-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.81 OF 2008 Anandibai Pawanraje @ Bhupalsingh ] Nimbalkar, Age 42 years, ] Occ: Housewife, residing at ] Gowardhanwadi, Taluka and Dist. ] Osmanabad. ]..Petitioner Vs. 1. The Inspector, ] Kalamboli Police Station, ] Kalamboli, New Mumbai ] 2. The Commissioner of Police, ] New Bombay. ] 3. The Secretary, ] Home Department, ] Mantralaya, Mumbai-400 032 ] 4. The Cabinet Minister for Home, ] Home Department, Mantralaya ] Mumbai-400 032 ] 5. The Hon’ble Chief Minister, ] The State of Maharashtra, ] Mantralaya, Mumbai-400 032 ] 6. The State of Maharashtra ]..Respondents -2- .... Mr. Nitin Jamdar along with Mr.V.V.Purwant Advocate for Petitioners Mr. A.R.Patil APP for State. .... CORAM: S.B.MHASE AND CORAM: S.B.MHASE AND CORAM: S.B.MHASE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE OF RESERVING DATE OF RESERVING DATE OF RESERVING JUDGMENT: AUGUST 30, 2008 JUDGMENT: AUGUST 30, 2008 JUDGMENT: AUGUST 30, 2008 DATE OF PRONOUNCING DATE OF PRONOUNCING DATE OF PRONOUNCING JUDGMENT: OCTOBER 23, 2008 JUDGMENT: OCTOBER 23, 2008 JUDGMENT: OCTOBER 23, 2008 JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: 1. Heard the learned advocate for the petitioner and the learned APP for the State. Rule. By consent, rule is made returnable forthwith. 2. This petition pertains to the death of Mr.Pawanraje Nimbalkar who was from Congress-I party. The petition has been filed by the wife of late Mr.Pawanraje Nimbalkar seeking directions to transfer the investigation pertaining to the murder of her husband to the Central Bureau of Investigation or to any other independent Investigating Agency. 3. The incident in question took place in broad-day -3- light on 3.6.2006 in New Mumbai near Kalamboli Steel Market near Bombay-Pune Express Highway. Mr.Pawanraje Nimbalkar was proceeding from Mumbai to Pune in his car with his driver. Both Mr.Pawanraje Nimbalkar and his driver Samad Kazi were shot dead. The incident is clearly homicidal and both Mr.Pawanraje Nimbalkar and his driver Samad Kazi were shot dead in the car in which they were travelling. Police lodged the FIR against unknown persons. Offence under Section 302 of IPC came to be registered vide CR No. 220 of 2006 of Kalamboli Police Station, Navi Mumbai. 4. The case of the petitioner is that at one time, husband of petitioner and Mr.Padamsingh Patil were working together, however, thereafter they got separated. Thereafter deceased Mr.Pawanraje Nimbalkar filed various complaints against Mr.Padamsingh Patil, due to which, Mr.Padamsingh Patil warned the family of Mr.Pawanraje Nimbalkar and also threatened Mr.Pawanraje Nimbalkar with dire consequences. Complaint came to be filed with regard to this fact by Mr.Pawanraje Nimbalkar on 6.9.2002. On 30.6.2003 during Annual General -4- Meeting of Terana Sugar Factory, Mr.Padamsingh Patil, Mr.Ajit Patil and Mr.Amol Patodekar assaulted Mr.Pawanraje Nimbalkar. It is alleged that due to this, Mr.Pawanraje Nimbalkar suffered grievous hurt. Due to this incident, Mr.Pawanraje Nimbalkar by letter dated 2.7.2003 requested the Superintendent of Police Osmanabad to provide armed police protection to him but the said request was rejected. 5. Various complaints came to be filed by Mr.Pawanraje Nimbalkar against Mr.Padamsingh Patil. In the year 2004, Mr.Pawanraje Nimbalkar contested the legislative assembly election as an independent candidate against Mr.Padamsingh Patil who represented Nationalist Congress Party (NCP). In the said election, Mr.Padamsingh Patil managed to succeed only by margin of 484 votes. Thereafter, the election of Terana Sugar Factory was due in the month of June, 2006. The case of the petitioner is that Mr.Padamsingh Patil apprehended that Mr.Pawanraje Nimbalkar was a threat to his political career, hence, he along with Mr.Ajit Babu Patil and Mr.Amol Patodekar entered into a conspiracy to -5- commit murder of Mr.Pawanraje Nimbalkar. According to the petitioner, the said plan was subsequently executed on 3.6.2006 when both Mr.Pawanraje Nimbalkar and his driver Samad Kazi were shot at and killed in broad-day light when they were proceeding in their car to Pune. 6. From the beginning the case of the petitioner is that the murder had been committed by or at the instance of Mr.Padamsingh Patil, Mr.Ajit Babu Patil and Mr.Amol Patodekar. However, the Investigating Agency did not carry out proper investigation as it may cause damage to the political career of Mr.Padamsingh Patil, Mr.Ajit Babu Patil and Mr.Amol Patodekar. The petitioner preferred several representations to the Director General of Police, to the Honourable Minister for Home Department etc. and made request for transfer of investigation as according to her, the offenders involved in the said crime were politically powerful persons and also had ample power to pressurise the present Investigating Agency, however, no steps were taken to transfer the investigation. The petitioner apprehends that as Mr.Padamsingh Patil is a former Minister of State, -6- Mr.Rana Jagajitsingh who is son of Mr.Padamsingh Patil, is at present Minister for State, hence, the investigation is not being properly conducted. Even though about 20 months have lapsed from the date of brutal murder of Mr.Pawanraje Nimbalkar and his driver Samad Kazi and even when the material pointed out towards the involvement of the aforesaid persons, no proper steps have been taken by the Investigating Agency. According to the petitioner, above mentioned three persons are the only persons having motive for commission of offence of murder of Mr.Pawanraje Nimbalkar. However, despite the existence of material which shows involvement of the above mentioned persons, the Investigating Agency has purposely turned a blind eye towards the material, hence, this petition with the prayer that investigation of the case be transferred to Central Bureau of Investigation or to any other independent agency. 7. It is a known fact that there was a political rivalry between deceased Mr.Pawanraje Nimbalkar and Mr.Padamsingh Patil which is also recorded in the affidavit of Senior Police Inspector Mr.Patil who is -7- also the Investigating Officer in this case. 8. It may be stated here that investigation was transferred to Crime Branch, Navi Mumbai on 7th March, 2008. It came to be transferred during the pendency of this petition before this Court. Though a lot of record has been created by the Investigating Agency, we feel that the Investigating Agency has not been proceeding in the right direction and taking the right steps at the right time. From the material on record, it is seen that polygraphic test was conducted on Tanaji Patil in the Institute at Banglore, however, as Tanaji gave evasive answers in the polygraphic test, hence, it was recommended in January, 2007 itself that he should be subjected to Narco Analysis Test. In spite of the recommendations for one year no such test was carried out. The test was carried out only on 16.2.2008 i.e. after the present petition came before the Court and after enquiry by the Court, the Investigating Agency gave assurance to the Court that the said test would be carried out. In the Narco Analysis Test, Tanaji has implicated -8- Mr.Padamsingh Patil, Mr.Ajit Babu Patil and one Vicky Malhotra. Tanaji has specifically stated that Vicky Malhotra was the person who had shot at Mr.Pawanraje Nimbalkar and his driver. It may be stated here that Vicky is a known criminal belonging to Chota Rajan Gang. The important revelations made by Tanaji Patil are that Mr.Padamsingh Patil and Ajit Babu are responsible for the murder of Mr.Pawanraje Nimbalkar. Tanaji has further stated that Mr.Padamsingh Patil sought the help of Raj Company and had paid them supari for the murder. He further stated that Vicky had shot Mr.Pawanraje Nimbalkar on the face and the driver on the chest and Tanaji had witnessed the crime while standing on the National Highway road. 9. As far as Narco Analysis Test of Tanaji is concerned, when query was made by the Court, it was stated by the Investigating Agency that the said test cannot be relied upon, because on 3.6.2006 when the incident of firing on Mr.Pawanraje Nimbalkar and his driver, took place Vicky was in Thane Jail. In fact, in the affidavit dated 26.8.2008 of Senior Police Inspector Bhagwandas Patil who is the -9- Investigating Officer, it is categorically stated in para 15 that at the relevant time i.e. from 25.5.2006 to 15.6.2006, Vicky Malhotra was kept in Thane Central Prison at Thane. Hence, this Court asked the Investigating Agency to produce the record showing that Vicky Malhotra was in the custody of Thane Jail on the date of the incident. Though the earlier stand of the Investigating Agency was that, there was no necessity of inquiry about the whereabouts of Vicky Malhotra during the period from 25.5.2006 to 15.6.2006 as he was in Thane Jail during that period, surprisingly we found that on 29.5.2006 Vicky was arrested in LAC No.25 of 1999 registered at the instance of DCB, CID, Unit-IV, Mumbai for the offences punishable under the Arms Act. On 30.5.2006 Vicky was produced before the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai for remand and Vicky came to be remanded to police custody till 3.6.2006. On 3.6.2006 he was again produced before the Magistrate at Esplanade Court. The learned Magistrate remanded Vicky to judicial custody and ordered that he should be handed over to Thane Jail. Thus, for three days preceding the murder, Vicky was -10- not in Thane Jail. Even on 3.6.2006 Vicky Malhotra was not in Thane Jail throughout the day. In fact, on 3.6.2006 in the morning Vicky Malhotra was in Mumbai and not in Thane. On 3.6.2006, Vicky was produced before the learned Metropolitan Magistrate at 12.40 p.m. The time of occurrence of the offence is given as prior to 4.20 p.m. No exact time has been given. Initially the Investigating Agency only proceeded on the fact that Vicky Malhotra could not have committed offence as he was in Thane Jail, however, from the above discussion, it is seen that on 3.6.2006 Vicky Malhotra was not in Thane Jail throughout the day and in fact, he had an occasion to pass an area, which was not that far away from the spot where the incident actually took place. Moreover, he passed the said area approximately around the time that the incident could have taken place. The log book of the vehicle used for escorting the said Vicky Malhotra from Esplanade Court to Thane Jail on 3.6.2006 as well as affidavit of Police Naik Rokade affirmed on 23.8.2008 and affidavit of Police Constable Bhosale, show that area from which the vehicle in which Vicky Malhotra was being taken and the place of the incident was -11- not that far away. 10. It is also surprising to note that normally police vans are used to carry accused persons from Court to jail, however, the vehicle used to take Vicky to Thane jail was a Jypsy which is a Jeep which is not the usual mode of transport in which the accused are taken to Jail. Besides that, the Jypsy is a much faster vehicle than the normal police vans. A Jypsy does not have adequate security arrangements compared to a police van in which the accused are normally taken to jail. Yet a Jypsy was used to take Vicky from Mumbai to Thane. We found that there was absolutely no investigation to find out whether it was possible for Vicky Malhotra to have committed the murder. 11. The incident had taken place near Sai Snacks near the truck terminal on Mumbai-Pune Express Highway. The incident had taken place during broad-day light. Though the incident had taken place in crowded area, yet no eye witness had been located by the Investigating Agency. Though more than 20 months have passed, the Investigating Agency -12- has not been able to trace any of the eye witnesses or gather any incriminating clue regarding the person/s who committed the crime. Tanaji Patil had specifically implicated Vicky Malhotra, Ajit Babu Patil and Dr.Padamsingh Patil in the murder of Mr.Pawanraje Nimbalkar and his driver, Tanaji has further stated that Mr.Padamsingh Patil had sought help of Raj Company and had paid them "Supari" for the murder. Tanaji had also stated that Vicky Malhotra was the person who shot at Mr.Pawanraje Nimbalkar on his face and on the chest of the driver and at that time, Tanaji was standing on the National High-way Road. However, all this information was brushed aside by the Investigating Agency by stating that at the relevant time i.e. from 25.5.2006 to 15.6.2006 Vicky Malhotra was in Thane Central Prison at Thane. It is clearly stated in the affidavit of Senior Police Inspector Mr.Patil who is the Investigating Officer that at the relevant time Vicky Malhotra was kept in Central Prison at Thane. The tenor of the affidavit clearly shows that from 25.5.2006 to 15.6.2006 Vicky Malhotra was only in Thane Central Prison and he had no occasion to go out of Thane Central Prison. -13- However, from the discussion above, on the Court probing into this fact, it was found that on the day of the incident, in fact Vicky Malhotra was not in Thane Central prison till about afternoon and on the day of the incident, Vicky Malhotra was being taken to various places including the hospital and Esplanade Court. No effort at all has been made by the Investigating Agency to find out whether it was possible for Vicky Malhotra to have actually committed the crime. 12. According to the petitioner, alleged Culprits involved in the offence, are big guns who wield considerable clout with political high-ups. It is feared that as alleged culprits are related to persons who are in power and wield considerable political influence, State police including C.I.D. functions under the State, will not be able to fairly and fearlessly carry out an effective and efficient investigation in order to bring to book the offenders and perpetrators of the crime. Thus it is apprehended that investigation will not be carried out honestly and objectively and those suspected to be involved in the crime, may not be -14- brought to book. 13. We found that no steps have been taken during investigation to rule out alternate possibilities in respect of the circumstances which had lead to the death of Mr. Pawanraje Nimbalkar and steps to find out the perpetrator/s of the crime have not been diligently taken. The widow of the deceased is seeking a fair and fearless investigation. C.I.D., it cannot be disputed, functions under the State Government. As far as C.B.I. is concerned, it is independent from the State control. Even if there is no material to positively show that any person who is holding or was holding any high political position has been misguiding the investigating agency in a particular direction, the capacity to do so, in the facts and circumstances of the present case, would not justify the investigation to be continued with the State C.I.D. 14. Two inferences follow irresistibly from the material before us. One is that the investigation by the police following the occurrence was desultory and lackadaisical, and showed want of appreciation -15- of the emergent need to get at the truth of the case. The theory of Vicky having committed the murder has been totally ignored by the investigating agency. No efforts appear to have been made to investigate into the aforesaid theory. Since the investigating agency has taken no steps in that direction, the investigation is faulty and the same fails to inspire confidence. 15. Another area where the investigation was deficient is that the deceased was carrying a cell phone at the time of the incident. On the day of the incident, he had received a number of calls, he had made number of calls and there were also some missed calls. No proper steps had been taken by the Investigating Agency to collect necessary information about the details of the missed calls and persons who made telephone calls to the deceased and also the persons to whom the deceased made telephone calls on the day of the incident. It is only when directions were given by this Court on 27.6.2008 that the Investigating Agency recorded the statements of those persons. This is clear from paragraph 6 of the affidavit of the Senior Police -16- Inspector, Crime Branch, Navi Mumbai dated 27.8.2008. 16. Having watched the progress of the investigation, we have no reason to doubt either the honesty or the integrity of the officers engaged in the investigation. We, however, find that the investigation has now reached a dead-lock. We further find that certain vital facts which have emerged in the investigation have not been properly investigated further. We find that the present investigating agency has proceeded to investigate the case only on one hypothesis namely that Vicky could not have been involved in the murder and therefore, Mr.Padamsingh Patil, Mr. Ajit and other cannot be involved in the murder of Mr.Pawanraje Nimbalkar. No steps are taken to find out whether it was possible for Vikky Malhotra to have committed the murder. We, therefore, cannot resist holding that all that was required to be done still remains undone. We also cannot overlook the fact that persons who are allegedly involved are prominent personalities having a clout with political big wigs. -17- 17. The present case, it is to be noted, has generated an immense amount of public interest. There is, in fact, a public out-cry. In the circumstances, we cannot totally ignore the aforesaid facts and circumstances arising in the present case. Though these factors are not decisive they cannot be totally ignored. Moreover, in a democratic set up when genuine doubts are expressed regarding the involvement of persons either at the helm of State administration or those well connected with the persons at the helm of the administration, it would be in the interest of justice to direct transfer of investigation from the State C.I.D. to C.B.I. In fact, in appropriate cases like present one it would be the duty of the Court, in order to ensure that there is no failure of justice. 18. Having regard to the lacunae in the investigation, which we have noted above and the other facts of this case when taken cumulatively, we find that a case is made out to order transfer of investigation to the C.B.I. We have noticed that investigation has been one sided and has failed to -18- explore alternate possibilities arising in the investigation. To this extent investigation is found to be faulty. Though no trace of external agency is noticed, possibility of a latent bias on the part of the investigation cannot be totally ruled out. We may state that the likelihood of bias is independent of the guilt or otherwise of those involved. In the circumstances, we want to ensure that not only should justice be done but it should also appear to have been done in the public eye. This is necessary in order to maintain the public confidence in the administration of justice. In any case, we find it necessary that no stone should remain unturned in order to trace the actual offenders so that the guilty are brought to book. We may hasten to add that transferring the investigation to CBI does not mean that the Court has ruled on the guilt of the persons named as that is not the scope of the petition. Having considered the pros and cons of the case, we hold that it would be expedient and in the interest of justice to transfer the present investigation from Crime Branch, Navi Mumbai to the C.B.I. -19- 19. In the result, petition succeeds and rule is made absolute. The investigation of the case is transferred to C.B.I. 20. It goes without saying that all material collected in the investigation will be maintained and no part thereof will be destroyed and the same will be handed over, in its present state, to the C.B.I. for enabling it to conduct the investigation as directed. All the record pertaining to this case has been handed over to the Court. The said record shall be handed over in sealed condition to the Crime Branch, Navi Mumbai who will hand it over to C.B.I. in the same sealed condition. C.B.I. is directed to take charge of investigation forthwith and to conduct the investigation expeditiously. [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.] [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.] [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.]