Ram Mohan Garg v. State Of U.P And Others

G. Malviya, J.:— This petition has been filed by Shri Ram Mohan Garg claiming the relief that a writ of mandamus be issued directing the State of U.P to register a case on the basis of the complaint made by 52 persons of Qasba Kher district Aligarh to the Director General of Police, Uttar Pradesh Shasan on 22nd June, 1989 in respect of an occurrence dated 15th June, 1989. This complaint, which should have been termed as first information report, has been annexed as Annexure-3 to the petition. Yet another relief claimed by the petitioner was for the issue of a mandamus directing the C.B.I, Government of India to investigate the said offence and submit a charge sheetagainst the offenders. Initially, the petition was filed against State of U.P, District Magistrate, Aligarh, Senior Superintendent of Police/D.I.G Local, Aligarh, Shri Ghanshyam Singh, Chairman, IFFCO, 34, Nehru Palace. New Delhi and Shri Raghukul Tilak Gaur, Chairman, Nagar Palika, Khair. By an order dated 6th July, 1989, the Director General of Police, U.P and Union of India were impleaded as respondents 6 and 7 in the said petition.

2. Before the case was admitted, this Court by its order dated 30th June, 1989 deemed it proper to get the counter affidavit from the respondents concerned. The counter affidavits were consequently filed by Shri K.P Singh, Senior Sub-Inspector on 5.7.89 and yet another counter affidavit by the same Senior Sub-Inspector was filed and counter affidavits were filed, an 15.7.89, also by Shri Roshan Singh, Dy. S.P Kayamganj, district Farrukhabad, who was Circle Officer, Aligath, at the relevant point of time and by Shri Ghanshyam Singh respondent No. 4 and Shri Raghukui Tilak, respondent No. 5. Four rejoinder affidavits have also been filed. Today, this case has been put up before us for admission.

3. We have heard Shri Dinesh Dwivedi as also Shri Amar Satan, Counsel for the petitioner and Shri S.V Goswami learned Standing Counsel for State of U.P, District Magistrate, Senior Superintendent of Police, Director General of Police and Shri S.P Gupta learned counsel for the respondents 4 and 5 as also Shri Shishir Kumar for Union of India.

4. The grievance of the petitioner was that the Police itself was responsible for the persons, who had lost their lives in the incident dated 15.6.89

5. However, it is clear from a perusal of the counter affidavit of Shri K.P Singh dated 5.7.89 that in respect of the same incident crime No. 160/89 had been registered under Sections 147, 148, 149, 307, 302, 395, 397, 336 and 332 I.P.C read, with Section 25 of the Arms Act on the report being made by Shri Dilawar Singh Vishnoi, Inspector Incharge P.S Khair and investigation in the aforesaid case was being conducted by the Circle Officer, Hathras.

6. The contention of the learned counsel for the petitioner is that the version which, has given rise to Crime No. 168/89 is a concocted version whereas the version which has been given by the complaint dated 22.6.89 made to the Director General of Police contain the correct version. The contention of the learned counsel for the petitioner was that since the Police had its ??? report and had given its own version any investigation by the local police pursuant to registration of case on the basis of the first information report lodged by the Police is bound to be a tainted investigation. It was also suggested that as cross cases are always registered, a case should have been registered on the basis of the complaint dated 22.6.89 made to the Director General of Police.

7. So far as the registration of a cross case on the basis of the first information report is concerned, that does not appear to be permissible after the investigation in respect of a crime has commenced in view of the provisions of Section 162 Cr. P.C However, it was always possible that during investigation of a crime the version set up in the first information report may be found to be a false version and some, other persons really responsible to the crime may be chargesheeted after fair investigation. Hence, it was not necessary that a fresh first information report should have been registered on the basis of Annexure-3 which is a letter dated 22.6.89 to the Director General of Police in view of the provision of Section 162 Cr. P.C However it is always permissible in law for an aggrieved person to file a complaint before the competent Magistrate which can be investigated simultaneously according to the provisions of the Criminal Procedure Code.

8. So far as the second aspect of the matter is concerned that there should be an investigation by an independent agency, it has been brought to our notice by the counter affidavit dated 15.7.89 of Shri K.P Singh that the Government has set up an enquiry to be conducted in respect of the crime under the provisions of the Commission of enquiry Act by appointing Hon'ble. B.D Agarwal, retired Judge of this Court as the Chairman of the said enquiry. The terms of reference of the said enquiry are as under:

“(i) Since the Governor was satisfied that on account some persons indulging in the demolition of wall and shops on 14.6.89 within the limits of Nagar Palika Khair and on 15.6.89 within the limits of Nagar Palika, Khair there had been use of force by the administration in which the Police had to resort to firing at a violent mob and as it was unnecessary to enquiry about the facts and reasons as also the responsibilities relating to that incident, hence Shri B.D Agarwal retired Judge of the High Court, Allahabad, would constitute an enquire and submit his report after due enquiry on the following aspects:

(a) Facts concerning the above mentioned incident serial-wise including the reasons why this incident occurred;

(b) To fix the responsibility in respect of that incident of the officials as also other persons; and

(c) To enquire about the propriety etc., of the action taken by the officials for controlling the situation on the spot”.

9. It is not disputed that in pursuance of this notification, an enquiry is already going on. Sri S.V Goswami, learned Standing Counsel has also made a statement at the bar on the basis of the Case Diary also that in view of this enquiry which has been set up, the investigation, which was being conducted by the Circle Officer, Hathras, in Crime No. 168/89 as is mentioned in paragraph 4 of the counter affidavit dated 5th July, 1989 of Shri K.P Singh has been stayed by the Government. Hence we find that an enquiry is being conducted by a retired Judge of this Court. It can never even be dreamed of that the said enquiry shall not be’ an independent enquiry. Whatever be the conclusion of the, said enquiry, it is expected that the persons concerned shall be satisfied from the outcome of the report of the Commission of Enquiry. In this view of the matter, the apprehension that the enquiry should be conducted by an independent agency loses significance. The result is that so far as the first relief is concerned, that cannot be granted to the petitioner viz., lodging of a second first information report of the same incident. So far as the second relief viz., investigation by C.B.I is concerned any such prayer is premature in view of the fact that the matter is being enquired by Hon'ble B.D Agarwal, a retired Judge of this Court. Thereafter, the matter will take its own course.

10. In view of the observations made above this petition is dismissed at the admission stage, Since this petition is being dismissed, the observations made in the order dated 30.6.1989 directing the Director General of Police to register a case on the basis of the complaint dated 22.6.1989 stands vacated.

11. Petition Dismissed.