Rashmi D/O Digambar Dakhore vs State Of Maharashtra And 5 Others
2021 Latest Caselaw 4492 Bom

                                                                    901.cri.wp.692.2020.odt
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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                       CRIMINAL WRIT PETITION NO.692/2020

          Rashmi D/o Digambar Dakhore,
          Aged about - 26 Years, Occu- Private,
          R/o. C/o. Naresh Sangole,
          Plot No.189, Near Ginjar mall,
          Bezanbagh, Jaripatka, Nagpur.                    ..... PETITIONER

                                    // VERSUS //

 1.     State of Maharashtra.

 2.     State of Maharashtra,
        through the Commissioner of
        Police, Nagpur.

 3.     State of Maharashtra,
        through Police Station,
        Jaripatka, Tah. and District Nagpur.

 4.     Police Station Officer,
        Police Station Satara, Aurangabad
        Dist - Aurangabad.

 5.     State of Maharashtra,
        through the Commissioner of Police,
        Aurangabad, Dist- Aurangabad.

 6.     Saurabh s/o Santosh Tiwari,
        Aged about - 27 Years,
        R/o. Padmavati Nagar, Godhni,
        Satara, Aurangabad City,
        Presently residing at Plot No.4,
        Radha Krishna Mandir Suryavnshi
        lay out, Godhni Railway, Godhni
        Nagpur.                                       .... RESPONDENTS

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          Shri A. S. Band, Advocate for petitioner.
          Ms. K. S. Joshi, P. P. for respondent nos. 1 to 5.
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                                                                  901.cri.wp.692.2020.odt
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                               CORAM : SUNIL B. SHUKRE AND
                                       AVINASH G. GHAROTE, JJ.

DATE : 11/03/2021

ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)

1] Heard.

 2]                Rule. Rule made returnable forthwith.


 3]                Heard finally by consent of the learned counsel appearing

 for the parties.


 4]                By this petition, the petitioner, who is a victim of serious

crime and who has made a complaint making serious allegations against

the accused, is placing before this Court the serious legality committed

by one Police Officer holding a senior position in the police department

which is of Deputy Commissioner of Police, which has been precipitated

further by Aurangabad Police.

5] The petitioner had filed a complaint with Police Station,

Jaripatka on 23.10.2019 alleging that she was taken for a ride and

cheated by the accused, upon a promise of marriage thereby inducing

her to enter into physical relationship with him at different places

situated at Aurangabad, Pune, Nagpur, Godhani and Koradi and not only

that, even trying to paint the petitioner in bad light by using some video

clip which the accused has been alleged to have recorded without

knowledge of the petitioner. The petitioner, in her complaint, has given

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all the necessary details to enable the police to carry out investigation

into the cognizable offences disclosed in the complaint. But, instead of

making investigation at Nagpur, the Deputy Commissioner of Police,

Zone No.5, Nagpur city suddenly ordered transfer of the investigation to

Aurangabad. According to the learned P. P., the investigation was

transferred online on 24.10.2020. But, it is seen from the record that the

actual transfer of the investigation occurred only after 12.11.2020 as till

that date, the papers of the investigation had not been transferred to

Aurangabad police. Even before transfer of the papers to Aurangabad,

Police Station, Satara, District Aurangabad had registered offence on

26.10.2020 against the accused and it is seen from the record that

Aurangabad police started the investigation in right earnest.

6] The investigation started so hurriedly was also completed

with break neck speed and even the charge-sheet was filed on

24.12.2020 in the jurisdictional Court at Aurangabad. During this

period of about one and half month between receipt of the papers of the

investigation by Aurangabad police and filing of the charge-sheet in

Aurangabad Court, the investigation, as seen from the case diary, has

been literally rushed through. Some statements of the petitioner were

recorded showing that the petitioner was a reluctant and non-

cooperative witness who had refused to give any details of the spots of

incident and even refused to show the spots of incident. This was

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against the background that the mobile numbers of the petitioner and

the accused were provided and other details of the spots of incident

were mentioned in the complaint itself. Aurangabad police came to

Nagpur probably only once and on the excuse of the petitioner having

refused to show the spot of incident, got one spot panchnama prepared,

in which it has been mentioned that the spot panchnama was shown to

the Investigating Officer by brother of the petitioner. In the spot

panchnama nothing is mentioned about refusal of the petitioner to show

the spot of incident. There is no record available with Aurangabad

police which would show that any notice was issued to the petitioner

calling upon her to remain present at Satara Police Station, Aurangabad

for the purpose of investigation. The case diary does not show that any

notice was issued to the petitioner requesting her to show to the police

the spot of incident at Nagpur. The complaint refers to several spots of

incidents such as Godhani, Koradi, Nagpur, Pune and also some places in

Aurangabad. As regards the places situated at Godhani, Koradi, Nagpur

and Pune, there is no investigation worth the name made by the

Investigating Officer of Aurangabad. The only reason given is that the

petitioner was non-cooperative throughout the investigation.

7] We are of the view that if the petitioner had been really

non-cooperative in the matter and was not interested in the

investigation, the petitioner would not have filed this petition making

901.cri.wp.692.2020.odt

serious allegations against the police officers. The petitioner has also

prayed for calling of explanation from respondent no.3 i.e. Investigating

Officer of Police Station, Jaripatka as to why the Investigation was

transferred. The fact is that the petitioner being apprehensive of the

objectivity and efficacy of the investigation being made in this case by

the police, the petitioner filed this petition. We are, therefore, of the

view that the statements shown to be given by the petitioner to

Aurangabad police reportedly expressing her unwillingness to co-operate

with Aurangabad police cannot be believed and given any weight.

8] The above conclusion gets further support from the

inadequate, rather a farce of the investigation made by Aurangabad

police. Just one instance to quote here and we think the point would be

clear. Aurangabad police, it is seen from case diary, has not made any

reasonable attempt to trace out the mobile phone in which video clip

showing the petitioner in bad light was stored. The Investigating Officer,

Aurangabad, who is personally present before the Court, informs that

the mobile handset was destroyed by the accused and therefore offence

punishable under Section 201 of the Indian Penal Code has been

registered against him. When we asked about the material on the basis

of which an inference has been drawn about destruction of mobile

phone, the Investigating Officer could not show to us any such material

collected during the course of investigation. In fact, the Investigating

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Officer did not even bother to file application before the concerned

Sessions Court at Aurangabad to seek cancellation of anticipatory bail

granted to the accused. If one has to accept the reason put forward by

the Investigating Officer for not seizing the mobile handset because it

was destroyed by the accused, one has to also say that this was a very

good ground for the Investigating Officer to have obtained the order for

cancellation of the anticipatory bail granted to the accused. Destroying

of a mobile handset in which some incriminating material was present

amounts to tampering with evidence and on this ground alone, the

anticipatory bail would have been cancelled, provided an attempt in this

direction was made by the Investigating Officer. But, no such attempt

was made by him. We have, therefore, a reason to believe that the

investigation in this crime has been carried out in such a manner as to

create some loopholes in the evidence that has been collected with a

view to give some advantage to the accused and, therefore, appropriate

inquiry and departmental action is warranted against the erring

Investigating Officer.

9] Thus, we find that the statement of the petitioner recorded

by Aurangabad police showing that the petitioner was an unwilling

witness cannot be believed by us and we are inclined to reject the

statement so recorded by Aurangabad police.

10] Now, we proceed to consider the reason for transfer of the

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investigation to Aurangabad police. There is no order placed on record

by the respondents whereby the investigation has been transferred. It is

only stated that now a days there is online process by which the transfer

of investigation takes place. It is stated that the investigation was

transferred on 24.10.2020. The online transfer of the investigation may

be there on 24.10.2020, but, the actual transfer of the investigation

could take place only after the FIR and other material which has been

collected during whatever investigation which was done at Nagpur were

physically transferred to the new Police Station. In the present case,

such physical transfer of papers had taken place after 12.11.2020 as

there is an order passed to this effect on 12.11.2020 directing the

physical transfer of papers of the investigation. The date on which these

papers were received by Aurangabad police has not been disclosed

before the Court by Aurangabad Investigating Officer. Be that as it may,

the material fact is of the time available for making of investigation.

This time could be calculated from 13.11.2020 till 24.12.2020, the date

of the charge-sheet came to be filed. This means hardly one month and

11 days time was available and utilized by the Investigating Officer in

making investigation. This was relatively a short time but still

investigation could be done provided, an all out effort is made. But, no

effort is seen to be made by the Aurangabad police and even before the

anticipatory bail granted to the accused could be cancelled, Aurangabad

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police hurriedly filed a charge-sheet on 24.12.2020. These facts perhaps

have some nexus with the order of transfer of investigation passed by the

Deputy Commissioner of Police, Zone - 5, Nagpur. This officer ought not

have transferred the investigation of this case to Aurangabad police,

there being no legal reason available and yet he did it on specious

ground that the primary spot of incident was situated near Bajaj

Hospital, Aurangabad. The officer who transferred the investigation was

a senior police officer, well trained in procedural criminal law, and so

would know that when an offence like that of rape has been committed

at different places, there would be multiple spots of incidents requiring

equal attention, and making no distinction in between them so as to

arbitrarily categorise them into primary, secondary, tertiary and the like

spots of incident. But, the Deputy Commissioner of Police giving a novel

ground of primary spot of incident chose to transfer the investigation to

Aurangabad police. In fact, at Aurangabad, there were hardly two or

three spots of incidents and whereas there were more than three or four

spots of incidents situated in and around Nagpur. There were also spots

of incidents situated at Pune. So, if there were any primary spots of

incident, they were in Nagpur. But, the Deputy Commissioner gave

prime importance to Aurangabad spots of incident, ignored all the other

spots of incidents and transferred the investigation. There could not

have been any more arbitrariness than what has been displayed by the

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Deputy Commissioner of Police. It is here that we find that transfer of

investigation to Aurangabad, and Aurangabad police hurriedly

completing the investigation leaving major loopholes in it on some

pretext, all appears to be a well thought out strategy to give advantage

to the accused, thinking that none can blame Nagpur police as

investigation was not made by it and so also the Aurangabad police as

the complainant did not co-operate (which is not true). This would call

for through inquiry. We would only say that now the Commissioner of

police at Nagpur would have to look into the matter, make inquiry into

the arbitrariness shown by the Deputy Commissioner of Police in

suddenly transferring investigation to Aurangabad and take such

appropriate departmental action in the matter as deemed fit. Similar

inquiry and action would have to be made and taken by Aurangabad

Police Commissioner. But, till that time we cannot wait and we would

have to pass effective directions in the matter.

11] In the circumstances, we find that this is fit for making

interference in the investigation made so far. Accordingly, we allow this

petition.

12] It is directed that the criminal case bearing RCC No.2116 of

2020 pending on the file of 14th Judicial Magistrate First Class,

Aurangabad be transferred to the Court of Chief Judicial Magistrate,

Nagpur with immediate effect.

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13] We further direct that this being a fit case for making

further investigation into the complaint, the further investigation shall

be carried out by Local Crime Branch in accordance with the mandate of

Section 173(8) of the Cr. P. C. and such further investigation be

completed within a period of eight weeks from the date of the order.

14] We further direct Commissioners of Police at Nagpur and

Aurangabad to make inquiry respectively into the matter of sudden

transfer of investigation by Deputy Commissioner of Police, Zone-5,

Nagpur city to Aurangabad police and inadequate investigation by

Aurangabad police and take such appropriate departmental action as

may be warranted in the circumstances.

15] We also direct the Commissioner of police, Nagpur to frame

guidelines, in consultation with the Law Officer of the police department

and also learned public prosecutor, High Court, Nagpur, to be followed

in the matter of transfer of investigation from one Police Station to

another Police Station and circulate the same for their strict compliance

and implementation in the city of Nagpur.

Rule is made absolute accordingly.

              (AVINASH G. GHAROTE, J)               (SUNIL B. SHUKRE J.)
 Sarkate.