1.crapl­488­11.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 488 OF 2011 Rajkumar Pandurang Narute and Ors. ..Applicants Vs. The State of Maharashtra ..Respondent Shri. V.V.Purwant for the applicants Shri. Y.M.Nakhwa Additional Public Prosecutor for the State Shri. S.V.Marwadi with Mrs. Sunita Sharma and Mr. Vinayak Hathi for respondent nos.2, 3 and 4. CORAM : B.R.GAVAI, J. DATE : 11th AUGUST, 2011. P.C.: 1. The Court on prima facie noticing that the police officers had misused the police machinery in order to take vengeance against the present applicants and had initiated the proceedings under the Prevention of Corruption Act against them, had issued notices to Shri. Shirish S. Tandalekar, Assistant Commissioner of Police, Traffic, Solapur and Shri. Vikas Ramrao Ramugade, Senior Police Inspector, Solapur calling upon them as to why action should not be taken against them for abuse of powers 1 1.crapl­488­11.doc vested in them. The Court had also issued notice to Shri. Himmatrao Deshbhratar presently working as Commissioner of Police, Solapur for the same purpose. 2. Accordingly, affidavits-in-reply have been filed on behalf of the three noticees. 3. The FIR is registered at the instance of the police officer Shri. Ramugade alleging that the applicants had attempted to give bribe of Rs. 3,000/- which was refused by him. An investigation was directed by the Commissioner of Police Shri. Himmatrao Deshbhratar to be carried out by Shri. Tandalekar, Assistant Commissioner of Police, Traffic. 4. While issuing notice what weighed with the Court, were the following factors: (I) That unless there was principal offender who is the public servant, a person cannot be charged for abetment of the said offence by invoking the provisions of Section 12 of the Prevention of Corruption Act, (II) That there is an independent machinery carrying out the investigation for the offences punishable under the provisions of the Prevention of Corruption Act and as such, there was no occasion for the Commissioner of Police to have entrusted the investigation with Shri. Tandalekar, the Assistant Commissioner of Police, Traffic. (III) That there is specific allegation made by the applicant 2 1.crapl­488­11.doc no.1 in the newspaper in which he was reporter, alleging mal-practices by the traffic department. 5. In this background, this Court was of the view that the investigation could not have been transferred to Shri. Tandalekar who was holding the post of Assistant Commissioner of Police, Traffic Department. 6. Heard Shri. Marwadi, the learned Counsel who appears for the noticees, Shri. Nakhwa the learned A.P.P. who appears for the State and Shri. Purwant who appears for the applicants. 7. In so far as the first ground is concerned, the issue is no more res integra as the Apex Court in the case of State Through Central Bureau of Investigation Vs. Parmeshwaran Subramani and another, reported in (2009) 9 SCC 729, while interpreting the provision of Section 12 of the Prevention of Corruption Act, has observed thus: “Section 12 of the Act, in clear and categorical terms, speaks that whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term as provided thereunder. It is thus, clear that 3 1.crapl­488­11.doc abetment of any offence punishable under Section 7 or Section 11 is itself a distinct offence. The offence punishable under Section 7 or Section 11 whether actually committed by a public servant is of no consequence. It is precisely for the said reason Section 19 of the Act specifically omits Section 12 from its purview. The Courts by process of interpretation cannot read Section 12 into Section 19 as it may amount to rewriting the very Section 19 itself.” 8. It can thus, be seen that the Apex Court has clearly held that an offence under Section 12 of the Prevention of Corruption Act is an independent of offence under Sections 7 and 11 of the said Act. It has been clearly held that a person could be charged for an offence under Section 12 of the said Act irrespective of the fact as to whether the offence punishable under Section 7 or Section 11 has been actually committed by a public servant or not. In that view of the matter, no error could be noticed in the act of Shri. Ramugade in registering an offence punishable under Section 12 of the said Act. It is to be noted that in so far as Shri. Ramugade is concerned, no allegations of whatsoever nature, have been made by the applicants in any of his press reports. 4 1.crapl­488­11.doc 9. In so far as entrusting the investigation to Shri. Tandalekar, Assistant Commissioner of Police is concerned, Shri. Deshbhratar, Commissioner of Police, in his affidavit in reply has stated that on the date on which the offence was registered, the Deputy Superintendent of Police and Police Inspector of Anti Corruption Branch were not available. He has stated in the affidavit in reply that in view of the provisions of Section 17(1)(c), it was necessary to have entrusted the investigation to an officer not below the rank of Deputy Superintendent of Police. It is stated that there were seven officers working under him with the rank of Deputy Superintendent of Police which is equivalent to the post of Assistant Commissioner of Police in the Commissionerate area. He has stated that out of the said officers, Shri. Tandalekar was the only Officer who had an experience of working four and half years in the Anti Corruption Branch. He has categorically stated that he has no objection if the investigation is transferred to the Anti Corruption Branch. However, he has stated that he does not possess the power to do so and therefore, he could not transfer the investigation to the Anti Corruption Branch. Thus, it can be seen that the act of Shri. Himmatrao Deshbhratar in entrusting the investigation to Shri. Tandalekar is concerned, the same also cannot be said to 5 1.crapl­488­11.doc be malafide one. 10.In so far as Shri. Tandalekar is concerned, from the perusal of the press report, it would reveal that allegations were made against one Inspector Shri. Wakhare of the Traffic Branch. It was alleged that Shri. Wakhare was demanding monthly `Hafta” for himself as well as Shri. Tandalekar. The said report also clearly publishes denial on behalf of Shri. Tandalekar. It is also pertinent to note that at the instance of the Police Commissioner Shri. Himmatrao Deshbhratar, an inquiry was directed to be conducted by Shri. Tandalekar, A.C.P. It is further to be noted that Shri. Tandalekar, A.C.P. has himself in the inquiry, implicated Shri. Wakhare for various mal-practices. Thus, it cannot be said that Shri. Tandalekar could be said to be the person who has grudge against the present applicants. In this view of the matter, I find that the act of Shri. Tandalekar in investigating the said offence also cannot be said to be a malafide one. 11.All the three officers have tendered their unconditional apology. The same is also accepted. 12.Though various allegations have been made by the applicants against the officers, I find that it would not be just at this stage to go into that aspect inasmuch as it would affect the cause of the prosecution as well as 6 1.crapl­488­11.doc defence. Mr. Purwant at this stage, fairly conceded that if the investigation is transferred to Anti Corruption Branch, Solapur, his grievance would no longer survive. 13.In the result, the apology offered by Shri. Himmatrao Deshbhratar, Commissioner of Police, Solapur City, Shri. Shirish S.Tandalekar, A.C.P. Traffic and Shri. Vikash R. Ramugade Senior P.I. is accepted. Notice issued to all the three officers, is discharged. 14.Application is disposed of by directing that the investigation be transferred from A.C.P. Shri. Tandalekar to the Deputy Superintendent of Police, Anti Corruption Branch, Solapur. Necessary steps for transfer be taken within a period of three days from today. 15.Parties be given authenticated copies of this order to act upon. [ B.R.GAVAI, J. ] 7