1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1459 OF 2007 Vishnu Radhemohan Gupta Petitioner versus The State of Maharashtra through Senior P.I; Nirmal Nagar Police Station, Bandra and others Respondents Mr.K.H.Giri for petitioner. Mrs.M.M.Deshmukh, APP. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 08th October 2008 PC : 1. Rule. Heard forthwith. Respondents waive service. 2. The petitioner herein is a practicing lawyer who appears to have committed a mistake of accompanying his client to the Police Station for lodging an FIR. The allegations of the petitioner are that he was man-handled in the Police Station by the concerned Police Officers, the details of which are set out hereunder. The petitioner, therefore, prays that the complaint 2 filed by the petitioner dated 23rd July 2007 be treated as FIR and a crime be registered against the third respondent herein Mr.Dilip Shinde, Assistant Police Inspector, to be followed by necessary legal action against him. The petitioner also prays that the first respondent State be directed to pay an amount of Five Lakhs or any other amount to the petitioner as a monetary compensation for the alleged torturous acts committed by the third respondent. 3. As usual, first few facts leading to the filing of this petition, as alleged by the petitioner. One Mr. Vinod Kuber Vishkarma and Miss Kalyani Chandrakant Haldankar, at the relevant time, were studying in a college since 2003. They fell in love with each other. Both of them were major and decided to marry. They contacted one Mr.Sonkar, Advocate for assisting them to perform a registered marriage. They were called by the said lawyer at Bandra Court on 21st July 2007 from where they were to proceed to the office of the Marriage Registrar to do the needful. At around 11.00 a.m. the brother of Miss Kalyani approached them and informed her that her mother was sick and allegedly took her away by a taxi. It is alleged that the family members including brother of Miss 3 Kalyani were opposed to the proposed marriage. Vinod informed the aforesaid lawyer Mr.Sonkar about the said incidence of Miss Kalyani being taken away by her brother. Mr.Sonkar-Advocate referred Vinod to the petitioner who then took the petitioner to Nirmal Nagar Police Station for lodging a FIR, alleging that the aforesaid brother of Miss Kalyani had kidnapped her. It is the case of the petitioner that on 21st July 2007 at 06.30 p.m. when the petitioner entered the aforesaid Police Station he met third respondent herein and that he tendered the complaint of Vinod with annextures to the third respondent. The third respondent is supposed to have thrown away the papers and refused to accept the complaint. Thereupon, the petitioner allegedly insisted that the complaint must be registered, when the third respondent assaulted the petitioner and as a result of which the petitioner sustained injuries. It is further the case of the petitioner that the petitioner was wrongfully confined in the Police Station by the third respondent till 10.00 p.m. Thereafter, the petitioner was allowed to leave the Police Station, whereupon the petitioner proceeded to Bhabha Municipal Hospital, Bandra where he was examined, treated and a medico-legal certificate of his injuries was given to him. The petitioner further claims that 4 on 22nd July 2007 he got his injuries photographed and thereafter made complaints to the higher-ups in Police Department, which were of no avail, constraining the petitioner to file present petition. 4. Initially when this petition came up for admission, on behalf respondents, a report was submitted to this Court prepared as a result of an inquiry that was carried out by the office of Assistant Commissioner of Police, accepted by the Deputy Commissioner of Police, into the allegations of the petitioner. This inquiry report dated 29th August 2007 observs that the petitioner had asked for Rs.20,000/- from his client, the proposed complainant Vinod, with an assurance that he will bring back Miss Kalyani. The report further states that the petitioner accepted Rs.19,000/- from his client Vinod and that to justify the amount so received the petitioner was pressurising the Police Officer. The report further states that the petitioner tried to abuse his post as Vice President, Bandra Bar Association and tried to engineer a procession (Morcha) of the lawyers to be taken to the Police Station, but the lawyers did not support him and so the procession was cancelled. This report further concludes that 5 since the brother of Miss Kalyani had taken away her, it cannot be said that she was kidnapped, and, therefore, there was no justification for registration of an FIR as claimed by the petitioner. However, the report finds fault with the third respondent concerned police officer to a limited extent that instead of having confrontation with the petitioner, he should have handled the matter delicately which could have avoided the unnecessary arguments with the lawyer resulting into the matter taking serious turn. Consequently, issuance of strict warning to the third respondent was recommended. 5. When the aforesaid inquiry report was brought to the notice of a learned Division Bench of this Court, this Court on 19th September 2007 observed that this report apparently discloses total failure on the part of the inquiry officer to take into consideration the relevant documents and materials as well as it discloses various infirmities which justify a proper inquiry by an independent officer in the matter. By the same order, the learned Division Bench appointed Mr.M.S.Keni, a retired City Civil Judge, as an Inquiry Officer to inquire and submit a report on the 6 conclusion of the inquiry within twelve weeks from the date of receipt of the order. 6. The said Inquiry Officer conducted the requisite inquiry and submitted a report along with covering letter dated 25th February 2008 to this Court. This report noted that the client of the petitioner Vinod himself did not support the petitioner. According to him, no incident of the kind which the petitioner says, took place. However, the petitioner produced witnesses, who are practicing advocates and who supported him, though none of them had ever witnessed the occurrence of the incident. However ultimately, the report has an observation that the fact remains that there were injuries on the body of the petitioner and that the cause thereof can be determined after an appropriate investigation. The Inquiry Officer, therefore, expressed a view that an investigation is required to be conducted in the matter. 7. Faced with the aforesaid report of the Inquiry Officer, another learned Division Bench of this Court called upon the learned APP to inform this Court as to who will conduct such an 7 investigation. Before this Court on 29th September 2008, the learned APP stated that the officer of the rank of Deputy Commissioner of Police will conduct the investigation. However, today, when the matter was fixed for filing affidavit, a communication issued to the Additional Public Prosecutor by the Deputy Inspector General of Police (Law and Order) for DIG, M.S; Mumbai dated 7th October 2008, was brought to our notice. The relevant portion of which reads thus : “Sir, With reference to the above mentioned letter, legal position with regard to investigation of cognizable offences is as under:- a) under section 156 of the Cr.P.C. any officer “Incharge of the Police Station” may without the order of a Magistrate investigate any cognizable case; b) as per section 2(o) “Officer Incharge of a Police Station” includes Police Officer present at the Station House and is above the rank of Constable. 2. In the instant case, Dy.Commissioner fo Police, Zone-VIII, vide his letter dated 4-10-2008 has proposed to conduct the investigation through Police Inspector Shri Kale of another Police Station i.e. B.K.C.Police Station. This suggestion of the DCP will ensure impartial investigation and after the investigation is over, the DCP Would be asked to submit report of Police Inspector Shri Kale alongwith his comments to Jt.Commissioner of Police (Crime) and ultimately the Jt.C.P. (Crime) would apply his mind and take an approptriate action in the matter inaccordance 8 with the law. 3. You are requested to bring the above mentioned position to the kind notice of the Hon'ble High Court and communicate further developments to this office. Yours faithfully,” 8. We are satisfied that the course of action suggested by the aforesaid communication dated 7th October 2008 will meet the ends of justice and we accept the same. In the light of the aforesaid facts and circumstances of the case, we dispose off this petition with the following directions :- A) An appropriate investigation shall be carried out by the first and second respondents in regard to the complaint of the petitioner dated 23rd July 2007 (Exhibit-D to this petition) in terms of the communication dated 7th October 2008 issued to the Additional Public Prosecutor by the wwDeputy Inspector General of Police (Law & Order) for the DIG, M.S; Mumbai, referred to hereinabove in the body of this order; B) The aforesaid investigation shall be carried out and completed within six weeks from today; C) An action taken report shall be filed by the second respondent with this Court within two weeks from completion of such investigation. Action taken report be placed before the Court; D) Rule is made absolute accordingly with no order as to costs, at this stage. 9 (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.)