Rajendra S/O Shamraoji Padole vs State Of Maharashtra, Through ...
2017 Latest Caselaw 6511 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR



                  Criminal Writ Petition No.243/2016
                                  ...



Mr. Rajendra s/o Shamraoji Padole,
Aged about 41 years,
Occupation: Business, R/o Ekta Flat
Society, Behind Kachore Colony,
Chinchbhavan, Nagpur.       ..                              PETITIONER


                               .. Versus ..


1. State of Maharashtra through Police
   Station Officer, Police Station Ajni,
   Nagpur.

2. Union of India through its Secretary,
   Ministry of Information and
   Broadcasting, New Delhi.

3. Press Council of India through its
   Chairman, having its office at
   Suchana Bhawan, 8, CGO Complex,
   Lodhi Road, New Delhi- 110 003.

4. Sau. Rajshree w/o Deepraj Khobragade,
   Age 32 years, Occupation: Nil,
   R/o C/o Shri Upgade, Gurukrupa
   Society, Narendra Nagar, Police Station
   Ajni, Nagpur.


5. State of Maharashtra, through its
   Secretary, Department of Home,
   Mantralaya, Mumbai -32.




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6. Commissioner of Police, Nagpur city,
   Nagpur.

7. Mr. Deepraj Khobragade,
   Aged about 39 years,
   Occupation: Service,
   R/o C/o Shri Upgade, Guru Krupa
   Society, Narendra Nagar, Nagpur.
   P.S. Ajni, Nagpur.               ..                            RESPONDENTS


Mr. R.R. Vyas, Advocate for Petitioner.
Mr. S.M. Ukey, Additional Public Prosecutor for Respondent
Nos. 1,5 and 6.
Mrs. Mugdha R. Chandurkar, Advocate for Respondent No.2.
Mr. S.S. Lade, Advocate for Respondent No.4.

                               ....


CORAM        : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON  : August 21, 2017
PRONOUNCED ON : August 24, 2017.



JUDGMENT (per Manish Pitale, J. )

Rule made returnable forthwith. Heard finally with

the consent of the learned counsel appearing for the parties.

2. By this writ petition, the petitioner has, inter alia,

prayed for handing over of investigation of his complaint dated

29.01.2016 submitted before the respondent no.1 to the

Central Bureau of Investigation (CBI) or to any other

independent investigating agency, with a further prayer for

direction for registration of First Information Report (FIR) on the

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basis of the said complaint.

3. The facts leading up to the instant writ petition are

that, there arose a dispute between the petitioner and the

respondent no.7 in respect of purchase of a plot of land,

wherein it was the claim of the respondent no.7 that the

petitioner was liable to return certain amount to him, which

was disputed by the petitioner. On 05.07.2015 the respondent

no.7 submitted a written complaint before the respondent no.1,

at the Ajni Police Station, Nagpur, claiming that the petitioner

had cheated the respondent no.7 and further that the

petitioner was speaking in an indecent manner on the mobile

with wife of respondent no.7 i.e. respondent no.4 in the writ

petition. The respondent no.7 prayed to the respondent no.1

to help return of a sum of Rs.55 lakhs from the petitioner.

4. On the same date i.e. 05.07.2015, respondent no.4

(wife of respondent no.7) also submitted a written complaint

before the respondent no.1 Police Station, claiming that the

petitioner was speaking in an indecent manner with her and

that he was making demand of physical relationship. The

respondent no.4 prayed that strict action be taken against the

petitioner in that regard. Thereafter, on 22.07.2015, the

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respondent no.4 submitted another written complaint before

the respondent no.1 at the Police Station, claiming that on

20.07.2015 the petitioner had entered her house when she was

alone and that he raped her. It was further alleged in the

complaint that he abused her in the name of her caste, thereby

committing an offence under the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989. On this

basis, respondent no.1 requested for registering offences

against the petitioner.

5. It is the case of the petitioner that all these

complaints were false and that they were submitted in the

Police Station only with a view to pressurise him into making

payment of the amount of Rs.55 lakhs to the respondent nos. 4

and 7. It is the case of the petitioner that he was called to the

Police Station on the basis of the complaint dated 22.07.2015

submitted by the respondent no.4 wherein allegation of rape

was made against him. He attended the Police Station on

22.07.2015 where, according to him, the Police Officers told

him that if he did not pay the amount demanded by

respondent no.4, and the matter was not amicably settled by

him, an FIR would be registered on the basis of the allegations

made by respondent no.4. It is the case of the petitioner that

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he tried to tell them that he did not have that kind of money,

but the respondent nos. 4 and 7 along with persons

accompanying them put pressure upon him, due to which he

was forced to give cheques for the aforesaid amount to the

respondent nos. 4 and 7.

6. On the same day i.e. 22.07.2015, the respondent no.4

expressed in writing before the respondent no.1 in the Police

Station that the aforesaid three complaints had been made by

her against the petitioner because he had been avoiding to

make payment of the disputed amount and that all the three

complaints were concocted and that nothing as stated in the

complaints had actually occurred. It was only thereafter that

the petitioner was allowed to leave the Police Station. On this

basis, it is submitted on behalf of the petitioner that the

complaints made by the respondent nos. 4 and 7 pertaining to

serious charge of rape and other offences against him were

made only with a view to extract money from him by setting

into motion the process of the criminal law, on the basis of the

palpably false complaints.

7. It has further come on record that the cheques issued

by the petitioner in the aforesaid circumstances of pressure

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exerted by the respondent nos. 4 and 7 in the presence of

Police Officers, were dishonoured. Thereupon, on 27.07.2015,

the respondent no.4 again approached the respondent no.1

Police Station and reiterated her complaint regarding offence

of rape committed by the petitioner on 20.07.2015. The

allegation of abuse in the name of caste was also reiterated,

leading to registration of FIR No. 255/2015 dated 27.07.2015

against the petitioner for offences under Sections 376, 354 (D)

and Sections 3 (1)(xii) and 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989. The

investigation in pursuance of the said FIR was carried out and a

charge sheet was submitted on 30.11.2015 against the

petitioner.

8. The petitioner filed Criminal Application (APL)

No.762/2015 under Section 482 of the Code of Criminal

Procedure for quashing of the FIR filed against him before this

Court, which was admitted and interim relief was granted on

14.01.2016.

9. It is the case of the petitioner that he had approached

the respondent no.1 for registration of offences against the

respondent nos. 4 and 7 for extortion and cheating, in view of

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the false complaints of rape, made against him by the said

respondents. But the respondent no.1 had refused to take any

action in the matter. On 29.01.2016 the petitioner filed a

complaint before the respondent no.1 stating in detail how the

respondent nos. 4 and 7 had submitted false criminal

complaints making serious charges of rape and other offences

against him, only with a view to extort an amount of Rs.55

lakhs. The petitioner prayed for the registration of criminal

case against the respondent nos. 4 and 7. On 23.02.2016 the

respondent no.1 sent a letter to petitioner stating that the

facts stated by him in his complaint dated 29.01.2016 divulged

dispute of civil nature and that no offence appeared to have

been made out.

10. The petitioner then submitted a representation on

01.03.2016 before the Superior Officer i.e. the Commissioner of

Police, Nagpur (respondent no.6) and others. The petitioner

stated that his complaint dated 29.01.2016 submitted to

respondent no.1 disclosed cognizable offences committed by

the respondent nos. 4 and 7 and yet, by communication dated

23.02.2016, the respondent no.1 had refused to take any

action in the matter.

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11. In this backdrop on 18.03.2016, the petitioner filed

this writ petition making various prayers including the

aforesaid prayer for registration of FIR on the basis of the

complaint dated 29.01.2016, with a further prayer for handing

over of the investigation to the CBI or any other independent

investigating agency. On 29.03.2016, this Court issued notice

in the present writ petition.

12. In the affidavit-in-reply filed on behalf of the

respondent no.1, it has been stated that an FIR bearing no.

149/2016 was eventually registered for the grievance raised by

the petitioner, on the basis of order dated 04.05.2016 passed

by the Additional Chief Judicial Magistrate, Nagpur, in

application under Section 156 (3) of the Cr.P.C. filed by the

petitioner. The said FIR was registered against respondent nos.

4 and 7 for offences under Sections 384, 406, 420 read with 34

of the IPC. It is stated at the bar on behalf of the respondents

that charge sheet has been submitted in pursuance of the

investigation carried out in respect of the said FIR registered

against the respondent nos. 4 and 7. It is also stated that the

petitioner withdrew his application under Section 482 of the

Cr.P.C. for quashing of the FIR registered against him. It was

disposed of as withdrawn on 23.11.2016.

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13. In these facts, it is the contention of Mr. R.R. Vyas,

learned counsel appearing on behalf of the petitioner that the

petitioner has no faith in the respondent no.1, the investigating

agency in the present case. It is contended that Police Officers

in the said Police Station did not act in a fair and responsible

manner, when they by acts of commission and omission

allowed the respondent nos. 4 and 7 to blatantly misuse the

process of criminal law to facilitate extortion of amounts from

the petitioner. It is contended that the actions of the

respondent no.1 have led to an apprehension in the mind of

the petitioner that the entire investigation has been unfair and

that, therefore, it is necessary that the case needs to be

transferred to an independent investigating agency.

14. The counsel for the petitioner further contended that

although now the FIR stood registered on the basis of his

complaint, the action taken in this regard by the respondent

no.1 was belated and that the petitioner apprehended that the

investigation and prosecution of the case wherein he is the

complainant would not be fair and proper. The counsel for the

petitioner relied on judgment of the Hon'ble Supreme Court in

the case of Dharam Pal .vs. State of Haryana and others -

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(2016) 4 Supreme Court Cases 160, on the issue of power

of constitutional Courts to direct transfer of investigation when

it was manifest that the investigating authority was not acting

in an impartial manner.

15. As against this, Mr. S.M. Ukey, learned Additional

Public Prosecutor appearing on behalf of the respondent nos.

1,5 and 6 submitted that since an FIR on the complaint of the

petitioner had now been registered and a charge sheet was

also submitted, the prayer of the petitioner could not be

granted. It was further submitted that vague allegations had

been made against the Police Officers and that no specific

allegation was leveled against any particular Police Officer and

further that there was no material on record to show that the

investigation was biased. The counsel for the said

respondents relied upon the judgment of this Court in the case

of Afak Shabbir Khan .vs. State of Maharashtra and

another - 2012 All M.R. (Cri) 3480.

16. Mr. S.S. Lade, counsel for the respondent Nos. 4 and

7 also contended that since charge sheet had been submitted

in respect of first information reports registered at the behest

of the petitioner on the one hand and the respondent nos. 4

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and 7 on the other, there was no substance in the writ petition

and that it deserved to be dismissed.

17. The Hon'ble Supreme Court in the case of Dharam Pal

v. State of Haryana (supra), has held in the context of power of

Constitutional Courts to transfer and/or to order fresh

investigation or re-investigation, when fair trial may be quite

difficult unless there is a fair investigation. Although the

Hon'ble Supreme Court in the said decision has cautioned that

the power to transfer investigation from one agency to another

has to be exercised sparingly, it has been emphasized that the

sanctity and purity of genuine investigation has to be ensured.

In the said decision, the Hon'ble Supreme Court transferred the

investigation to CBI even when the trial had commenced and

some witnesses had been examined.

18. In the criminal justice system, fair and impartial and

truthful investigation is of the greatest significance so that the

faith of the citizen in the system is reinforced. A fair trial also

depends on the manner of investigation. If there is any

indication of either callousness or highhandedness in

functioning of the Investigating Agency, the very root of the

criminal justice system is adversely affected. To set the

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criminal law in motion to facilitate the settlement of private

scores or civil disputes, would amount to abuse of power by

the competent authority. Similarly, failure to set the criminal

law in motion in genuine cases to facilitate the settlement of

private scores or civil disputes, amounts to abdication of

function by the competent authority. The Police Station cannot

be a place to be used where the private disputes between the

parties can be settled by the Police Officers by their acts of

commission or omission and under the threat of putting into

motion criminal law on the basis of the complaint made by

either party to the dispute.

19. In the present case, what we have noticed is that the

promptness or efficiency shown by the Police Station Officers

in registering the offences on 27-7-2015 in spite of settlement

dated 22-7-2015 is not reflected in the case of the complaint

made by the petitioner on 29-1-2016. The petitioner was

required to approach the Court, and as per the order

dated 4-5-2016 passed by the learned Additional Chief Judicial

Magistrate, Nagpur, the FIR was registered against the

respondent Nos.4 to 7 for the offences under Sections 384, 406

and 420 read with Section 34 of IPC. After filing of this

petition, promptness and efficiency is shown to file a charge-

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sheet and the claim in this petition is opposed on that ground.

The sequence of events in the present case and the manner in

which the respondent No.1, the Investigating Authority, has

proceeded in the matter of complaints filed by the parties,

demonstrate unfair and partial approach of the Investigating

Agency. This leads to an apprehension that neither the

investigation in the matter will be fair nor the trial shall be

conducted in a fair manner by the prosecution.

20. The learned Additional Public Prosecutor has relied

upon the judgment of this Hon'ble Court in the case of Afak

Shabbir Khan .vs. State of Maharashtra (supra),

contending that in the said case it had been laid down that an

accused cannot pray for transfer of investigation, particularly

when there is no allegation of bias against the investigating

officer. The said judgment of this Hon'ble Court can be

distinguished because in the present case the petitioner is also

a complainant and he has stated facts and raised issues which

demonstrate that the investigation in the present case by the

respondent no.1 has not been fair and impartial.

21. We feel that in the present case, right from the first

instance, when the respondent nos. 4 and 7 submitted three

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complaints, making more and more grave allegations against

the petitioner till the stage of inordinate delay in registering FIR

on the complaint of the petitioner against the said respondents,

the respondent no.1 - investigating authority has not acted in a

fair, truthful and impartial manner. The investigating authority

is expected to professionally conduct investigation with

promptitude and without taking sides. In the face of such

conduct of respondent no.1, the investigation does not inspire

confidence and the entire process is vitiated.

22. It is also relevant that the complaints of respondent

nos. 4 and 7 on the one hand and that of the petitioner on the

other, are inextricably linked and a fair and truthful

investigation would require an independent agency to go into

both sets of complaints. This is because allegations of grave

nature concerning serious offences have been levelled by the

parties against each other and it would not be fair to transfer

only one set of the complaints to an independent investigating

agency.

23. In view of the above, we are of the considered view

that the investigation in respect of of both the first information

reports in the present case i.e. FIR No. 255 of 2015 dated

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27.07.2015 wherein respondent no.4 is the complainant and

FIR No. 149 of 2016 wherein the petitioner is the complainant

ought to be transferred to an independent investigating

agency. We believe that the ends of justice would be met if

the said two FIRs and consequent investigation are transferred

to the Criminal Investigation Department (CID) to be

investigated by an Officer not less than the rank of Deputy

Superintendent of Police. Accordingly, we direct the said two

FIRs to be transferred to the CID. The officer of the CID so

deputed shall conduct further investigation into both the

matters and file a report before the trial Court at the earliest,

so as to ensure fair trial for both sets of complaints in the

present matter. The other prayers made in the writ petition

are not required to be considered, in view of the aforesaid

direction.

24. Accordingly the writ petition is partly allowed and

disposed of in above terms.

      (Manish Pitale, J. )                       (R.K. Deshpande, J.)



halwai/p.s.