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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
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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wp-4211/16.6. 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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wp-4211/16.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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wp-4211/16.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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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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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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wp-4211/16.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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wp-4211/16.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.patilsr 18 of 35::: Uploaded on - 17/04/2017 18/04/2017 00:38:45 :::
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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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wp-4211/16.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
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wp-4211/16.13. 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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wp-4211/16.14. 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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.20. 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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wp-4211/16.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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wp-4211/16.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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wp-4211/16.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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