Manish Pitale JUDGMENT
Manish Pitale, J.
1. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. By this writ petition, the petitioner has, inter alia, prayed for handing over of investigation of his complaint dated 29.01.2016 submitted before the respondent No. 1 to the Central Bureau of Investigation (CBI) or to any other independent investigating agency, with a further prayer for direction for registration of First Information Report (FIR) on the basis of the said complaint.
3. The facts leading up to the instant writ petition are that, there arose a dispute between the petitioner and the respondent No. 7 in respect of purchase of a plot of land, wherein it was the claim of the respondent No. 7 that the petitioner was liable to return certain amount to him, which was disputed by the petitioner. On 05.07.2015 the respondent No. 7 submitted a written complaint before the respondent No. 1, at the Ajni Police Station, Nagpur, claiming that the petitioner had cheated the respondent No. 7 and further that the petitioner was speaking in an indecent manner on the mobile with wife of respondent No. 7 i.e. respondent No. 4 in the writ petition. The respondent No. 7 prayed to the respondent No. 1 to help return of a sum of Rs. 55 lakhs from the petitioner.
4. On the same date i.e. 05.07.2015, respondent No. 4 (wife of respondent No. 7) also submitted a written complaint before the respondent No. 1 Police Station, claiming that the petitioner was speaking in an indecent manner with her and that he was making demand of physical relationship. The respondent No. 4 prayed that strict action be taken against the petitioner in that regard. Thereafter, on 22.07.2015, the respondent No. 4 submitted another written complaint before the respondent No. 1 at the Police Station, claiming that on 20.07.2015 the petitioner had entered her house when she was alone and that he raped her. It was further alleged in the complaint that he abused her in the name of her caste, thereby committing an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On this basis, respondent No. 1 requested for registering offences against the petitioner.
5. It is the case of the petitioner that all these complaints were false and that they were submitted in the Police Station only with a view to pressurise him into making payment of the amount of Rs. 55 lakhs to the respondent Nos. 4 and 7. It is the case of the petitioner that he was called to the Police Station on the basis of the complaint dated 22.07.2015 submitted by the respondent No. 4 wherein allegation of rape was made against him. He attended the Police Station on 22.07.2015 where, according to him, the Police Officers told him that if he did not pay the amount demanded by respondent No. 4, and the matter was not amicably settled by him, an FIR would be registered on the basis of the allegations made by respondent No. 4. It is the case of the petitioner that he tried to tell them that he did not have that kind of money, but the respondent Nos. 4 and 7 along with persons accompanying them put pressure upon him, due to which he was forced to give cheques for the aforesaid amount to the respondent Nos. 4 and 7.
6. On the same day i.e. 22.07.2015, the respondent No. 4 expressed in writing before the respondent No. 1 in the Police Station that the aforesaid three complaints had been made by her against the petitioner because he had been avoiding to make payment of the disputed amount and that all the three complaints were concocted and that nothing as stated in the complaints had actually occurred. It was only thereafter that the petitioner was allowed to leave the Police Station. On this basis, it is submitted on behalf of the petitioner that the complaints made by the respondent Nos. 4 and 7 pertaining to serious charge of rape and other offences against him were made only with a view to extract money from him by setting into motion the process of the criminal law, on the basis of the palpably false complaints.
7. It has further come on record that the cheques issued by the petitioner in the aforesaid circumstances of pressure exerted by the respondent Nos. 4 and 7 in the presence of Police Officers, were dishonoured. Thereupon, on 27.07.2015, the respondent No. 4 again approached the respondent No. 1 Police Station and reiterated her complaint regarding offence of rape committed by the petitioner on 20.07.2015. The allegation of abuse in the name of caste was also reiterated, leading to registration of FIR No. 255/2015 dated 27.07.2015 against the petitioner for offences under Sections 376, 354 (D) and Sections 3 (1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The investigation in pursuance of the said FIR was carried out and a charge sheet was submitted on 30.11.2015 against the petitioner.
8. The petitioner filed Criminal Application (APL) No. 762/2015 under Section 482 of the Code of Criminal Procedure for quashing of the FIR filed against him before this Court, which was admitted and interim relief was granted on 14.01.2016.
9. It is the case of the petitioner that he had approached the respondent No. 1 for registration of offences against the respondent Nos. 4 and 7 for extortion and cheating, in view of the false complaints of rape, made against him by the said respondents. But the respondent No. 1 had refused to take any action in the matter. On 29.01.2016 the petitioner filed a complaint before the respondent No. 1 stating in detail how the respondent Nos. 4 and 7 had submitted false criminal complaints making serious charges of rape and other offences against him, only with a view to extort an amount of Rs. 55 lakhs. The petitioner prayed for the registration of criminal case against the respondent Nos. 4 and 7. On 23.02.2016 the respondent No. 1 sent a letter to petitioner stating that the facts stated by him in his complaint dated 29.01.2016 divulged dispute of civil nature and that no offence appeared to have been made out.
10. The petitioner then submitted a representation on 01.03.2016 before the Superior Officer i.e. the Commissioner of Police, Nagpur (respondent No. 6) and others. The petitioner stated that his complaint dated 29.01.2016 submitted to respondent No. 1 disclosed cognizable offences committed by the respondent Nos. 4 and 7 and yet, by communication dated 23.02.2016, the respondent No. 1 had refused to take any action in the matter.
11. In this backdrop on 18.03.2016, the petitioner filed this writ petition making various prayers including the aforesaid prayer for registration of FIR on the basis of the complaint dated 29.01.2016, with a further prayer for handing over of the investigation to the CBI or any other independent investigating agency. On 29.03.2016, this Court issued notice in the present writ petition.
12. In the affidavit-in-reply filed on behalf of the respondent No. 1, it has been stated that an FIR bearing No. 149/2016 was eventually registered for the grievance raised by the petitioner, on the basis of order dated 04.05.2016 passed by the Additional Chief Judicial Magistrate, Nagpur, in application under Section 156 (3) of the Cr.P.C. filed by the petitioner. The said FIR was registered against respondent Nos. 4 and 7 for offences under Sections 384, 406, 420 read with 34 of the IPC. It is stated at the bar on behalf of the respondents that charge sheet has been submitted in pursuance of the investigation carried out in respect of the said FIR registered against the respondent Nos. 4 and 7. It is also stated that the petitioner withdrew his application under Section 482 of the Cr.P.C. for quashing of the FIR registered against him. It was disposed of as withdrawn on 23.11.2016.
13. In these facts, it is the contention of Mr. R.R. Vyas, learned counsel appearing on behalf of the petitioner that the petitioner has no faith in the respondent No. 1, the investigating agency in the present case. It is contended that Police Officers in the said Police Station did not act in a fair and responsible manner, when they by acts of commission and omission allowed the respondent Nos. 4 and 7 to blatantly misuse the process of criminal law to facilitate extortion of amounts from the petitioner. It is contended that the actions of the respondent No. 1 have led to an apprehension in the mind of the petitioner that the entire investigation has been unfair and that, therefore, it is necessary that the case needs to be transferred to an independent investigating agency.
14. The counsel for the petitioner further contended that although now the FIR stood registered on the basis of his complaint, the action taken in this regard by the respondent No. 1 was belated and that the petitioner apprehended that the investigation and prosecution of the case wherein he is the complainant would not be fair and proper. The counsel for the petitioner relied on judgment of the Hon'ble Supreme Court in the case of Dharam Pal vs. State of Haryana and others - MANU/SC/0118/2016 : (2016) 4 Supreme Court Cases 160, on the issue of power of constitutional Courts to direct transfer of investigation when it was manifest that the investigating authority was not acting in an impartial manner.
15. As against this, Mr. S.M. Ukey, learned Additional Public Prosecutor appearing on behalf of the respondent Nos. 1, 5 and 6 submitted that since an FIR on the complaint of the petitioner had now been registered and a charge sheet was also submitted, the prayer of the petitioner could not be granted. It was further submitted that vague allegations had been made against the Police Officers and that no specific allegation was leveled against any particular Police Officer and further that there was no material on record to show that the investigation was biased. The counsel for the said respondents relied upon the judgment of this Court in the case of Afak Shabbir Khan vs. State of Maharashtra and another - MANU/MH/1467/2012 : 2012 All M.R. (Cri) 3480.
16. Mr. S.S. Lade, counsel for the respondent Nos. 4 and 7 also contended that since charge sheet had been submitted in respect of first information reports registered at the behest of the petitioner on the one hand and the respondent Nos. 4 and 7 on the other, there was no substance in the writ petition and that it deserved to be dismissed.
17. The Hon'ble Supreme Court in the case of Dharam Pal v. State of Haryana (supra), has held in the context of power of Constitutional Courts to transfer and/or to order fresh investigation or re-investigation, when fair trial may be quite difficult unless there is a fair investigation. Although the Hon'ble Supreme Court in the said decision has cautioned that the power to transfer investigation from one agency to another has to be exercised sparingly, it has been emphasized that the sanctity and purity of genuine investigation has to be ensured. In the said decision, the Hon'ble Supreme Court transferred the investigation to CBI even when the trial had commenced and some witnesses had been examined.
18. In the criminal justice system, fair and impartial and truthful investigation is of the greatest significance so that the faith of the citizen in the system is reinforced. A fair trial also depends on the manner of investigation. If there is any indication of either callousness or highhandedness in functioning of the Investigating Agency, the very root of the criminal justice system is adversely affected. To set the criminal law in motion to facilitate the settlement of private scores or civil disputes, would amount to abuse of power by the competent authority. Similarly, failure to set the criminal law in motion in genuine cases to facilitate the settlement of private scores or civil disputes, amounts to abdication of function by the competent authority. The Police Station cannot be a place to be used where the private disputes between the parties can be settled by the Police Officers by their acts of commission or omission and under the threat of putting into motion criminal law on the basis of the complaint made by either party to the dispute.
19. In the present case, what we have noticed is that the promptness or efficiency shown by the Police Station Officers in registering the offences on 27-7-2015 in spite of settlement dated 22-7-2015 is not reflected in the case of the complaint made by the petitioner on 29-1-2016. The petitioner was required to approach the Court, and as per the order dated 4-5-2016 passed by the learned Additional Chief Judicial Magistrate, Nagpur, the FIR was registered against the respondent Nos. 4 to 7 for the offences under Sections 384, 406 and 420 read with Section 34 of IPC. After filing of this petition, promptness and efficiency is shown to file a charge-sheet and the claim in this petition is opposed on that ground. The sequence of events in the present case and the manner in which the respondent No. 1, the Investigating Authority, has proceeded in the matter of complaints filed by the parties, demonstrate unfair and partial approach of the Investigating Agency. This leads to an apprehension that neither the investigation in the matter will be fair nor the trial shall be conducted in a fair manner by the prosecution.
20. The learned Additional Public Prosecutor has relied upon the judgment of this Hon'ble Court in the case of Afak Shabbir Khan vs. State of Maharashtra (supra), contending that in the said case it had been laid down that an accused cannot pray for transfer of investigation, particularly when there is no allegation of bias against the investigating officer. The said judgment of this Hon'ble Court can be distinguished because in the present case the petitioner is also a complainant and he has stated facts and raised issues which demonstrate that the investigation in the present case by the respondent No. 1 has not been fair and impartial.
21. We feel that in the present case, right from the first instance, when the respondent Nos. 4 and 7 submitted three complaints, making more and more grave allegations against the petitioner till the stage of inordinate delay in registering FIR on the complaint of the petitioner against the said respondents, the respondent No. 1 - investigating authority has not acted in a fair, truthful and impartial manner. The investigating authority is expected to professionally conduct investigation with promptitude and without taking sides. In the face of such conduct of respondent No. 1, the investigation does not inspire confidence and the entire process is vitiated.
22. It is also relevant that the complaints of respondent Nos. 4 and 7 on the one hand and that of the petitioner on the other, are inextricably linked and a fair and truthful investigation would require an independent agency to go into both sets of complaints. This is because allegations of grave nature concerning serious offences have been levelled by the parties against each other and it would not be fair to transfer only one set of the complaints to an independent investigating agency.
23. In view of the above, we are of the considered view that the investigation in respect of both the first information reports in the present case i.e. FIR No. 255 of 2015 dated 27.07.2015 wherein respondent No. 4 is the complainant and FIR No. 149 of 2016 wherein the petitioner is the complainant ought to be transferred to an independent investigating agency. We believe that the ends of justice would be met if the said two FIRs and consequent investigation are transferred to the Criminal Investigation Department (CID) to be investigated by an Officer not less than the rank of Deputy Superintendent of Police. Accordingly, we direct the said two FIRs to be transferred to the CID. The officer of the CID so deputed shall conduct further investigation into both the matters and file a report before the trial Court at the earliest, so as to ensure fair trial for both sets of complaints in the present matter. The other prayers made in the writ petition are not required to be considered, in view of the aforesaid direction.
24. Accordingly the writ petition is partly allowed and disposed of in above terms.
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