Rajkumar Kishanlal Awasthi Vs A.N. Roy and Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL WRIT PETITION NO. 668 OF 2007

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 RAJKUMAR KISHANLAL AWASTHI .. PETITIONER

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 Versus

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 Mr. A. N. ROY
 Commissioner of Police & Ors. .. RESPONDENTS

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 Smt. Anjali Iyer for petitioner

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 Mrs. U.V. Kejariwal, APP

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 CORAM:-SMT. RANJANA DESAI &
 D. B. BHOSALE, JJ.

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 DATED:-7/6/2007

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 P. C.

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 . The petitioner was detained under an order of
 detention dated 29/12/05 passed by the Commissioner
 of Police, Brihan Mumbai. That detention order was
 based on two cases and three incamera statements
 made by witnesses A,B & C . By order dated 30th
 May, 2006, the order of detention was set aside.
 The learned counsel for the petitioner at that
 stage argued that the petitioner had preferred an
 application before the learned Magistrate that he
 was falsely implicated and this aspect should be
 investigated into. On that application the learned
 Magistrate passed an order directing investigation.

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 It was argued that the said application and the
 said order was not taken into consideration by the
 detaining authority and hence the order of
 detention was vitiated. This court was impressed
 by this argument and the order of detention was set
 aside. It is pertinent to note that this court has
 not held that the incamera statements were not
 genuine. The judgment also does not indicate that
 it was argued before this Court that incamera
 statements were fabricated.

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 2. In this petition the petitioner has prayed;

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 a) That this Hon’ble Court may be pleased to issue
 appropriate order, direction and/or writ directing
 the respondents to forthwith withdraw the
 allegations / statements made by the Witnesses "A",
 "B" and "C" and recorded by the respondent No. 2;

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 . OR

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 b) That this Hon’ble Court may be pleased to direct
 the Central Bureau of Investigation to investigate
 the allegations made against the petitioner in
 three in camera statements of Witnesses "A", "B"
 and "C" framed by the respondents at the behest of

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 influential persons.

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 4. By the first prayer the petitioner is seeking
 order and direction to the respondents to withdraw
 the allegations made by witnesses A, B & C. Such
 prayer in the nature of things cannot be granted.
 Respondents cannot withdraw the allegations made by
 witnesses A, B & C.

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 5. By the second prayer the petitioner is seeking
 direction to the C.B.I. to investigate into the
 allegations made by the witnesses A,B & C. The
 learned counsel for the petitioner has placed
 reliance on the judgment of the Supreme Court in
State of Haryana v. Bhajan Lal, 1992 SCC (Cri.)
426 and a judgment of this court in Dnyandeo
Krishna Choudhary & Anr. v. The State of
Maharashtra & Ors, 1999 All MR (Cri.) 284 and

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 contended that if the statements made by the
 witnesses disclose cognizable offence, it was
 obligatory on the police to record F.I.R. and
 conduct investigation. She submitted that the
 alleged statements have an adverse impact on the
 petitioner’s character and, therefore, a direction
 may be issued to the police to register F.I.R. and
 investigate the offence. The petitioner must get a

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 chance to prove his innocence. We are not
 impressed by this submission.

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 6. Incamera statements are recorded because the

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 witnesses are not willing to disclose their
 identity out of fear of reprisal at the hands of
 the person against whom the statements are made.
 These statements are recorded after giving
 assurance to the witnesses that their names and
 identity will not be disclosed. It is, therefore,
 not possible to give any direction to the police to
 register FIR and investigate into those cases.

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 7. In this connection we may refer to the judgment
 of this court in Sachin Nikam v. Commissioner of

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Police & Ors., 2005 All MR (Cri.) 1684 wherein

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 somewhat similar contention was raised. This court
 referred to the judgment of the Supreme Court in
Bhajan Lal’s case and also the judgments of the
 Supreme Court where the Supreme Court has upheld
 the orders of detention issued on the basis of

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 incamera statements and rejected the said
 submission. If the witnesses are not willing to
 come forward to prosecute the cases, the police

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 cannot force them to do so. Statements of such
 witnesses are recorded on the condition of

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 anonymity. If the police register cases that would
 lead to disclosing identity of the witnesses. That
 will also frustrate the purpose of incamera
 statements. This submission of Ms. Aiyer must,
 therefore, be rejected.

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 8. We have been taken through the judgment of the
 Kerala High Court in Mani v. State of Kerala, 1987
Cri. L.J. 1965. In our judgment the said
 judgment is not applicable to the facts of the case
 because it does not pertain to incamera statements.

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 9. The petition is, therefore, rejected.

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 JUDGE.

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 JUDGE.

Rajkumar Kishanlal Awasthi v. A.N. Roy and Ors.

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Rajkumar Kishanlal Awasthi v. A.N. Roy and Ors.

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