Surendra Pratap Singh vs State Of U.P.& Ors

Singh, a practising Advocate of Pratapgarh, U.P., was murdered

on 24th June, 2005. On the basis of the First Information Report

lodged by the Petitioner on the same day at 9.30 p.m. at Antu

Police Station, Case Crime No.19 of 2005 was registered against

one Brijesh Mishra, MLA, his brother, Mahesh Mishra and

associates, Hari Shankar and Gopi. During investigation, the

Investigating Agency arrested three out of four accused persons,

namely, Mahesh Mishra, Hari Shankar and Gopi, but did not arrest

Brijesh Mishra, who was an MLA of the Bahujan Samaj Party. The

Investigating Agency submitted charge-sheet No.79 of 2005

against all the accused persons under Sections 307 and 302 IPC

in the Court of Chief Judicial Magistrate, Pratapgarh, wherein

Brijesh Mishra was shown to be an absconder. On 24th August,

2005, the learned Magistrate took cognizance of the case and

issued non-bailable warrant against the said Brijesh Mishra, which

apparently was never executed.

2. On 15th September, 2005, the said Brijesh Mishra, who

has been made Respondent No.2 herein, applied to the State

Government for transfer of investigation from the local police to

the C.B.C.I.D., but the same was rejected by the Principal Home

Secretary on 15th September, 2005. However, on a Writ Petition

filed by the said Respondent No.2, Brijesh Mishra, being W.P.

No.4411 of 2005, the High Court gave a direction to the C.B.C.I.D.

on 29th November, 2005, to investigate further into the case and

to submit a report to the Magistrate within a reasonable time. The

Magistrate was directed thereafter to deal with the said reports in

accordance with law.

3. On 14th March, 2008, the Petitioner questioned the

investigation conducted by Shri Sunil Kumar Saxena, Additional

S.P., C.B.C.I.D., Kanpur Division, alleging that he was influencing

the prosecution witnesses to change their statements in favour of

the accused persons. Ultimately, the said Sunil Kumar Saxena

submitted his final report on 14th March, 2008, indicating that

there were differences in the charge-sheet which had been filed by

the local police and the investigation conducted by the C.B.C.I.D.

and requested that appropriate action be taken on account of the

differences between the two reports.

4. Subsequent thereto, on 22nd August, 2008, the Legal

Remembrancer wrote to the District Magistrate, Pratapgarh

regarding withdrawal of 8 cases against the Respondent No.2

which had been listed in his letter. Within a span of six days of the

said letter being sent, on 28th August, 2008, an order was passed

by the Chief Secretary, Government of U.P., for withdrawal of the

said cases without waiting for any response from the District

Magistrate, Pratapgarh, and without assigning any reason for such

an order. Immediately thereafter, on 29th August, 2008, the

Assistant Public Prosecutor moved an application before the

Magistrate under Section 321 Cr.P.C. for withdrawal of the cases,

but before anything further could be done on the said application,

further proceedings before the Chief Judicial Magistrate,

Pratapgarh were stayed by this Court on 12th December, 2008.

5. Learned counsel appearing for the Petitioner submitted that

the aforesaid facts would clearly reveal that the investigating

agencies, in connivance with the State Government, wanted to

shield Brijesh Mishra Saurabh from prosecution in connection with

the complaint filed by the Petitioner herein. It was submitted that in

such circumstances there was a genuine apprehension in the

mind of the complainant, who was the brother of the deceased,

that the deceased would not receive free and fair justice within the

State of Uttar Pradesh.

6. As against the above, Mr. Altaf Ahmad, learned Senior

Advocate appearing for the Respondent No.2, Brijesh Mishra

Saurabh, contended that the allegations made against the

investigating authorities and the State Government were wholly

unjustified and various incorrect submissions have been made on

behalf of the Petitioner to prejudice the mind of the court into

passing a favourable order on the transfer petition.

7. Learned counsel submitted that deliberate mis-statements

had been made to show the Respondent No.2 in a bad light.

Although, the arrest of the Respondent No.2 had been stayed by

the High Court by its order dated 9.9.2005 in Writ Petition

No.4411/05 filed by the said Respondent, which order is still in

force, it had been made to appear that the Respondent No.2 was

avoiding arrest and was an absconder. Learned counsel

incidentally submitted that the aforesaid writ petition had been filed

by the Respondent No.2 for the investigation to be transferred to

the CBI so that the truth of allegations could be verified. Learned

counsel submitted that the High Court, in fact, by its order dated

18th August, 2005, directed the Respondent No.2 to approach the

State Government for transfer of the case to the C.B.C.I.D. and for

police protection. It was submitted that the Respondent No.2 was

not arrested in connection with the case on account of the order

passed by the High Court staying his arrest and not because he

was being favoured either by the investigating agency or the State

Government. Learned counsel further urged that the Respondent

No.2 was an M.L.A. of the Bahujan Samaj Party at the relevant

time, and hence, no use of political clout could be said to have

been used by the Respondent No.2 in preventing his arrest in

connection with the case. In fact, the party to which the

Respondent No.2 belonged came to power in Uttar Pradesh only

on 11th May, 2007, almost two years after the commission of the

alleged offence.

8. It was then submitted that as far as the application made

on behalf of the State Government on 29th August, 2008, under

Section 321 Cr.P.C. for withdrawing Case No.119/05 is

concerned, it was submitted that it was the Government which had

taken the decision to withdraw the cases and it is the Petitioner

who had suppressed the relevant facts relating to the different

cases and the Government's decision to withdraw the same.

9. It was finally submitted that the materials on record did not

support the contention of the Petitioner for transfer of the case for

trial outside the State of Uttar Pradesh.

10. On behalf of the State it was contended that the facts as

revealed did not make out a case for transfer of the case outside

the State of Uttar Pradesh. It was submitted that two investigating

agencies had exonerated the Respondent No.2 from the

allegations made against him and had filed report in final form

against him. Mr. Dipankar Gupta, learned Senior Advocate,

appearing on behalf of the State of Uttar Pradesh, adopted the

submissions made on behalf of the Respondent No.2. Mr. Gupta

submitted that except for wild allegations made against the

investigating authorities and the officials of the State Government,

nothing substantial has been disclosed from the submissions

made on behalf of the Petitioner which would indicate that either

the investigating agencies or the prosecuting agency was in any

way biased in favour of the Respondent No.2. On the other hand,

upon a fair investigation undertaken by two separate agencies,

which included the C.B.C.I.D., it had been found that the

Respondent No.2 was not in any way connected with the alleged

incident of 24th June, 2005. In fact, at the relevant time, the party

to which he belonged was not in power which would enable him to

influence the course of investigation. Mr. Gupta submitted that no

interference was called for with the investigation reports submitted

both by the local police as also by the C.B.C.I.D., and the Transfer

Petition was, therefore, liable to be dismissed.

11. We have carefully considered the submissions made on

behalf of the respective parties. While the arrest of the Petitioner

may have been stayed by the High Court, the circumstances in

which the incident had occurred on 24th June, 2005, coupled with

the fact that the Respondent No.2 was returned as an MLA in the

same elections, does to some extent justify the apprehension of

the Petitioner that the perspective of the prosecution may become

polluted. There is no getting away from the fact that the

Respondent No.2 is an MLA and that too belonging to the present

dispensation. Since justice must not only be done but must also

seem to be done, this case, in our view, is an example where the

said idiomatic expression is relevant.

12. It would not be proper on our part to dilate on this

question further during the pendency of the trial. We are, however,

of the view that in order to do fair justice to all the parties, the trial

should be held outside the State of Uttar Pradesh and,

accordingly, we allow the Transfer Petition and direct that the

matter be transferred to the High Court of Madhya Pradesh which

shall decide the place and the Court before which the trial may be

conducted.

13. The Transfer Petition is, therefore, allowed in the aforesaid

terms. There will be no order as to costs.