1 wp.3159.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3159 OF 2010 Shri Mohan Singh Chitodia & Ors. ...Petitioners Versus State of Maharashtra & Ors. ...Respondents WITH CRIMINAL WRIT PETITION NO.2171 OF 2010 M/s.Shri Samarth Spark Developer & Ors. ...Petitioners Versus Shri Mohan Singh Chitodia & Ors. ...Respondents ...... Mr.Ganesh Gole for Petitioners in WP/3159/2010. Mr.Dinyar Madan, Sr.Counsel i/b Mr.S.A.Sawant for Respondents 5 & 6 in WP/3159/2010. Mr.A.S.Gadkari, A.P.P. for State in WP/3159/2010. Mr.A.P.Mundargi, Sr.Counsel i/b Mr.S.A.Sawant for Petitioners in WP/2171/2010. Mr.K.V.Saste, A.P.P. for State in WP/2171/2010. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- FEBRUARY 9, 2011. P.C. 1. The petitioners in the former Petition, are the complainants. It is their 2 wp.3159.10 case that several documents have been forged to defeat their right in the redeveloped property. They are presently residents of slum area which is likely to be redeveloped by a private developer. Two separate complaints have been made by the said petitioners which have been registered as MECR No.7/2010 and MECR No.14/2010 at Mulund Police Station. MECR No.7/2010 is in respect of offence punishable under Sections 405, 415, 418, 420, 423, 464, 481, 323, 506 Part-II, 34 of the Indian Penal Code (`I.P.C.’). Whereas, MECR NO.14/2010 is for offence punishable under Sections 323, 324, 503, 504, 506 (II) of I.P.C. The concerned Court issued direction under Section 156(3) in both the criminal cases. 2. Pursuant to the direction so issued, Mr.Pandurang Bhau Patil -Inspector of Police and Mr.Milind Namdev Jadhav-Assistant Police Inspector were assigned investigation of the respective cases. We are informed that insofar as MECR No.14/2010 is concerned, the Investigating Officer has already filed police report under Section 173(2) of the Criminal Procedure Code (`Cr.P.C.’)on 30th October, 2010 mentioning that the case made out by the petitioner is a non-cognizable offence and for which reason, NC summary report has been filed. 3 wp.3159.10 3. Insofar as MECR 7/2010 is concerned, the accused approached this Court by way of Writ Petition No.2171/2010 for quashing of the criminal action initiated against them. In the said criminal Writ Petition, the Investigating Officer Mr.Pandurang Bhau Patil filed reply affidavit dated 13th August, 2010. The affidavit makes an interesting reading. Suffice it to observe that self contradictory stand has been taken by the Investigating Officer of the case, as can be discerned from the averments in paragraphs 3 to 5 and 8 on the one hand; and paragraphs 7 and 9 of the said affidavit on the other. In the former paragraphs, the Investigating Officer has plainly stated that he has recorded statements of more than six witnesses who have categorically asserted that the accused persons submitted proposal to the MHADA Authority on the basis of forged and bogus documents and more so taking advantage of signatures of hutment dwellers taken in purported General Body Meeting held on 2nd November, 2003. It is the case of the said witnesses that their signatures were taken in the Minutes Book which presumably were submitted to the MHADA Authority for obtaining sanction to SRA Scheme. He has also referred to the fact asserted by the complainant and witnesses that for last eleven years, no meeting of the Society was ever held and by using muscle power, the Office bearers of the 4 wp.3159.10 Committee took signatures of gullible hutment dwellers, who incidentally were members of the Society and those documents were used for obtaining sanction of the Authority. Notably, the Investigating Officer has also recorded that he has already made reference to MHADA authorities and was awaiting report of the concerned authorities on the subject matter. 4. Notwithstanding the above, the Investigating Officer has jumped to the conclusion that the dispute raised by the petitioners was of civil nature. On what basis that assumption is drawn, is not forthcoming either in the affidavit or any record available with the Investigating Officer. This presupposes that the Investigating Officer was acting under some misconception if not under dictation of the accused persons who are financially sound (developers) and are pursuing redevelopment scheme of slum area. 5. As aforesaid, the accused named in MECR No.7/2010 have filed Writ Petition in this Court being Writ Petition No.2171/2010. Relying on opinion recorded in Paragraph No.7 of the affidavit of the Investigating Officer, this Court was persuaded to admit the said Writ Petition and also grant stay of investigation of the case. As a result of such order passed on 31st August, 5 wp.3159.10 2010, the investigation of the complaint registered as MECR No.7/2010 has been kept in abeyance. 6. The petitioners in the former Writ Petition (WP 3159/2010) initially made grievance only about the manner of investigation done by the Investigating Officers and more particularly, in respect of MECR No. 14/2010 in which NC Summary report has already been filed before the concerned Court. Considering the nature of grievance of the petitioners, this Court permitted the petitioners to amend the Writ Petition to ask for further relief of not only transferring the investigation of MECR No.14/2010 but also MECR NO.7/2010 in respect of which the accused have already filed Writ Petition in this Court and succeeded in getting interim stay of further investigation of the said case. Accordingly, the Petition now stands amended so as to ask for transfer of investigation of both the cases to be done by independent agency, who would be in a position to file unbiased and fair investigation report so that the complaints filed by the petitioners can be taken to its logical end. 7. Insofar as Criminal Writ Petition No.2171/2010 filed by the accused for quashing is concerned, we thought it appropriate to hear the said Writ 6 wp.3159.10 Petition along with the former Writ Petition filed by the Complainant as overlapping issues were involved. When the said Writ Petition was taken up for hearing along with the former Petition, after hearing Counsel for the accused/petitioners, in deference to the observations made by the Court, the Counsel, in all fairness, submitted on instructions that the accused/petitioners in that case will not pursue the said Writ Petition before this Court and instead, resort to other proceedings as may be available to them after the filing of police report under Section 173(2) of the Cr.P.C. before the concerned Court. In the circumstances, under this order we are allowing the petitioners in Criminal Writ Petition No.2171/2010 to withdraw their Writ Petition with liberty to pursue other appropriate remedies as may be available to them which will have to be proceeded with in accordance with law. As a result, the interim stay of investigation of that case also stands vacated forthwith. 8. Reverting back to the former Writ Petition filed by the complainant, from the approach of the Investigating Officer which has been spelt out in the reply affidavit filed before this Court while opposing criminal Writ Petition No.2171/2010 in connection with MECR No7/2010, we have no manner of doubt that in the garb of opposing the said Writ Petition, he 7 wp.3159.10 virtually conceded the relief as claimed in the said Writ Petition of quashing of the criminal case against the accused. As mentioned earlier, the affidavit of the said Investigating Officer Mr.Pandurang Bhau Patil, Police Inspector is self contradictory in itself. On the one hand, the Officer refers to the fact that statements of concerned witnesses have been recorded which discloses offence of forgery and fabrication of record which by no standards, can be coined as a civil dispute. Moreover, he has conceded on affidavit that no report was received from MHADA. If so, he could not have arrived at, much less expressed, any final conclusion. Nevertheless, he has had the audacity to go on record that the complaint made by the petitioners was in the nature of a civil dispute. We fail to understand as to how a Senior Police Officer can have such casual approach during the course of investigation which admittedly was inconclusive at the relevant point of time. Whether this has been done intentionally to favour the accused persons or otherwise is a matter, in our opinion, to be inquired into departmentally. We refrain to make any further observation in this regard and leave it to the Secretary of the Home Department to cause inquiry against the concerned Police Officer(s) to be proceeded in accordance with law. 8 wp.3159.10 9. Suffice it to observe that the approach of the Police Officer, by no stretch of imagination, can be said to be fair investigation undertaken by him. He has predetermined the issue and has gone on record on the affidavit that the complaint made by the petitioners was in the nature of civil dispute. It would be unsafe to allow such Officer to continue with the investigation as that would not only result in fudging of record but also in travesty of justice. That cannot be countenanced. Instead, we are of the considered opinion that the investigation of the said case being MECR No. 7/2010 will have to be handed over to an independent agency such as State C.I.D. to be assigned to Officer not below the rank of Superintendent of Police, in view of the fact that now the complaint made by the hutment dwellers is not only against the developers but it is also seen from the record that the local police has favoured the accused persons by filing affidavit before this Court which indicates a biased approach in the matter. 10. Insofar as investigation of MECR No.14/2010 is concerned, even that is no different. The complaint is for offence under Sections 323, 503, 504, 506 Part II of I.P.C. The Investigating officer has treated this complaint as non-cognizable offence inspite of the fact that as per the prevailing Notification issued by the State Government, offence under Section 506 9 wp.3159.10 Part II is a cognizable offence. The learned A.P.P. has conceded this position. Further, the justification given by the Investigating Officer for submission of such report is that the medical certificate issued by the concerned doctor which was obtained during the course of investigation, does not reveal any grievous hurt caused to the complainant. That does not mean that the complaint as filed by the petitioners was in respect of a non- cognizable offence. All the allegations in the complaint ought to have been investigated in proper perspective, which approach is palpably lacking even by the Investigating Officer in the case of MECR No.14/2010. 11. Be that as it may, since the two complaints are in respect of same subject matter and between the same parties and may have to inquire into overlapping issues, we would think it appropriate that even this case ought to be investigated by an independent agency which would be investigating MECR No.7/2010. 12. Accordingly, we have no hesitation in directing transfer of investigation of even MECR No.14/2010 forthwith to an independent agency such as State C.I.D., to be assigned to Officer not below the rank of Superintendent of Police for the same reasons indicated hitherto. 10 wp.3159.10 13. We may place on record that Mr.Madan, Counsel for the Respondents/accused was at pains to persuade us that the Writ Petition should be dismissed because of the conduct of the petitioners. According to him, the petitioners have not approached this Court with clean hands. Further, the petitioners have misled this Court and failed to disclose the fact that further investigation in MECR No.7/2010 was already stayed by way of interim order after hearing the petitioners on 31st August 2010 in Criminal Writ Petition No.2171/2010. Insofar as this grievance is concerned, we would prefer to take a holistic approach. In our considered opinion, it may be travesty of justice to throw out the Petition on such hyper technical argument. We cannot overlook the fact that the complaints are by slum dwellers. They have alleged act of forgery and fabrication of record committed by the persons in authority such as the office bearers of the Society of which the complainants are incidentally members and in collusion with the developers who are supposed to redevelop the slum area in question. It is but appropriate that the real matter is unraveled and if the investigation were to reveal that there is truth in the allegations made by the complainants of forgery and fabrication of documents and taking their signatures on Minutes Book which were used for securing sanction of 11 wp.3159.10 redevelopment of the property, the same will have to be taken to its logical end to secure the ends of justice. 14. As a matter of fact, public interest demands that such allegations should not be buried under the carpet but should be thoroughly inquired into and taken to its logical end. If the petitioners have made false and reckless allegations against the accused persons, even in that case, the investigation ought to unravel that position so that the petitioners can also be proceeded for such false and reckless complaint filed by them in accordance with law. 15. Accordingly, we allow Criminal Writ Petition No.3159/2010 by directing the Secretary, Home Department to ensure that the investigation of both the cases is forthwith transferred to State CI.D., to be undertaken by Officer not below the rank of Superintendent of Police. The newly appointed investigating agency will be free to ignore the investigation already done by the present Investigating Officers and proceed in the matter afresh. We express no opinion in that regard and leave it to the discretion of the newly appointed agency. 12 wp.3159.10 16. We make it clear that implicit in this direction, is that the police report already filed by the present Investigating Officer cannot be acted upon till further report is filed by the newly appointed investigating agency. The newly appointed investigating agency, as aforesaid, would be free to reinvestigate all the allegations contained in both the complaints. We have no manner of doubt that the newly appointed investigating agency will take into account the plea of the Respondents/accused and thereafter on completion of investigation file its report before the concerned Court. 17. We hope and trust that the Secretary of the Home Department shall transfer the investigation in terms of this order as expeditiously as possible and in any case not later than 28th February, 2011, so that, the newly appointed investigating agency can take over the investigation and proceed in accordance with law keeping in mind the observations made by us hitherto. 18. Writ Petition No.2171/2010 is allowed to be withdrawn with liberty to the accused/petitioners therein to pursue other remedies as may be permissible by law which will have to be decided on its own merits in accordance with law, uninfluenced by the observations made in this order 13 wp.3159.10 19. We further make it clear that it will be open to the respondents/accused to take out appropriate proceedings against the petitioners for allegedly having misled this Court, which application, if filed, will be decided on its own merits. 20. To observe compliance of the above direction, we direct the Office to place this matter on 1st March, 2011 under caption `direction’. 21. Copy of this order be forwarded to the Secretary, Home Department for information and necessary action. 22. All concerned to act on the ordinary copy of this order, duly authenticated by the Office. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)