Archana Maruti Pujari And Ors vs Central Bureau Of Investigation ...
2022 Latest Caselaw 13111 Bom

TAUSEEF
LAIQUEE                    Tauseef Farooqui                                    15-WP.4104.2022.odt
FAROOQUI
Digitally signed by
TAUSEEF LAIQUEE
FAROOQUI                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2022.12.16
14:22:40 +0530                          CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL WRIT PETITION NO.4104 OF 2022

                      Archana Maruti Pujari & Ors.                       ...Petitioners
                           V/s.
                      Central Bureau of Investigation & Ors.             ...Respondents

                                                          *****
                      Mr. Satish Borulkar a/w Mr. G. M. Savagave for Petitioners.
                      Mr. H. S. Venegavkar a/w Mr. Aayush Kedia and Mr. Budhbhushan
                      Rajratra for Respondent No.1.
                      Mr. A. R. Patil, APP for Respondent No.2 (State).
                      Mr. Mahrukh Adenwala a/w Mr. Anush Shetty i/by Dryog Mohit
                      Chaudhary for Respondent No.3.
                                                          *****
                                                  CORAM            :     AMIT BORKAR, J.
                                                  RESERVED ON      :     NOVEMBER 29, 2022
                                                  PRONOUNCED ON:         DECEMBER 16, 2022


                      JUDGMENT:

1. This Petition is directed against the order dated 17 th September 2022, passed by the learned Special Judge under the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), Greater Mumbai on an Application below Exhibit- 19 for framing of charge against the petitioners under Section 302 and to direct investigating agency to file supplementary charge- sheet under Section 302 of Indian Penal Code, 1860, referred by respondent no.3 (father of victim), whereby the said Application came to be allowed.

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2. The background facts necessary for determination of this Petition can be summarised as under;

(i). The petitioners-accused are arraigned alongwith another accused for offences punishable under Sections 120B, 218, 223, 323, 342 of Indian Penal Code, 1860 and Section 29 of the Mumbai Police Act, 1951. Subsequently, investigating agency filed supplementary charge-sheet on 3rd December 2016 for offences under Sections 6 and 12 of POCSO Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "Juvenile Justice Act") read with Section 34 of Indian Penal Code, 1860.

(ii). The allegations made by respondent no.3 in the Protest Petition is that on the night of 15th April 2014 and 16th April 2014, respondent no.3's son and other victims were arrested by Wadala Police Station in Criminal No.49 of 2014 and were severely tortured and sexually abused. The deceased was not produced before the learned Magistrate and on 16th and 17th April 2014. He was tortured and sexually abused. The other victims were also sexually abused. The accused persons threatened deceased that he would be killed.

(iii). On 17th April 2014, the petitioners filed complaint before the Metropolitan Magistrate Railway Court stating that his son (deceased) had been in custody over 24 hours and not produced before the Court. The learned Magistrate, therefore, directed Police to produce the deceased before the Court on the same day. Inspite of communication of the said order, the deceased was not

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produced before the learned Magistrate.

(iv). On 17th April 2014, around 8.00 p.m., deceased was taken to J. J. Hospital for treatment of his injuries by Police. The deceased told attendant medical officer about the assault by the Police Officers. The accused threatened respondent no.3 that his son will have to pay price. The accused persons forced respondent no.3 to attest MLC stating that the injuries to him were self-inflicted.

(v). On 31st December 2015, charge-sheet was filed against the petitioners and another under Sections 120B, 218, 223, 323, 342 of Indian Penal Code, 1860. The investigating agency had filed charge-sheet under Sections 302, 377 and provisions of POCSO Act. After intervention of this Court, the investigating agency submitted supplementary charge-sheet under Sections 6 and 12 of POCSO Act and under Section 23 of Juvenile Justice Act.

(vi). On 19th December 2019, this Court, after holding that it to be a case of custodial death, directed Special Court to frame charge under Section 302 against the petitioners and another. The petitioners, therefore, filed Appeal before the Apex Court and the Apex Court directed Trial Court to independently decide question of framing charge independently without being influenced by the observation of the High Court.

(vii). The respondent no.2, therefore, filed Protest Petition before the Special Court seeking direction against the investigating agency (CBI) file supplementary charge-sheet under Section 302 of Indian Penal Code, 1860 and to frame charge under Section 302 of Indian Penal Code, 1860 against all accused. The accused filed

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their reply to the Protest Petition on merits. The investigating agency (CBI) also filed their reply to the Protest Petition and submitted that there is no material on record to, prima facie, show that accused the Police Officials are committed offence under Sections 302 or 304 part 2 of Indian Penal Code, 1860.

(viii). The learned Special Court after hearing both sides partly allowed the Protest Petition and directed petitioners and another to remain present on the next day for framing charges under Sections 302, 295A of Indian Penal Code, 1860. In addition to charges leveled against them in the charge-sheet.

(ix). Being aggrieved by the impugned order of direction add charges under Sections 302 and 295A of Indian Penal Code, 1860, the petitioners have invoked writ jurisdiction of this Court.

3. I have heard Mr. Satish Borulkar, learned advocate for the petitioners, Mr. H. S. Venegavkar, learned advocate for respondent no.1, Mr. A. R. Patil, learned APP for Respondent No.2 (State) and Mr. Mahrukh Adenwala, learned advocate for respondent no.3. I have also perused the material on record including documents annexed with the Petition and compilation submitted by respondent no.3 containing statements of co-inmates of deceased and earlier orders of this Court.

4. Mr. Borulkar, learned advocate for petitioners made an earnest endeavour to draw home the point that the learned Special Judge was not justifying in directing addition of charge under Sections 302, 295A of Indian Penal Code, 1860. Mr. Borulkar, strenuously urged that the Protest Petition filed by respondent no.3

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was not maintainable because such Application before framing of charges is not maintainable. He submitted that the right of petitioners to file charge-sheet under Section 227 of Code of Criminal Procedure, 1973 is taken away. In support of his submission, he relied on the judgment of Apex Court in the case of Abhinandan Jha & Ors. Vs. Dinesh Mishra, reported in (AIR 1968 SC 117), State of Gurajat Vs. Girish Radhakrishnan Varde, reported in (2014 (3) SCC 659).

5. Mr. Venegavkar, learned advocate for respondent no.1 (CBI) would urge that there is no material on record to show that the petitioners have committed offence under Section 302 of Indian Penal Code, 1860. He submitted that on the basis of material on record, the investigating agency had submitted supplementary charge-sheet adding offences under Sections 6 and 12 of POCSO Act and Section 23 of Juvenile Justice Act. He submitted that he supported the contention of the learned advocate for the petitioners that such Protest Petition is not maintainable at this stage.

6. In opposition to this, Mr. Mahrukh Adenwala, learned advocate for respondent no.3 (father of deceased) would urge that there is sufficient material against the petitioners to warrant the framing of charges under Sections 302 and 295A of Indian Penal Code, 1860. She invited my attention to the statements of co- inmates recorded by the investigating agency which show that they had witnessed torture meted out to the deceased. She submitted that the statements of co-inmates show that alongwith deceased

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they were also sexually abused by the petitioners. She submitted that inspite of specific order passed by this Court in Criminal Writ Petition No.2110 of 2014 directing Police to preserve CCTV footage, the CCTV footage had been deliberately suppressed. She placed reliance on the judgment of Apex court in the case of R. S. Mishra Vs. State of Orissa & Ors., reported in ((2011) 2 SCC 689), State of M.P. Vs. S. B. Johari & Ors., reported in ((2000) 2 SCC 57) and State of Delhi Vs. Gyan Devi & Ors., reported in ((2000) 8 SCC 239).

7. Before adverting to deal with rival submissions, it may be opposite to consider the scope of inquiry envisaged by the provisions contained in Section 227 of the Code as this court is holding enquiry as to whether material on record is sufficient to frame charge under section 302 of Indian Penal Code, 1860. Though, this Court would be within its right to sift the material collected by the prosecution, yet the object of the said exercise is to find out whether there is prima facie case against the petitioners. The only satisfaction i.e. required to be arrived at is whether there is ground for presuming that the accused had committed the offence. However, the inquiry is not with the objective to find out whether the case said upon by the prosecution will entail conviction.

8. The legal position in this context is well settled. Yet, a profitable reference can be made to the judgment of Apex Court in the case of State of Bihar Vs. Ramesh Singh, reported in (1977 (4) SCC 39).

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"At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused."

............

"If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under Section 227 or section 228, then in such a situation, ordinarily and generally the order wall have to be made under section 228 and not under Section 227 ."

9. Re-adverting to the submissions made on behalf of the petitioners that the Protest Petition filed by respondent no.3 to add Section 302 is not maintainable. It is necessary to consider the order of Apex Court in Criminal Appeal No.797 of 2020 quoted hereinafter:

"(i). The trial Court while deciding the question of framing of charge(s) would examine all aspects, including the Sections of the Penal Code under which the charges should be framed.

   Tauseef Farooqui                                     15-WP.4104.2022.odt


      (ii).    Observations in the impugned order will not be

treated as binding findings or directions on the question of framing of charge and the Section(s) under which the charge would be framed. The trial Court would independently apply its mind, without being influenced by the observations of the High Court.

(iii). The informant/victim - Leonard Xavier Valdaris will be at liberty to file protest petition before the trial court, which if filed, would be dealt with in accordance with law. Similarly, Sufiyan Mohammad Khan, Mohammad Irfan Hajam and Arbaz Shamim Khan also will be at liberty to file protest petition before the trial Court, which if filed, would be dealt with in accordance with law."

10. It is undisputed that the cognizance of the case had already been taken by the Trial Court. Once it is undisputed that the cognizance of the case had been taken by the Court, the next step of definite significance is the duty of the Court to frame charge in terms of Section 228 of the Code, unless the Court finds upon consideration of record of the case and the documents submitted therewith, that they are exist no sufficient ground to proceed against the accused, in which case it shall discharge him for reasons to be recorded in terms of Section 227 of the Code. The prayer in the Protest Petition is essentially to frame charge under Section 302 on the basis of material on record. The petitioners (accused) were granted opportunity of hearing by the

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Special Court to demonstrate lack of prima facie material to frame charge under Section 302 of Indian Penal Code, 1860. The petitioners were made aware about the nature of inquiry in the Protest Petition and to demonstrate that there was no prima facie material to frame charge under Section 302 of Indian Penal Code, 1860. The accused earns a right of discharge if there is no sufficient ground for proceeding against the accused u/s 227. Therefore, there is no merit in the submission of the petitioners that the right under Section 227 of the Code was taken away by the impugned order.

11. The judgment in the case of State of Gurajat Vs. Girish Radhakrishnan Varde (supra), the Apex Court was considering a case where after submission of charge-sheet complainant submitted an Application before the learned Magistrate for adding charges into charge-sheet which was allowed by the learned Magistrate. In the context of the said facts, the Apex Court held that the Police case after submission of charge-sheet, goes to the Magistrate for forming an opinion as to whether, it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the Police by way of FIR. At that stage, learned Magistrate cannot exclude or include any Section into charge-sheet after investigation has been completed and charge- sheet has been submitted by the Police. It is held that in a case registered under Section 154 of Code of Criminal Procedure, 1973, the correct stage, as to which section would apply, on the basis of FIR and material collected during investigation culminating into charge-sheet, would be determined only at the time of framing of

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charge. It is held that the trial court was not precluded from modifying the charges by including or excluding the Sections at the appropriate stage during trial, and it was duty bound in the interest of justice and fair play to specify in clear terms that the trial court would permit and consider plea of addition of Sections at the stage of framing of charge. In the facts of the present case as observed earlier as the cognizance of the matter had already been taken by the Court, the next step of definite significance was the duty of the Special Court to frame charges in terms of Section

228. Therefore, at this stage, the Special Court was not precluded from holding inquiry as to whether, there is ground to proceed against accused for offence under Section 302 of Indian Penal Code, 1860 by sifting material collected by the prosecution.

12. Insofar as judgment in the case of Abhinandan Jha & Ors. Vs. Dinesh Mishra (supra) is concerned, there cannot be dispute about the preposition of law laid down by the Apex Court that there is no power, expressly or impliedly conferred, under the Code, on the learned Magistrate to call upon the Police to submit the charge-sheet, when they have sent a report under Section 169 of the Code.

13. Coming back to the merits of the case, on the basis of material on record, in my opinion, the material on record prima facie is sufficient ground to proceed against petitioners for offence under section 302 of Penal Code. The statements recorded by the investigating agency of co-inmates of deceased demonstrate that they witnessed torture meted out to the deceased. Co-inmates

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have given graphic details of physical and sexual torture meted to the deceased and other co-inmates.

14. The statement of respondent no.3 recorded by the investigating agency demonstrates that when the deceased was taken for medical examination, he informed respondent no.3 that Police had beaten the deceased mercilessly. The respondent no.3 stated that Policemen had warned him against making complaint else he would have to pay price.

15. The postmortem report shows that deceased had incised wounds, multiple abrasions and contusions. He suffered fracture on ribs of both sides. The injuries of deceased were 24 to 96 hours old. The postmortem report concluded "immediate cause was evidence of hemorrhage and shock due to multiple injuries, caused by sharp and pointed object" was the reason of death.

16. The Special Court relied on the copies of station diary to record a finding that there is no entry in station diary to show at what time deceased was brought from lock up of Wadala Railway Police Station because when deceased was removed from Wadala Police Station, there is no reason given by police as to why deceased was kept at Kurla Police Station at 2.00 a.m.. The Special Court, therefore, recorded a prima facie finding that station diary of Wadala Police Station was not properly maintained and it was done with the intention to suppress material facts.

17. Dr. Aejaz Husain, the medical officer, who examined the deceased, stated that accused Policemen were pressurizing him and respondent no.3 to write that the injuries on deceased were

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self-inflicted while the deceased was pleading with them not to do so.

18. The co-inmate Irfaan Hazam Mohammad in his statement stated as follows:-

"Ek lohe ke rod se Richie ke haath pair bandh diye aur usi rod ke saath use upar latkane ko kaha, lekin Richie ka sharer mazboot tha to policewaale use rod ke saath latka nahi sake. Isliye use zameen par litaya aur uska aadha shareer hava mei latka diya. Tab Suresh Mane aur Satyajit Kamble ne use dande aur belt, se puri takat se mara. Us samay lagbhag 11:30 baje the. Richie ko 11:30 baje se 01:30 baje tak mara. ... Jab use mar rahe the Richie ka aadha bah rod ke saath latka hua tha. Maine yeh sab dekha."

19. Another co-inmate Sufiya Mohammad Naseem Khan stated to the investigating agency which read as under:-

"Uske baad 18 tareekh ko mujhe pata chala ki Richie mar gaya hai toh is par mujhe vishwas nahi hua. Satyajit Kamble ne mujhe bola ki kisi ko mat bolna ki Richie hamare saath tha. ... Main vishwas ke saath keh sakta hu ki Richie ko mara gaya hai, kyoki jab hum Police custody mei the Richie ko itni buri tarah se mara gaya tha ki vah bhagne ki halat mei nahi tha. Police ne apne apradh ko chupane ke liye train accident ka jhoota dava kiya hai"

20. The respondent no.3 in his statement recorded on 5 th July 2014, which stated as under:-

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"Further, at Sion Hospital at about 8 pm I saw my son with a bandage on his wrist and he was unable to walk due to his injuries. As soon as, he saw me, he started to cry and said "Daddy save me These Police people will kill me They are beating me continuously and are not taking me to Court"... Then Suresh Mane told me that my son has complained to the doctor saying the policemen beat him and due to that he was sustained injuries. Suresh Mane threatened me that it is better to change the statement because it would get them into trouble and then Richie would pay the price........ My son Agnello protested and told me not to change the statement he was given for he was stated the truth."

21. Co-inmate Arbaz Shamim Khan in his statement recorded on 28th August 2014, stated as under:-

"Marte Marte Irfan ko table par litaya aur bahut mara. Phir Irfan behosh ho gaya. Phir Suryavanshi @ Ganya ne aa kar uske muh pe pani mara aur bola ki idhar teri acting vacting nahi chalegi, agar mar jayega to patri par phek denge."

22. The CCTV footage has Wadala Police Station was crucial to explain the prosecution case as to how deceased reached Railway track. It is pertinent to note that respondent no.3 had written multiple letters to various Police Authorities including Police Commissioner to preserve CCTV footage. This Court by ad- interim order in Criminal Writ Petition No.2110 of 2014 had

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directed preservation of CCTV footage by order dated 17 th June 2014, but the said CCTV footage is not part of the record.

23. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of police personnel would be available. It is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues. Tortures in police custody, which of late are on increase would receive encouragement, if this Court interferes at this stage. Interference at this stage by this court would re- inforce belief in the mind of police that no harm would cause to them if a poor boy dies in the lock up because there would hardly be evidence to directly implicate them with torture. Whether in the facts of the case, custodial death has occurred due to the acts of petitioners is a matter of trial which needs to be decided by the Special Court after giving opportunity to the prosecution to lead evidence.

24. The aforesaid material, prima facie, is sufficient to raise ground to proceed against petitioners for the offence under Section 302 of Indian Penal Code, 1860.

25. Learned Special Judge was, therefore, well within his rights in arriving at the conclusion that there was material which if un-rebutted would warrant conviction of the petitioners. In the totality of the circumstances, I am impelled to hold that the learned Special Judge has applied correct test while directing framing of charge under Section 302 of Indian Penal Code, 1860. In exercise of extra-ordinary constitutional jurisdiction, there is no

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justifiable reason to interfere with well reasoned order passed by the learned Special Judge.

26. The upshot of above discussion is that the Petition is devoid of substance and deserves to be dismissed.

27. Hence, the Petition stands dismissed. No costs.

(AMIT BORKAR, J.)