1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.481 OF 2010 1. Shaikh Yunus s/o Sk. Noor, Age : 39 years, Occ. Business, R/o Pathan Mohalla, Ambad, District Jalna 2. Nilkanth s/o Jankiram Surange Age : 37 years, Occ.Business, R/o Chanalenagar, Ambad, District Jalna ..PETITIONERS VERSUS 1. The State of Maharashtra, Through the Secretary, Home Department, Mantralaya, Mumbai - 32 2. The Superintendent of Police, Jalna, District Jalna 3. Bhavanidas Bhalchandra Kulkarni, Age : 63 yrs, Occ. Business & Councillor of Ambad Municipal Council 4. Sulbha Bhavanidas Kulkarni, Age : 56 years, Occ. President of Ambad Municipal Council 5. Kedar Bhalchandra Kulkarni, Age : 25 yrs., Occ. Business & Councillor of Ambad Municipal 2 6. Ketan Bhalchandra Kulkarni, Age : 23 yrs., Occ. Education, Of Ambad Municipal Council, All R/o Ganpati Galli, Main Road, Ambad, Tq. Ambad, Dist. Jalna 7. Shrikant Sudhakar Dahale, Age : 44 yrs., Occ. Business, R/o Station Road, Aurangabad ..RESPONDENTS Mr V. D. Salunke, Advocate holding for Mr S.S. Tope for the petitioners; Mr D. R. Kale, A.P.P. for respondents no.1 & 2; Mr C.N. Rajput, Advocate holding for Mr S.B. Jadhav for respondents no.3 to 6; Mr D.P. Palodkar, Advocate for respondent no.7. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 6th September, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. This petition discloses very peculiar facts. On the application made by an accused against whom an offence had been registered on that very day, the Superintendent of Police transferred the investigation from the Police Officer who was duly authorised by law to investigate the 3 offence to some other Officer. The Officer to whom the investigation came to be transferred on the day on which the offence was registered has not carried out the investigation a wee bit, but in the affidavit in reply it is disclosed that the dispute is of civil nature. 3. A complaint came to be filed by the petitioners against respondents no.3 to 6 complaining offence punishable under sections 420, 468, 471, 409 read with section 34 of the Indian Penal Code. On the same day, i.e. on 31.3.2010 the offence vide Crime No.59 of 2010 came to be registered against respondents no.3 to 6 for offence punishable under sections 420, 468, 471, 409 read with section 34 of the Indian Penal Code. Since no effective steps had been taken by the authorities after registration of the offence, the petitioners filed the present petition. In the affidavit in reply on behalf of the respondents it was disclosed that the investigation had been transferred at the behest of the accused by the Superintendent of Police. The petitioners have accordingly amended the petition and have challenged the aforesaid order transferring the investigation from one A.P.I. Dilpak who was the Police Station Officer of the Ambad police station. 4. Learned Counsel for the petitioners has urged before us that there is no provision entitling the Superintendent of Police to transfer the investigation from one Investigating Officer and entrust the investigation to another Investigating Officer at the behest of the accused. Reliance is 4 also placed upon the judgment of Supreme Court in Central Bureau of Investigation vs. Rajesh Gandhi, 1997 AIR (SC) 93. Reliance is placed specifically upon paragraph 8 of the said report which reads thus :- "There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2.6.1994 is issued by the government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No.159 of 9/3/1993 in the District of Dhanbad, under S. 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26/10/1994 is issued by the government of India, Ministry of Personnel in exercise of the powers conferred by Ss. (1 of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the central government with the consent of the State government of Bihar in their notification dated 2/6/1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under S.457, 436, 427/120-B and 201 Indian Penal Code and Section 4 of the Prevention of Damage to 5 Public Property act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No.159 dated 9/3/1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Justice Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the central government with the consent of the State government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State government and in accordance with law. Under Section 173 (8 of the Criminal Procedure Code 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under Ss. (2 has been forwarded to the Magistrate." 5. The respondents have filed several affidavits and the learned A.P.P. in support of the said order has urged before us that the Superintendent of Police in exercise of the powers under section 36 of the Code of Criminal Procedure has transferred the investigation on the 6 ground that certain allegations in respect of integrity of the police officer were made. The aforesaid statement is supported by respondents no.3 to 6 (original accused), who also contend that since the police officer had stayed at that particular place for more than three years, it was the apprehension of the accused that he may have developed certain ties with the residents of the locality and, therefore, the investigation was likely to be coloured. The learned A.P.P. further states that the Investigating Officer, to whom the investigation was entrusted, has verified the facts and has come to the conclusion that the dispute is of civil nature and, therefore, no investigation is necessary. Curiously it appears that no investigation as such has been carried out by the Officer who has been entrusted with the investigation by the Superintendent of Police by his order dated 31.3.2010. We have carefully perused the affidavit in reply and have also asked the learned A.P.P. to point out to us from the several affidavits-in-reply filed on behalf of the respondents as to what steps had been taken by the Investigating Officer in respect of the investigation of the offence. The learned A.P.P. was unable to point out to us as to what investigation actually had been carried out by the Investigating Officer. The Superintendent of Police, who had passed the impugned order, has filed the affidavit in reply. In the affidavit in reply it is stated that the Investigating Officer to whom he had entrusted the investigation, i.e. the Sub-Divisional Police Officer is an honest, efficient and competent Police Officer and has conducted the investigation of Crime No.59 of 2010 registered at Ambad police station. It is further 7 stated that on several occasions progress report was called by the concerned Superintendent of Police. 6. As pointed to us above, in none of the affidavits in reply it is stated before us as to what was the investigation which has been carried out till 75.2010, i.e. till this Court granted stay to the investigation. It was moved before the Court on behalf of the petitioners that the Investigating Officer who had been entrusted with the investigation was pressurizing the prosecution witnesses and the complainant to withdraw the complaint and the Division Bench of this Court by its order dated 7.5.2010 after giving detailed reasons granted stay to the further investigation by the Investigating Officer. Case diary of the aforesaid crime has also not been produced before us. On a query made to the learned Counsel for the petitioner and the learned Counsel for the interveners, a statement is made at the Bar that no investigation has been carried out so far i.e. statements of the complainant or the prosecution witnesses have not been recorded so far. It thus appears that no effective steps in the investigation were taken by the Investigating Officer from 31.3.2010 till 7.5.2010. On the contrary it is suggested to us in the affidavit in reply that the dispute is of a civil nature. Curiously, no summary in this regard had been submitted before the Judicial Magistrate First Class, Ambad. 7. A question thus arises for our consideration as to whether the Superintendent of Police was authorised in law to transfer the 8 investigation from one Investigating Officer and entrust it to another Investigating Officer at the behest of the accused. The leaned A.P.P. was unable to point out to us any provision by which the Superintendent of Police was entrusted with the powers to do so. Assuming for the sake of argument that the Superintendent of Police did have the powers to transfer the investigation from one Investigating Officer to another, the sole question remains is whether it could be done so at the behest of the accused. An accused certainly cannot pick and choose an Investigating Officer of his choice nor can he claim that the Investigating Officer who is entrusted with the investigation is biased. Such application was presented on the day on which the offence was registered. The Superintendent of Police at the drop of the hat transferred the investigation without even calling a report from the Officer who would normally have investigated the said crime. The further conduct of the investigation shows that no effective steps at all had been taken by the Investigating Officer who had been entrusted with the investigation. We do not wish to dilate much on either the powers of the Superintendent of Police or the efficiency and integrity of the Officer who had been entrusted with the investigation. Suffice it to state that the order passed by the Superintendent of Police is unsustainable in law. The aforesaid order further is unsustainable on account of the fact that no investigation at all was carried out by the Officer who had been entrusted with the investigation. Though a statement is made by the Superintendent of Police in his affidavit in reply that he is willing to 9 reconsider his order entrusting the investigation, we do not accede to the aforesaid request and accordingly allow this petition and quash and set aside the impugned order transferring the investigation. The Officer entitled in law to investigate Crime No.59 of 2010, registered at Police Station, Ambad, on 31.3.2010 shall forthwith take up the investigation of the said crime and shall endeavour to expeditiously complete the investigation in accordance with law. 8. Accordingly this writ petition succeeds and the impugned order is quashed and set aside with the directions referred to above. Rule made absolute on the above terms with no orders as to costs. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/criwp481.10