[1] IN T IN T IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.390 OF 2007 CRIMINAL WRIT PETITION NO.390 OF 2007 CRIMINAL WRIT PETITION NO.390 OF 2007 1. George Punnackal Joseph, an Indian inhabitant of Mumbai, aged about 58 years, occupation business, residing at Leo Palace, Leo Hill Road, Powai, Mumbai-400 076. 2. Leo Sylvester George Punnackal, an Indian inhabitant of Mumbai, aged about 28 years, occupation business, residing at Leo Palace, Leo Hill Road, Powai, Mumbai-400 076. .... Petitioners - Versus - 1. State of Maharashtra, through Chief Secretary, Mantralaya, Mumbai - 400 032. 2. Senior Inspector of Police, Crime Investigation Bureau, Zone-5, Kurla, Mumbai. 3. Senior Inspector of Police, Parksite Police Station, Bhandup, Mumbai-400 076. 4. The Assistant Commissioner of Police, Ghatkopar Division, Mumbai. 5. Mariamickal Samuel Nadar, an Indian inhabitant of Mumbai, aged about 43 years, residing at Room No.16, Lingaya Chawl, Ganesh Nagar, Kaju Tekdi, Bhandup (W), Mumbai - 400 078. .... Respondents Sarvasri Shirish Gupte, Senior Counsel with A.R. Pande, Advocate for the Petitioners. [2] Ms Usha V. Kejariwal, Addl. Public Prosecutor, for the Respondent Nos.1 to 4. Shri Girish Kulkarni, Advocate, for the Respondent No.5. AND AND AND CRIMINAL WRIT PETITION NO.657 OF 2007 CRIMINAL WRIT PETITION NO.657 OF 2007 CRIMINAL WRIT PETITION NO.657 OF 2007 1. George Punnackal Joseph, an Indian inhabitant of Mumbai, aged about 58 years, occupation business, residing at Leo Palace, Leo Hill Road, Powai, Mumbai-400 076. 2. Leo Sylvester George Punnackal, an Indian inhabitant of Mumbai, aged about 28 years, occupation business, residing at Leo Palace, Leo Hill Road, Powai, Mumbai-400 076. .... Petitioners - Versus - State of Maharashtra, through Mr. D.K. Roopwate, Senior Inspector of Police, D.C.B.C.I.D., Zone-5, Kurla, Mumbai. .... Respondent Sarvasri A.P. Mundargi, Senior Advocate with A.R. Pande, Advocate for the Petitioners. Ms Usha V. Kejariwal, Addl. Public Prosecutor, for the Respondent-State. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI A.A. SAYED, JJ. DATED: DATED: DATED: AUGUST 14, 2008 JUDGMENT (Per Sri R.M.S.Khandeparkar, J.): JUDGMENT (Per Sri R.M.S.Khandeparkar, J.): JUDGMENT (Per Sri R.M.S.Khandeparkar, J.): [3] 1. Since common question of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment. 2. Rule. Learned Advocates appearing for the respective respondents waive service. By consent, rule made returnable forthwith in both the petitions. 3. The petitioners in Criminal Writ Petition No.657 of 2007 are seeking to challenge the order dated 2-4-2007 passed by the learned Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, and further for dismissal of the Application No.18/M of 2007 filed by the respondent in DCB-CID C.R.No.147 of 2006 in connection with C.R.No.180 of 2003 of the Parksite Vikhroli Police Station whereas in Criminal Writ Petition No.390 of 2007 the petitioners are seeking to quash the C.R.No.147 of 2006, registered by the respondent No.2 at the Parksite Vikhroli Police Station or in the alternative for direction to the C.B.I. to investigate in to the matter. In fact, all the proceedings arise out of C.R. No.147 of 2006. 4. The petitioner No.1 is the father of the petitioner No.2 and they have business in Cochin as well as in Mumbai. They have purchased large properties in Cochin as well as in Mumbai. The petitioner No.1 has his [4] properties at Powai, Bhandup and Tunga. The property at Bhandup was purchased under the registered agreement of sale dated 25-4-2003 from the original owner Abdul Rashid Abdul Rehman. There were number of claimants to the said property and they sought to deny the petitioners the right to the same, as a result of which various litigations are pending between the concerned parties. It is the case of the petitioners that politicians are bent upon to harass and pressurise the petitioners to leave the said property and in the process they are seeking to falsely implicate the petitioners in frivolous cases. 5. One Suresh Samuel Nadar was employed by the petitioners as a driver. He was appointed in the year 2002 or thereabout and was employed for a period of a year or so. The said Suresh had no dispute with the petitioners nor the petitioners had any enmity towards their employees, including the said Suresh. 6. It is the case of the petitioners that on 15-9-2003, at about 4:30 p.m., the said Suresh came to the office of the petitioners under the influence of liquor and as he had absented himself without leave since the morning of that day, he was asked by the employees of the petitioners to return to his house. While returning to his house, the said Suresh fell on the ground and got [5] his head injured near the main gate of the petitioners’ office premises and thereafter succumbed to the injuries. 7. It is the case of the petitioners that at that time none of the petitioners were present in the office premises. The employees of the petitioners tried to give first-aid to said Suresh and they rushed him to Powai Hospital. They were instructed to take Suresh to Rajawadi Government Hospital. Meanwhile, the manager of the petitioners’ company by name Sanjay Modak informed the widow of Suresh who told him to arrange to get Suresh at her house in order to take him to their family doctor. However, Suresh was declared dead by the time they could contact the family doctor. Still the said doctor told them to take him to the Government hospital. Accordingly, the employees of the petitioners and the widow of Suresh took the latter to Mulund General Hospital. Once at the Mulund General Hospital, the respondent No.3 in Criminal Writ Petition No.390 of 2007 conducted the inquest panchnama and took the body of Suresh into his custody. After the inquest panchnama, the body was sent for post-mortem. Statements of the petitioners, Sanjay Modak and the respondent No.5 in Criminal Writ Petition No.390 of 2007 came to be recorded and since the widow of Suresh did not express any suspicion nor made any complaint about the death of [6] Suresh, the Parksite Vikhroli Police Station registered the said death as ADR No.89 of 2003 under Section 174 of the Criminal Procedure Code, 1973. 8. It is claimed that the petitioners learnt about the said incident only on 15-9-2003. It is further case of the petitioners that on 16-9-2003 they received a call allegedly from one Ashok Patil, threatening them that there was contradiction in the post-mortem report and the police report and that the death of Suresh was a murder case. 9. On 17-9-2003 the respondent No.5 informed the police that she had doubt about the involvement of the petitioners in the death of Suresh and it was not a natural death. Consequently, the said ADR was converted into a murder case and registered as C.R.No.180 of 2003. Consequent to the investigation carried out thereafter, it appears that the police filed report under Section 169 of the Criminal Procedure Code which came to be accepted by the Magistrate under the Order dated 23-6-2005 as R.A.No.844 of 2003. Having learnt about the said report, the respondent No.5 filed objection for letting the real accused scot-free and hushing up all the investigation regarding the death of her son Suresh. It appears that pursuant thereto the case was re-opened and same came to be registered as C.R.No.147 of 2006. [7] 10. Perusal of the complaint and the narration of the incidents which have occurred prior to the deceased being taken to the hospital, it certainly creates a reasonable suspicion about unnatural death of Suresh. There are too many questions which remain unanswered and taking into consideration the narration of the facts in the complaint, it prima facie requires investigation by the police authorities. The medical report in the form of post-mortem discloses various injuries including an injection mark on the left side of the chest. The opinion of the doctor regarding the cause of death clearly speaks of the head injury being unnatural. Pursuant to registration of the said C.R., the petitioners came to know that their statements were required to be recorded by the respondent No.3. They also learnt that there was a possibility of their arrest and in that regard the police were searching for the petitioners while they had proceeded to Cochin on account of their property matter. 11. It is settled law that the inherent power of the High Court has to be exercised very very sparingly. When the materials on record prima facie disclose a case sufficient for investigation in relation to a cognizable offence, question of High Court interfering in the matter and quashing the FIR does not arise at all, much [8] less in cases where the cognizable offence is of the nature of murder. 12. In the case in hand, the allegations in the complaint apparently disclose that the deceased had come to the office of the petitioners under the influence of liquor and he was virtually driven away from the office. In the process, even force was used for driving him out. In the medical examination i.e., the post-mortem report, the doctor has clearly opined that the injuries suffered were not caused in natural course of events which clearly suggests the death to be unnatural. Bare perusal of the report submitted under Section 169 of the Cr.P.C. apparently discloses complete failure on the part of the investigating agency to investigate into the matter in the manner it was required to be investigated. The order passed thereon by the Magistrate also discloses total non-application of mind. 13. In the above circumstances, we find no case for interference in the Writ Petition No.390 of 2007 and, therefore, the same is liable to be dismissed. 14. As regards the challenge to order passed by the Metropolitan Magistrate, this Court in Ramchandra Ram Ramchandra Ram Ramchandra Ram Reddy & others v. State of Maharashtra, Reddy & others v. State of Maharashtra, Reddy & others v. State of Maharashtra, reported in 2004 Bom.C.R. (Cri.) 657 = 2004 All MR (Cri.) 1704 and [9] Arun Gulab Gavali v. State of Maharashtra & Ors., Arun Gulab Gavali v. State of Maharashtra & Ors., Arun Gulab Gavali v. State of Maharashtra & Ors., reported 2006 (1) Bom.C.R. (Cri.) 231 has held that narco analysis test or lie detector test or brain mapping test can be conducted in relation to the accused persons and it does not amount to violation of Article 20(3) of the Constitution of India. It is true that in individual cases, the Apex Court has granted stay in relation to narco analysis test is concerned. However, we have not been shown any general order restraining the investigating authorities from conducting such tests upon the accused persons. With the development of technology, it cannot be disputed that the investigating procedure has to keep pace with such development and denial of right of conducting such test to the investigating agency could result in a bonanza to the criminals and offenders and, therefore, no fault can be found with the impugned order permitting such test in relation to the petitioners in the facts and circumstances of the case, and hence we find no fault in the impugned order. 15. For the reasons stated above, therefore, both the petitions fail and are hereby dismissed. The rule in both the petitions is discharged with no order as to costs. (A.A.Sayed, J.) (R.M.S.Khandeparkar, J.) [10] sjs/rcwpjg390.7 sjs/rcwpjg390.7 sjs/rcwpjg390.7