1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3679 of 2008 1. Damodar s/o Jagannath Lokhande, Age 35 years, Occ. Business, r/o Flat No.5, "Gangopi", Ganesh Colony, Jalgaon, Dist. Jalgaon. 2. Liladhar s/o Purushottam Narkhede, Age 43 years, Occ. Service, r/o. 256/7, Bhavani Peth, Jalgaon, Dist. Jalgaon. ...APPLICANTS VERSUS 1. Union of India, Through its Secretary to Ministry of Home Affairs. (copy to be served on Asst.Solicitor General of India, High Court of Bombay, Bench at Aurangabad. 2. Central Bureau of Investigation, Through Superintendent of Police, Special Crime Branch, Kitab Mahal, Mumbai, Maharashtra. 3. The State of Maharashtra, Through Zilla Peth Police Station, Jalgaon. ...RESPONDENTS ... Ms.Surekha Mahajan, & Mr. G.V.Wani, Advocate, for the applicants. 2 Mr. D.N. Salvi, Special P.P. for respondent no.2. Mr. D.R.Korde, A.P.P. for respondent no.3. ... CORAM : K.U.CHANDIWAL, J. DATE 15/10/2009 *** P.C.: 1. Heard. Rule. Matter finally heard as agreed. 2. The applicants (Accused nos. 3 and 4) have urged: "A. To quash and set aside the F.I.R. registered vide Cr.No.242/2005 at Jilha Peth Police Station, Jalgaon and criminal proceedings instituted against the applicants no.1 and 2 pursuant to the additional/supplementary charge sheet submitted by C.B.I. in Sessions Case No.08/2006 of Jalgaon ( RCC No. 803/2005)." 3. Crime No.242/2005 was registered regarding murder of V.G.Patil on 21.9.2005. Two suspects were arrested ( Accused No.1 Raju Pundlik Mali and Accused No.2 Raju Chintaman Sonavane). After investigation chargesheet/report filed on 22.12.2005 ( 194/2005 RCC 08/2006) 3 against four accused ( Accused No.1 Raju, Accused No.2 Raju Sonawane, Accused No.3 Leeladhar Narkhede, accused no.4 Damodhar Lokhande). 4. Accused No.3 Leeladhar and accused No.4 Damodhar challenged the proceedings before this Bench vide Criminal Application No.3331/2005, 298/2005 and by order dt.3.2.2008, Brother Judge quashed FIR to the extent of accused nos. 3 and 4. The Special Leave Petition before the Apex Court was dismissed on 18.4.2007. 5. Further investigation was carried by C.B.I. in Crime No.242/2006, pursuant to order in Writ Petition No.646/2005. Review No. 3348/2007 was rejected by Division Bench on 16th Sept.,2009. 6. Criminal Writ Petition No.1278/2007 was filed by Smt. Rajni Vishram Patil, widow of victim at Principal Seat of Bombay High Court. The Accused nos. 3 and accused no.4 were heard as intervenors. Writ Petition No.1278/2007 was finally disposed off by the Bench of Hon'ble the Chief Justice on 18th July, 2009. 7. Supplementary chargesheet against accused, including accused no. 3 and accused no.4 came to be filed on 6.10.2008. Counsel attacked the haste shown by C.B.I. in filing final report, 4 without accused nos. 3 and accused no.4 being heard, however, it is absolutely absurd, as the record demonstrates, accused nos. 3 and accused no.4 were keeping close monitoring on developments in the matter. The matter was on Board before the learned Sessions Judge on 6.10.2008 and the deadline given by High Court to complete the investigation was coming to an end. 8. Learned Counsel submits, in the earlier proceedings, the chargesheet filed by the State C.I.D., the FIR to the extent of applicants was quashed and, consequently, the applicants could not have been arrayed by C.B.I. It was so agitated before the Division Bench dealing with the Review Application (Criminal Application No. 3348/2007). These contentions were negatived by the Division Bench. Consequently, primarily, the same cannot be agitated with the same force, however, it is also dealt in this order. 9. Learned Counsel for C.B.I. also submitted that Criminal Writ Petition No. 1278/2007, at the Principal Bench at Bombay has been disposed of. The applicants have, indeed, specifically raised objection to their being made accused in the supplementary chargesheet filed by C.B.I. dt.6.10.2008 and, consequently, it will not now be open to be agitated again. 5 The Division Bench, in Criminal Writ Petition No.1278/2007, granted liberty to the intervenors ( applicants herein) to move the trial Court for any relief as may be permissible to them. The trial Court is also free to pass any order in furtherance to power vested in it under Section 173(8) read with Section 319 of Cr.P.C., 1973, keeping in view the facts and circumstances of the present case. 10. The learned Counsel read statements of : (1) Rekha Raju Mali dt.25.9.2005 and also 18.9.2007 by C.B.I. She is widow of accused no.1. (2) Rambhau Gobru Pawar, an eye witness, statement dt.21.9.2005 by Local Police, 17.12.2005 by CID and 25.5.2007 by C.B.I. (3) Smt.Sheelabai Rambhau Gobru Pawar (she is wife of eye witness) dt.24.8.2008. (4) Sitaram Nathu Mahajan ( father=in=law of accused no.1 ) dt.16.7.2008. (5) Raju Raghunath Patil dt.15.2.2008 and 11.7.2008. 6 (6) Avinash M.Bhalerao dt.21.7.2008. (7) Lalit Vijay Kolhe dt.15.2.2008, 11.7.2008. (8) Sanjay Pundlik Mali dt.22.4.2008. (9) Smt.Jyoti Deepak Mahajan (she did not refer name of Accused No.3 and Accused No.4. 11. According to Counsel, no test identification parade of accused nos. 3 and accused no.4 was taken to confront with eye witness Rambhau. Accused nos. 3 and accused no.4 allegedly contacted him to accept Rs.10 lacs and desist from giving evidence. This is concoction. 12. On hearing the respective Counsel, the cumulative effect of the statements indicate prima facie that accused no.3 had mobile conversation with accused no.1 on 14.9.2005 and thereafter only accused no.1 solicited services of accused no.2 Raju Sonawane and activated murder of V.G.Patil on 21.9.2005. Immediately after the incident, accused no.3 attended communication from accused no.1 from Kingaon, which has been supported from call details of the coin box PCO at Kingaon and also from the Mobile No.94231-87054. It is pertinent, presence of 7 accused no.1 at Kingaon was established based on his disclosure statement recorded in presence of Panch where Police had taken charge of burnt pieces of clothes under a discovery statement. Investigation also points that the motor cycle used for the assassination being Motor Cycle No.MH-15-AP=1341 was from Deoprakash Pawar and it belonged to accused no.3. The statements of wife of accused no.1 illustrate that accused no.3 and accused no.4 had time to time rendered financial assistance for getting bail or to meet family expenses of accused no.1. Accused No.3 had regular close door meeting with Accused no.1 one month prior to execution. Accused No.1, Accused No.2 indeed acted as contract killer. 13. Accused nos. 3 and accused no.4 have tried to exert influence on the eye witness Rambhau which has been so indicated by him in his statements. Minor contradictions in the two statements, need not be branded as patching of events by C.B.I. It is the evidence in the Court which will have its weightage to be seen and scanned. At this stage, there is, indeed, primary evidence against the accused. 14. Advocates A.M.Bhalerao and Raju Patil have narrated the scuffle and brawl between Accused no.4 and deceased at Party office at Mumbai. Accused No.4 Leeladhar, had threatened 8 deceased with consequences. There was political rivalery between deceased and several individuals including accused no.3 and accused no.4, revolving mainly to the key post in Party at Jalgaon and, consequential benefit therefrom. Deceased was an eye-sore for these keen aspirants and prima facie plotted to do away with him. One cannot be oblivious that the matter revolves to political rivalery and there can hardly be any direct evidence when it deals with contract killing ( Supari). There is seldom direct evidence in a conspiracy. It is an inference from circumstances to be established from proven events. Different shades of such circumstances are required to be put together and have a lasso against the culprit. The ingot of the evidence will only be from different witnesses and, consequently, there need not be a petty distinction of an irrelevant overstepping by any witness in the subsequent statement. It is rather easy to evade the truth which can be done by raising trivial distinctions and objections but at this stage of the matter, it is necessary to prima facie evaluate the evidence to the extent of accused nos. 3 and 4. 15. It needs to be seen, though there appears new statements, however, it is not a fresh investigation as such. It was in context 9 of Accused No.3 Narkhede and accused No.4 Lokhande such investigation was carried. Progress in the investigation was communicated to the Principal Bench time to time. 16. Since the chargesheet is filed in terms of Section 173(8) of Cr.P.C., pursuant to the directions of Division Bench, referred above, I quite see that the powers of C.B.I. are not curtailed to carry investigation to the extent of present applicants/accused nos. 3 and accused no. 4 as it is legally permissible to do so. The proceedings against the accused quashed at initial stage, referred earlier, will not obliterate effect of Section 173(8) of Cr.P.C. 17. The Apex Court in the matter of Municipal Corporation of Delhi Vs. Ramkishan Rohatgi and others ( AIR 1983 SC 67(1)) while dealing with the powers under Sections 482 and 397 Cr.P.C., coupled with provisions of Section 319 of IPC observed in paragraph no.19, as under: " In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add 10 that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it." 18. Learned Counsel for the accused/applicant placed reliance to the following judgments: (1) AIR 1992 SUPREME COURT 604(1) (State of Haryana and others vs. Bhajanlal and others) (2) 1994 STPL (LE) 18992 SC Supreme Court of India (P.K.Narayanan vs. State of Kerala.) (3) AIR 1998 Supreme Court 128 (M/s Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others.) 11 (4) AIR 2000 Supreme Court 754 G.Sagar Suri and another vs. State of U.P. and others. (5) 2003 STPL (LE) 32127 S.C. STPL (LE) Supreme Court of India (Union of India Vs. Prakash P. Hinduja and another. " The powers of this Court, in terms of Section 482 of Cr.P.C. are indicated in above judgments. The illustrative categories expressed in the matter of Bhajanlal are as under: "(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; 12 (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 19. In the matter of Mithabhai Pashabhai Patel and others Vs. State of Gujrat ( 2009 AIR SCW 3780), the Apex Court in paragraph no.17 13 observed as under: "17. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re- investigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction." The Apex Court further observed in paragraph no.18, " A distinction, therefore, exists between a re-investigation and further investigation. 20. It has been observed by the Apex Court in the matter of "State of A.P. V/s Vangaveeti Nagaiah ( 2009 ALL MR (CRI) 2416), in para 7, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. The Apex Court has also observed, 14 " It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R., that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court". 21. The Supreme Court has held that persons against whom there is reasonable suspicion of committing a crime have to be treated equally under the law and probity in public life is of great significance. 22. The Division Bench in Writ Petition No. 1278/2007, (Smt. Rajni Vishram Patil Vs. Central Bureau of Investigation), in paragraph No.18, has observed as under: "18. The principle is that investigation has to be fair, just and in accordance with law. The investigation must be conducted with commitment, devotion and accountability as these are basic parameters of criminal investigation. Once the investigation is fair and satisfies the other established parameters there would hardly be any occasion for the High Court to interfere or to oversee the investigation over a prolonged period. " 15 23. It was contended by Smt. Mahajan, Counsel, that the investigation by C.B.I. has crossed its limits and it has been unjust or unfair. Similar submissions were made before the Division Bench in Writ Petition No.1278/2007 and in paragraph No.45(2), the same has been negatived. 24. The form of several statements referred and discussed earlier, prima facie, will indict the accused/applicants. Consequently, the exercise of powers in terms of Section 482 of Cr.P.C. will not be within the seven categories highlighted by the Apex Court in the matter of Bhajanlal. 25. I do not see that an adverse inference can be drawn merely because the chargesheet against accused no.3 and accused no.4 was filed subsequent to the first supplementary chargesheet as it was more or less under different directions of this Court, the activities were carried by C.B.I. The chargesheet tendered before the learned Judicial Magistrate, First Class, dt. 6.10.2008 was not under any coercion or pressure under the guise of such mandatory direction of the High Court in Writ Petition No.1278/2007. The investigation was transferred to the C.B.I. by this Court and the additional evidence that has come forth during investigation by C.B.I. has 16 its proper avenues which require consideration. In the light of Section 482 of Cr.P.C. the exercise of the powers as sought by the applicants cannot and need not be favourably done. I do not see any merit in the application. Hence order. ORDER (a) Criminal Application No.3679/2008 is dismissed. Rule discharged. Interim protection vacated. (b) Heard. Since, on instructions, Smt. Mahajan wants to challenge the order before the Apex Court, the earlier protection - stay to the proceedings before the learned Sessions Judge to the extent of applicants/accused nos. 3 and 4, is extended till 16th Nov.,2009. ( K.U.CHANDIWAL) JUDGE agp/3679-09crapl