- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.473 OF 2010 Mr.Irfanulla Habibullah Farooqui .. Petitioner vs Kiran Sonawane,Asst.Commissioner of Police & ors ... Respondents Mr.Ayaz Khan i.b Mr.Abdul Kadar Milwalla for Petitioner Mrs.U.V.Kejriwal A.P.P.for Respondent-State CORAM: SMT.RANJANA DESAI SMT.MRIDULA BHATKAR,JJ DATED: 22nd February 2010 P.C. 1. Writ Petition No.922 of 2009 came to be filed by the petitioner Irfanulla Habibullah Farooqui praying that investigation in C.R.No.682 of 2008 registered by Oshiwara police station be transferred to another police station or investigating agency. The said writ petition was disposed of on 16th September, 2009. A statement came to be made by learned A.P.P. that respondents are ready to transfer investigation of the case to Versova police station. The Division Bench disposed of the writ petition in view of this statement. However, the - 2 - Division Bench observed that transferring investigation of this case from one police station to another police station should not be taken as expression of opinion against police officers who were investigating the case. Thereafter, Writ Petition No.3385 of 2009 came to be filed by the same petitioner in which it was prayed that F.I.R.No.682 of 2008 registered with Oshiwara police station be transferred on such terms and conditions as may be deemed fit by this court. That petition was withdrawn by counsel for the petitioner on 2nd February 2009. In the present petition, the main prayer is made that investigation of F.I.R. NO.682 of 2008 registered with Oshiwara police station be transferred to Crime Branch from Versova police station. 2. We have heard learned counsel for the petitioner at some length. He submitted that allegations made by the petitioner center around the role played by Mr.Sonawane the then Inspector in- charge of Oshiwara police station. After this court passed an order on 16th September, 2009 Mr.Sonawane was promoted and he became A.C.P.in a division in whose jurisdiction Versova police station falls. - 3 - Mr.Khan submitted that therefore, transfer of investigation to Versova police station would not serve any purpose because, A.C.P. Sonawane is likely to influence the investigation. Mr.Khan drew our attention to a letter dated 7th September 2009 written by Suresh H.Jashnani to the Senior Inspector of Police, Unit III, Mumbai in which he has made a complaint against the original complainant in C.R.No.682 of 2008 which is the subject matter of this petition. Mr.Khan pointed out that this complaint is being investigated by Unit III of Crime branch. He submitted that therefore, it would be in the fitness of things to transfer the present investigation to Crime Branch. 3. We have also heard Mrs. Kejriwal learned A.P.P. at some length. Mrs.Kejriwal has drawn our attention to certain paragraphs of letter dated 2nd October, 2009 addressed by the petitioner to the Joint Commissioner of Police,(Crime). She submitted that the petitioner has tried to mislead the police and pursuant to this letter an order was passed by the Joint Commissioner of Police to transfer the investigation to Crime Branch. However, it was pointed out to the Joint Commissioner of Police that - 4 - an order was passed by this court on 16th September, 2009 to transfer the investigation to Versova police station. An inquiry was therefore made as to whether the Joint Commissioner of Police could transfer investigation to the crime branch when there was an order of this court in the field directing transfer of the investigation to Versova police station. Learned A.P.P. submitted that it was not open to the petitioner to address a letter to the Joint Commissioner of Police to transfer the investigation when in a petition filed by him this court had transferred investigation to Versova police station. If at all the petitioner wanted transfer of investigation, he should have approached this court for modification of this court’s earlier order. 4. We find considerable force in the submissions of learned A.P.P. We have carefully perused letter dated 2nd October, 2009 addressed by the petitioner to the Joint Commissioner of Police. In the letter, the petitioner has stated that his Writ Petition No. 922 of 2009 was allowed and investigation was allowed to be transferred to any other unit/investigating agency. This statement is factually incorrect. The investigation was - 5 - transferred to Versova police station on the statement made by learned A.P.P. It was purely on the statement made by the A.P.P. that investigation was transferred. It was improper on the part of the petitioner to write such a letter to the Joint Commissioner of Police. Further it was also improper on his part to request the Joint Commissioner of Police to transfer investigation to the Crime Branch when there was an order in the field passed by the Division Bench on 16th September, 2009. Propriety demanded the petitioner to come to this Court and seek modification of order dated 16th September, 2009. This is not all. The original file from the office of Crime Branch is shown to us. After the letter dated 2nd October, 2009 was received by the crime branch action was indeed taken on that letter. We see a noting on the original file saying that investigation be transferred to Unit No.III. Thereafter, it appears that attention of the Crime Branch was drawn to the order of this court dated 16th September, 2009. Therefore, inquiry was made by the Additional Commissioner of Police as to whether investigation could be transferred by the Crime Branch when there was this court’s order in the field. Legal opinion - 6 - was sought. In our opinion, legal opinion is not at all necessary on this issue because, once this court’s order is in the field no order can be passed overriding the same by the Additional Commissioner of Police. We again repeat that it was improper for the petitioner to approach the Joint Commissioner of police for transfer of the investigation. He should have approached this court. 5. So far as prayer for transfer is concerned that prayer has now become infructuous because, a statement is made by Mrs Kejriwal A.P.P. that Mr.Sonawane is promoted as A.C.P. Of Matunga division and not as A.C.P. of D.N.Nagar division in whose jurisdiction Versova police station falls. Therefore, there is no question of A.C.P. Sonawane interfering with investigation. Petition is therefore, dismissed. SMT.RANJANA DESAI, J SMT.MRIDULA BHATKAR, J - 7 -