SURENDERA PRATAP SINGH v.

STATE OF U.P. AND ORS. (Transfer Petition (Crl.) No. 535 of 2008)

SEPTEMBER 15, 2010

[Altamas Kabir and A.K. Patnaik, JJ.] 2010(11) SCR 909

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. This Transfer Petition has been filed  by one Surendra Pratap Singh, whose brother Raghvendra Pratap  

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.