MAHESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THIS petitioner has been preferred by the petitioner Mahesh Kumar with the following prayer: (a) a writ, order or direction in the nature of certiorari to quash the order/direction dated 21.7.2010 No. 136 MM/6P -3 -2010 -15(23)F/2010 passed by Govt. of Uttar Pradesh for further investigation of Case Crime No. 615 of 2009, under section 364 -A, 120 -B IPC, P.S. Chakeri, District Kanpur Nagar. (b) a writ, order or direction in the nature of mandamus directing the respondents not to harass the petitioner to call for recording statements in pursuant of the order dated 21.7.2010. (c) a writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (d) To award the cost of the writ petition to the petitioner.

(2.) THE facts in brief of this case are that the FIR was lodged by the petitioner in case crime No. 615 of 2009 under section 364 IPC, P.S. Chakeri, District Kanpur Nagar on 10.8.2009 at 18.20 P.M. in respect of the alleged incident dated 9.8.2009 occurred at about 8.45 P.M. in which five persons namely Hanoman, Smt. Manju Devi, Shri Ram, Ram Shanker and Sandeep Tiwari were named as accused and two persons were unknown. The allegation against them was that they had kidnapped the son of the petitioner namely Nikhil Kumar aged about 4 -5 years. After lodging the FIR the investigation of this case was done by civil police and after completing the investigation the charge sheet dated 17.11.2009 was submitted by its I.O. Sri Prashant Kumar Prasad, Circle Officer. Govind Nagar, District Kanpur Nagar. The charge sheet was submitted against Hanoman @ Hanuman Singh, Shri Ram, Rama Shanker, Sandeep Tiwari, Raj Kumar Tiwari and Uday Shanker Mishra for the offence punishable under sections 364, 120 -B IPC and section 3(2)V SC/ST Act. On the charge sheet dated 17.11.2009 the learned C.M.M. Kanpur Nagar took the cognizance on 21.11.2009, thereafter on an application moved by the accused Sri Ram Kuril forwarded by Smt. Pratibha Shukla, then M.L.A. Chaubeypur, Kanpur Nagar, through letter dated 15.2.2010. The State Government took the decision to transfer the investigation of the above mentioned case to CBCID, the same was communicated to Director General CBCID, U.P. Lucknow by Sri Awadhesh Narayan, Deputy Secretary, U.P. Government by letter dated 21.7.2010. The letter dated 21.7.2010 is under challenged.

(3.) IT is contended by learned counsel for the petitioner that in the present case the investigation has been done by the police officer having the rank of Deputy S.P. and after completing the investigation the charge sheet has been submitted on which the learned C.M.M. Kanpur Nagar has taken the cognizance on 21.11.2009, thereafter on the application moved by the accused forwarded by Smt. Pratibha Shukla, then M.L.A. Chaubeypur, Kanpur Nagar, vide letter dated 15.2.2010 the State Government had taken the decision to transfer the investigation of the above mentioned case to CBCID. The investigation has been transferred at the instance of the accused under the political pressure. Even the State Government did not consider the fact that in the present case the charge sheet has already been submitted and the cognizance was taken by learned C.M.M., Kanpur Nagar. It is a case in which the Government had not passed any order for doing the further investigation on the basis of new material which required investigation. But in a routine manner the investigation as a whole has been transferred to CBCID, it amounts to re investigation of the case which is not permissible under the law. Therefore, the decision taken by the State Government transferring the investigation to CBCID is illegal and the same may be quashed.