1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.1074 of 2009 Mr.Abdul Aziz Mukadam & anr. Petitioners Vs. The Commissioner of Thane Police, Thane and ors. Respondents Ms.Leela Malu for petitioners. Mrs.M.M.Deshmukh, APP for State. Mr.S.A.Sawant for resp.nos.4 and 5. CORAM: B.H.MARLAPALLE & R.Y.GANOO,JJ. Reserved on : December 18, 2009 Pronounced on: January 08, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. Heard Ms.Malu, the learned counsel for the petitioners. Mrs.Deshmukh, the learned APP appears for respondent nos.1 to 3 and 6. Leave to delete respondent no.7. Mr.Sawant appears 2 for respondent nos.4 and 5. 2. Rule. Respondents waive service. 3. By consent of the parties the petition is finally heard so as to decide it at the admission stage itself. 4. This petition petition filed under Articles 226 and 227 of the Constitution read with Section 482 of Cr.P.C. prays for quashing of C.R.No.69 of 2009 registered on 25/2/2009 with the Kalwa Police Station at the instance of respondent no.4 and the investigation into the incident that had taken place on 29/10/2005 while the officers of the Thane Municipal Corporation, with the help of the police, were demolishing the structure of Vikrant Tower on Plot No.1014 in which two persons allegedly died, one received burn injuries in a bid to self immolate and one person jumped from the 3rd floor and injured himself, be handed over to an independent investigating agency like the Central Bureau of Investigation and to quash and set aside the complaint arising from C.R.No.69 of 2009. 5. Petitioner no.1 claims to be the Chairman of Pariwar Co- 3 operative Housing Society and Petitioner No.2 is one of the members of the said Society which has about 26 members. The petitioners claim that on the adjacent plots i.e. Plot Nos.1012 and 1014 the respondent no.5, who is a developer and builder, encroached upon the land of the Pariwar Co-op. Hsg. Society and constructed a seven storeyed building called Vikrant Tower without obtaining any permission from the Thane Municipal Corporation. When the petitioners lodged complaints with the Municipal Corporation, the Corporation caused an inspection and when it noticed that the construction had come up illegally and without obtaining any permission from the Corporation, it decided to demolish the said illegal structure. On 24/10/2005 respondent no.5 approached the Court of Judicial Magistrate, First Class at Thane and filed Criminal Complaint No.940 of 2005 against the petitioners and six others for the offences punishable under Sections 331, 364(A), 364, 329, 386, 388 and 392 of IPC. On 29/10/2005 while the said complaint was pending before the Court, the officers of the Thane Municipal Corporation by names Shri Sarmukadam, Deputy Commissioner, Shri Krishna Nipurte, Assistant Commissioner and Shri Sunil Jadhav, Junior Engineer along with the police squad went to the site of Vikrant Tower along with the machinery for demolition of 4 the structure which was constructed by respondent no.5. He instigated some of the occupants of the flats / rooms constructed in the said building and some of whom were his relations and created obstacles and tried to prevent the employees of the Corporation from doing their legal and official duties. When the occupants tried to obstruct the demolition work the officers of the Municipal Corporation pointed out that it was totally an illegal structure and the demolition work would not be stopped. At this juncture two of the occupants went into their rooms and brought kerosene cans and poured kerosene on three of the occupants. Respondent no.5 instigated them to set themselves on fire and catch hold of Shri Sunil Jadhav so that he would also receive the burn injuries. Three of these persons poured kerosene on their body, lighted a matchstick and set themselves ablaze whereas the fourth person jumped from the 3rd floor and sustained fractures. These four persons were immediately shifted to the hospital and three of them who received burn injuries were Ganesh Bajirao Gaikwad, Prasad Dnyaneshwar Mankar and Santosh Shelke and the fourth occupant Shri Mahendra @ Pappu Umap sustained fracture injuries. Ganesh Gaikwad died on 29/10/2005 whereas Prasad Mankar died on 31/10/2005 while under treatment. Santosh 5 Shelke sustained 35 per cent burn injuries. Deceased Prasad Mankar was the brother of respondent no.4 and Ganesh Gaikwad was her cousin. C.R. No.I-167 of 2005 came to be registered with Kalwa Police Station at the instance of Shri Krishna Nipurte, Assistant Commissioner for the offences punishable under Sections 147, 148, 149, 332 and 506(2) of IPC on 29/10/2005 itself. In due course respondent no.5 was also arrested and the FIR was registered against seven to eight accused persons. It was alleged that while the officers of the Thane Municipal Corporation were taking steps to demolish the illegal structure, respondent no.5 held his loaded revolver and threatened the officers of the Corporation to stop the demolition otherwise he would open fire. When he did not succeed in stopping the demolition, he instigated his near relations and occupants of some of the flats in the said illegal structure to pour kerosene and set themselves ablaze. In the incident two persons died of suicide, one person i.e. Santosh Shelke sustained 35 per cent burn injuries and Pappu Umap sustained fracture injuries. The police claimed that on investigation into the said CR, they filed the charge sheet in the Court of the learned Judicial Magistrate, First Class at Thane on 26/9/2006 for the offences punishable under Sections 143, 147, 149, 353, 332 6 and 336 red with Section 34 of IPC. As per the police so far as the incident of self immolation was concerned, an enquiry of accidental death report was conducted by Shri Suresh Vedak from 1/11/2005 to 10/5/2006 but no charge was framed against anyone for the offence punishable under Sections 302, 306, 308 or 309 of IPC. 6. The petitioners’ Society approached this Court in Writ Petition No.4684 of 2006 and impleaded present respondent no. 5 as respondent no.4 as the Proprietor of M/s. Krishna Developers in the said petition. The petitioners prayed for directions against the Respondent – Corporation to take appropriate action to demolish the illegal building put up by respondent no.4 in the said petition and known as Vikrant Towers situated at City Survey No.1014 and City Survey No.1013 (Partly), Opposite Shivaji Hospital, Thane Belapur Road, Kalwa, Thane. A Division Bench of this Court by its order dated 9/1/2007 was pleased to allow the petition in terms of the following directions: “1. The Respondent No.1 (Commissioner) is directed to take steps against the unauthorised construction in terms of law within eight weeks. 7 2. The Police Officer in charge of the police station the jurisdiction of which the construction has been situated to offer police protection to the Respondent No.1 when the Respondent No.1 calls upon the said police inspector of the police station to give police protection.” Subsequently some other occupants of the flats / rooms in Vikrant Towers approached this Court in Writ Petition No.1318 of 2007 challenging the demolition notice issued by the Municipal Commissioner on 12/2/2007 under Section 268(5) of the Bombay Provincial Municipal Corporations Act, 1949 for the demolition of Vikrant Towers. The said petition was disposed on 13/6/2008 by directing the Municipal Corporation to take appropriate steps in accordance with law. SLP (Civil) No.14017 of 2008 came to be filed before the Supreme Court and it was dismissed on 20/10/2008 in terms of the following order: “Although, we are not inclined to entertain this Special Leave Petition since the High Court has directed the Municipal authorities to take steps in accordance with law with regard to the construction in question, we merely add that while considering 8 the matter, the Municipal authorities should also consider the application filed by the petitioners for regularisation.” 7. As per the petitioners when finally the respondent no.5 and his henchmen failed right upto the Supreme Court in October 2008, respondent no.5 instigated his wife to file a false complaint against Shri Sunil Jadhav, Junior Engineer and four other employees of the Municipal Corporation as well as the present petitioners for the offence punishable under Section 302 of IPC and C.R.No.69 of 2009 came to be registered. Prior to that respondent no.4 had submitted a representation to the Home Minister of the Maharashtra State on 26/12/2008. Pursuant to the orders passed by this Court from time to time Shri Prakash Patil, Inspector of Police (Crime), Kalwa Police Station has filed affidavits on 7th July 2009 and 1st December 2009. This Court on 8th May 2009 directed the learned APP to examine the investigation file and to explain why there was so much delay in filing the FIR on 22/1/2009 when the incident had taken place on 29/10/2005. On 28/7/2009 this Court directed the Police to file a detailed report regarding the investigation 9 and consequently on 26/8/2009 Shri P.D. Patil has fled his report pointing out that during the course of investigation Shri Sunil Jadhav, Asst. Engineer came to be arrested on 19/8/2009. Admittedly the present petitioners succeeded in obtaining bail. Respondent no.5 in his affidavit-in-reply has stated that the petition is not maintainable as on investigation in C.R.No.69 of 2009 the charge-sheet has been filed by the I.O. on 17/8/2009 for the offences punishable under Sections 302, 307, 304, 143 and 147 read with Section 34 of IPC. It has been further contended that right from the month of November 2005 the respondent nos.4 and 5 have been complaining to the police authorities about the involvement of the petitioners as well as Shri Sunil Jadhav in the incident that had taken place on 29/10/2005 and despite the reminders submitted from time to time the police did not take cognizance of such complaints until C.R.No.69 of 2009 was registered on 25/5/2009 for the offences punishable under Sections 302, 307, 143 and 147 read with Section 34 of IPC. 8. We have gone through the investigation report, the affidavits filed by Shri Patil as well as Shri Subhash Sanghai, 10 Assistant Commissioner of Police. The police claimed that on 29/10/2005 there were two separate incidents viz. in the first incident the occupants at the instigation of the present respondent no.5 pelted stones on the employees of the Municipal Corporation and prevented them from carrying out their official duties and, therefore, C.R.No. 167 of 2005 came to be registered. Whereas in the second incident the petitioners and the officers of the Municipal Corporation have been alleged to have caused the homicidal death of Ganesh Gaikwad and Prasad Mankar and they attempted to murder Santosh Shelke and Pappu Umap. The case of the police officers in the new C.R. i.e. C.R. No.69 of 2009 is stated in the affidavit as under: “In this case accused no.1 viz. Sunil Jadhav was a Junior Engineer in Thane Municipal Corporation, Kalwa Division. On 29.10.2005 accused no.1 with other co-accused nos.2, 3 and 4 and the staff of Thane Municipal Corporation had gone to demolish the unauthorized construction of Vikrant Tower with Police Protection. At the time of demolition accused Nos.1 to 6 went to 3rd floor of building with Gas cutter and started to demolish the building. At that time deceased persons, injured witnesses and complainant tried to prevent the accused persons from taking the legal action against the unauthorized construction and 11 quarrel took place between them. At that time petitioner No.1 Abdul Aziz Mukadam who is accused No.2 brought can of kerosene from house of injured witness Santosh Shelke and poured the same on the body of deceased Ganesh Bajirao Gaikwad and Prasad Dnyaneshwar Mankar. Accused no.1 set both the deceased persons on fire with the help of gas cutter. At same time the clothes of witness Santosh Shelke caught fire and he received injuries. Witness Pappu Gulab Umap tried to intervene to rescue the injured as well as the deceased persons who were burning at that time, accused no.1 i.e. Sunil Jadhav, accused No.2 Abdul Aziz Mukadam and Accused no.3 Ashok Boricha all the three of them picked up witness Pappu Gulab Umap and threw him down from the third floor of the building. He received multiple injuries in the nature of multiple fracture. Deceased Ganesh Bajirao Gaikwad and Prasad Dnyaneshwar Mankar were taken to National Burn Hospital, Airoli, New Bombay. Ganesh Bajirao Gaikwad died on 29.10.2005 and Prasad Dnyaneshwar Mankar died on 31.10.2005. The injured witnesses Santosh Revannath Shelke and Pappu Gulab Umap were hospitalized at Shivaji Hospital, Kalwa and then shifted to Crity Care, Airoli for further treatment. Witness Santosh Revannath Shelke received 35% Burn Injury and Pappu Gulab Umap suffered multiple fracture on hand, legs, back and chest bones. He was 12 hospitalized for three months.” 9. Admittedly C.R.No.69 of 2009 was registered on 22/1/2009 at the instance of respondent no.4, the sister of deceased Prasad Mankar. On hearing the parties and on perusal of the record we have noted that the investigation carried out in the incident of 29/10/2005 in which two persons lost their lives suffered from lack of credibility and honesty and the allegations of the petitioners that it was a motivated investigation because of the vested interests of the police officers as well as respondent no.5 cannot be brushed aside. In the charge-sheet filed on 26/9/2006 in respect of the first incident in C.R.No.167, there is not a whisper regarding the death of Ganesh Gaikwad and Prasad Mankar as well as the injuries sustained by Santosh Shelke and Pappu Umap despite the fact that the C.R. registered by Shri Krishna Nipurte – Assistant Commissioner clearly stated that in the incident that had taken place on 29/10/2005 the deceased and Santosh Shelke poured kerosene on themselves, respondent no.5 instigated them to light the matchstick and set themselves on fire and also to catch hold of Sunil Jadhav so that he would also sustain burn injuries. More than three years later the present respondent no.4 goes to the police station on 22/1/2009 for the first time and files a complaint registered as 13 C.R.No.69 of 2009 against the Municipal employees and the present petitioners accusing them of causing the murder of her brother Prasad and cousin Ganesh. The police immediately jumped on and took steps to arrest Shri Sunil Jadhav. The petitioners were successful in obtaining bail. 10. During the course of investigation in C.R.No.167 of 2005 statements of a number of witnesses (more than one hundred) were recorded and some of them are the Police Constables and the employees of the Thane Municipal Corporation who were present at the spot. Shri Sunil Jadhav was provided with two police constables for his security. Both these constables i.e. Shri Ashish Utekar and Shri R.B. Shinde were present at the spot on 29/10/2005. The statement of Ashish Utekar was recorded on 30/10/2005 and that of Shri R.B. Shinde was recorded on 7/11/2005. Both of them clearly stated about the incident that had taken place when the team of the employees of the Municipal Corporation along with the police force reached the site of Vikrant Towers at about 4 p.m. They also graphically described as to how the deceased and Santosh Shelke, after realising that the demolition work will not stop, went into the room occupied by one of them, poured kerosene on themselves 14 and set themselves on fire at the instigation of the present respondent no.5. Not only this but indeed in the remand applications submitted before the learned Judicial Magistrate, First Class by the police on 24/11/2005, 27/11/2005, 7/12/2005 and 9/12/2005, it was clearly stated that while the employees of the Municipal Corporation while in discharge of their official duty, were taking steps to demolish the illegal construction of Vikrant Towers, the accused persons caused interference and obstacles in the said work and Ganesh Gaikwad, Prasad Mankar and Santosh Shelke poured kerosene on their person and set themselves on fire by lighting a matchstick. It was further stated that stones were pelted against the Municipal Corporation employees and the present respondent no.5 pointed his revolver against Shri Sunil Jadhav and stated that Sunil Jadhav will not be spared alive. Despite such a serious case reported and recorded, the police claimed to have conducted the investigation and filed the charge-sheet for the offences punishable under Sections 143, 147, 149, 353, 332, 336 read with Section 34 of IPC arising from C.R.No.167 of 2005 before the learned Judicial Magistrate First Class and nothing was spoken about the alleged suicidal death of Ganesh Gaikwad and Prasad Mankar. 15 11. The story does not stop here itself. In Writ Petition No. 4684 of 2006 Shri Krishna Nipurte, Assistant Commissioner of the Thane Municipal Corporation filed an affidavit on 6th November 2006. The present respondent no.5 was respondent no.4 in the said petition. In his affidavit Shri Nipurte stated in para 6 stated as under: “... I say that about 5.15 p.m., 2-3 persons poured kerosene on their cloths and ignited themselves. I say that stone throwing on the employees was also started and one of the officer was injured with a head injury. I say that lot of public gathe5red at the same place and considering the situation and danger to life, the demolition was stopped.” The present Respondent No.5 had also filed an affidavit in Writ Petition No.4684 of 2005 but did not utter a single word about the alleged offence of causing murder of his brother-in- law and other near relations by the Municipal Officers and the present petitioners on 29/10/2005. The respondent no.4 or respondent no.5 at no point of time approached the Police Commissioner of Thane and filed a complaint immediately after 16 the incident dated 29/10/2005 and alleged that Shri Sunil Jadhav along with his colleagues and the present petitioners were guilty of causing homicidal death of Ganesh Gaikwad and Prasad Mankar in the incident of 29/10/2005. No private complaint was ever filed before the Court of Judicial Magistrate, First Class regarding the incident dated 29/10/2005 and sought directions for investigation under Section 156(3) of Cr.P.C. by the police. Writ Petition No.1218 of 2007 came to be filed at the instigation of and at the behest of the present respondent no.5 and in the said petition not a single word was uttered alleging the offences as are set out in C.R.No.69 of 2009 and even otherwise neither the respondent no.4 nor respondent no.5 approached this Court seeking directions against the Thane Police to register an FIR and carry out the investigations into the incident that had taken place on 29/10/2005. Hence there is a substance in the allegations of the petitioners that it is only after the builder / developer lost his battle in the Supreme Court he came out with the allegations as are set out in C.R.No.69 of 2009 registered at the behest of his wife. The I.O. claims that he recorded the statements of ten persons while undertaking investigations in C.R.No.69 of 2009 and on completion of investigation charge- sheet has been filed on 17/8/2009. As per our directions Shri 17 Subhash Sanghai, Assistant Commissioner of Police presently attached to Kalwa Division, Thane City was present before us. We requested the learned APP to read out the complaint in C.R.No.167 of 2005 as well as the statements of the police constables and the employees of Thane Municipal Corporation recorded in the investigation in the said FIR and he could not furnish any explanation in support of his contentions that on 29/10/2005 there were two separate incidents and the charge- sheet filed on 26/9/2006 pertains to the first incident and the charge-sheet filed on 17/8/2009 pertains to the second incident. The complaint lodged by Shri Krishna Nipurte on 29/10/2005 clearly sets out the entire incident of 29/10/2005 as the one incident and, therefore, in our opinion, the investigation conducted is motivated, deliberate and dishonest and for the reasons which the police alone could explain. 12. If the criminal justice system in this country has to be set right so as to inspire the confidence of a common man, the police must be liberated from the clutches of the `wanted interests’, so as to belie the fast growing belief that the police are possessed by the lobbies of gangsters, builders and political dictates. The investigation carried out by the police in both the 18 CRs suffers from lack of credibility, fairness and commitments to bring the offenders to books. The pending trials based on the charge-sheets filed on such investigations, do not inspire confidence that the guilty would be punished. The only way left, therefore, is to resort to further investigation under Section 173(8) of Cr.P.C. and that too by keeping the present investigators away and hand it over to a more credible agency like the CBI, which by its professionalism may prove to be an opener to the present investigators so as to put their house in order. We are at pains to note that the police officers before us have filed misleading and facts suppressing affidavits on oath and there is no room to believe that it was unintended. Be that as it may, we leave the matter to the wisdom of the Commissioner of Police - Thane to take appropriate corrective steps, including penal actions under the service rules, against these officers. 13. We, therefore, find sufficient merit in the contentions of the petitioners that further investigation is required to be directed and handed over to CBI. In fact while referring to one of the applications submitted by respondent no.5, Mr.Sawant, the learned counsel appearing for the respondent nos.4 and 5 19 fairly conceded that it was in fact their case to direct the investigation to be carried out by the very same agency i.e. CBI. 14. Hence we allow this petition partly and direct the Superintendent of Police, CBI, (Special Crime Branch), Mumbai, to undertake further investigation in C.R.No.167 of 2005 and C.R.No.69 of 2009 registered with Kalwa Police Station. We direct Shri Prakash Patil, Inspector of Police (Crime), and Shri Subhash Sanghai, Assistant Commissioner of Police to hand over all the investigation papers including all the statements recorded during the investigation of C.R.No.167 of 2005 and C.R.No.69 of 2009, copies of the charge-sheets filed in both these C.Rs. We direct the CBI to complete the further investigation as expeditiously as possible and take further steps to file supplementary charge-sheet before the competent Court. In the mean while and till the CBI files supplementary charge- sheet, the trial in Case No.902 of 2006 arising from C.R.No.167 of 2005 and pending before the Court of the Learned Judicial Magistrate, First Class at Thane and R.C.C. No.1004 of 2009 pending in the Court of the learned Judicial Magistrate, First Class, Court No.6 at Thane and arising from C.R.No.69 of 2009 shall stand stayed. We also direct that both the complaints be 20 clubbed and tried together by the same court of competent jurisdiction, if so required. 15. A copy of this order be forwarded to the following authorities for further necessary action: 1. Superintendent of Police, CBI (Special Crime Branch), Mumbai. 2. Director General of Police – Maharashtra State. 3. Commissioner of Police – Thane. 16. Petition is allowed in the above terms and Rule is made absolute accordingly. 17. Writ to go forthwith to all the concerned. (R.Y.GANOO,J.) (B.H.MARLAPALLE,J.)