# Usman Ali v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2025) 4 ILRA 895
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-10
- **Case number:** Crl. Misc. W.P. No. 2611 of 2020
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usman-ali-v-state-of-u-p-ors-opp-parties-53273
- **Pages:** 21

## Headnote

Criminal Law - Constitution of India, 1950
- Section 226 & 243-R(b) - Indian Penal
Code, 1860 - Sections 34, 120-B, 147,
148, 149, 302 & 506 - Criminal Procedure
Code, 1973 - Sections - 82, 173, 173(2),
173(8), 311, 319 & 482 - National
Investigation Agency Act, 2008 - Sections
6, 6(2) & 6(5) - Criminal Law Amendment
Act, 1932- Section 7 - Unlawful Activities
(Prevention) Act, 1967 - SectionS 10(a)(i)
& 15(1) - writ petition - seeks multiple reliefs -
primarily
challenging
the
impugned
U.P.
Government's
order
transferring
the
investigation of Case from local police to the
CBCID without considering the petitioner's
demand for invoking the UAPA and further
prayed to for transferring the case to a central
agency like the NIA or CBI - FIR - offense of
murder and rioting - allegations are that
petitioner's brother was murdered - the
competent authority passed an order whereby
investigation of the case was transferred from
896 INDIAN LAW REPORTS ALLAHABAD SERIES
the Local police to CBCID - challenged in writ
petition - disposed of - with direction to the St.
Govt. UP to taken fresh decision in accordance
with law - matter reached finality - in
compliance, UP Government passed impugned
order - now challenged by the petitioner again
in the current proceedings - court while
discussing the various issue of like scope of
Article 226, transfer of Investigation, further
Investigation
Permissibility,
Applicability
of
UAPA, Criminal Procedure Powers, finds that, -
such transfers should only occur in rare,
exceptional cases where the St. investigation
lacks credibility or public confidence - The Court
emphasized the adequacy of existing legal
remedies under the Cr.P.C., including powers
under Sections 311 and 319, allowing trial
courts to summon or recall witnesses and
proceed against uncharged individuals if strong
evidence emerges - Finding no compelling
grounds justifying interference or transfer at this
stage, and to avoid prejudicing the ongoing
trial, the Court declined to exercise its
jurisdiction under Article 226 and dismissed the
writ petition - held that, (i) the power of
transferring an investigation must be in rare
and exceptional cases where the court
finds it necessary in order to do justice
between
the
parties
and
to
instil
confidence in the public mind - and (ii)
available
procedural
safeguards
under
Cr.P.C.
(Sections
311
&
319)
were
adequate - and therefore declined to
intervene in the matter - hence, the writ
petition is dismissed to avoid prejudicing
the ongoing trial - the trial court is at
liberty to proceed in accordance with law.
(Para - 35, 38, 39, 40, 41)

Writ Petition Dismissed. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,601 of 71,319. This is a partial read: ask again with offset=39601 for what follows._

4 All. Usman Ali Vs. State of U.P. & Ors.
895
accordance with Sections 207 and 208
CrPC.

Explanation :
The
list
of
statements, documents, material objects
and exhibits shall specify statements,
documents, material objects and exhibits
that are not relied upon by the investigating
officer."

9. The aforesaid draft Rule 4 merely
provides for supplying statements of
witness recorded under Sections 161 and
164 CrPC and a list of documents, material
objects
and
exhibits
seized
during
investigation and relied upon by the
Investigating Officer in accordance with
Sections 207 and 208 Cr.P.C.

10. An order refusing sanction for
prosecution of a co-accused person does
not fall in any of the categories of the
documents mentioned by the Hon'ble
Supreme Court while expressing the
aforesaid opinion in Criminal Trials
Guidelines Regarding Inadequacies
and Deficiencies, In Re (Supra). It
does not fall in any of the categories of
documents mentioned in the Draft Rule
4 relied upon by the learned Counsel for
the
revisionist.
Therefore,
the
revisionist has no right to seek a
direction for production of the order
passed
by
the
Secretary,
National
Informatics Centre refusing sanction for
prosecution of a co-accused person
under Section 91 Cr.P.C.

11. In view of the foregoing
discussion, I am of the considered view
that the order dated 01.06.2024 passed
by the Special Judge (Prevention of
Corruption Act) C.B.I. Court No.3,
Lucknow does not suffer from any
illegality, warranting interference by this
court
in
exercise
of
its
revisional
jurisdiction. The revision lacks merit and
the same is accordingly dismissed.
----------
(2025) 4 ILRA 895
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2025

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Crl. Misc. W.P. No. 2611 of 2020

Usman Ali ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Md. Aman Khan

Counsel for the Opp. Parties:
A.S.G.I., G.A., Manish Singh, Prahlad Kumar
Khare, Sanjay Kumar Yadav, Sikandar Khan,
Sushma Singh, Vineet Sankalp

Criminal Law - Constitution of India, 1950
- Section 226 & 243-R(b) - Indian Penal
Code, 1860 - Sections 34, 120-B, 147,
148, 149, 302 & 506 - Criminal Procedure
Code, 1973 - Sections - 82, 173, 173(2),
173(8), 311, 319 & 482 - National
Investigation Agency Act, 2008 - Sections
6, 6(2) & 6(5) - Criminal Law Amendment
Act, 1932- Section 7 - Unlawful Activities
(Prevention) Act, 1967 - SectionS 10(a)(i)
& 15(1) - writ petition - seeks multiple reliefs -
primarily
challenging
the
impugned
U.P.
Government's
order
transferring
the
investigation of Case from local police to the
CBCID without considering the petitioner's
demand for invoking the UAPA and further
prayed to for transferring the case to a central
agency like the NIA or CBI - FIR - offense of
murder and rioting - allegations are that
petitioner's brother was murdered - the
competent authority passed an order whereby
investigation of the case was transferred from
896 INDIAN LAW REPORTS ALLAHABAD SERIES
the Local police to CBCID - challenged in writ
petition - disposed of - with direction to the St.
Govt. UP to taken fresh decision in accordance
with law - matter reached finality - in
compliance, UP Government passed impugned
order - now challenged by the petitioner again
in the current proceedings - court while
discussing the various issue of like scope of
Article 226, transfer of Investigation, further
Investigation
Permissibility,
Applicability
of
UAPA, Criminal Procedure Powers, finds that, -
such transfers should only occur in rare,
exceptional cases where the St. investigation
lacks credibility or public confidence - The Court
emphasized the adequacy of existing legal
remedies under the Cr.P.C., including powers
under Sections 311 and 319, allowing trial
courts to summon or recall witnesses and
proceed against uncharged individuals if strong
evidence emerges - Finding no compelling
grounds justifying interference or transfer at this
stage, and to avoid prejudicing the ongoing
trial, the Court declined to exercise its
jurisdiction under Article 226 and dismissed the
writ petition - held that, (i) the power of
transferring an investigation must be in rare
and exceptional cases where the court
finds it necessary in order to do justice
between
the
parties
and
to
instil
confidence in the public mind - and (ii)
available
procedural
safeguards
under
Cr.P.C.
(Sections
311
&
319)
were
adequate - and therefore declined to
intervene in the matter - hence, the writ
petition is dismissed to avoid prejudicing
the ongoing trial - the trial court is at
liberty to proceed in accordance with law.
(Para - 35, 38, 39, 40, 41)

Writ Petition Dismissed. (E-11)

List of referred Cases: -

1. Mohanlal Shamji Soni Vs U.O.I.- 1991
(1) Crimes 818 (SC),

2. Heera Lal Vs St. of M.P. - 1997 (2)
Crimes 634 (MP),

3. Sukhpal Singh Khaira Vs St. of Pun. -
(2023) 1 SCC 289,

4. Ramesh Chandra Srivastava Vs St. of
U.P.- (2021) 12 SCC 608,

5. St. of West Bengal & ors.Vs Committee
for Protection of Democratic Rights, West
Bengal & ors.- 2010 (3) SCC 571,

6. Vinay Tyagi Vs Irshad Ali - (2013) 5 SCC
762,

7. Bhagwant Singh Vs Commr. of Police -
(1985) 2 SCC 537,

8. Rubabbuddin Sheikh Vs St. of Guj. &
ors.- (2010) 2 SCC 200,

9. Kabir Shankar Bose Vs St. of W.B. &
ors.- 2024 SCC Online SC 3592,

10. K. VS Rajendran Vs Superintendent of
Police CBCID South John Chennai & ors.-
2013 AIR SC (Criminal) 2103,

11. K. Vadivel Vs K. Shanti & ors.- 2014
AIR SC 5064,

12. Arup Bhuyan Vs St. of Assam & anr.-
2023 (8) SCC 745,

13. Dharam Pal Vs St. of Har. & ors.- 2016
(4) SCC 160),

14. Rampal Gautam Vs the St. & another -
2025 LiveLaw (SC) 164,

15. Hasanbhai Valibhai Qureshi Vs St. of
Guj. & ors.- 10. (2004) 5 SCC 347,

16. Smt. Vandana Srivastava Vs St. of U.P.
& ors.- Criminal Misc. Writ Petition No.6973
of 2014 - decided on Dt. 23.04.2019.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J. & Hon'ble Prashant Kumar,
J.)

1. Heard Shri Rakesh Pande, learned
Senior Advocate assisted by Mohd. Aman
Khan, learned counsel for the petitioner and
Shri Paritosh Malviya, learned AGA-I
4 All. Usman Ali Vs. State of U.P. & Ors.
897
alongwith Shri Sanjay Kumar Singh,
learned AGA for the State-respondents.

2. The instant writ petition is
preferred under Article 226 of Constitution
of India seeking following reliefs:-

"a. To call for the records from
the respondents.

b. To issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
26.06.2019 (Vide Annexure No.1 of this
Writ Petition) (Letter No.12 C.I.D./6-Pu11-19-387M/2018)
passed
by
the
Government of U.P. through its Principal
Secretary Home, Police Anubhag-11, Home
Department U.P. whereby it has transferred
the investigation of Case Crime No.238 of
2018 under Sections 147, 148, 149, 302,
120B, 34 IPC and Section 7 of Criminal
Law Amendment Act, Police Station
Chopan, District Sonbhadra, U.P. from the
local police of Police Station Chopan,
District Sonbhadra to C.B.C.I.D. and has
not passed any order relating to the prayer
of the petitioner for adding the offences
under the Unlawful Activity Prevention
Act, 1967 and for taking necessary actions
under
Section
6
of
the
National
Investigation
Agency Act,
2008
i.e.
submission of report to the Central Govt. as
contemplated under Section 6 (2) of the
National Investigation Agency Act, 2008 so
that Central Govt. may take a decision as
contemplated under Section 6 (3) of the
National Investigation Agency Act, 2008.

c. To issue a writ in the nature of
mandamus
directing/commanding
the
investigation of C.B. Case No.93 of 2019,
Sector Varanasi, which arises out of
aforesaid Case Crime No.238 of 2018
under Sections 147, 148, 149, 302, 120B,
34 IPC and Section 7 of Criminal Law
Amendment Act, Police Station Chopan,
District Sonbhadra, U.P. to be transferred
from C.B.C.I.D. to agency of Central Govt.
i.e. the National Investigation Agency or
the Central Bureau of Investigation.

d. To issue a writ in the nature of
mandamus commanding the Union of
India, Ministry of Home Affairs to take a
decision
on
the
representation
dated
12.07.2019 (vide Annexure No.33) on
behalf of the petitioner for taking action
under Section 6 (5) of the National
Investigation Agency Act, 2008.

e. To ensure fair, impartial,
prompt and timely investigation of Case
Crime No.238 of 2018 under Sections 147,
148, 149, 302, 120B, 34 IPC and Section 7
of Criminal Law Amendment Act, Police
Station Chopan, District Sonbhadra, U.P.
which is presently being investigated by the
C.B.C.I.D. Sector Varanasi as C.B. Case
No.93
of
2019
Sector Varanasi
by
monitoring
the
investigation
of
the
aforesaid Case Crime No.238 of 2018
which is presently being investigated by the
C.B.C.I.D. Sector Varanasi as C.B. Case
No.93 of 2019 Sector Varanasi and to direct
penal and disciplinary action against the
investigating
officers
for
lapses
and
shortcomings in investigation of aforesaid
Case Crime No.238 of 2018 presently C.B.
Case No.93 of 2019 Sector Varanasi.

f. To ensure that petitioner is not
pressurized in pursuing the Sessions Trial
No.18/19 of 2019 arising out of Case
Crime No.238 of 2018 under Sections 147,
148, 149, 302, 120B, 34 IPC and Section 7
of Criminal Law Amendment Act, Police
Station Chopan, District Sonbhadra, as well
as pursuing and participating in the further
investigation of the aforesaid Case Crime
No.238 of 2018 on account of threat and
danger of life and person of the counsel of
the petitioner who is representing the
petitioner in the Sessions trial as well as in
the proceedings before the Chief Judicial
898 INDIAN LAW REPORTS ALLAHABAD SERIES
Court
Sonbhadra
and
making
representations on behalf of the petitioner
to the investigating agencies and other
authorities
for
fair
and
impartial
investigation regarding which the petitioner
has complained to the police by lodging
first information report i.e. Case Crime
No.479 of 2019 under Section 506 IPC
which has been registered at Police Station
Robertsganj,
District
Sonbhadra
(vide
Annexure No.32).

g. To direct the respondents to
arrest the accused who were named in the
first information report of Case Crime
No.238 of 2018, under Sections 147, 148,
149, 302, 120B, 34 IPC and Section 7 of
Criminal Law Amendment Act, Police
Station Chopan, District Sonbhadra and
other accused namely Sarvendra Mishra @
Shivendra
Mishra
whose
complicity
surfaced in the course of investigation and
is figuring as an wanted accused in the
investigating of Case Crime No.238 of
2018, under Sections 147, 148, 149, 302,
120B, 34 IPC and Section 7 of Criminal
Law Amendment Act, Police Station
Chopan, District Sonbhadra, U.P. (C.B.
Case No.93 of 2019 C.B.C.I.D. Sector
Varanasi) and further direct the respondents
for compliance of the non-bailable warrants
for arrest which had been issued by the
Court on 12.12.2018 and orders against
Rakesh Jaiswal and Ravi Jalan under
Section 82 Cr.P.C. which had been
issued by the learned CJM Sonbhadra
on 22.12.2018 (vide Annexure No.15)
and
for
the
conclusion
of
the
investigation of Case Crime No.19 of
2019 under Section 174-A, Police
Station Chopan, District Sonbhadra for
non-appearance
of
the
accused
in
pursuance
of
proclamation
u/s
82
Cr.P.C. which had been issued in
respect of aforesaid Case Crime No.238
of 2018 under Sections 147, 148, 149,
302, 120B, 34 IPC and Section 7 of
Criminal Law Amendment Act, Police
Station Chopan, District Sonbhadra,
U.P.

h. To issue any other writ,
order or direction as this Hon'ble Court
may deem fit and proper in the facts
and circumstances of the case.

I. To award the cost of petition
to the petitioner."

FACTUAL MATRIX OF THE CASE

3. The real brother of the
petitioner namely Imtiyaz Ahmad, who
was sitting Chairman of the Town Area
Chopan,
District
Sonbhadra,
was
murdered in the morning of 25.10.2018.
The incident was immediately reported
to
the
concerned
police
station,
whereupon First Information Report1
dated 25.10.2018 was registered as
Case Crime No.238 of 2018 under
Sections 147, 148, 302, 120-B of Indian
Penal Code2 and Section 7 of Criminal
Law Amendment Act, 1932, Police
Station Chopan, District Sonbhadra
against Rakesh Jaiswal, Ravi Jalan and
four
unknown
shooters.
One
assailant/accused Kashmir Paswan @
Rauket was arrested by the police from
the spot with prohibited 9mm Carbine
and its cartridges. The matter was
investigated by the police and during
investigation Sections 149 and 34 IPC
were
added.
Six
accused
persons
including
Kashmir
Paswan
were
arrested by the police.

4. It is also reflected from the
record that the named accused Rakesh
Jaiswal approached to this Court by filing
Criminal Misc. Writ Petition No.31379 of
2018
for
quashing
the
FIR
dated
25.10.2018, which was dismissed by the
4 All. Usman Ali Vs. State of U.P. & Ors.
899
Division
Bench
vide
order
dated
01.11.2018 with following observations:-

"Heard Shri Dilip Kumar, learned
counsel assisted by Shri Kartikeya Saran,
learned counsel for the petitioner, Shri
Mohd. Aman Khan, Shri Rakesh Prasad
and Shri Tushar Kant, learned counsel for
the respondent No. 4 and the learned
A.G.A. for the State-respondents.

This petition has been filed by the
petitioner with a prayer to quash the F.I.R.
in Case Crime No. 238 of 2018, under
sections 147, 148, 302, 120-B IPC and 7
Criminal Law Amendment Act, 1932, PS
Chopan, District Sonbhadra.

It has been submitted by the
learned counsel for the petitioner that the
petitioner along with co-accused Ravi Jalan
has been nominated as accused on the basis
of suspicion expressed by the deceased
before his death. The deceased suspected
that the petitioner may have conspired to
cause his death. The plea of alibi has also
been argued by the learned counsel for the
petitioner. It is further submitted by the
learned counsel for the petitioner that the
petitioner was not found at the place of
incident. On the date of occurrence, he
went to Delhi to attend NGT meet, hence,
since at this stage there is no credible
evidence on record against the petitioner,
the arrest of the petitioner may be stayed
till credible evidence is collected and
hence, the impugned FIR is liable to be
quashed.

Per contra Shri Mohd Aman
Khan, learned counsel for the respondent
No. 4 has submitted that the petitioner as
well as co-accused named in the FIR have
actively participated in the commission of
crime. The post-moretem report indicates
that two fire arm injuries were found on
the body of the deceased and the
petitioner is not entitled to protection
with regard to which prayer has been
made in the instant writ petition and
hence, the impugned FIR is not liable to
be quashed.

From the perusal of the F.I.R.,
prima facie it cannot be said that no
cognizable offence is made out. Hence,
no ground exists for quashing of the
F.I.R. or staying the arrest of the
petitioners.

The writ petition is, accordingly,
dismissed.

However, It is provided that in
case, the petitioner appears before the
court concerned within three weeks from
today and applies for bail, the same shall
be dealt with in accordance with law
expeditiously by the courts below."

5. Similarly, another named accused
Ravi Jalan preferred Criminal Misc. Writ
Petition No.962 of 2019 and the same
was disposed of by an order dated
17.01.2019. The order is reproduced as
under:-

"Heard Sri I.K. Chaturvedi,
learned counsel for the petitioner, Sri
Purshottam Maurya, learned A.G.A. for
the respondent nos. 1 to 3 and Sri Anil
Tiwari and Sri Rakesh Pande, learned
counsels appearing for the respondent
no.4.

This writ petition has been filed
by the petitioner seeking quashment of
F.IR. dated 25.10.2018 in respect of
Crime No. 0238 of 2018 for the offence
under Sections 120-B, 302, 147, 148,
149, 34 of I.P.C. and 7 Criminal Law
Amendment,
P.S.
Chopan,
District
Sonebhadra.

Learned
counsel
for
the
petitioner after arguing for some time
wants to withdraw this writ petition with
liberty to file regular bail application
900 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court. He further submits
that the trial court be directed to decide
his regular bail application on the same day
or at least by the next date.

Counsels
appearing
for
the
complainant and State counsel have no
objection insofar as withdrawal of the
petition is concerned. They however,
submit that discretion be given to the trial
court to decide the bail application in
accordance with law considering all the
aspects of the matter.

In view of above, petitioner is
permitted to withdraw this writ petition
with the aforesaid liberty.

Needless to state that in the
eventuality of filing any regular bail
application by the petitioner before the
competent court, the competent court shall
decide the same objectively in accordance
with law as expeditiously as possible
considering all the aspects of the case.

The
petition
is,
accordingly,
disposed of.

It is made clear that this Court
has not expressed any opinion on the merits
of the case and the competent court shall be
at liberty to decide the bail application
strictly in accordance with law."

6. On 12.12.2018 the Chief Judicial
Magistrate3,
Sonbhadra
issued
NonBailable Warrants4 against accused Ravi
Jalan, Rakesh Jaiswal, Rinku Bhardwaj,
Suraj Paswan, Akhilesh Thakur, Santosh
Paswan and Shashi Kumar Chandrawanshi.
As there was non-compliance of the
NBWs, the FIR under Section 174-A IPC
was also lodged on 30.01.2019, registered
as Case Crime No.0019 of 2019 at Police
Station
Chopan,
District
Sonbhadra.
Thereafter the CJM initiated proceedings
under Section 82 of Cr.P.C. against the
named accused Rakesh Jaiswal, Ravi Jalan
and other accused and declared them as
absconders vide order dated 22.12.2018.
The co-accused namely Suraj Paswan and
Rinku Bhardwaj were arrested by the
Special Task Force5, Varanasi Unit, U.P.
from Kolkata, West Bengal on 27.12.2018.

7. It is alleged that when the named
accused failed in their endeavour to get
protection order from this Court, they
manipulated with the administration for
transfer of investigation, at the stage when
coercive steps were taken to secure their
arrest and the Competent Authority had
passed an order dated 22.02.2019, whereby
investigation of the Case Crime No.238 of
2018 was transferred from the local police
to CBCID. The said order was challenged
by the petitioner in Criminal Misc. Writ
Petition No.6926 of 2019 by claiming that
the order of transfer was passed in violation
of the guidelines provided for consideration
of transfer requests and the same was also
with malafide intention. The said relief was
pressed in the light of the guidelines
provided by the Division Bench in Smt.
Vandana Srivastava vs. State of U.P. and
others6. The decision was also challenged
on the ground that the guidelines, inter alia,
provide that ordinarily no order of transfer
of investigation should be on application
made by the accused (in the instant matter,
the wife of one of the accused had made an
application); that every attempt should be
there to first ensure that the investigation is
done
by
the
concerned
police
station/authority in a fair and diligent
manner; that before passing an order of
transfer of investigation, a report from the
Investigating Officer qua the status of the
investigation and order, if any, of the High
Court, in respect of the case must be
obtained; that if it is found that transfer of
investigation is necessary, then the order
must be supported by cogent reasons with
reference to the material available with the
4 All. Usman Ali Vs. State of U.P. & Ors.
901
authority transferring the investigation; and
that, if necessary and permissible, an
opportunity should be afforded to the
informant before passing an order of
transfer of investigation. In the said writ
petition, the petitioner had also prayed for a
direction to incorporate penal Sections and
to entrust the investigation to the National
Investigating Agency7.

8. In the said writ petition, the
Division Bench had opined that the order of
transfer of investigation was a nonspeaking order and it did not disclose
reasons for the transfer, though it contained
that the same had been made keeping in
mind the facts stated in the undated letter of
Smt. Arti Jaiswal, wife of one of the
accused persons, who had submitted
request for transfer. After hearing learned
counsel for the parties, the Division Bench
had partly allowed the writ petition on
23.04.2019. For ready reference, the
operative portion of the order is reproduced
herein below:-

"Having considered the rival
submissions, upon perusal of the record,
and the reasons recorded above, we are of
the firm view that the order of transfer of
investigation, which has been passed by the
State Government, cannot be sustained and,
therefore, it must go, though the State
Government must be given opportunity to
pass a fresh order.

Under the circumstances, we
deem it appropriate to partly allow the
petition. The order dated 22.02.2019
(Annexure No.1 to the writ petition) is
quashed. A direction is issued to the
Principal Secretary (Home), Government of
U.P., Lucknow to have a fresh look at the
request of the respondent no.10, as also of
the petitioner, if any, for transfer of
investigation of the matter and to take fresh
decision in accordance with law after
calling for comments from the concerned
police authorities of the district concerned
on the grounds on which the State proposes
to pass an order. The aforesaid exercise
shall be completed, preferably, within a
period of six weeks from the date a
certified copy of this order is placed before
it.

The
petition
stands
partly
allowed. There is no order as to costs."

9. The record further reflects that
none of the parties have assailed the order
dated 23.04.2019 and the same has attained
finality. The wives of the named accused
Mrs. Arti Jaiswal, wife of Rakesh Jaiswal
and Mrs. Meera Jalan, wife of Ravi Jalan
moved Misc. Application Nos.48 of 2019
and 49 of 2019 in the Court of CJM on
25.05.2019 and learned CJM vide order
dated
25.05.2019
had
stayed
the
investigation of Case Crime No.238 of
2018. Pursuant to the said order dated
23.04.2019,
the
Special
Secretary,
Department of Home (Police), Anubhag-11,
Govt. of U.P. Lucknow sent a letter dated
30.05.2019 to the Superintendent of Police,
Sonbhadra and sought a report in respect of
transfer of investigation of the present case.
In response thereof, the Superintendent of
Police, Sonbhadra submitted his report on
07.06.2019. Finally, the Principal Secretary,
Department of Home, Government of U.P.
passed an order on 26.06.2019 transferring
the investigation of the instant case from
Police Station Chopan, District Sonbhadra
to CBCID, which is impugned in the
present writ petition.

ARGUMENTS ON BEHALF OF
THE PETITIONER

10. Sri Rakesh Pande, learned Senior
Advocate appearing on behalf of the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner vehemently submitted that the
petitioner is real brother of the deceased,
who was murdered in the broad day light
on 25.10.2018 and the persons belonging to
the
banned
extremists
organization
i.e.Jharkhand Jan Mukti Parishad8 were
involved in the murder. The said murder
was also done at the instance and
conspiracy hatched by the named accused
namely Rakesh Jaiswal and Ravi Jalan. The
said claim is also fortified on the ground
that one assailant/accused Kashmir Paswan
@ Rauket was arrested from the spot with
prohibited 9mm Carbine and he was an
Area Commander of banned extremist
organization
JJMP.
The
matter
was
investigated by the police and six accused
persons including Kashmir Paswan @
Rauket were arrested by the police.

11.

Learned
Senior
Advocate
submitted that the investigation, which was
transferred to CBCID, was infact on the
dictate of the two accused persons namely
Rakesh Jaiswal and Ravi Jalan. They were
having 'say' in the Government and in most
arbitrary manner, the investigation of the
said case was transferred to CBCID. He
submitted that the instant matter is a fit
case, wherein the investigation is to be
conducted by an independent central
agency i.e. CBI/NIA. The investigating
officer of CBCID in a hasty manner filed a
police report under Section 173 (2) Cr.P.C.
before the Court of CJM on 29.02.2020,
wherein he submitted chargesheet against
eight persons and exonerated the named
accused persons Rakesh Jaiswal and Ravi
Jalan. The CJM had also taken cognizance
of the police report on the same day.
Aggrieved, therefore the petitioner filed a
protest petition and the same was rejected
by the CJM on 31.08.2020. Against the said
order, the petitioner had preferred Criminal
Revision No.08 of 2020, which was
allowed by the District and Sessions Judge,
Sonbhadra vide order dated 20.02.2021.

12. He vehemently submitted that
when the matter was taken up on
20.03.2025, a specific query was raised by
Hon'ble Court that after filing of the charge
sheet & after taking cognizance by the
concerned
Court
and
after
the
commencement of the trial into the matter,
whether an order for further investigation
can be passed. In response to the said
query, he submitted that Hon'ble Apex
Court in catena of judgments has held that
further investigation can be directed even
after filing of the charge sheet and
commencement of the trial. In support of
his submission, he had placed reliance on
the judgment in Rampal Gautam vs. the
State & another9 in which Hon'ble Apex
Court, taking support of Hasanbhai
Valibhai Qureshi vs. State of Gujrat and
others10,
had
reiterated
that
further
investigation can be directed even after
filing of chargesheet and commencement of
trial and highlighted that the prime
consideration for further investigation is to
arrive at the truth and to do substantial
justice. For ready reference, paragraph-12
of the judgment is reproduced hereinafter:-

"12. At the outset, we may record
that
a
direction
to
conduct
further
investigation even after filing of the
chargesheet and commencement of the trial
is permissible in law as has been held by a
catena of judgments of this Court.
Reference in this regard may be made to
Hasanbhai Valibhai Qureshi v. State of
Gujarat and Others (2004) 5 SCC 347
wherein, this Court observed that the prime
consideration
for
directing
further
investigation is to arrive at the truth and to
do real substantial justice. The Court
further observed that further investigation
4 All. Usman Ali Vs. State of U.P. & Ors.
903
and re- investigation stand altogether on a
different footing. Even de hors any
direction from the Court, it is open to the
police to conduct a proper investigation
notwithstanding the fact that the Court has
already taken cognizance on the strength of
a police report submitted earlier. However,
a caveat was added that before directing
such investigation, the Court or the
concerned police officer has to apply mind
to the material available on record and
arrive at a satisfaction that investigation of
such allegations is necessary for the just
decision of the case."

13. It was further submitted that the
other question, which has also cropped up
during the course of hearing is, whether at
this stage (commencement of trial and
deposition
of
several
witnesses)
the
investigation can be transferred to the
CBI/NIA?. In response to the said query, he
submitted that the power to order fresh, dedovo or re-investigation being vested with
the
constitutional
Courts,
the
commencement of a trial and examination
of some witnesses cannot be an absolute
impediment
for
exercising
the
said
constitutional power, which is meant to
ensure a fair and just investigation.

14. In this regard, he had placed
reliance on the judgement in Dharam Pal
vs. State of Haryana and others11 in
which it was held that the constitutional
courts can direct for further investigation or
investigation by some other investigating
agency. The purpose is only to ensure a fair
investigation and a fair trial. The fair trial
may be quite difficult unless there is a fair
investigation.
Relevant
part
of
the
judgement is reproduced herein below:-

"20. Be it noted here that the
constitutional courts can direct for further
investigation or investigation by some other
investigating agency. The purpose is, there
has to be a fair investigation and a fair trial.
The fair trial may be quite difficult unless
there is a fair investigation. We are
absolutely conscious that direction for
further investigation by another agency
has to be very sparingly issued but the
facts depicted in this case compel us to
exercise the said power. We are disposed
to think that purpose of justice commands
that the cause of the victim, the husband of
the deceased, deserves to be answered so
that miscarriage of justice is avoided.
Therefore, in this case the stage of the case
cannot be the governing factor.

21. We may further elucidate. The
power to order fresh, de-novo or reinvestigation
being
vested
with
the
Constitutional Courts, the commencement
of a trial and examination of some
witnesses
cannot
be
an
absolute
impediment
for
exercising
the
said
constitutional power which is meant to
ensure a fair and just investigation. It can
never be forgotten that as the great ocean
has only one test, the test of salt, so does
justice has one flavour, the flavour of
answering to the distress of the people
without any discrimination. We may hasten
to add that the democratic setup has the
potentiality of ruination if a citizen feels,
the truth uttered by a poor man is seldom
listened to. Not for nothing it has been said
that Sun rises and Sun sets, light and
darkness, winter and spring come and go,
even the course of time is playful but truth
remains and sparkles when justice is done.
It is the bounden duty of a Court of law
to uphold the truth and truth means
absence of deceit, absence of fraud and
in a criminal investigation a real and fair
investigation, not an investigation that
reveals itself as a sham one. It is not
acceptable. It has to be kept uppermost in
904 INDIAN LAW REPORTS ALLAHABAD SERIES
mind
that
impartial
and
truthful
investigation is imperative. If there is
indentation
or
concavity
in
the
investigation, can the 'faith' in investigation
be regarded as the gospel truth? Will it
have the sanctity or the purity of a genuine
investigation? If a grave suspicion arises
with regard to the investigation, should a
Constitutional Court close its hands and
accept the proposition that as the trial has
commenced, the matter is beyond it? That
is the "tour de force" of the prosecution and
if we allow ourselves to say so it has
become "idee fixe" but in our view the
imperium of the Constitutional Courts
cannot be stifled or smothered by bon mot
or polemic. of course, the suspicion must
have some sort of base and foundation and
not a figment of one's wild imagination.
One may think an impartial investigation
would be a nostrum but not doing so would
be like playing possum. As has been stated
earlier facts are self-evident and the grieved
protagonist, a person belonging to the
lower strata. He should not harbor the
feeling that he is an "orphan under law".
22. In view of the aforesaid analysis, the
appeal is allowed, the order of the High
Court is set aside, and it is directed that the
CBI shall conduct the investigation and
file the report before the learned trial
judge. The said investigation report shall
be considered by the trial judge as per
law. Till the report by the CBI is filed, the
learned trial judge shall not proceed with
the trial. A copy of the order be handed
over to Mr. P.K. Dey, learned Counsel for
the CBI to do the needful."

(emphasis supplied)

15. It was next contended that as
regards the further query of the Court that
whether the facts are of such a nature,
wherein penal provisions of the Act, 1967
be invoked in the matter? In response
thereof, he submitted that the petitioner's
brother
was
assassinated
by
the
assailants, who belonged to the a banned
extremist organization JJMP and the
accused Kashmir Paswan, who was a
member of the said banned organization,
and was arrested from the spot alongwith
prohibited 9mm Carbine. The post of
Chairman
of
Town
Area
is
a
constitutional
functionary
as
contemplated under Explanation (a) of
Section 15 (1) of the Unlawful Activities
(Prevention) Act, 196712 read with
Article 243-R (b) of the Constitution of
India. There was sufficient material
before the Investigating Agency and even
though deliberately they flouted the
mandate of the provisions of the Act,
1967 and the NIA Act, 2008. He had
placed reliance on the judgment in the
case of Arup Bhuyan vs. State of Assam
and another13 in which Hon'ble Supreme
Court has categorically held that mere
membership of an unlawful association is
sufficient to constitute an offence under
Section 10 (a) (i) of the Act, 1967.

16. He next contended that the
concerned police had also registered FIR
under Section 3 (1) of U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
198614 against accused Rinku Bhardwaj,
Kashmir Kumar Rauket, Suraj Paswan,
Pawan Chauhan, Krishna Singh, Ravi
Gupta, Dharmendra Kumar and Arvind
Kesari. The aforesaid accused persons
have been chargesheeted and the trial has
also commenced in the said proceeding.
Even though he admitted to the extent
that the subsequent proceeding in the
instant matter has been assailed by the
petitioner in Criminal Misc. Application
No.1708 of 2025 under Section 482
Cr.P.C. which was de-tagged by this
4 All. Usman Ali Vs. State of U.P. & Ors.
905
Court at the time of hearing of the instant
matter on 20.03.2025.

ARGUMENTS ON BEHALF OF
STATE-RESPONDENTS

17. Per contra, Sri Paritosh Malviya,
learned A.G.A.-I strongly defended the
impugned order. He contended that the
interest of justice is paramount and it will
even trump the need to avoid any delay
being caused in the proceedings. The
petitioner has already preferred Criminal
Misc. Application No.1708 of 2025 under
Section
482
Cr.P.C./Section
528
of
Bhartiya
Nyaya
Sanhita,
202315
challenging the order dated 19.09.2024
passed by the CJM in Case No.108 of 2024
arising out of Case Crime No.238 of 2018.
In the said application, which is stated to be
pending before learned Single Judge,
further prayer has been made to stay the
effect and operation of the order dated
19.09.2024. He submitted that even though,
learned Single Judge vide order dated
31.1.2025 had connected the aforesaid
application alongwith the instant writ
petition and directed that both the matters
are to be heard together. Accordingly, the
matter was nominated to this Bench by
Hon'ble the Chief Justice vide order dated
04.03.2025 but as the trial has already
commenced and the subsequent order dated
19.09.2024 is challenged in Application
No.1708 of 2025, the Court had de-tagged
the said application on 20.03.2025. It is an
independent proceeding and learned Single
Judge is also competent to adjudicate the
said aspect of the matter.

18.

Learned
A.G.A.-I
further
submitted that in the previous Writ Petition
No.6926 of 2019, the petitioner had also
asked for issuing a direction to the
respondents to incorporate certain penal
Sections and to entrust the investigation of
the instant case to the NIA. In the said writ
petition, it was also argued that the brother
of the petitioner was murdered in the
morning of 25.10.2018 and one of the
arrested accused Kashmir Paswan was an
Area Commander of a Banned Extremist
Organisation i.e. JJMP. The JJMP is a
formation of Maoist Communist Centre16,
which finds place at serial no.27 of the first
Schedule of Act, 1967. It was also prayed
for issuing direction to the concerned
authority to incorporate the appropriate
penal Sections of the Act, 1967. In the said
case, the request was made to comply with
Section 6 of the National Investigation
Agency Act, 200817. The said request was
not acceded by the Division Bench on
23.4.2019 and the order dated 22.02.2019,
by which the investigation was transferred
to CBCID, was set aside. Accordingly, the
direction was issued to the Principal
Secretary (Home), Government of U.P.,
Lucknow to have a fresh look at the request
of the respondent no.10 i.e. Arti Jaiswal, as
also of the petitioner and fresh decision was
to be taken in accordance with law. Said
order was passed only in the backdrop that
the relief, as has been prayed for
incorporation of the appropriate Sections of
the Act, 1967, cannot be re-agitated in the
instant proceeding as no such relief was
accorded in the previous round of litigation.

19. He further contended that the
impugned order had been passed after
giving due opportunity to the petitioner and
the same had been passed on cogent
ground, hence no case is made out for any
interference at this stage. Admittedly, the
investigating officer submitted the charge
sheet against the eight accused persons on
20.01.2019 and the cognizance was also
taken by the CJM. He submitted that the
trial is also at very advance stage, wherein
906 INDIAN LAW REPORTS ALLAHABAD SERIES
eight prosecution witnesses were already
examined. The prayer for transfer of the
investigation to NIA is also misconceived
and untenable. During the investigation it
was found that the victim was shot dead
due to personal animosity. By no stretch of
imagination, at this stage it can be
presumed that the said incident had
occurred on account of nexus/terrorists
activities.

20. Learned A.G.A. submitted that
even though at this stage it is not subject
matter of scrutiny but at the same time, the
Court may consider whether the allegations
against the accused persons in the subject
matter make out any offence under
Chapters II and/or VI of the Act, 1967 and
if so, which offence or offences are
disclosed. Section 15 of the Act, 1967
engrafts the offence of 'Terrorist Act' and
Section 17 lays down the punishment for
raising funds for committing a terrorist act.
Section
18
engrafts
the
offence
of
punishment for conspiracy etc. to commit a
terrorist act or any act preparatory to
commit a terrorist act. The phrase 'terrorist
act' has been defined under Section 15 of
the Act, 1967. The main intent of the
activity, in which the accused were
allegedly involved, was to murder the
deceased for their personal animosity. By
no stretch of imagination, the same were
related to any naxal or terrorist activities or
fall under the definition of 'terrorist act'.
He further reiterated that initially, the Anti
Terrorist Squad18 had also enquired the
matter and submitted its reports on
14.11.2019 and 29.01.2020 before the
CJM, wherein it was claimed that the
murder was caused on account of personal
animosity and the same was not related to
any naxal/terrorist activities.

21. He submitted that it is well settled
law that constitutional courts can order denovo investigation or fresh investigation by
any investigating agency at any stage of
trial even after some witnesses are also
examined. The power of police officer
under Section 173 (8) of Cr.P.C. to conduct
a further investigation, is unrestricted. (Ref.
Dharampal vs. State of Haryana and
others (supra). He had further placed
reliance on the judgement of Apex Court in
the case of K. Vadivel vs. K.