Jaydeep Dilip Taware vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14554 Bom

SHAMBHAVI
NILESH                                                               WP-3207-21.odt
SHIVGAN
Digitally signed by
SHAMBHAVI
NILESH SHIVGAN          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2021.10.06
17:07:30 +0530               CRIMINAL APPELLATE JURISDICTION

                                     WRIT PETITION NO.3207 OF 2021

                      Mr. Jaydeep Dilip Taware
                      Age: 35 years, Occ: Agriculturist
                      R/o: Malegaon Karkhana, Shivnagar,
                      Taluka: Baramati, Dist. Pune          ... Petitioner

                                Vs

                      1 The State of Maharashtra
                      (At the instance of PI Baramati
                      Taluka Police Station)

                      2 Rohini Raviraj Taware
                      Age: 35 years, Occ: Housewife/
                      Social Work
                      R/o: Sharadnagar Malegaon Colony,
                      Taluka: Baramati, Dist: Pune

                      3 Sub-divisional Police Officer
                      Baramati Division, Pune Rural
                      Pune

                      4 Inspector General of Police
                      Kolhapur Range Kolhapur              ... Respondents
                                                 ...

                      Mr. Harshad Nimbalkar with Mr. Satyam H. Nimbalkar
                      and Mr. Sachin Wagh for the Petitioner.

                      Mr. Manoj Mohite, Senior Advocate i/by Mr. Nilesh M.
                      Wable for Respondent No.2.



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Mr. A.D. Khamkhedkar, APP for the Respondent No.1-
State.

IO Dy. S.P.Narayan Shirgaonkar attached to Baramati
Division present.


           CORAM : SANDEEP K. SHINDE J.
          RESERVED ON : SEPTEMBER 24, 2021.
          PRONOUNCED ON: OCTOBER 6, 2021.

JUDGMENT:

1 This Petition under Article 227 of the Constitution

of India read with Section 482 of the Code of Criminal

Procedure, 1973 ("Cr.P.C." for short) challenges the order

dated 16th August, 2021 in Crime No.350 of 2021 passed by

the learned Additional Sessions Judge, Pune.

2 Prosecution case in brief, is that, the complainant

being elected member of, Zilla Parishad, executed many

civic amenities projects in her constituency. Her husband,

was to help her out to execute the projects. May be

because her work was appreciated by electors, Prashant

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Popatrao More, local politician, was on cross terms with the

complainant's husband. Apparently, two local politicians to

gain popularity and supremacy in their constituency were,

competing with each other in all possible ways. Resultantly,

hostility grew between two groups. On a day in February-

March, 2021, one Rahul Gavhane, follower of the

complainant's group was abused and maltreated by the

members of rival group, Prashant Popatrao More, group

leader and his followers. After which, crime came to be

registered against Prashant P. More; Vinod @ Tom Popatrao

More and Akash More. On 1st June, 2021 at around 6.45 p.m.

Akash More (son of Prashant More) and a unknown person

came on motor-cycle and Akash More all of sudden opened

fire on husband of the complainant from fire-arm.

Distracted by the commotions, mob gathered around the

spot, however, Akash More and another, fled the spot by

waiving and scaring the mob by fire arm. Husband of the

complainant was removed to the hospital. Complainant

being eye witness disclosed the complicity of Prashant

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Popatrao More; Tom @ Vinod Popatrao More; Akash

Prashant More and one unknown person. Whereafter the

Crime No.350 of 2021 under Sections 307, 120B, 504, 506

of the Indian Penal Code, 1860 and Sections 3(25) (27),

4(25) of the Arms Act, against them.

3 Accused Prashant Popatrao More, Tom @ Vinod

Popatrao More and Rahul @ Rebel Krishant Yadav were

arrested on 1st June, 2021 and remanded to the police

custody upto 14th June, 2021. Akash More, a juvenile, who

opened fire, was also arrested on 1 st June, 2021. In the

course of the investigation, one country-made revolver; two

7.65 cartridges; one koyta; a knife and motor-cycle were

seized.

4 Investigation revealed that Prashant Popatrao

More since 2012-2021, had committed nine offences singly

or, jointly, either with Vinod @ Tom Popat More and others,

most of which, were body offences. Against, Vinod @ Tom

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Popat More, six offences were registered; out of which, he

has been acquitted in one offence and remaining are either

under investigation or pending in the Court. As against

Rahul @ Rebel Krishnat Yadav, two offences were registered

wherein Prakash Popatrao More and Akash More (Juvenile)

were co-accused. One can, understand the gravity, from the

following chart showing, criminal past of three accused:

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                            dk-d-3¼1½¼r½¼s½3¼2½¼va½      [email protected]@2018


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4 VsHkq.kh iks-LVs- [email protected] Hkk-n-fo-d- riklkoj ft-lksykiqj xzk- 302]201]120¼c½34] 5 Ckkjkerh rkyqdk [email protected] Hkk-n-fo-d- riklkoj 307]326]324]323]504]506] 109]34 6 Ckkjkerh rkyqdk [email protected] Hkk-n-fo-d- RCC NO. funksZ"k eqDdrk 674/2016 354]324]323]504]506]34

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5 In consideration of the facts of the case and the

criminal antecedents of the accused, a proposal seeking

approval under Section 23(1) of the Maharashtra Control of

Organized Crimes Act, 1999 ("MCOCA" for short) was

moved. Whereupon the approval was granted on 9 th June,

2021 under Section 23(1)(a) of the MCOCA.

6 On 19th June, 2021, statement of injured (husband

of the complainant) was recorded; wherein he disclosed

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following facts/events:

(I) In 2016, petitioner was elected as Gram Panchayat

Member;

(ii) In 2017, complainant was nominated by the

Nationalist Congress Party (NCP), to contest Zill Parishad

elections; however, candidature of petitioner's wife to

contest Zilla Parishad elections was refused by the NCP;

(iii) Complainant, was elected as a member of Zilla

Parishad in 2017;

(iv) Efforts were made by the petitioner to stall sanction of

bill raised, for the civil work executed by cousin of injured

through wife of Prashant More, who is member of

Panchayat;

(v) Injured was threatened by Petitioner and Prashant

More while he was executing civil work in Ward No.6 of

Gram Panchayat, awarded to one Vijayendra Shinde;

(vi) On 13th July, 2021 injured was threatened by petitioner

and Prashant More while executing the civil work

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7 Thus, it is prosecution's case that since husband

of the complainant was securing many civil contracts and

was gaining supremacy in the constituency and leverage in

the political arena, a rival group leader Prashant Popatrao

More conspired with the co-accused to eliminate the

husband of the complainant and Akash Popatrao More

(Juvenile-Son of Prashant Popatrao More) was asked to open

the fire on the husband of the complainant, with a view that

being juvenile, even if convicted, would not suffer a harsh

punishment.

8 Petitioner was arrested on 6th July, 2021 as a

member of, crime syndicate headed by Prashant Popatrao

More. On the same day, applicant was produced before the

Additional Sessions Judge, Pune in Crime No.305 of 2021

registered under Sections 307, 120B, 504, 506 of the Indian

Penal Code, 1860 and Section 3(1)(ii), 3(4) of the MCOCA.

Prosecution, set out particulars, complicity of the petitioner

in the 'organised crime' whereupon Investigating Officer

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sought his police custody on grounds namely;

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9 The learned Additional Sessions Judge remanded

the petitioner to the police custody till 14 th July, 2021 and

observed thus;

" I had gone through the case papers. It reveals that, there is progress in investigation. The offence is serious in nature. Some information is to be extracted from the accused. The reason as mentioned for grant of PCR are sufficient and reasonable. Hence, accused be sent in PCR till 14/07/2021.

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10 On 14th July, 2021, petitioner's magisterial

custody was sought for thirty days.

11 On 21st July, 2021, Investigating Officer in the

report under Section 169 of the Cr.P.C., informed the

learned Sessions Judge, that investigation has not disclosed

petitioner's complicity in the offence of Organised Crime,

either in form of funding the Crime Syndicate for promoting

the unlawful activity; nor statement of co-accused, Rahul

@ Rebel Yadav recorded under Section 18 of the MCOCA

disclosed complicity of the petitioner, as a 'member' of

'Crime Syndicate' or in offence under Penal Code.

Correspondingly, Investigating Officer informed the Court

that at the material time, when attack, was held on

husband of complainant, Call Detail Records reveal,

petitioner's location did not match the locations of co-

accused. On these grounds, the Investigating Officer

sought appropriate order to release the petitioner. On the

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very date, an application was moved by the petitioner

below Exhibit 10 for the following reliefs;

(a) In view of the report filed by the Investigating Officer

under Section 169 of the Cr.P.C., he may kindly be released

forthwith in connection with the Crime No.350 of 2021;

(b) Any just and equitable order in the interest of justice

may kindly be passed.

12 This application was opposed by the complainant

on the ground that the Court is not empowered under

Section 169 of the Cr.P.C. to release the accused on bail.

However, the learned Additional Sessions Judge vide order

dated 28th July, 2021 granted interim bail, which reads as

under;

             "                 ORDER

             [1]          Application (Exh.10) is allowed.
             [2]          Applicant - Jaydeep Taware be

released on interim bail in connection with C.R. No.350/2021 registered with Baramati Taluka Police Station under Sections 307, 120-B, 504, 506 of the Indian Penal Code, u/s.3(25) (27), 4(25) of Arms Act and u/s. 3(1)(ii), 3(4) of MCOC Act, on executing P.R. Bond of Rs.15,000/- alongwith one or

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(emphasis supplied) two solvent sureties of the like amount on the following conditions:-

(a) the applicant shall not tamper with the prosecution evidence in any manner whatsoever.

(b) the applicant shall attend the concerned police station on every Monday till the decision of release application u/s. 169 of Cr.P.C.

[3] The applicant shall furnish cogent documentary evidence in respect of his residence before this Court after his release on bail alongwith swearing an affidavit in that regard.

Bail before remand/concerned Court."

13 On 5th August, 2021, the complainant filed,

protest petition and reply to a report under Section 169 of

the Cr.P.C., submitted by the Sub-divisional Officer,

Baramati.

14 The learned Additional Sessions Judge, Pune

accepted the protest petition of the complainant and

rejected report of the Investigating Officer under Section

169 of the Cr.P.C. vide order dated 16th August, 2021.

Operative part of the order, which reads as under;

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          "                       ORDER

          1]      The Protest Petition (Exh.17) is hereby
          allowed.

          2]      The report u/s. 169 of Cr.P.C. dated

21/07/2021 filed by Investigating Officer is hereby rejected.

3] The Investigating Officer is directed to conduct the detailed investigation in the line of statements of injured and other witnesses as mentioned above, and submit detailed report at the time of filing chargesheet.

4] At the time of filing section 169 Cr.P.C. report, this court released the accused no.6- Jaydeep Taware on interim bail. Hence, he is directed to surrender himself before the concerned Investigating Officer on or before 18/08/2021 at 11.00 a.m. On failure to surrender, the warrant of arrest be issued against the accused no.6. (emphasis supplied)

5] In terms of above order, application is disposed of."

15 Feeling aggrieved by the order dated 16 th August,

2021, this Writ Petition under Article 227 of the Constitution

of India read with Section 482 of the Cr.P.C. is preferred.

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16 Pending petition, the learned Additional Public

Prosecutor on instructions, assured that the State shall not

arrest the petitioner till the petition is heard and disposed

off.

17 Heard Mr. Nimbalkar, the learned counsel for the

petitioner, Mr. Khamkhedkar, the learned prosecutor for the

State and Mr. Manoj Mohite, the learned Senior Advocate for

the respondent no.2(Complainant).

18 Herein the question is whether this Court, in

supervisory jurisdiction under Article 227 of the Constitution

of India, can examine and look over, the satisfaction

recorded by the learned Special Court particularly, when it

was founded on material, while, not accepting report under

Section 169 of the Cr.P.C. forwarded by the Investigating

Officer AND whether, the learned Court was justified in

directing the Investigating Officer to conduct the detailed

investigation.

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19 Investigating Authorities have been empowered

to submit report to the Magistrate that there is no evidence

or reasonable grounds for suspension to justify the

forwarding of the accused to the Magistrate and to release

the accused from the custody on his executing bond with or

without surety as the police officer may direct, to appear, if

and when so required by the Magistrate empowered to take

cognizance of the offence of police report and to try the

accused to commit for trial. Once, report under Section 169

of the Cr.P.C. is submitted, the Magistrate has power to

examine the report and its' upto his discretion whether

there are sufficient grounds to proceed the matter further

or not. After examining the report, if the Magistrate thinks

that no case is made out against the accused, he can

release him. However, if the Magistrate is satisfied that

there is sufficient material to prosecute the accused, he can

issue process of proceedings under Section 204 of the Code

even if the report under Section 169 of the Cr.P.C. filed by

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the police states that no evidence found against the

accused, Magistrate can reject the report if he is satisfied.

In the case of Amarnath Chaube v. Union of India in

SLP (Criminal) 6951 of 2018, the Hon'ble Apex Court has

held in paragraphs 8 and 9 as under:

"8. The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure.Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.

9. In Manohar Lal Sharma v. Principal Secretary and Ors., (2014) 2 SCC 532 : (AIR 2014 SC 666), this court observed as Shivgan

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follows :

"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bonafide or the investigation is tainted with animosity,the court may intervene to protect the personal and/or property rights of the citizens."

. Drawing the analogy from the aforesaid judgment

of the Apex Court, it is to be noted that although the

Investigating Officer files report under Section 169 of the

Cr.P.C., the Magistrate after examining the report concludes

that the officer has not investigated properly and

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apparently unmindful in investigation, Court is not obliged

to accept the report, but to it, and ensure that investigation

is done in accordance with law. Preciously that has been

done by the trial Court. Yet in another case, Vinubhai

Haribhai Malaviya & Ors. v. State of Gujarat & Anr.

reported in 2019 (17) SCC 1, the Hon'ble Apex Court has

held that in the circumstances if the Magistrate does not

agree with the police report, he may order further

investigation, which is done in his capacity as supervisory

authority in relation to investigation carried out by the

police.

20 In the case at hand, the petitioner was arrested

on 6th July, 2021 in the offence punishable under the

MCOCA. His police custody was sought on the grounds

which I have re-produced in paragraph 8 hereinabove. After

going through the case-papers, the learned Judge

remanded him to the police custody till 14 th July, 2021.

Whereafter he was remanded to magisterial custody for

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thirty days. All of sudden within fifteen days of petitioner's

arrest, Investigating Officer moved an application, taking

recourse to Section 169 of the Cr.P.C. and sought release of

the petitioner. The learned Judge although granted interim

bail to petitioner but after hearing the complainant in

support of the protest petition and after going through the

investigation record noted his satisfaction in paragraphs 10

and 12 of the impugned order that there is sufficient

material against the petitioner-accused which was founded

on material i.e. statement Raviraj Taware (Injured);

statement of complainant; statement of public servant

Pramila Lokhande, Shailesh Dandwate and details of

previous enmity between the injured and gang leader,

Prashant Popatrao More. According to the learned Judge this

material, prima-facie, establishes strong motive against

accused no.6 (petitioner) and thus, noted; "There is

sufficient evidence on record against accused no.6 as

conspirator in commission of alleged crime."

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21 Thus, having gone through the material on record

which prima-facie reveals petitioner's complicity in the

crime and in view of the satisfaction recorded by the

learned Judge, founded on the material produced by the

Investigating Officer, the impugned order rejecting the

report under Section 169 of the Cr.P.C. cannot be interfered

in supervisory jurisdiction of this Court. In my view, the

learned Judge has not committed any error in exercise of

the jurisdiction, the order impugned is not perverse. Thus,

the order cannot be faulted with. Writ Petition is dismissed.

(SANDEEP K. SHINDE, J.)

22 At this stage, the learned counsel for the

petitioner, seeks protection for three weeks. In view of the

facts of the case, I am not inclined to continue the

protection, in view of statement made by the learned

prosecutor for the State.

(SANDEEP K. SHINDE, J.)

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