Altamas Kabir, J.— 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 24-6-2005. 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.
2. 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 the Chief Judicial Magistrate, Pratapgarh, wherein Brijesh Mishra was shown to be an absconder. On 24-8-2005, the learned Magistrate took cognizance of the case and issued non-bailable warrant against the said Brijesh Mishra, which apparently was never executed.
3. On 15-9-2005, the said Brijesh Mishra, who has been made Respondent 2 herein, applied to the State Government for transfer of investigation from the local police to CB CID, but the same was rejected by the Principal Home Secretary on 15-9-2005. However, on a writ petition filed by the said Respondent 2, Brijesh Mishra, being WP No. 4411 of 2005, the High Court gave a direction to CB CID on 29-11-2005 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.
4. On 14-3-2008, the petitioner questioned the investigation conducted by Shri Sunil Kumar Saxena, Additional SP, CB CID, Kanpur Division, alleging that he was influencing the prosecution witnesses to change their statements in favour of the accused persons.
5. Ultimately, the said Sunil Kumar Saxena submitted his final report on 14-3-2008, indicating that there were differences in the charge-sheet which had been filed by the local police and the investigation conducted by CB CID and requested that appropriate action be taken on account of the differences between the two reports.
6. Subsequent thereto, on 22-8-2008, the Legal Remembrancer wrote to the District Magistrate, Pratapgarh regarding withdrawal of eight cases against Respondent 2 which had been listed in his letter. Within a span of six days of the said letter being sent, on 28-8-2008, 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 29-8-2008, the Assistant Public Prosecutor moved an application before the Magistrate under Section 321 CrPC 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 12-12-2008.
7. The 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.
8. As against the above, Mr Altaf Ahmed, learned Senior Advocate appearing for Respondent 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.
9. The learned counsel submitted that deliberate misstatements had been made to show Respondent 2 in a bad light. Although the arrest of Respondent 2 had been stayed by the High Court by its order dated 9-9-2005 in Writ Petition No. 4411 of 2005 filed by the said respondent, which order is still in force, it had been made to appear that Respondent 2 was avoiding arrest and was an absconder. The learned counsel incidentally submitted that the aforesaid writ petition had been filed by Respondent 2 for the investigation to be transferred to CBI so that the truth of the allegations could be verified. The learned counsel submitted that the High Court, in fact, by its order dated 18-8-2005 directed Respondent 2 to approach the State Government for transfer of the case to CB CID and for police protection. It was submitted that Respondent 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.
10. The learned counsel further urged that Respondent 2 was an MLA of the Bahujan Samaj Party at the relevant time, and hence, no use of political clout could be said to have been used by Respondent 2 in preventing his arrest in connection with the case. In fact, the party to which Respondent 2 belonged came to power in Uttar Pradesh only on 11-5-2007, almost two years after the commission of the alleged offence.
11. It was then submitted that as far as the application made on behalf of the State Government on 29-8-2008 under Section 321 CrPC for withdrawing Case No. 119 of 2005 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.
12. 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.
13. 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 Respondent 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 Respondent 2.
14. 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 Respondent 2. On the other hand, upon a fair investigation undertaken by two separate agencies, which included CB CID, it had been found that Respondent 2 was not in any way connected with the alleged incident of 24-6-2005. 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 CB CID, and the transfer petition was, therefore, liable to be dismissed.
15. We have carefully considered the submissions made on behalf of the respective parties. While the arrest of Respondent 2 may have been stayed by the High Court, the circumstances in which the incident had occurred on 24-6-2005 coupled with the fact that Respondent 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 Respondent 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.
16. 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.
17. The transfer petition is, therefore, allowed in the aforesaid terms. There will be no order as to costs.