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Judgment
A.M. Khanwilkar, J.—Heard Learned Counsel for the parties. Rule. The learned A.P.P. waives notice for respondent Nos. 1, 2, 4 and 5. Respondent No.3 is present in the Court. Rule made returnable forthwith and heard finally.
In the present petition, we are essentially concerned with the relief claimed by the petitioner to direct the respondents to conduct further investigation with respect to CR No.I-84/2012 registered with Manor Police Station, District Thane, by incorporating Section 395 of Indian Penal Code (IPC) against the accused persons and to transfer the investigation to an independent agency, such as State CID or any other investigating agency to carry out further investigation. The other relief claimed in the petition is to direct respondent No.5 to initiate appropriate Departmental Inquiry against the misconduct of respondent Nos. 3 and 4 with suitable action in that behalf.
The grievance in this petition is about overzealous attitude shown by the Investigating Officer (I.O.) in handling the investigation in respect of the FIR No.I-84 of 2012 registered on 23.6.2012 with Manor Police Station. From the allegations contained in the petition, it is amply clear that the FIR was registered by police officer of the local police station only after direction to that effect was issued by the Superior Authority on the representation made by the petitioner in that behalf. That fact is indisputable. It necessarily follows that there was resistance at the level of the officer in-charge of the Manor Police Station to register the FIR with regard to the incident which had occurred on 21.6.2012. The FIR was eventually registered for the offence punishable under Sections 147, 148, 149, 427 and 395 of the IPC against the accused persons on the basis of complaint made by the petitioner. Notably, while the investigation was still in progress, rather it was yet to begin as recording of statements of all the witnesses was not over for the reasons best known to the Investigating Officer, he moved an application on 28.6.2012 before the Magistrate for deleting offence u/s 395 of the IPC from the FIR on the specious ground that there was no evidence to disclose commission of that offence. We fail to understand as to under which provision of law this application was filed by the I.O. before the Magistrate. That only shows the pre-determined approach of the I.O. to extricate the accused from offence u/s 395 of I.P.C. This biased approach of the I.O. is fortified by the following circumstances:-
(i) I.O. preferred application before JMFC Court on 28.6.2012 for withdrawing Section 395 I.P.C. from charge-sheet and by that time the accused were not arrested though available.
(ii) All the accused were arrested only thereafter on 29.6.2012 in the evening and were produced before JMFC Court on 30.6.12 with remand report, specifically asking for Magisterial Custody. Consequently, Magisterial Custody was granted by JMFC as prayed by Police.
(iii) Regarding incident of 21.6.2012 complaint of main accused Deepak Mane was promptly registered by Police Naik H.N.Patil (No.2235) and investigation was given to Police Havildar R.R.Sharma (No.1030). It was the offence registered against the present petitioner and his men for rioting, causing hurt, criminal intimidation etc.
(iv) As against (iii) above, complaint of the present petitioner was registered only after the directions from superiors and that also belatedly on 23.6.2012 in the evening. It was registered by Police Naik - M.A.Gaikwad (No.203) and investigation was given to present I.O. V.T.Pawar P.I.
Such approach by the I.O. as explained above is completely unacceptable and untenable in law. For, the I.O. is expected to investigate the case objectively and consider all aspects of the matter and on the basis of evidence collected during investigation submit his report to the concerned court u/s 173 of the Code. There is no other mechanism provided in the Code which empowers the Police Officer on his own to consider deletion of application of offence (under Section 395 of the IPC), which is already referred to in the FIR registered on the basis of oral or written complaint u/s 154 of the I.P.C.
Be that as it may, the said request was made by the I.O. presumably on the basis of statements of about twenty one witnesses examined by him. When we looked at the statements of the said witnesses, which have been produced before the concerned court along with the charge-sheet, it is amply clear that those are stereotyped statements including containing the same grammatical mistakes. The only difference is about the name and date on which the statements of the concerned witnesses have been recorded by him. Considering this aspect and keeping in mind the allegations in the petition which are supported by the affidavit of one of the witnesses examined by the I.O. Mr Bharat Ambarsingh Kasare, we find force in the apprehension expressed by the petitioner that the statements of the concerned witnesses have been recorded by the I.O. on instructions and under dictation. We may not be understood to have finally pronounced upon the correctness of this apprehension of the petitioner, amongst others, in para 12 of the petition. For, that matter will have to be thoroughly examined by the Appropriate Authority in the Department inquiry.
Suffice it to observe that going by the affidavit of the above named witness Exh.G at page 86 which is filed in support of the stand taken by the petitioner; and more particularly, the statement of Vinodkumar Parasnath Singh at page 65 which was recorded by the I.O. on 25.6.2012, we have no manner of doubt that the I.O. has acted in excess of authority in applying for deletion of section 395 of IPC which was invoked by the complainant while registering the offence u/s 154 of the Code. The statement of Vinodkumar Parasnath leaves no manner of doubt that that offence was committed by the concerned accused on the given date and which statement is supported by the statement of the petitioner-complainant, on the basis of which the FIR has been registered.
Taking over all view of the matter, therefore, we are of the considered opinion that there is serious doubt about the nature of investigation conducted by respondent No.3 (I.O.); and on the basis of so called evidence collated by him, he hastened to file charge-sheet against the accused, extricating them from offence u/s 395 of the I.P.C. for the reasons best known to him. In our opinion, the charge-sheet filed by respondent No.3, cannot be allowed to be taken forward. Instead, it is a fit case which needs to be re-investigated by an independent investigating agency.
Accordingly, we deem it appropriate and in the interest of justice direct the respondent Nos.1 and 5 to forthwith hand over the investigation of the case to Crime Branch to be entrusted to the Officer not below the rank of A.C.P. who will be free to re investigate the entire case or collect further evidence and then file a comprehensive charge-sheet. The charge-sheet which has been filed by respondent No.3 will have to be treated as non-est in the eyes of law and no court shall proceed further on the basis of the said charge-sheet which for the reasons already recorded hitherto is untenable.
We place on record the argument of the petitioner that respondent No.3 was primarily responsible for non-registration of the FIR in the first instance and after registration of the FIR on the basis of directions issued by the Superior Authority ensured that the investigation is misdirected so as to favour the accused persons. The conduct of the I.O. is manifest from the steps taken by him, inter alia, in filing a formal application before the Magistrate on 28.6.2012 at the nascent stage of the investigation to allow him to delete the application of section 395 of the IPC referred to in the subject FIR. This is a serious matter which ought to be considered by the appropriate authority and taken to its logical end.
We make it clear that the said inquiry will have to be proceeded on its own merits, in accordance with law, after giving opportunity to respondent No.3 and respondent No.4, as the case may be and on the basis of the conclusion reached in the said proceeding, take appropriate action against the erring police officer (s) as may be warranted in the fact situation of the case.
We direct the State authorities to forthwith hand over the investigation of the case in respect of CR No.I-84/2012 registered with Manor Police Station, District Thane to Crime Branch to be undertaken by officer not below the rank of ACP. This be done within ten days from today and compliance report be submitted.
The respondents are also directed to invite the attention of this order to the concerned Magistrate where the charge sheet has been filed by respondent No.3 so as to keep the said proceeding in abeyance till filing of fresh comprehensive charge-sheet by the newly appointed Investigating Agency.
Rule made absolute on the above terms. Petition is disposed of accordingly.
Place this matter on 30.8.2012 for reporting compliance and further progress of the investigation. Copy of this order be forwarded to the Commissioner of Police for information and necessary action; forthwith.