1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.1824 of 2008 Shri Bharat Dayanand Raskar .. .. Petitioner v/s. The Commissioner of Police & ors. .. Respondents Mr.Uday Warunjikar for Petitioner. Mrs.V.R. Bhosale, APP for State. ---- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 6th October, 2009 P.C. : 1.We have heard Mr.Warunjikar, the learned Counsel for the Petitioner. 2.In this Petition, filed under Article 226 of the Constitution, the Petitioner, inter alia, prays for (a) transfer of CR No.152/2006, FIR registered on 3.5.2007 under Sections 307, 440, 201 and 401 read with Section 34 of Indian Penal Code ( IPC for short) to the Crime Branch/CID for further investigation and to file a supplementary charge-sheet in CR No.152/2006, and (b) to direct initiation of departmental inquiry against the Respondents and to suspend Respondent No.3 and thereafter remove him from service on the ground that he has failed to perform his duty and acted to favour 2 the accused. 3.The Petitioner was in employment of M/s.IG Petro and Mysore Chemical Ltd. at Taloja and while he had left the Company on 9.9.2006, near the gate of the factory, he was assaulted at 11 p.m. by unknown persons. As per him, the Security Officer on duty Shri Suryakant Sawant had caught hold of one of the assailants, whereas the remaining 2/3 assailants had run away. CR No.152/2006 came to be registered with the Taloja Police Station, but there was no progress and, therefore, he filed an FIR on 3.5.2007, for the offences punishable under Sections 307, 440, 201 and 401 read with Section 34 of the IPC against Shri Somnath Shilkar and others. As per the Petitioner, Shri Somnath Shilkar was the person, who was caught by the Security Officer as one of the assailants and on the instructions of the employee-Company, he was released and, therefore, the Company-Management in connivance with the accused persons and the Police Officers i.e. Respondent Nos.2 and 3 has been influenced, as a result of which investigation into the FIR was not properly done and, therefore, he prays for transfer of the investigation, filing of additional charge-sheet and action to be taken against the Police Officers concerned. 4.From the record, it is seen that the Petitioner had 3 approached this Court in Criminal Writ Petition No.190 of 2007, alleging that the Police did not undertake proper investigation and this Petition was filed obviously much before the Petitioner filed his FIR. While disposing of the said Petition on 20.3.2007, a Division Bench of this Court noted the statement of the learned APP to the effect that if the Petitioner would attend the Taloja Police Station on 21.3.2007 at 11 a.m., PSI Pimple would record his supplementary statement and the Police would carry out further investigation on the leads, if any, available from the statement of the Petitioner. On 21.3.2007, the Petitioner claims to have submitted his additional statement to the concerned Police Station and as per him, nothing effective was done further. 5.We have noted that the FIR filed by the Petitioner was registered on 3.5.2007 for the offences punishable under Sections 307, 440, 201 and 141 read with Section 34 of the IPC. The Senior Inspector of Police from the Taloja Police Station filed an Affidavit-in-reply, opposing this Petition. It has been pointed out that Shri Shilkar was released by the Security Officer on the instructions of the Executive Director, because two employees of the Company viz. Ananta Nighukar and Tukaram Patil had opposed the Security Guard Shri Suryakant Sawant and informed him that Shri Shilkar 4 was a very dangerous person and if he would not be released, the villagers would gather at the gate of the Company in the morning and the Company would be shut down by force. Nevertheless, the Police carried out investigation and submitted a charge-sheet on 26.12.2007 before the learned Judicial Magistrate, First Class at Panvel vide RCC No.523/2007 against Shri Somnath Shilkar and Shri Ganesh Bhopi. Prior to the filing of the charge-sheet, the Police had arrested Somnath Shilkar on 27.9.2006 and Ganesh Bhopi was arrested on 3.10.2006, whereas the third accused Shri Somnath Mhatre came to be arrested on 1.2.2007. Test Identification ( TI ) Parade was held on 22.2.2007 in the office of the Tahsildar, Panvel and the Petitioner was called upon the participate in the same, but he did not remain present. However, Shri Tukaram Madhukar Patil attended the TI Parade and he could not identify the accused persons. 6.On 20.2.2007, the Petitioner filed Miscellaneous Application No.35 of 2007 before the learned Judicial Magistrate, First Class at Panvel, in which an order came to be passed on 13.4.2007, directing the Senior Inspector of Police, Taloja Police Station, to investigate the complaint under Section 156(3)of the Criminal Procedure Code. The said order was received by the Taloja Police Station on 23.4.2007 and the 5 matter was handed over to PSI Pimple to investigate and he in turn registered MECR No.2/2007 for the offence punishable under Sections 307, 440, 201 and 401 read with Section 34 of the IPC on 3.5.2007. During the course of investigation, an offence was registered against S/Shri B.A. Sawant, General Manager of IGPL Co., J.K. Sabu, Executive Director of IGPL Co., Somnath G. Shilkar, Ganesh Bhopi, Uday M. Nighukar and Naresh K. Patil. After completing investigation, the Police submitted their report on 15.2.2008 to the learned Judicial Magistrate, First Class at Panvel, stating that there was no evidence in respect of the offences punishable under Sections 307, 440, 201 and 401 read with Section 34 of the IPC. The learned Judicial Magistrate passed an order on 24.4.2008 and directed the complainant to examine himself along with his witnesses, as required under Section 200 of the Criminal Procedure Code. The Petitioner did not choose to comply with this order and appear before the learned Judicial Magistrate, First Class and still, he approached this Court in Criminal Application No.1948 of 2008, which came to be dismissed on 22 nd August 2008. While the said Criminal Application No.1948 of 2008 was pending before this Court, the Petitioner chose to file the instant Petition on or about 14 th August 2008. While rejecting Criminal Application No. 1948 of 2008 on 22.8.2008, the learned Single Judge 6 held that the learned Judicial Magistrate, First Class, did not commit any error in calling upon the Petitioner to record his statement on oath along with the statement of his witnesses. It appears thereafter that the Petitioner has done nothing. 7.If the Petitioner is serious about his complaint filed before the learned Judicial Magistrate, First Class, it is necessary for him to appear before the said Court and record his statement along with the statement of his witnesses on oath and let the criminal investigation process proceed further so that the Court would consider the private complaint filed by him and take further appropriate steps. This Petition filed for the reliefs noted hereinabove must, therefore, fail at the threshold and we are satisfied that the Police Authorities have acted diligently and prima facie, there does not appear to be any failure in discharging their duties as per law in respect of the complaint filed by the Petitioner. The Petitioner must appear before the learned Judicial Magistrate, First Class and record his statement on oath along with the statement of his witnesses, as directed by the said Court. 8.We are sure that if the Petitioner appears before the Court below, the said Court will deal with the complaint on its own merits. 7 9.The Petition is rejected. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]