High Court
Legal Reasoning
Corrected Crwp819-22.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 819 OF 20221.Badrinath @ Badri Punjaram DangeAge 41 years, Occu: Agri.R/o Lohagaon Tq. Paithan Dist. Aurangabad2. Jaishree @ Jayabai w/o Dnyaneshwar ItapheAge 38 years, Occu: Household,R/o Lohagaon Tq. Paithan, Dist. Aurangabad3. Dnyaneshwar s/o Murlidhar IthapeAge 53 years, Occu: Agri.R/o Lohagaon Tq. Paithan, Dist. Aurangabad… PetitionersVERSUS1.The State of MaharashtraThrough Police Station, BidkinDistrict Aurangabad.2.Ramrao Damodhar Kanthale,Age 74 years, Occu: Agril.R/o Susare Tq. Pathardi,District Ahmednagar...RespondentsMr. Sudarshan J. Salunke, Advocate for the Petitioners,Mr. S. B. Narwade, APP for the Respondent/StateMr. C. K. Shinde, Advocate for Respondent No.2.CORAM : Y. G. KHOBRAGADE, J.Dated : 16th December, 2024.JUDGMENT:-1. Rule. Rule made returnable forthwith and with the consent of theparties, heard finally at the stage of admission.Page 1 of 8
Legal Reasoning
Corrected Crwp819-22.odt2. By the present Petition, the Petitioners take exception to the orderdated 30.03.2022 passed by the learned Additional Sessions Judge,Aurangabad in Criminal Revision No. 148 of 2021 thereby reversed orderdated 16.06.2021 passed by the learned JMFC, Paithan of accepting "A"Summary Report No. 01/2020 submitted by the Investigation Officer inCrime No. 32 of 2016 registered with Bidkin Police Station, DistrictAurangabad.3. In case in hand, the only question arises that, whether thePetitioners/ suspects to the crime can be said to be the aggrieved personsto the order of setting aside order of acceptance of “A” summery report?4. In order to ascertain above question, necessary facts aresummarized as under: The informant/respondent No.2 lodged a oral Report on03.02.2016 with Bidkin Police station alleging that, in the 1989, themarriage of his druthers Pushpabai solemnized with the Petitioner no. 3Shri Dyaneshwar Murlidhar Ithape, however, the petitioner no. 3performed 2nd marriage with the Petitioner No. 2 Smt. Jayabai Ithape. Hisanother married daughter Smt. Sharda Narayan Ithape and his son-in-lawShri Narayan Ithape are residing at Lohagaon Tq. Paithan DistrictAurangabad. His daughter Smt. Sharda Narayan Ithape had informed himPage 2 of 8 Corrected Crwp819-22.odtabout existence of extra marital relationship between the Petitioner No. 1Shri Badri Punjaram Dange and the petitioner No. 2 Smt. Jayabai Ithape,the second wife of the Petitioner No. 3 Shri Murlidhar Ithape. It is furtheralleged that, his daughter Smt. Sharda had also informed him that, thePetitioner no. 1 Shri Badri Dange always visiting at the house PetitionerNos. 2 & 3. His married daughter Smt. Pushpabai is the witness to theillicit relations between the Petitioner no. 1 and petitioner no. 2.Therefore, the Petitioners 1 to 3 have committed murder of his marrieddaughter Mrs. Pushpabai Dnyaneshwar Ithape in between 31.07.2014 to06.08.2014 to remove obstruction in illicit relations and disposed off herdead body. On the basis of said report, Crime No. 0032 of 2016 came tobe registered with the Bidkin Police Station against the petitioners for theoffences u/s 302,201 r/w sec. 34 of IPC. The petitioners are enlarged onpre-arrest bail by this Court.5.The Investigating Officer conducted the investigation,however, no substantial evidence found to file charge sheet against thepetitioners/ accused, hence, the Investigating Officer filed "A' SummaryReport u/s 173 and requested for acceptance of the said. On 16.06.2021,the learned JMFC, Paithan passed an order and accepted the said "A"Summary Report. Being aggrieved by said order, the respondentNo.2/informant filed Criminal Revision Application No. 148 of 2021 andPage 3 of 8 Corrected Crwp819-22.odtchallenged the order of acceptance of “A” Summery Report. On30.03.2022, the learned Sessions Judge passed the impugned orderholding that merely because the Magistrate has accepted the "A" SummaryReport it would not preclude the Investigating Officer to invoke provisionsof Section 173(8) of the Cr.P.C. and to continue further investigation. 6. The learned counsel for the Petitioners canvassed in vehemencethat, after due investigation, the Investigating Officer filed a report underSection 173 and requested for acceptance of the said "A' Summary report.On 16.06.2021, the learned JMFC, Paithan passed an order and acceptedthe "A" Summary Report. However, the respondent No.2/informant filedthe Criminal Revision Application No. 148 of 2021 and challenged theorder of acceptance of "A" Summary Report. On 30.03.2022, the learnedSessions Judge passed the impugned order holding that, merely becausethe learned Judicial Magistrate has accepted the "A" Summary Report itwould not preclude the Investigating Officer to invoke provisions ofSection 173(8) of the Cr.P.C. and to commence further investigation. Sincethe married woman reported to be missing from her matrimonial abodeand even after lapse of 3 years, no clue about her whereabout has beenrevealed. Therefore, the Investigating officer has to investigate in thecrime and can try to detect the crime. The Police machinery can on it’sown continue the investigation. Hence, set aside the order of acceptancePage 4 of 8 Corrected Crwp819-22.odtof "A" summary report. 7. In the case in hand, on 03.02.2016, Crime No. 32 of 2016 came tobe registered as against the present Petitioners being suspects on suspicionabout kidnapping and committing murder of Pushpabai DnyaneshwarIthape and disposing off her body. It is matter of record that, theInvestigation Officer conducted investigation but failed to collectsubstantial evidence as against the present petitioners, therefore, the I.O.filed the “A” Summery Report in Crime No. 0032 of 2016.8. On perusal of "A" summary report it appears that, theInvestigating Officer recorded statements of 24 witnesses, however, thematerial collected during course of investigation it did not find sufficientto file charge sheet against the present Petitioners. Further theInvestigating Officer took search of missing Smt. Pushpabai Ithape atvarious places including public places, pilgrimages, etc. Needless to saythat, the Investigating Officer had sought permission to conductpolygraphic test and brain mapping test of the present petitioners/suspects, however, the petitioners/ suspects are declined to under go saidtests. 9.No doubt, without consent of the accused, polygraphictest or brain mapping test is not permissible as it is violative of Article 21Page 5 of 8 Corrected Crwp819-22.odtof the Constitution of India as per the law laid down by the Hon'bleSupreme Court in Selvi v. State of Karnataka (2010) 7 SCC 263 : (2010)3 SCC (Cri) 1] State of Gujrat Vs. Shamlal Mohanlal Chokshi, AIR 1965 SC1251. 10. Needless to say that, on 16-06-2021, the learned Judicial MagistrateFirst Class, Paithan passed an order and accepted the “A” Summery Report.Since, the Respondent No.2/complainant, having right to oppose theacceptance of "A" summary report, therefore, he filed Cri. R. A. No. 148 of2021 before the learned Session Court. On 30.03.2022, the learnedAdditional Sessions Judge passed the impugned order and set asideorder of acceptance of "A" summary report passed on 16.06.2021 by thelearned JMFC, Paithan and kept open the investigation under section173(8) of Cr.P.C.11. Section 173(8) of Cr.P.C. provides as under:"Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer-in-charge of the policestation obtains further evidence, oral or documentary, he shallforward to the Magistrate a further report or reports regardingsuch evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation tosuch report or reports as they apply in relation to a reportforwarded under sub-section (2)."Page 6 of 8 Corrected Crwp819-22.odt12. On consideration of Sec.173(8) it appears that, the InvestigatingOfficer can continue the investigation in crime and collect evidence infuture and upon collection of the same submit report to the Magistrate asprovided under sub section (2) of Section 173 of the Cr.P.C.13. In Kekoo J. Maneckji Vs. Union of India and others, 1980 Cri.L.J.258, the Division Bench of this Court held that, even assuming that issueof letters rogatory was wholly illegal and without jurisdiction, interferencewith that order would be wholly academic because manner in whichdocuments are required was not relevant for determining their probativevalue. It is further held that the Petitioner had also no locus standi toquestion the manner in which evidence was being collected.14. Similarly, in case in hand, as on today, the Investigationofficer has not collected the evidence as against the presentpetitioners/suspects to implicate them in the Crime No. 0032 of 2016registered with the Bidkin Police Station. However, as per provisions ofSection 173(8) of Cr. P. C., the Investigating Officer cannot be precludedfrom collecting evidence against the present petitioner's or any otherpersons in respect of said crime. Therefore, I am on view that, the presentpetitioners/suspects have no locus to challenge the order of setting asidethe order of acceptance of "A" summary report, hence, I answer the abovequestion in negative.Page 7 of 8 Corrected Crwp819-22.odt15. In view of above discussion, I do not find that the impugned orderis perverse, illegal or bad in law. Accordingly, present Writ Petition isdismissed. Rule discharged. ( Y. G. KHOBRAGADE, J. )JPChavanPage 8 of 8