Shri Roshan Lal Bhagati v. The State of Maharashtra, Ministry of Home Affairs, Mumbai through D.G. Police & Ors.

Order cri wp 766.2014.odt 2 transfer investigation and since he was not satisfied with the manner in which investigation was done by Hingna MIDC Police, he approached this Court seeking transfer of investigation.

#4. In context with above, on 24-3-2015, this Court (Coram : A. B. Chaudhari and P. N. Deshmukh, JJ.) passed following order. “INTERIM ORDER The Petitioner – Roshanlal Bagati had 01. filed a Writ Petition under Article 32 of the Constitution of India in the Apex Court and that was registered as Writ Petition [Criminal] No. 104 of 2013. After some hearing in the Writ Petition, the Apex Court made an order on 4th July, 2014, which reads thus:- “While declining to entertain the writ petition, we direct that the entire papers of this writ petition be transferred to the High Court of Bombay. We request the High Court to treat the writ petition filed in this Court as a petition filed under Article 226 of the constitution of India. We further request the High Court to dispose of the writ petition as expeditiously as possible since the pleadings between the parties are complete.”

#02. Pursuant to the aforesaid order, the papers were sent to the Registry of the Principal Seat of the Bombay High Court, and by order dated 12th August, 2014, the papers of the Writ Petition were transferred to this Bench, i.e., Nagpur Bench, which registered it as Criminal Writ Petition No. 766 of 2014 on 19th September, 2014 and that is how it came before us for the first time on 19th January, 2015 with office objections. On the same day, we appointed learned Senior Adv., Mr. Anil Order cri wp 766.2014.odt 3 Mardikar to assist us and posted the matter for further hearing on 22nd January, 2015 and thereafter this Court waited for the petitioner to respond as to whether he was satisfied with the engagement of Mr. Mardikar, or wanted to engage any other lawyer of his choice. It is for the first time, petitioner appeared through his Adv. Mr. M.K. Pandita with learned Sr. Adv. Mr. Anil Mardikar on 12th March, 2015, by which time, we saw that the pleadings were completed. On that date, we heard Advs., for the petitioner, so also the respondents, and since there there is no prayer for claiming compensation, we allowed the petitioner to amend the petition within two days and accordingly the petition has been amended to incorporate the claim for compensation. On the last date, we heard counsel for the rival parties at length and also we went through the entire record of investigation placed before us by the either of the sides.

#03. The Prayer Clause [a] of the petition shows that the investigation should be transferred to Central Bureau of Investigation and Prayer Clause a[1] inserted by way of amendment is for compensation in the sum of Rs. 70,00,000-00.

#04. After hearing the learned counsel for the rival parties and upon careful perusal of entire papers of investigation, we find that the Police Station Officer, MIDC, Hingana, did not make the investigation, or rather the Investigating Officer did not make the investigation and obviously we are not at all satisfied with the same for the following reasons:- [i] The dead body of the son of petitioner, deceased Yogesh, was found on 16th November, 2012 at 12.32 noon on the terrace of the building where he was residing as a student of an Engineering College located in the area. There was a polythene bag over the face of Yogesh, a beer bottle near the dead body, an empty bottle of whitener thinner and some unknown powder. Though all these articles were seized, they were not sent for Order cri wp 766.2014.odt 4 chemical analysis and no reasons are forthcoming. [ii] The deceased was having Mobile PhoneNo. 9175725784 and though CDR information was sought, the investigation even worth the name in relation thereto was not made. That was essential to find out, upon opening the cell phone, the details of phone calls, messages, chatting material on the fateful night and shockingly enough, the same was erased though the mobile handset was in the custody of MIDC police. [iii] A girl by name Nitu Meshram was said to be close to deceased Yogesh and her statements were recorded on 16th November, 2012, 3rd August, 2013 and 11th December, 2013. It is clear from her statements that Yogesh was alive and was in her contact till the morning of 16th November, 2012 upto 8.00 a.m. Her statements further reveal that deceased was in some party, but there was some altercation or fight with his friends. Deceased was constantly chatting with Nitu. However, no investigation worth the name was made about the altercation, if any, with the friends, the details thereof, the phone calls, text messages etc., and by merely recording her statements, the Investigating officer stopped there. [iv] The report of the Chemical Analyzer indicated no traces of poison during analysis of viscera, while the Medical Officer on 13th August, 2013 insisted that the death was because of poisoning and the findings of the post mortem were consistent with the death by poisoning. The Investigating Officer refused to buy any other theory and stuck up on his stand or presumption that the death must have been caused by consumption of whitener by Yogesh and, therefore, he did not explore further. The component of whitener is Toluene which is organic chemical and it does not get evaporated, but gets absorbed in the stomach or intestine. But then, there was no serious forensic investigation also. Order cri wp 766.2014.odt 5 [v] Investigating Officer did not collect the evidence as to the movements of the deceased and his friends or the events to the earlier night or as the case may be.

#05. In our opinion, the above circumstances are clear enough for our satisfaction that the Police Station Officer, MIDC Hingana Police Station, should not be allowed to conduct the investigation and as yet he did not register any FIR for the above reasons. It is of no use to ask the MIDC Hingna Police Station to conduct the investigation any more.

#06. In so far as the prayer for handing over of investigation to Central Bureau of Investigation [CBI] is concerned, we find that this is not a fit case to do so. In the presence of the petitioner and his counsel Mr. Pandita and Mr. Mardikar, Sr. Adv., during the course of arguments, various suggestions were made from the Bench as well as Bar and today Mr. Pandita informed this Court that the petitioner as well as he and Mr. Mardikar, learned Sr. Adv., would like that the investigation is handed over to Mr. Pradeep Lande, Police Inspector, Crime Branch, Nagpur, forthwith, under the supervision of his superior officer. There is an explicit consent given by them for the said purpose. The counsel also prayed that the petition should be kept pending and the investigations should be monitored by this Court, with which we agree. The counsel also prayed for issuing an order of compensation. We decline to make any order for compensation at this stage, since there is no occasion for us to record any finding either way and, therefore, the issue about the prayer for compensation shall be decided at the final hearing of the Writ Petition by this Court.

#07. interim order:- To sum up, we make the following O R D E R [a] Shri Pradeep Lande, Police Inspector, Crime Branch, Nagpur, with the consent of the parties, shall stand appointed as Investigating Officer in this case, who shall collect all the Order cri wp 766.2014.odt 6 papers from the Police Station Officer, MIDC Police Station, Nagpur, on or before 27th March, 2015 and shall take steps according to law, including registration of offence on or before 06th April, 2015, and make a report to this Court as to the progress after commencement of investigation by submitting a First Report to this Court on 16th April, 2015 at 10.30 a.m. [b] The Additional Commissioner of Police [Crimes], Nagpur, shall supervise the investigation to be undertaken by Mr. Pradeep Lande carefully and issue suitable guidelines to him. Stand over to 16th April, 2015.”

#5. Thus, the Court noticed several lapses in the investigation and accordingly, transferred the investigation to one Shri Pradeep Lande, Police Inspector, Crime Branch, Nagpur. The Additional Commissioner of Police (Crime), Nagpur was directed to supervise the investigation.

#6. Shri Pradeep Lande conducted investigation and found no evidence against the suspects. Accordingly, he proposed ‘C’ summary and filed before the Jurisdictional Magistrate on 14-7-2016. Affidavit to that effect is filed on record.

#7. Thus, despite investigation having been handed over to special officer of a choice of petitioner, the evidence against suspect was not found. That being so, and since nobody is appearing for the petitioner, we are of the view that no purpose will be served by keeping the petition pending. The petition is accordingly disposed of. Order cri wp 766.2014.odt 7

#8. The amount of Rs. 10,00,000/- (Rupees Ten Lakhs) shall be paid back with accrued interest to State of Maharashtra.

#9. The petition is disposed of in terms of above. (JUDGE) (JUDGE.) wasnik