1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.323 OF 2010 NASEEM AHMED NISAR AHMED Age : 55 Sex : M SHAHABAZAR AURANGABAD ..PETITIONER VERSUS 1.THE STATE OF MAHARASHTRA THROUGH GPHC AURANGABAD 2.THE INSPECTOR OF POLICE, CITY POLICE STATION, AURANGABAD. TQ. & DIST. AURANGABAD. 3.CENTRAL BUREAU OF INVESTIGATION ..RESPONDENTS ... Shri S.S.Pawar, Advocate (amicus curiae) for Petitioner, Shri N.R.Shaikh, APP for respondents 1 and 2 and Shri Alok Sharma, Additional Solicitor General for respondent 3. ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 15.7.2010 ORAL JUDGMENT : (Per S.B.DESHMUKH,J.):- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith and the petition is heard finally. 3. Petitioner has sought following reliefs in this petition - 2 (A) The investigation of complaint filed by the petitioner with police station City Chowk Aurangabad and Commissioner of Police at Aurangabad and which A.D.No. 18/2008 is registered may kindly be directed to be handed over to Central Bureau of investigation or any other independent investigation agency for fresh investigation. (B) Pending the hearing and final disposal of this criminal writ petition, the respondent no.1 and 2 may kindly be directed to submit before this Hon'ble Court report of investigation bearing A.D.No.18/2008. (C) Pending the hearing and final disposal of this criminal writ petition, the investigation of complaint filed by the petitioner on 27.7.2008 and thereafter time to time with Commissioner of Police at Aurangabad and Police Station City Chowk Aurangabad may kindly be directed to handover the Central Bureau of investigation or any other independent investigation agency for fresh investigation. 4. Learned counsel for the petitioner took us through the complaint lodged by the petitioner to the Commissioner of Police, Aurangabad (Exhibit "A") dated 27.7.2008 claiming that on 26.7.2008, his son - Nadeem was called by some of his friends, named in the complaint, from home, while Nadeem was taking the meals, for swimming in the Sohel Garden, Aurangabad. According to the petitioner, friends of Nadeem were aware of the fact that Nadeem does not know swimming. Despite, he was taken forcibly and drowned in the water. According to the petitioner Nadeem has been murdered by his friends named in the 3 complaint. Further according to the petitioner, investigation by the local police was in direction of accidental death by drowning. Petitioner also claims that one lady, namely; Mallika Begum mis-represented the son of the petitioner as of her own, she imposed photograph of the son of the petitioner along with her photograph and making capital thereof, raised a loan from the non banking financial institution and taking benefit of the death of the petitioner's son, she is trying to seek waiver of the said loan. According to the petitioner, the police are not paying any heed to these aspects of the matter and not initiating any enquiry in this direction. According to the petitioner, son of the petitioner was around 19 years of age and was working in a Ready made shop at Aurangabad. 5. In response to the notice of this Court, affidavit in reply, initially was filed by one Arvind Garad, Police Head Constable, City Chowk Police Station, Aurangabad (Page 39). After hearing respective counsel, this Court directed to file additional affidavit in reply and place on record the post mortem report. Accordingly, additional affidavit in reply is filed on record (Page 83) sworn in by Sitaram Mhetre, Police Sub Inspector (Crime Branch), Aurangabad. Learned APP took us through the said additional affidavit, post mortem report and papers of investigation annexed with the additional affidavit in reply. This additional affidavit makes it clear that apart from the present petition, a complaint was also made to Human Rights Commission and some directions were given by the said Commission to Police Commissioner, Aurangabad, who, in turn, 4 directed Sitaram Mhetre, Police Sub Inspector (Crime Branch) (affiant) to carry out the investigation. According to this affiant, he has taken into account the earlier investigation carried out by Head Constable and he himself carried out the investigation further and recorded statements of various persons. He has given details of investigation in this affidavit in reply. 6. Investigation is a matter governed by the provisions of the Code of Criminal Procedure. Primarily, as laid down by the Supreme Court in the case of Kunga Nima Lepcha Vs. State of Sikkim (AIR 2010 SC 1671), it is for the executive to direct a particular agency for carrying out the investigation of a crime. Section 36 of the Code of Criminal Procedure is relevant for this purpose. In the case on hand, Human Rights Commission had directed Police Commissioner, Aurangabad and investigation was also carried out in pursuance thereof. In our view, the additional affidavit in reply has clarified the nature of the investigation carried out. It is revealed in the investigation that death was due to asphyxia due to drowning. In our view, no case for direction for change in the investigation agency has been established. We are satisfied with the investigation carried out by the agency concerned. 7. In the result, Writ Petition is dismissed. Rule stands discharged. 5 8. We quantify Rs.2,000/- (Rs.Two Thousand only/-) towards fees and expenses to be paid to Shri S.S.Pawar, learned Advocate (amicus curiae) for the petitioner. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl