NAHEED ARA MOONIS,J - (1.) THE present writ petition has been filed seeking a direction to Central Bureau of Investigation/C.B.C.I.D. to investigate the case in Case Crime No. 241 of 2008, under Sections 302, 218, 219, 118,119, 220, 364, 120-B I.P.C., P.S. Shergarh, district Mathura relating to the abduction and fake encounter of the petitioner's brother Pappu. Heard Sri S.V. Goswami, learned counsel for the petitioner, learned A.G.A. on behalf of the State and have gone through the entire record.
(2.) IT is contended by the learned counsel for the petitioner that the petitioner's brother Pappu was picked up by two police constables of Police Station Shergarh, district Mathura on 15.5.2006 from his house and thereafter he did not return back home. Later on the petitioner received an information that Pappu and one Akbar who belonged to State of Haryana was shot dead in a police encounter thereafter the petitioner sent a complaint to the higher officials on 16.5.2006 but the Police Station Farah in whose custody the petitioner's brother was detained has given a false report about an encounter. The said case was registered on 16.5.2006 under Section 307 I.P.C. by R.P. Singh, Station Officer of Police Station Farah, district Mathura disclosing therein that Pappu, Akbar and two other persons who had fired upon the police party had been shot dead in self-defence by the police and from their possession illegal arms, cartridges and Indica Car were recovered. A magisterial enquiry was also set up under the direction of the District Magistrate in which the petitioner has filed affidavit of himself and other witnesses that the police officials are trying to create pressure upon them in spite of it no action was taken by the Magistrate, hence a writ petition was filed by the petitioner, which was numbered as Writ Petition No.13855 of 2006 (Hakim Vs. State of U.P. and others) with a prayer to quash the first information report dated 16.5.2006 and further made a prayer that the matter be investigated by Central Bureau of Investigation against the respondents adding further to pay compensation for the murder of the innocent brother but the said writ petition was dismissed by order dated 17.12.2007 by the Division Bench of this court with a direction that the petitioner can move before the Chief Judicial Magistrate in case his first information report is not registered. The petitioner moved an application under Section 156 (3) Cr.P.C. before the Chief Judicial Magistrate and after conducting an enquiry and on the basis of the magisterial enquiry report dismissed the application under Section 156 (3) Cr.P.C. on 10.4.2008. Thereafter the petitioner preferred a revision against the said order. The revisional court allowed the revision and remanded the case to Additional Chief Judicial Magistrate to reconsider the grievance of the petitioner. After the remand the case was registered under Sections 302, 218, 219, 118,119, 220, 364, 120-B I.P.C. as Case Crime No. 241 of 2008 at Police Station Shergarh, district Mathura. During investigation the petitioner moved an application to get his statement recorded under Section 164 Cr.P.C. as the police was not doing impartial investigation in the case and was trying to protect their own officials, the petitioner and his witnesses are being harassed and are facing great hardship on account of the constant threat by the police officials. But the Chief Judicial Magistrate, Mathura rejected the aforesaid application on 25.9.2008. The petitioner has no hope that the investigation would be carried out in a fair and impartial manner, therefore, under these circumstances the investigation of the case is necessary to be enquired into and investigated by the independent agency. In this regard the learned counsel for the petitioner has relied upon the decisions of the Apex Court reported in A.I.R. 1994 SC 38 (R. S. Sodhi Vs. State of U.P. and others) and (2010) 2 SCC 200 (Rababbuddin Sheikh Vs. State of Gujrat and others) and on the strength of the twin decisions it was vehemently argued that the investigation be done by an independent agency as in the above said cases also there were fake police encounters and the high police officials were involved and the investigation had not been conducted properly by the State police, therefore, to ensure fair investigation it was transferred to Central Bureau of Investigation by the Apex Court.
(3.) IN reply to the submission of the learned counsel for the petitioner it was vehemently opposed by the learned A.G.A. appearing on the behalf of the State and has contended that this is the second writ petition praying for the same relief about transfer of investigation as in the earlier writ petition also the same prayer was made and the Hon'ble court had not granted any indulgence and rejected the petition and while rejecting the petition it was directed that the petitioner has a remedy to approach the court below by filing a complaint. Thereafter in respect of the same relief the petitioner has filed the present petition. It is also pointed out that the case, which has been registered, after investigation final report was submitted, which was forwarded to the court of Chief Judicial Magistrate, Mathura and the notice was also issued to the petitioner. The petitioner has not appeared before the court nor he has filed any protest petition against the submission of the final report, therefore, the report so submitted by the police and accepted by the Magistrate has not been challenged in any court of law and has become final, therefore, the allegations that unfair investigation has been done by the police officials and the petitioner has greatly been prejudiced is absolutely misconceived and the petition has no merit and as such it is liable to be dismissed.;