1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.271 OF 2007 IN CRIMINAL WRIT PETITION NO.982 OF 2007 Sandeep Rammilan Shukla .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.S.M.Kazi, Senior Advocate with B.P.Pandey for petitioner Mrs.A.S.Pai, A.P.P. For State. WITH WRIT PETITION NO.2031 OF 2007 Vimal Appaso Lohar .. Petitioner Versus The Chief Secretary & Ors. .. Respondents WITH CRIMINAL APPLICATION NO.219 OF 2007 IN WRIT PETITION NO.982 OF 2007 Chandresh C. Shah .. Petitioner Versus Sandeep R. Shukla & Ors. .. Respondents 2 CORAM : SWATANTER KUMAR, C.J & S.C.DHARMADHIKARI, J. Reserved on : 7th July 2009 Pronounced on : 13th August 2009. ORAL JUDGEMENT (PER DHARMADHIKARI, J) A] Rule. Respondent Nos. 1 to 5 waive service. By consent Rule made returnable forthwith. 1] By this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:- “(A) That the two investigations being done vide Cr.No.144 of 2007 of Nagpada Police Station, Mumbai ( i.e. C.R.No.27 of 2007 of the Anti Extortion Cell of the Crime Branch, Mumbai Police) and that being done by the ACB vide C.R. No.24 of 2007 both be transferred to the Director, Central Bureau of Investigation.” 3 2] The petitioner is an Indian Citizen. He is engaged in the business of construction and development of lands. He has undertaken several projects for Government of Maharashtra. He is working along with his uncle one Krishna Milan Shukla. They are carrying on business in the name and style of “BuildTech Developers” which is a partnership firm. 3] It is stated that the petitioner has taken up several public causes including bringing to the notice of the concerned authorities corruption in police force. 4] It is the case of the petitioner that one Vinod Avalani with whom he had business dealings and who was seeking refund of amount of Rs.30 lakhs allegedly lent and advanced to the petitioner, filed a complaint with the police against the petitioner’s uncle. It is alleged in the complaint by the said Avalani that the petitioner sought mediation of one Haseena Parkar, sister of the famous underworld Don Dawood Ibrahim. 4 5] It is alleged by the petitioner that in connection with this complaint, his uncle Krishna Milan Shukla moved the Anti Corruption Bureau (ACB). The principal allegation being that the officers of the Mumbai Crime Branch are engaged in extorting monies at the instance of parties involved in purely civil disputes. When the petitioner approached, ACB and pointed out the role of the authorities that an F.I.R. was registered by the ACB on 20th March 2007. It is his case that thereafter, a trap was laid and several officers came under the scanner of ACB. The investigations were in progress. However, a retaliatory proceeding was initiated and a counter F.I.R. was registered on 20th April 2007 by the said Avalani as narrated above. 6] Petitioner has set out the nature of the transaction that was entered into by him with Mr.Vinod Avalani, through one intermediary, Chandresh Shah. It is the case of the petitioner that a sum of Rs.30 lakhs was handed over by way of demand draft to him on 17th October 2006 by Mr.Avalani. However, as a part of the deal, a further sum of Rs.70 lakhs was to be handed over but it was not paid. It is the case of petitioner that at the time of transaction Chandresh Shah and Haseena Parkar were present. It is the case of the petitioner that since Avalani was not in a position to fulfill his 5 commitment, all arrangements with him were terminated and the petitioner’s firm decided to resile the agreements and forfeit the earnest money of Rs.30 lakhs. There are some more details of the disputes set out in the petition but what we are really concerned is the allegation of the petitioner that the dispute was purely civil in nature and yet a complaint was made to the Anti Extortion Cell of Crime Branch through Nagpada Police Station and the F.I.R. came to be registered on 20th April 2007. 7] It is further the case of the petitioner that by this chain of events and on account of intimidation of the petitioner and his uncle by the police machinery and Mr.Chandresh Shah, that they approached the ACB. 8] The petitioner has annexed copies of the complaint lodged on 19th December 2006 by the said Avalani so also the complaint with the ACB lodged by the petitioner, to this petition. 9] The petitioner has made several allegations against the officers of the Anti Extortion Cell. His specific allegation is that after his complaint with ACB, complete verification was done by the Investigating Officer. It is 6 alleged that accused Chandresh Shah was trapped red-handed while accepting the part payment of Rs.1.5 lakhs from the uncle of petitioner on 12th April 2007. It is stated that Chandresh Shah has purchased two expensive mobile phones of Nokia company N-series and has gifted the same to one Mr.Mahabole, Police Inspector and Dhananjay Kamlakar, D.C.P. In support the tape recorded conversation is relied upon. It is alleged by the petitioner that apart from Chandresh Shah there is a needle of suspicion against several officers of the Crime Branch and their roles are being investigated. Yet, the ACB investigation slackened after a particular time. It is alleged that this was because of the illegal and unauthorised intervention from certain quarters. Although, there are allegations against senior officers of police, the authorities concerned are not initiating action against them. The petitioner, has, therefore, pointed out that F.I.R. has been ordered to be registered at the instance of Avalani by the officers who are themselves under the scanner of ACB. This is in violation of principles of natural justice and rule of fairplay. Further, the ACB F.I.R. and the counter F.I.R. by the crime branch overlap with each other on certain aspects. There may be conflict in two investigations and, therefore, a single agency of neutral nature should investigate the case so that the truth comes out 7 expeditiously. It is alleged that ACB investigations have revealed that the Deputy Commissioner of Police (DCP) earlier concluded that there was no case of extortion, yet, the F.I.R. was registered against the petitioner in suspicious circumstances. The tainted officers have not been transferred or suspended and no worthwhile investigation till date has taken place. For all these reasons and there being violation of law of land that he prays for aforestated reliefs. 10] When this petition was placed before the Court on 4th July 2007, adjournment was sought by the respondents to disclose the steps and progress in the investigation. Thereafter, an affidavit has been filed on behalf of the respondents. In the affidavit of Madhukar Javalkar, A.C.P., A.C.B. M.S., Mumbai it is stated that in A.C.B. C.R.No.24 of 2007 registered on 20th March 2007, trap was laid but could not materialise. Mr.Chandresh Shah was not available but later on the complainant approached the ACB and informed that accused Chandresh Shah had informed the complainant that he would attend complainant’s office. Chandresh Shah did not attend and, therefore, on 12th April a trap was laid again. 8 11] At page 97 of the affidavit this is what is stated:- “... On 12/4/07 a trap was laid at Hotel Ramdev situated near Sion station and the accused Shri Chandresh Shah was caught red handed while accepting the bribe amount of Rs. 1,50,000/- from the complainant Shri Shukla, Two mobile phones were seized from accused Shri Chandresh Shah. Three cheques given by Shri Shukla were also seized. During this trap panchanama Shri Shah admitted before panchas that he accepted the said bribe amount to settle the matter pending with Crime Branch officials against Shri Shukla. Xerox papers in connection with the complaint of Shri Vinod Avlani pending with Unit -1 of Crime Branch were taken in possession. Since there was a recording of one side of conversation during the trap between Chandresh Shah, API Nikam and Shri Shukla, Statement of API Nikam was recorded, but he denied any demand of bribe through Shri Chandresh Shah. 9 “On 13/4/07 Accused Shri Chandresh Shah was produced before Spl.Court for remand and he was remanded to Police Custody till 19/4/2007.” “On 14/4/07 Specimen voice of accused Shri Chandresh Shah was recorded. Efforts were made to trace the wanted accused Shri Raju but in vein. Then I.O. P.I. Thale visited office of B.P.L. At Mahim in order to get the print out of the mobiles used by accused C.Shah. However, the office was found closed. A letter was given to Hutch mobile company. Thereafter, he visited MTNL office situated at Prabhadevi, but office was found closed.” “On 15/4/07, during custodial interrogation, the accused Shri Chandresh Shah stated that on 16/3/07 at 8.00 p.m. He along with Shri Raju met the complainant Shri Shukla near Girgaon Chowpatty and discussed about returning to Shri Avlani the amount of Rs.30 lakhs given to the complainant 10 Shri Shukla and further stated that on 17/3/2007, he along with Shri Shukla went near C.P. Office and thereafter with Shukla standing opposite the footpath and watching, he alone met Shri Raju and P.I.Mahabole and discussed about Rs.30 lakhs given to Shri Shukla. Shri Chandresh Shah further stated that Shri Raju is staying near Hiranandani, Powai area and he is informer of Crime Branch.” 12] The statement of P.I. Mahabole is also referred to in this affidavit. The mobile phone numbers and some later developments are also mentioned in this affidavit date-wise and it is stated that the investigations are proceeding. 13] It appears that affidavit of one Madhukar Bhau Kurne, Dy.S.P. presently working as Sub-Divisional Police Officer at Mangaon Dist.Raigad was also filed because he was working as A.C.P., D-I zone, C.B.C.I.D., Mumbai from 6th April 2006. He has stated that Mahabole was working under him as Senior Inspector of Police Unit I, C.B.C.I.D., Mumbai. He has also referred to one Mr.Raju who was shown as co-accused in A.C.B. 11 C.R.No.23 of 2007. It is stated that Raju is informer of the department and, therefore, in contact with Mahabole. The conversation between Raju and Mahabole was for the purpose of operation and detection of crime. 14] The petitioner filed a rejoinder affidavit and stated that ACB has not replied to several vital points raised by him in the petition. He has also pointed out that during the trap at Hotel Ramdev on 12th April 2007, three cheques given by Shukla were also seized. During this trap, in Panchanama before Panchas, Chandresh Shah admitted that he accepted the bribe in order to settle the matter pending with Crime Branch officials against Mr.Shukla. There is no explanation in the report that in view of the aforesaid categorical statement of Mr. Shah why names of the officers of the Crime Branch were not specified and what prevented investigating agency in implicating them as accused in the F.I.R. The disclosure of Mr.Shah is termed as sensational and in the light of the statement made at page 7 of the Affidavit in reply, it is necessary that the investigation proceeds in the right direction. The petitioner reiterated his allegation that the role of Mahabole has become suspicious and his direct involvement is established. There is also material to proceed against one Rajendra Nikam (API) and the investigations till date 12 is an eye wash so also a clear attempt to shield the fellow officers of the department. 15] In the meanwhile, the Criminal Miscellaneous Application No.271 of 2007 was moved by the petitioner stating therein that his rejoinder affidavit highlights the serious acts of omission and commission on the part of the investigating machinery. He submits that the matter was placed before the Court on 8th August 2007 and after some arguments, the Court observed that although investigation is being carried on, there is no satisfactory progress. The Court expected that serious steps would be taken and the progress in the investigation reported by the next date to the Court. On 4th September 2007, the Court was informed that charge sheet is likely to be filed. The matter was placed on 24th September 2007. The petitioner, thereafter, raised the issue of the powers of this Court under Article 226 of the Constitution of India and finally in this application prayed that the second respondent be directed to produce a copy of the charge sheet before the same is submitted in the concerned court. 16] It appears that when the Division Bench of this Court was dealing 13 with the instant writ petition, it noticed that a view was taken by another Division Bench in the case of Shyam Sunder Agarwal Vs. State of Maharashtra and the ratio of the said Division Bench ruling was not in conformity with the law laid down by the Supreme Court in the case of Prakash Singh Badal Vs. State of Punjab (2007) 1 S.C.C. 1. The Division Bench was thus unable to accept the views of another Division Bench in Shyam Sunder’s case and, therefore, recommended that a larger Bench be constituted and the question referred was “As to whether the officer in charge of Police station has to register the F.I.R., as required under section 154(1) of Cr.P.C., or he has any authority to conduct preliminary enquiry pre-registration?”. 17] That is how a Full Bench was constituted and it was presided over by the Hon’ble Chief Justice. After hearing Counsel for all concerned at length, the Full Bench delivered its judgement on 8th October 2008 and answered the reference thus:- “(a) The expression “Shall” appearing in Section 154 of the Code of Criminal Procedure is mandatory. The Section 14 places an “absolute duty” on the part of the “officer in charge of police station” to record information and place substance thereof in the prescribed book, where the information supplied or brought to his notice shows commission of a cognisable offence. (b) As the law does not specifically prohibit conducting of a limited preliminary inquiry, pre-registration of FIR in exceptional and rare cases by the officer in charge of a police station, he may penultimately thus enter upon a preliminary inquiry in relation to information supplied of commission of a cognisable offence but only and only upon making due entry in the Daily Diary/ Station Diary/ Roznamachar instantaneously with reasons as well as the need for adopting such a course of action. Such inquiry should be completed expeditiously and in any case not later than two days. Thereafter, the FIR should be recorded in the prescribed register and/or the officer should take any other recourse permissible to him strictly in accordance with the provisions of the Code of Criminal Procedure under which he is 15 empowered to investigate. Such cases can be illustrated by giving an example i.e. When the information received in regard to commission of a cognisable offence would patently cause absurd results or report of happening of events, authenticity of which ex facie is extremely doubtful. (c) The inescapably requires the police officer to register the information (FIR) received by him in relation to commission of a cognisable offence. Under the Scheme of the Code, no choice is vested in the Police officer between recording or not recording the information received. The concerned officer would aptly take recourse to clause (a) as a normal rule while could adopt the course of action as stated in clause (b) above as an exceptional and rare case.” 18] During the pendency of Criminal Writ Petition No.982 of 2007, Chandresh Chimanlal Shah sought to intervene as intervenor in the Criminal Writ Petition No.982 of 2007 and it appears that the intervention application, instant writ petition and one more writ petition bearing No.2031 of 2007 were placed before the Full Bench. 16 19] After the Full Bench delivered its judgement Criminal Writ Petition has been placed before us. 20] We have heard Mr.Kazi, learned Senior Counsel appearing for petitioner and Mrs.Pai appearing for respondents. The grievance of Mr.Kazi is that when the Full Bench decision has been rendered and in clearest terms it is held that section 154 of Cr.P.C. is mandatory so also there is absolute duty on the part of the officer in charge of the police station to record information and place substance thereof in the prescribed book and when a cognisable offence has been disclosed, then the F.I.R. Must be registered and investigations must proceed. Once investigations must proceed and be taken to their logical end, then, even police officers have to be brought under the purview of the same. They must also be interrogated and details should be sought from them when serious allegations are made by the petitioner. Inviting our attention to the Full Bench decision, so also that of the Supreme Court, Mr.Kazi submits that now there is no doubt and when there is no choice vested in the police officer, then, the law must take its course. He submits that for the reasons best known to the respondent Nos. 1 to 3, they 17 are not initiating any action against the officers of the Anti Extortion Cell, Crime Branch, Mumbai. 21] Mr.Kazi has invited our attention to some of the statements made in the affidavit in reply and in the complaint and has contended that role of Mahabole and Nikam is spelt out therefrom. Once a definite role is attributed to them, then, at this prima facie stage nothing more is required to name them as accused. The case is covered by clause (a) of the conclusions recorded by the Full Bench. Once, registration of F.I.R. in this case has been done, then, it is not for the Senior Officers to give a clean chit to their colleagues in the Department. The investigating officer must make a report of the Investigation to the Court and then let it decide, whether the officerrs are guilty or innocent. Merely shifting them or proceeding against such officers departmentally, is no answer. If their involvement in crime is alleged and prima facie substantiated by documents, then, just because they are police officers, they must not be shielded and protected. The Court must, therefore, issue appropriate directions and ensure that the guilty is brought to book. 18 22] On the other hand, Mrs.Pai appearing for the respondent, State of Maharashtra firstly contended that this petition is not maintainable. Now, a charge-sheet is laid in a competent court and the petitioner has a remedy available in law to approach the Criminal Court in question and request it to take necessary action. That court has enough powers under Cr.P.C. to add and summon any person as an accused. Secondly, the petitioner cannot insist upon the police officers involved being named as accused merely on the basis of the averments in the petition or some statements in the complaint. She submits that it is not as if the investigation was not conducted from this angle. During the course of investigation, the prosecution found that there is not enough material to involve the police officers. It is not as if their case was considered on a different footing. Merely because they are police officers no favour was shown to them and such inference cannot be drawn straight away. If the affidavits filed by the prosecution are read in the backdrop of the complaint made and the other statements recorded, then, it is clear that the prosecution has not acted unfairly, unreasonably, arbitrarily or malafide. There is no attempt to protect or shield anybody. For all these reasons and in the light of the provisions of law, the petition must be dismissed. 19 23] We have carefully considered the rival contentions. We have also perused the petition and the annexures thereto. The principal allegation made is that after the transaction between the petitioner and Avlani, the said Avlani approached Crime Branch Unit -I on 19th December 2006. The allegation of the petitioner is, if this complaint revealed commission of a cognisable offence, the said crime branch should have registered an F.I.R. at once. However, the crime branch officerrs allegedly approached the petitioner and his uncle on their own so also at the instance of others including one Chandresh Shah. It is alleged that they threatened the uncle of petitioner that he and the petitioner would be arrested in a criminal case after registering F.I.R., if they do not sign an agreement or return the amount of Rs.30 lakhs paid to Mr.Avlani. The officers insisted that the petitioner and his uncle must also pay a sum of Rs.10 lakhs as police charges. 25] It is on account of the intervention of the Crime Branch officers who are named in para 6.12 of the petition and on account of their demands that the petitioners uncle approached the ACB and an F.IR. was registered under Prevention of Corruption Act on 20th March 2007. Further allegation of the 20 petitioner is that despite Avalani approaching the Crime Branch Unit on 18th December 2006, no F.I.R., was registered against the petitioner until 20th April 2007. This is not a matter of coincidence but the counter case was registered merely because the petitioner complained against the police officers to the ACB. 25] In this behalf, the petitioner has heavily relied upon the fact that during the course of investigations by ACB, it was revealed that two Nokia Mobile handsets have been found to be belonging to the police officers. He has alleged that Chandresh Shah swiped his credit card and bought two N series mobile handsets. He gave one to P.I. Mahabole and another to D.C.P. Crime Branch Dhananjay Kamlakar. Thus, there is involvement of these officers because of their association with Chandresh Shah who has been named as an accused. 26] Our attention is invited to the complaint made by Vinod Avlani and his statement recorded by the Anti Extortion Cell, Crime Branch. 27] Our attention is also invited to the statement of Krishna Milan Shukla 21 who stated that he knows Mr.Chandresh Shah who is working allegedly as an agent. He helps builders in locating financiers. He was contacted by the said Krishna Milan Shukla in September 2006 and a request was made by the said Krishna Milan Shukla that he requires financier for his Wadala project. The said Chandresh Shah introduced him to Avlani. Thereafter, there were discussions between Krishna Milan Shukla, Chandresh Shah and Avlani. Even site visit is referred to in the statement. It is also stated that one Jayesh Shah was also present. Thereafter, the alleged transaction has been referred to and the said Shukla states that since Avlani did not pay him the balance sum, he called up Chandresh Shah and at that time Avlani was with Chandresh Shah. He informed him that he is facing financial crunch and, therefore, he would pay Rs.20 lakhs and the said Shukla will have to sign a document of partnership to the extent of 40%. The said Shukla has stated that if he received Rs.1 Crore only then he will consider signing such documents. Thereafter, there is a reference in his statement to the telephone calls to Chandresh Shah. It is stated by him that in January 2007, Chandresh Shah called him from his mobile phone and told him that he should speak to one police officer. The said Shukla received this call on his mobile phone. Shukla, thereafter spoke to that person who was none other than P.S.I. 22 Nikam. The said Nikam told Shukla that Avlani has lodged a complaint with regard to non refund of Rs.30 lakhs by the said Shukla and, therefore, he should sign an agreement prepared by Nikam. Mr.Nikam told Shukla to come and see him in his office. Thereafter, after about ten days, Chandresh Shah again called up from his mobile number on the mobile of said Shula and said that Shukla should speak to another gentleman who was present along with Chandresh Shah. The said Gentleman whom Shukla spoke with was none