1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 12 OF 2009 IN WRIT PETITION NO. 1993 OF 1984 Basil Shamrao Rath ..Petitioner versus S. A. Dhyanis & Ors. ..Respondents And Shri S. B. Kandle & Ors. ..Contemnors Mr. R. S. Tripathi for Petitioner. Mr. A. B. Vagyani for Contemnor – Respondent No. 1. Mr. G. W. Mattoos – AGP for Respondent Nos. 1 to 5 and 7. CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 7TH JULY, 2009. P.C. : 1. The petitioner was tried for offences under Sections 5, 6, 10, 11 and 12 of the Maharashtra Ownership Flats Act r.w. Section 406 of the Penal Code. A complaint was lodged against the petitioner on 17th November 1984 by Chandrakant Vasantdada Patil in his capacity as an Hon. Secretary 2 of a proposed Co-operative Housing Society at Shivaji Park. The substance of the complaint appears to have been that the petitioner as the owner of the plot of land on which a building of the society had been constructed, failed and neglected to register a Co-operative Society and that he had allegedly failed to hand over complete Books of Accounts to the members of the society. The criminal case ended in a judgment of acquittal dated 10th January 1997 of the Additional Chief Metropolitan Magistrate. The trial Judge directed that the documents which had been seized during the course of investigation should be returned to the persons from whom they were seized. The petitioner claims that the documents listed serially in Exhibit ‘A’ to the petition were seized from him by the Investigating Officer and were not returned despite the order of the trial Judge. Eventually, a petition was filed before this Court, in which on 31st January 2008 a Division Bench directed the respondents to return the seized documents as directed by the trial court within a period of four weeks. The Contempt Petition was instituted since the direction issued by the Division Bench was not complied with. 2. In reply to the Contempt Petition several affidavits have been filed. Suresh Baliram Kandle was attached to the Crime Branch as Inspector of Police between 1983 to 1991. In his affidavit he has stated that on 20th November 1984 he had filed an application before the Additional Chief 3 Metropolitan Magistrate seeking permission of the Court to register a complaint and the Court had passed an order for investigation. The deponent states that the then Sub Inspector Ramesh D. Tele had seized the documents under a seizure warrant. The statement of Shri Tele was recorded and in that statement it was revealed that a seizure warrant had been executed and the documents which were seized from the petitioner were handed over to C. V. Patil, the complainant. The complainant is stated to have died on 15th August 1991. A copy of the statement of Shri Tele together with the entries in the station diary have been produced for the perusal of the court. From the statement of Shri Tele it appears that a seizure warrant was executed in the Office of the Deputy Registrar of Co-operative Societies when the 15 documents serialised therein came to be seized. There is a station diary entry to that effect. The entry which is dated 10th August 1984 also records that the seized documents were handed over to C. V. Patil “as per the court direction and acknowledgment receipt has been obtained.” In his affidavit Shri Kandle has also stated that during the course of the recording of evidence in the criminal case, production of the original documents became necessary and he had personally visited the record room of the Crime Branch with two Police Constables to trace the documents. However despite diligent search the documents could not be found and they had been misplaced from the record room. Shri Kandle has stated in his affidavit that an application was made in the Criminal case for a direction to 4 the petitioner to furnish zerox copies of the original documents and that such a direction was in fact issued by the Court. Consequently, it has been stated that the entire evidence has been recorded on the basis of secondary evidence, viz. the zerox copies of the documents. 3. This statement in regard to what transpired in the course of the trial of the criminal case is patently incorrect. As a matter of fact the judgment of the learned trial Judge records thus : “The original search warrant and panchnama is not made available nor the copies were supplied to the accused. Therefore, it is difficult to ascertain which documents were taken charge by police; whether they were tampered by the accused or by someone else and whether those documents were taken charge from accused on the basis of search warrant.” Therefore, it is obvious that as a matter of fact neither the search warrant nor the panchnama was available and the copies of the documents could not be produced at the trial of the criminal case. 4. Shri Kandle has corrected his statement by filing a further affidavit dated 20th April, 2009. In his second affidavit he states that on 4th June 1996, he had made an application to the trial court informing the Court that 5 the original documents had been misplaced from the record room and that the petitioner be directed to supply zerox copies of the documents which had already been supplied to him in order to enable the prosecution to lead secondary evidence. That application came to be rejected by the trial court on 4th June 1996. 5. An affidavit has been filed in these proceedings by Sunil Madhukar Shejwal, Inspector of Police, Economic Offences Wing. In this affidavit, it has been stated that he had taken over charge as Senior Inspector of Police (Administration) in the Economic Offences Wing of the Crime Branch on 25th February 2008 and that he is in charge of maintenance of records in the office. The deponent states that the storeroom / muddemal room has been made functional since 1st January 1998 and after taking a thorough search of the said room, the documents have not been traced. He has also stated that the trial before the Metropolitan Magistrate proceeded without the production of the documents seized under panchnama as is reflected in the judgment of the trial Court. As a matter of fact, it has been stated that on 4th June 1996 the Investigating Officer Shri S. B. Kandle had filed an application before the Additional Chief Metropolitan Magistrate recording that the documents had been misplaced from the record room and seeking a direction to the petitioner to produce zerox copy of the documents which had been supplied to him, in order to enable the prosecution to lead 6 secondary evidence. 6. An affidavit has also been filed by Rajesh Jagannath Puranik, Police Sub Inspector, Economics Offences Wing, Crime branch, who has been arrayed as contemnor No. 2 stating that he is not connected with the subject matter of the petition. 7. From the material which has emerged from the record, it is evident that the documents which are listed out in Exhibit ‘A’ to the petition, i.e. the documents in question came to be seized from the petitioner on or about 10th August 1984. S. I. Tele has in his statement and in the station dairy made an entry to that effect and has also recorded that the documents were handed over to C. V. Patil, the original complainant. The entry in the station dairy records that this was done in pursuance of the directions of the court. What the nature of those directions were is not clear since the panchnama, seizure warrant and documents have not been produced either before the trial court or before this Court in the present proceedings. The learned counsel appearing on behalf of the parties, however, indicated during the course of the hearing, that there was a direction of the Deputy Registrar of Co- operative Societies in pursuance whereof the documents came to be handed over to C. V. Patil. 7 8. The learned AGP has placed on record an order passed on 7th October 1985 by Sawant and Kotwal, JJ. in Appeal No. 899 of 1985 in Notice of Motion No. 2060 of 1984 in Writ Petition No. 1993 of 1984. A typed copy of the Order which is placed for the perusal of the Court shows that the General Branch of the CID, who had in their custody the documents mentioned in the Appeal paper book were directed to either furnish to the Appellant (the Petitioner herein) photocopies of the documents or allow him to take photo copies. 9. The learned counsel appearing on behalf of the Petitioner fairly states before the Court that in pursuance of the Order that was passed by the Division Bench on 7th October 1985, photocopies of the original documents as a matter of fact were furnished to the Petitioner by S. B. Kandle. The affidavit filed by Kandle is however completely silent in regard to how photocopies of the originals came to be issued to the petitioner in pursuance to the Order of the Division Bench when the entry in the station dairy is to the effect that these documents had been handed over to the original complaint – C. V. Patil. The inference that is sought to be drawn by the counsel for the Petitioner is that Kandle had obtained copies from C. V. Patil which were in turn handed over to the petitioner. 10. Be that as it may, the manner in which the documents that were 8 seized from the Petitioner were dealt with by the Investigating Authorities would leave much to be desired. Section 102 of the Code of Criminal Procedure, 1973, provides that any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Sub Section 3 which came by way of an amendment in 1978 requires every Police Officer acting under Section (1) to forthwith report the seizure to the Magistrate having jurisdiction. Whether such a seizure was as a matter of fact reported to the Magistrate is not clear from the record. The Investigating Officer proceeded to seize the documents and then, if the entry in the station diary is correct, proceeded to hand them over to the original complainant. Unfortunately, most of the Officers involved at the material time have retired. Contemnor No. 1 S. B. Kandle retired on 30th April, 1999. 11. The learned counsel appearing on behalf of the Petitioner does not dispute the factual position, during the course of the hearing, that the original documents have as a matter of fact been misplaced and are not traceable. He submits that the documents may have, as a matter of fact, been destroyed by C. V. Patil after they were handed over to him by contemnor No. 1 S. B. Kandle. The Petitioner is in possession of the photocopies that were handed over to him in pursuance of the directions 9 issued by the Division Bench, as noted earlier. The Court is informed by the learned counsel that the Petitioner would require to establish a case for leading secondary evidence at the trial of a suit which has been filed against the Petitioner by the Co-operative Society seeking conveyance of the property and accounts. In the exercise of the contempt jurisdiction, in the very nature of the things, it would not be proper or appropriate to make observations in regard to the entitlement of the Petitioner to do so since that is a matter which would fall for determination by the appropriate court. From the material on record, it would be safe to draw the conclusion that the documents have been misplaced and that was the position even during the trial. In the circumstances, no useful purpose would be served by keeping alive these proceedings any further. However, the manner in which the documents which belong to the Petitioner have been handled is improper. It will appear from the affidavit which has been filed by Shejwal that under the Manual for Investigation published by the Commissioner of Police, the particulars of documents and/or property seized during investigation is stored in the Malkhana and every movement is reflected in Malkhana Property Movement Register. An Officer is stated to be in supervision of Malkhana Property. This procedure was established with effect from 1st January 2008. 12. A copy of this Judgment shall be forwarded by the Registry to the 10 Commissioner of Police who shall forthwith take necessary steps administratively, having regard to the serious grievance that has emerged in these proceedings, to ensure compliance with Section 102 of the Code of Criminal Procedure, 1973 in order to ensure that the situation that has occurred in the present case does not come to pass in future. With these observations, the Contempt Petition is disposed of. (DR. D. Y. CHANDRACHUD, J.)