1 wp.132.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.132 OF 2011 Shri Salil Anupendra Chaturvedi ...Petitioner Versus State of Maharashtra & Anr. ...Respondents WITH CRIMINAL MISCELLENEOUS APPLICATION NO.78 OF 2011 IN CRIMINAL WRIT PETITION NO.132 OF 2011 Shri Salil Anupendra Chaturvedi ...Petitioner Versus State of Maharashtra & Anr. ...Respondents And Mr.Subhash Shankar Kenjale ...Interveners WITH CRIMINAL APPLICATION NO.486 OF 2010 IN CRIMINAL WRIT PETITION NO.132 OF 2011 The State of Maharashtra ...Applicant Versus Shri Salil Anupendra Chaturvedi ...Petitioner ...... Mr.Vikas Pahva with Mr.Ayaz Khan & Ms.Zehra Charania for Petitioner. Mr.Ravi Kadam, Advocate General with Mr.P.A.Pol, P.P. for State. Mr.G.S.Godbole with Mr.C.K.Pendse for interveners. ...... CORAM : A.M.KHANWILKAR AND A.R.JOSHI, JJ. ORDER RESERVED ON : FEBRUARY 25, 2011. ORDER PRONOUNCED ON : MARCH 7, 2011. 2 wp.132.11 ORDER (Per A.M.Khanwilkar, J.) : 1. By this Petition under Article 226 of the Constitution of India, the petitioner, who is the original complainant in private compliant No.1/2006 pending before the Special Judge taking N.D.P.S. cases at Mumbai, has prayed for setting aside the order passed by the Government to transfer Shri Ramesh D.Khade, Deputy Superintendent of Police, C.I.D. and instead, to appoint some other Officer as the Investigating Officer in that case. The petitioner is also praying for mandatory relief of direction to reinstate Shri Ramesh D.Khade, Deputy Superintendent of Police, State C.I.D. as Investigating Officer and complete the investigation within a stipulated period. This is the principal relief which will have to be answered by us. 2. The petitioner, as aforesaid, filed private complaint, in which direction under Section 156(3) of Code of Criminal Procedure, 1973 (`Cr.P.C.’) was issued on 21st April, 2007. In view of certain developments, the State decided to hand over the investigation of the said case to State C.I.D. Accordingly, the earlier Writ Petition filed by this very petitioner bearing Writ Petition No.2921 of 2009 came to be disposed of on 5th December, 2009 with the direction that the investigation of case filed by the 3 wp.132.11 petitioner be entrusted to State C.I.D. and to be completed preferably within six months. Thereafter, three more Petitions were filed and disposed of by common order dated 1st April, 2010. In those Petitions, the grievance was regarding the appointment of Shri K.P.Raghuvanshi, Additional Director General of Police (ATS), Mumbai, to supervise the investigation of the case to be done by State C.I.D. in terms of order dated 16th January, 2010 of the Additional Chief Secretary, Home Department, Government of Maharashtra. This challenge came to be negated by the Bench of which one of us (Justice A.R.Joshi) was a member. In other words, the investigation of the criminal case initiated by the petitioner remained with the State C.I.D. to be done under the supervision of Shri K.P.Raghuvanshi, ADG (ATS). In the State C.I.D., as aforesaid, the investigation of the case was entrusted to Shri Ramesh D.Khade, Deputy Superintendent of Police. In the disposed of Writ Petition No.2921 of 2009, the State of Maharashtra moved an application for giving further time to complete the investigation, which prayer was granted in terms of order dated 2nd September, 2010. Two months’ further time was given to the investigating agency to submit appropriate report before the concerned Court. However, it appears that in December, 2010, the said Investigating Officer Shri Ramesh D.Khade, Deputy Superintendent of Police, State C.I.D. has been transferred and in 4 wp.132.11 his place, new Investigating Officer has been appointed to continue with the investigation of the criminal case initiated by the petitioner. This has happened on account of criminal complaint filed by the accused named in the criminal complaint filed by the petitioner. The said accused Subhash S.Kenjale filed application before the lower Court bearing M.A.No.385 of 2009 alleging connivance of Shri S.P.S.Yadav, Addl.D.G.P. C.I.D. (Crime) and Shri Ramesh D.Khade, Dy.S.P. with the petitioner herein to make malicious inquiry and biased investigation against him. On that allegation, he prayed for investigation of the case by C.I.D. (Crime). On the said application, the concerned Magistrate issued order under Section 156(3) of the Cr.P.C. against Shri S.P.S.Yadav and Shri Ramesh D.Khade and others. Thereafter, the said accused Subhash S.Kenjale made representation to the Department for change of the Investigating Officer in the criminal case initiated at the instance of the petitioner against him. In the light of the said complaint, the matter was considered by the Department. Indeed, the Director General of Police in his communication dated 14th October, 2010 addressed to the Additional Chief Secretary (Home), Government of Maharashtra, has expressed his reservation to transfer the investigation of the criminal case initiated at the instance of the petitioner herein on the ground that it would send wrong signal and also demoralize the concerned 5 wp.132.11 police officers. In his report, he has acknowledged the fact that there was in-fighting in the police force and the cross complaints were the outcome thereof. At the same time, he did not favour the proposal for transfer of present Investigating Officer Shri Ramesh D.Khade to be replaced by another Officer of State C.I.D. to investigate the criminal case initiated by the petitioner. Instead, he suggested that the investigation of the case be handed over to C.B.I. after taking Court’s permission. Nevertheless, the State Government took a decision to transfer the investigation of the criminal case initiated at the instance of the petitioner to another Officer of the State C.I.D. so as to replace Shri Ramesh D.Khade. According to the petitioner, this action would sabotage the investigation of his case. Besides, the change in Investigating Officer is with malafide intention so as to slow down and change the course of investigation. The back door method and strategy has been used by the accused named by him. It has been done with a view to bring pressure on the Investigating Officer and to protract the investigation. 3. The Petition has been resisted by the State. The Advocate General appearing for the State contends that there is no substance in the allegations made by the petitioner. In his submission, there is no averment in the 6 wp.132.11 Petition that the act of the Government is malafide or politically motivated. Further, no grievance has been made against the new incumbent who has already taken over investigation of the case. There is no averment in the Petition that the said Officer will not be able to properly investigate the matter. Further, it is the prerogative of the State to transfer its Officers and to assign work or to withdraw one or the other duty of the concerned Officer, if there is administrative exigency. For that, reliance is placed on Section 36 of Cr.P.C. as well as Sections 3 and 4 of the Bombay Police Act, 1951. He has placed reliance on the exposition of Apex Court in State of Bihar & Anr. vs. J.A.C. Saldanna & Ors. reported in AIR 1980 SC 326, in particular, paragraph Nos.12 to 16 thereof. According to the learned Advocate General, even if the Investigating Officer is changed in the fact situation of the present case, it would make no difference, as the investigation would be continued under the supervision of Shri K.P.Raghuvanshi, ADG (ATS) in view of his appointment in terms of order of the Additional Chief Secretary, Home Department dated 16th January, 2010. Accordingly, the apprehension of the petitioner that the investigation would be protracted or sabotaged in any manner, is preposterous and in any case, premature. 7 wp.132.11 4. After considering the rival submissions and having perused the record produced by the learned Advocate General, in our opinion, broadly two points will arise for our consideration, namely; (1) Whether the transfer of Investigating Officer in the fact situation of the present case can be said to be prejudicial to public interest? (2) Whether the transfer of Investigating Officer is vitiated, as it is made on the representation made by the accused? 5. Insofar as the first question is concerned, we may usefully refer to the decision of the Apex Court in the case of N.K.Singh vs. Union of India & Ors. reported in (1994) 6 SCC 98. Indeed, that was a case where the public servant himself challenged the transfer order. The appellant at the relevant time was working in his capacity in the C.B.I. and was in-charge of a special investigation group conducting some sensitive investigations. He, however, came to be transferred by the Government of India from the post of Joint Director, C.B.I. to the post of Border Security Force (BSF) in an equivalent post of I.G.P. The real grievance of the appellant in that case was that he was eased out of the sensitive post in C.B.I. as in-charge of the 8 wp.132.11 Special Investigation Group investigating into the St.Kitt’s affair wherein there were allegations of forgery of some documents and of involvement in that forgery of some persons having political patronage, because of his impeccable reputation as an officer beyond approach. His contention was answered by the Apex Court. It may be useful to advert to paragraph Nos.4 and 9 of the Judgment which articulates the scope of challenge in respect of a transfer of public servant in such a situation. The same reads thus: “4. There are two aspects of transfer of a public servant holding a sensitive and important post. One aspect relates to the private rights of the public servant as an individual pertaining only to his service career. The other is concerned with prejudice to public interest irrespective of the individual interest. The element of prejudice to public interest can be involved only in transfers from sensitive and important public offices and not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough and there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it a vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. Such cases would be rare and this factor as a vitiating element must be accepted with great caution and circumspection.” In Paragraph No.9, the Court observed thus: “9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was 9 wp.132.11 avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.” 6. Keeping the principle underlying the above quoted exposition in mind, we would examine the claim of the petitioner. In the first place, there is no averment in the Petition at all that the new officer is not suitable. There is also no allegation that the said Shri Ramesh D.Khade has been replaced by a pliable or less competent officer, who may facilitate the alleged ulterior purpose. Indeed, the petitioner has asserted that the transfer of Shri Ramesh D.Khade was avoidable. That assertion, per se, is not sufficient. More over, in the fact situation of the present case, it is not possible to take the view that transfer of Shri Ramesh D.Khade who was investigating the criminal case instituted at the instance of the petitioner would be prejudicial to public interest as such. In that, the investigation will be continued under the supervision of Shri K.P.Raghuvanshi, ADG (ATS) in terms of order issued by the Additional Chief Secretary, Home Department dated 16th January, 2010. The said order is not subject matter of challenge in the present Writ Petition. As a matter of fact, the appointment of Shri K.P.Raghuvanshi, ADG (ATS), to supervise the investigation was specifically challenged by the petitioner and that 10 wp.132.11 challenge has been rejected. Further, the allegation of the petitioner is founded on mere suspicion or likelihood of some prejudice to public interest. No strong unimpeachable evidence to prove definite substantial prejudice to public interest is forthcoming. Besides, it would be premature, if not preposterous, to argue that Shri K.P.Raghuvanshi, ADG (ATS) would allow the investigation of the case to be sabotaged or derailed. No such case has been made out nor any material to even remotely support that position is presently available on record. 7. Reverting back to the argument of the learned Advocate General that it is the prerogative of the State to assign work to its Officers or to withdraw one or the other duty and ask the same to be performed by another Officer, the same is unexceptionable. To buttress this submission, he is justified in relying on Section 36 of the Cr.P.C. which enables the police Officers superior in rank to an officer in charge of a Police Station to exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such Officer within the limits of his Station; and also on Section 3 and more particularly, Section 4 of the Bombay Police Act, 1951. Section 3 provides that there shall be one Police Force for the whole of the State of Maharashtra and such Police Force shall 11 wp.132.11 include every Police officer referred to in Clause (6) of Section 2. Section 4 postulates that the superintendence of the Police Force throughout the State of Maharashtra vests in and exercisable by the State Government and subject to such superintendence, the Secretary to the State Government in the Home Department, whether designated as Secretary, Home Secretary, Special Secretary, Additional Chief Secretary or otherwise, in charge of the Law and Order Division of the Home Department shall exercise control, direction and supervision over the Police Force. Thus, there can be no doubt that the superintendence of the Police Force vests in the State of Maharashtra and being the superior authority, its decision ought to prevail. In case of State of Bihar (supra), the Apex Court observed thus: “15. However, even apart from this, what is the scope, content and ambit of the power of general superintendence conferred on the State Government over the police throughout the general police district meaning thereby the whole State? 16. The general power of superintendence as conferred by Section 3 would comprehend the power to exercise effective control over the actions, performance and discharge of duties by the members of the police force throughout the general district. The word `superintendence’ would imply administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct 12 wp.132.11 some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. Such is the scope and ambit of power conferred by Section 3 on the State Government of superintendence over the entire police force of the State. .................” (emphasis supplied) 8. It is, therefore, clear that the decision of the State Government would be material and binding and the views expressed by the Director General of Police in his communication, which were only recommendatory, would be of no avail to answer the issue. 9. Suffice it to observe that in the fact situation of the present case, the decision of the State Government which is taken on the basis of subjective satisfaction and upon considering relevant matters including the recommendation made by the Director General of Police, cannot be said to be prejudicial to public interest as such. Ostensibly, it may appear that the transfer of Shri Ramesh D.Khade was avoidable. However, that would not make the decision of the State Government prejudicial to public interest nor by itself, be sufficient to question the legality of transfer of Shri Ramesh D.Khade as the Investigating Officer to be replaced by another competent officer of the State C.I.D. 13 wp.132.11 10. That takes us to the second question as to whether the transfer of Investigating Officer at the behest of the accused is vitiated. Ordinarily, the question of transferring the Investigating Officer and entrusting the investigation to another Officer “at the instance of the accused”, cannot be countenanced. However, it is not necessary for us to delve into this question any further, in view of the opinion already expressed hitherto. In the fact situation of the present case, since the investigation would be supervised by Shri K.P.Raghuvanshi, ADG (ATS), who has been appointed for that purpose in terms of order passed by the Additional Chief Secretary, Home Department dated 16th January, 2010, coupled with the fact that no issue about the suitability and competency of the newly appointed Investigating Officer to replace Shri Ramesh D.Khade has been brought on record, we need not elaborate on the point under consideration any further. Besides, as is noticed earlier, the State Government has taken overall view of the situation and has arrived at a conscious decision that changing the Investigating Officer would be the appropriate solution in the given situation and would subserve the public interest, judicial review of that subjective satisfaction is not possible. 11. While parting, however, we would like to add a word of caution that 14 wp.132.11 the State Government; as well as the newly appointed Investigating Officer who has replaced the outgoing Investigating Officer Shri Ramesh D.Khade; as also Shri K.P.Raghuvanshi, ADG (ATS), who is expected to supervise the investigation of the case would and ought to ensure that the investigation is proceeded in right direction and with utmost dispatch. We may remind all concerned that further two months’ time to complete the investigation was granted vide order dated 2nd September, 2010 which has already expired long back. We hope and trust that the newly appointed Investigating Officer would complete the investigation under supervision of Shri K.P.Raghuvanshi, ADG (ATS) expeditiously and submit appropriate report before the concerned Court preferably within two months from today. 12. We may further clarify that dismissal of this Petition would not deprive the petitioner of appropriate remedy to question the deficiency in the investigation or inaction of the investigating team. That challenge will be considered on its own merits in accordance with law. 13. The Petition is dismissed with the above observations. 15 wp.132.11 14. In view of the dismissal of the Writ Petition, nothing survives for consideration in the Applications. The same are disposed of. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)