High Court

Legal Reasoning

111 Writ Petition 207 of 2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.11 CRIMINAL WRIT PETITION NO. 207 OF 2023RAJABHAU SHRIRAM PHADVERSUSTHE STATE OF MAHARASHTRA AND OTHERS...Advocate for the Petitioner : Mr. Rahil Riyazoddin Kazi.APP for Respondents : Mr. A. M. Phule. ...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :13th February, 2025. Per Court:.The present petition has been filed for direction torespondent No.1 to handover the investigation in respect of CrimeNo.282 of 2022, registered with Parali City Police Station, Parali,District Beed, for the offence punishable under Sections 143, 147, 148,149, 323, 324, 307, 427, 506 and 120-B of Indian Penal Code andunder Section 135 of Maharashtra Police 1951, to State C.I.D. 2Heard the learned counsel for the petitioner and thelearned APP for the respondents. 3Statement was made that charge-sheet has been filed andthen the learned counsel appearing for the petitioner has madeavailable a copy of the charge-sheet. 211 Writ Petition 207 of 2023.odt 4The petitioner is the original informant, who had filed thesaid FIR contending that he alongwith one Suresh Bhagwanrao Phad,Mahesh Sakhahari Munde, Siddheshwar Gutte and 4-5 persons werechitchatting in front of his company’s office at Shivaji Chowk, Paraliaround 03:00 pm on 19th December, 2022. The mother of theinformant was contesting for the post of Sarpanch at Kanherwadi andthe counting was scheduled on 20th December, 2022. According to theinformant, he alongwith his friends were discussing about the saidcounting. Around 05:00 pm, all eleven named persons and 3-4unknown persons came at the spot and started assaulting theinformant and his friends. When the informant asked them as to whythey are assaulting them, then all of them told that why he wascontesting against one Manik Phad and they will not leave theinformant, Shriram Munde and Vishal Rode alive. As they haveenjoyed the post of Sarpanch for about fifteen years, said Manik Phadhas told that these persons should be eliminated. Thereafter, role isattributed to each of the accused and then it is stated that due to theassault by the stone and iron rod, he as well as other persons receivedserious injuries. The informant then went inside his four wheeler, butall the accused persons started pelting of stones, as a result of which,damage was caused to the car. The informant then says that RajeshPhad, Rishikesh Phad, Vikas Munde and Bhagwan Phad told that gun 311 Writ Petition 207 of 2023.odtshould be taken out and shot at the informant. Again the samedialogues were stated to be repeated. The informant says that he gothimself rescued from the clutches of the accused and went to thepolice station. The police had then referred him to medicalexamination. The other persons also were referred to medicalexamination. 5The learned counsel for the petitioner submits that whenthe FIR was lodged, Section 307 of the IPC was included. However,when the charge-sheet is filed, the said Section has been dropped andthe communication to that effect has been given by the investigatingofficer on 9th February, 2023. Furthermore, all the accused were notarrested. Only one person was arrested and the investigating officeris, in fact, a tainted police officer involved in the offence punishableunder Section 302 of the IPC, but that Section came to be dropped,but in Criminal Writ Petition No.431 of 2022 decided on 10th March,2023, that step was set aside by restoring Section 302 of the IPCagainst the police officer and therefore, it is necessary that theinvestigation in this case to be handed over to the State C.I.D. 6The learned counsel for the petitioner relies on thejudgment in the case of Nirmal Singh Kahlon Vs. State of Punjaband others with companion matter, reported in, (2009) 1 Supreme 411 Writ Petition 207 of 2023.odtCourt Cases 441, wherein the Honourable Supreme Court has heldthat even the victim has a right of fair investigation. He then relies onthe judgment in the case of Babubhai Vs. State of Gujarat andothers with companion matter, reported in, (2010) 12 Supreme CourtCases 254, wherein also it is held that the investigation must be fair,transparent and judicious. 7The learned APP submits that no mala-fides have beenshown against the investigating officer. The investigating officer hasclearly stated as to how each of the accused is involved in the case. Itwas in his discretion to drop Section 307 of the IPC, for which he hasgiven reasons and therefore, there is no necessity to direct eitherfurther investigation or re-investigation. 8The first and the foremost fact to be noted is that droppingof Section 307 of the IPC at the time of charge-sheet, is not going tomake much difference, in view of the fact that though on the basis ofhis own interpretation the investigating officer by giving reasons madea communication to the learned Judicial Magistrate First Class on 9thFebruary, 2023 for dropping Section 307 of the IPC. But the powers ofthe Court are not restricted. We would point out that as per Section323 of the Cr.P.C., if at any stage, the Magistrate considers that thecase can be committed to the Court of Sessions, then he can do so. 511 Writ Petition 207 of 2023.odtTherefore, even in this case, if at any point of time, the said situationarises, which attracts the ingredients of Section 307 of the IPC, thenthe Magistrate may have recourse to Section 323 of the Cr.P.C.Therefore, that cannot be the ground for re-investigation or furtherinvestigation by an independent agency like the State C.I.D. 9As regards the alleged non-seizure of the gun isconcerned, it is to be noted that in FIR also it is stated that thoseaccused persons uttered that gun should be taken out. First of all,there cannot be such dialogue in chorus. To whom that direction wasgiven, is not clear. Further, some of the witnesses have stated aboutthe said fact. Those witnesses, who have stated that they had heard" बंदुककाढावयालागोळ्याघाला. त्यालापळूनजावुदेवुनका. यालामारल्याशि(cid:26)वाय आपणसरपंचहोणारनाहीतआशिणत्याच्यासोबतमलावश्रीराममुंडेयांनासुध्दाजिजवे मारुनटाकावएकदाचाताणसंपवुनटाका" appears to be on the basis of thedisclosure by the informant to them, because witness Sachin Landgestates that he was not aware as to who had assaulted him. WitnessVishal Rode says that he was assaulted by accused Rishikesh andSandeep and thereafter, as regards the gun is concerned, it is on thebasis of the information given by the informant to him. The same is asregards witness Shriram Munde. Under such circumstances, there isno question of seizure of any gun. 611 Writ Petition 207 of 2023.odt10In respect of seizure of scythe, non-seizure thereof maynot make much difference, if otherwise evidence shows that suchweapon was used. The spot Panchanama shows that one rod andwooden log was seized from the spot itself. 11We would like to rely on Babubhai Vs. State of Gujaratand others (supra) itself, wherein after taking note of the decision inNirmal Singh Kahlon Vs. State of Punjab and others (supra), it isobserved that not only fair trial, but also fair investigation is part of theConstitutional rights guaranteed under Articles 20 and 21 of theConstitution of India. Therefore, investigation must be fair, transparentand judicious as it is the minimum requirement of rule of law.However, it is also the observation that “the above referred judgmentsof this Court make it clear that scheme of investigation, particularly,Section 173(8) of the Cr.P.C. provides for further investigation and notof re-investigation. Therefore, if the Court comes to the conclusionthat the investigation has been done in a manner with an object ofhelping a party, the Court may direct for further investigation andordinarily not for re-investigation.The expression “ordinarily” means normally and it isused where there can be an exception. It means in the large majorityof cases but not invariably. “Ordinarily” excludes “extra-ordinary” or“special circumstances” ……..... Thus, it is evident that in exceptional 711 Writ Petition 207 of 2023.odtcircumstances, the Court in order to prevent the miscarriage of criminaljustice, if considers necessary, may direct for investigation de-novo,wherein the case presents exceptional circumstances.”12Here, the petitioner has failed to show the exceptionalcircumstances and therefore, no case is made out for exercise ofConstitutional powers of this Court. Hence, the writ petition standsdismissed. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga