Bombay High Court
Suresh S/O Laxman Patil vs Mithun S/O Mohan Barse on 22 August, 2017
Bench: S.S. Shinde
1 WP-1619-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1619 OF 2015
Mithun s/o Mohan Barse,
Age: 32 years, Occ: Business,
R/o. Walmiki Nagar, Jamner
Road, Bhusawal, Dist. Jalgaon. ..PETITIONER
VERSUS
1. The State of Maharashtra,
2. Office In-charge, Bazarpeth
Police Station, Bhusawal,
Dist. Jalgaon.
3. The Superintendent of Police,
Jalgaon.
4. The Director General of Police
Maharashtra, having its office at:
Near Gateway of India, Fort,
Mumbai.
5. The Secretary,
The Government of Maharashtra
Home Department, Mantralaya,
Mumbai. ..RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 3194 OF 2016
IN
CRIMINAL WRIT PETITION NO. 1619 OF 2015
Suresh s/o Laxman Patil,
Age: 70 years, Occu: Retired Govt. Servant,
R/o: Plot No. 9, "Nirmal", Shanti Nagar,
Taluka Bhusawal, Dist. Jalgaon ..APPLICANT
VERSUS
1. Mithun s/o Mohan Barse,
Age: 32 years, Occ: Business,
R/o. Walmiki Nagar, Jamner
Road, Bhusawal, Dist. Jalgaon.
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2. The State of Maharashtra,
3. The Office In-charge,
Bazarpeth Police Station,
Taluka Bhusawal, Dist. Jalgaon.
4. The Superintendent of Police,
District Jalgaon.
5. The Director General of Police
Maharashtra having its office at:
Near Gateway of India, Fort,
Mumbai.
6. The Secretary,
The Government of Maharashtra
Home Department, Mantralaya,
Mumbai.
7. Kisan Laxman Najan Patil,
Age 50 years, Occu. Service,
Working as Police Inspector,
Taluka Bhusawal, Dist. Jalgaon.
8. Shri. Nandkumar Thakur,
Age 53 years, Occu. Service,
Working as Addl. Superintendent
of Police, Taluka Bhusawal,
District Jalgaon. .. NON-APPLICANT/
RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 4866 OF 2016
IN
CRIMINAL WRIT PETITION NO. 1619 OF 2015
Banty s/o Parushram Pathrod,
Age: 23 years, Occu: Labour,
R/o: Walmiki Nagar, Bhusawal,
Taluka Bhusawal, Dist. Jalgaon ..APPLICANT
VERSUS
1. Mithun s/o Mohan Barse,
Age: 33 years, Occ: Business,
R/o. Walmiki Nagar, Jamner
Road, Bhusawal, Dist. Jalgaon.
2. The State of Maharashtra,
3. The Office In-charge,
Bazarpeth Police Station,
Bhusawal, Dist. Jalgaon.
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4. The Superintendent of Police,
Jalgaon.
5. The Director General of Police
Maharashtra having its office at:
Near Gateway of India, Fort,
Mumbai.
6. The Secretary,
The Government of Maharashtra
Home Department, Mantralaya,
Mumbai.
..RESPONDENTS
Mr Y.S. Dalal, Advocate with Mr D.R. Markad, Advocate h/f Mr. N.K.
Kakade, Advocate for petitioner;
Mr Govind Kulkarni, Advocate h/f Mr R.S. Deshmukh, Advocate for
applicant in Criminal Application No. 3194 of 2016;
Mr B.R. Warma, Advocate for applicant in Criminal Application No. 4866
of 2015;
Mr A.B. Girase, Public Prosecutor for respondent Nos. 1 to 5
...
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 17th APRIL, 2017.
PRONOUNCED ON : 22 nd AUGUST, 2017.
JUDGMENT :- ( Per : K.K. Sonawane, J.)
1. Rule. Rule made returnable forthwith. Heard the learned counsel
for appearing parties finally, with consent.
2. The petitioner Mithun Mohan Barse resident of Bhusawal, District
Jalgaon preferred the present writ petition by invoking remedy under
Article 226 of the Constitution of India and Section 482 of the Criminal
Procedure Code with following prayer:
"A. This Hon'ble Court may be pleased to issue a Writ of
Mandamus, Writ of certiorari or any such other
4 WP-1619-15
appropriate writ or order thereby directing the concerned
respondents to institute or cause to be instituted a
fresh/further investigation into the crime registered by
the Bhusaval Bazar Peth Police Station, Bhusaval, vide
C.R. No. 128 of 2015 dated 03-07-2015 for the offences
punishable u/s 302, 143, 144, 147, 148, 149 and 120B
of IPC and section 3, 4 r/w section 25 of the Arms Act
against all the original accused persons named therein
viz (1) Anil Chhabiladas Choudhary, (2) Nattu Chaurasiya
(3) Gopal Shivram Shinde (4) Bunty Parshuram
Pathrode, (5) Vijay Parshuram Patrode and (6) Jacky
Indal Pathrode all resident of Bhusaval; to handover the
investigation to the Central Bureau of Investigation or to
a Special Investigation Team headed by a responsible
superior officer as may be constituted by this Hon'ble
Court or to any other independent investigating agency
outside the district of Jalgaon to be carried out under the
supervision of this Hon'ble Court."
3. The genesis of the petition culled-out in brief is that, the first
informant Mithan Mohan Barse i.e. present petitioner filed the FIR on
03-07-2015 to the Police of Bhusawal Police Station and cast the
allegations that on 03-07-2015 in the morning at about 8.30 to 9.30
p.m. he accompanied with his father Mohan had been to Sant
Tulshiram Market Bhusawal to look after the work of the contract of
public toilet allocated on pay and use basis. The first informant Mithun
and his father after enjoying the tea started returning to home.
However, the assailant Anil Chabildas Chaudhary arrived on his
motorbike. He reprimanded the father Mohan by putting the revolver
on his head and gave threat to eliminate him. Thereafter, assailant Anil
Chaudhary took out the weapon knife and dealt a blow of weapon at
5 WP-1619-15
the abdomen of Mohan Barse. Meantime, other assailants Nattu
Chawariya, Gopal Shivram Shinde, Bunty Parshuram Pathrode, Vijay
Parshuram Pathrode, Jacky Pathrode all came running at the spot of
incident. They were armed with weapons sword, iron pipe, chopper etc.
They all exhorted to kill father Mohan. In the fight, assailants attacked
on the head of Mohan with sword, iron pipe and chopper etc. The
assailant Bunty Pathrode and Vijay Pathrode were having revolver in
their hands. They were giving threats to the public by flashing the
revolver. The assailant also attempted to attack on the first informant
-Mithun but he flung the bricks towards assailants. The on-lookers
thronged at the spot. Thereafter, assailants made their escape good
from the scene of occurrence. The injured Mohan was escorted to the
Hospital of Dr. Manavkar but he was declared dead. Eventually, the
first informant filed the FIR, pursuant to which, the Police of Busawal
Police Station registered the crime No. 128 of 2015 under sections 143,
144, 147, 148, 302 read with section 120-B of the Indian Penal Code
(for short "IPC") as well as section 3, 4 read with section 25 of the
Arms Act and set the criminal law in motion. The Investigating Officer
(for short "IO") carried out the investigation. He recorded statements
of the witnesses acquainted with the facts of the case. The assailants,
namely, Nattu Chawariya, Gopal Shinde and Jacky Pathrode were
apprehended in this crime for the sake of investigation. The weapons
were recovered from their custody under section 27 of the Evidence
Act. After completion of investigation, IO preferred the charge-sheet
against three accused/assailants, namely, Nattu Chawariya, Gopal
Shivram Shinde and Jagdish @ Jacky Indal Pathrode.
6 WP-1619-15
4. Being dissatisfied with the mode and manner in which the
investigation was carried out by the concerned Investigating Agency,
the petitioner approached to this Court by invoking remedy under
Artciel 226 of the Constitution of India and Section 482 of the Cr.P.C.,
to redress his grievance. According to petitioner, the names of prime
assailants Anil Chabildas Chaudhary, Bunty Pathrode and Vijay
Pathrode were shown deleted from the array of accused in the charge-
sheet. Moreover, Investigating Agency did not apply sections 143,
144, 147, 148 and section 149 of the IPC in this crime. It has been
contended that these alleged accused persons have an high level
political connection and influential persons. Therefore, Police of
Bhusawal Police Station failed to conduct investigation of the present
crime in proper manner. The IO allowed the prime assailants to scot
free from the charges pitted against them. It has been submitted that
the petitioner is one of the eye witness and first informant of the
incident. The assailants Anil Chabiladas Chaudhary, Nattu Chawariya,
Gopal Shinde, Bunty Pathrode, Jacky Pathrode and Vijay Pathrode all
brutally attacked his father by lethal weapons. He figured all these
assailants in his FIR as well as described their overtacts in detail. The
FIR came to be filed immediately after the occurrence of alleged
incident. The IO also recorded statements of witnesses. The
supplementary statement of first informant was recorded by the IO, in
which he divulged about the involvement and participation of all these
assailants in the alleged incident. There were circumstances to show
prima facie complicity of these accused persons in this case. But, the
Investigating Agency did not arrest the prime culprit nor proceeded to
7 WP-1619-15
interrogate them in regard to the alleged crime. According to first
informant, the alleged incident was occurred in the broad day-light.
There were incriminating circumstances available on record to establish
prima facie involvement of these assailants. Unfortunately, all these
accused were neither arrested nor charge-sheeted due to political
influence. The petitioner expressed apprehension that Investigating
Agency attempted to shield all these assailants in this case. According
to petitioner, the entire investigation carried out in this crime is
dishonest, tainted and biased, as such needs to be transferred to CBI
or State Agency i.e. CID for further investigation.
5. In order to substantiate contentions propounded on behalf of
petitioner, attention of this Court was invited to the offences registered
against alleged assailants, which are as under:
vfuy Nfcynkl pkS/kjh] jk- HkqlkoG
HkqlkoG cktkj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye lífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] Hkknfo 324] 504 Ukk 'kkchr
02 Hkkx 5 xq-j-ua- [email protected] Hkknfo 147] 148] 149] 504] 506 Ukk 'kkchr
03 Hkkx 5 xq-j-ua- [email protected] Hkknfo 353] 332] 504] 34 Ukk 'kkchr
04 Hkkx 5 xq-j-ua- [email protected] Hkknfo 353] 323] 504] 34 Ukk 'kkchr
05 Hkkx 5 xq-j-ua- [email protected] Hkknfo 147] 148] 149] 341] 506 vkeZ vWDV Ukk 'kkchr
[email protected]
06 Hkkx 5 xq-j-ua- [email protected] Hkknfo 147] 148] 149] 427 Ukk 'kkchr
07 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] eqiksvWd 135 U;k;izfo"B
08 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] 341 eqiksvWd 135 U;k;izfo"B
09 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] 147] 148] 149] 427] 324] U;k;izfo"B
504] fdz- ykW- vW d 7
10 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] 147] 148] 149] 395] 323]
504] fdz- ykW- vW d 7
11 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] 147] 148] 149] 395] 307] U;k;izfo"B
354] 323] 294] 504] 506] 427] fdz- ykW- vW
d 7] eqa iks vW d 135
12 Hkkx 5 xq-j-ua- [email protected] Hkknfo 143] 147] 148] 149] 353] 186] 332] U;k;izfo"B
427] fdz- ykW- vW d 7
8 WP-1619-15
13 Hkkx 5 xq-j-ua- [email protected] Hkknfo 395] 384] 386] 504 vkeZ vWDV 25 ek- lqfize dksVZ] U;q
o 27 fnYyh] ;kaps vkns'kkUo;s
rikl Lfkfxrh
14 Hkkx 5 xq-j-ua- [email protected] Hkknfo 387] 109 U;k;izfo"B
15 Hkkx 6 xq-j-ua- [email protected] Ekq iks vWDV 141] 142 U;k;izfo"B
16 Hkkx 6 xq-j-ua- [email protected] EkqacbZ iksyhl vWDV dye 142 U;k;izfo"B
17 i- uk- dk- [email protected] Hkknfo 504] 506 U;k;izfo"B
HkqlkoG rkyqdk Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye LífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] Hkknfo 353] 332] 323] 504] 506] 186 lg 'kkfcr 2 o"kZ lDr etqjh o
yks- iz- dk- d- 130 3000 # naM
02 Hkkx 5 xq-j-ua- [email protected] Hkknfo 307] 143] 147] 148] 120c] 323] ek- lqfize dksVZ] U;w fnYyh
504] 506] vkeZ vWDV [email protected] lg eq-iks-dk-d- ;kaps vkns'kkuqlkj rikl
135 Lfkfxrh
HkqlkoG 'kgj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye LífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] Hkknfo 307] 323] 504] 506] vkeZ vWDV 'kkfcr 2 o"kZ lDr etqjh o
[email protected] 2000 # naM
02 Hkkx 6 xq-j-ua- [email protected] eq-iks- vWDV dye 37¼1½¼3½ ps mYya/ku 135 U;k;izfo"B
izek.ks
03 Hkkx 6 xq-j-ua- [email protected] izkWiVhZ MWest vWDV 1984 ps dye 3 U;k;izfo"B
lkeusokyk fo#?n nk[ky vlysys vn[kyik= xqUgs
v-ua iksyhl LVs'ku vn[kyik= xqUgk uksan dzekad vf/kfu;e o dye
01 Hkq- cktkjisB iks-Lvs- [email protected] Hkknfo d- 323] 504] 506]
02 Hkq- cktkjisB iks-Lvs- [email protected] Hkknfo d-504] 506]
lkeusokyk fo#?n dsysyh izfrca/kd dk;Zokgh
v-ua iksyhl LVs'ku gíikj izLrko [email protected] Vf/kfu;e o dye
01 HklkoG cktkjisB [email protected] Lkhvkjihlh 110 ¼bZ½¼x½
02 HklkoG cktkjisB [email protected] Lkhvkjihlh 107
03 HklkoG cktkjisB [email protected] Lkhvkjihlh 110 ¼bZ½¼x½
04 HklkoG cktkjisB [email protected] eq-iks-vWDV dz- 56¼c½¼MªkWi½
05 HkqlkoG 'kgj LFkkuc?n dkjokbZ [email protected] Lkhvkjihlh 151 ¼3Z½izek.sk
06 HklkoG cktkjisB [email protected] eq-iks-vWDV dz- 57¼v½¼1½
caVh ij'kqjke iFkjksM] jk- HkqlkoG
HkqlkoG cktkj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye lífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] 307] 147]148] 149] 324] 323
02 Hkkx 5 xq-j-ua- [email protected] 294] 504] 506] 34
9 WP-1619-15
05 Hkkx 5 xq-j-ua- [email protected] 395] 147] 148] 149] 384] 323
06 Hkkx 6 xq-j-ua- [email protected] vkeZ vWDV [email protected]
07 [email protected] 323] 504] 506] 34
HkqlkoG 'kgj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye LífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] 147] 148] 149]
03 Hkkx 5 xq-j-ua- [email protected] 363] 376¼x½
HkqlkoG yksgekxZ Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye LífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] 394] 34
fot; ij'kqjke iFkjksM] jk- HkqlkoG
HkqlkoG 'kgj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye lífLFkrh
03 [email protected] 323] 504] 506] 34
tWfd mQZ txnh'k bany iFkjksM] jk- HkqlkoG
HkqlkoG cktkjisB Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye lífLFkrh
02 Hkkx 5 xq-j-ua- [email protected] 143] 147] 148] 149] 395] 307] 324] 504]
03 Hkkx 5 xq-j-ua- [email protected] 143] 147] 148] 149] 395] 427] eq-iks- vW-d
135 o fdz-ykW- vW-d- 7
04 Hkkx 5 xq-j-ua- [email protected] 143] 147] 148] 149] 395] 452] 427] 435
eq-iks- vW-135
05 Hkkx 5 xq-j-ua- [email protected] 143] 147] 148] 149] 436] 427] 395] eq-
iks- vW- 135
HkqlkoG 'kgj Ikks-LVs- dMhy xqUgs
v-ua Xkq-j-ua dye lífLFkrh
01 Hkkx 5 xq-j-ua- [email protected] Hkknfo 307] 323] 504] 506] vkeZ vWDV
[email protected]
10 WP-1619-15
6. It has been asserted on behalf of petitioner that all these
assailants are habitual offenders and history-sheeters. Therefore, the
independent witnesses of the crime found reluctant to come forward
for giving evidence against these perpetrator of crime due to their fear
and terror. These assailants are very well connected with political party
i.e. Nationalist Congress Party and they are enjoying sufficient political
clout. Therefore, the investigating Agency did not venture to lay their
hands for arraigning these assailants in this case.
7. Per contra, the learned prosecutor raised objections for transfer
of investigation to any other Agency at the behest of petitioner and
submits that the Investigating Agency has conducted the investigation
promptly after registration of crime No. 128 of 2015 at the instance of
petitioner. The IO recorded statements of witnesses acquainted with
the facts of the case. Thereafter, IO picked up accused Nattu
Chawariya, Gopal Shinde and Jacky Pathrode for the sake of
investigation. So also, the weapons were recovered from their custody
under section 27 of the Evidence Act. The investigation carried out uptil
this date was not tainted and biased. The investigation was carried out
by local Police as well as State CID in proper manner for collecting the
evidence in this crime. The learned Public Prosecutor added that
initially investigation was carried out by the local Police, however, in
view of directions from the State Government, investigation came to be
transferred to State CID and since then CID had taken charge of
investigation into the crime. According to learned Prosecutor, the
purpose of filing present petition has already been sub-served as
11 WP-1619-15
investigation has been transferred to the State CID. The learned Public
Prosecutor further submits that, in view of investigation conducted by
the State CID, petitioner might have satisfied with the investigation,
and therefore, he sought withdrawal of the present petition. But, the
act of seeking permission for withdrawal was objected by the Public
Prosecutor on the ground that the investigation was ordered to be
carried out under the supervision of this Court. According to learned
Public Prosecutor, on appreciating the allegations nurtured on behalf of
petitioner, this Court by virtue of judicial order has supervised and
monitored the investigation till date and also recorded its satisfaction in
regard to the quality of investigation. Therefore, there are no any
extraordinary circumstances for requisite directions of transfer of the
investigation of crime to CBI. The learned prosecutor prayed to dismiss
the petition.
8. We have given anxious consideration to the arguments advanced
on behalf of both sides. We have also delved into the factual aspects as
well as relevant documents produced on record. Admittedly, the
charge-sheet in this crime came to be filed by the State CID after due
investigation into the matter. The record adumbrates that this Court on
01-02-2016 issued notice and directed the concerned IO to remain
present before this Court along with relevant documents of the
investigation. Thereafter, on 15-02-2016 after verification of the entire
investigation papers of the crime, this Court expressed displeasure and
issued directions to the Superior Police Personnel i.e. Additional
Superintendent of Police to file affidavit to evaluate the attending
12 WP-1619-15
circumstances of the investigation. This Court also sought explanation
as to why charge-sheet was not filed against so called assailants, who
are figured in the FIR and not arrested in this crime. Pursuant to
directions of this Court, the concerned Additional Superintendent of
Police has filed the affidavit and disclosed that investigation was carried
out under his supervision and the same was not concluded though the
charge-sheet came to be filed against three accused persons. He
asserted that the investigation is in progress.
9. It is worth to mention that during the course of hearing in the
petition, on 09-06-2016, it was brought to the notice of this Court that
in view of directions from the State Government, investigation of the
crime came to be transferred from the local Police to State CID, but the
issue of transmission of investigation to CID or CBI is subjudice before
this Court. Therefore, the State CID found reluctant to take over the
charge of investigation into the crime. Thereafter, this Court was
pleased to direct the concerned State CID to accept the responsibility
of investigation into the crime and proceed further for collecting
evidence. The liberty was also granted to the concerned CID to file
supplementary charge-sheet, if any, required in this crime.
10. It is strange to appreciate that pending petition before this
Court, learned counsel Mr. Jivan J. Patil appearing for the petitioner
sought discharge and advocate Mr. Yogesh L. Dalal seeks permission to
continue his appearance on behalf of petitioner in this mater.
Thereafter, learned counsel Mr. Dalal suggested this Court for
withdrawal of the petition as is reflected in the order of this Court dated
13 WP-1619-15
14-07-2016. But, the said prayer of withdrawal of petition was
objected by the learned Public Prosecutor. However, this Court by
exercising supervisory jurisdiction called the detail report from the
Investigating Agency as well as directed the concerned Investigating
Officer of the State CID to remain present in the Court. It was advised
to carry out meaningful investigation into the present crime. It was
further revealed from the record that on 11-08-2016, this Court
expressed its satisfaction about the manner in which investigation was
carried out and adjourned the matter for further hearing.
11. The aforesaid factual scenario impelled to arrive at the
conclusion that prayer of the petitioner to the extent of transfer of
investigation to the State CID has already been redressed after
requisite directions from the State Government itself. As such, his
prayer to that extent has rendered infructuous one. Thereafter, the
petitioner himself prayed for withdrawal of the present petition without
mentioning any cause for the same. These circumstances are indicative
of redressal of grievance of the petitioner in relating to mode and
manner in which the investigation was carried out into the crime. In
addition, it is also significant to note that, this Court monitored and
supervised the progress of the investigation conducted by the State
CID and eventually expressed satisfaction under order dated 11-08-
2016. It is evident from all these circumstances that most of the part
of investigation was carried out under the supervision of this Court. In
such background, if the pleadings of the petitioner are considered and
scrutinized, the allegations of political influential as well as perfunctory
14 WP-1619-15
and bias investigation nurtured on behalf of petitioner appear not
sustainable and considerable one in this case. There are no prima facie
circumstances available on record to show the necessity of
investigation into the crime by the Central Agency like CBI.
12. It is also imperative to mention that the impugned charge-sheet
reflects statements of following witnesses recorded by the IO under
section 161 of Cr.P.C during the course of investigation. These
witnesses divulged the names of assailants in their statements, which
were also considered and verified by this Court, the details of which are
as under:-
Sr. Name of Witness Name of Accused
No.
A Mithun Barse-Complainant (1)Anil Choudhary
(a)First Statement on 3.7.2015 (2)Nattu Chavariya
(3)Gopal Shinde
(4)Bunty Pathrode
(5)Vijay Pathrode
(6)Jacky Pathrode
(b)Second Statement on 8.7.2015 (1)Anil choudhary
(2)Nattu Chavariya
(3)Gopal Shinde
(4)Bunty Pathrode
(5)Vijay Pathrode
(6)Jacky Pathrode
(c)Third Statement on 22.8.2016 (1)Anil choudhary
(2)Nattu Chavariya
(3)Gopal Shinde
(4)Bunty Pathrode
(5)Vijay Pathrode
(6)Jacky Pathrode
B Devidas Kharare (1)Nattu Chavariya
(a)First Statement on 5.7.2015 (2)Gopal Shinde
(b)Second Statement on 30.7.2015 (1)Nattu Chavariya
before CID (2)Gopal Shinde
15 WP-1619-15
C Vivek Sarsar (1)Nattu Chavariya
(a)First Statement on 11.7.2015 (2)Gopal Shinde
(b)Second Statement on 10.8.2016 (1)Nattu Chavariya
(2)Gopal Shinde
D Vishnu Sokiya (1)Nattu Chavariya
(a)First Statement on 7.8.2015 (2)Gopal Shinde
(b)Second Statement u/s. 164 on Nobody's name
14.8.2015
(a)Affidavit on 10.12.2015 unnamed persons
(b)Statement before Police on (1)Anil Choudhary
23.2.2016 (2)Nattu Chavariya
(3)Gopal Shinde
(4)Jacky Pathrode
(5)Vijay Pathrode
(6)Bunty Pathrode
(c)Statement on 27.8.2016 before (1)Anil Choudhary
CID (2)Nattu Chavariya
(3)Gopal Shinde
(4)Jacky Pathrode
(5)Vijay Pathrode
(6)Bunty Pathrode
(c) Letter dated 9.8.2015 Denied earlier affidavit
and all Statements
(d)Statement u/s. 164
(a)Affidavit on 10.12.2015 unnamed persons
(b)Statement by Police on 10.2.2016 (1)Anil Choudhary
(2)Gopal Shinde
(3)Nattu Chavariya
(4)Jacky Pathrode
(5)Bunty Pathrode
(6)Vijay Pathrode
16 WP-1619-15
(b)Statement on 2.8.2016 before (1)Anil Choudhary
CID (2)Gopal Shinde
(3)Nattu Chavariya
(4)Jacky Pathrode
(5)Bunty Pathrode
(6)Vijay Pathrode
(c)Letter dated 9.8.2016 Denied earlier Affidavit
and all Statements
(d)Statement u/s.164 -
G Hemant Bohit (1)Bunty Pathrode
(a)Affidavit on 10.12.2015 (2)Vijay Pathrode
(3)Nattu Chavariya
(4)Gopal Shinde
(5)Jacky Pathrode
(b)Statement before Police on (1)Bunty Pathrode
23.2.2016 (2)Vijay Pathrode
(3)Nattu Chavariya
(4)Gopal Shinde
(5)Jacky Pathrode
(c)Statement on 23.7.2016 before (1)Bunty Pathrode
CID (2)Vijay Pathrode
(3)Nattu Chavariya
(4)Gopal Shinde
(5)Jacky Pathrode
(d)Letter dated 9.8.2016 Denied earlier Affidavit
and all Statements
(e)Statement u/s. 164
13. The attending circumstances reflect that at the time of
forwarding the report under section 173(2)(1) of Cr.P.C., the concerned
I.O. preferred to arraign only three assailants namely Nattu Chawariya,
Gopal Shinde and Jakcy Pathrode. According to Prosecutor, there are
no cogent and dependable evidence, available on record sufficient to
establish involvement of other three assailants in this case. Therefore,
they are not impleaded as accused in this crime, while submitting final
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report of the investigation under section 173 of the Cr.P.C. before the
learned Magistrate. At this juncture, in view of recitals of the FIR and
supplementary statement of first informant Mithun recorded by the IO,
we find it painful to accept the proposition putforth on behalf of IO that
there is no sufficient evidence against the assailant Anil Chaudhary,
Bunty Pathrode and Vijay Pathrode. It is the settled principle of law
that the sole evidence of solitary witness, if found credible and
trustworthy, would base the conviction. It is immaterial to appreciate
that he is relative of the deceased and interested or partisan witness.
In such circumstances, the evidence of first informant - petitioner
Mithun coupled with his FIR, would not be overlooked or ignored while
evaluating the guilt of the assailants/accused. Admittedly, the FIR
recorded under section 154 of Cr.P.C. is an vital and important piece of
evidence and it can be used under section 157 of the Evidence Act for
corroboration to the version of first informant being an former
statement recorded by the Police prior to registration of crime.
14. Be that as it may be, it is also worth to mention that the Courts
of law are not powerless and in case, during the course of trial the
Sessions Court come across with circumstances that the persons who
are not arraigned in this crime, found guilty of the offence, they could
be tried together with other co-accused. The provisions of section 319
of the Cr.P.C. contemplates the powers to proceed against other
persons found guilty of offence which reads as under :
"319. Power to proceed against other
persons appearing to be guilty of offence -
(1) Where, in the course of any inquiry
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into, or trial of, an offence, it appears from the
evidence that any person not being the accused
has committed any offence for which such
person could be tried together with the accused,
the Court may proceed against such person for
the offence which he appears to have
committed.
(2) Where such person is not attending
the Court, he may be arrested or summoned, as
the circumstances of the case may require, for
the purpose of aforesaid.
(3) Any person attending the Court,
although not under arrest or upon a summons,
may be detained by such Court for the purpose
of the inquiry into, or trial of, the offence which
he appears to have committed.
(4) Where the Court proceeds against
any person under sub-section (1) , then
(a) the proceedings in respect of
such person shall be commenced afresh
and the witnesses re-heard;
(b) subject to the provisions of
clause (a), the case may proceed as if
such person had been an accused person
when the Court took cognizance of the
offence upon which the inquiry or trial
was commenced.
15. In view of aforesaid provisions, if during the course of trial the
Court came across with the evidence that the assailants, who are not
charge-sheeted in this crime have committed an offence for which they
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could be tried with other accused, it is incumbent on the part of Trial
Court to proceed against these persons for the offence which appears
to have been committed by them. The concerned Trial Court has every
power to put these so-called accused for trial subject to sufficient
evidence against them. Moreover, learned trial Court may also call for
report directing further investigation if any required into the matter.
In such circumstances, we do not find it just and proper to entertain
the petition at the behest of petitioner for any relief as prayed.
16. The Apex Court, in the matter of Vinay Tyagi vs. Irshad Ali @
Deepak & ors. reported in 2012 DGLS(SC) 695 : 2013 (5) SCC
762, in paragraph Nos. 15, 16 and 33 has observed thus :-
"15. Further investigation is where the Investigating
Officer obtains further oral or documentary
evidence after the final report has been filed before
the Court in terms of Section 173(8). This power is
vested with the Executive. It is the continuation of a
previous investigation and, therefore, is understood
and described as a further investigation. Scope of
such investigation is restricted to the discovery of
further oral and documentary evidence. Its purpose
is to bring the true facts before the Court even if
they are discovered at a subsequent stage to the
primary investigation. It is commonly described as
supplementary report. Supplementary report would
be the correct expression as the subsequent
investigation is meant and intended to supplement
the primary investigation conducted by the
empowered police officer. Another significant
feature of further investigation is that it does not
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have the effect of wiping out directly or impliedly
the initial investigation conducted by the
investigating agency. This is a kind of continuation
of the previous investigation. The basis is discovery
of fresh evidence and in continuation of the same
offence and chain of events relating to the same
occurrence incidental thereto. In other words, it has
to be understood in complete contradistinction to a
reinvestigation, fresh or de novo investigation.
16. However, in the case of a fresh investigation,
reinvestigation or de-novo investigation there has
to be a definite order of the court. The order of the
Court unambiguously should state as to whether
the previous investigation, for reasons to be
recorded, is incapable of being acted upon. Neither
the Investigating agency nor the Magistrate has any
power to order or conduct fresh investigation. This
is primarily for the reason that it would be opposed
to the scheme of the Code. It is essential that even
an order of fresh/de novo investigation passed by
the higher judiciary should always be coupled with a
specific direction as to the fate of the investigation
already conducted. The cases where such direction
can be issued are few and far between. This is
based upon a fundamental principle of our criminal
jurisprudence which is that it is the right of a
suspect or an accused to have a just and fair
investigation and trial. This principle flows from the
constitutional mandate contained in Articles 21 and
22 of the Constitution of India. Where the
investigation ex facie is unfair, tainted, mala fide
and smacks of foul play, the courts would set aside
such an investigation and direct fresh or de novo
investigation and, if necessary, even by another
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independent investigating agency. As already
noticed, this is a power of wide plenitude and,
therefore, has to be exercised sparingly. The
principle of rarest of rare cases would squarely
apply to such cases. Unless the unfairness of the
investigation is such that it pricks the judicial
conscience of the Court, the Court should be
reluctant to interfere in such matters to the extent
of quashing an investigation and directing a fresh
investigation. In the case of Sidhartha Vashisht v.
State (NCT of Delhi) [(2010) 6 SCC 1], the Court
stated that it is not only the responsibility of the
investigating agency, but also that of the courts to
ensure that investigation is fair and does not in any
way hamper the freedom of an individual except in
accordance with law. An equally enforceable canon
of the criminal law is that high responsibility lies
upon the investigating agency not to conduct an
investigation in a tainted or unfair manner. The
investigation should not prima facie be indicative of
a biased mind and every effort should be made to
bring the guilty to law as nobody stands above law
de hors his position and influence in the society.
The maxim contra veritatem lex nunquam aliquid
permittit applies to exercise of powers by the courts
while granting approval or declining to accept the
report. In the case of Gudalure M.J. Cherian & Ors.
v. Union of India & Ors. [(1992) 1 SCC 397], this
Court stated the principle that in cases where
charge-sheets have been filed after completion of
investigation and request is made belatedly to
reopen the investigation, such investigation being
entrusted to a specialized agency would normally be
declined by the court of competent jurisdiction but
nevertheless in a given situation to do justice
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between the parties and to instill confidence in
public mind, it may become necessary to pass such
orders. Further, in the case of R.S. Sodhi, Advocate
v. State of U.P. [1994 SCC Supp. (1) 142], where
allegations were made against a police officer, the
Court ordered the investigation to be transferred to
CBI with an intent to maintain credibility of
investigation, public confidence and in the interest
of justice. Ordinarily, the courts would not exercise
such jurisdiction but the expression ordinarily
means normally and it is used where there can be
an exception. It means in the large majority of
cases but not invariably. Ordinarily excludes extra-
ordinary or special circumstances. In other words, if
special circumstances exist, the court may exercise
its jurisdiction to direct fresh investigation and even
transfer cases to courts of higher jurisdiction which
may pass such directions.
33. At this stage, we may also state another well-
settled canon of criminal jurisprudence that the
superior courts have the jurisdiction under Section
482 of the Code or even Article 226 of the
Constitution of India to direct further investigation,
fresh or de-novo and even reinvestigation. Fresh,
de-novo, and reinvestigation are synonymous
expressions and their result in law would be the
same. The superior courts are even vested with the
power of transferring investigation from one agency
to another, provided the ends of justice so demand
such action. Of course, it is also a settled principle
that this power has to be exercised by the superior
courts very sparingly and with great
circumspection."
23 WP-1619-15
17. It is evident from the aforesaid judicial pronouncement that the
Hon'ble Apex Court and High Court have every power to order further
investigation, fresh or de-novo investigation into the matter, provided
appropriate case to that effect is to be made out. In the instant case,
there is no justifiable circumstances on record to issue directions for
fresh investigation. In contrast, most of the investigation was carried
out under the supervision of this Court. The observations of the
aforesaid judicial pronouncement in Vinay Tyagi (cited supra) would
not advance the contention propounded on behalf of petitioner. It
would be reiterated that the Investigating Agency has every right to file
supplementary charge-sheet, if any, required into the matter.
18. In view of aforesaid discussion, we are of the opinion that there
is no propriety to cause any interference into the investigation of the
crime at the behest of petitioner. The writ petition being inept
deserves to be dismissed. In sequel, criminal writ petition stands
dismissed. Rule is discharged.
19. In view of dismissal of criminal writ petition, pending criminal
applications does not survive and stand disposed of accordingly.
20. The observations made herein-above are restricted only to the
extent of adjudication of present petition and learned trial Court shall
not influenced by the same.
21. The Criminal writ petition stands disposed of accordingly.
Sd/- Sd/-
[ K. K. SONAWANE, J. ] [ S.S. SHINDE, J.]
MTK
***
