Bombay High Court
Sheela Ramesh Kini And Anr. vs Union Of India (Uoi) And Ors. on 20 September, 1996
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT Ashok Agarwal, J.
1. Both the petitions contain similar prayers and, therefore, are being disposed of by a common order. Both petitioners claim transfer of investigation from the State Police (C.I.D.) to C.B.I. Culprits involved in the offence, it is alleged, are big guns who yield considerable clout with political high-ups. Culprits, it is feared, belong to a political party in power which runs the Government. State Police including C.I.D. functions under the State Government. It cannot and 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.
2. Justification set up to claim transfer of investigation, we are afraid, we are unable to share, the apprehension expressed, we quite understand. Present case, as is clear from our packed Court room, has generated a lot of interest. May be even a controversy.
3. It all started on 23rd of July, 1996. Ramesh Kini made a disappearance from his residential house in Laxmi Niwas, Matunga. He is said to have met his end in Alka Talkies in Pune during, the night show. Paradoxically movie being screened was "Broken Arrow". At the Sassoon Hospital he was declared dead. On his person note was found in which he had written that he was committing suicide and reasons are known to his Advocate. It transpires that Ramesh Kini, on the 23rd July, 1996 at 9.30 a.m., had handed over two letters in a closed cover to Advocate Lad. In one of them, he had stated that he was threatened and mentally tortured by his landlords Laxmichand Shah and Suman Shah, respondent Nos. 4 and 5 herein, forcing him to leave his flat. Landlords, with the help of Political high-ups were trying to usurp the flat by paying him a paltry amount. The landlords are stated to be extremely close to Raj Thackeray as also Balasaheb Thackeray, leaders of the Shiv Sena Party, which along with B.J.P. runs the State Government. They are regular visitors to the house of the landlords. According to Sheela Kini, (widow of the deceased Ramesh Kini), Ramesh had been called at Sena Bhavan several times and was regularly terrorised and mentally tortured. He was informed by the landlords, respondents Nos. 4 and 5, that the matter was to be looked into by Raj Thackeray. However, since the matter was of little significance, the same had been entrusted to Ashutosh Rane, the respondent No.6 herein. The mental torture meted out to Ramesh, according to the letter left behind by Ramesh may lead him to suicide.
4. Ramesh Kini, as per Sheela Kini, left their residential house on 23rd of July, 1996 to attend a meeting at the Samna Office. He was not seen alive thereafter. Sheela was informed of the death by her relations, the next day. Investigation into the mysterious death was intimated by the Pune Police. On the request made by Sheela, investigation was handed over to the State C.I.D. While investigation was in progress, present petitions are filed. On 17th August, 1996 this Court (Coram: A.V. Savant & D.K. Deshmukh, JJ.) passed an interim order. The same is a speaking order which considers the prayer made by petitioners to transfer investigation from State C.I.D. to C.B.I. It has taken into account the grounds set up to claim transfer of investigation from the State C.I.D. to the C.B.I. in para 7 of the order, note is taken of a contention that there is a cover-up by the Police at Pune about the Circumstances in which Ramesh was found dead in Alka Talkies. Note is also taken of a note found on the person of Ramesh. It takes note of the criticism in respect of the post mortem having been performed in undue haste and the perfunctory conclusions drawn in respect of the cause of death. Inaction on the part of the State Government to take timely action against bail orders having been obtained in favour of those suspected to be involved in the crime, is taken note of and, last and not the least, objection that those who are suspected to be guilty are close confidants of Shiv Sena leaders Raj Thackeray and Balasaheb Thackeray and hence a fear that investigation will not be carried out honestly and objectively, is also taken note of. Contentions advanced by the learned Advocate General as also the Advocates appearing on behalf of the landlords Laxmichand Shah and Suman Shah and Ashutosh Rane are considered. The law and the case law on the point cited before them has been taken into account and an order is passed continuing the investigation with the State C.I.D. with certain directions. Officers of the State C.I.D. who are entrusted with the investigation, are directed to act only under the direct supervision of the Additional General Director of Police State C.I.D. Shri R.S. Mendonca. They are made answerable firstly to Shri Mendonca and then finally to this Court and none else. Shri Mendonca is directed to report to this Court and to none else the progress of the investigation, firstly on Wednesday 21st August, 1996 and then on Wednesday 28th August, 1996. He has been directed to submit two copies of his report in sealed envelopes. It is finally directed that pending the investigation, officers entrusted with the investigation of the case, will not be transferred or relieved from their duties without first seeking permission from this Court.
5. Petitions were placed before the present Bench on the 28th of August, 1996. By that time two investigation reports had been submitted in sealed covers, as directed. These reports and the annexures thereto disclosed efforts made on the part of the investigating agency to find out the cause of death and whereabouts of Ramesh Kini during the period he left his house and the time he was found in Alka Talkies. On 28th August, 1996 we passed another order permitting additional officers to be included in the investigation team with a hope that the State C.I.D. will make further progress in the investigation. We directed the investigation to continue at the hands of the State C.I.D. under the stewardship of Shri Mendonca and directed investigation reports to be submitted to us each Wednesday till further orders. Further investigation reports have accordingly been submitted, the last of which is dated 18th September, 1996. Pending this, the petitons had been placed before us on 5th of September, 1996 when a prayer was made to take up the petitions for hearing and final disposal at an early date. At this stage, though the report dated 4th of September, 1996 had been submitted, we had not had the advantage of perusing the same till the matter was taken up on the 5th of September, 1996. As we had already, by our earlier order, directed the continuance of investigation at the hands of State C.I.D., we declined the prayer made for an early hearing and directed the State C.I.D. to continue with the investigation. A similar prayer for an early hearing was made when the petitions were placed before us on the 13th of September, 1996. By this time, we had the advantage of pursuing the report dated 4th September, 1996 and 11th of September, 1996. Having noted the contents of these reports, we called for Shri Mendonca, the Additional Director General, for a conference in our Chamber. In the meeting, we enquired as to whether he had taken steps in investigation to rule out alternate possibilities in respect of the cause and the circumstances which had lead to the death of Ramesh Kini. The aforesaid investigation reports revealed that the only line adopted for the purpose of investigation was the possibility of suicidal death. In this view of the matter, we accepted to the prayer of the petitioners and fixed the hearing of the petitions for the 20th of September, 1996. On 19th of September, 1996 Shri Mendonca informed us that investigation is practically complete and charge-sheets are soon likely to be filed.
6. At the hearing of the petition Shri Jagtiani appearing on behalf of Sheela Kini has vehemently urged before us that all that the widow of the deceased is seeking by the present petition is 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. The death of Ramesh Kini, it cannot be disputed, is shrouded in mystery. It is not known how Ramesh, who had left in the morning of 23rd of July, 1996 for attending a meeting in the Samna Office, found himself in Pune on a day when the trains had been dislocated on account of torrential rain fall and how he found himself in Alka Talkies for a late show, where he breathed his last. A note was found on his person containing a suicide message and telephone numbers of his advocate Shri Lad and his brother-in-law. Apart from this a vial containing sodium cyanide was also found on his person. In the post mortem examination, which was carried out with undue haste, the cause of death was mentioned as ischemic heart disease. Though a vial containing sodium cyanide was found on his person no opinion is recorded whether the same was or was not detected in the corpse during the post mortem. After the dead body was brought to Bombay a second post mortem was conducted. This was at the instance of Sheela. At her request, as pointed out, investigation was transferred from Pune Police to the State C.I.D. As far as the second post mortem examination is concerned, the same does not express any opinion regarding the cause of death but reserves the same pending receipt of the report from the Pathological Department and Chemical Analyser. Since there were material discrepancies in the findings of the two post mortem examinations an expert committee was constituted by an order passed on the 3rd of August, 1996 which, in turn, has given the following opinion in regard to the probable cause of death:---
(i) Alcohol intoxicaiton with unknown poisoning.
(ii) Fatal cardiac arrhythmias due to---
alcohol intoxication---
Ischemic heart disease.
It further opined that there was no evidence suggestive of physical injury leading to death.
7. Based on the aforesaid opinion, it is contended that there has been a divergent opinion in regard to the cause of death. As far as finding of alcohol is concerned, it is contended that the same is intriguing as Ramesh was a teetotaller.
8. Shri Jagtiani next pointed out the apprehension nursed by the widow-Sheela arising out of the negotiations which Ramesh had with his landlords in respect of his flat. It is pointed out that the landlords flaunted their political connections with the Thackerays. He, therefore, does not rule out the possibility of Ramesh being done to death and, thereafter, deposited in Alka Talkies. He therefore, suggested that the offence in question is not one of suicide but is an offence of murder. According to him, no efforts are made to investigate into the possible commission of the offence of murder and the C.I.D. has been content by investigating only an offence of suicide.
9. Shri Jagtiani next pointed out that investigation of a crime is merely one of the stages whereby a criminal is brought to book. The next and the more important stage is that of trial. Even at this crucial stage it is the investigating agency which will be in control of the trial. Summoning and examining witnesses, producing relevant documents etc. is all done at the instance of the investigation agency. If the investigating agency is independent and fearless more witnesses would be willing to come forward to depose fearlessly. If, however, confidence in the investigation agency is wanting, witnesses will be scared away due to fear of harm being done to them in case true disclosure is made by them. It is, therefore, imperative that investigating agency both at the stage of investigating as also at the trial should be an independent agency. It should be one which should not only be just and fair but it should also appear to be so. It should be such that it inspires the general confidence amongst the public at large. He then contended that even if no material is putforth to show positively that the State Government is misguiding the investigation agency in a particular direction, its 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. In this connection, he has made a reference to a statement made by the Honourable Chief Minister on the floor of the Assembly on the 5th of August, 1996 where, he has given a clean chit to Raj Thackeray. This, he has done, while the investigation was at a premature stage. This has adversely affected the public confidence in a fair investigation being conducted. Public confidence, in a matter of the present nature, cannot be said to be irrelevant since justice is not merely to be done but should also appear to have been done. For these reasons also, it would be in the interest of justice to hand over the investigation to the C.B.I.
10. The aforesaid contentions have been refuted by Shri Savant, the learned Advocate General, who appears for the respondent Nos. 2 and 3, Shri Gupte who appears for respondent No. 4 and Shri Manohar who appears for respondent Nos. 5 and 6. It has been strenuously urged by the learned Advocate General that after the death a case of accidental death had come to be registered. This was in the late hours of the 23rd of July, 1996. On an application being made for a second post mortem on the very next day, the prayer was immediately acceded. Similarly, a prayer made on the very same day for handing over the investigation to the C.I.D. was also acceded on the 26th of July, 1996. Several statements have been recorded including the statements of Sheela Kini. Sheela's first statement was recorded on the 27th of July, 1996. Her second statement was recorded on the 4th August, 1996. As far as the statement of the Honourable the Chief Minister on the 5th of August, 1996 is concerned, the same was necessitated on account of the public demand and an out-cry raised in both the Houses of the Legislative Assembly and Council. By then, both the statements of Sheela were available and the statement was made on the basis of the report of the State Additional Director General of Police. The statement was made on the demand of the members of the Assembly and no fault can be found. The Chief Minister was bound to make a statement on the floor of the House. If there was no material to indicate the culpability of Raj Thackeray, no fault could be found at the statement made by the Honourable Chief Minister. According to the learned Advocate General, there are no allegations of any pressure on the investigating agency, nor is there any allegation of lack of impartiality muchless lack of competence. The officers of the State Police Force are known for their competence. This State is a well administered State having able Administrators, Bureaucrats and Police Officers. Grant of prayers made in the petition would cast a slur on the State Administration and particularly the State Police Force and hence the prayers deserve to be rejected.
11. Shri Manohar, the learned Counsel appearing on behalf of respondent Nos. 5 and 6, commenced his address by conceding the jurisdiction of this Court to direct investigation at the hands of C.B.I. He, however, qualified the concession by stating "provided the case warrants such a course of action". He has pointed out that the Criminal Procedure Code particularly sections 156 to 159 provides for an investigating agency and the functions of such agency. According to him, the functions of the Magistrate and the investigating agency are complimentary and not overlapping, each has a distinct role to play and hence unless a special case is made out it would be improper or in any event inappropriate for the Court to step in and encroach upon the provisionce of the investigating agency. He has relied upon several decisions in support of his contention. He first relied upon the decision of the Supreme Court in the case of State of West Bengal and others v. Sampat Lal and other, . It is observed, as under:
".....That question has not been recanvassed before us and it has been accepted by Counsel for all the parties including the Additional Solicitor General that while section 6 of the Delhi Special Police Establishment Act, 1946 ('Act' for short) would require the consent of the State Government before jurisdiction under section 5 of that Act is exercised by officers of that establishment, when direction is given by the Court in an appropriate case, consent envisaged under section 6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion, section 6 of the Act does not apply when the Court gives a direction to the C.B.I. to conduct an investigation and Counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned single judge and, the appellate decision of the Division Bench appointing DIG, C.B.I. to inquire into the matter would not be open to attack for want of sanction under section 6 of the Act."
12. Shri Manohar has pointed out the four questions which have been posed for consideration, which appear in paragraph 13 of the judgment. Question 3 posed is, as follows:
"(3) It is open to the Court to interfere with the investigation which is still proceeding and what are the circumstances in which such interference if any, is possible, and the guidelines to be followed in such matter."
In this regard, Supreme Court has observed, thus:
"21. The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the Court into police investigation has not been approved. This question arose before a Division Bench of three Judges in an appeal carried by the same State of West Bengal in the case of State of West Bengal v. S.N. Basak, . Kapoor, J., quoted with approval the observations of the Judicial Committee in the case of "King Emperor v. Khwaja Nazir Ahmad, 1994(71) Ind. App. 203" where the Privy Council observed:"
"The functions of the judiciary and the police are complementary, not over-lapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions being when a charge is preferred before it, and not until then. It has sometimes been thought that section 561-A (now section 482) has given increased powers to the Court which it did not process before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act."
In paragraph 24 of the judgment, Supreme Court has gone on to add, as follows:
" We are concerned here only with an examination of the question whether, after being informed of Gurinder Kaur's death, the police authorities conducted themselves as law and justice required of them. "....."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 of the emergent need to get at the truth of the case. ....."
"25. The investigation in the present case is still pending as we were told at the Bar. It is quite likely that some day, and we hope and trust that there would be no further delay, the Court of competent jurisdiction would be in seisin of the matter and would be called upon to decide whether it was a case of murder or suicide. We have, therefore, thought it proper exercise of discretion not to enter into the facts and express any opinion one way or the other so as to prejudice the trial that might take place. It is sufficient to indicate that there is residuary jurisdiction left in the Court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude. The Court has to be alive to the fact that the scheme of the law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the Court. We are inclined, on the facts of the case as placed before us, to take the view that the materials placed before the Court did not justify an exception to be made to the rule indicated by this Court and the appointment of a Special Officer was not called for at this stage."
"29. It is necessary that the investigating agency must disabuse its mind of the tentative conclusion that death was suicidal. Our saying so does not mean that after a proper investigation they may not reach the same conclusion, All that we intend to point out is that conclusion should not have been the basis upon which the investigating should have proceeded. Nor had the stage come to draw that conclusion without further investigation. There are aspects which militate against the theory of suicide. Normally one would not commit suicide unless there are strong and compelling reasons for it. Thus, ordinarily there has to be a very pressing motive behind every case of suicide. Sufficient material to prima facie establish the existence of such a motive has not yet been brought on the record of investigation. Both the deceased boys were teenagers. Tirthankar has been pictured as a bright boy good at his studies and appeared to be responsive in nature took active interest in various fields of life appropriate for his age. The picture of Tirthankar as a disappointed and frustrated lover is again not supported by much evidence. The reactions of human mind have no set form and it may be that Tirthankar was an unusual boy full of sentiments and could have acted in an unusual manner. But that cannot be a conclusion drawn either on suspicion or on materials which do not readily fit into that theory. Even if the view of the investigating agency in regard to Tirthankar's motive is accepted, there does not appear to be any motive at all so far as his associate is concerned, except that as a loyal friend he was prepared to act the way Tirthankar went. For Sanjeeb to have chosen to commit suicide the material collected till now seems to be very weak. There have been rare instances where loyalty has known no limitations but there is no justifying material to credit Sanjeeb as possessing such a rare quality."
The aforesaid decision has cited, with approval, the observations of the Privy Counsel contained in the case of King Emperor v. Khwaja Nazir Ahmad .
13. The observations of the Privy Council in the case of Khwaja Nazir Ahmad have also been reiterated by the Supreme Court in several cases including the case of State of West Bengal v. S.N. Basak, .
14. Shri Manohar next relied upon the decision of the Supreme Court in the case of S.N. Sharma v. Bipin Kumar Tiwari, . After making a reference to the relevant sections of the Code of Criminal Procedure, the Supreme Court observed that the powers of the police to investigate in a cognizable offence was uncontrolled by the Magistrate and this statutory power cannot be interfered with. It is, however pertinent to note that the Supreme Court in para 7 of its Judgment has proceeded to observe, as follows:
"It appears to us that though the Code of Criminal Procedure gives the police unfettered powers to investigate all cases where they suspect that cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which if High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.
(Emphasis provided) Based on the Judgments, the power of the police to investigate, according to Shri Manohar, has been made independent of control by the Magistrate.
15. Shri Manohar next relied upon the case of State of Bihar v. J.A.C. Saldanna, , where the Supreme Court indicated a clear demarcation between the 'functions of the executive and the judiciary in the field of detection of a crime' and 'in subsequent trial and observed that the power of the police to investigate into the cognizable offence was ordinarily not to be interfered with by the judiciary. According to Shri Manohar the consistent view is that the functions of the judiciary and of the police are complimentary and not overlapping and the combination of the individual liberty with a due observance of law and order is only to be obtained by leavings each of exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case. The observations of the Privy Council have also been reiterated by the Supreme Court in case of State of West Bengal v. S.N. Basak, .
16. Placing reliance on the aforesaid decisions Shri Manohar contended that no case has been made out to transfer the investigation from the State C.I.D. to the C.B.I.
17. Shri Gupte, the learned Advocate appearing on behalf of respondent No.4 has contended that this Court would not be justified in considering the transfer on the hypothesis suggested by Shri Jagtiani that at the trial it will be the present investigating agency which will be in the control of the prosecution and the investigating agency would not conduct the prosecution effectively and fairly. According to Shri Gupte the argument presupposes that the agency will not conduct the prosecution fairly, for which there is no basis. It further overlooks the role of the trial Court during the conduct of the trial. If the trial Court finds any laxity on the part of the investigating agency in fairly producing all the material produced during the investigation it has its remedies and there is no reason to suppose that the trial Court would not ensure a fair and effective trial. While adopting the arguments advanced by Advocate General Shri Sawant and Shri Manohar, he submitted that the petitions deserve to be dismissed.
18. At this stage Shri Janardhan, who appears for the petitioner in Writ Petition No. 854 of 1996 has pointed out that the first post mortem conducted on the corpse of Ramesh Kini on the 24th of July, 1996 at 2.45 a.m. During the post mortem Regar Mortis was found present all over the body of the deceased. In view of this, he has pointed out that the death of Ramesh Kini must have occurred between 6 to 12 hours prior to conducting of the post mortem. This, points out Shri Janardhan, rules out the death having occurred in the theatre at about 10.30 p.m. as suggested. The death must have occured prior to the commencement of the movie. This, therefore, rules out the theory of accidental death or suicidal death. The possibility of his being done to death, prior to the commencement of the movie, and the possibility of the dead body being planted in the theatre, in order to divert the course of investigation, cannot be ruled out. According to him, no efforts appear to have been made to investigate into the aforesaid theory which clearly emerges from the findings recorded during the first post mortem examination. Since the investigating agency has taken no steps in this direction, the investigation is faulty. In any case, investigation carried out is suspicious and the same fails to inspire confidence. Hence this is a fit case to order a transfer of investigation, as prayed.
19. We have considered the rival contentions which have been placed for our consideration. We have also considered the various judgments rendered by the Supreme Court on the question of interference by Court in the investigation carried out by the investigating agency. In fact, the very same decisions were cited before the earlier Bench at the stage of admission. The Court declined the prayer for transfer of investigation at least at that stage and directed the investigation to be conducted by the State C.I.D. Investigation was kept under the control of the Additional Director General of Police Shri R.H. Mendonca. All the officers engaged in investigation, may they be officers in New Bombay, Thane or Pune, were directed to act only under the supervision of the Additional Director General of Police. It was further directed that for the purpose of the said investigation these officers were answerable firstly to Shri Mendonca and then finally to this Court and none else. Shri Mendonca was directed to report to this Court and to none else. He was directed to submit investigation reports on Wednesday the 21st of August, 1996 and then on Wednesday the 28th of August, 1996. It was further directed that none of the officers engaged in investigation, including Shri Mendonca, will be transferred or relieved from their duties without seeking prior written permission from this Court. Hence, it would appear that the entire investigation was kept under the ultimate control of this Court and the State Government was kept out of the picture as far as investigation is concerned. When the petitions were argued before us on the 28th of August, 1995 prayer of the petitioners to immediately transfer the investigation to C.B.I. was once again reiterated. The said prayer was declined by us and we directed Shri Mendonca to continue with the investigation. We further directed that he should continue submitting his reports in regard to the investigation on every Wednesday till further orders. Reports were accordingly submitted before us. We have perused the investigation reports from time to time. As pointed out, we have also discussed certain aspects of investigation in confidence and in chamber with Shri Mendonca. We have, thus, observed the progress of investigation. We, now, find that the investigation, as far as the State C.I.D. is concerned, is practically complete and a stage, is said to have reached, of filling charge-sheets.
20. 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 emerge in the investigation have still remained unanswered. They are:---
(i) exact cause of death;
(ii) movements of Ramesh Kini between 8.00 a.m. on 23rd July, 1996 when he left to attend a meeting in the office of Samna - after he met Advocate Shri Lad at 9.30 a.m. - and 10.30 p.m. on the same evening when he was found in Alka theatre in Pune.
(iii) Possibility of death otherwise than by suicide.
21. We find that the present investigating agency has proceeded to investigate the case only on one hypothesis namely 'suicidal death'. No steps are taken to find out whether this is a case of murder. If, as has been pointed out by Shri Janardhan, Regar Mortis was found all over the dead body at 2.45 a.m. when the post mortem was conducted, the possibility of death having occurred 6 to 12 hours prior thereto i.e. prior to the commencement of the picture, cannot altogether be ruled out. In the circumstances, it would have been appropriate for the investigating agency to investigate into this possibility also. We, therefore, cannot resist holding that all that was required to be done still remains undone.
22. We also cannot overlook the fact that persons who are allegedly involved are prominent personalities having a clout with leaders of the Shiv Sena Party, a party in power, ruling this State. Allegations are levelled against one Raj Thackeray, nephew of Shri Balasaheb Thackeray who heads the Shiv Sena Party. Allegations are made in respect of possibility of murder having been committed. In the backdrop of these facts, we cannot overlook the fact that though the State C.I.D. has been kept out of control and influence of the State machinery as far as the present investigation is concerned, the same is under the State machinery for all other purposes. As far as the statement, which was made by the Honourable the Chief Minister on the floor of the house on the 5th of August, 1996 is concerned, we find that the same was necessitated on account of the public demand. Affidavit in reply of Shri A.D. Karkhanis, Deputy Secretary to the Government of Maharashtra, Home Department, points out that for almost a week proceedings of both the Houses were paralysed vehemently voicing grievances in relation to the death of Shri Kini. In the circumstances, we find that the Chief Minister was justified in making a statement on the floor of the House in response to the demand made. The statement made by the Chief Minister, as disclosed in the affidavit, is as under:
(i) According to the statements of Smt. Kini, and Sandeep Vaidya and available evidence, it is clear that deceased Shri Kini never met Shri Raj Thackeray. Similarly, Shri Raj Thackeray never participated in negotiations about sale of flat. However, the landlord and his son were misusing the name of Shri Raj Thackeray to bring pressure on deceased Shri Kini for this purpose. This will make it clear that Raj Thackeray had no connection with this case.
(ii) There is circumstantial evidence that Shri Rane pressurised deceased Shri Kini in this case.
(iii) There is no evidence that deceased Shri Kini visited Samna Office or Sena Bhavan on 23-7-1996.
(iv) Even after investigations it is not clear as to how Shri Kini went to Pune on 23-7-1996. However, there is evidence that deceased Shri Kini used to visit Pune in search of alternate accommodation for last two years. Further investigation on this aspect is in progress.
Though the Chief Minister, as pointed, was justified in making a statement, we cannot resist observing that he was not justified, on the material available at that stage, to give positive findings to the effect that Shri Raj Thackeray has no connection with this case. This is particularly so, in view of his further observation that further investigation was in progress. The proceedings on the floor of the House shows that the present case had generated a considerable interest and controversy on the floor of the Assembly. The present case, it is to be noted, has generated the 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. In a democratic set up when genuine doubt are expressed regarding the involvement of the 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 the C.B.I.
23. We are conscious about the limitation of the Court to direct an investigation by the C.B.I. We, however, find that there is no blanket bar to the exercise of the power to transfer investigation. We find that the Supreme Court, in the case of "Sampat Lal" (supra), has taken into account the observations made by it in an earlier case of Bhagwant Singh v. Commr. of Police, Delhi, , where it has observed as under:---
"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 of the emergent need to get at the truth of the case."
It, therefore, follows that in case Court finds that the investigation conducted by the State C.I.D. is lackadaisical and desultory the Court would be justified in directing transfer of investigation.
24. In the case of Ram Saroop Rai v. Smt. Lilavati, , the Supreme Court, in paragraph 64 of its Judgment, has observed, as under:---
"... ... In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. ... ..."
25. In the circumstances, we hold that though the powers of Court to interfere pending an investigation are limited, there is no absolute bar and the Court in appropriate cases particularly in exercise of writ jurisdiction under Article 226 of the Constitution of India, has the authority. In fact, in appropriate cases, it would be the duty of the Court, in order to ensure that there is no failure of justice. Having regard to the lacunae in the investigation, which we have noted above, 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 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. 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. 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 the State C.I.D. to the C.B.I.
26. In the result, petitions succeed and rule is made absolute in terms of prayer Clause (a) of both the petitions.
27. 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. C.B.I. is directed to take charge of investigation forthwith and conducts the investigation expeditiously.
28. Shri Mendonca is directed to maintain the investigation papers under seal and secrecy and will not make the same available to anybody except the C.B.I.
29. On application made by the learned Advocate General Shri Savant, our order, in so far as it directs handing over the investigation to the C.B.I., is stayed up to 14th of October, 1996.
30. Expedite the issue of certified copy.