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Reserved

Criminal Misc (Public Interest Litigation) Writ

Petition No 21847 of 2010

Tabrez Ahmad Civil Judge (JD)..................Petitioner

Versus

State of U.P and others...........................Respondents

Hon. Imtiyaz Murtaza, J.

Hon. Shri Kant Tripathi, J.

(Delivered by Hon. Imtiyaz Murtaza, J.)

Present matter has its genesis in the report dated 30th

Nov 2010 scripted by the District Judge shortlisting the events

leading to registration of FIR against the petitioner. The report

of the Distt Judge is accompanied with various papers including

the application of the Petitioner.

The entire papers including application of the petitioner

were placed before Hon. the Chief justice on which the Bench

consisting of Hon. the Chief Justice and Hon. Vineet Saran, J.

took suo motu notice vide order dated 1.12.2010 and directed

the matter to be treated as Public Interest Litigation. The

learned Standing counsel was also directed to file counter

affidavit in the matter and in the meanwhile criminal

proceeding launched against the petitioner pursuant to FIR

dated 16.11.2010 was stayed till further orders by this Court.

In the said order, the District Magistrate and Supdt of Police

Bijnor were also directed to file affidavit.

Neutral Citation No. - 2011:AHC:178169-DB

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On administrative side, it would appear, Hon. the Chief

Justice passed the order dated 24.11.2010 for posting of the

case before the Bench dealing with Criminal P.I.L. It is in this

backdrop that the case has come up before us.

We have heard Sri S.G Hasnain learned Additional

Advocate General appearing for the District Magistrate and

Supdt of Police and perused the materials on record.

From a scrutiny of the papers on record, the sequence of

events are thus. On 16.11.2010, in an accident, two boys

riding bicycle were hit by a speeding Tanker and were crushed

to death under the wheels of the offending vehicle. According

to the copy of the complaint addressed to Supdt of Police,

Bijnor bearing thumb impression of one Sunil, father of the

deceased boys, on the fateful day at about 5.30 pm, the

offending Tanker bearing Registration No UP 12 C 0927, hit the

deceased who were on bicycle, in front of Chaudhary

Restaurant in village Bhaguwala and one of the boys died

instantaneously while the other breathed last on way to

hospital. It is further mentioned that the accident was

witnessed by a number of people including Farman, Sukhveer,

Bijendra, who noted down the registration number of tanker on

the spot. It is further mentioned that after hitting the

deceased, the tanker sped away from the place of occurrence.

It is further mentioned that at about 10 pm the complainant

accompanied with other village people reached the police

station for lodging the report. It is further mentioned in the

report that the complainant at that time was much distraught

and taking advantage of his distraught condition, someone

obtained his thumb impression on a typed paper

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misrepresenting to him that it was a memorandum for handing

over the bodies of the deceased to him. Thereafter, it is further

mentioned, he got busy in the performance of funeral rites of

the deceased and in that connection, he went to Haridwar. On

return from Haridwar on 18.11.2010, when he went to the

police station he was apprised that FIR had already been

lodged. It is further mentioned that he had not given any

written report at that time and he was giving the report now

with the request that the police station concerned be directed

to register the case forthwith on the basis of this written

report. The complainant's report dated 18.11.2010 addressed

to the Dy. Supdt of Police Najibabad was scribed by one Pankaj

Kumar son of Jai Pal resident of village Shadipur. To the similar

effect is the affidavit sworn in by Sunil addressed to the

Superintendent of Police. The Distt Judge has also enclosed a

copy of news report in which referring to the statement of C.O.

Jairaj Singh, it is reported that the offending tanker involved in

the accident was intercepted and that the Driver of Tanker

namely Goldee had confessed to the accident in which two boys

lost their lives.

The report submitted by the petitioner addressed to

Registrar General of this Court mentions that in connection with

a case in which the Distt Magistrate had showed disrespect to

the Court, he had made a reference on 5.6.2010 to the High

Court for initiating contempt proceeding against the Distt

Magistrate. Citing second instance, it is mentioned that on

16.6.2010, one Hon Judge of Punjab and Haryana High Court

had paid a visit to Najibabad and despite prior information, the

District Administration Bijnor neither extended any protocol nor

permitted the Supdt of Police Bijnor to make requisite

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arrangement for the visiting Judge. Disgruntled with the

arrangement, a communication was sent to Chief Secretary U.P

by the Punjab and Haryana High Court. The third instance cited

by the petitioner is that on the above counts, the District

Magistrate was annoyed so much so that he directed Supdt of

Police to withdraw security personnel provided to the petitioner.

Lastly it is submitted that the Distt Magistrate was on the look

out for an opportunity to give befitting reply to the petitioner

and in furtherance of his intention he was also conniving with

local politicians and the accident in which FIR has been lodged

against him, came as a handy tool to the Distt Magistrate who

contrived and managed to lodge the FIR naming the petitioner

with the active connivance of the local BSP politicians. The

officer has also referred to the news report published in news

paper Dainik Jagran which is to the effect that two adolescent

boys were crushed under the wheels of a speeding Tanker near

a curve of village Baghuwala and leaving a dozen people

injured. The news report dated 17th Nov 2010 substantiates

the report of the complainant that two persons riding the cycle

were hit by the speeding tanker out of which one expired on

the spot while the other succumbed to injuries on way to

hospital. It is further mentioned in the news report that the

police had intercepted the tanker. At 3 pm on 8.12.2010, when

the case was again called out, the learned Additional Advocate

General brought on record the affidavits sworn in by the

District Magistrate Bijnor and Supdt. of Police in compliance

with the order dated 1.12.2010. The District Magistrate also

appeared in court in compliance of the order of the Court. The

Additional Advocate General tried to defend the respondents

and he repudiated any role of the District Magistrate in the

matter. In his affidavit, the District Magistrate has denied the

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allegations that he had shown any disrespect to the Court and

on this count he merely stated that he had replied to the show

cause notice issued by the court at Najibabad. In connection

with the allegation that requisite arrangement was not made on

the visit of Hon. Alok Kumar Singh, Judge, Punjab and Haryana

High Court, he stated that he had issued instructions to the

Supdt of Police and also to the Sub Divisional Magistrate

Najibabad. He further stated that upon being called upon to

explain by the State Govt, he had called for explanation of the

Sub Divisional Magistrate and the said Magistrate gave his

explanation stating that Police Escort was provided which

remained till the stay of his Lordship. He also enumerated

other arrangements made in connection with the visit of Hon

Judge as aforesaid. As regards withdrawal of security provided

to the petitioner, it is stated that during Panchayat election, the

security was withdrawn but it has been restored. He denied any

role in the registration of the FIR. He merely stated that the

FIR was lodged on the basis of report of one Sunil Kumar

attended with the statement that he made a note that further

action in the matter would be taken after appropriate

permission from the District Judge. The deponent has also

referred to the application and affidavit of one Babu in which he

claimed himself to be one of the witnesses of occurrence. It is

stated in the application that the petitioner was driving the

Santro car and he hit the deceased as a result of which the

deceased died on the spot. It would thus transpire that

impliedly, the Distt Magistrate was propping up the case

against the Judicial officer. It is also worth noticing at this stage

that the aforesaid Babu claims himself to be an eye witness of

the occurrence while the fact remains that in the application

made by the complainant before the Supdt of Police, Babu has

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not been mentioned as one of the ocular witnesses. Even in the

C.D prepared by Local TV Channel 200, mention of which shall

be made in the later part of this order, no person of the name

of Babu came forward and claimed to have witnessed the

occurrence. The affidavit filed by the Supdt of Police is

reiteration of what is stated in the affidavit filed by the District

Magistrate Bijnor. Another evidence on record of great

significance is the C.D. This C.D is a recording of a local

channel namely, "T.V. 200". This channel, it would appear, has

recorded the version of local people at the site of accident. It

brooks no dispute that the accident took place in front of

Chaudhary Restaurant. One Kuljeet Singh son of Preetam Singh

who claimed to be the owner of the said Restaurant, was the

first person interviewed by the aforesaid Channel. He gave

version to the aforesaid electronic media to the effect that at

the time of accident, he was sitting at cash counter. He heard a

loud noise upon which he was attracted to the site from where

the noise emanated. He saw that a Tanker had crushed two

cycle borne boys. While aforesaid Kuljeet Singh was being

interviewed, he was seen flanked by a sub inspector. He also

stated that a car with blue light affixed at the top was also seen

by him standing at the other side of the road from which Driver

alighted and he came to the restaurant and after purchasing

two water bottle, the car left for onward journey. The Sub

Inspector was heard saying that the channel should not record

his video and saying this, the Sub Inspector site-stepped.

Another person whom the Channel interviewed is one Farman

Ahmad. This witness stated that at the time of accident, he was

standing nearby and he saw that a tanker which was coming

from the opposite side hit the cycle born boys who came under

the wheel of the tanker. He immediately made a call to a

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constable namely Ajeet Singh informing him about the

accident. Thereafter, the channel showed the tanker standing

bearing Registration No UP 12 C-0927. Complainant Sunil is

also shown in the recording by the aforesaid T.V. Channel. He

has reiterated his version as contained in the application

referred to above which is to the effect that he was unlettered

and after the accident, someone put forth before him a typed

application misrepresenting that it was a memorandum for

entrusting the bodies to him and he affixed his thumb

impression without further asking about the contents of the

typed letter. During interview, he prayed that the FIR be

recorded afresh on the basis of the application which he has

given. Be that as it may, the earlier Bench has already taken

suo motu notice of the PIL. From the facts on record, it would

transpire that the Santro car mentioned in the F I R which is

stated to be involved in the accident has been disowned by the

petitioner and it is stated that the said car is not even remotely

connected with him and he had never used the said car for any

purpose and he has also denied to have travelled in the car at

all or to have been on the wheels of the said car at the time of

accident. He has also denied to have known the owner of the

car. From the news papers report, it is clearly indicated that it

was tanker which was involved in the accident. The subsequent

report of the complainant addressed to Superintendent of

Police also substantiates the news report that it was tanker

which was involved in the accident. The news report is also to

the effect that Driver of the Tanker namely Goldee was taken

into custody and he confessed to be driving the Tanker which

hit the boys. It was also stated that the Tanker and the driver

were taken into custody.

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We have also considered the sequence of events

mentioned by the petitioner leading to lodging of FIR

nominating him as the offender in the accident and also the

fact that the petitioner had already made reference against the

District Magistrate for initiating contempt proceeding for

showing disrespect to the dignity of the Court.

The disquieting aspect is that if the news reports and

contents of CD are to be believed, the role played by the police

particularly the Station officer is most hideous in initially taking

into the custody the Tanker and also the Driver and

subsequently, managing to lend a different colour to the entire

matter. The Tanker with Registration number is shown in the TV

Channel. In the news reports the name of the Driver has been

given as Goldee. What happened to the Tanker and the Driver,

if the accident is believed to have been caused by the Tanker,

was a matter which in our considered view, required thorough

investigation/enquiry and it was in this light that the Special

Officer (Vigilance) of this Court, a Senior Higher Judicial

Service officer of the rank of District Judge, was entrusted with

the enquiry into the matter directing him to submit his report

within 10 days to this Court. In the application of the petitioner

dated 24.11.2010 which has been annexed by the District

Judge Bijnor alongwith his letter referred to supra, it has been

stated in para 1 that Mr A.B Rajmauli, the District Magistrate,

has no respect for judiciary and he has committed contempt of

the court for which a reference has been made to Hon High

Court on 5.6.2010. Photo copy of reference has been annexed

as Annexure 1 to the application. In Annexure-1, which is a

letter addressed to Registrar General through District Judge

Bijnor, it has been stated that on 18.5.2010 while the court was

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busy hearing arguments in PA case no 07 of 2008 Prem Bala v

Hari Ram, the proceeding of the court was disrupted and came

to a halt on account of blaring of hooter fixed on the

Ambassador Car of the Distt Magistrate Bijnor. It is further

stated that plying of four wheelers through campus was

prohibited due to campus being crowded with litigant public

and lawyers. The above facts were noted by the officer in the

order sheet of PA case No 7 of 2008. The aforesaid vehicle

again passed through the campus of the court at 1.20 pm

blaring hooter at its top and this misfeasance, it is reported,

was repeated by the Distt Magistrate with intention to lower

down the dignity of the courts in the estimation of public at

large notwithstanding the fact that there was separate road

which could be used by the District Magistrate for passage of

the vehicle. It is further mentioned that a show cause notice

was issued but he did not show cause. It is also mentioned that

the hooter was used by the District Magistrate despite its

prohibition as contained in the order of the Division Bench in

W.P No 3648 (M/B) 2006 decided on 16th Dec 2006 and

consequent GO issued by the Government vide GO No

1284/30.4.2007/35P/77 dated July 18, 2007.

A Judge or Magistrate has a duty to discharge his judicial

functions in the interest of justice. The courts cannot be

intimidated or run on dictate of any one except on the own

conscience of the presiding officer. The power of the High Court

of superintendence and control over the subordinate judiciary

under Article 235 of the Constitution includes within its ambit

the duty to protect members of the subordinate courts. On

consideration of the above facts relating to the incident of

blaring of hooter as mentioned above, we have given our

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anxious considerations to the facts, it was held that it ex-facie

crystallized that the ingredients of section 2 (C ) of the

Contempt of Courts Act, 1971 were disclosed. However, the

contempt proceedings were separated from the P.I.L and the

matter was referred to Hon Chief Justice for nominating

appropriate Bench for the purpose.

As stated supra, in this matter, a vigilance probe was

ordered by the Court vide order of the Court dated 9.12.2010.

Sri V.P.Pathak, Special Officer (Vigilance) of this Court who was

actively assisted by Sri Mohd Salim, Joint Registrar of this

Court took over the probe and submitted the report dated

3.1.2011 to this Court in sealed cover on 5.1.2011. A copy of

the vigilance report was ordered to be supplied to Sri

U.N.Sharma Advocate appearing for the District Magistrate

Bijnor besides making available a copy of the report to the

Government Advocate. The counsel appearing for both sides

were heard at prolix length on various dates and ultimately, the

judgment in the case was reserved on 25.1.2011.

The Special Officer (Vigilance) examined in all 22 persons

which are EW 1 Sri Kuljeet Singh Proprietor of Chaudhary

Rstaurant situated at Bhaguwala Police Station Mandawali

District Bijnor, E.W 2 Sri Farman Ahmad, Co-proprietor of

Chaudhary Restaurant as aforesaid, E.W 3 Smt Prabha ,

mother of the deceased Nitin, E.W 4, Smt Parwati, mother of

the deceased Vikas, E.W 5, Sri Rajiv Kumar, Process Server

posted in outlying Court Najibabad, District Bijnor, E.W 6 Sri

Idramani Verma, Station officer PS Mandawali Dsitrict Bijnor,

E.W 7 Sri Yashovardhan Misra, Advocate, President Bar

Association, Najibabad, District Bijnor, E.W 8 Sri Dharmendra

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Yadav, Advocate Secretary Bar Association Najibabad District

Bijnor, E.W 9, Sri Arun Kumar Sharma, Advocate practising at

Najibabad Dsitrict Bijnor, E.W 10 Sri Abrar Alam, aDvocate

practising at Najibabad District Bijnor and a native of

Bhaguwala village PS Mandawali District Bijnor, E.W 11, Sri

Sunil, the complainant and father of the deceased Nitin, E.W 12

Sri Tirath Ram Singh, Reader posted in the court of Civil Judge

(J.D) Najibabad District Bijnor, EW 13 Sri Pramod Kumar,

Orderly, posted in the outlying court, E.W 14, Sri Manoj Kumar

office Peon posted in the outlying court, E.W 15 Sri Shivanand

Rai, Press Reporter of Dainik Jagran News paper, E.W 16, Sri

Aijaz Ahmad, Press reporter of Amar Ujala Daily News Paper,

E.W 17, Sri Neeraj Sharma Press Reporter of Daily Hindustan

News paper, EW 18, Sri Altaf Husain, Press Reporter of Local TV

Channel TV-100, EW 19 Sri Ajit Singh constable posted at

police outpost Bhaguwala PS Mandawali District Bijnor, E.W 20

Sri Sonu Uncle of deceased Nitin and Vikas, EW 21, Sri Babu

father of deceased Vikas and EW 22 Sri Peetam Singh Advocate

a native of Mandawali Distt Bijnor.

EW 1 Kuljeet Singh, proprietor of the Restaurant in front

of which the accident took place stuck to his version that it was

tanker which caused the accident resulting in death of two

minor boys. He also stated that after hitting the cycle on which

the boys were riding the driver of the tanker took the vehicle in

reverse gear and then sped away. He also stated that Santro

Car displaying blinking light tried to chase the tanker but could

not do so.

EW 2 Farman Ahmad co-proprietory of Chaudhary

Restaurant substantiated the version of EW 1.

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EW 3, Smt Prabha mother of the deceased Nitin stated

that it was a car fitted with blue light which caused the

accident. She also stated that at that time, she was on foot

alongwith her sister in law and saw the accident.

EW 4 Smt Parwati mother of deceased Vikas stated that

on that day she alongwith Prabha her sister in law was coming

on a tempo after making purchases from the market. By the

time she reached the scene of occurrence, the accident had

already taken place. She was informed by the gathering there

that the accident was caused by a Santro car which belonged

to a Judge.

EW 6 is Indramani Verma, station officer PS Mandawali.

He stated before the Special Officer (Vigilance) that

immediately after information, he rushed to the scene of

occurrence and when he reached, he was informed by the

gathering that the boys were hit by a tanker. Thereafter,

crowed swelled and people began naming Tabrez Ahmad who

had caused the accident. He also stated that he was handed

over a typed report which he clearly stated was got typed from

outside. He also stated that the crowd was exerting pressure to

register the case against Sri Tabrez Ahmad. Since he was not

present at the station, he instructed SI present there to

register the case on the basis of written report.

EW 7 is President of the Local Bar Association. His

statement is based on hearsay. What he stated is that he heard

from people that the accident was caused by Santro Car

displaying blue light. He spoke about intimate friendship

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between Abrar Ahmad and Tabrez Ahmad. He also stated that

Tabrez Ahmad did not enjoy good reputation.

EW 8, is Sri Dharmendra Yadav Advocate, Secretary Local

Bar Association. He stated that he happened to be at the place

of occurrence on being called by Advocate Mohd Hanif who was

present at the police station in connection with loss of his purse

containing Rs 22000/- which it is further stated, he had

inadvertently left in a truck from which he alighted near Police

Station Mandwali. He also stated that when reached police

station Mandwali with Arun Sharma Advocate, he saw

assemblage of 100-150 people and at that time local MLA Sri

Sheeshram Singh was also present. These persons were

exerting pressure on the Station officer to lodge the FIR

naming Tabrez Ahmad. He also stated that at that time, the

Station officer was telling them that the Tanker which had

caused the accident had been taken into custody and was

standing and how could he register the case naming a judicial

officer. He also stated that in the meanwhile the district

authorities also came at the police station and directed the

station officer to register the case naming the judicial officer.

EW 9 Arun Kumar Sharma also supported the version of

EW 8 stating that the FIR naming Tabrez Ahmad had been

lodged under pressure from District Authorities.

EW 10 Abrar Alam stated that he had come back from

Dehradun at 11 pm and next day he received a call from circle

officer Najibabad who informed him about the accident. This

witness narrated details about his enmity with Local MLA and

Asif. He also stated that the entire fuss was created by Asif who

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beguiled the gathering that the accident had been caused by

the Santro car displaying blue light.

EW 11 is Sunil father of deceased Nitin. According to him

when he reached at the scene of occurrence, he was told by

the persons present there that the accident crushing the two

children was caused by Santro car displaying blue light. He

stated that he did not seen any tanker detained at the police

station. He however stated that a person said to be driver of

the Tanker was lodged in the police lock up. He detracted from

his earlier version given before the TV Channel and also from

the contents of the affidavit filed by him stating that he gave

the said statement before local TV channel under duress from

certain lawyers.

EW 12 Tirath Ram Singh who was posted as Reader in the

outlying Court stated that on that day, Sri Tabrez was present

in Chamber upto 5.30 pm and he had left for his home town

after 5.30 pm to celebrate Festival of Idul Zuha.

EW 13 is Pramod Kumar who was serving as orderly to Sri

Tabrez Ahmad. He stated that the officer owed Alto Car bearing

registration no 3355. He denied any proximity of Abrar Ahmad

with Tabrez. He also stated that Sri Tabrez left for his home

town namely village Sultanpur in district Haridwar on

16.11.2010 at about 5.30 pm. He denied that the officer owned

any other car.

EW 14 is Manoj Kumar who was the office peon. He also

supported the version of EW 13. He too denied any proximity of

the officer/petitioner with any of the lawyers.

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EW 15 is Sivanand Rai Press reporter of Dainik Jagran. He

produced the news item published in news paper dated

17.11.2010 and 18.11.2010. He substantiated the news

published in the newspapers which was to the effect that it was

the Tanker which crushed the two boys and that the Tanker was

seized by the police. He stated that the news was published on

the basis of feed back supplied by the local correspondent and

through the police. He also stated that according to the report

received by him the bodies of the deceased could not be

identified upto 8.30 pm on 16.11.2010. He also stated that the

accident was caused by tanker which was chased and taken

into custody by the police and was detained at the police

station. He also stated that according to the report received by

him, the cleaner had confessed to accident. He also stated that

the news was published independently without any pressure.

EW 16 is Aijaz Ahmad press reporter of Amar Ujala. He

stated that according to the report received by him the

accident was caused by Tanker and the Tanker was seized and

Driver of the tanker was also arrested by the police. This news

report was published on the basis of statement of Circle officer.

He also attested to the news report that the two children who

were killed in the accident could not be identified till the last

report. He also stated that police sent information to various

nearby villages for identification of children but identification

could not be done till then.

EW 17 is Niraj Sharma news reporter of Hindustan Daily

Newspaper. According to the witness, the news report was

based on the basis of GD entry. The news also mentioned that

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driver of the Tanker was also taken into custody after finding

him responsible for the accident.

EW 18 Altaf Husain is news reporter of Local TV Channel

TV 100. He stated that the accident was caused by Tanker on

16.11.2010 and he prepared the Video recording and news

without any extrinsic pressure. The news channel showed clips

of offending Tanker and also of jeep of Circle officer standing in

the premises of the police station. He also showed ocular

account of witnesses present at the site of accident including

the proprietor of Chaudhary Restaurant where the accident

took place.

The Special Officer (Vigilance) sought information about

the Car bearing registration No UA 08K-0749 which is alleged

to be a Santro Car belonging to Sri Tabrez Ahmad. From the

information received from the ARTO (Administration) Bijnor, the

said vehicle was a Tata S a goods carrier vehicle and it was

owned by Rajveer son of Sri Mangat Singh resident of village

Khedli Post Bahadarabad District Haridwar.

The conclusions drawn by the Special Officer (Vigilance)

are excerpted below.

1. That the complainant Sri Sunil , his brother Babu and

Sonu and their Ladies Smt Prabha and Smt Parwati were

not present on the spot at the time of accident, though

they have claimed to be the eye witnesses.

2. That the accident was caused by the Tanker No UP 12

C 0927, which was also detained by the police

immediately after the accident and was kept standing at

the police station Mandawali for ten days and it was

released on 26.11.2010 to Sri Pawan Kumar and Onkar

after technical inspection by HCMT on 26.11.2010. The

Driver/Cleaner Goldi Kumar was also arrested and

detained at the police station Mandawali and was

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interrogated but his interrogation is not recorded in

writing by the Station officer.

3. That the presence of Sri Tabrez Ahmad, Civil Judge (Jr

Div) Najibabad is found on the spot and his car was

standing there. He has also informed the Station officer,

Mandawali, Sri Indramani Verma on telephone that the

accident was caused by the Tanker and two boys were

crushed. It is not found that the accident was caused by

his car.

4. That the FIR was not got typed by the complainant,

Sri Sunil and was got typed by some other persons and

only his thumb impression was taken on the said FIR.

According to the complainant, Sri Sunil, his FIR was

lodged at 3.00 pm on the next day i.e 17.11.2010,

whereas, the FIR has been shown to have been

registered at the police station, Mandawali on

16.11.2010 at 8.10 pm. According to the Station officer,

Sri Indramani Verma, the inquest was started at 18.10

(6.10 pm) on 16.11.2010 whereas according to Police

record, the F.I.R itself has been lodged at 8.10 p.m. The

mentioning of crime number and sections on the inquest

reports shows that there was a great manipulation in the

Police papers and in lodging the FIR.

5. That the presence of Administrative Officers including

A.D.M Additional Superintendent of Police, Bijnor and the

local M.L.A Sri Sheeshram Singh etc is found at the

police Stanton, Mandawali. Therefore, lodging of FIR out

of pressure of District Administration and Local

Politicians cannot be ruled out.

6. That according to the report of A.R.T.O

(Administration), Bijnor, the number of vehicle shown in

the FIR UA 08 K-0749 was found to be the registration

number of a vehicle Tata-S which is a mini goods

vehicle. The said number is not found to be the number

of a car.

7. That contents of Cassette (CD) available on record,

have been proved by Sri Altaf Husain, EW 18, the

reporter of TV Channel TV 100. According to the said

recording also, it is found that the said accident was

caused by Tanker No UP 12-C, 0927 which was standing

at Police Station, Mandawali.

Now the question arises whether we should act upon the

vigilance report submitted in pursuance of the order of this

Court or we should direct for further probe by an independent

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agency or by the local police.

In Delhi Judicial Service Ass, V State of Gujarat (1991) 4

SCC, the Apex Court observed that the Chief Judicial Magistrate

is head of the Magistracy in the district who administers justice

to ensure, protect and safeguard the rights of citizens. The

subordinate courts at the district level cater to the need of the

masses in administering justice at the base level. By and large

the majority of the people get their disputes adjudicated in

subordinate courts, it is, in the general interest of the

community that the authority of subordinate courts is

protected. If the CJM is led into trap by unscrupulous police

officers and if he is assaulted, handcuffed and roped the public

is found to lose faith in courts, which would be destructive of

basic structure of an ordered society. If this is permitted Rule

of Law shall be supplanted by Police Raj. the Apex Court further

observed that viewed in this perspective the incident is not a

case of physical assault on an individual judicial officer instead

it is an onslaught on the institution of the judiciary itself. The

incident is a clear interference with the administration of

justice, lowering its judicial authority. Its effect was not

confined to one district or State, it had a tendency to effect the

entire judiciary in the country. The incident highlights a

dangerous trend that if the police is annoyed with the orders of

a presiding officer of a court, he would be arrested on flimsy

manufactured charges, to humiliate him publicly as has been

done in the instant case......"

In the instant case, as stated supra, it would crystallize

that the District Magistrate was annoyed with the petitioner as

he had made a reference to the High Court to initiate contempt

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proceedings. The District Magistrate had also faced

departmental rebuff for ignoring the protocol of a visiting

dignitary i.e Judge of Punjab and Haryana High Court and the

Punjab and Haryana High Court having viewed the matter

seriously, took serious objection to the conduct of the District

Magistrate and had sought clarifications from the State Chief

Secretary.

From the finding of the Special Officer (Vigilance), it

leaves no manner of doubt that the Car number disclosed in

the FIR was the registration number of a mini truck and that

the officer did not own any Santro Car and that he had an Altro

Car bearing different registration number. The other

conclusions drawn by the Special Officer (Vigilance) are (1) The

presence of Tanker at the Police Station after it was seized for

causing the accident, (2) own admission of the SHO and Circle

officer that Tanker was involved and Driver of the Tanker had

been taken into custody, (3) the own admission of the

complainant itself that he had seen the Driver in the lock up

and also the tanker standing at the police station, (4) the

presence of Tanker at the Police Station as shown by the Local

Channel and various news reports, (5) the presence of district

authorities at the police station with local MLA and (6) also the

circumstance of typed report being submitted at the police

station for lodging the FIR and also taking into reckoning the

two instances cited by the Special Officer (Vigilance) as

discussed above, did indicate that a false case has been foisted

upon the Judicial officer at the behest of the District

Administration.

In the case involving Chief Judicial Magistrate Nadiad in

20

Gujarat the Apex Court had instituted enquiry which was

conducted by a sitting High Court Judge and on that basis, the

Apex Court quashed the criminal proceeding initiated against

the Judicial Officer followed by initiation of contempt

proceeding against the erring police officers.

In the light of the above facts and circumstances, and

also considering the finding recorded by the Special Officer

(Vigilance), we are of the view that the FIR lodged vide case

crime No 220 of 2010 at the police station Mandawali, District

Bijnor against the petitioner, being a sheer concoction based on

malafides, cannot be sustained and is accordingly quashed.

Now it remains to be seen whether the case should be

given quietus or it should be allowed to be investigated afresh

on the basis of facts disclosed in the complainant's report dated

18.11.2010 given to Dy. S.P. Najibabad and also on the basis of

the facts found by the Special officer Vigilance. The conclusion

drawn by the Special officer Vigilance is that the accident was

caused by Tanker and it was seized and that its driver was also

arrested. From the various reports like statements of the

witnesses and also news reports and also the statement of the

SHO and the Circle officer Police, the finding of the Special

Officer (Vigilance) receives reinforcement that the judicial

officer or its car was not involved in the accident. Therefore,

the further investigation should be in the light of the

complainant's report dated 18.11.2010 and the conclusions

drawn by the Special Officer (Vigilance).

At this stage, we have to consider whether the

investigation should be allowed to be conducted by the local

21

police or it should be entrusted to CBI. For entrusting

investigation to the CBI, there should be exceptional

circumstances.

Therefore, we have to see as to whether this case

constitutes exceptional circumstances warranting further probe

to the extent of unfolding the role played by the District

Administration in falsely involving the Judicial officer

particularly the role of the District Magistrate Bijnor against

whom serious allegations have been made by the petitioner. In

this connection, what is the view articulated by the Apex Court

in its various decisions. On this question, our attention falls on

the ex-cathedra decision of the Apex Court in State of West

Bengal v Committee for Protection of Democratic Rights (2010)

3 SCC 571. The para 70 of the said decision being germane, is

excerpted below.

"Before parting with the case, we deem it necessary to

emphasize that despite wide powers conferred by

Articles 32 and 226 of the Constitution, while passing

any order, the courts must bear in mind certain self

imposed limitations on the exercise of these

constitutional powers . The very plenitude of the power

under the said articles requires great caution in its

exercise. In so far as the question of issuing a direction

to CBI to conduct investigation in a case is concerned,

although no inflexible guidelines can be laid down to

decide whether or not such power should be exercised

but time and again it has been reiterated that such an

order is not to be passed as a matter of routine or

merely because a party has levelled some allegations

against the local police. This extraordinary power must

be exercised sparingly, cautiously and in exceptional

situations where it becomes necessary to provide

credibility and instill confidence in investigations or

where the incident may have national and international

ramifications or where such an order may be necessa4y

for doing complete justice and enforcing the

fundamental rights. Otherwise CBI would be flooded with

a large number of cases and with limited resources, may

22

find it difficult to properly investigate even serious cases

and in the process lose its credibility and purpose with

unsatisfactory investigations."

In the light of the above decision, we have to see whether

the case furnishes exceptional situation warranting action for

entrusting the enquiry to CBI.

We have again delved into the report attended with other

allied circumstances whether fair investigation can be done by

the local police.

The Special Officer (Vigilance) cited two instances

generating doubts in the mind of the officer about the

impartiality of the district administration in facilitating fair

enquiry during their visit to the place for enquiry. The instances

are mentioned at page 34 and 35 of the report and being

relevant are quoted below.

"This is also relevant to mention here that we did not

disclose our programme to visit the spot to anyone on

15.11.2010. As the witnesses Sunil, Babu and Sonu did

not appear on 15.11.2010, so we suddenly made a

programme to visit and see the spot in the noon. We

took an official from the office of Chief Judicial

Magistrate, Bijnor and Process Server, Rajiv Kumar with

us. Our official car was being escorted by a Police Jeep

to reach the spot. But suddenly we observed that the

Police Gypsy after 10 to 15 Kms started to become slow.

On enquiry, it was told by the Police personnels that

their vehicle is making trouble then after, the Escort

started to move slowly and after a distance of hardly one

Km, the said Police Vehicle was stopped and it was

informed that it has become out of order. Thereafter, we

decided to proceed towards the spot without escort and

we reached on the spot with the help of the official,

posted in the office of the Chief Judicial Magistrate,

Bijnor. We found that some 15 to 20 persons were

already present on the spot and thereafter, the number

of people was increased to 50 to 60. It appears that our

vehicle was stopped or delayed just to make the

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presence of the persons on the spot. Then we made the

inspection of the spot and prepared the site plan at the

pointing out of Kuljeet Singh and other persons

present......."

Another instance cited by the Special Officer (Vigilance)

mentioned at page 35 is also quoted below.

"On 17.12.2010 when we were recording evidence of Sri

Babu EW 21, a large number of people came at the PWD

Inspection House, Bijnor in the form of a mob, raising

noises. Feeling disturbed, we enquired about them.

Some of them forcibly entered in the room, where

statement was being recorded during enquiry. A person

in front of the people said that he belongs to Vyapar

Mandal and wants to give memorandum and to say

something and other persons also said to give some

applications and affidavits. Then we politely pursuaded

them to hand over the memorandum and affidavit to our

staff. One of them, Sri Peetam Singh, advocate pressed

that his statement should be recorded. The we recored

his statement as EW 22 and kept his affidavit on record.

The other persons have handed over their affidavits and

applications to our staff and did not ask to record their

statements...."

From the above discussion, it would transpire that the

allegations made by the judicial officer in his report to this

Court has some substance that a false case has been foisted

upon him with active connivance of district administration.

We may also advert to the statements referred to in the

report of the Special Officer (Vigilance) firstly of the Circle

officer and secondly of the Station House officer. From the

various news reports discussed by the Special Officer

(Vigilance) and also from the own statements of the police

officers, it would transpire that they were clearly convinced

that the accident was caused by the Tanker and not by the Car

owned by the Judicial officer and Tanker had also been seized.

24

It is also admitted by the SHO that typed written report was

received by him where such facility of computer typing was not

available at the Station or around the police station. The

Special Officer (Vigilance) has also referred to presence of

officials of District Administrations including Additional Supdt of

Police and Addl District Magistrate at the police station. There is

thus ample evidence on record that pressure was mounted on

the police to act on dotted lines. We are constrained to observe

that it is indeed a serious matter that even a judicial officer has

not been spared and every effort has been made to browbeat

him by the administration.

It would thus transpire that the police would not be able

to conduct fair investigation in the matter and in the

circumstances, we are of the view that this case clearly

furnishes exceptional situation where this Court should

intervene and direct the investigation to be entrusted to the

CBI.

In view of the above, it is directed that the CBI shall

conduct the investigation and submit its interim report within 3

months before the Court. Office is directed to provide a copy

of the order to the counsel for CBI within seven days. The

Government Advocate will ensure that all papers are handed

over to CBI forthwith.

In the meanwhile, it is directed that the State

Government shall transfer (1) District Magistrate Bijnor, (2)

Supdt of Police Bijnor and (3) Station House officer PS

Mandawali immediately if not already transferred in order to

ensure that there be no impediment in the fair and smooth

25

investigation by the CBI. This Court is informed that Sri Tabrez

Ahmad Civil Judge (JD) Najibabad Bijnor has already been

transferred from Bijnor.

The office is directed to make available a copy of this

Judgment to learned counsel for CBI and also to learned

Government Advocate within 3 days positively.

The matter shall be listed immediately after 3 months on

which date the CBI shall submit progress/status report for

perusal of the Court.

MH

May 17, 2011