1 24 wp.2894.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2894 OF 2010 Maruf Arif Bhati. ... Petitioner Vs. The State of Maharashtra and ors. ... Respondents ----- Mr. Madhukar Dalvi for the Petitioner. Mr. A.S.Gadkari, APP for the State. ----- CORAM : A.M. KHANWILKAR and P.D. KODE, JJ. DATE : 12 th October, 2010. P.C. 1 Heard the learned counsel for the parties. 2 By this petition under Article 226 of the Constitution of India, the Petitioner seeks direction for transfer of investigation from Santa Cruz Police Station to some other Police Station or such other independent investigation agency as may be ordered by this Court. It is further prayed that appropriate action against Respondent No.2 – Jamil Shaikh, API be taken including to terminate his service and order him to pay compensation to the Petitioner and his family for the gross harassment caused to them. 3 The petition is founded on assumptions deduced by the 2 24 wp.2894.10 Petitioner on account of certain circumstances. It is noticed that the Petitioner was served with the communication issued by the police official dated 16 th July, 2010 informing that some complaint has been filed against him and to remain present in police station after giving prior intimation on telephone. That communication was served on the Petitioner on 19 th July, 2010. As the Petitioner did not appear in police station, the concerned police official registered FIR on the basis of the complaint made by the Petitioner’s estranged wife on 20 th July, 2010 at around 13:15 hours. In this FIR, allegations are made against the in-laws by the estranged wife of the Petitioner. On the basis of the said FIR, as the investigation was entrusted to Respondent No.2, he proceeded to arrest the parents of the Petitioner on 23 rd July, 2010. The Petitioner’s parents were produced before the Judicial Magistrate and have been released on bail. In the same police station, another offence came to be registered against the Petitioner once again by his estranged wife complaining of having administered threat of dire consequences, if she fails to withdraw the earlier complaint, which it is stated is an offence amongst other punishable under Section 498-A of the Indian Penal Code. This complaint was received in the same police station on 4 th September, 2010 in the wee hours at around 2:00 am, which was registered by PSI – Mr.Salunke for offence under Section 504 and 506 (II) of the Indian Penal Code. Even investigation of this case was entrusted to Respondent No. 2. In the course of investigation, he arrested the Petitioner on 19 th September, 2010. 3 24 wp.2894.10 4 In the backdrop of these facts, it was argued before us that the police official before effecting arrest either of the Petitioner or his parents at no point of time gave prior intimation or attempted to facilitate settlement between the parties. Without doing any preliminary inquiry, Respondent No.2 proceeded to arrest the Petitioner. Essentially on this basis, it is alleged that Respondent No.2 has taken personal interest in the investigation of the case against the Petitioner for which reason, the investigation should be transfered to some other independent agency. 5 Having considered the rival submissions and going through the original records produced before us, we have no hesitation in rejecting this petition being founded on unsubstantiated allegations. Indeed, the Petitioner’s parents were arrested on 23 rd July, 2010, Respondent No.2 cannot be blamed for that situation, inasmuch as his predecessor PSI – Mr.Hegde had sent communication on 16 th July, 2010 intimating the Petitioner to remain present in the police station. From the original record, it is noticed that the said communication was duly served on the Petitioner, who had acknowledged receipt thereof by putting his own signature and giving his mobile number. However, as no one appeared in the police station till the afternoon of 20 th July, 2010, nor any intimation was received relating to communication dated 16 th July, 2010, the Respondent No.2 had no option but to set the law in motion. 6 The grievance essentially in the present petition is in respect 4 24 wp.2894.10 of registration of FIR on 20 th July, 2010 by PSI – Mr.Hegde. For that the Respondent No.2 cannot be made responsible. Respondent No.2 came on the scene only because investigation of the said case was entrusted to him after registration of the FIR. In furtherance thereof, Respondent No.2 caused arrest of Petitioner’s parents on 23 rd July, 2010. 7 Insofar as arrest of the Petitioner by Respondent No.2 in connection with offence registered on 4 th September, 2010 is concerned, even the said FIR was registered by some other police official – PSI – Mr.Salunke. Even this case was later on entrusted to Respondent No.2 for investigation. Considering the allegations in the said complaint and as the offence under Section 506 (II) as per the notification issued by the State of Maharashtra is treated as cognizable and non-bailable offence, Respondent No.2 in the course of investigation eventually arrested the Petitioner on 19 th September, 2010. Indeed, even this offence is registered by the estranged wife of the Petitioner. However, considering the nature of allegation, the question of doing preliminary inquiry or attempting to facilitate settlement between the parties does not arise. No fault can be found with Respondent No.2 for having proceeded with the investigation in relation to the second offence and in the course thereof, arresting the Petitioner on 19 th September 2010. The fact that the complaint was registered in the wee hours on 4 th September, 2010 at around 2:00 am, does indicate, prima-facie, that the Petitioner’s estranged wife was terrified by the act of commission and omission of the 5 24 wp.2894.10 Petitioner, which compelled her to rush to the police station at such odd hours and register the offence. 8 Suffice it to observe that no case for transfer of investigation from Santa Cruz Police Station to some other police station or any independent investigation agency is made out. 9 Our attention is invited by the learned counsel for the Petitioner to the judgment of the Division Bench of our High Court in the case of Vishwajit P. Rane Vs. State of Goa and ors reported in 2010 (9) LJSOFT (URC) 31 to contend that the offence 506 can no more be treated as cognizable and non-bailable offence as similar notification issued by the State of Goa has been quashed and set aside in terms of the said decision. That, however, will be of no avail to the Petitioner to consider the relief claimed in this petition. More-so because, so long as the notification issued by the State of Maharashtra is not quashed and set aside or withdrawn, the police officials in Maharashtra cannot be blamed for acting on the basis of the said notification that the offence under Section 506 (II) is a cognizable and non-bailable offence. 10 Taking any view of the matter therefore, we find no merits in this petition, the same is dismissed. [ P.D. KODE, J ] [ A.M. KHANWILKAR, J ]