Poonam Jaidev Shroff vs The State Of Maharashtra And Anr on 13 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 4211 OF 2016

Poonam Jaidev Shroff ]
Age : 48 year, Occ : Housewife, ]
Residing at 82, Pali Hill, Bandra (West), ]
Mumbai 400 050 ]
Presently at 38, Pali Hill, Bandra (West), ]
Mumbai 400 050 ] ..Petitioner.
Versus
1. The State of Maharashtra ]
]
2. The Senior Inspector of Police, ]
Khar Police Station, Khar, Mumbai. ]
]
3. Umar Bahadur Ramfer Singh ]
@ Mr. Kunwar Singh, ]
Adult : Age 52 years, Occupation : Driver, ]
Indian Inhabitant having address at ]
Room No. 102, Siddharth Apartment, ]
Chandansa Road, Virar (East), Palghar. ]
]
4. Jaidev Rajnikant Shroff ]
British citizen, Age 51 years ]
Occupation : Business, ]
Resident of Dubai, ]
having his address in Mumbai at 82, Pali ]
Hill, Bandra (West), Mumbai 400 050 ]
]
5. Kishore Chandiramani, ]
Adult : Age Not known, Indian Inhabitant ]
A Director of United Phosphorous ]
Limited having office at Uniphos House, ]
11th Road, Madhu Park, Khar (West), ]
Mumbai 400 052. ]
] Respondents.

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Mr. Amit Desai, Senior Advocate with Mr. Pranav Badheka, Jainish
Jain and Prashant Pawar i/b LJ Law for the Petitioner.
Mr. S. K. Shinde, PP with Ms. S. D. Shinde, APP for the State.
Mr. A. A. Kumbhakoni, Senior Advocate with Mr. Ravi Mishra for
Respondent No. 3.
Mr. Abad Ponda, Mr. Waseem Pangarkar i/b MZM Legal for
Respondent No. 4.
Mr. A. P. Mundargi, Senior Advocate with Mr. Parvez Memon for
Respondent No. 5.

Coram : Ranjit More
Dr. Shalini Phansalkar-Joshi, JJ.

Judgment reserved on : March 20, 2017.

Judgment pronounced on : April 13, 2017.

JUDGMENT [ Per Ranjit More, J. ] :

1. The petition is filed for following reliefs :

(b) that this Hon’ble Court be please to
issue a writ of mandamus or a writ in the nature of
mandamus directing Khar Police Station to
forthwith implement the order and directions dated
2nd September 2016 issued by the the State
Government through the Addl. Chief Secretary
(Home) (Exhibit- D hereto) and transfer the said
cases viz (I) FIR No. 169 of 2016 registered on 4 th
April 2016 at the instance of Jaidev, (ii) the
complaint dated 10th June 2016 filed by / MECR no 8
of 2016 registered at the instance of Kishore
Chandiramani and (iii) the NC. No. 1836 of 2016
registered on 11th July 2016 at the instance of
Kunwar Singh, all with Khar Police Station, Mumbai
to Crime Branch, Unit IX, Mumbai;

(c) by an order and / or direction of this
Hon’ble Court, the investigation of the said cases
viz. (I) FIR No. 169 of 2016 registered on 4 th April
2016 at the instance of Jaidev, (ii) the complaint
dated 10th June 2016 filed by / MECR no 8 of 2016
registered at the instance of Kishore Chandiramani

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and (iii) the NC. No. 1836 of 2016 registered on 11 th
July 2016 at the instance of Kunwar Singh, all with
Khar Police Station, Mumbai be transferred to the
Crime Branch, Unit-IX and/or any other
independent investigating agency as this Hon’ble
Court may deem fit and proper.

(c-i) That this Hon’ble Court be pleased to
quash and set aside the letter dated 29 th November
2016 issued by the Addl. Chief Secretary (Home)
(being Exhibit- L hereto);

(c-ii) Be pleased that the inquiry /
investigation in the FIR No. 169 of 2016 by the Khar
Police Station, Mumbai and the charge-sheet
purportedly lodged on 2.12.2016 before the In-
charge Additional Chief Metropolitan Magistrate’s
32nd Court at Bandra, Mumbai is malafide, illegal,
biased, false and bad in law and direct a fresh
investigation by an independent agency viz. CBI or
State CID or Crime Branch;

(c-iii) That this Hon’ble Court be pleased to
direct that further investigation in the said three
cases viz (I) FIR No. 169 of 2016 registered on 4 th
April 2016 at the instance of Jaidev, (ii) the
complaint dated 10th June 2016 filed by / MECR no 8
of 2016 registered at the instance of Kishore
Chandiramani and (iii) the NC. No. 1836 of 2016
registered on 11th July 2016 at the instance of
Kunwar Singh, all with Khar Police Station, Mumbai
be stayed;

(c-iv) Be pleased to quash and set aside the
Non-bailable warrant issued against the Petitioner
by the Ld. ACMM, 9th Court, Bandra, Mumbai on 15th
December 2016 in CC No. 2248/PW/2016.”

2. The facts giving rise to the present writ petition, in

short, are as under :

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. Respondent No. 4 then a divorcee and the Petitioner

then a spinster got married on 27th January 2005 in accordance

with the provisions of Hindu Marriage Act, 1955. Respondent No.

4 had two children from the first marriage and from the present

wedlock, the Petitioner and Respondent No. 4 have one daughter.

It is the case of the Petitioner that after the solemnisation of their

marriage, Respondent No. 4 started insulting the Petitioner and

treated her with cruelty with regard to which the Petitioner has

filed separate complaint. In October 2015, Respondent No.4 filed

divorce petition under the provisions of Hindu Marriage Act,

1955. It is the case of the Petitioner that in order to mount

pressure upon her to succumb to demand for consenting to

divorce, Respondent No. 4 himself and through others have filed

following complaints against her on the basis of false and

frivolous allegations.

[1] At the instance of Respondent No. 4 FIR bearing

CR. No. 169 of 2016 was registered by Khar Police

Station against the Petitioner and one another for

alleged offence punishable under sections 328, 504, 323

read with 34 of the Indian Penal Code, 1860.

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[2] MECR No. 8 of 2016 is registered against the

Petitioner for the offence punishable under sections

406 and 420 of the Indian Penal Code, 1860 in pursuant

of the order under section 156(3) of the Code of

Criminal Procedure, 1973 made by Additional Chief

Metropolitan Magistrate, 9th Court, Bandra at the

instance of Kishor Chidiramani.

[3] At the instance of Umer Bahadur

Rampersingh, non cognizable complaint bearing No.

1836 of 2016 is registered against the Petitioner on 22 nd

June 2016.

. It is the case of the Petitioner that investigation into

these cases is being carried out by Khar Police Station in

malafide, partial and biased manner to help Respondent No. 4.

She accordingly made complaints initially to the Commissioner of

Police, Mumbai on 8th August 2016 and thereafter to the Chief

Minister on 12th August 2016, requesting to transfer investigation

of the said FIR / MECR from Khar Police Station to any other

independent agency. The State Government through the

Additional Chief Secretary, Home on 2 nd September 2016 issued

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an order and direction, transferring the investigation into the said

cases filed by Respondent No.4 to Crime Branch, Unit-IX. It was

further directed that further complaints of the Petitioner be taken

by Colaba Police Station. Despite this order of the Additional

Chief Secretary, Home, the Petitioner contends that, investigation

of the said cases are continued by Khar Police Station.

Allegations are made against the Joint Commissioner of Police

that despite several representations, nothing was done and the

Petitioner was made to run from pillar to post. The Petitioner

constrained to approach this Court by way of aforesaid writ

petition for the reliefs stated hereinabove when she received

letter from Khar Police Station that charge-sheet into CR No.169

of 2016 would be submitted before the concerned Magistrate on

3rd December 2016. At the time of first hearing of the writ

petition, learned PP for the State placed on record direction /

order dated 29th November 2016 whereunder Khar Police Station

was directed to continue with the investigation of the said cases.

The statement was also made that charge-sheet in CR No. 169 of

2016 is filed on 2nd December 2016. The Petitioner accordingly

amended the writ petition and challenged those directions also.

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3. Mr. Desai, the learned Senior Counsel appearing for

the Petitioner took us through the aforesaid cases and submitted

that investigation by Khar Police Station was being conducted in

malafide, partial and biased manner. He submitted that despite

the orders from the State Government transferring those cases to

Crime Branch Unit-IX, Khar Police Station continued with the

investigation and submitted charge-sheet in CR No. 169 of 2016.

He submitted that the Petitioner submitted various

representations and emails to various officers to implement the

order dated 2nd September 2016, however, nothing was done and

at the instance of the Joint Commissioner of Police, the Additional

Chief Secretary, Home by fresh order directed Khar Police Station

to continue with the investigation into the said cases. Mr. Desai

submitted that there are no reasons recorded in the order dated

29th November 2016 as to why Khar Police Station was directed to

continue with the investigation. Mr. Desai further submitted that

order dated 29th November 2016 made by the Additional Chief

Secretary was received by Khar Police Station on 2 nd December

2016 and on the very same day charge-sheet is filed in CR. No.

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169 of 2016.

. Mr. Desai further submitted that haste in which

investigation was completed and charge-sheet was filed reveals

malafide on the part of Khar Police Station and Respondent No. 4.

He also submitted that registration of cases is the result of

matrimonial disputes between the Petitioner and Respondent No.

4 and in such cases investigating agency must be slow in

registering the offence, they are required to undertake

preliminary enquiry and then and then only justified in

registering the offence. Relying upon the Apex Court decision in

Lalita Kumari v. Govt. of UP. [(2014) 2 SCC 1] , he submitted that

Khar Police Station was very anxious to help Respondent No. 4.

. Mr. Desai, the learned Senior Counsel appearing for

the Petitioner relying upon the decision of the Apex Court in

Vinay Tyagi s. Irshad Ali [(2013) 5 SCC 762] , submitted that

investigation can be transferred even at the instance of accused

and the State Government was perfectly justified in the light of

the Petitioner’s allegations against Khar Police Station about

malafide and partial investigation, to transfer the investigation to

Crime Branch Unit-IX. He specifically stated that though in the

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writ petition the Petitioner has made serious allegations against

Khar Police Station, Joint Commissioner of Police and Respondent

No. 4 about the manner in which investigation of the said cases is

conducted, no rebuttal affidavit is filed by the State Government.

He submitted that investigation since inception being malafide,

charge-sheet filed in CR. No. 169 of 2016 is required to be set

aside and investigation of all cases should be given to Crime

READ  Thawaria vs The State Of Madhya Pradesh on 28 April, 2017

Branch Unit – IX. In this regard, he relied upon the decision of

the Apex Court in Gurubax Singh v. State of Punjab [2016 SCC

OnLine SC 457] decision of the Division Bench of this Court in

Balasaheb Bhagat v. State of Maharashtra [2014 SCC OnLine Bom

1167] and decision of the Apex Court in Gyan Chand v. State of

Haryana [1970(3) SCC 270].

4. Mr. Ponda, the learned Counsel appearing for the

Respondent No. 4 vehemently opposed the petition. At the

outset, he submitted that prayers made in the petition are not at

all maintainable inasmuch as charge-sheet in CR No. 169 of 2016

is already filed and by judicial order cognizance is taken and

process is also issued. He submitted that alleged illegality or

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irregularity in the investigation will not affect the power of

learned Magistrate to take cognizance unless the Petitioner is

shown to have caused prejudice. Mr. Ponda does not challenge

the power of the High Court to transfer investigation even at the

instance of accused. He, however, submitted that the State

Government is not empowered to transfer investigation at the

instance of accused. In this regard, he relied upon the decision of

Division Bench of this Court (Aurangabad Bench) in Writ Petition

no.481 of 2010, decided on 6th September 2010 and the decision

of Allahabad High Court in Azaz Ahmad v. State of UP. [2014 SCC

OnLine ALL 4188]. Mr. Ponda further submitted that the

Petitioner wrongly assumed that by the order dated 2 nd

September 2016, the Additional Chief Secretary, Home had

transferred the investigation of the subject cases to Crime Branch

Unit-IX. As a matter of fact, he submitted, under the said orders

Commissioner of Police Mumbai / Joint Commissioner of Police

was expected to pass further orders, which never came to be

passed and therefore Khar Police Station was not at fault in

continuing with the investigation of the said cases. Regarding

objection of the Petitioner that the speed at which the FIR No.

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169 of 2016 was registered and charge-sheet therein was filed,

Mr. Ponda submitted that only after holding preliminary enquiry,

this FIR came to be registered and after completion of

investigation charge-sheet was filed. Mr. Ponda specifically

denied the allegation of the Petitioner regarding partial and

biased investigation at the hands of Khar Police Station. He lastly

submitted that petition is devoid of any substance and same

deserves to be dismissed.

5. Mr. Mundargi, the learned Senior Counsel appearing

for the Respondent No. 5 submitted that initially Respondent No.

5 filed report / complaint with Khar Police Station, however,

cognizance thereof was not taken. Therefore, Respondent No. 5

was constrained to file the proceedings under section 156 of the

Code of Criminal Procedure, 1973 before learned Magistrate and

only after passing of the orders under section 156(3), MECR No. 8

of 2016 is registered. He pointed out that the Petitioner in this

MECR has not even moved for anticipatory bail application. He

submitted that no allegations are made against Respondent No. 5

and therefore there are no reasons to transfer the investigation

of this MECR.

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6. Mr. Kumbhakoni, the learned Senior Counsel

appearing for the Respondent No. 3 also opposed the petition. He

adopted the arguments advanced by Mr. Ponda. He submitted

that in the light of decision of Division Bench of this Court in Writ

Petition No. 481 of 2010 (supra) and the decision of Allahabad

High Court in Azaz Ahmad (supra), the State Government could

not have issued directions to transfer the investigation.

7. Mr. Shinde, the learned PP placed on record for our

perusal along with the report dated 16th December 2016 made by

the Senior Inspector of Police, Khar Police Station, the internal

correspondence between Khar Police Station and Dy.

Commissioner of Police, Zone-IX. He submitted that though

orders were passed by the Additional Chief Secretary on 2 nd

September 2016, no further orders were passed by the

Commissioner of Police or Joint Commissioner of Police. The

Senior Inspector of Police, Khar Police Station thereafter filed

representation / office submission calling for the guidance from

the higher authorities regarding transfer of investigation of

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subject cases. However this representation was dismissed and

letter was issued. He submitted that Khar Police Station was

justified in continuing with the investigation of CR. No. 169 of

2016 and in view of the subsequent letter dated 29 th November

2016, Khar Police Station has filed charge-sheet in the said CR.

He lastly submitted that no fault can be found with the conduct of

Khar Police Station and therefore writ petition deserves to be

dismissed and may be dismissed.

8. Having gone through writ petition, annexures thereto

and reply given by Respondent No. 4 and having considered the

rival submissions of respective advocates, we do not find any

merit in the Petitioner's allegation about malafide, partial and

biased investigation by Khar Police Station.

. On 4th April 2016, FIR bearing CR. No. 169 of 2016 was

registered by Khar Police Station in respect of the incident dated

25th March 2016. Respondent No. 4 initially on 28 th March 2016

filed report under section 154(1) of the Code in respect of the

said incident alleging that the Petitioner made him to drink

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orange juice and after drinking juice, he felt drowsy and

immediately slept into deep slumber. So far as MECR No. 8 of

2016 is concerned, Respondent No.5 initially approached Khar

Police Station, however police did not register the offence.

Therefore, Respondent No. 5 was constrained to approach the

Additional Chief Metropolitan Magistrate, 9th Court, Bandra by

way of private complaint and ultimately in pursuant of the orders

made by learned Magistrate under section 156(3) of the Code,

said MECR is registered. At the instance of Respondent No.3 Khar

Police Station registered N.C. Case No. 1836 of 2016 in respect of

incident dated 10th July 2016 under which it is alleged that the

Petitioner assaulted Respondent No. 3.

9. The Petitioner alleged partial, biased and malafide

investigation by Khar Police Station and approached the

Commissioner of Police, Mumbai as well as the Chief Minister,

Government of Maharashtra by written complaints to transfer

investigation of the said cases from Khar Police Station to any

other independent agency. The Additional Chief Secretary passed

order / direction dated 2nd September 2016. This order is

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addressed to the Police Commissioner, Mumbai and copy of the

same is marked to the Joint Commissioner of Police, Crime

Branch, Mumbai, the Dy. Commissioner of Police, Zone-I,

Mumbai and the Senior Inspector of police, Colaba Police Station,

Mumbai. By this order / direction, the Commissioner of Police,

Mumbai was directed to withdraw the investigation of the subject

cases from Khar Police Station and transfer the same to any other

Police Station within the jurisdiction of Mumbai police

commissionerate or Crime Branch Unit-IX. It is further directed

that since the office of the Petitioner is located at Colaba, in case

the Petitioner needs to file any more FIR, the same can be

registered in Colaba Police Station.

. Two things are clear from this order dated 2nd

September 2016 made by the Additional Chief Secretary. Firstly,

it was addressed to the Commissioner of Police, Mumbai and

copies of the same were given to the Joint Commissioner of

Police, Crime, the Deputy Commissioner of Police, Zone-I and the

Senior Inspector of Police, Colaba Police Station and secondly,

the Commissioner of Police was directed to withdraw the

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investigation of the subject cases from Khar Police Station and

transfer the same to any other Police Station within his

jurisdiction or Crime Branch Unit-IX. In pursuance of this order,

Commissioner of Police was expected to pass further orders

regarding transfer of subject cases either to any other Police

Station or Crime Branch, unit No.IX. Admittedly, Commissioner

of Police, Mumbai has not passed further orders regarding

transfer of investigation of the subject cases nor any directions

are issued in this regard by the Commissioner of Police to Khar

Police Station. In the absence of further orders by Commissioner

of Police or direction in this regard, Khar Police Station, in our

considered view, was justified in continuing with the investigation

of the subject cases. As a matter of law, Khar Police Station was

under statutory duty to investigate those cases. They were not

expected to stop investigation in the absence of order / direction

to them by any Competent Authority. In our opinion, it is the

Petitioner's misconception that by the order dated 2 nd September

2016, investigation of the subject cases were transferred to Crime

Branch Unit-IX. Mr. Desai, the learned Senior Counsel for the

Petitioner in this regard relied upon several emails written to the

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Joint Commissioner of Police and others making grievance that

Khar Police Station is continuing with the investigation of the

subject cases. However, in our view in the above stated facts, no

malafide can be alleged against Khar Police Station. In so far as

the allegations against the Joint Commissioner of Police are

concerned, the Petitioner has not impleaded him as party

Respondent. We, therefore, without giving an opportunity to the

Joint Commissioner cannot entertain these allegations.

10. Mr. Shinde, the learned PP has placed on record

copies of internal office submissions / correspondence between

Khar Police Station and their superiors. We have perused the

same. On 6th October 2016, the Senior Inspector of Police of Khar

Police Station made a submission and forwarded the same to his

superior. In this submission, Senior Inspector of Police of Khar

Police Station made reference to the order dated 2 nd September

2016 made by the Additional Chief Secretary, Home. It was

stated that under this order directions are given to Police

Commissioner to transfer the investigation of the subject cases to

any other Police Station or Crime branch, Unit-IX. The Senior

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Inspector of Police, Khar Police Station solicited from his

superiors the appropriate orders. On 7th October 2016, Assistant

Commissioner of Police, Bandra Division made endorsement on

this submission that appropriate orders may be passed. On the

very same day, file was placed before the Dy. Commissioner of

Police, who made endorsement that appropriate orders may be

passed by the superior officers. File was then placed before the

Joint Commissioner of Police on 16 th November 2016 however he

dismissed the submission and directed to issue letter in this

regard.

11. On 10th November 2016, Joint Commissioner of Police

wrote a letter to the Additional Chief Secretary, Home. For ready

reference the letter is reproduced.

"To,
Additional Chief Secretary (Home),
Government of Maharashtra,
Mumbai.

Sub :- Transfer of cases registered against
Smt. Poonam Shroff.

Ref :- No. MIS 2016/F.No.271/Pol-aa, Home Department,
Mantralaya, Mumbai 32. dated 02/09/2016.

Sir,
Apropos the subject and reference mentioned above, it is
submitted that the offence vide M.E.C.R. No. 8 of 2016 u/sec.

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406, 420 IPC of Khar Police Station has been registered against
Smt. Poonam Shroff as per the order issued u/sec. 156(3) of
Cr.P.C. by Metropolitan Magistrate, 9th Court, Bandra, Mumbai.
Hence, investigation of the same cannot be transferred to any
other Police Station without permission of the Court. Moreover,
investigation in the case is almost complete.

Another case against Smt. Shorff registered vide C.R.No.
169/2016 U/Sec 328, 323, 506, 34 IPC of Khar Police Station is
also in the final stage of investigation.

The third case registered against Smt. Shroff is a Non-
cognizable offence vide N.C. No. 1836/2016 of Khar Police
Station. Being a non-cognizable case, the Police Station has
moved to the Court seeking permission to conduct investigation
in it.

In light of the circumstances mentioned above, it is
requested that investigation in all the three cases registered
against Smt. Poonam Shroff be retained with Khar Police Station
Mumbai.

Submitted for kind information and necessary orders."

. The letter shows that request was made by the Joint

Commissioner of Police to the Additional Chief Secretary, Home

to let Khar Police Station to continue with the investigation of the

subject cases.

12. In response to this letter, the Additional Chief

Secretary Home passed fresh orders / directions dated 29 th

November 2016. By this letter, Additional Chief Secretary

directed investigation of the subject cases be retained with Khar

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Police Station. For ready reference, English translation of the

letter dated 29th November 2016 is reproduced hereinbelow :

"To,
the Commissioner of Police,
Mumbai.

Sub : FIR No. 169/16 recorded at Khar Police Station in the
matter Smt. Poonam Shroff, Complainant Mr. Kishor
Chandaramani and transferring the investigation of MC and
MCR No. 7 of 2016 to other Police Station in the police
Commissioner Jurisdiction filed by Mr. Kuvar Singh.

Mr. Kishor Chandaramani of United Phosphorous
Limited has filed a complaint on 10/6/2016 for criminal breach
of trust against Smt. Shroff. Further, Mr. Kuvar Singh Driver
has filed NC No. 18637/2016 on 11/7/2016 for alleged assault
and abuse against Smt. Poonam Shroff. In this matter
directions were given to Police Commissioner Mumbai for
transferring the said complaint and FIR to other Police Station
or Mumbai police Crime Branch Unit No.9 on 2/9/2016 vide
Government letter.

However, joint police Commissioner (LO) by his letter
dated 10/11/2016 expressed his views that investigation of
CR. No. 169 of 2016 under section 328, 323, 506, 34 IPC
registered against Smt. Shroff is at final stage of investigation.
Investigation of MECR of 7/2016 is nearly completed. In
addition to this in this matter as per orders of the Court FIR is
recorded hence without the prior permission of the Hon'ble
Court it will not be appropriate to transfer the case to other
police statin or other unit. Further it is informed that
permission of the Hon'ble Court is being obtained for
transferring the investigation of non-cognizable crime No.
1836/2016 filed against Smt. Shroff and have requested for
further directions.

By taking into account the present circumstances
explained by Joint Commissioner of Police (LO), the
investigation of the said matter be retained with Khar police
station."

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13. Thus, it is clear that by the initial order dated 2nd

September 2016, the Additional Chief Secretary directed the

Commissioner of Police to withdraw the investigation of the

subject cases from Khar Police Station and transfer the same to

any other Police Station or Crime Branch Unit-9. However,

admittedly, Commissioner of Police Mumbai has not passed any

further directions. The Senior Inspector of Police of Khar Police

Station from time and again made request to the higher

authorities seeking guidance. But he did not receive any

guidance. Khar Police Station was duty bound to continue with

the investigation of the subject cases. At the latter stage, for the

reasons stated in the letter dated 10th November 2016, the Joint

Commissioner of Police requested the Additional Chief Secretary,

Home to continue the investigation of the subject cases with Khar

Police Station and at the request of Joint Commissioner of Police,

Additional Chief Secretary, continued the investigation of the

subject cases with Khar Police Station. In effect, Additional Chief

Secretary, Home has withdrawn his earlier order dated 2nd

September 2016.

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14. Mr. Desai, the learned Senior Counsel for the

Petitioner challenged the order dated 29th November 2016 made

by the Additional Chief Secretary (Home) on the ground that

order is not supported by any reasons. We do not find any merit

in this contention. Perusal of the order dated 29 th November

2016 makes it abundantly clear that the Additional Chief

Secretary was pleased to continue the investigation of the subject

cases with Khar Police Station for the reasons stated therein,

namely, investigation into CR. No. 169 of 2016 registered against

the Petitioner is at final stage; investigation of MECR No. 8 of

2016 is nearly completed. In addition to this, MECR is registered

as per the orders of the Court and without prior permission of

the learned Magistrate it would not be appropriate to transfer the

investigation of MECR to any other Police Station.

15. Mr. Ponda, the learned Counsel for the Respondent

No.4 challenged the authority of the Government to transfer

investigation of the subject cases at the instance of the Petitioner

who is accused in those cases. Mr. Desai relying upon the

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decision of the Apex Court in Tyagi's case contended that

investigation can be transferred even at the instance of accused.

Mr. Ponda does not dispute the proposition of law laid down by

the Apex Court in Tyagi's case. He states that High Court in

exercise of jurisdiction under Article 226 of the Constitution of

India, can direct transfer of investigation of crime, however, the

State Government has no power to transfer the investigation at

the instance of accused. He relied upon the decision of this Court

in Writ Petition 481 of 2010 (supra) and decision of Allahabad

High Court in Azaz Ahmad (supra). The question which fell for

consideration before the Division Bench of this Court in Criminal

Writ Petition No. 481 of 2010 was whether the Superintendent of

Police was authorised in law to transfer the investigation from

one the Investigating Officer and entrust it to another

Investigating Officer at the behest of the accused. The Division

Bench relied upon the decision of the Apex Court in CBI v. Rajesh

Gandhi [1997 AIR (SC) 93] and observed that learned PP was

unable to point out any provision of law under which the

Superintendent of police was entrusted with powers to do so.

The Division Bench then held that assuming for the sake of

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argument that the superintendent of police did have the powers

to transfer the investigation from one Investigating Officer to

another, the sole question remains is whether it could be done so

at the behest of the accused. An accused certainly cannot pick

and choose an investigating officer of his choice nor can he claim

that the Investigating Officer who is entrusted with the

investigation is biased.

. The Division Bench of Allahabad high Court in Azaz

Ahmad (supra) held that transfer of investigation at the behest of

accused person is indirect violation of the ratio laid down by the

Apex Court in CBI v. Rajesh Gandhi (supra). The ratio of the

decisions of this Court and Allahabad High Court is squarely

applicable to the facts and circumstances of the present case. We

are of the opinion that in the light of said ratio, the Additional

Chief Secretary could not have transferred the investigation of

the subject cases at the instance of the Petitioner who is accused

in the said cases. In any case, this issue does not require further

deliberation as the initial order dated 2nd September 2016

transferring the investigation of the subject cases was

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subsequently withdrawn by another order dated 29 th November

2016.

16. This takes us to deal with the submission of Mr. Desai

regarding haste in which CR No. 169 of 2016 was registered and

charge-sheet is filed. Mr. Desai submitted that dispute between

the parties essentially being matrimonial dispute, FIR ought not

to have been registered and according to him charge-sheet is

filed expeditiously. We do not find any substance in the

submission of Mr. Desai. As stated above, FIR No. 169 of 2016 is

registered on 4th April 2016 in respect of the incident dated 25 th

March 2016. In respect of this incident, Respondent No. 4 had

already given report to Khar Police Station under section 154(1)

on 28th March 2016. Khar Police Station did not register the

offence immediately on 28th March 2016 however they waited till

4th April 2016. In the meanwhile for the period of 7 days, it

appears that Khar Police Station made preliminary eqniry and

after finding substance in the allegation of Respondent No.4

registered the offence. Khar Police Station, in our opinion,

therefore followed the guidelines issued by the Apex Court in

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LalitaKumari. As stated above though initial order of the

Additional Chief Secretary transferring the investigation of the

same CR was passed on 2nd September 2016 however further

orders were not issued by the Commissioner of Police, Mumbai.

In fact it was statutory duty of Khar Police Station to continue

with the investigation of the subject cases. In this regard, Khar

Police Station also made efforts to obtain appropriate response

from the higher authorities, but could not get and therefore they

had completed investigation and charge-sheet was filed on 2 nd

December 2016. Thus, Khar Police Station took nearly about 8

months to investigate the said CR. By no stretch of imagination it

could be said that Khar Police Station filed the charge-sheet in

haste. AT this stage, it is also required to be noted that

Respondent No. 5 initially tried to file report under section 154(1)

of the Code, however Khar Police Station did not register the

offence. Ultimately, he was constrained to approach learned

Magistrate and obtain orders under section 156(3) of the Code.

Only thereafter, Khar Police Station registered MECR No. 8 of

2016. Had Khar Police Station been partial to Respondent No. 4,

and biased against the Petitioner they would have registered the

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FIR immediately at the instance of Respondent No. 5 and 4. That

apart though in this MECR the Petitioner had not applied for

anticipatory bail, Khar Police Station have not arrested her. We

therefore do not find any merit in the Petitioner's allegation that

investigation carried out by Khar Police Station was biased, partial

or malafide. It is also required to be noted that learned

Magistrate has taken cognizance of the charge in CR No. 169 of

2016 and process is also issued. The Petitioners have not

challenged these orders. In any case irregularity in investigation

would not affect the power of the learned Magistrate to take

cognizance unless it is shown to have caused prejudice to the

Petitioner.

17. Reference must also be made to the decisions relied

upon by Mr. Desai, namely, the Apex Court decisions in Gurbax

Singh (supra) and Gyan Chand (supra) and decision of this Court

in Balasaheb (supra), to contend that in the absence of rebuttal

affidavit by the State, allegations made in the writ petition against

Khar Police Station, the Commissioner of Police and the Joint

Commissioner of Police deserve to be accepted. The submission

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of Mr. Desai in this regard, in our considered opinion does not

hold water in the facts and circumstances of the present case. It

is true that State has not filed rebuttal affidavit. However,

learned APP has placed on record for our perusal the report

dated 16th December 2016 and file containing internal

correspondence / office submissions between Khar Police Station

and their superiors. Having perused the internal correspondence,

we have already found that Khar Police Station did their best to

get guidance from the superiors, but they did not receive

guidance and in the absence of such guidance they were justified

in continuing with the investigation of the subject cases. That

apart, we also found that as a matter of fact there are no

directions to Khar Police Station to transfer investigation of the

subject cases. Directions were issued by the Additional Chief

Secretary, Home to the Commissioner of Police and the

Commissioner of Police was expected to act further, however he

did not issue further orders and in the meanwhile, Additional

Chief Secretary, Home withdrew his earlier order. It is true that

in this regard the Petitioner has also made allegations against the

Commissioner of Police and the Joint Commissioner of Police,

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however, they were not impleaded as party Respondents in this

writ petition. In their absence, we cannot go into those

allegations.

18. Before parting with the matter, we must deal with the

argument of Mr. Desai regarding the manner in which charge-

sheet in CR No.169 of 2016 was filed, cognizance thereof was

taken, process and non-bailable warrant was issued. When the

petition was placed before this Court on 6 th December 2016,

learned APP for the State placed on record communication dated

29th November 2016 from the Additional Chief Secretary, Home

wherein Khar Police Station was directed to continue with the

investigation of the subject cases. Learned APP also made a

statement that charge-sheet was filed before the concerned

Magistrate on 2nd December 2016, however, cognizance was not

taken and matter was adjourned to 10th February 2017. We

recorded the statements of learned APP and adjourned the

matter to 21st December 2016 and directed the concerned

Magistrate not to take cognizance of charge-sheet in CR. No. 169

of 2016 filed by Khar Police Station. On 7 th December 2016, Mr.

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Desai mentioned this matter for urgent circulation as it was

found that cognizance of the charge-sheet in CR. No. 169 of 2016

was taken by the Magistrate on 2nd December 2016 itself. We

accordingly granted circulation for 13th December 2016. On 13th

December 2016 we found that cognizance of the said charge-

sheet is already taken by the concerned Magistrate on 2 nd

December 2016. We also found that date of criminal case

bearing No.2248/PW/2016 arising from charge-sheet in CR. No.

169 of 2016 was preponed to 15 th December 2016 from 10th

February 2017. In the circumstances, we directed Registrar

(Judicial) of this Court to call for the original record and

proceedings of C.C.No.2248/PW/2016 from the Court of

concerned Magistrate and adjourned the writ petition to 21 st

December 2016. The Petitioner again moved the writ petition

before us on 16th December 2016 and mentioned that despite the

order dated 13th December 2016 calling for the record and

proceedings, the Magistrate has issued non-bailable warrant

against the Petitioner on 15th December 2016. It was alleged that

concerned Magistrate issued non-bailable warrant without

issuing process which was contrary to the decision of the Apex

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Court in Inder Mohan Goswami v. Stae of uttaranchal [(2007) 12

SCC 1]. In the light of these facts, we directed Registrar (Judicial)

to undertake enquiry and submit a report and we also stayed

non-bailable warrant issued by the Magistrate against the

Petitioner. In pursuance of this order, Registrar (Judicial) has

held enquiry and submitted his report in a sealed cover.

19. We have perused the original record and proceedings

of C.C. No. 2248/PW/2016 as well as the report submitted by the

Registrar (Judicial). The report shows that the order dated 6 th

December 2016 has not been communicated to learned

Magistrate. The order dated 13th December 2016 was

communicated on 15th December 2016 through special

messenger vide dispatch writ. Report of the Peon Waghmare

(Dispatch Messenger) shows that he reached in the office of the

Additional Chief Metropolitan Magistrate, 9th Court, Bandra at

7.30 p.m. on 15th December 2016. The report further shows that

the order dated 16th December 2016 was communicated to the

Magistrate on 30th December 2016.

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20. The record shows that on 2 nd December 2016, the

Additional Chief Metropolitan Magistrate, Bandra was on leave

and therefore charge-sheet was filed before the in-charge

magistrate, i.e., learned Metropolitan Magistrate, 32nd Court. The

report further shows that on the very same day, cognizance was

taken and process was issued and case was adjourned to 10th

February 2017, however, this date "10 th February 2017" is

encircled and another date of "15th December 2016" is mentioned

to its right side without counter signature confirming the

correction. Prima facie it appears that date has been changed

from 10th February 2017 to 15th December 2016. Who has

changed this date is not clear from the record.

21. Mr. Desai also alleged that when the matter was fixed

at 2.45 p.m. on 15th December 2016 it was abruptly taken at 11.00

a.m. and non-bailable warrant is issued by the additional Chief

Metropolitan Magistrate, 9th Court, Bandra. The report in this

regard shows that Criminal Case No. 2248/PW/2016 was listed at

serial No. 60 and there was no mention on the board that it will

be taken up at 2.45 p.m.. This observation is made in view of the

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fact that in respect of the matters which were kept at 2.45, there

was specific mention thereof on the board, such as matter at

serial Nos. 52 to 56 there is caption "case at 2.45 p.m." and

matter at serial No. 57 "for argument at 2.45 p.m.". The record

and report further show that summons was not actually prepared

and issued for execution in pursuance of issue process order

dated 2nd December 2016. However, on 15 th December 2016 non-

bailable warrant is issued against the accused.

22. From the above facts, prima facie it appears that date

10th February 2017 given in criminal case No. 2248/PW/2016 was

preponed to 15th December 2016. Who has preponed this date is

not clear. Whether this was preponed by the concerned

Magistrate or ministerial staff is not clear from the record. It is

also clear that though issue process order was passed, summons

was not actually prepared and issued for execution and instead

non-bailable warrant is issued against the accused on 15 th

December 2016. Therefore, in the light of decision of the Apex

Court in Inder Mohan (supra), non-bailable warrant cannot

sustain and deserves to be quashed and set aside which was

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issued without issuing summons and accordingly the same is

quashed and set aside.

23. Additional Chief Metropolitan Magistrate, 9th Court,

Bandra is directed to proceed further in CC No. 2248/PW/2016 in

accordance with law from the stage of issue summons and

thereafter deal with the case in accordance with law. Since order

dated 2nd September 2016 is withdrawn by the Additional Chief

Secretary, Home which we have upheld, Khar Police Station is

directed to proceed further with the investigation of MECR No. 8

of 2016 and NC No. 1836 of 2016 in accordance with law. Stay

granted earlier in this regard stands vacated. Registry is directed

to forthwith send back the record and proceedings of CC

No.2248/PW/2016 to the concerned Magistrate's Court.

Registrar (Judicial) is directed to place the papers before the

Hon'ble the Chief Justice for taking appropriate action against the

concerned persons in respect of lapses discussed in Paragraph

No. 20 and 22 above.

[Dr. Shalini Phansalkar-Joshi, J.] [RANJIT MORE, J.]

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At this stage, learned Counsel appearing for the

Petitioner seeks continuation of the interim protection granted

earlier. We are not inclined to continue the said protection order

inasmuch as so far CR No. 169 of 2016 is concerned, charge-sheet

is already filed and the Petitioner is on anticipatory bail. So far as

MECR 8 of 2016 is concerned, the Petitioner has not even applied

for anticipatory bail. So far as NC case proceeding is concerned,

Khar Police Station has applied under section 155 of the Cr.P.C.

for permission to undertake investigation and yet such

permission is not granted. In these circumstances, prayer is

rejected.

[Dr. Shalini Phansalkar-Joshi, J.] [RANJIT MORE, J.]

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