Bombay High Court
Xyz vs The State Of Maharashtra And Others on 14 October, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1177 OF 2022
X. Y. Z.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya, Mumbai-32,
2) The Superintendent of Police,
Ahmednagar, Tq. & Dist-Ahmednagar,
3) The Deputy Superintendent of Police,
Karjat Division, Karjat, Tq-Karjat,
Dist-Ahmednagar,
4) The Police Inspector,
Karjat Police Station,
Tq-Karjat, Dist-Ahmednagar.
...RESPONDENTS
...
Mr.Rahul R. Karpe Advocate for Petitioner.
Mr.R.V. Dasalkar, A.P.P. for Respondent Nos.1 to 4.
...
CORAM: SMT. VIBHA KANKANWADI AND
RAJESH S. PATIL, JJ.
DATE OF RESERVING ORDER : 28th SEPTEMBER 2022
DATE OF PRONOUNCING ORDER : 14th OCTOBER 2022
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ORDER [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Writ Petition invokes the constitutional powers of
this Court under Article 226 of the Constitution of India seeking
directions for transfer of the investigation to the higher Police
Authority. The Petition is filed by the informant, father of minor
girl, who wants to get redressal of the grievances of his minor
daughter, aged 10 years. According to the father and the victim
girl, the girl has been ravished by two persons known to the girl.
According to the informant, he belongs to Scheduled Tribe.
2. Heard Mr. Karpe, learned Advocate appearing for the
petitioner and Mr. Dasalkar, learned APP appearing for the
respondents.
3. Learned Advocate appearing for the petitioner submits that
present Petition has been filed on 24 th August 2022, however,
prior to that the petitioner was required to approach this Court
by filing Criminal Writ Petition No.802 of 2022 for seeking
registration of the First Information Report (for short "FIR") and
after the notice was issued, FIR came to be lodged with the
concerned Police Station vide Crime No.434 of 2022 on 20 th June
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2022, in respect of an incident that had taken place on 28 th May
2022, for the offence punishable under Sections 363, 376(d) of
the Indian Penal Code as well as Sections 3(1)(r), 3(1)(s), 3(1)
(w), 3(1)(w)(ii), 3(1)(w)(i), 3(2) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act as well as
Section 3 and 4 of the Protection of Children From Sexual
Offences Act. However, the investigation has been carried out by
the investigating officer in mala fide way and since the accused
persons belong to the political parties having deep roots with the
political heavy weights in the State, investigating agency instead
of collecting the evidence on the basis of the allegations made by
the informant and the victim, have tried to conduct the
investigation in a direction, as to how the petitioner and the
victim are stated to be colluding with an Advocate who had some
financial transactions with the proposed accused. In fact one of
the accused had given even the blank cheque to the petitioner
for not to lodge the FIR and not to go ahead with the grievances.
Respondent No.4, Police Inspector, Karjat Police Station was duty
bound to register the FIR in respect of serious and heinous
offence but he had not taken any steps and therefore the
petitioner was required to approach this Court. This also
indicates as to how the accused persons are having man and
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muscle power in view of their political connection. After
registration of the crime, investigation was handed over to
Respondent No.3, however, he has also not collected the
appropriate evidence. All these grievances were communicated
in his complaint cum representation dated 24 th August 2022 by
the petitioner to various authorities including Special Inspector
General, Nashik, Superintendent of Police, Ahmednagar. The
Petitioner is having grievance as the Police are calling him now
and then and obtaining his thumb impression on various
documents. Even when petitioner has given evidence in the form
of the photographs of the accused with the victim and also the
video shooting, the Police Officer had damaged the Mobile and
also torn the photographs. The petitioner is being threatened by
the Police Officers that he would be sent to jail. Further, it is
obvious from the point of view that during the pendency of this
Petition also Respondent No.3 has hurriedly done some
investigation and filed "B" Summary Report before the Special
Court. In fact the statement of the victim under Section 161 of
the Code of Criminal Procedure as well as Section 164 of the
Code of Criminal Procedure ought to have been considered by
the investigating officer. On the contrary, he has unnecessarily
come with the case that there was some financial transaction
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between one of the accused with the Advocate who was then
representing the informant and objecting the bail application
filed by the accused persons and he concluded that the tower
location of the informant was at a different place, tower location
of the accused was at a different place and since February 2022
informant was not working with one of the accused. It is stated
that a false FIR has been lodged. This is nothing but highhanded
act on the part of respondent No.3 and therefore, the
investigation needs to be handed over to some other officer of
higher rank.
4. Per contra, the learned APP submitted with the support of
the affidavit in reply filed by one Annasaheb Maruti Jadhav, the
Investigating Officer i.e. Sub Divisional Police Officer, Karjat,
Taluka-Karjat, District-Ahmednagar wherein it is stated that the
investigation has been carried out and one of the accused, who
is aged 75 years, was arrested on 23 rd June 2022. His medical
examination has been done. Accused No.2 could not be arrested
as he was not found. Medical examination of the girl is
conducted. She is aged 16 years. The CCTV footage of Karjat
Police Station would show that the informant had never come to
the Police Station as alleged by him. In the Writ Petition when
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allegations were made that the accused offered blank cheque
which was allegedly signed by son of one of the accused, it was
revealed that said son, namely Sharad Kundlik Goykar, had
lodged the FIR on 21st July 2022 against one Advocate Sumeet
Kanhyalal Patil and Rahul Kanhyalal Patil alleging that they had
given amount of Rs.5,25,000/- to him by way of loan and at that
time eight blank cheques were taken as a security for the loan.
As Sharad Goykar could not return the amount, Advocate
Sumeet Patil had threatened him that he would lodge the FIR
and then it is stated that he has managed the petitioner to lodge
such FIR against the father of Sharad Goykar. It was also
revealed in the investigation that accused Ankush Jamdar, at the
relevant time, was attending a wedding function at a different
place and statements of witnesses to that effect as well as
photographs from the wedding have been collected. As thorough
investigation has taken place and there was no evidence against
the accused, therefore, report under Section 169 of the Code of
Criminal Procedure was filed before the Special Court. The said
report has been scrutinized by the District Central Scrutiny
Committee constituting District Government Pleader, Additional
Superintendent of Police and the Police Inspector of Protection of
Civil Rights. The learned APP submitted that under such
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circumstances there is no necessity to handover the investigation
to any other agency. It was also stated that when "B" Summary
Report has been filed, the Special Court would definitely issue
notice to the present petitioner and the petitioner will have the
option of filing protest petition. Therefore, when there is
alternate remedy available to the petitioner, there is no question
of invoking the constitutional powers of this Court.
5. At the outset, it will have to be observed firstly that each
case will have to be investigated by the investigating officer with
utmost sensitivity. When it is a case of heinous crime like rape
then the law as well as the Courts expect utmost sensitivity from
the police officers. No doubt the investigating officer has to carry
out the investigation in impartial manner and he is not supposed
to take side either of the petitioner or the accused but suffice it
to say that he should not succumb to any kind of pressure i.e.
political or even financial. As regards invoking of the
constitutional powers of this Court are concerned, definitely if
this Court comes to conclusion that the investigation that has
been done or is tried to be done in a particular way only and
there is element of political or financial power, then definitely the
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situation demands, to protect the personal and fundamental
rights of the victim, that this Court should interfere.
6. It appears that the struggle of the petitioner and the victim
started much prior to this Petition, rather it was immediately
after the alleged incident. The date of incident is 28 th May 2022
and when no FIR was registered though complained of and even
the Superintendent of Police appears to have not responded, the
petitioner was required to approach this Court. After the notice
was issued in respect of the said Petition, it appears that the FIR
was got registered and ultimately when FIR was registered, that
Petition appears to have been withdrawn. At that point of time
the petitioner might not be expecting that the investigation will
not be done in proper way by the investigating officer. But
unfortunately, he is required to come to this Court once again by
way of this Writ Petition. The FIR was lodged on 20 th June 2022
and thereafter, it appears that on 24 th August 2022 the petitioner
had also given complaint application to various authorities
including the Superintendent of Police, informing as to what kind
of harassment and pressure has been put on him by the
investigating officer.
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7. Entire investigation papers have been produced on record.
The affidavit-in-reply filed by respondent No.3 can be termed as
defensive affidavit and he wants to show as to how he was right
in approaching / investigating the said matter. He has
conveniently not referred to the statement of the girl under
Section 164 of the Code of Criminal Procedure and the
evidentiary value that could be attached to that statement. If we
consider the investigation papers, it can be seen that the FIR is
supported by the statement of the victim under Section 161 of
the Code of Criminal Procedure, her statement under Section
164 of the Code of Criminal Procedure as well as her medical
certificate. The medical certificate though states that no injuries
were found on her private part, yet possibility of sexual
intercourse could not be ruled out. The investigating officers
appear to have forgotten the fact that the incident had taken
place on 28th May 2022 and her examination was done at about
12.20 a.m. on 21st June 2022. There appears to be no
investigation as to where exactly the girl was taken and whether
any other person has seen the girl being taken by the accused.
The mother of the girl is also supporting the statement. Now the
story that has been developed and tried to be investigated in a
way that since February 2022 the father of the victim was not
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working with accused Ankush Jamdar. However, it is to be noted
that in the FIR as well as in the statement of other witnesses it
has come that the petitioner is residing along with his family
members in the field of accused Ankush Jamdar. Whether the
petitioner was introduced by accused Kundlik Goykar to accused
Ankush Jamdar or through anybody else, could not have been
part of investigation at this stage, but unnecessary details
appear to have been tried to be extracted by respondent No.3.
Further major part of the investigation appears to be consumed
showing that accused Ankush Jamdar was at a different place on
the alleged date. Statements of certain witnesses have been
recorded in that respect. No doubt when we have already stated
that the investigation should be impartial then the investigating
officer should also make an endeavour to see whether the
accused was present at a particular place or not, but at the same
time while brushing aside the entire theory of the petitioner, the
time, distance etc. should also be taken into consideration.
8. Now the investigating officer says that the FIR is the
outcome of instigation by an Advocate. Important point to be
noted is that the Advocate appears to have come in picture after
registration of the offence and not prior to that and therefore,
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the question of allegedly handing over the cheque signed by the
son of accused Kundlik Goykar ought to have been considered
from different angles. We have our own limitations to consider
the evidence collected and to make any kind of comment but all
these observations are to consider as to whether the
investigation that has been done up till now was proper or not
and whether there is necessity to hand it over to some other
agency. Taking into consideration the entire documents as well
as the investigation done up till now, definitely the case is made
out to hand over the investigation to another officer, as there
appears to be some political pressure on the investigating officer.
9. It appears that during the pendency of this Petition,
accused No.1 Kundlik Goykar has been released under Section
167(2) of the Code of Criminal Procedure on 22 nd September
2022 by the learned Special Judge, Shrigonda, District-
Ahmednagar. Interesting point to be noted is that "B" Summary
Report was filed by respondent No.3 with the Special Court on
29th August 2022 and on the same day order has been passed by
the learned Special Judge to issue notice to the informant and
victim. Under such circumstance, whether application under
Section 167(2) of the Code of Criminal Procedure was
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maintainable and that too for which accused could have been
kept in custody till 22 nd September 2022, is also a question.
However, we need not go into those aspects. Suffice it to say
that when this Court is of the opinion that proper investigation
appears to have not been made, then the said grievances will
have to be redressed. At the cost of repetition, it can be said
that it would be a fundamental right of a citizen to have fair and
impartial investigation in respect of his grievances by an
investigating agency, then definitely this is a case where the
constitutional powers of this Court deserve to be exercised.
Hence the following order:-
ORDER
(I) The Writ Petition stands allowed.
(II) The investigation of Crime No.434 of 2022 registered with Karjat Police Station, Karjat, District- Ahmednagar is handed over to Mr. Ajit Bhagwat Patil, Sub Divisional Police Officer, Nagar Rural Division, Nagar, District-Ahmednagar and it would be under the direct supervision of District Superintendent of Police, Ahmednagar.
(III) Till the investigation is over by the investigating officer to whom now the investigation is handed over, ::: Uploaded on - 15/10/2022 ::: Downloaded on - 15/10/2022 19:36:37 ::: crwp1177.22 13 learned Special Court, Shrigonda shall not proceed with further steps on the "B" Summary Report that has been produced before him.
(IV) Upon the investigation, the report be submitted by the investigating officer, to whom now the investigation is handed over, directly to the Special Court, and thereafter the Special Court to take further steps as provided under law.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/OCT22
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