Allahabad HC Orders Inquiry Into State's Non-Disclosure Of Key Evidence Against Mahant Accused Of Filming Women Taking Bath

Expressing concern over the prosecution's failure to present key evidence as sought by the Court, a bench of Justice Vikram D. Chauhan emphasized that non-disclosure of material particulars and evidence from the court amounts to an 'interference in the dispensation of justice'.

As per the Court's order, the inquiry, to be conducted by an Officer not below the rank of Principal Secretary to be nominated by the Chief Secretary of Uttar Pradesh, would look into the role of the police and prosecution in withholding vital information.

The Court passed this order while dealing with an anticipatory bail filed by Mahant Mukesh Giri, who has been accused of recording a video of females while they were bathing.

On July 5, 2024, the Court directed the State to file a counter-affidavit disclosing the evidence found during the investigation against the applicant.

Pursuant to the Court's order, the State (through an Additional Government Advocate) filed a counter affidavit on July 15; however, no evidence was annexed to the said affidavit, despite the court's specific order in this regard.

Although para 7 of the counter affidavit stated that the applicant had committed the alleged offence, no details were given to determine that he was the culprit. Regarding the evidence, only a letter from the National Commission for Women was annexed.

In view of this, the Court, on August 8, directed the Commissioner of Police, Ghaziabad, to file his/her affidavit to show cause as to why the court's order had not been complied with and what action had been taken against the official concerned who filed the counter affidavit without complying with court's Court.

Pursuant to this, on August 23, the Commissioner of Police, Ghaziabad, filed his affidavit informing the Court that the proceedings had been initiated against the SI (Rampal Singh) who had filed the earlier affidavit.

However, the affidavit also did not disclose why the relevant evidence was suppressed by the State authorities when the counteraffidavit dated 15.7.2024 was filed.

It was also not clarified how the National Commission for Women's communication (of May 2024) could be evidence against the applicant accused.

Given this, the Court noted that in such matters, the police first prepare the instructions, which are then sent through the office of the Director of Prosecution to the office of the Government Advocate. Thus, the Court underscored that there are three check levels to determine whether the instructions have been properly prepared.

The Court noted that the first level is the police department itself, the second level is the Director of Prosecution, and the third level is the office of the Government Advocate.

However, the Court noted that neither of the three levels took pains to comply with the court's order when filing the previous counter affidavit even though there were serious allegations against the applicant, and the matter was required to be taken up by the authorities concerned.

In view of this, the Court remarked thus:

“The office of Director of Prosecution cannot act like a post office, they have to examine instructions to find out whether the necessary averments have been stated and evidence has been enclosed along with the affidavit as required. Even police department owes a duty to fairly disclose all the material while filing the affidavit. Such duty has not been discharged by the police department in the earlier counter affidavit.”

Further, the Court observed that while it was difficult to know what was the reason for not complying order of this Court while filing earlier counter affidavit, the Court, however, prima facie found that non-disclosure of the material particular and evidence fairly in the counter affidavit filed by the police department and non-examination of the same by the office of Director of Prosecution and the office of the Government Advocate was indicative of the negligence or laches.

In view of this, the Court directed an Inquiry into the matter to examine the following facts:-

(I) Whether at the time of filing of counter affidavit, the office of the Government Advocate and Director of prosecution, was sent with the details of the material particulars of evidence against the applicant- accused in compliance of the order dated 5.7.2024 of this Court.

a. In the event the police department sent the material particulars and evidence to the office of the Director of the prosecution and the Government Advocate, then why the office of the Director of the prosecution and Government Advocate has not disclosed the aforesaid material particulars of evidence in the counter affidavit.

b. If the police department did not send material particulars and evidence to the office of the Director of prosecution and the government advocate, then why, despite having knowledge of the order dated 5.7.2024, did the police department not send such material particulars and evidence prior to filing the counter affidavit?

c. If the police department did not send material particulars and evidence to the office of the Director of the prosecution and Government Advocate, then whether any communication in writing was sent to the police department by the office of the Director of the prosecution and the Government Advocate demanding the supply of the material particulars and evidence as directed by order dated 5.7.2024.

i. In the event such communication in writing is being sent by the Director of prosecution and the office of the government advocate to the police department, why such communication has not been acted upon by the police department prior to filing of the counter affidavit.

ii. In the event no such communication was sent by the office of the Director of Prosecution and the Office of Government Advocate, then why the communication was not sent for compliance of order dated 5.7.2024 to the police department (when instructions were received to file counter affidavit and no material particulars and evidence was send by police department) prior to filing of counter affidavit dated 15.7.2024.

iii. It shall also be examined as to whether the office of the Director of prosecution has examined in its internal noting as to whether the instructions send by the police department (prior to filing of counter affidavit dated 15.7.2024) contained all the evidence and material particulars as directed by order dated 5.7.2024.

(II) The aforesaid Inquiry Officer shall also examine as to the person who has drafted the counter affidavit dated 15.7.2024 and shall disclose the name of the person was drafted the counter affidavit dated 15.7.2024. (III) The Inquiry Officer shall also examine as to person who had assigned the work of drafting the counter affidavit dated 15.7.2024 and whether the person assigning the work of drafting the counter affidavit has examined that all material particulars and evidence has been received from the police department.

(IV) The Inquiry Officer shall also examine as to the person who has typed the counter affidavit dated 15.7.2024 and whether the remuneration in respect of typing of the counter affidavit was paid from the State exchequer. It shall also be examined if the counter affidavit has been typed by a person not engaged by the State, then under what circumstances an outsider has typed the counter affidavit, and whether any permission was sought from the Government Advocate.

(V) A detailed enquiry shall be made by the Inquiry Officer indicating the negligence or lapses being made by the police department, office of the director of the prosecution and office of Government Advocate.

(VI) The State Government shall also, on affidavit, show the steps taken by the State to ensure that no suppression of facts, particulars and evidence is made by any government department in future and that the office of the Government Advocate functions in a professional manner.

The Court has also directed the Commissioner of Police, Ghaziabad to complete the inquiry pending against the deponent of the earlier counter affidavit immediately and submit an affidavit in this respect.

The matter has now been listed on 12th September, 2024.

It may be noted that Mahant Mukesh Giri was booked by Ghaziabad Police in May this year after a woman complained of the presence of a CCTV in the changing room on a ghat in Ghaziabad's Muradnagar area.

As per the initial probe, the Police had claimed (tweet) that several inappropriate footage of a Woman changing clothes was found on his mobile, which had live feeds from the CCTV camera installed on the ghat.

Case title - Mukesh Giri vs. State Of U.P.And 3 Others

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