can be exercised only in cases
where there is sufficient material to
come to a prima facie conclusion that
there is a need for such inquiry. It is not
sufficient to have such material in the
pleadings. On the contrary, there is a
need
for
the
High
Court
on
consideration of such pleadings to come
to the conclusion that the material before
it is sufficient to direct such an inquiry
by the CBI. This is a requirement which
is clearly deducible from the judgment of
this Court in the case of Common Cause
(supra). This Court in the said judgment
at paragraph 174 of the report has held
thus:

"The other direction, namely, the
direction to CBI to investigate "any other
offence" is wholly erroneous and cannot
be sustained. Obviously, direction for
investigation can be given only if an
offence is, prima facie, found to have
been committed or a person's involvement
is prima facie established, but a direction
to CBI to investigate whether any person
has committed an offence or not cannot
be legally given. . . . . . . ."

28. In State of West Bengal and
others and Committee for Protection of
Democratic Rights, West Bengal and
others A.I.R. 2010 S.C. 1476, the
question for consideration before the
Constitution Bench of Apex Court was as
to whether any direction can be given by
writ court to C.B.I. to investigate the
offence committed in territory of State
even in absence of consent of the that
State? In paras 45 and 46 of the said
decision the Hon'ble Apex Court has
answered the aforesaid question as
under:-

" 45. 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 the 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.