1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION CRIMINAL WRIT PETITION NO.: 27 OF 2010 *** SHRIKANT NILKANTH GAIKWAD Age : 46 Sex : M, BUNG.NO.15 NR. BOMBAY AUTOMOBILE AHMEDNAGAR Vs THE STATE OF MAH AND ANR AHMEDNAGAR POLICE INSPECTOR, POLICE STATION, TOPHKHANA AHMEDNAGAR *** Mr. Parag V. Barde, Advocate for the Petitioner. Mr. N. N. Jadhav, A. P. P. for Respondent Nos.1 and 2. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- 15th JUNE, 2010. ORAL ORDER: [Per Deshmukh, J.]: 1. We have heard learned counsel for the Petitioner and learned A.P.P. for the Respondents. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. Petitioner, in this writ petition, made following prayers: 2 "(A) By issuing appropriate writ, order or direction or any other appropriate order in the nature of writ, the Hon'ble High Court may be pleased to direct the Respondent No.1 to hand over the investigation of Crime No.I-49/2009 registered with Tophkhana Police Station, Ahmednagar to any other competent investigating authority including CID Ahmednagar; (B) By issuing appropriate writ, order or direction or any other appropriate order in the nature of writ, the Hon'ble High Court may be pleased to direct the respondents to reinvestigate into the matter so far as recovery of the stolen property mentioned in FIR No.I-49/2009." 4. This petition is filed by the Petitioner on 6th January, 2010. In response to our notice, on behalf of the Respondents, affidavit in reply is filed. I(t is sworn in by Mr. Bhausaheb S/o Dadaba Gondkar, Police Sub Inspector, Local Crime Branch, Ahmednagar. It is stated, in para 3 of the affidavit in reply, that report of the petitioner is received and offence under section 456, 457, 380 against unknown accused persons is registered with Tophkhana Police Station, Ahmednagar. After registration of the offence, investigation was initiated, 3 statements were recorded. According to affiant, fair and impartial inquiry has been conducted. It is revealed in the inquiry that crime in question was committed by Mr. Shaikh Akhil Salik alias Billa along with his companion Mr. Jambu Salim Shaikh, Sk. Kadar Musa alias Pappu alias Bhalla, Taher Abed Shaikh, all resident of slum area of Ahmednagar. The accused persons apprehended, were produced before learned j.M.F.C., Ahmednagar on 19th February, 2009. Police custody was granted till 23rd February, 2009. According to the affiant, all the accused persons were habitual. A cash amount of Rs. 327/- and eight other miscellaneous articles were recovered from the house of accused Shaikh Akhil Shaikh Salim and amount of Rs. 5,349/- was recovered during the search of house of accused Taher. Recoveries were made under Panchanama. Statements of some other witnesses were recorded and on completion of the investigation, charge sheet was filed in the Court of learned J.M.F.C., Ahmednagar on 21st October, 2009. Copy of the charge sheet is annexure R-1 to this affidavit. According 4 to affiant, investigation was conducted properly. Every possible lead provided by the petitioner/ complainant was exhausted, however, no material information was received during the investigation and remaining alleged stolen articles could not be recovered by the investigating authority. With these statements and since charge sheet is already filed in the Court, according to the affiant, this petition deserves dismissal. 5. Mr. Barde, learned counsel for the Petitioner relied on a judgment of Division Bench of this Court in Criminal Writ Petition NO.1278 of 2007 in the case of Smt. Rajni Vishram Patil V/s Central Bureau of Investigation and State of Maharashtra" decided on 18th July, 2009. With the assistance of learned counsel for the parties. we have seen the judgment of this Court, relied on by learned counsel Mr. Barde. 6. Mr. Barde fairly points out judgment of the Honourable Supreme Court in the matter of "Devine Retreat Centre V/s State of Kerala and others" reported in 2008 AIR SCW 1793. Provision laid down under section 156, 482 of 5 Criminal Procedure have been considered by the Honourable Supreme Court. It is held that field of investigation is exclusively reserved for police. Change of investigating officer cannot be directed midway by exercising inherent powers. Scope of this Court under Article 226 of the Constitution is also considered by the Honourable Supreme Court. 7. We have considered the submissions advanced on behalf of the parties. We have also considered the statements made in the writ petition, documents annexed with the petition, affidavit in reply filed on behalf of the Respondent State. In our view, in the case on hand, liberty can be granted in favour of the present Petitioner to move the trial Court, seized with the hearing of Criminal Case arising out of C.R. No.49 of 2009, registered on 27th of January, 2009 for the offence punishable under section 454, 457, 380 and 34 of Indian Penal Code. On receipt of such an application from the Petitioner, the learned Judge, seized with the matter, shall hear the parties and pass appropriate orders. In the case on hand, except such liberty no 6 other order is possible. 8. Writ petition is partly allowed granting liberty in favour of the petitioner to move the learned J.M.F.C. or the court seized with hearing of Criminal Case arising out of C.R. No.49 of 2009, registered at Tophkhana Police Station, Ahmednagar under section 454, 457, 380 read with 34 of Indian Penal Code. On receipt of such an application, the Court shall hear the parties and pass appropriate order according to law. With this, writ petition stands disposed of. Rule is made absolute in above terms. No costs. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:15/06/2010. ans/27