Jaydeep Dilip Taware v. The State of Maharashtra & Rohini Raviraj Taware

5.10) The Investigating Officer Shri. Milind Mohite, Additional Superintendent of Police, Baramati Division, Pune (Rural) again filed a Report under Section 169 of Cr.P.C. dated 2nd December, 2021 thereby exonerating the Appellant from all the charges levelled against him by stating that, the investigation of the crime does not reveal any evidence against the Appellant and therefore he may be discharged from the said case. The Petitioner No.1, informant filed second Protest Petition below Exh-32, dated 6th December, 2021, against the report under Section 169 of Cr.P.C. submitted by the Investigating Officer.

5.11) The trial Court by its impugned Order dated 9th December, 2021 passed below Exh-32 was pleased to reject the Report filed by the Investigating Officer under Section 169 of Cr.P.c. dated 2nd December, 2021. The trial Court directed the Investigating Officer to conduct detailed investigation in the line of statement of injured, Raviraj Taware and other witnesses as discussed in the said Order and submit a ‘charge-sheet’ against the Appellant. The Appellant has impugned the said Order dated 9th December, 2021 by the present Appeal.

6) Mr. Mundargi, learned senior counsel appearing for the Appellant submitted that, in view of the decision of the Hon’ble Suprmee Court in the case of Abhinandan Jha & Ors. Vs. Dinesh Mishra, reported in 1968 SC 117: 1968 Cri.L.J. 97, the trial Court, though may direct to conduct further investigation, cannot direct the police to submit chargesheet. He submitted that the said direction issued by the trial Court therefore is bad in law. He submitted that, as a matter of fact after completion of investigation of present crime, the Investigating Officer i.e. the Sub. Div. Police Officer, Baramati has filed charge-sheet on 27th November, 2021 before the Special Court under MCOC Act at Pune and the same has been numbered as Special Case No.929 of 2021. He therefore submitted that, the impugned Order may be quashed and set aside by allowing the Appeal.

7) Mr. Mohite, learned senior counsel appearing for the Respondent No.2/Petitioners opposed the Appeal and submitted that, the investigation of the present crime is being conducted in a biased manner since beginning. That, the Appellant was initially arrested on 6th July, 2021 and within fifteen days the first report under Section 169 of Cr.P.C. was filed on 21st July, 2021 in a serious crime under Section 302 of the I.P.C. read with the provisions of MCOC Act. That, the allegations of conspiracy and motive have not at all been investigated by all the three Investigating Officers. The Order of the trial Court dated 16th August, 2021 passed below Exh-17 in first Report under 169 of Cr.P.C. has been upheld by this Court by its Order dated 6th October, 2021. That, the Appellant was thereafter again arrested on 3rd December, 2021 and within 10 days the second Report under Section 169 of Cr.P.C., dated 2nd December 2021, was filed, exonerating the Appellant from a serious crime. The Order of High Court has been upheld by the Hon’ble Supreme Court and despite the said fact the observations made by this Court have not been deliberately considered by all the Investigating Officers, only to give benefit to the Appellant who is politically and financially a very influential person in the vicinity of Baramati. He submitted that, perusal of charge-sheet filed by the concerned Investigating Officer and in particular the last paragraph thereof clearly indicates that, the investigation qua the Appellant is yet to be completed and without conducting proper investigation, the second Report under Section 169 of Cr.P.C. came to be filed, only to protect the Appellant. He submitted that, therefore there is no need of any interference by this Court in the impugned Order passed by the trial Court.

8) Mr. Mankapure, learned Advocate appearing for the Petitioners adopted the arguments of Mr. Mohite. He drew our attention to the statements of informant, injured witness (Petitioner No.2) and other witnesses. He submitted that, it is the specific allegation of the Petitioners against the Appellant that, due to political and business rivalry, he entered into conspiracy with other accused persons and as a result thereof, present crime of firing with a gun on the Petitioner No.2 took place. He submitted that, the Appellant is member of organized crime syndicate headed by Accused No.1 Prashant More. That, the statement of Petitioner No.2 i.e. injured has been conveniently disbelieved and irrelevant evidence/material is considered by the Investigating Officer, only to give leverage to the Appellant. He submitted that, the investigation of the present case may therefore be transferred to any other independent Investigating Agency by allowing his Petition.

9) Mr. Yagnik, learned APP on instructions from Dy.S.P. Mr. Rathod, who is personally present in the Court submitted that, the earlier Investigating Officers have carried out investigation properly. He fairly admitted the legal proposition that, the observations made by the trial Court and this Court are binding on the Investigating Agency. He pointed out the Affidavit-in-reply dated 31st January, 2022 filed by Shri. Ganesh P. Ingale, in opposition to the Appeal. He submitted that, the concerned officer has reiterated that, it has not found any connection of the Appellant with the incident dated 31st May, 2021 or conspiracy entered into by him with other accused persons. He submitted that, the investigation of the present crime is conducted properly and therefore there is no need to transfer it for further investigation to any other independent Investigating Agency. He submitted that, therefore the Petition filed by the victim may not be entertained and disposed off.

10) At the outset it is to be noted here that, the Hon’ble Supreme Court in the case of Abhinandan Jha & Ors. (Supra) has held that, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. However, it is open to the Magistrate to take cognizance of the offence under Section 190(1)(b) of the Act, on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that, an offence has been committed. The Magistrate cannot compel the Police to form a particular opinion on the investigation and to submit the report according to such opinion.

11) Perusal of record and impugned Order dated 9th December, 2021 indicates that, the trial Court after taking into consideration the entire material on record has passed an elaborate Order. That, the trial Court has in detailed considered and scrutinized the material produced before it. The citation relied upon by the learned counsel for the Appellant in the case of Jamiruddin Ansari Vs. Central Bureau of Investigation, reported in (2009) 6 SCC 316, the Hon’ble Supreme Court has considered the co-relation between Section 9(1) and 23(2) of the MCOC Act and therefore it is of no avail to the Appellant. We find that, there is no need to interfere with the impugned Order, except with the direction to file charge-sheet as noted in following paragraph.

12) In view of the aforestated settled legal position enumerated by the Hon’ble Supreme Court in the case of Abhinandan Jha (Supra) the direction of the trial Court as mentioned in paragraph No.3, to the extent of directing the police to submit ‘charge-sheet’ against the Appellant (A. No.6) needs to be deleted. We are of the considered view that, the investigation of the present crime is not properly conducted by the Investigating Agency and needs to be conducted as per the directions issued by the trial Court in paragraph No.3 of the impugned Order.

12.1) In view thereof, we modify the impugned Order dated 9th December, 2021 to the extent of deleting the words, “and submit the charge-sheet against accused No.6’” from paragraph No.3 thereof.

13) This brings us to consider the prayer of the Petitioners for transfer of investigation of the present crime to other Investigating Agency.

14) Perusal of F.I.R. clearly indicates that, the Petitioner No.1 has categorically stated that, after firing on the Petitioner No.2, the accused Akash More shouted loudly that, ‘Chikoo Patil (Appellant) will not leave him, you will be finished/wipped out’ and thereafter fled from the scene of offence. The injured witness i.e. Petitioner No.2 in his elaborate and detailed statement dated 19th June, 2021 and supplementary statement dated 9th November, 2021 has narrated the rivalry between the Appellant and Petitioner No.2. He has also stated about the role of Ravindra Kale. A perusal of the said statements clearly reveal that, the Appellant has a role in the conspiracy, in attacking the Petitioner No.2. The statements of witnesses duly corroborate the version of Petitioner No.2. All the Investigating Officers of the present crime have disbelieved the statements of the injured witness, which under the law has its own significance. It appears to us that, the Investigating Officer/s with a view of give a clean chit to the Appellant have not investigated the motive behind the crime. Though Section 120-B of the I.P.C. is applied to the present crime with a specific allegation of conspiracy thereof and having sufficient material on record to show prima facie involvement of the Appellant in the crime, the Investigating Officer/s have conveniently overlooked it to protect the Appellant from the clutches of law, for the reasons best known to them. We find substance in the submissions of the learned counsel of the Petitioners that the Appellant being a politically and otherwise a very influential person, is being protected by the Investigating Agency. We are unable to accept the submission of the prosecution that, merely because the mobile phone location of the injured and/or the accused persons inter-se is mismatching, the offence of conspiracy cannot be inferred. It is the settled position of law that, the conspiracy is always hatched in secrecy and there is seldom any direct material available to it. A minute perusal of statement of Petitioner No.2 dated 19th June, 2021 clearly indicates that, after firing the bullet on his chest, the accused Akash More openly lauded that, in Malegaon all happens as per the say of Appellant and Prashant Bhau. The injured witness has specifically and categorically stated the names of appellant and so also Ravindra Kale, in his statement.

15) It be noted here that, in the Judgment dated 6th October, 2021, the learned Single Judge has categorically held that, there is sufficient material against the Appellant which was founded on the statements of injured and other witnesses, which details about the previous enmity between the Petitioner No.2 and the gang leader Prashant More. It is further held that, having gone through the material on record which prima facie reveals Petitioner’s complicity in the crime and in view of the satisfaction recorded by the learned Judge of the trial Court while rejecting the Report under Section 169 of Cr.P.C., the Order under challenge thereof was upheld. As noted earlier, the said Judgment has not been interfered with by the Supreme Court by its Order dated 29th October, 2021. It was therefore imperative for the Investigating Agency and it has no option but to adhere to the observations made by the learned Single Judge in the said Judgment. The Investigating Agency cannot overlook the said observations or to keep it aside from consideration. It is not the law of the land.

16) As noted earlier and at the cost of repetition, we hasten to note that, the then Investigating Officer filed first Report under Section 169 of Cr.P.C. within a period of 15 days from the date of arrest of Appellant. The second Report under Section 169 of Cr.P.C. has been filed within a period of about 11 days after the Appellant was arrested for the second time. Perusal of second Report under Section 169 of Cr.P.C. dated 2nd November, 2021 clearly reveals that, the concerned Investigating Officer except reproducing the facts of the case, has not given any detailed analysis of evidence, though was directed by the trial Court by its Order dated 16th August, 2021. In the report dated, 2nd December, 2021 filed under Section 169 of Cr.P.C., the Investigating Officer has exhibited audacity to say that there is no evidence at all against the Appellant and has conveniently overlooked the observations made by the learned Single Judge of this Court. Likewise, perusal of Affidavit-in-Reply dated 31.1.2022 of Shri. Ganesh P. Ingle, Sub. Div. Police Officer, Baramati, clearly discloses that, he has also not considered the observations made by this Court which have been upheld by the Supreme Court. He has also given more importance to C.D.R. record than, the statements of eye-witnesses for forming a conclusion that, no case of conspiracy is made out. Though this Court has categorically observed that, there is sufficient material against the Appellant to infer his complicity in the crime, Mr. Ingle on oath has stated that, he has not found any connection of the Appellant with the incident dated 31st May, 2021 or conspiracy thereof. It appears to us that, second Report under Section 169 of Cr.P.C. has been filed only to protect the Appellant and nothing else. We find substance in the submission of the learned Advocate for the Petitioners that the statement of Petitioner No.2 i.e. injured has been conveniently disbelieved and irrelevant material is considered by the Investigating Officer only to give leverage to the Appellant. After perusing entire record, we are constrained to observe that, all the Investigating Officers and/or the present Investigating Agency are bent upon to protect the Appellant Jaydeep Taware from the clutches of law.

17) The Hon’ble Supreme Court in the case of Amar Nath Chaubey Vs. Union of India reported in A.I.R. 2021 SC 109, in paragraph No.8 and 9 has observed as under:- “8. The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.

9. In Manohar Lal Sharma vs. Principal Secretary & Ors., (2014) 2 SCC 532: (AIR 2014 SC 666), this court observed as follows: “24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens.”

18) In view of the above deliberation, we are of the considered view that, the prayer of the Petitioners for transfer of investigation needs to be acceded to, for proper investigation of the crime and to have complete justice in the present case.

18.1) We therefore direct that the investigation of the present crime i.e. C.R. No.350 of 2021, registered with Baramati Police Station, Pune (Rural) be transferred to the Crime Investigation Department, State of Maharashtra with immediate effect.

18.2) We direct the Additional Director General of Police, State C.I.D., i.e. the head of the said Investigating Agency, to appoint an Officer not below the rank of Superintendent of Police and preferably from I.P.S. Cadre to investigate present crime.

18.3) The new Investigating Officer, so appointed shall take into consideration the observations made by the trial Court in its Orders dated 16th August, 2021, 9th December, 2021 and by the learned Single Judge of this Court in its Judgment dated 6th October, 2021 in Writ Petition No.3207 of 2021 and this Court in the foregoing paragraphs. He/she will also take into consideration the role if any, played by Shri. Ravindra Kale as alleged by the Petitioners at the time of investigating present crime.

18.4) The new Investigating Officer is entitled to reassess entire evidence on record, without being influenced by the fact that the earlier Investigating Officer/s have submitted Reports dated 21st July, 2021 and 2nd December, 2021 under Section 169 of Cr.P.C. in the present case.

19) Writ Petition is allowed in the aforesaid terms. (SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)

SHARNAPPA MASHALKAR