The first glaring lapse in the investigation, left by Mr. Khatane, is that he did not prepare a seizure panchanama of the said car. It cannot be ignored that the said car belonged to the accused – Police Sub-Inspector at Aurangabad, who was believed to be on duty and was believed to be driving the said vehicle when the accident occurred.
9. From the above, it is obvious that the then I.O. Mr.
Khatane has seriously failed in properly investigating into the crime, as has been noted by the Commissioner of Police in paragraph No.5 reproduced above. The learned Government Pleader has strenuously tried to convince us that the I.O. may not have intentionally left such loopholes or deficiencies in the investigation. However, he fairly states that he is not defending an erring I.O. He is canvasing that the element of intentionally leaving loopholes in the investigation, may not be the case as is being tried to be made out by the petitioner.
10. We have no hesitation in observing that an investigating
officer is supposed to investigate the crime in accordance with the Code of Criminal Procedure / the procedure applicable and to the best of his ability. He is not supposed to indulge in any such act during investigation, which would have a semblance or a flavour of the I.O. deliberately leaving loopholes in the investigation, so as to tacitly create an advantage in favour of the accused. The learned public prosecutor submits that such mistakes may have occurred inadvertently. We cannot accept such contention for the reason that an experienced I.O. would never commit such acts inadvertently. There is a clear averment by the petitioner that the I.O. was trying to protect the accused, who was an in-service Sub- Inspector of Police posted in the same Police Station in which the crime has been registered, and within whose jurisdiction the offence had occurred.
15. We are, therefore, directing the Commissioner of Police,
Aurangabad to issue an appropriate charge-sheet-cum-show-cause
notice and follow the procedure as is laid down in law and the
service conditions applicable, for conducting a Departmental
Enquiry against the I.O. Needless to state, if he is found guilty, we
would expect maximum punishment to be awarded to him, since
this is the only way that the faith and trust of the common man and
the public at large would be reposed in the police machinery, which
otherwise is facing a flak for it’s role in such cases
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1121 OF 2020
MOHAMMED ZAHEER S/O. MOHAMMED AZAM Vs THE STATE OF MAHARASHTRA AND OTHERS
CORAM : RAVINDRA V. GHUGE AND
B. U. DEBADWAR, JJ.
DATE : 19TH MARCH, 2021
1. By this petition, the petitioner, who is the father of a
college going daughter killed in an accident in which respondent
No.6 is an accused, has put forth prayer clauses (B), (C) and (D)
as under :-
“B. By issuing Writ of Certiorari / Mandamus or any other
Writ, order or directions in the like nature, the
respondent No.6 and his accomplice be arrested and
the investigation in the matter bearing Crime
No.156/2019 dated 23.04.2019 registered with the
City Chowk Police Station, Aurangabad be transferred
to Crime Investigation Department or to some other
Investigative Agency under the supervision of this
Hon’ble Court.
C. By issuing writ of Certiorari / Mandamus or any other
writ or order or directions in the like nature, the
Respondent Nos. 1 to 3 be directed to conduct
impartial inquiry in the matter bearing Crime No.
156/2019 dated 23.04.2019 registered with the City
Chowk Police Station, Aurangabad and take necessary
actions against the erring Police Officer etc.
D. By issuing Writ of Certiorari / Mandamus or any other
writ or order or directions in the like nature the
Respondent Nos. 1 to 3 be directed to initiate
necessary action against the Respondent No.6, who
has intentionally killed the Petitioner’s daughter
namely Akefa Mehrin and also against the other Police
Officials trying to cover up the matter with an
intention to give clean chit to the Respondent No.6.”
2. On 11-12-2020, this Court had passed the following
order :
“1. In response to the order made by this Court on
24.11.2020, today, the learned APP has produced on
record the papers of investigation and the case diary.
2. This Court has carefully gone through the papers of
investigation and case diary. In the papers of
investigation, there are statements of the eye-witnesses
showing that on the same day and on the next day, the
eye-witnesses had given account of the accident and it
was informed that one grey colour Swift Desire was
involved in the accident. The papers show that on
02.05.2020, the car was taken in custody during
investigation. Surprisingly, panchanama of seizure of car
was not prepared. Due to that it is not possible to
ascertain even the colour of the car. The record shows
that the car was referred for technical examination to the
RTO and it came to be examined on 09.05.2020 i.e. very
late.
3. When one four wheeler gives dash to a two
wheeler, no damage is ordinarily caused to the four
wheeler. It appears that after giving dash to the two
wheeler of the deceased, the deceased was virtually ran
over by the car and the driver of the four wheeler had
escaped from the spot. Thus, not only the offence of
causing the accident and causing death was committed,
but other offences of not taking care of the deceased and
not informing to the police about the incident are also
committed by the said driver of the four wheeler.
4. In view of the nature of allegations and
nature of report which the Investigating Agency has filed,
this Court had made specific order on 24.11.2020 and due
to this, some record like case diary and papers of
investigation are produced.
5. It appears that there are allegations that one
Police Sub-Inspector was driving the four wheeler at the
relevant time. Even when there are allegations against the
Police Offcer, no seriousness is shown by the Investigating
Agency. This Court has no hesitation to observe that when
there are allegations against some person of the
department, more care needs to be taken by the
Investigating Officer and such officer needs to be always
above the board. Such officer is not expected to protect
the person of his own department but he needs to be
more serious as the image of the department is involved
in such matters. Due to observations made by this Court
today, affidavit of some of the witnesses are produced by
the petitioner and they show the seriousness of the
offence committed by the driver of the swift car. There is
nothing to show that the witnesses have falsely implicated
the said Police Sub Inspector.
6. Due to the aforesaid circumstances, this
Court has formed an opinion that the officer of the higher
level like the Commissioner of Police needs to look into
the matter. He needs to see the record, go to the place
and personally make enquiry with the eye-witnesses who
have filed affidavits and whose statements were recorded
by the police during investigation. He may then think
about changing the Investigating Officer. He is expected to
take stringent action against the Investigating Officer if it
is noticed that the Investigating Officer had made an
attempt to cover up the things to protect a person of his
department. This needs to be done before the next date
by the Commissioner of Police, Aurangabad.
7. Stand over to 5th January, 2021.
8. Authenticated copy of the order is allowed to
both the parties.”
3. Pursuant to the order of this Court reproduced above,
the Commissioner of Police, Aurangabad has promptly initiated an
enquiry and after conducting detailed enquiry, he has submitted his
report dated 02-01-2021, which is placed before us.
4. In order to avoid discrepancies and for clarity, we would
be reproducing certain portions of the report of the Commissioner
of Police. He has stated in paragraph No.2 that after he received
the copy of the order reproduced above, he has initiated the
following steps :
“i) I have called the copy of the case papers of the City
Chowk Police Station C.R. No. 156/2019 u/s 304 (a), 279,
337, 338, 427 IPC r/w 134/177 MV Act. The original file is
submitted in the concerned JMFC Court, Aurangabad with
“A” summary report.
ii) After going through the copy of case papers, I then
discussed the matter with the then investigating officer
API Mr. S. K. Khatane, the then Police Station in charge
officer Mr. D. S. Singare P.I., and the concerned Deputy
Commissioner of Police Mr. Nikesh Khatmode.
iii) I then visited the spot of accident along with all
these officers.
iv) After that I have made enquiry with the four eye
witnesses who have filed affidavits.
v) I have also recorded the statement of Mr. Santosh
Pate PSI, who has been suspected by the applicant Mr.
Mohmad Zaheer s/o Mohmad Azam and his brother Mr.
Arun Pate, in whose name the suspected vehicle is
registered.
vi) I then called the detailed expert report of autopsy
by way of letter given to the Dean, Government Medical
College and Hospital, Aurangabad.
vii) I have also called for detailed expert report of the
inspection of vehicles by the Regional Transport Officer,
Aurangabad.
viii) I requested the cell phone operator company to
provide Call Detailed Report (CDR) and the location of
above named suspect on the day of incident.”
5. He has stated in paragraph No.3 of his report that
Medico Legal Case (MLC) papers were received from the
Government Medical College and Hospital as well as from Apex
Super Specialty Hospital, Aurangabad by the City Chowk Police
Station on 22-04-2019. The case was handed over to Assistant
Police Sub-Inspector Mr. D. J. Shinde for further enquiry and he
approached GMCH and the Apex Hospital to record the statement of
the accident victim, who was not in a position to do so. He has
noted in the said paragraph that the crime was registered on
23-04-2019, initially invoking Sections 279, 337, 338 and 427 of
the Indian Penal Code read with Section 134 and 177 of the Motor
Vehicles Act.
6. ASI Shinde prepared the spot panchanama and
recorded the statements of two witnesses namely Mr. Mohammad
Tariq Mohammad Tahir and Mr. Adil Ahemad Siddiqui Khalil Ahemad
Siddiqui. After noticing the statements indicating that a grey
coloured Maruti Swift Desire car had knocked off the victim who
was riding a scooty, further investigation was initiated.
7. In the meanwhile, the victim passed away at 02:10
a.m. on 24-04-2019 and hence, Section 304-A of the Indian Penal
Code was invoked. Consequentially, the investigation was handed
over to Assistant Police Inspector Mr. S. K. Khatane. Mr. Khatane
was the person who conducted further investigation. It is claimed
by Mr. Khatane that only on 02-05-2019, Mr. Khatane noted the
involvement of a car bearing registration No. MH-02-CB-2079. He
then approached the R.T.O. and seized the said car and brought it
to the police station. It was subjected to examination by the R.T.O.,
which tendered it’s report on 09-05-2019. The first glaring lapse in
the investigation, left by Mr. Khatane, is that he did not prepare a
seizure panchanama of the said car. It cannot be ignored that the
said car belonged to the accused – Police Sub-Inspector at
Aurangabad, who was believed to be on duty and was believed to
be driving the said vehicle when the accident occurred.
8. The Commissioner of Police has, thereafter, recorded
the statements of six persons namely Mr. Mohamed Tariq S/o
Mohamad Taher, Mr. Abdul Haq s/o Abdul Rahim, Mr. Adil Ahemad
Siddiqui s/o Khalil Ahemad Siddiqui, Mr. Shahid Khan s/o Umar
Khan, Mr. Santosh Ramdas Pate (the accused) and Mr. Arun Ramdas
Pate (elder brother of accused). We are not going into the details
of the statements of these persons recorded by the Commissioner
of Police, for the reason that the charge-sheet has now been filed
and the case is committed for trial. We, however, deem it
appropriate to reproduce the impressions arrived at by the
Commissioner of Police in paragraph No.5 which read as under :-
“5. It has been observed that I.O. Mr. Khatane
API has failed to do the following things as the part of
investigation :-
a) Failed to record statement of Mr. Santosh Pate PSI,
Mr. Arun Pate (brother of Mr. Santosh Pate PSI) and Mr.
Shahid Khan Umarkhan, a person who shifted injured to
the hospital.
b) Failure to seek detailed report from doctors who
performed autopsy.
c) Failure to seek tower location of suspect PSI Mr.
Pate from the mobile company.
d) Failure to seek expert report (forensic report) of
possibility of contact between two vehicles due to
collusion.
e) Failure to prepare seizure panchanama of the
suspected car No. MH 02 CB 2079”
9. From the above, it is obvious that the then I.O. Mr.
Khatane has seriously failed in properly investigating into the crime,
as has been noted by the Commissioner of Police in paragraph No.5
reproduced above. The learned Government Pleader has
strenuously tried to convince us that the I.O. may not have
intentionally left such loopholes or deficiencies in the investigation.
However, he fairly states that he is not defending an erring I.O. He
is canvasing that the element of intentionally leaving loopholes in
the investigation, may not be the case as is being tried to be made
out by the petitioner.
10. We have no hesitation in observing that an investigating
officer is supposed to investigate the crime in accordance with the
Code of Criminal Procedure / the procedure applicable and to the
best of his ability. He is not supposed to indulge in any such act
during investigation, which would have a semblance or a flavour of
the I.O. deliberately leaving loopholes in the investigation, so as to
tacitly create an advantage in favour of the accused. We equally
find it appropriate to record our high appreciation for the efforts put
in by the Commissioner of Police while conducting the enquiry
pursuant to our order. We can surely say that he has conducted the
enquiry with great promptitude and by applying his investigation
skills. He has also, without fear or favour, drawn his observations in
paragraph No.5 based on such enquiry.
11. The learned prosecutor submits, on instructions from an
officer of the Police Department present in the Court, that the
investigation was handed over to Assistant Commissioner of Police
Mr. Hanumant N. Bhapkar of the City Division, Aurangabad. He has
conducted the investigation in view of the above factors and has
now submitted the charge-sheet before the learned Judicial
Magistrate First Class–3, Aurangabad. The learned Chief Public
Prosecutor submits, on instructions, that a show-cause notice has
been issued to the then I.O. Mr. Khatane as to why his increment
for one year should not be stopped permanently by way of
punishment.
12. Considering the law laid down in the matter of Kulwant
Singh Gill Vs. State of Punjab [1991 (Suppl.1) SCC 504] , stoppage
of increment permanently for one year or more, is a major
punishment and this punishment cannot be imposed without
conducting a departmental enquiry. It is not brought to our notice
as to whether specific set of service rules are applicable to the
Police Department which would facilitate the stoppage of one
increment permanently for one year, without conducting a
departmental enquiry. If that is permissible in law, we would not
make any observations. However, if that is not permissible, it
would be incumbent upon the Commissioner of Police to issue a
charge-sheet-cum-show-cause notice to I.O. Mr. Khatane and
commence a departmental enquiry.
13. Notwithstanding the above, we find from the
observations of the Commissioner of Police, as set out in the
reproduced paragraph No.5, that the deficiencies were allowed to
creep in into the investigation in crime No. 156 of 2019, registered
with the City Chowk Police Station. They may eventually be
damaging to the case of the prosecution. The learned public
prosecutor submits that such mistakes may have occurred
inadvertently. We cannot accept such contention for the reason
that an experienced I.O. would never commit such acts
inadvertently. There is a clear averment by the petitioner that the
I.O. was trying to protect the accused, who was an in-service Sub-
Inspector of Police posted in the same Police Station in which the
crime has been registered, and within whose jurisdiction the offence
had occurred. We would have appreciated, if the accused Sub-
Inspector would have been immediately transferred out of the
jurisdiction of the said police station. He continued to be a part of
the said police station until he was subsequently trapped in an anticorruption bribery case in October, 2020. He was on duty in the
same police station when, it is alleged that, he threatened a Gutkha
seller of false implication and extracted an amount of Rs.50,000/-,
after negotiations on the initial demand of Rs.2 lakhs. Presently, he
is under suspension.
14. In view of the above, though we sincerely appreciate
the steps initiated by the Commissioner of Police, Aurangabad and
having independently and uninfluentially, conducted the inquiry, we
wish to record that stoppage of increment for one year would be a
punishment which would not be commensurate to the gravity and
the seriousness of the conduct of the I.O. It would be an eye wash.
The Court cannot be a silent spectator and close it’s eyes or turn a
Nelson’s eye, as if it is helpless, in such a case. We would be failing
in our duty, if we blink at such a conduct of a police officer.
15. We are, therefore, directing the Commissioner of Police,
Aurangabad to issue an appropriate charge-sheet-cum-show-cause
notice and follow the procedure as is laid down in law and the
service conditions applicable, for conducting a Departmental
Enquiry against the I.O. Needless to state, if he is found guilty, we
would expect maximum punishment to be awarded to him, since
this is the only way that the faith and trust of the common man and
the public at large would be reposed in the police machinery, which
otherwise is facing a flak for it’s role in such cases. This direction of
this Court shall be effected by the Commissioner of Police,
forthwith.
16. The learned counsel for the petitioner contends that,
firstly, Section 304-A of the I.P.C. has been invoked, only to protect
the accused Police Officer from punishment under Section 302 of
the I.P.C. He has based his contention on the basis of certain
statements made by eye witnesses. We do not find it appropriate
to go into the statements of eye witnesses in a petition putting forth
the prayer clauses reproduced above, as it would amount to
entering upon a parallel trial of the case, which we certainly do not
desire.
Secondly, he submits that the accused himself has
made a statement on 17-12-2020, before the Commissioner of
Police, that a lady Police Sub-Inspector of his batch and personally
known to him, Mrs. Anita Bagul had visited the spot of the accident.
He then has stated that he did not make a call to her, so as to
facilitate her visit to the place. However, one of the witnesses
Mohammad Tariq has claimed that the said lady officer Mrs. Bagul
had visited the place by covering her face with a scarf and
threatened eye witnesses not to furnish any information or details
to the investigating officer with regard to the accident. The learned
counsel then submits, on instructions, that she had forced the eye
witnesses to delete video recordings and photographs from their
respective cell phones. For the reason noted above, we would not
get into the exercise of appreciation of evidence, since we have no
reason to do so, in this petition. We leave it to the witnesses to
depose in a manner as they may deem appropriate, before the trial
Court and in the event the trial Court is convinced that there is
material before it, it has the liberty to follow section 319 of the
Cr.P.C. for appropriate action.
Thirdly, the learned counsel for the petitioner contends
that the said lady police officer Mrs. Bagul be arrayed as an
accused, since she has indulged in destruction of evidence,
punishable under Section 201 of I.P.C. On this count as well, we
leave it to the wisdom of the trial Court, within the frame work of
Section 319 of the Cr.P.C.
Fourthly, the earlier I.O. Mr. Khatane be arraigned as an
accused. We hold the same view, even with regard to Mr. Khatane,
and the trial Court is not powerless under Section 319 of the Cr.P.C.
17. Considering the directions in paragraph No.15 and the
observations as above, this petition is disposed off.
(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
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