1 WP 3233/09 with APPLN 237/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3233 OF 2009 The State of Maharashtra ) (At the instance of Senior ) Inspector of Police, City ) Police Station, Karad Taluka ) District Satara) ) .... Petitioner. v/s 1. Prataprao @ Mahesh Baban ) Bhosale, Residing at Datta Mandir ) 5th lane, Agashiv Nagar, Tal: Karad,) Dist: Satara ) ) 2. Dhananjay Tukaram Patil, ) Residing at post Atake, Tal: Karad, ) Dist: Satara ) ) 3. Sagar Babu Parmar ) Residing at Karve Naka, Trimurti ) Colony, Karad. ) ) 4. Hamid Rahim Shaikh, ) Residing at Bapuji Salunke Nagar, ) Goleshwar, Karve Naka, Karad. ) ) 5. Salim Mohammed Shaikh ) Residing at Shivraj Apartment, ) 125, Shaniwar Peth, Shinde Galli, ) Karad, Dist : Satara ) ) 6. Lazam Alladin Hodekar, ) Residing at post Bote, Tal: Karad, ) Dist: Satara. ) ) 2 WP 3233/09 with APPLN 237/10 7. Babasaheb Raghunath More, ) Residing at post Pachputewadi, ) Tal: Karad, Dist: Satara. ) ) 8. Ashfaq Mubarak Sonde, ) Residing at 93, Mangalwar Peth, ) Karad, Dist: Satara ) ) 9. Sambhaji Khashaba Patil, ) Residing at post Undale, Tal:Karad,) Dist: Satara ) ) 10. Sachin Laxman Chavan, ) Residing at post Dhamane, Tal. ) Paltan, Dist : Satara ) ) 11. Muddassar Nizam Momin ) Residing at post Malkapur, Tal: ) Karad, Dist : Satara ) ..... Respondents. ---- Shri Ravi Kadam, Advocate General with Shri P.A. Pol, Public Prosecutor & Mr S.R. Shinde, APP for the Petitioner – State. Shri A.V. Anturkar, Senior Counsel i/b Shri Dilip Bodake for Respondent Nos. 1 and 2. Shri V.V. Purwant for Respondent Nos. 7 and 9. Shri Sanjeev Kadam for Respondent Nos. 3, 4 and 5. Shri Siddheshwar Kale i/b Smt. Savita Yadav for Respondent Nos. 6, 10 and 11. ---- ALONGWITH CRIMINAL APPLICATION NO.237 OF 2010 IN CRIMINAL WRIT PETITION NO.3233 OF 2009 3 WP 3233/09 with APPLN 237/10 Shri Dinkar Tukaram Pawar, ) Aged 48 years, residing at ) 514/B, Mangalwar Peth, Satara ) ...Applicant. V/s State of Maharashtra ) .... Respondent. Shri S.R. Borulkar i/b Mr. Vinod Jadhav for the applicant. CORAM: V. M. KANADE, J. DATE : 20th September, 2010 ORAL JUDGMENT: 1. The aforesaid Writ Petition was admitted on 23/2/2010 by my brother B.R. Gavai, J. who was pleased to pass the following order:- “An important question of law as to ‘whether the learned Sessions Judge has a jurisdiction to transfer the investigation from one agency to another’ arises for consideration in the present matter. Hence, issue Rule. Ad interim relief in terms of prayer clause (b). Taking into consideration the 4 WP 3233/09 with APPLN 237/10 important issue involved in the present mater, the hearing is peremptorily fixed on 27.04.2010.” 2. On 27/04/2010, the aforesaid Writ Petition was mentioned before this Court and a grievance was made by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 that the State Government, after rule was granted, was not taking any steps to serve the other accused. The State Government was, therefore, directed to take adequate steps to serve the other respondents and the matter was kept for final hearing on 22/06/2010. Thereafter, the aforesaid Writ Petition was adjourned from time to time and was taken up for final hearing along with Criminal Application No. 237 of 2010 which has been taken out by the Public Prosecutor and in the said application he has prayed that the strictures which are passed against him by the learned Sessions Judge in the impugned order may be expunged. 3. Brief facts are as under:- 5 WP 3233/09 with APPLN 237/10 4. An FIR was registered on 15/1/2009 on a complaint filed by Respondent No.1 in which he has alleged that when one Sanjay Tukaram Patil and others came out of Hotel Shiv Darshan at Karad, two unknown persons opened fire with their fire arms and fired about 10-12 rounds towards Sanjay Tukaram Patil who sustained grievous injuries and collapsed on the spot and subsequently died as a result of the said injuries. 5. On 16/1/2009, the Investigating Officer recorded the statement of Respondent No.2, a brother of the deceased and also his wife Shubhangi S. Patil. The statements of other witnesses were recorded who stated that one of the assailants was Respondent No.3 – Sagar Parmar. Thereafter, the statements of other witnesses were recorded on 17/1/2009 viz. Vaibhav Bhimrao Patil, Abhay Dinkar Patil and Suryakant Jaising Jamle who stated that there was some altercation between the deceased and one Babasaheb R. More and Salim Mohammed Shaikh during the period of election of A.P.MC., Karad. The Investigating Officer 6 WP 3233/09 with APPLN 237/10 arrested accused/Respondent Nos. 3 to 11 after 19/01/2009 and also recovered fire arms used in the commission of the offence. On 24/1/2009, Respondent Nos. 1 and 2 in their supplementary statements disclosed their suspicion against one Uday V. Patil and Anandrao @ Rajendra J Patil and, according to them, panel of this person was defeated by the panel headed by the deceased in the elections of A.P.M.C., Karad. The Investigating Officer, after completing the investigation, filed a charge-sheet in the court of J.M.F.C. Karad. 6. The Respondent Nos. 1 and 2, after the charge-sheet was filed, filed Criminal Writ Petition No.770 of 2009 in this Court seeking transfer of investigation to CBI or any other agency. The said Petition was withdrawn by the Respondents and the following order was passed:- “CORAM: SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J. DATE : 7TH MAY, 2009 P.C. 7 WP 3233/09 with APPLN 237/10 Learned Counsel appearing for the Petitioner wishes to withdraw the present Petition with liberty to move the learned Trial Court as the charge sheet is stated to have been filed before Court of competent jurisdiction. All the contentions sought to be raised in this writ petition are kept open. The Petition is allowed to be withdrawn with liberty as prayed.” 7 Thereafter, Respondent Nos. 1 and 2 filed an application in the Court of Additional Sessions Judge, at Karad under section 173(8) of the Criminal Procedure Code in which they prayed that further investigation or reinvestigation of the case be entrusted with equivalent higher police authority or to State CID or to CBI under the supervision of the Court as per the provisions of section 173(8) of the Cr.P.C. Reply was filed by the prosecution on 10/10/2009. The learned Sessions Judge heard the said 8 WP 3233/09 with APPLN 237/10 application and by his judgment and order dated 24/11/2009 was pleased to allow the said application and a direction was given for further investigation under section 173(8) of the Cr.P.C which was entrusted to the State CID, Pune by withdrawing it from Karad Police Station. Further, direction was given to the Additional Commissioner of Police, State CID, Pune to supervise the further investigation by appointing a responsible Officer as the Investigating Officer who shall submit status report within fifteen days from receipt of the said order. Being aggrieved by the said order, State Government has filed this Writ Petition under Article 227 of the Constitution of India. 8. Shri Ravi Kadam, the learned Advocate General appearing on behalf of the State submitted that the important questions which fall for consideration before this court are (i) whether the original complainant had locus standi to file an application for further investigation by CID or CBI after the charge-sheet was filed before the Session Court, (ii) Whether the Session Court had jurisdiction to order further investigation under section 173(8) of the Cr.P.C 9 WP 3233/09 with APPLN 237/10 and (iii) whether the Session Court, after committal of the cognizable case after the charge-sheet was filed, could direct the Government to change Investigating Agency and further direct either CID or CBI to carry out further investigation and, thereafter monitor the said investigation. 9. So far as the first question is concerned, it is submitted by the learned Advocate General appearing on behalf of the Petitioner - State that the complaint/FIR is registered under section 154 of the Cr.P.C. He submitted that the Police alone have right to investigate and submit a report to the Magistrate under section 173(1) of the Cr.P.C and that the original complainant, thereafter, does not have any say in the matter. Even at the time of trial, he can, at the most, engage his own lawyer who can watch the proceedings which are conducted by the Public Prosecutor. He submitted that, therefore, after committal of the case to the Session Court, there was no question of the original complainant filing an application for further investigation since that right was conferred by the State only on the Public Prosecutor or Investigating Officer. 10 WP 3233/09 with APPLN 237/10 10. So far as the second and third questions are concerned, the learned Advocate General, firstly, invited my attention to the power of the Police Officer to investigate the cognizable offence which is provided under section 156 of the Criminal Procedure Code. He submitted that in view of section 156(1) any Officer in charge of a Police Station could investigate any cognizable offence which the Court having jurisdiction over local area within the limits of the said Police Station would have power to inquire into or try under the provisions of Chapter XIII and, secondly, under sub-clause (3) of section 156 the Magistrate could order investigation under section 190. It is submitted that the Magistrate being a creature of the Statute viz Criminal Procedure Code, his power to direct the investigation is circumscribed by the provisions of Cr.P.C and he has no inherent power to give independent directions of investigation. He then invited my attention to the definition of the term “officer in charge of a police station” which is defined under section 2(o) of the Cr.P.C. It is submitted that the said term does not include any one who is not an officer in the said Police Station and 11 WP 3233/09 with APPLN 237/10 only the State Government can direct any other officer to be an officer in charge of a police station. He then invited my attention to the definition of the term “police station” which defines the police station as any post or place declared generally or specially by the State Government. He submitted that, otherwise, Notification has to be issued by the State Government under section 2(s) for declaring any area as a police station. He submitted that the Head Quarters of the CID has not been declared as police station by the State Government. He invited my attention to one such Notification issued by the State of Maharashtra dated 17/11/2004 declaring that the office of the Anti-Terrorist Squad, Maharashtra State, Mumbai situated at Traffic Institute Building, Sir J.J. Road, Byculla, Mumbai shall be the Police Station with effect from the 17th November 2004 for various offences under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, the Explosive Substances Act, 1908 and the Official Secrets Act, 1923. It is, therefore, submitted that the State CID which is one of the Departments set up by the Police for its own internal administration could not fall under the definition of the term 12 WP 3233/09 with APPLN 237/10 “police station” and, therefore, the State CID could not be said to be the officer in charge of a police station. He then invited my attention to sections 3 and 4 of the Bombay Police Act, 1951 and submitted that superintendence and control of organization of police force vests in the State Government. He, therefore, submitted that the State CID being one of the Branches of the Police Force, the State Government alone is competent to transfer the investigation from the police officer in charge of a police station to the State CID Branch. He then invited my attention to section 173(2) of the Cr.P.C. and submitted that only the Officer in charge of a police station could forward the charge-sheet after completion of investigation for the purpose of taking cognizance of the offence. He then invited my attention to section 173(8) and submitted that the said sub-clause was in the nature of clarification that even after submitting a report under sub-clause (2), power of the officer in charge of a police station to obtain further evidence is not taken away and it will continue in spite of the report being filed and he could forward the further report after further investigating the matter. He submitted that, therefore, original source of 13 WP 3233/09 with APPLN 237/10 power to investigate and submit a report or to further investigate after filing of the charge-sheet was vested in the police officer in charge of a police station and the learned Magistrate could not order reinvestigation or further investigation on his own or on the application by the original complainant or direct another agency such as CID or CBI to further investigate the case. He submitted that this power of transferring the investigation from the officer in charge of a police station to the CID or CBI could alone be exercised by the High Court or Supreme Court while exercising its writ jurisdiction. He submitted that this power could not be exercised by the Magistrate and, therefore, there was no question of the Session Court exercising such power after committal of the proceedings by the Magistrate to the Session Court. 11. The learned Advocate General firstly relied on the Judgment of Division Bench of this Court in The State of Maharashtra vs. Ibrahim Adamwall Patel delivered in Writ Petition No.1781 of 2004 on 10/12/2007. He then invited my attention to the judgment of the Apex Court in Central 14 WP 3233/09 with APPLN 237/10 Bureau of Investigation, Jaipur vs. State of Rajasthan and another1. He then invited my attention to the judgment of the Apex Court in Reeta Nag vs. State of West Bengal and others2 for the purpose of canvassing the proposition that, even suo motu, the Magistrate could not order investigation under section 173(8). He then invited my attention to the judgment of the Apex Court in Randhir Singh Rana vs. State (Delhi Administration)3 which was referred to in the judgment of Reeta Nag4 (supra) and more particularly para 11 of the said judgment. He then invited my attention to the judgment of the Apex Court in Mithabhai Pashabhai Patel and others vs. State of Gujarat5 on the question of investigation, reinvestigation and further investigation. He also relied on the judgment of the Apex Court in Rana Chaudary vs. State of Bihar6 delivered on 02/04/2009. He then invited my attention to the Judgment of the Apex Court in Hemant Dashmana vs. Central Bureau of Investigation and another7 in respect of the power of the Magistrate to 1 AIR 2001 SC 668 2 (2009) 9 SCC 129 3 (1997) 1 SCC 361 4 (2009) 9 SCC 129 5 (2009) 2 SCC (Cri) 1047. 6 Criminal Appeal No.619 of 2009 arising out of SLP (Crl.) No.370 of 2009 7 (2001) 7 SCC 536 15 WP 3233/09 with APPLN 237/10 order further investigation under section 173(8). Then he invited my attention to the judgment in Ramachandran vs. R. Udhayakumar and Others1 wherein the question as to whether fresh investigation or reinvestigation could be done at the instance of directions given by the Single Judge of the High Court was considered. On the question of locus standi of the accused, the learned Advocate General relied on two judgments; one of the Apex Court in Sanjay Bansal and another vs. Jawaharlal Vats and others2 and the another in J.K. International vs. State (Govt. of NCT of Delhi) and others3. He also distinguished the judgments on which reliance is placed by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2. 12. Shri Anturkar, the learned Senior Counsel appearing on behalf of Respondent Nos. 1 and 2 on the point of locus of the complainants who filed an application in the Session Court, firstly submitted that the de facto complainant has the locus standi not only at the time when no offence report 1 (2008) 5 SCC 413 2 (2007) 13 SCC 71 3 2001 SCC (Cri) 547 16 WP 3233/09 with APPLN 237/10 is submitted under section 169 of the Criminal Procedure Code but he also has locus standi for making protest application against the tainted and defective investigation. In support of the said submission, he relied upon the judgment in J.K. International1(supra) and particularly on paragraph Nos. 9, 10, 11, 12, 13 and 14 of the said judgment. He also relied upon the observations made by the Apex Court in Bhagwant Singh vs. Commr of Police2 which is referred to in J.K. International3(supra) case – para 13 and 14. He then relied upon the judgment of the Apex Court in Manohar Lal vs. Vinesh Anand and others4. Lastly, he relied upon the judgment of the Apex Court in Kishan Lal vs. Dharmendra Bafna and another5. 13 The learned Counsel appearing on behalf of Respondent Nos. 1 and 2 then submitted on the second point as to whether the Session Court has power to give direction for further investigation that after the case is committed to the Session Court, in view of section 193 of the Cr.P.C., it 1 2001 SCC (Cri.) 547 2 (1985) 2 SCC 537 3 2001 SCC (Cri) 547 4 2001 CRI.L.J. 2044 5 (2009) 3 SCC (Cri) 611 17 WP 3233/09 with APPLN 237/10 becomes the court of original jurisdiction having unfettered discretion and, therefore, a direction for further investigation could be given by the Session Court under section 173(8). He relied upon the judgment of the Apex Court in Nisar and another vs. State of U.P.1. He then submitted that the definition of the term “officer in charge of a police station” as defined under section 2(o) and the word “investigation” as defined in section 2(h) are both inclusive definitions. He then submitted that in view of definition of the word “investigation” as defined in section 2(h), the Magistrate, in an appropriate case, could direct investigation to be conducted even by non-police officer and, therefore, he submitted that even assuming that CID is not an officer in charge of a police station, still that would not prohibit the Magistrate to order CID investigation. He relied upon the judgment of the Apex Court in Nirmal Singh Kahlon vs. State of Punjab and others2 and another judgment of the Apex Court in Directorate of Enforcement vs. Deepak Mahajan and another3. Then while repelling the contentions of the 1 (1995) 2 SCC 23 2 (2009) 1 SCC 441 3 (1994) 3 SCC 440 18 WP 3233/09 with APPLN 237/10 learned Advocate General, he submitted that the ratio of the judgment of the Division Bench of this Court (Coram: SRI R.M.S. Khandeparkar & SRI A.A. SAYED, JJ) dated 10/12/2007 in The State of Maharashtra vs. Ibrahim Adamwall Patel and of the judgment in Central Bureau of Investigation, Jaipur vs. State of Rajasthan and another1 would not apply to the facts of the present case since the said judgments were on the power of the Magistrate to issue directions under section 156(3) only and the said judgments cannot be stated to be an authority for the proposition that the Magistrate cannot direct CID investigation under section 173(8). He submitted that there is essentially a basic difference between the scope of section 156(3), 202, 173(8) and 319 of the Code and, therefore, the judgments under section 156(3) could not be used for interpreting section 173(8). He then submitted that the language used in section 156(3), particularly the word “such” and the word “as above- mentioned” are restrictive in nature and no such restrictive words could be found in section 173(8) and in that context the word “investigation” defined in section 2(h) is also 1 AIR 2001 SC 668 19 WP 3233/09 with APPLN 237/10 required to be seen. He also relied upon the judgments in Wasudeo Madhaorao Asarkar and another vs. State of Maharashtra1, in S.P. Khanna, Dy. Official Liquidator, Laxmi Bank Ltd., Nagpur vs. S.N. Ghosh2 and the judgment of the Supreme Court in Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others3 which was followed in Kishan Lal vs. Dharmendra Bafna and another4. He then submitted that submission of the learned Advocate General that direction to carry out further investigation by CID or CBI could be given by the High Court and the Supreme Court alone, is also not correct. In support of his submission, he relied upon the judgment in Kishan Lal vs. Dharmendra Bafna and another5. He also tried to distinguish the judgment in Reeta Nag vs. State of West Bengal and others6 and in Randhir Singh Rana vs. State (Delhi Administration)7 relied upon by the learned Advocate General. He relied upon the judgments in Hemant Dhasmana vs. Central Bureau of Investigation and another8, 1 1975 Mh.L.J. 404 2 1976 Mh.L.J. 150 3 (1976) 3 SCC 252 4 (2009) 3 SCC (Cri) 611 5 (2009) 3 SCC (Cri) 611 6 (2009) 9 SCC 129 7 (1997) 1 SCC 361 8 (2001) 7 SCC 536 20 WP 3233/09 with APPLN 237/10 Kashmeri Devi vs. Delhi Administration and another1 - para 7 and in Kishan Lal vs. Dharmendra Bafna and another2 - para 14. He submitted that so far as judgment in Reeta Nag3(supra) is concerned, it was only on the point of reinvestigation and not for further investigation and that the judgment in Randhir Singh Rana4(supra) was only on the point as to whether the court of its own could order reinvestigation and this judgment was not on the point as to whether the court on an application of de facto complainant could order investigation or not. He submitted that the argument that if the court of its own cannot order further investigation then the court on an application also cannot do it is the only extension of the ratio which by itself would not form part of the ratio in the light of the judgment reported in S.P. Khanna5(supra). 15. I have heard both the Counsel at length and I have given my anxious consideration to the submissions made by 1 1988 SCC (Cri) 864 2 (2009) 3 SCC (Cri) 611 3 (2009) 9 SCC 129 4 (1997) 1 SCC 361 5 1976 Mh.L.J. 150 21 WP 3233/09 with APPLN 237/10 them after having gone through the relevant provisions of the Criminal Procedure Code, Bombay Police Act and the judgments on which reliance is placed by both sides. 16. I am of the view that the order passed by the Session Court directing further investigation under section 173(8) on an application filed by the original complainant cannot be sustained for the reasons mentioned hereinbelow:- 17. The controversy and the facts in this case fall in a narrow compass. The next of kin of the person who was murdered suspected involvement of two persons; one of whom was the son of Ex-Law Minister of the State. According to them, police did not carry out fair investigation and protected those two persons and their names were not included in the charge-sheet which was filed by the police. Being aggrieved by the said fact, they approached this Court under its writ jurisdiction. However, they chose to withdraw the said Petition with liberty to file an application before the Session Court and, accordingly, an application was preferred by de facto complainants before the Session Court seeking a 22 WP 3233/09 with APPLN 237/10 direction of further investigation by the CID or CBI which prayer was granted by the learned Sessions Judge. 18. The controversy which is therefore raised is (i) whether the de facto complainant can file an application to the Session Court seeking a direction for further investigation, (ii) whether power under section 173(8) can be exercised by the Session Court for directing further investigation and (iii) whether the Session Court can give direction to CID or any