# Sub Inspector Parshu Ram Dohare & Ors v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** Misc. Bench No. 1306 of 2005
- **Bench:** Shabihul Hasnain, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sub-inspector-parshu-ram-dohare-ors-v-state-of-u-p-ors-44582
- **Pages:** 15

## Headnote

A. Code of Criminal Procedure- Section
173 - NDPS Act - Sections 8 & 20 -
Investigating Agency/Officer is authorised to
make further investigation in exercise of its
statutory jurisdiction under Section 173(8)
Cr.P.C. after informing the court and obtaining
its approval at any stage of proceeding.

Writ Petition dismissed (E-8)

List of Cases Cited: -

## Text

_Characters 0–39,850 of 50,461. This is a partial read: ask again with offset=39850 for what follows._

1262 INDIAN LAW REPORTS ALLAHABAD SERIES
admission stage, being not maintainable
for the reliefs sought. No order as to costs.
----------

(2019)10ILR A 1262

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.09.2019

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE RAJEEV SINGH, J.

Misc. Bench No. 1306 of 2005

Sub Inspector Parshu Ram Dohare & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dr. L.P. Mishra

Counsel for the Respondents:
Govt. Advocate, Sri Mahfooz Alam, Sri
Mohammad Alishah Faruqi, Sri Qazi Sabihur
Rahman, Sri Qazi Vikil Ahmad, Sri Rajesh
Mishra, Sri Umesh Chandra Tripathi

A. Code of Criminal Procedure- Section
173 - NDPS Act - Sections 8 & 20 -
Investigating Agency/Officer is authorised to
make further investigation in exercise of its
statutory jurisdiction under Section 173(8)
Cr.P.C. after informing the court and obtaining
its approval at any stage of proceeding.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. C.B.I. & Anr. Vs. Rajesh Gandhi & Anr., AIR
1997 SC 93

2. Sandeep Kumar Yadav Vs. State of U.P.,
2006 Crl.L.J. 3316

3. Smt. Reena Vs. State of U.P. & Ors., 2013
(2) JIC 215 (All)
4. Jeet Singh Vs. State of U.P. & Ors., 2013
(3) JIC 470 (All)

5. Parvez Ahmad Vs. State of U.P. & Ors.,
2011 (1) JIC 448 (All)

6. Sweta Pandey Vs. State of U.P. & Ors.,
2015 (1) JIC 429 (All)

7. State of Andhra Pradesh Vs. A.S. Peter,
(2008) 2 SCC 383

8. K. Chandrashekhar Vs. State of Kerala &
Ors., (1998) 5 SCC 223

9. Ramachandran Vs. R. Udhayakumar & Ors.,
(2008) 5 SCC 413

10. Koneru Vara Prasada Rao. Vs. State of A.P.
Rep. by Sub-Divisional Police Officer & Ors.,
2007 CrLJ 2898

11. Vinay Tyagi Vs. Irshad Ali @ Deepak &
Ors., (2013) 5 SCC 762

12.
Amrutbhai
Shambhubhai
Patel
Vs.
Sumanbhai Kantibhai Patel & Ors. (Criminal
Appeal No. 1171 of 2016)

13. Dharam Pal Vs. State of Haryana & Ors.,
2016 (4) SCC 160

14. Chandra Babu @ Moses Vs. State through Inspector
of Police & Ors. (Criminal Appeal No. 866 of 2015)

15. Zahira Habibulla H Sheikh & Anr. Vs. State of
Gujrat & Ors. (Criminal Appeal No. 446-449 of 2004)

16. State of West Bengal & Ors. Vs.
Committee
for
Protection
of
Democratic
Rights, West Bengal & Ors., (2010) 3 SCC 571

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri L.P. Mishra, learned
counsel for the petitioners, Shri Sachindra
Pratap Singh, learned A.G.A. and Shri
Qazi Vakil Ahmad for the complainants.

2. This petition has been filed
seeking the following main reliefs:
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1263

"(a) To issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
Government
Order dated 24.12.2003 passed by the
Opp-Party No. 1 together with all the
consequential orders passed and the
action taken in furtherance of the said
Government Order dated 24.12.2003 by
declaring the same as void, the true copy
of which is contained as Annexure No. 1
to the writ petition.

(b) To issue a writ, order or
direction in the nature of certiorari
quashing the impugned F.I.R. dated
19.02.2005 lodged against the petitioners
U/S 342, 379, 427, 467, 468, 471, 120-B
IPC and U/S 8/20/29 NDPS Act at Police
Station Nawabganj, district Bahraich
giving rise to the case crime No. 67 of
2005, the true copy of which is contained
as Annexure No. 2 to the writ petition."

3. Facts giving rise to the dispute are
that the petitioners, who are the police
personnels, arrested one Sarfaraz Khan
s/o Izhar Khan on 18th June, 2003 with
one kilogram ''Charas' and prepared the
recovery memo dated 18.06.2003. On the
basis of the said recovery memo, an F.I.R.
bearing Case Crime No. 202 of 2003
under Section 8/20 of NDPS Act, P.S.
Nawabganj,
District
Bahraich
was
registered by petitioner no. 1 being
Station House Officer and petitioner no.
2,
being
the
Investigating
Officer,
recorded the statement of witnesses. After
completion of the investigation, a charge
sheet dated 6th July, 2003 in accordance
with the provisions of Section 173 (2) of
the Code of Criminal Procedure was
prepared
and
submitted
before
the
competent court against the accused,
Sarfaraz Khan under Section 8/20 NDPS
Act. The competent court took cognizance
on the aforesaid charge sheet on 28th
July, 2003. In the meantime, respondent
no. 7, who is the father of the accusedSarfaraz Khan made complaints to the
Human Rights Commission as also to the
State Government with the allegation that
his son was taken into custody by the
police illegally on 16th June, 2003 in
connection with the abduction of one girl,
namely, Sarita Devi d/o Chhote Lal
Madesia
r/o
Nawabganj,
Bahraich.
Superintendent
of
Police,
Bahraich
ordered for inquiry on the complaint of
respondent no. 7 by appointing Circle
Officer,
Nanpara,
District
Bahraich,
namely, Sukh Ram Bharti as Inquiry
Officer on 15th October, 2003. In this
connection, Special Secretary, Home
Department, Government of U.P. also
sought report from the Superintendent of
Police, Bahraich in writing vide letter
dated 31st October, 2003. Circle Officer,
Nanpara inquired into the matter and
submitted his report to the Superintendent
of Police, Bahraich on 17th November,
2003 with the finding that the application
of respondent no. 7 is not tenable as the
trial of Case Crime No. 202 of 2003,
under Section 8/20 of NDPS Act against
Sarfaraz is pending before the competent
court on the basis of charge sheet No. 62
dated 06.07.2003 and, therefore, no any
investigation is required by C.B.C.I.D.
Superintendent of Police vide letter dated
19.11.2003 also recommended that there
is no necessity for the matter being
inquired by the C.B.C.I.D.

4. State Government vide impugned
Government Order No. 4488(1)/Chha Pu14-60(35)/2003 dated 24.12.2003 directed
to handover the papers of Case Crime No.
202 of 2003, under Section 8/20 NDPS
Act,
P.S.
Nawabganj,
Bahraich
to
C.B.C.I.D. and also ordered to investigate
the case. In pursuance to the aforesaid
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order, further investigation
was
conducted
by
Nihal
Prasadrespondent no. 5, Inspector, C.B.C.I.D.,
who submitted final report on 10th
February, 2005 in Case Crime No. 202 of
2003 (supra) and wrote a letter to the
Station
Officer
of
police
station
Nawabganj, District Bahraich to register
F.I.R. against the petitioners under
Section 342, 379, 427, 467, 468, 471 and
120-B I.P.C. and Section 8/20/29 NDPS
Act. Similarly, Sector Officer, C.B.C.I.D.,
Gorakhpur
also
requested
to
the
Superintendent of Police, Bahraich to
direct the Station Officer, Nawabganj to
lodge the F.I.R. against the petitioners.
Thereafter, Superintendent of Police,
Bahraich ordered for lodging of the F.I.R.
against
the
petitioners,
which
was
registered as Case Crime No. 67 of 2005
under Sections 342, 379, 427, 467, 468,
471 and 120B IPC and Sections 8/20/29
of NDPS Act, P.S. Nawabganj, District
Bahraich on 19th February, 2005 against
six persons (petitioners herein).

5. Hence, this petition.

6. Submission of Shri L.P. Mishra,
learned counsel for the petitioners is that
the petitioners, in discharge of their duties
as police personnels, on 18th June, 2003
arrested one Sarfaraz Khan s/o Izhar Khan
with one kilogram ''Charas' and also
prepared the recovery memo. On the basis
of the said recovery memo, F.I.R. bearing
Case Crime No. 202 of 2003 under
Section
8/20
of
NDPS
Act,
P.S.
Nawabganj,
District
Bahraich
was
registered against the Sarfaraz Khan. He
further submitted that statements of the
witnesses
were
recorded
and
after
completion of the investigation, Charge
Sheet No. 62 of 2003 was prepared on 6th
July, 2003 and submitted before the court
concerned. Learned counsel for the
petitioners
also
submitted
that
the
cognizance on the aforesaid charge sheet
was also taken by the competent court on
28th July, 2003.

7.

Learned
counsel
for
the
petitioners submitted that Sarfaraz Khan
s/o Intezar Khan, who is a permanent
resident of 95/35, Pench Bagh, Kanpur
Nagar was arrested on 18th June, 2003 at
9.00 p.m. at village Sagar Gaon, Tiraha
Bandha (Nepal border) with one kilogram
illicit ''Charas' from his possession. He
further submitted that when Sarfaraz
Khan was arrested and charge sheeted
then respondent no. 7-Izhar Khan, who is
the father of the accused, started making
frivolous
applications
to
various
authorities with the allegation that his son
was arrested by the police illegally on
16th June, 2003 in connection with the
abduction of one girl Sarita Devi d/o
Chote Lal Madesia r/o Nawabganj,
Bahraich.
Learned
counsel
for
the
petitioners further submitted that the
Superintendent of Police, Bahraich had
ordered for the matter being inquired in
regard to the allegations made by
respondent no. 7 by appointing Circle
Officer,
Nanpara,
District
Bahraich,
namely, Sukh Ram Bharti as Inquiry
Officer on 15th October, 2003. Circle
Officer, Nanpara inquired into the matter
and
submitted
his
report
to
the
Superintendent of Police, Bahraich on
17th November, 2003 with the clear
finding that the application of respondent
no. 7 is not tenable. The Inquiry Officer
also recommended that since the trial is
pending before the competent court,
therefore, no investigation in the matter is
required by the C.B.C.I.D. Learned
counsel
for
the
petitioners
further
submitted that the Circle Officer, Nanpara
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1265
before
submitting
the
report
dated
17.11.2003 had taken into consideration
the telegram of one Riyazuddin, who is
the real brother of respondent no. 7,
which was sent on 18th June, 2003 at
10.15 p.m., i.e., after 1 hour and 15
minutes of the arrest of the accused
Sarfaraz Khan. The Inquiry Officer also
noted in his report that the said telegram
was sent by Riyazuddin r/o 95/35, Pench
Bagh, Kanpur Nagar and not from
Bahraich.
Learned
counsel
for
the
petitioners made emphasis that this
circumstance is sufficient to show that
Sarfaraz Khan was arrested on 18th June,
2003 at 9.00 p.m. and not on 16th June,
2003, as was alleged in the complaint
made by respondent no. 7. He further
submitted that the respondent no. 7 has
alleged that Sarfaraz Khan was beaten
brutally by petitioner no. 1, but in the
medical report dated 19th June, 2003 of
Sarfaraz Khan, who was medically
examined at the time of admission into
jail by the doctor, no injury was found on
the body of the Sarfaraz Khan.

8. Another submission of the learned
counsel for the petitioners is that from a
perusal of the General Diary dated 16th June,
2003 of Police Station Nawabganj, the
allegation that petitioner no. 1 arrested the
accused Sarfaraz Khan on 16th June, 2003
itself becomes falsified, as it is clear that
petitioner no. 1 was not accompanied by any
of the other petitioners, who were the
members of the police party at the time of
arrest of Sarfaraz Khan on 18th June, 2003,
but was accompanied by two other
constables, namely, Bajrangi Yadav and
Ravindra Nath Sharma and had visited the
police out post Samtalia at the Nepal border.

9.

Learned
counsel
for
the
petitioners further submitted that on the
report sought by the State Government
vide
letter
dated
31.10.2003,
Superintendent of Police, Bahraich, on the
basis of detail report submitted by the
Circle Officer, Nanpara dated 17th
November, 2003 in the matter, vide letter
dated 19.11.2003 informed that the matter
is pending before the competent court and
also recommended that fresh investigation
by C.B.C.I.D. is not required. However,
all of sudden, impugned Government
Order No. 4488(1)/Chha Pu-14-60(35) of
2003 dated 24th December, 2003 was
issued by the State Government. In
pursuance of the said Government Order
dated 24.12.2003, respondent no. 5 was
appointed as Investigating Officer by
respondent no. 2 by means of order dated
13th January, 2004. Thereafter, vide letter
dated 26th February, 2004, respondent no.
6 asked to Superintendent of Police,
Bahraich for handing over the papers,
case diary and other documents to the
authorised Constable, in pursuance to
which, Circle Officer, Nanpara sent a
report dated 26th February, 2004 that all
the papers are in the trial court. It has,
thus, been submitted that respondent no. 5
only did the table work and prepared the
statement of witnesses without any
interaction with them and also prepared
all the Parchas of the case diary in a
fraudulent manner. However, on 8th
April, 2004, respondent no. 5 moved an
application before the Special Judge,
Court No. 10, District Bahraich and
informed that as per the order of the State
Government, the matter had to be further
investigated by the C.B.C.I.D. and prayed
for staying of the trial of Case Crime No.
202 of 2003 (supra) till conclusion of the
further investigation. Learned counsel for
the petitioners also submitted that since
the charge sheet dated 28th July, 2003 in
Case Crime No. 202 of 2003 had already
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
been submitted by petitioner no. 2 in the
matter and the trial was also pending
before the court of Sessions Judge,
Bahraich after framing of charge against
the Sarfaraz Khan, therefore, it was not
open to the State Government to direct for
further
investigation
by
another
Investigating
Agency.
Moreover,
no
permission of any kind was taken by the
State Government from the competent
court before issuance of the impugned
order dated 24th December, 2003 and the
same is wholly illegal and contrary to the
provisions of the Code of Criminal
Procedure and is liable to be quashed. He
also submitted that the Order dated 24th
December, 2003 is politically motivated.

10. It has also been submitted that
the illegal investigation, which had started
on the basis of the impugned Government
Order dated 24th December,
2003,
culminated into filing of the final report
dated 10th February, 2005 in Case Crime
No. 202 of 2003. It has next been
submitted by the learned counsel for the
petitioners that the F.I.R. bearing Case
Crime No. 67 of 2005 under Sections 342,
379, 427, 467, 468, 471 and 120B IPC
and Sections 8/20/29 of NDPS Act, P.S.
Nawabganj, District Bahraich, which had
been lodged against the petitioners at the
behest of M.L.A. from Bahraich only with
the intention to save Sarfaraz Khan, is
also liable to be quashed with a direction
to the trial court to proceed on the charge
sheet filed by petitioner no. 2 in Case
Crime No. 202 of 2003.

11. Shri L.P. Mishra summarised his
argument by submitting that once an
Investigating Officer submitted a charge
sheet under Section 173 Cr.P.C. in a
criminal case and the court of competent
jurisdiction took cognizance of the
offence so mentioned in the charge sheet,
the State Government is not at all
competent to pass an order directing for
further
investigation
by
another
Investigating
Agency.
He
further
submitted
that
any
police
officer
belonging to any Investigating Agency
could, at best, submit a report of
investigation to a Magistrate of competent
jurisdiction, and cannot issue a direction
to Officer-in-Charge of a police station to
lodge an F.I.R. against its police officers.

12. Relying on the decision of the
Hon'ble Supreme Court in the case of
C.B.I. & Anr. Vs. Rajesh Gandhi &
Anr., AIR 1997 SC 93 and also the
decisions of this Court in the case of
Sandeep Kumar Yadav Vs. State of
U.P., 2006 Crl.L.J. 3316, Smt. Reena
Vs. State of U.P. & Ors., 2013 (2) JIC
215 (All), Jeet Singh Vs. State of U.P. &
Ors., 2013 (3) JIC 470 (All), Parvez
Ahmad Vs. State of U.P. & Ors., 2011
(1) JIC 448 (All) and Sweta Pandey Vs.
State of U.P. & Ors., 2015 (1) JIC 429
(All), Shri Mishra has submitted that
during the pendency of trial, investigation
of a case cannot be transferred to another
Investigating Agency at the behest of an
accused person. He also relied on the
Government Orders dated 5th September,
1995 and 22nd October, 2014 to submit
that
the
investigation
cannot
be
transferred on the request of the accused.

13. Further, placing reliance on the
decisions of the Hon'ble Supreme Court in
the case of State of Andhra Pradesh Vs.
A.S. Peter, (2008) 2 SCC 383, K.
Chandrashekhar Vs. State of Kerala &
Ors., (1998) 5 SCC 223, Ramachandran
Vs. R. Udhayakumar & Ors., (2008) 5
SCC 413, Koneru Vara Prasada Rao.
Vs. State of A.P. Rep. by Sub-Divisional
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1267
Police Officer & Ors., 2007 CrLJ 2898
and Vinay Tyagi Vs. Irshad Ali @
Deepak & Ors., (2013) 5 SCC 762, he
submitted that investigation cannot be
transferred
to
another
Investigating
Agency after submission of charge sheet
and taking cognizance by the competent
authority.

14. Shri Sachindra Pratap Singh,
learned A.G.A. as well as Shri Qazi Vakil
Ahmad and Shri Umesh Chandra Tripathi,
Advocates appearing for the complainant
have vehemently opposed the arguments
of the learned counsel for the petitioners.

15. Learned counsel for the
complainant, on the contrary, has placed a
different narrative of the case. He
submitted that respondent no. 7, namely,
Izhar Ahmad Khan is a permanent
resident of 95/35 Pench Bagh, P.S.
Bekanganj, Kanpur Nagar, but was
running a restaurant in Kasba Nawabganj,
P.S. Nawabganj, District Bahraich in the
name of Sarfaraz restaurant. His son,
namely, Sarfaraz Khan also accompanied
respondent no. 7 to run the said
restaurant. He further submitted that
adjacent to the restaurant, family of one
Chote Lal Madesia was also residing, who
has two daughters, namely, Pinki (elder)
and Sarita (younger). Sarfaraz Khan and
Sarita were liking each other and were in
relation and they decided to get married
on their own choice. The decision of
marriage of her daughter with Sarfaraz
Khan was strongly opposed by Chote Lal
Madesia as well as his family members.
As a result, Sarita left her parental house
in the night of 10th June, 2003. Chote Lal
Madesia approached to the Police Station
Nawabganj to register the F.I.R., but the
same was not registered, therefore, he
approached to the then Housing and
Urban
Minister,
U.P.
Government,
Lucknow
and
on
his
direction,
a
recommendatory letter was written by his
subordinate official to the Superintendent
of Police, Bahraich and requested for
recovery of the daughter of Chote Lal
Madesia. The copy of the aforesaid letter
is appended as Annexure SA 1 to the
supplementary affidavit dated 18th April,
2019. In pursuance to the aforesaid letter,
the police took action and recovered
Sarita along with Sarfaraz Khan on 16th
June, 2003 at about 4 p.m. from the house
of Abdul Karim, Mohalla Maholipura,
City Bahraich in presence of a lot of
persons and both were brought to the
police station Nawabganj by the police. It
has further been stated that during the
arrest, from 16.06.2003 upto 18.06.2003,
Sarfaraz Khan was brutally harassed and
tortured by the police, as had been stated
by respondent no. 7 in his complaint
(Annexure 5 to the writ petition). Pressure
was also made upon Sarita to change her
stand, but since she was not ready for the
same and had stood with Sarfaraz Khan,
she was handed over to her father. Then
the petitioners planted one kilogram
Nepali ''Charas' on Sarfaraz Khan and
registered F.I.R. bearing Case Crime No.
202 of 2003 under Section 8/20 NDPS
Act. Learned counsel for respondent no. 7
also submitted that the uncle of Sarfaraz
Khan, namely, Riyazuddin, as soon as
came to know about the incident, sent a
telegram to Superintendent of Police,
Bahraich as well as Chief Minister, U.P.
The said telegram is appended as
Annexure 6 to the writ petition. Learned
counsel for the respondent no. 7 also drew
attention of the Court towards Annexure 3
to the supplementary affidavit dated
18.04.2019, which is a news item
published in the daily news paper, Dainik
Jagran on 25th June, 2003 and submitted
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
that the recovery of Sarita along with
Sarfaraz Khan was published in several
news papers.

16. Learned counsel for the
respondent no. 7 has next submitted that
the police of P.S. Nawabganj had wrongly
submitted charge sheet in Case Crime No.
202 of 2003 without considering the
grievance of respondent no. 7. Thereafter,
respondent no. 7 made a detail complaint
to
the
National
Human
Rights
Commission, New Delhi on 2nd August,
2003. (Annexure 4 to the supplementary
affidavit), which was forwarded to the
Superintendent of Police, Bahraich vide
letter dated 5th October, 2003 and also
asked for a report regarding the action
taken within six weeks from the date of
receipt of the letter. A copy of the letter
dated 5th October, 2003 issued by
Assistant
Registrar
(Law),
National
Human Rights Commission is appended
as Annexure 5 to the supplementary
affidavit. In pursuance to the aforesaid
letter, Superintendent of Police directed to
Circle Officer, Nanpara vide letter dated
15th October, 2003 to conduct inquiry in
relation to the contents of the complaint
dated 2nd August, 2003, in pursuance to
which, Circle Officer, Nanpara, Bahraich
conducted an inquiry and recorded the
statements of complainant-respondent no.
7, Hazi Mohammad Ali, Mohd. Arif, Dr.
Intezar.
The
aforesaid
persons
categorically stated that Sarfaraz Khan
was running a hotel near Hajjin Masjid,
Kasba Nawabganj, Bahraich since last
several years and he fell into love with the
daughter of Chote Lal Madesia. Learned
counsel for the complainant further
submitted that during the aforesaid
inquiry, respondent no. 7 has also stated
that Sarfaraz Khan had a telephone
connection in his own name, which was
installed in the restaurant bearing No.
262384. Chote Lal Madesia, in his
statement, has categorically stated that
Sarfaraz Khan is basically a resident of
Kanpur Nagar and about six years back,
he came to Kasba Nawabganj and started
a hotel and since last two years, he had
taken a rented accommodation from his
cousin brother, namely Onkar s/o Auri
Lal Madesia to run the hotel. Chote Lal
Madesia also admitted in his statement
that he has two daughters, Pinki as well as
Sarita and Sarita was married near
Nepalganj,
Village
Gureya,
District
Banke, Nepal and was living in her inlaws house since about one month.
Learned counsel for respondent no. 7
submitted that the date of marriage of
Sarita has not been mentioned by Chote
Lal Madesia, therefore, it is clear that at
the time of incident, i.e., on 16th June,
2003, she was not married at all. In fact,
Sarita was married with Radheyshyam s/o
Late Kaledeen r/o House No. 259, village
Parwanigod,
P.S.
Motiganj,
District
Bahraich, which is evident from the
Parivar register. Circle Officer, Nanpara,
in his report dated 17th November, 2003
gave a finding that Sarfaraz Khan was
running a restaurant near Hajjin Masjid,
Kasba Nanpara, Bahraich and the family
of Chote Lal Madesia was also living near
to his restaurant.

17. It has been submitted by the
learned counsel for respondent no. 7 that
despite the aforesaid facts, Circle Officer,
Nanpara, has reported that since the
matter is sub-judice before the Court,
therefore, there is no requirement of
investigation by the C.B.C.I.D. The
inquiry report of the Circle Officer dated
17th November, 2003 is annexed as
Annexure 6 to the writ petition. He further
submitted that Superintendent of Police,
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1269
Bahraich also wrongly relying on the
aforesaid inquiry report of Circle Officer
wrote to the Special Secretary (Home)
that the appears not requirement to
conduct the inquiry by C.B.C.I.D.

18. Learned counsel for the
respondent no. 7 has lastly submitted that
the Government of U.P., after due
consideration, decided to transfer the
investigation of Case Crime No. 202 of
2003 with immediate effect to the
C.B.C.I.D. vide impugned Government
Order dated 24.12.2003. He further
submitted that the aforesaid Government
Order was not challenged before any
court of law and the Investigating Officer
of C.B.C.I.D., respondent no. 5 rightly
took over the investigation and moved an
application before the Special judge on
8th April, 2004 informing the court that
the investigation of Case Crime No. 202
of 2003 has been transferred to C.B.C.I.D.
and also requested to stay the further trial
till conclusion of the investigation. It has
further been submitted that after proper
investigation, respondent no. 5 found that
Sarfaraz Khan had not committed any
offence and, thus, the final report dated
10th February, 2005 was submitted in
Case Crime No. 202 of 2003 requesting
the S.H.O., Nawabganj to register the
F.I.R. against the petitioner. Thereafter,
on 19th February, 2005, Case Crime No.
67 of 2005 under Sections 342, 379, 427,
467, 468, 471 and 120B I.P.C. and
Section
8/20/29
NDPS
Act,
P.S.
Nawabganj,
District
Bahraich
was
registered against the petitioners. It has
further been submitted that Special Judge
(SC/ST Act), Bahraich vide order dated
4th January, 2006 rejected the said final
report ex parte, without hearing the
C.B.C.I.D. or the counsel appearing for
Sarfaraz Khan. Learned counsel for the
respondent no. 7 has also submitted that a
Criminal Misc. Case No. 1316 of 2006
under Section 482 Cr.P.C. was filed
challenging the charge sheet, which was
disposed of ex parte with the direction to
file discharge application vide order dated
18th September, 2012. In pursuance to the
order dated 18th December, 2012, a
discharge application was moved before
the trial court, which was rejected, in
challenge to which, Criminal Revision
No. 411 of 2013 was filed, which is
pending before this Court and is also
connected with this petition.

19. In support of his submission that
there is no illegality in the aforesaid
Government Order, learned counsel for
the respondent no. 7 relied on the decision
of the Hon'ble Apex Court in the case of
Amrutbhai Shambhubhai Patel Vs.
Sumanbhai Kantibhai Patel & Ors.
(Criminal Appeal No. 1171 of 2016),
Dharam Pal Vs. State of Haryana &
Ors., 2016 (4) SCC 160, Chandra Babu
@ Moses Vs. State through Inspector of
Police & Ors. (Criminal Appeal No. 866
of 2015) and Zahira Habibulla H
Sheikh & Anr. Vs. State of Gujrat &
Ors. (Criminal Appeal No. 446-449 of
2004).
He
also
submitted
that
Government Order dated 24.12.2003 is
well within the purview of Section 3 of
Police Act, 1861.

20. Learned counsel for the
respondent no. 7 also submitted that the
present petition is not maintainable in
relation to the prayer no. 2, which for
quashing of the F.I.R. bearing Case Crime
No. 67 of 2005 which was lodged by
Nihal
Prasad,
Inspector,
C.B.C.I.D.,
Gorakhpur. He also submitted that there is
no rider on the cross F.I.R., as in both the
FI.Rs., there are two different versions
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
and the first was lodged by petitioner no.
1 against Sarfaraz Khan and the second
F.I.R. was lodged by Nihal Prasad,
Inspector, C.B.C.I.D. after investigation
of Case Crime No. 202 of 2003. He
further submitted that learned counsel for
the petitioners has only addressed in
relation to the Government Order dated
24th December, 2003 by which the
investigation of Case Crime No. 202 of
2003 was transferred by the State
Government to C.B.C.I.D., but he has not
addressed on the issue for quashing of the
F.I.R. of Case Crime No. 67 of 2005.

21. We have considered the
arguments advanced by learned counsel
for the parties.

22. The main thrust of the argument
advanced by the learned counsel for the
petitioners has three folds, which are as
under:

1.
Investigation
cannot
be
transferred on the request of the accused
persons.

2.
Once
an
Investigating
Agency
has
submitted
a
police
report/charge sheet under Section 173(2)
Cr.P.C., and the court has taken the
cognizance of the offence so mentioned in
the charge sheet, the State Government is
not at all competent to pass an order
directing
for
furtherinvestigation
by
another Investigating Agency, without
taking leave from the court concerned.

3. Any police officer belonging to
any Investigating Agency could only submit
a report of investigation to the court of
competent jurisdiction and could not direct to
the officer-in-charge of a police station to
lodge F.I.R. against its police officers.
After going through the contents of
pleadings
as
well
as
the
written
submissions, it is found that the impugned
Government Order dated 24th December,
2003 was issued on the representation of
the Izhar Khan, respondent no. 7, and the
investigation of Case Crime No. 202 of
2003 was transferred to C.B.C.I.D. It is
also evident from the record that F.I.R. as
Case Crime No. 202 of 2003 under
Section 8/20 NDPS Act, P.S. Nawabganj
was registered on 18th June, 2003, on the
written complaint of S.H.O., Parshu Ram
Dohare (petitioner no. 1) alleging that
during the course of duty, he was
checking the luggage at village Sagar
Gaon, Tiraha Bandha on 18th June, 2003.
At about 9 p.m., one person, who was
coming from Bandha to village Holia,
when asked about his name after stopping
him, informed that he was Sarfaraz Khan
s/o Izhar Khan r/o 95/35 Pench Bagh, P.S.
Begum Ganj, District Kanpur. Sarfaraz
Khan was having one black polybag and
after checking inside the said polybag,
one kilogram Nepali ''Charas' was found.

23. However, on a perusal of
Annexure
1
of
the
supplementary
affidavit dated 18.04.2019 filed by
respondent no. 7, it is evident that, as a
matter of fact, the daughter of Chote Lal
Madesia was missing and the subordinate
official deployed with the then Minister of
Housing & Urban Development wrote a
letter
dated
12th
June,
2003
to
Superintendent of Police, Bahraich for
making effective efforts for recovery of
girl and registering of the case. It is also
evident from the record that a telegram
was also sent by the brother of respondent
no. 7, Riyazuddin on 18th June, 2003 to
various authorities that his nephew
Sarfaraz Khan had been taken into
custody by the police deployed at P.S.
Nawabganj, District Bahraich and he
might be implicated in the fake case.
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1271

24. It is also evident from the record
that in relation to the Case Crime No. 202
of 2003 (supra), Sub Inspector Shrinath
Yadav was appointed as Investigating
Officer, who prepared the charge sheet on
6th July, 2003, which was numbered as
62 of 2003 and filed it in the court below
(Annexure 4 to the petition), on which the
trial court took cognizance on 28th July
2003. In the meantime, respondent no. 7
and his family members were running from
pillar to post and moving applications to
several authorities including the Chairman,
Human Rights Commission, New Delhi.
The copy of the complaint is appended as
Annexure 5 to the petition. It is also relevant
to mention here that the said complaint was
forwarded
by
the
Human
Rights
Commission to the Superintendent of
Police, Bahraich, who directed the inquiry
to be conducted by Circle Officer, Nanpara.
In the said inquiry report also, it is clearly
emerged that Sarfaraz Khan was running a
restaurant at Nawabganj. In the complaint
of the respondent no. 7, it was the specific
allegation that Sarfaraz Khan and Sarita
d/o Chote Lal Madesia were in love, but
since Chote Lal Madesia was not agreed
with their relations, therefore, Sarfaraz
Khan and Sarita started living at Mohalla
Mahlipura, District Bahraich in the house
of Abdul Karim. Due to interference of
the subordinate official of the Minister of
the State Government, on the initiative of
Chote Lal Madesia, Sarfaraz Khan and
Sarita were recovered on 16th March,
2003 at 4 p.m., which was evidenced by
a large number of persons and were
brought to the police station and the girl
was handed over to her parents forcefully
and Sarfaraz Khan was beaten brutally
on the direction of petitioner no. 1 and
thereafter he was booked in a false case
by
planting
one
kilogram
Nepali
''Charas'.

25. Further, from the report dated
17th November, 2003 of the Circle
Officer, Nanpara, it is evident that in their
statements, Hazi Mohammad Ali, Mohd.
Arif, Dr. Intezar r/o Nawabganj have
specifically stated that it was the S.H.O.
himself, who while interacting with them,
informed that Sarfaraz Khan had enticed
away the girl of Chote Lal Madesia.
Chote Lal Madesia had also stated in his
statement that Sarfaraz Khan was living in
Kasba Nawabganj since last six years and
was running a restaurant in the shop of his
cousin brother since last two years. He
had also admitted that the news item in
relation to the Sarfaraz Khan and his
daughter was published in the news paper
and submitted that it was false news.
Chote Lal Madesia had further stated that
his elder daughter, Pinki was married four
years ago, but when asked about his
daughter Sarita, he stated that she was
married at Nepal and was living in her inlaws house since one month.

26. Apparently, in the conclusion part
of the inquiry, Circle Officer, Nanpara has
not given any finding about the elopement
of Sarfaraz Khan and Sarita, and only
submitted that Sarfaraz Khan was arrested
in Case Crime No. 202 of 2003 under
Section 8/20 NDPS Act, in which charge
sheet was filed and the trial is pending
before the court concerned after taking
cognizance and, therefore, there is no
requirement for further investigation of the
matter by the C.B.C.I.D.

27. It is also evident from the record
that in pursuance of the Government
Order dated 24.12.2003, the investigation
was started by the Inspector, C.B.C.I.D.,
respondent no. 5 after giving the proper
application to the court concerned on 8th
April, 2004 and had submitted the final
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
report in Case Crime No. 202 of 2003.
Respondent no. 5, when, after proper
investigation, found guilt of police officials,
who implicated Sarfaraz Khan in a false case,
requested the S.H.O. concerned to lodge the
F.I.R. against them. Second Investigating
Officer of Case Crime No. 202 of 2003, i.e.,
respondent no. 5 prepared Parcha no. 8 on
21.12.2004 with the finding that during
investigation, it was found that the illicit
''Charas' was planted on Sarfaraz Khan and he
was challaned on 18.06.2003 on the behest of
petitioner no. 1, then Station House Officer. It
has further been mentioned by respondent no.
5 in his letter dated 10.02.2005 that the final
report/ charge sheet was sent for approval to
the Director General of C.B.C.I.D., which has
been approved for submitting in the court
concerned. The letter dated 10.02.2005, for
ready reference, is reproduced as under:

"5- vijk/k 'kk[kk ds lEiw.kZ foospuk ls
ik;k x;k fd vfHk;qDr ljQjkt dLck uokcxat esa
pk; ehBk uedhu dh nqdku djrk Fkk mlds nqdku
ds cxy Jh NksVs yky egsf'k;k dh edku gS Jh
NksVs yky dh o;Ld iq=h lfjrk mQZ fiadh ls izse
lEcU/k gksus ds dkj.k ,d nwljs dh jtkeanh ls
fnukad 10-6-03 dks dLck uokcxat NksMdj cgjkbp
'kgj esa fdjk;s ds edku ysdj crkSj ifr iRuh jg
jgs Fks] yMdh ds firk NksVs yky dh f'kdk;r ij
,l0vks0 uokcxat e; QkslZ fnukad 16-6-03 dks
cgjkbp 'kgj ls vfHk0 ljQjkt o yMdh dks muds
lkeku lfgr idMdj Fkkuk uokcxat ykdj fnukad
18-6-03 rd cstk fgjklr esa j[ks rFkk yMdh dks
tcju mlds ekrk firk dks lqiqnZ dj ljQjkt ds
nwdku dh rksM QksM dj muds ikl ls QthZ pjl
dh cjkenxh fn[kk;s gS vijk/k 'kk[kk dh foospuk ls
vfHk0 ds fo:) /kkjk 8@20 ,u0Mh0ih0,l0 ,sDV
dk vijk/k izekf.kr ugha ik;k x;kA vr% foospuk
tfj, vfUre fjiksVZ lekIr dj foospuk dh dk;Zokgh
ls U;k;ky; dks voxr djk;k tk jgk gS fd
LFkkuh; iqfyl }kjk vfHk0 ljQjkt ds fo:) izsf"kr
lh ,l vUrxZr /kkjk 8@20 ,u0Mh0ih0,l0 ,sDV
ij fopkj.k xq.k nks"k ds vk/kkj ij fd;k tk;A

foospuk lekIr dj nks"kh deZpkjh ds
fo:) foHkkxh; dk;Zokgh@vfHk;ksx vafdr gsrq
i=kpkj lacaf/kr dh gksxh

layXud

1- jks0[kkl 1 odZ

2- ,Q0vkj0 3@2005 1 odZ

3- vkns'k ,l0ih0lh0ch0lh0vkbZ0Mh0
Nk;kizfr 1 odZ

g0 viBuh;
10-2-05"

29. Thereafter, the written complaint
was given to the Station Officer, P.S.
Nawabganj, District Bahraich for lodging of
the F.I.R. against the accused officials on
10th February, 2005, but the same was not
registered and only when the Sector Officer,
C.B.C.I.D., Gorakhpur wrote a letter to the
Superintendent of Police, Bahraich for
lodging the F.I.R., then only the impugned
F.I.R. as Case Crime No. 67 of 2005 was
registered on 19th February, 2005 against
the petitioners herein.

30. Now before dealing with the first
issue that the investigation cannot be
transferred on the request of an accused, it
is requisite to first go through the U.P.
Police Regulations. As per the provisions
of para 107 of U.P. Police Regulations,
Investigating Officer of a case is under an
obligation to conduct the investigation to
find out the truth and not merely to obtain
convictions. He must not prematurely
commit himself to any view of the facts
for or against any person and though he
need not go out of his way to hunt an
evidence for the defence in a case in
which he has satisfactory grounds for
believing that an accused person is guilty,
he must always give accused persons an
opportunity
of
producing
defence
evidence before him, and must consider
such evidence carefully, if produced.

31. Para 107 of the U.P. Police
Regulation is reproduced as under:
2 All. Sub Inspector Parshu Ram Dohre & Ors. Vs State of U.P. & Ors.
1273

"107. An investigating officer is
not to regard himself as a mere clerk for
the recording of statements. It is his duty
to observe and to infer. In every case he
must use his own expert observations of
the scene of the offence and of the general
circumstances to check the evidence of
witnesses, and in cases in which the
culprits are unknown to determine the
direction in which he shall look for them.
He must study the methods of local
offenders who are known to the police
with
a
view
to
recognizing
their
handiwork, and he must be on his guard
against accepting the suspicions of
witness and complainants when they
conflict with obvious inferences from
facts. He must remember that it is his duty
to find out the truth and not merely to
obtain
convictions.
He
must
not
prematurely commit himself to any view
of the facts for or against any person and
though he need not go out of his way to
hunt a evidence for the defence in a case
in which he has satisfactory grounds for
believing that an accused person is guilty,
he must always give accused persons an
opportunity
of
producing
defence
evidence before him, and must consider
such evidence carefully if produced.
Burglary
investigations
should
be
conducted in accordance with the special
orders on the subject."

32. In the present case, the grievance
of respondent no. 7 was that the police
personnels arrested Sarfaraz along with
the daughter of Chote Lal Madesia,
namely, Sarita, on the basis of the letter of
subordinate official of the Minster of the
State Government and the girl was handed
over to her parents forcefully. Thereafter,
Sarfaraz
was
challaned
under
the
provisions of Sections 8 and 20 of the
NDPS Act by planting ''Charas'. Under
the
directions
of
Human
Rights
Commission given on the complaint of
respondent no.
7,
an
inquiry
was
conducted by the Circle Officer, Nanpara.
During the enquiry, statements of local
residents of Nawabganj, place of incident,
namely, Hazi Mohammad Ali, Mohd.
Arif, Dr. Intezar were recorded. While
interacting
with
them,
they
had
categorically informed that they were
called in the month of June by the S.O.
and when they went to police station, S.O.
asked them that Sarfaraz enticed away the
girl of Chote Lal Madesia and also
directed for cooperation in the recovery of
girl and the arrest of Sarfaraz. However,
in the conclusion part of the inquiry
report, Circle Officer, Nanpara had not
given any findings in relation to the
ingredients of the complaint of respondent
no. 7.