Vikas S/O. Damodhar Waghmare vs The State Of Maharashtra And ...
2017 Latest Caselaw 7875 Bom

                                        (1)                             cri.wp 862.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


               CRIMINAL WRIT PETITION NO. 862 OF 2017


      Vikas s/o. Damodhar Waghmare
      Age-33 years, Occ. Agril.,
      R/o. Dhorjalgaon, Tq. Shevgaon,
      Dist. Ahmednagar.                                     ...      Petitioner

                       Versus

1.    The State of Maharashtra
      Home Department,
      Mantralaya, Mumbai - 32.

2.    The Police Inspector,
      Shevgaon Police Station,
      Tq. Shevgaon, Dist. Ahmednagar.

3.    The Superintendent of Police,
      Ahmednagar.

4.    Special Inspector General Police,
      Nashik Region, Nashik.                                ...      Respondents

                                       -----

Mr. Bhausaheb S. Deshmukh, Advocate for the Petitoner.
Mrs. P.V. Diggikar, A.P.P. for the Respondent/State.
                                     -----

                                    CORAM :    S.S. SHINDE &
                                               MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 04.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 06.10.2017 ...

(2) cri.wp 862.17

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of

both the sides the matter is heard finally.

2. In this writ petition presumably under Article 226 of the

Constitution of India, the petitioner is seeking following directions in

prayer clause 'B':

B) "By allowing this Criminal Writ Petition, the respondent

authorities may kindly be directed to decide the representations

dated 26/4/2017 and 27/4/2017 made by the petitioner and

transfer the investigation to C.I.D. or other appropriate agency

and seeking further direction to make further investigation in the

Crime no. 86/2016 registered with Police Station Shevgaon, Dist.

Ahmednagar."

According to the petitioner he took treatment for Piles from one

Vishwas Ravindranath Subalchandra on 15.07.2015, on his advice, by

spending Rupees Seven Thousand. He underwent surgery, however, did

not get any relief. He therefore approached one Dr. Bhosale at

Ahmednagar and later on it was revealed to him that in fact said Vishwas

Ravindranath Subalchandra is a quack. He lodged a complaint with the

(3) cri.wp 862.17

respondent nos. 2 and 3, the Police Inspector of Shevgaon Police Station

and the Superintendent of Police, Ahmednagar respectively on

12.08.2015 and requested them to take action against the quack.

Accordingly offence was registered at Shevgoan Police Station on a

complaint filed by one Dr. Manisha Narayan Hinge and in due course of

time a charge-sheet has been filed before the learned Judicial Magistrate

First Class. According to the petitioner, when he went through the

annexures filed with the charge-sheet, it was revealed that the

respondent no.2 Police Inspector has not carried out the investigation

properly. His statement has not been recorded correctly. Though Dr.

Bhosale has been cited as a witness neither his statement is annexed

with the charge-sheet nor is the certificate issued by him. According to

him, these lacuna have been intentionally left open to favour the

accused. He has therefore made the aforementioned prayer.

3. It is necessary to note at this juncture that on a previous

occasion after hearing both the sides this Court had passed the following

order on 16.08.2017:

"We grant liberty to the petitioner to approach the Court

of Judicial Magistrate, First Class, wherein the charge-sheet is

presented.

(4) cri.wp 862.17

2. The learned counsel appearing for the petitioner, on

instructions, submits that, the petitioner will file the appropriate

application/proceedings on or before 28th August, 2017. In case

such application/proceedings are filed, the Magistrate shall take

decision on the said application/proceedings as expeditiously as

possible and preferably within four weeks from filing such

application/proceedings.

3. Hearing of this Petition is deferred. Stand over to 27th

September, 2017."

4. In pursuance of such liberty the petitioner moved an

application before the learned Judicial Magistrate First Class and after

hearing the parties, by the order dated 25.09.2017, the learned

Magistrate rejected the application seeking further investigation under

Section 173(8) of the Criminal Procedure Code. It is at this stage that

the matter has been heard finally. The learned Advocate for the

petitioner laboured to point out as to how the investigation has been

faulty and also simultaneously tried to assail the observations and the

conclusion drawn by the learned Magistrate while passing the order dated

25.09.2017.

(5) cri.wp 862.17

5. The learned A.P.P. by referring to the copy of the charge-

sheet and the annexures, submitted that a certificate issued by Dr.

Bhosale has been annexed with the charge-sheet. The learned A.P.P.

also submitted that, it is the wisdom of the Investigating Officer as to the

manner in which the investigation is to be carried out and what material

is to be collected and sent up with the charge-sheet. This Court should

not interfere sans concrete material, particularly when the learned

Magistrate has applied his mind and has rejected the application of the

petitioner for directions to the Investigating Officer to further investigate

the crime.

6. At the cost of repetition, it is necessary to note that in fact

the purpose of the writ petition stood served no sooner a liberty was

granted to the petitioner to approach the Judicial Magistrate First Class

who is seized of the matter and to submit appropriate application to

redress his grievance sought to be made out in this writ petition. The

petitioner, in pursuance of such liberty submitted an application and

solicited order of the learned Magistrate. Unfortunately for him his

request did not find favour with the Magistrate who has rejected the

application. Bearing in mind the chronology of events, in fact we are of

the strong opinion that the purpose of the writ petition stands duly

(6) cri.wp 862.17

served and no further relief can be granted.

7. If at all the petitioner is aggrieved by the order passed by the

learned Magistrate on 25.09.2017, he can avail suitable remedy available

to him in law. However, the petitioner cannot be allowed to indirectly go

into the legality or otherwise of the order passed by the Magistrate in this

writ petition. In other words, in our view it would not be appropriate for

this Court to go into the legality or otherwise of the order passed by the

learned Magistrate in pursuance of liberty which was granted to the

petitioner. Precisely, for this reason we do not see any merit in the writ

petition anymore.

8. Even otherwise, it has to be borne in mind that even

according to the petitioner he had approached Dr. Bhosale since he did

not get any relief from the treatment/surgery performed by the accused.

Thus, the only information which Dr. Bhosale could give is to corroborate

the petitioner's version about having approached him for further

treatment. Therefore, Dr. Bhosale cannot be said to have had any

personal knowledge of the crime allegedly committed by the accused.

9. Besides, as is apparent from the papers and as has been

mentioned in the police papers called for and submitted by the learned

(7) cri.wp 862.17

A.P.P., a certificate issued by Dr. Bhosale is very well available in record

and seems to have been forwarded along with the charge-sheet.

Therefore there seems to be no substance in the submission of the

learned Advocate for petitioner that the certificate issued by Dr. Bhosale

has not been transmitted along with the charge-sheet.

10. Under the circumstances, we find no merit in the writ petition

and it is accordingly dismissed. Rule is discharged.

      [MANGESH S. PATIL, J.]                         [S.S. SHINDE, J.]




mub