GANESH SHANKAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) H. N. Tilhari, J. This writ petition has been filed by Ganesh Shanker Pandey, M. L. C. , Hari Shanker Tewari, M. L. A. , Markende Tewari alias Rajendra Tewari, Bheesham Shanker Tewari alias Kushal Tewari and Vinai Shanker Tewari for the following reliefs: (a) a writ or certiorari or a writ, order or direction in the nature of certiorari quashing the investigation against the petitioners on the basis of reports, dated 9-4-92, contained in Annexures 1, 2 and 3 to the writ petition and also for quashing of the said reports; (b) a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties, not to investigate against the petitioners in pursuance of the report, dated 9-4-92, Annexures 1, 2 and 3 and not to arrest the petitioners in pursu ance thereof; (c) a writ of mandamus or a writ, order of direction in the nature of mandamus restraining the opposite parties from investigating any case or prosecution of petitioners on the basis of the reports, dated 9-4- 92, contained in Annexures 1, 2 and 3 to the writ petition; (d) a writ of mandamus or an interim mandamus to command the oppo site parties not to arrest the petitioners on the basis of the reports dated 9-4-92 contained in Annexures 1, 2 and 3 to the writ petition; (e) any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case; and (f) to allow the aforesaid writ petition with costs. "

(2.) RELIEF No. 3 claimed in the writ petition is almost as is relief No. 2 by which it has also been sought that writ or order in the nature of mandamus be issued restraining the opposite parties from investigating any case or prose cution of petitioners on the basis of aforesaid Annexures 1, 2 and 3 to the writ petition. RELIEF No. 4 in the writ petition is to the effect that a writ of mandamus or an interim mandamus be issued commanding the opposite parties not to arrest the petitioners on the basis of reports, dated 9-4-92 contained in Annexures 1, 2 and 3 to the writ petition and petitioners have further prayed for any other appropriate writ, order or direction being issued in the matter which the court deems fit and proper.

(3.) NOTICE of this petition has been received by the learned Chief Standing Counsel. Shri Bireshwar Nath, learned Government Advocate as well as Sbri Jagdish Bhalla, learned Additional Chief Standing Counsel have put in appearance on behalf of opposite parties. We have heard learned counsel for the petitioners i. e. Shri Umesh Chandra, learned Senior Advo cate, as well as Shri Bireshwar Nath, learned Government Advocate and Shri Jagdish Bhalla, learned Additional Chief Standing Counsel, on behalf of the State and the authorities and have gone through the record and the papers placed by the learned Standing Counsel on behalf of the State for our perusal. The learned Additional Chief Standing Counsel as well as tiu learned Government Advocate submitted that the material available at this stage requires not to b3 disclosed to petitioners or public in the interest of process of investigation and progress of investigation and on account of the fact that the investigation is going on and is in progress, so at this stage we do not think it just and proper to discuss the same or proceed on the basis of the same as it may result in the disclosure of the same on hand and on the other hand it may be acting on something on the basis of something not disclosed to petitioners. The main contention on behalf of the petitioners has been that in the first information reports contained in Annexures 1,2 and 3 there is no reference at all of the petitioners nor these reports indicate or show any involvement of the petitioners in the occurrence, dated 9-4-92 in any manner and when these documents i. e. first information reports do not, in any manner reveal, indicate or disclose any involvement or any con cern of the petitioners with the occurrence in question, dated 9-4-92 in which Virkam Pratap Singh had lost his life at the hands of some assailants or some persons, there is no ground and there is no reason and there is no justi fication for any investigation being made against the petitioners nor is there any justification or reason for the petitioners being arrested but on account of political animosity and on account of petitioners belonging to different political group or party in order to tarnish the image of the petitioners the game is being played to falsely implicate as well as to get the petitioners arrested and to get their image tarnished as well as to deprive the petitioners of his life full of status and to deprive him of his personal liberty one way or the other and so the petitioners have come to take the protection and shelter of the court in the form of writ, order or direction sought in the petition. Learned counsel for the petitioners placed main emphasis on the contents of Annexures 1, 2 and 3 in which the learned counsel for the petitioners contended that the petitioners have neither been named nor in any manner said to have been involved and so the petitioners counsel submitted petitioners to be entitled to seek the protection of the court for their fundamental right of life and liberty. On behalf of the State it was contended that the petition is not maintainable at this stage as the petitioners have neither been arrested and further the relief sought against investigation i. e. quashing of investiga tion or man damns directing them not to investigate in pursuance of the reports Annexures 1, 2 and 3 as well as not to arrest the petitioners in pursuance thereof. The learned counsels appearing on behalf of the State have invited our attention to the provisions of Sections 154 to 173 contained in Chapter XII of the Code of Criminal Procedure under the head information to police and their power to investigate indicating the process from the stage of information of cognizable offence and investigation and contended that the first information reports having been made to the police, it is the duty of the police to investigate into cognizable offence even without obtaining sanction of the Magistrate and the court should not interfere with the investi gation. He further contended that in view of the provisions of Sections 154 and 156 the police has a statutory right and duty to investigate the cogniz able offence and, as such the petitioners are not entitled to file this petition to seek the relief claimed in the writ petition. It was further contended that investigations are disclosing and providing material which may lead to indi cate involvement or concern of the petitioners with the occurrence in question irrespective of the fact that at the stage of filing the first information report, Annexures 1, 2 and 3 those facts were not in the notice of the first informant and there is no mention of the petitioners' name in the first infor mation reports but if the facts and material coming during the course of investigation indicating the involvement or concern or may indigate reasonable suspicion of the petitioners involvement the opposite parties are entitled to apprehend and to arrest in course of investigation and he placed emphasis on Section 157 (1) of the Code of Criminal Procedure (hereinafter shall be referred to as Code) and in particular the expression to take measure of discovery and arrest offenders used in Section 157 (1) of the Code and the learned State Counsel emphasised that as the investigation are in progress it may not be in the public interest to disclose the material at this stage though the court may have a glance.