Jawaharlal Ramtirth Sharma vs The State Of Maharashtra And Ors
2017 Latest Caselaw 5786 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO.2166 OF 2007

    Jawaharlal Ramtirth Sharma                                     .... Petitioner
                versus
    The State of Maharashtra & Ors.                                ... Respondents
                                 .......

    •       Mr.A.R. Pitale, Advocate for the Petitioners.
    •       Mr.N.B. Patil, APP for the State/Respondent.

                            CORAM         :  RANJIT MORE &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  04th AUGUST, 2017
                            PRONOUNCED ON :  09th AUGUST, 2017

    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. This is an unfortunate tale of the petitioner who had

suffered prospect of facing criminal prosecution for a period of

10 prime years of his life. The petitioner has approached this

Court by way of present petition mainly claiming damages for

the sufferings caused to him due to major and grave lapses in

the investigation. By another prayer the petitioner has also

prayed for direction to take action against the erring officers

who had carried out the investigation.

Nesarikar





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2. A few facts leading to filing of the present petition are

as follows:

2.1 -: On 14/03/1996 an FIR came to be lodged

at Jogeshwari Police Station at the instance of PSI

Chikhalkar, attached to the same police station. According

to him on 14/03/1996, the dead body of a man

approximately 20-25 years of age, was found near I.Y.

College, within the jurisdiction of Jogeshwari Police Station.

The head of the dead body was crushed by a heavy stone

and obviously he was murdered. Therefore said PSI

Chikhalkar lodged FIR vide C.R.No.45/96 at Jogeshwari

Police Station, u/s 302 of the Indian Penal Code against

unknown persons.

2.2 -: The investigation commenced, and it

appears that the then Investigating Officer recorded

statements of various witnesses. One of the statements was

that of Mohamed Asfaq Mohamed Ibrahim Sayyed.

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According to him, one boy named Guddu, aged about 21

years, had come to his workshop in search of work. The

said Asfaq allowed him to work with him initially for two

months. Thereafter the said Guddu had left for his native

place and in the month of June 1996 he returned with a

lady, aged about 30 years, claiming to be his wife.

According to said Mohd. Ashfaq in the month of March

1996, three persons came from Ludhiana asking for Guddu

and that married lady. It is Mohd. Ashfaq's case that one of

the three persons gave his name as Jawaharlal Sharma,

which incidentally is the name of the present petitioner. As

these three persons were enquiring about Guddu, the said

Ashfaq tried to trace Guddu, but he was not found.

Therefore when the police approached the said Mohd.

Ashfaq in connection with finding of the dead body, he

expressed his suspicion against these three persons and also

claimed that the photograph of the dead body was that of

Guddu.

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           2.3 -:              The police recorded the statements of eight

witnesses, who identified the photograph of the dead body

as being that the said Guddu @ Laeek. Out of these eight

persons, four persons also identified the dead body and

claimed that it was Guddu's dead body. On the basis of this

information the police arrested the present petitioner on

24/05/1996 from Ludhiana. Till the month of July 1996,

the police arrested two more accused.

3. On 04/07/1996, the present petitioner was granted

bail. However, he could avail of the said bail order only on

17/07/1996.

4. We are not so much disturbed by the initial arrest of

the present petitioner on 24/05/1996; because at that time the

investigating agency had sufficient material to raise reasonable

suspicion against the present petitioner. However, the disturbing

feature of the present case started from 05/07/1996.

Incidentally from March 1996 to July 1996, the police made

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efforts to inform the family of said Guddu at Uttar Pradesh to

claim his body. However, they elicited no response.

5. On 05/07/1996 PSI Bansode recorded the statement of

one Rashida Nawab Khan, resident of Bareili (UP). In the said

statement the said Rashida clearly stated that she was the

mother of the said Guddu. According to her in June 1996 she

had received a telegram that her son Guddu was murdered in

Mumbai; but on the very same day when she had received the

telegram, she had met Guddu and therefore she was convinced

that the news in the telegram was not correct. She immediately

informed Dr.Madan Mohan Dhawan, who advised her to

approach the police station. Thereafter she went to Baradari

Police Station and informed the police officers that her son

Guddu was very much alive.

6. The record reveals that PSI Bansode also recorded the

statements of Dr.Madan Mohan Dhawan, PSI Satyaprakash

Tyagi attached to Baradari Police Station, Uttar Pradesh, Rayees

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Miya Akbar Hussain Ansari, Nanhe Khan Anwar Khan and Jamir

Basheer Pathan on 08/08/1996. All these witnesses clearly

stated that the said Guddu @ Rais Nawabdulla Khan was very

much alive and he was seen by witnesses after March 1996.

Thus, at least from 05/07/1996 the then Investigating Officer of

Jogeshwari Police Station was alive to the strong possibility that

the said Guddu might not be dead.

7. In spite of this background, the investigating agency

chose to file charge-sheet on 04/01/1997 in the Court of

Metropolitan Magistrate, 10th Court, Andheri, Mumbai. The case

was duly committed to the Sessions Court and was continued as

Sessions Case No.25/04 before the Court of Sessions, at

Mumbai.

8. It appears that on 29/11/2002 also the then

Investigating Officer recorded the statements of Rashida

Nawabdulla Khan and Dr. Madan Mohan Dhawan. In both these

statements, the witnesses reiterated that the said Guddu was

alive and that he was seen by them after 1996.

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9. As a subplot to the main story, in February 1996 itself

a search warrant u/s 98 of Cr.P.C. was issued by the Sub-

Divisional Magistrate, Ludhiana, against the said Guddu in

connection with the abduction of a married lady. That was the

reason why the said Guddu was avoiding to come forward.

10. The petitioner had preferred an application for

discharge before the Court of Sessions for Greater Mumbai vide

Ex.4 in Sessions Case No.25/04. The said application was

rejected and the petitioner was not discharged.

11. From the record it appears that the case was pending

before the Sessions Court at Mumbai and the petitioner on his

own, was continuing his efforts to get the said Guddu before the

authorities and before the Court in order to prove his innocence.

All this while there was hardly any efforts or some positive

action on the part of the then Investigating Officer to trace the

said Guddu. The Roznama of the case shows that the petitioner

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attended the Sessions Court at Mumbai for more than 15

occasions. The record shows that in the year 1996 he was

around 37 years of age and he had to undergo this ordeal for

over a decade. The petitioner was a resident of Ludhiana and

was having a small scale industry in Ludhiana. The petitioner

had to come all the way from Ludhiana on many occasions to

attend the Court. The record further reveals that by the order

dated 30/06/2005, the learned Additional Sessions Judge,

Mumbai, directed the petitioner not to leave the jurisdiction of

the Court till disposal of the trial. This further added to the

misery of the petitioner and therefore he had to approach this

Court by way of criminal writ petition No.1771/05. In the said

petition the present petitioner had prayed that the direction be

issued to the police to produce the said Guddu before this Court.

He had also prayed for setting aside the order dated

30/06/2005 passed by the Court of Sessions at Greater Mumbai,

directing the petitioner to remain in Mumbai till conclusion of

the trial.

12. The petitioner had also challenged the order dated

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03/05/2005 whereby the application for discharge was rejected

by the learned Additional Sessions Judge, Greater Mumbai. The

petition was disposed off by this Court and the order dated

30/06/2005 directing the applicant to stay in Mumbai till

conclusion of the trial was set aside. However, other reliefs were

not granted in the said petition.

13. In the meantime, the petitioner continued with his

efforts to trace the said Guddu on his own. The petitioner also

came across an agreement executed in the year 2003 wherein

the said Guddu alongwith his other family members had agreed

to sell some of his properties. The petitioner also procured an

electoral roll of the year 2000, wherein Guddu's name was

appearing as one of the voters living in his area in Uttar Pradesh.

On 14/03/2006 the petitioner preferred an application before

the Court of learned Additional Sessions Judge, Greater

Mumbai, in Sessions Court No.25/04, for issuance of summons

to the said Guddu. This time the trial Court was pleased to issue

summons for the said Guddu directing him to remain present

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before the trial Court. Here again the petitioner himself had to

make efforts and he had to go to District Bareili (Uttar Pradesh)

to serve the summons and through his efforts summons could be

pasted on the house of the said Guddu @ Laeek. Since the said

Guddu did not remain present even after issuance of such

summons, by the order dated 17/04/2006, the learned

Additional Sessions Judge, Greater Mumbai, was pleased to

issue a non-bailable warrant against the said Guddu. The

Roznama of the case shows that the said NBW was handed over

to the petitioner for execution at the concerned police station at

Baradari, in District Bareli (Uttar Pradesh). Thus, it can be seen

that even after issuance of non-bailable warrant, it was the

petitioner who had to take efforts for execution thereof.

14. Finally in the month of November 2011, the said

Guddu was brought before the Sessions Court in execution of

the warrant. Thereafter the investigating officer recorded the

statements of the witnesses, who in the year 1996, had stated

that the said Guddu was dead and the dead body found on

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14/03/1996 was that of Guddu. After ascertaining from all the

possible sources, the learned Judge finally accepted that the said

Guddu was very much alive and was present before the Court

and thereafter discharged the present petitioner and other

accused by his order dated 18/11/2006. We may note here that

the said order is very cryptic and does not even record the bare

essentials of the case. By the same order the officers of the

Jogeshwari Police Station were directed to reinvestigate the

matter in respect of the dead body traced by them on

14/03/1996. Thus, putting an end to a decade long ordeal faced

by the present petitioner, the Additional Sessions Judge, for

Greater Mumbai discharged the Petitioner.

15. In this background the petitioner has preferred the

present petition before this Court for the reliefs as mentioned

earlier. With the assistance of learned counsel Mr.Pitale for the

petitioner and learned APP Mr.Patil, we have gone through the

record and proceedings of the case and various statements

recorded during the investigation.

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16. Mr.Pitale submitted that this is a fit case in which

compensation can be awarded to the petitioner in view of the

fact that he had undergone tremendous mental agony and

physical inconvenience in order to prove his innocence. All the

while, the police officers were aware that the said Guddu was

alive. In his support, Mr.Pitale relied on the judgment of

Honourable Supreme Court in the case of Nilabati Behera

(Smt) Alias Lalita Behera, vs. Legal Aid Committee, reported

in (1993) 2 Supreme Court Cases 746 and in particular he

invited our attention to the para No.31 of the said judgment

which reads thus;

"31. It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

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The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr.Altaf Ahmed it may be recorded that he raised no such defence either."

17. Mr.Pitale further relied on the judgment of the Division

Bench of this Court in the case of Sharda Narayan Bhongade,

vs. Surendra Jagmohan Pali and another, reported in

2002(4) Mh.L.J. 865. We have gone through the said judgment

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and we find that paragraph No.14 of the said judgment is

relevant for our purpose which reads thus;

"14. Article 21 of the Constitution of India which guarantees the right to life and personal liberty, will be rendered nugatory and its significance would become blunt if the powers of the Courts were limited to passing the orders of release from the illegal detention. One of the method of preventing the violation of Article 21 and ensuring its due compliance is to grant compensation to the victim who has suffered at the behest of the State Authorities or its instrumentalities which act in the name of public interest and yet abuse the very process of law which they are supposed to protect..........."

18. We can accept the action of police officers while

initially arresting the present petitioner in pursuance of the

information, which they had at that point of time. However, the

inaction, lethargy and callousness shown by the police officers

after 05/07/1996 cannot be countenanced. The police

machinery and the investigating officers under the Code of

Criminal Procedure, 1973 (for short Cr.P.C.), enjoy wide powers

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for the purposes of investigation. However, with wide powers,

comes higher responsibility and the police officers investigating

into a crime are expected to act in impartial, fair and efficient

manner. The investigation into an offence is not a mechanical

process. The investigating officer has to apply his mind at every

stage of the investigation and is expected to make an effort to

find out the truth. The investigation does not mean merely

recording of statements and carrying out different panchanamas,

but there has to be a definite direction in which the investigation

should proceed. The investigating agency has to explore all the

facets of the case. If the accused has any circumstances in his

favour, the investigating officer is not only expected to find out

the veracity of the version given by the accused, but it is his duty

to investigate the case from all angles. That does not mean that

the investigating officer has to accept blindly whatever is stated

either by the accused or even by the witnesses. The investigating

officer has to form his own opinion before filing report u/s 173

of Cr.P.C. In this connection we are relying on the observations

made by the Hon'ble Supreme Court in the case of Ram Lal

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Narang vs. State (Delhi Admn.), reported in AIR 1979

Supreme Court 1791. In particular we are relying on the

paragraph No.21 of the said judgment which reads thus;

"21. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon

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the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh

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fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. "

19. In case, the investigating officer is of the opinion that

no offence is made out for various reasons, he has an option of

filing different summaries. In case, the investigating officer is of

the opinion that a particular accused has not committed the

offence, he has an option to take recourse to section 169 of

Cr.P.C. In short, the investigating officer has wide powers and

he has to use them with application of mind. His only aim

should be to unravel the truth and to collect the evidence in

support of his opinion.

20. In the present case we find that the investigating

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officers investigating the case from 1996 to 2006 have shown

utter disregard to the cause of justice. Particularly from

05/07/1996, the investigating officer was made aware by the

mother of the said Guddu that he was alive. We did not find that

the investigating officers have taken any efforts to trace him

seriously. Even at later stages, the petitioner himself had to

collect the summons and the warrant, and make efforts to

execute them in the State of Uttar Pradesh. We find that the

charge-sheet was mechanically filed and there were no real

efforts made to fix the identity of the dead body and to

investigate into the matter.

21. We find that because of this apathy, inefficiency and

negligence bordering on criminal negligence, the petitioner had

to endure the agony of facing criminal prosecution for no less an

offence than the capital offence. The petitioner was based in

Ludhiana, Punjab and had his small scale industry there. He had

to attend the trial Court on many occasions and had to file

different petitions before this Court including the present

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petition. This, in our opinion, is sheer mental as well as physical

torture and agony. The right to life and personal liberty is

certainly very much available to a person who is facing a

criminal prosecution and in this case we find that this

fundamental right guaranteed under Article 21 of Constitution

of India was seriously infringed because of callous attitude and

inaction on the part of investigating agency. We can

advantageously make a reference to observations made in the

two judgments referred to hereinabove, in the cases of Nilabati

Behera and Sharda Bhongade. Since the investigating agency is

the instrument through which the State operates, in this case we

are of the opinion that compensation needs to be awarded to the

petitioner and the State should be directed to pay such

compensation.

22. While it is difficult to quantify the amount of

compensation, because no such amount can adequately

compensate the petitioner for the mental and physical agony he

has suffered in his prime years of life over a decade; but still, by

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way of keeping in balance all the circumstances, we are of the

opinion that, an amount of Rs.5,00,000/- by way of

compensation, would be just and proper in this case. In addition

we are also of the opinion that the petitioner should be paid

Rs.1,00,000/- to cover his expenses for pursuing various legal

proceedings from his hometown Ludhiana.

23. The police report dated 04/08/2017 and affidavit

dated 03/04/2012 filed by the Senior Inspector of Police

Jogeshwari Police Station shows that the earlier investigating

officers namely PI Sharma and PSI V.N. Bansode have expired

and Mr.R.R. Yadav has retired. Therefore we are not inclined to

grant the second prayer of the petitioner that directions should

be issued to take necessary action against the erring officers who

had committed lapses in the investigation of crime No.45/96

registered with Jogeshwari Police Station. The State of

Maharashtra, if it so desires, is at liberty to recover the said

amount of compensation from the investigating officers who had

investigated the case from 1996 to 2006 and who are available or

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from the estate of such investigating officers who have expired,

in accordance with law. The petitioner is at liberty to prefer any

other proceedings for claiming damages, which is permissible in

accordance with law.

24. With the result we partially allow the present petition

and direct the State of Maharashtra to pay a compensation of

Rs.6,00,000/- (Rs. Six Lakhs) to the petitioner within a period of

eight weeks from the date of this order.

25. The petition is disposed off in the aforesaid terms.

           (SARANG V. KOTWAL, J.)                (RANJIT MORE, J.)