Shirley D/O Patric John vs State Of Maharashtra, Thr. Its ...
2021 Latest Caselaw 7564 Bom

  Judgment                                   1                               wp348.21.odt



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                        CRIMINAL WRIT PETITION NO. 348/2021


          Shirley D/o Patric John,
          Aged about 31 years, Occ. Service,
          R/o. B-22, St. Martin Nagar, Nara
          Ring Road, Jaripatka, Nagpur 440014

                                                                    .... PETITIONER

                                    // VERSUS //

 1]       State of Maharashtra,
          Through its Secretary,
          Department of Home,
          Mantralaya, Mumbai 32

 2]       State of Maharashtra,
          Through Police Station Officer,
          Police Station Jaripatka, Nagpur
                                                               .... RESPONDENT(S)

  *******************************************************************
            Shri Shakil V. Deshmukh, Advocate for the petitioner
                   Shri T.A. Mirza, APP for the respondents
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JUNE 08, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

 2]               RULE. Rule made returnable forthwith.



 3]               The petitioner has filed present petition alleging that in

September 2019, the petitioner got acquainted with one Mohamad Irshad

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Iqbal Mirza through social network. It is alleged that said Mohamad Irshad

called the petitioner at his home and raped her by administered stupefying

drug and took her nude photographs. It is alleged that on 09/11/2019, the

petitioner was forced to marry with Mohamad Irshad under threat of

publishing her nude photographs and video. It is alleged that thereafter

Mohamad Irshad physically and sexually exploited the petitioner. It is alleged

that on 08/04/2020, Mohamad Irshad took the petitioner to the office of one

Advocate and made her to sign the deed of divorce dated 23/03/2020. It is

alleged that on 13/01/2021, Mohamad Irshad again committed rape of the

petitioner against her will and without her consent. It is alleged that the

petitioner therefore became pregnant. It is alleged that due to constant abuse

and threats, the petitioner alongwith mother went to lodge FIR against

Mohamad Irshad on 26/04/2011 but the respondent no. 2 - Police Station

Officer refused to register the first information report. It is alleged that the

petitioner alongwith mother went to the respondent no. 2 - Police Station

again on 28/04/2021 but the Police Officers did not acknowledge the receipt

of the complaint of the petitioner. It is alleged that therefore the petitioner

on the same day submitted copy of the complaint dated 28/04/2021 to the

Office of Police Commissioner, Nagpur. Since the respondents refused to

register the crime against Mohamad Irshad, the petitioner filed the present

petition. The petitioner has prayed for the following reliefs: -

"A. Direct the respondent no. 2 to register the crime under Section 376(1) and 2(j), (k) and (n) of Indian Penal Code against Mr. Mohamad Irshad Iqbal Mirza in pursuance of the

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complaint dated 28/04/2021 (at Annexure-C) or this petition may be directed to be treated as FIR and further direct the Respondent no. 2 to register the crime under foregoing provisions on the basis of allegations levelled in the present petition; and B. After registration of crime, handover investigation of the said crime to the Crime Branch, Nagpur.

C. By way of interim relief and till its final disposal, direct the Respondent No. 2 or Crime Branch, Nagpur to register the Crime on the basis of Complaint dated 28/4/2021 (at Annexure-C) or this petition may be directed to be treated as FIR and further it may be directed to register the crime under foregoing provisions on the basis of allegations levelled in this petition and direct police authorities to accompany and forward the petitioner for medical examination for abortion i.e. Medical termination of Pregnancy in accordance with law, and further direct to conduct Deoxyribonucleic Acid Test (commonly known as DNA Test) of the foetus in the womb of Petitioner while Medical termination of Pregnancy by appropriate authority or forensic laboratory and also direct the Respondent No. 2 or Crime Branch, Nagpur to further direct appropriate authority or hospital or laboratory to preserve the foetus which will be aborted by the petitioner for proving paternity of the same and chastity of the petitioner as well as crime of rape committed by Mr. Mohamad Irshad Iqbal Mirza and for further investigation;"

4] On 06/05/2021, this Court issued notices to the respondents

making it returnable on 10/05/2021 and in the meantime, the Medical

Board (IGGMCH) was directed to conduct the medical examination of the

petitioner to ascertain whether the medical termination of pregnancy of the

petitioner was possible or not. Accordingly, a report was submitted to this

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Court. This Court by the order dated 11/05/2021 permitted the petitioner to

undergo the procedure of medical termination of pregnancy as per the

Medical Board's opinion dated 07/05/2021.

5] The respondents have filed affidavit dated 08/05/2021. It is

stated in para no. 11 of the said affidavit that the respondent no. 2 has

registered the first information report dated 07/05/2021 vide Crime

No. 274/2021 against the husband of the petitioner Mohammad Irshad for

the offences punishable under Sections 376(1), 376(2)(n), 504 and 506 of

the Indian Penal Code. The respondents by way of affidavit has placed on

record the copy of the F.I.R. No. 274/2021.

6] In view of the permission granted by this Court to terminate the

pregnancy of the petitioner and registration of the first information report

against the husband of the petitioner, prayer clauses (A) and (C) of the

petition no longer survive.

7] Insofar as the prayer clause (B) which is in respect of transfer of

investigation of the crime registered against the husband of the petitioner to

be transferred to the Crime Branch, Nagpur, the petitioner in her additional

affidavit dated 09/05/2021 has stated that the petitioner has lost faith in

Investigating Officer who is investigating the present crime as well as the

Officers of Jaripatka Police Station. The petitioner has further stated that she

has restrained herself from making adverse allegations in detail against the

concerned Police Officers. The petitioner in the said affidavit has expressed

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apprehension that the Investigating Officer may be in collusion with the

accused, and therefore she has reason to believe that fair investigation is not

possible if the present Investigating Officer is allowed to continue with the

investigation.

8] The respondents have filed affidavit-in-reply and have opposed

grant of relief in favour of the petitioner. It is stated that the petitioner is not

ready to co-operate with the respondent no. 2 and is not co-operating with

the investigation.

9] We have heard learned advocate for the petitioner and learned

APP for the respondents.

10] Learned advocate for the petitioner submitted that taking into

consideration the peculiar facts and circumstances of the present case, fair,

unbiased and transparent investigation is not possible if the present

Investigating Officer is allowed to continue with the investigation.

11] Learned APP submitted that there is no substance in the

allegation of the petitioner that the Investigating Officer is conducting the

investigation in collusion with the accused. He submitted that though there is

no substance in the allegations of the petitioner but considering the

importance of fair investigation, he has no objection to transfer the

investigation to the Crime Branch, Nagpur.

   Judgment                                 6                                wp348.21.odt



 12]              In our view, the aspect of fair investigation needs to be

appreciated in a wider context. The essence of criminal justice system is to

reach the truth. The underlying principle is that while the guilty must not

escape the punishment, no innocent person shall be punished unless guilt of

the accused is established in accordance with law. A fair investigation is a

sine qua non for a fair trial. The investigation should not only be fair, but

should manifestly be seen to be fair. We are aware of the well settled

principle that the order of transfer of investigation should not be passed as a

matter of routine or merely because a party has levelled some allegations

against the local police. This extraordinary power must be exercised

sparingly and cautiously and in exceptional situation where it becomes

necessary to provide credibility and instill confidence in the mind of victim

about the investigation. In the present case, significantly, there is no prayer to

transfer the investigation from State Machinery to Central Investigation

Agency like CBI.

13] Taking into consideration the peculiar facts and circumstances

of the present case and since the respondents have not objected for transfer

of investigation to the Crime Branch, Nagpur, we are of the view that to

instill confidence about fair investigation in the mind of victim, it is necessary

to transfer the investigation of the crime bearing no. 274/2021 to the Crime

Branch, Nagpur.

   Judgment                                   7                                wp348.21.odt



 14]              Hence, the following order:-

We direct the respondent no. 1 to entrust the investigation of

the F.I.R. No. 274/2021 registered with the respondent no. 2 -

Police Station to the Crime Branch, Nagpur who shall carry out

further investigation according to law.

Rule is made absolute in terms of prayer clause (B).

                   (JUDGE)                                   (JUDGE)




 ANSARI