GULZAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) WE have heard Sri Sant Saran Upadhyaya, learned Counsel for the appellant and the learned Standing, Counsel for the State -respondents and also perused the order of the Hon'ble Single Judge dated 29 -9 -2005 dismissing the petitioner -appellant's Civil Misc. Writ Petition No. 63064 of 2005.

(2.) THE petitioner who, is a Sub Inspector in U.P. Police Force, was appointed in the year 1982. Since the date of his appointment till July, 2004 he has been posted from time to time at different places and particularly at Moradabad, Bijnor (Moradabad Range), Rai Bareli (Lucknow Range) and Sitapur. In July, 2004, he was transferred to Bareilly Range and was posted at Police Station Baheri. It is alleged that on account of Gram Panchayat election at Baheri there was a violent altercation between two factions resulting in lodging a FIR being Case Crime No. 616 of 2005, under Sections 147,148,149,307 and 308 I.P.C. Initially one Shambhu Dayal Chaudhary, Sub Inspector, was deputed for the investigation in the aforesaid matter but on account of pressure exerted by the sitting M.L.A. Sri Ata -Ur -Rehman the investigation was transferred to the petitioner -appellant on 4 -9 -2005. In furtherance of his official duty the petitioner -appellant conducted raid on 18 -9 -2005 and also sought permission of the Magistrate under Sections 82 and 83 of the Criminal Procedure Code for the attachment of the property of the accused absconder. The petitioner appellant further states that the prompt action taken by him in furtherance of the investigation made, respondent No. 5 and his other associates exerted political pressure upon respondent No. 3, who passed the impugned order of transfer dated 15th September, 2005 mechanically. The petitioner -appellant challenged the impugned order of transfer on the ground of mala fide, arbitrariness, non -recording of any reason in the order of transfer and actuated due to political considerations. The petitioner -appellant also submits that his children are studying and he has deposited school fees for the entire session 2005 -2006. In case he is required to join in pursuance of the impugned order of transfer, during the mid session, his family, particularly, the children shall suffer irreparable loss due to dislocation and disturbance in their study.

(3.) LEARNED Counsel for the appellant vehemently contended that the impugned order of transfer is illegal as neither any reason has been mentioned in the order of transfer nor it is in public interest but has actuated on account of mala fide of respondent No. 5. The question of mala fide has been considered by the Hon'ble Single Judge and he has found that, the allegation that Mohd. Azhar, one of the contestant in the election, was the first cousin of respondent No. 5 was factually incorrect. Evidently the allegation thus made against respondent No. 5, in order to substantiate the plea of mala fide looses, any ground to stand and has rightly been rejected by the Hon'ble Single Judge. The Hon'ble Apex Court in the case of S. Pratap Singh v. State of Punjab reported in AIR 1964 Supreme Court 72 (Paras 6 and 7) has clearly observed that the allegation of mala fide have to be substantiated very meticulously and categorically by putting cogent evidence. Heavy onus lies upon a person, who alleges mala fide against individual, to prove the allegation of mala fide.