1 wp2732.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2732 OF 2009 Popatrao Marutrao Mohite ....Petitioner. Vs. State of Maharashtra & Ors. ....Respondents. Mr. Subhash Jha i/by M/s. Law Global for the Petitioner. Mrs. P.P. Shinde, APP for the State. CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATE : 8th July, 2010 P.C.: 1 Heard Mr. Jha, the learned counsel appearing for the Petitioner and the learned APP for the Respondents. This Petition under Article 226 of the Constitution of India, prays for the following reliefs:- “(a) that this Hon’ble Court may be pleased to call for the records and proceedings concerning C.R. No. 363 of 1999 of Satara City Police Station, Satara which was subsequently investigated by the State CID, Pune and after examining the legality, validity and/or propriety of the perfunctory manner in which the investigation has been conducted by not arraigning certain accused who inflicted fatal blows on Appa Leve, the deceased on 11.9.2009, may be pleased to direct the CBI to investigate the crime afresh and submit their report in this Hon’ble Court with such reasonable time as this Hon’ble Court may deem fit and proper; 2 wp2732.09.sxw (b) that this Hon’ble Court may be pleased to quash and set aside the order and judgment dated 29.6.2001, passed by the Sessions Court, Satara in Sessions Case No. 35 of 2000 and upon receipt of investigation report by the CBI, all the accused be directed to be put to trial afresh; (c) that this Hon’ble Court may be pleased to direct the CBI to investigate and submit a report in this Hon’ble Court about the circumstances under which certain accused such as Shivendrasinh Raje Bhosale and his accomplishes were not even arraigned as accused in C.R. No. 363 of 1999 of Satara City Police Station, Satara and if their complicity is disclosed then the state be directed to adopt such criminal proceeding against them as may be permissible in law and also to proceed against them on the administrative side such as holding departmental inquiry etc. as well;” 2 One Appa Leve was allegedly murdered on 11/09/1999 at Satara and therefore, C.R. No. 363 of 1999 came to be registered. The investigation in the said C.R. was subsequently taken over by the State C.I.D. from the Satara Police Station, at Satara and the charge-sheet was filed on 19/07/2000 for the offences punishable under Sections 302, 143, 147, 148, 149, 323, 427 read with Section 34 of the IPC and Section 37(1), (3) and 135 of the Bombay Police Act, 1951. On committing, the case was registered as Sessions Case No. 35 of 2000 and it resulted in acquittal as per the judgment and order dated 29/06/2009 rendered by the learned IInd Additional Sessions Judge at Satara. The state has preferred an appeal against the said acquittal and it has been registered as Criminal Appeal No. 726 of 2001, which is presently pending before this Court. 3 wp2732.09.sxw 3 Admittedly, during the investigation of C.R. No. 363 of 1999 or during the trial in Sessions Case No. 35 of 2000, the Petitioner did not approach any of the Investigating Officers, intimated that he was an eye- witness to the alleged gruesome murder of Appa Leve and consequently he was not examined as a witness in the said Sessions case. He kept a conspicious mum for more than 10 years and for the first time filed this Petition on or before 08/10/2009, for the above stated reliefs. 4 He has placed reliance on the decision in the case of Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors. (2004) 4, S.C.C. 158. In paragraph 11 of the Petition it has been stated as under:- “11. The Apex Court, not very long ago, in the matter of Zahira Habibulla H. Sheikgh Vs. State of Gujarat – 2004 (4) SCC 158 took note of the fact that if a trial is reduced to mock trial or fixed trial further investigation afresh and trial afresh is not precluded. In the case of Zahira (Supra) the accused were not only acquitted by the trial court and their acquittal was upheld by the High Court. The apex court further held that if the acquittal in unmerited and based on tainted evidence, tailored investigation, unprincipled prosecution and perfunctory trial and evidence if based on threatened/ terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and/or given to the so called findings. The apex Court used the expression such as travesty of truth, fraud on the legal process and resultant decisions of court – coram non judis and non est.” 4 wp2732.09.sxw 5 In the case of Zahira (Supra), the incident had taken place between 8.30 p.m. of 01/03/2002 and 11.00 a.m. of 02/03/2002, the charge-sheet came to be filed in June, 2002 and as per the judgment dated 27/06/2003, the trial Court had acquitted all the accused. Zahira had appeared before the National Human Rights Commission (NHRC) and stated that she was threatened by powerful politicians not to depose against the accused. On 07/08/2003, the State Government filed an Appeal against the order of acquittal and the said Appeal was also dismissed. The NHRC moved the Supreme Court with a Special Leave Petition which came to be treated as a petition under Article 32 of the Constitution of India and Zahira’s sisters had also filed Criminal Revision No. 583 of 2003 before the High Court. Criminal Miscellaneous Application No. 7677 of 2003 was filed by the State of Gujarat for adducing additional evidence. Both these applications were rejected by the High Court. In addition to the Petition by NHRC, Zahira and another organization - Citizens for Justice and Peace filed SLP challenging the judgment of acquittal passed by the Gujarat High Court. 6 In the instant case, as noted earlier, the Petitioner maintained his silence for over 10 years and suddenly he approaches this Court and prays for quashing and setting aside the order of acquittal dated 29/06/2009 passed in Sessions Case No. 35 of 2000 and for directions to the CBI to investigate into C.R. No. 363/1999 afresh or cause further investigation by the said agency. In justification of such belated approach by filing a Writ 5 wp2732.09.sxw Petition under Article 226 of the Constitution of India, the Petitioner has furnished the following explanation. “9. The Petitioner was under the influence of ARB initially and thereafter did not come forward in open all these years due to fear and rein of terror which has been unleashed by Shivendrasinh after the demise of his father. The Petitioner similarly was not advised that such course of action is open and available to him by filing the present petition. The Petitioner is himself 59 years old and feels that as a citizen of this nation, it is his duty to unfold the mystery shrouded with murder of Appa Leve. Sense of responsibility/ social obligation and fear that there is some super power which is even more powerful than the illusionary power of the people on the earth, has led the Petitioner to file the present petition in this Hon’ble Court and seek to invoke its extra-ordinary jurisdiction vested under Article 226 of the Constitution of India.” 7 In our considered opinion, the Petitioner has failed to explain the reasons as to why he kept quite for a long period of 10 years and his belated approach to this Court lacks bonafides. The learned APP’s contentions that it is a motivated Petition, cannot be brushed aside. In our view, the law laid down by the Supreme Court in Zahira’s case (Supra) is not applicable in the present case. The Petitioner was neither a complainant when the C.R. was registered nor he was a witness and had not pointed out that he ever approached either to the investigating officer of the Satara City Police Station or the I.O. from the State C.I.D.. Even during the trial, in Sessions Case No. 35 of 2000 he could have approached 6 wp2732.09.sxw this Court by filing a Writ Petition and seeking directions to examine him as witness in the said case. He knew all this for a long period of 10 years and it is shocking that wisdom has dawn on him after a period of 10 years, unless he had gone insane during this intervening period and loss of memory was treated and he regained his memory after 10 years. It appears to be a got up petition. Even otherwise, the learned counsel appearing for the Petitioner could not point out any provision in the Code of Criminal Procedure to entertain this Petition for the reliefs prayed for, except relying upon the Judgment of the Supreme Court in the case of Zahira (Supra). 8 Hence, the Petition must fail at the threshold and the same is hereby rejected summarily. (ANOOP V. MOHTA, J.) (B.H.MARLAPALLE, J.)