Dismissed

Shivam Keshari and Another v. State of U.P. and 5 Others

Allahabad HC3 Mar 2022HABC/1/2021

Case brief

AI extract

What is this about?

The High Court disposed of a habeas corpus petition filed for the release of a murdered petitioner. The court directed the CBI to investigate the case regarding the brutal murder and transfer of investigation from State Police. Petitions for judicial inquiry and suspension of police officers were partially addressed, with the latter left open for the State Government.

What did the court decide?

Petitioners granted relief to have investigation transferred to CBI; habeas corpus petition disposed off; question of departmental action left open.

Shivam Keshari and Another Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2022)

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(Judgment reserved on 24.03.2021) (Judgment delivered on 03.03.2022)

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Court No. - 03

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Case :- HABEAS CORPUS WRIT PETITION No. - 1 of 2021

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Petitioner :- Shivam Keshari And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ran Vijay Singh Counsel for Respondent :- G.A.,Gyan Prakash

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Shamim Ahmed,J.

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Heard Sri Ran Vijay Singh, learned counsel for the petitioners, Sri Gyan Prakash, learned Assistant Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, learned counsel for the respondent Nos.7 and 8 and Sri Manish Goyal, learned Additional Advocate General assisted by Sri A.K. Sand, learned A.G.A.-I for the respondent Nos.1 to 6.

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This writ petition has been filed by the petitioners praying for the following reliefs:-

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“(I) Issue a writ or direction in the nature of habeas corpus directing respondents to produce the petitioner no.2 (corpus) before this Hon'ble Court on such date and time as this Hon'ble Court may deem fit and proper in the circumsances of the case and also direct the respondents to release the corpus from illegal confinement.

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(1-a) Issue a writ order or direction in the nature of mandamus directing the Central Bureau of Investigation to investigate the cause of death and role of the police personals in death of Shubham Keshari (Corpus) and his friend Ravi Pandey and conclude the proceedings within stipulated period of time.

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(1-b) Issue a writ order or direction in the nature of mandamus directing that the Judicial Inquiry may be conducted under the supervision of a retired Hon'ble High Court Judge of this Hon'ble Court.

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(1-c) Issue a writ order or direction in the nature of mandamus directing the suspension of Senior Superintendent of Police, Varanasi, Station House Officer, P. S. Chowk, Varanasi, Station House Officer, P. S. Jaitpura, Varanasi, Station House Officer, P S. Pandeypur, Varanasi, Station House Officer, P. S. Crime Branch, Varanasi, from service so that the investigation, as directed by this Hon'ble Court may, not be influenced in any manner whatsoever.

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Subsequently, a detailed order dated 19.01.2021 was passed observing as under:

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“10. Copies of newspaper cutting and photographs of the dead bodies filed alongwith the supplementary affidavit as Annexure - SA-3 clearly reveals that the petitioner No.2 and Ravi Pandey have been brutally murdered and burnt and thereafter their bodies were thrown in a trench so as to hide out the identity of the persons murdered, namely, the petitioner no.2 and Ravi Pandey. It is not only surprising, but extremely shocking that despite the application of the petitioner No.1, dated 26.10.2020 and 31.12.2020, about missing of the petitioner no.2, the respondents entered the missing report in G.D. on 05.01.2021 after this Court passed an order dated 05.01.2021 in the present writ petition. Even after this Court passed the order dated 06.01.2021, no investigation or action whatsoever was taken in relation to the police Officers/local police of Police Stations Chowk, Jaitpura, Lalapur Pandeypur, District Varanasi and named persons, namely, Gaurav Nigam and Sunil Nigam.

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The respondents remained silent and neither investigated nor took any positive step to investigate the matter with respect to the persons mentioned in the application of the petitioner no.1, dated 31.12.2020 and the police personnels. The personal affidavit of respondent no.2 filed today is totally silent in this regard. Even in the short counter affidavit filed by respondent no.2, there is no whisper with respect to any investigation or action by the respondent pursuant to the application of petitioner no.1 dated 31.12.2020. In the short counter affidavit, it has been stated in the aforequoted paragraph nos. 6, 7, and 8 that one Sunil Nigam and four others have been arrested at 6:44 hours on 19.01.2021, from whose possession one motorcycle TVS Apache, bearing registration No. UP-65-AP-0725 and the motorcycle used by the deceased Subham Keshari were recovered. There is no whisper that from whose possession it was recovered. Nothing has been stated that why respondents remained silent and have not taken any action or investigated the matter pursuant to the application of the petitioner no.1, dated 31.12.2020, till the petitioner no.2 was brutally murdered and body was recovered by the police of District Mirzapur on 15.01.2021 and the investigation was transferred on 18.01.2021 to Varanasi police.

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In the light of the facts and circumstances mentioned above, the role of respondents - Varanasi police including the respondent no.2 in the matter of brutal murder of the petitioner No.2 and one Ravi Pandey, is prima faice under serious cloud. Apart from above the conduct of the respondent no.2 shows not only deliberate gross disobedience and disrespect to the orders of this court but also deliberate and intentional breach of fundamental rights granted under Article 21 of the constitution of India as well as deliberate gross dereliction in duty resulting in murder of the petitioner No.2 and one Ravi Pandey.

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Sri Sheo Kumar Pal, learned G.A. prays for and is granted two days' time to enable the respondent No.1 to file counter affidavit to the writ petition and the supplementary affidavit by means of his personal affidavit. The respondent No.2 shall also file counter affidavit by means of his personal affidavit annexing therewith postmortem report of the petitioner No.2 and Ravi Pandey. They shall file counter affidavits on or before the next date fixed failing which both the respondent No.1 and 2 shall remain personally present.”

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Subsequently, by order dated 08.02.2021, the investigation in Case Crime No.0006/2021, dated 18.01.2021, under Sections 302, 201 IPC, P.S. Kotwali, District Varanasi was transferred to Central Bureau of Investigation, observing as under:

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“24. On the facts of the present case as briefly noted in foregoing paragraphs-12 to 18 of this order and also the facts noted in the orders dated 05.01.2021, 06.01.2021, 19.01.2021 and 02.02.2021, and also in view of the nature of allegations, particularly against the State Police and lack of credibility in the investigation by it, we are of the view that to make the process of discovery of truth, credible and to have a fair, honest and complete investigation to instil confidence in the minds of the victim's family as well of the public, the State Police Authorities should not be allowed to continue with the investigation and instead the investigation in the crime case in question be transferred to the respondent No.8 (Central Bureau of Investigation) for fair, honest, impartial and complete investigation so as to promote the cause of justice. Learned Additional Advocate General for the State-respondents has also agreed for transfer of investigation from SIT to CBI as noted above in paragraph-9. Therefore, we find it a fit case to direct transfer of investigation from State Police/ SIT to CBI, i.e. the respondent No.8 and it is ordered accordingly.

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Today, when the matter was taken up, this court specifically asked the learned Additional Advocate General as to whether respondent No.1 has taken any action as per statement made before this court on 02.02.2021. The learned Additional Advocate General admitted that action has not yet been taken against any police officers in terms of the statement of the Secretary (Home) recorded in the order dated 02.02.2021, but the action to be taken is under consideration of the State Government for which procedure is being followed.

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Considering the facts and circumstances mentioned above and also no objection of the respondent No.1 for investigation by the respondent No.8, we direct the State - respondents including the SIT to forthwith transfer investigation to the respondent No.8 in First Information Report being Case Crime No.0006/2021 dated 18.01.2021 under Sections 302, 201 IPC, P.S. Kotwali District Varanasi. The respondent No.8 is directed to take up the investigation in the aforesaid FIR/ Case Crime No.006/2021 dated 18.01.2021 and complete the investigation fairly, impartially and in accordance with law, expeditiously. On the next date fixed, an affidavit on behalf of the respondent No.8 shall be filed indicating that the investigation in the above matter has been started by it. Thus, relief No.(1-a) stands granted.

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So far as the relief No.(1-b) is concerned, presently we do not find any good reason to issue directions for judicial inquiry in the light of the grant of relief No.(1-a).

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So far as the relief No.(1-c) is concerned, we abstain from issuing any order in exercise of powers under Article 226 of the Constitution of India in view of the assurance of the Home Secretary, Government of U.P. noted in the aforequoted order dated 02.02.2021.

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Question left open :-

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Whether rule of law should prevail and fundamental rights guaranteed to people under Articles 14 and 21 of the Constitution of India should be observed or deliberate inaction, misconduct and dereliction in duty of officers, if any, should be excused or protected, is an important question before the State Government under the facts and circumstances of the present case. Keeping in mind the statement of the Home Secretary noticed in the aforequoted order dated 02.02.2021 and the observations of the Hon'ble Supreme Court in Mohd. Haroon and others vs. Union of India and another14, (para-129), that "the officers responsible for maintaining law and order, if found negligent, should be brought under the ambit of law irrespective of their status ," we presently leave this question open to the wisdom of the State Government for proceeding departmentally against erring officers strictly in accordance with law.”

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The corpus has been murdered and the investigation was entrusted to the C.B.I. Since the matter has been investigated by the C.B.I. Now, no cause of action survives in the present habeas corpus writ petition.

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Under the circumstances, the habeas corpus writ petition is disposed off . The question as mentioned in paragraph-29 of the order dated 08.02.2021 is left open and we leave it to the State Government for appropriate action in the light of the detailed facts and observations made in the orders dated 19.01.2021 and 08.02.2021.

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Order Date :- 03.03.2022 NLY

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Digitally signed by NAND LAL YADAV Date: 2022.03.03 15:58:41 IST Reason: Location: High Court of Judicature at Allahabad

Shivam Keshari and Another v. State of U.P. and 5 Others

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Shivam Keshari and Another v. State of U.P. and 5 Others

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