1 304410 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3044 OF 2010 Shamin @ Chintu Jamaluddin Shaikh ] Aged 35 years, residing at Flat No. 404, “D” Wing, ] 4th Floor, Patidar Complex, Kannamwar Nagar, ] Vikhroli (East), Mumbai 400 083 ] ...Petitioner V/s. 1. The Senior Inspector of Police, ] Khar Police Station, Mumbai ] 2. Astt. Commissioner of Police, Khar Zone, ] Khar, Mumbai ] 3. The Hon’ble Home Minister, ] Government of Maharashtra, Mantralaya, ] Mumbai 400 032 ] 4. The Senior Inspector of Police, Crime Branch, ] Unit-IX, Mumbai ] 5. The State of Maharashtra ] 6. Narayanrao T. Rane ] Dhayeshwari Bungalow, Next to C.M. Bungalow, ] Malabar Hill, Mumbai 400 006 ] ...Respondents. Mr. M.K. Kocharekar i/by Mr. J.S. Shaikh for the Petitioner Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol, Pubic Prosecutor, for the State Mr. G.S. Godbole i/by Mr. Hrishikesh Mundargi for Respondent No. 6 2 304410 CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE OF RESERVING: 14-3-2011 DATE OF PRONOUNCING: 24-3-2011 JUDGMENT (Per A.M. Khanwilkar, J.):- Rule. Rule made returnable forthwith, by consent. 2. By this Writ Petition under Article 226 of the Constitution of India, the petitioner seeks direction against respondent No.5, the State of Maharashtra, to transfer the investigation in connection with C.R. No. 440 of 2010 registered with the Khar Police Station for offences punishable under Sections 323, 307 and 504 read with Section 34 of the Indian Penal Code and Sections 3 and 25 of the Indian Arms Act to the Central Bureau of Investigation (hereinafter referred to as ‘CBI’, for the sake of brevity). The petitioner has prayed for further direction that an independent authority be directed to conduct enquiry into the inactions / delay in investigation in the above numbered criminal case registered with Khar Police Station, Mumbai, and to take appropriate action against the erring police officers. 3 304410 3. The background in which this petition has been filed is that on 23rd September, 2010, the petitioner got himself admitted in Hiranandani Hospital in injured condition. It is his case that he was member of Maharashtra Navnirman Sena and was appointed by the said party as Traffic Wing (Maharashtra). About two and a half months before the date of the incident, he left the said party and joined Swabhiman Sanghatana, an N.G.O. Run by Congress Leader and Revenue Minister Mr. Narayan Rane’s son, Nitesh Rane. The petitioner was appointed on the post of the President of Swabhiman Transport Organisation. On 23rd September, 2010 at around 11.00 to 11.15 a.m., he received a telephonic call on his mobile from Nitin Varadnarayan, Personal Assistant of Nitesh Rane. He was told to come to the private office of Nitesh Rane at around 1.00 p.m. The petitioner, along with his two friends, accordingly, proceeded to Khar, where the private office of Nitesh Rane is situate. When the petitioner reached the office of Nitesh Rane, he was told by Nitin Varadnarayan to wait for some time. After lapse of some time, the two friends, who were accompanying the petitioner, went away. The petitioner was eventually called inside the chamber of Nitesh Rane by his Personal Assistant Nitin Varadnarayan at around 4.00 p.m. When he entered the chamber of Nitesh Rane, he offered sweet box, which he was carrying with him, to Nitesh Rane and 4 304410 congratulated him for having become uncle. When the petitioner bent down for taking blessings of Nitesh Rane, he, without any provocation, first gave a fist blow on his back and pulled his hair and banged his head on the wall and abused the petitioner in filthy language. He also threatened to kill the petitioner. The petitioner asserts that Nitesh Rane reacted in this manner, presumably because he had suffered a heavy loss and did not appreciate the petitioner distributing sweets, which he took as an affront. The petitioner asserts that, at the relevant time, one Zahid Shaikh and Nitin Varadnarayan, who were present, also assaulted the petitioner. The petitioner apologised to Nitesh Rane for his conduct. Instead, Nitesh Rane got infuriated and took out his black-colour revolver and loaded the same. He pointed that loaded revolver to the petitioner. When the petitioner tried to run away, at that time, Nitesh Rane fired one bullet towards the petitioner, but, fortunately, the bullet missed and bounced back from the window-glass. It is the case of the petitioner that the said bullet, after ricocheting, passed away by touching the cheek of the petitioner, as a result of which, the petitioner suffered injury on his cheek. It is the case of the petitioner that the petitioner realised slight heat on his cheek; and, when the petitioner tried to run away from the place of incident, another round of bullet was fired, but the same, again, missed the target. Thereafter, the petitioner ran away and escaped from 5 304410 the staircase. After coming out of the building, he got into his car, which was parked outside the building. His friend, Devesh, who was waiting downstairs also got into the car. The petitioner immediately started the car and made escape from the place of the incident. It is the case of the petitioner that, while driving, when he looked into the rear mirror, he realised that one white Gypsy was following him and one stout person was pointing a revolver towards him. As a result, the petitioner sped his vehicle and proceeded towards Powai. He straight-way drove his car to Hiranandani Hospital. He had informed about the incident to his wife on mobile. He also tried to contact Police Emergency Telephone Number; but could not succeed. The petitioner then got himself admitted at Hiranandani Hospital and gave the history of assault upon him, and the same was recorded by the hospital authority. Presumably, the hospital officials immediately informed Powai Police Station, as it was a medico- legal case. The officials of Powai Police Station then arrived in the hospital and recorded statement of the petitioner. Thereafter, the Powai Police Station initially registered the F.I.R. vide C.R. No. 00 of 2010 against Nitesh Rane and others as accused. The said F.I.R. was then transferred to Khar Police Station, as the offence took place within the jurisdiction of Khar Police Station and was re-numbered as C.R. No. 440 of 2010. 6 304410 4. The petitioner asserts that the police officials of Powai Police Station seized the blood-stained clothes of the petitioner under panchnama and subsequently the said panchnama, along with clothes, were forwarded to Khar Police Station. The petitioner alleges that, after the F.I.R. was transferred to Khar Police Station, the officials of Khar Police Station did not take immediate steps, as was expected, in spite of the seriousness of the offence. The officials became silent spectators and did not seriously investigate the matter. According to the petitioner, on the one hand, the police officials of Khar Police Station were totally silent spectators and, on the other hand, the incident of firing and assault was flashed on all the leading television channels as well as newspapers. 5. To his utter surprise, on 24th September, 2010, the very next day of the incident, the Chief Executive Officer of Hiranandani Hospital, Dr. Sujeet Chatterjee issued statement before the media at around 12.30 p.m. that the petitioner did not receive bullet injury. 6. Whereas, prior to release of this press statement, the petitioner had requested Hiranandani Hospital officials to supply him his medical report. However, the Hospital Authority refused to give him the 7 304410 same. Instead, the petitioner was asked to make an application for the said report. 7. The petitioner has then mentioned about the press conference given by the father of Nitesh Rane, i.e., Narayan Rane, the Revenue Minster of State of Maharashtra. In his press interview at around 5.30 p.m. on 24th September, 2010, he claimed that his son was innocent and had nothing to do with the alleged crime. He further stated that the incident has been blown out of proportion, out of political rivalry, to malign him and his family members. According to the petitioner, during the said press conference, Narayan Rane showed medical report of Hiranandani Hospital to the electronic as well as print media, pointing out that there was no case of firing. The petitioner asserts that it is surprising that the report was not made available to the petitioner, in spite of his request to the Hospital Authority, but it already travelled to Narayan Rane before his press conference on the same day. 8. The petitioner further states that subsequently, on 25th September, 2010, he decided to shift from Hiranandani Hospital to J.J. Hospital. He asked for police protection, which was given to him and thereafter, the petitioner got himself admitted in J.J. Hospital along with 8 304410 the medical reports, which were furnished to him by Hiranandani Hospital. 9. According to the petitioner, Khar Police Station, except recording panchnama of the petitioner’s car on 24th September, 2010, did not take any other action against the culprits, though the names were given by the petitioner. Later on, the police officials from Khar Police Station arrived at J.J. Hospital and recorded the statement of the petitioner’s sister, his wife and mother. 10. On 28th September, 2010, the petitioner refused to take medical assistance from J.J. Hospital, as well as refused to take any food, to protest against the inaction of the police officials against the named accused. The petitioner was assured that appropriate action would be taken against the named accused, and was forcibly administered medicines, as the sugar level of the petitioner had shot up. The petitioner states that he was examined, and treated for the firearm injury suffered by him on his cheek, and was eventually discharged from J.J. Hospital on 29th September, 2010. 9 304410 11. According to the petitioner, no progress in the investigation was made by the officials of Khar Police Station, nor any arrest of even the named accused was made. At the same time, the police were reluctant to give any information asked by the petitioner on the ground that the matter involves high profile personalities. The petitioner was also told by the Police Authorities that there is some pressure on them not to proceed hastily in the case. The petitioner has alleged that the police officers investigating the matter are under the control of Narayan Rane, who happens to be Revenue Minister of State of Maharashtra and a heavy-weight political leader. 12. The petitioner was, therefore, more than convinced that he would not get justice and fair investigation of his case. Therefore, the petitioner approached the Home Minister on 1st October, 2010. Before that, the petitioner had already made various representations to the Assistant Commissioner of Police, Khar Zone. The petitioner has also stated that, in view of the representation made by the petitioner to the Home Minister, the case was transferred to Crime Branch, Unit IX. On getting this information, when the petitioner visited the Crime Branch, Unit IX, he was told that the case has been transferred to Senior Police Inspector one Mr. Sanjay Govind Satardekar. According to the 10 304410 petitioner, no progress in the investigation was made even after it was transferred to Crime Branch. According to the petitioner, the accused had a big political clout, and was successful in derailing and sabotaging investigation handled by not only Khar Police Station but also the Crime Branch, which was directly under the control of State Government, and, therefore, he apprehended that the investigation will not be a free, fair and impartial investigation, nor will the police book the offenders and perpetrators of the crime. 13. It is in this background the petitioner has approached this Court by way of present Writ Petition under Article 226 of the Constitution of India. 14. Since the petitioner had made allegations against Narayan Rane by name, it was made clear that those allegations could be taken forward only if the person, against whom the allegations are made, is made party to the petition. Therefore, the petitioner, later on, amended the petition by adding Narayan Rane, the father of Nitesh Rane, as respondent No. 6. 11 304410 15. The petition has been opposed by the State as well as the newly-added respondent No. 6. The affidavit of newly-appointed Investigating Officer of the Crime Branch, Sanjay Govind Satardekar, dated 12th November, 2010, has been filed to oppose this petition. The affidavit essentially counters the allegations of the petitioner that the investigation is not progressing properly or that the same is proceeding under dictation of political bigwigs. In this affidavit, it is stated that Powai Police Station, after getting information, recorded the complaint, being C.R. No. 00 of 2010, on 23rd September, 2010 itself. Powai Police Station then conducted panchnama of clothes of the injured, which were seized. Mouthwash of the injured was taken by Hiranandani Hospital, and the same was given to Powai Police Station. 16. It is also mentioned that, in the meantime, Khar Police Station carried out panchnama of the place of incident on 23rd September, 2010. The offence was then transferred by Powai Police Station to Khar Police Station on the night between 23rd and 24th September, 2010, which has been registered as C.R. No. 440 of 2010. He has further stated that panchnama of seizure of clothes of Nitesh Rane was conducted by Khar Police Station on 24th September, 2010, and the statement of Nitesh Rane was also recorded. The panchnama of the 12 304410 car of the complainant was drawn on 24th September, 2010 by Khar Police Station. Besides, the panchnama was drawn of the weapons that were handled by the two police constables, who were on guard, and the same were seized. 17. It is further stated that Forensic Expert was called to the place of the incident, and, accordingly, panchnama was drawn. He has then referred to the names of 25 persons whose statements have already been recorded. It is further stated that the clothes of the injured and the accused were forwarded to Forensic Laboratory on 28th September, 2010, and mouth-wash of injured was sent on 27th September, 2010. The weapons of police constables, which were seized, were sent for forensic examination on 28th September, 2010. The injured was sent to J.J. Hospital for further treatment on 25th September, 2010. The then Investigating Officer, on 27th September, 2010, requested the report of the doctors and opinion from the panel of four doctors of J.J. Hospital as to the nature and cause of injury. That report was awaited. 18. He has also adverted to the report received from Hiranandani Hospital about the nature of injuries, dated 28th September, 2010. It is then stated that the offence was transferred to Crime Branch, 13 304410 which has been registered as C.R. No. 96 of 2010 on 2nd October, 2010, and the investigation thereof was continued by the Crime Branch. After the investigation was taken over by the Crime Branch, the Forensic Report in respect of clothes of injured and accused, weapons of the police constables and mouth-wash of the injured was received on 8th October, 2010. 19. He has then stated that J.J. Hospital demanded the statement of Hiranandani Hospital, photographs, injury certificate which were, therefore, collected by Crime Branch and forwarded to panel of four doctors of J.J. Hospital. He then proceeded to record the further statements of 11 persons on different dates. He also sent reminders to J.J. Hospital, Forensic Department, etc., for expediting the reports. He also requested the Traffic Headquarters for CC TV footage on 4th October, 2010. On 4th October, 2010, he also addressed communication to Hiranandani Hospital for forwarding statement of doctor and injury certificate of the complainant. He also sent letter dated 7th October, 2010 to the Collector of Sindhudurg whether the accused was having Arms Licence. 14 304410 20. He has then mentioned about the receipt of photographs of injury and injury certificate from Hiranandani Hospital on 6th October, 2010. He then carried out the panchnama of the place of incident on 9th October, 2010 along with the complainant. He has then referred to the communication received from the Collector, Sindhudurg, dated 11th October, 2010, informing that no Arms Licence has been issued to Nitesh Rane. He has then adverted to the report received from the panel of four doctors from J.J. Hospital dated 14th October, 2010, wherein the doctors have opined that the injury caused to the complainant is less likely caused by a projectile discharge from a fire-arm and there is no evidence of bullet / metallic fragment like radio opacity. The doctors have also opined that, in certain circumstances, self-inflicted injuries on face and head could be possible. Furthermore, the said injuries are possible by moving a relatively pointed and sharp hard object like glass or metal. 21. He has then stated that, considering the opinion of expert doctors of J.J. Hospital, and the fact that there is no iota of evidence of firing at the alleged incident as well as lack of any marks or blood-stains indicating that such assault was inflicted on the complainant; and after discussions with the senior officers, a letter dated 15th October, 2010 was sent to J.J. Hospital raising queries as to whether the injury sustained by 15 304410 the complainant was self-inflicted. Till the filing of the reply-affidavit dated 12th November, 2010, the said information was still awaited. 22. After disclosing the various steps taken during the investigation, in particular from the stage when the investigation was transferred to the Crime Branch on 2nd October, 2010, the present Investigating Officer has refuted the allegation of the petitioner that there is inaction in the investigation or, for that matter, that investigation was not being properly done by the Crime Branch on account of political pressure. 23. Respondent No. 6 has filed his reply-affidavit to oppose the petition and with particular reference to the allegations made against him personally in the petition. He has clarified, at the outset, that he was Industries, Ports Minister in the current State Cabinet and that Nitesh Rane, who has been named as accused in C.R. No. 440 of 2010 registered with Khar Police Station at the instance of the petitioner, is his son. According to respondent No. 6, the Writ Petition preferred by the petitioner is frivolous and is based on unfounded and unsubstantiated allegations. He has denied that he is controlling the investigating machinery. According to this respondent, the petitioner went about 16 304410 making false allegations against his son, Nitesh. The allegations made by the petitioner have been belied from the medical report of Hiranandani Hospital. Dr. Sujeet Chatterjee of Hiranandani Hospital had disclosed before the media that there was no bullet injury on the person of the petitioner. Further, the petitioner has gone to the extent of making false allegations even against Dr. Sujeet Chatterjee. 24. Respondent No. 6 has asserted that, during the press conference held by him on 24th September, 2010, he had claimed that his son was innocent and had nothing to do with the alleged crime. He has, however, denied that he showed the medical report of Hiranandani Hospital to the electronic as well as print media, pointing out that there was no case of firing. While denying this allegation, he has offered explanation that, on the date of incident, he was not in town, and was in his constituency. He arrived in Mumbai on the next day of the incident, and, at the airport itself, he was mobbed by media persons, who wanted him to reveal about the incident. The media persons followed him till his residence at Khar. On that day itself at about 12.30 in the afternoon, the doctor of Hiranandani Hospital gave press release that the petitioner did not suffer any fire-arm / bullet injury. The statement before the media made by the doctor was reported to him by the persons, who were 17 304410 present during the press conference at Hiranandani Hospital. He had merely reiterated the facts stated by the doctor during the said press release to strengthen his stand that false allegations are made at the behest of his political opponents against his son, who was innocent, so as to harass and malign his reputation. He has categorically stated that he had not shown any medical report of Hiranandani Hospital to the electronic as well as the print media as alleged. He, however, admits of having reported orally what was common knowledge by then as per the press briefing given by the Chief Executive Officer of Hiranandani Hospital Dr. Sujeet Chatterjee. According to this respondent, the petitioner is under misconception that the media and police in the State are controlled by political leaders or big personalities, as alleged. He has asserted that the allegations made by the petitioner are frivolous and imaginary and are made only to malign his political career. 25. In reply, the petitioner has filed rejoinder-affidavit dated 5th January 2011, reiterating his stand that the investigation of the case is likely to be sabotaged due to political interference. So far as the allegations that respondent No. 6 having shown medical report from Hiranandani Hospital during his press conference is concerned, the stand taken in the rejoinder-affidavit is that, on perusal of the DVD, it clearly 18 304410 establishes that respondent No. 6 answered the media, whereby it reveals that, within 24 hours of the incident, respondent No.6 was totally updated on the investigation carried out by the officers and also medical reports. It is further stated that respondent No. 6 categorically made an admission that he has been briefed by the police officials, though he made a statement before the press that he himself did not meet his son during the day of the incident, i.e., 23rd September, 2010. The transcription of the press conference conducted by respondent No.6 has been placed on record. The English translation of the said transcript is filed as Exhibit 1. The correctness of this translation has not been disputed before us. The same reads thus:- “NITE SH RANE FIRING CASE Dated 24th September, a day next to the Nitesh Rane firing incident on Chintu Shaikh Press Conference by Narayan Rane at his Bandra Residence with Congress M.P. Son Nilesh Rane and Nitesh Rane INTRODUCTION TO THE MEDIA BY WARNING the Media by Mr. Narayanrao Rane MEDIA Sir, Mr. Nitesh Rane please tell us about whole incident? NARAYAN RANE is an arrogant manner Dare, if you ask anything to Nitesh Rane whatever you want to ask, you can question me, Nitesh will 19 304410 not answer to any of your questions, or else I’ll move away “Did you get that”. MEDIA Sir, How can you say that incident is a conspiracy merely to defame me? What is the reason behind this Sir? NARAYAN RANE I have plotted my men inside and also outside the premises of Hiranandani Hospital. They are reporting me all the time about the ongoings in hospital and had given me information that many Shiv Sena leaders and supporters are visiting Mr.Chintu Shaikh at the Hospital and supporting him. Shiv Sena is supporting Mr.Chintu Shaikh and trying to defame me. MEDIA Sir, How can you prove that Shiv Sena is supporting Chintu Shaikh? NARAYAN RANE in full rage You cannot cross question me, I have called you to my place, I am warning all you media people out there, be in your limits. ‘Did you get that’ MEDIA Sir, How you say and by what reasons that this all incident is a conspiracy to defame you Mr. Nitesh Rane? 20 304410 NARAYAN RANE I have plotted my men at the Hiranandani Hospital and one man plotted by me is all the time present in the hospital and he’s keeping a track on all the happenings going on in the hospital in favour of Chintu Shaikh & he’s reporting me everytime. MEDIA Sir, What about the Medical Reports of Mr. Chintu