Partly allowed

Narmadabai Vijayanand Sonawane v. the State of Mah and Ors.

Bombay HC20 Mar 2012WP/5/2012

Case brief

AI extract

What is this about?

Petitioner sought transfer of murder investigation to CBI alleging political influence and biased police conduct. Court found sufficient grounds to doubt investigative fairness, ordered transfer away from current officer, and directed DSB to designate a new officer under CBI supervision.

What did the court decide?

Petition allowed partially; investigation transferred from current officer to a newly appointed officer under supervision of District Superintendent of Police, with directions to complete investigatio

Narmadabai Vijayanand Sonawane Vs the State of Mah… — Criminal Trial and Appeal | Bombay HC (2012)

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Cri.W.P.No. 5/12

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 5 OF 2012

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Narmadabai w/o. Vijayanand Sonawane, Age 26 years, Occu. Household & Agriculture, R/o. At Post Sadegaon, Tal. Ambad, Dist. Jalna. ....Petitioner.

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Versus

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The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai.

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The Investigating Officer, Kaij Police Station, Tq. Kaij, Dist. Beed.

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Central Bureau of Investigation, Through its Superintendent, Pune.

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Nanasaheb s/o. Patilbuba Honda, Age 45 years, Occu. Agriculturist,

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Prakash s/o. Sarjerao Khoje, Age 32 years, Occu. Agriculturist,

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Shivaji s/o. Ravsaheb Honde, Age 35 years, Occu. Agriculturist,

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Balu s/o. Nandu Honde, Age 25 years, Occu. Agriculturist,

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Satish s/o. Annasaheb Honde, Age 35 years, Occu. Agriculturist,

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Anirudh s/o. Chandrabhan Honde, Age 40 years, Occu. Agriculturist,

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Cri.W.P.No. 5/12

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Rajendra s/o. Tukaram Shinde, Age 35 years, Occu. Agriculturist,

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All R/o. At Post Sadegaon, Tq. Ambed, Dist. Jalna.

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Shivaji s/o. Vithalrao Doiphode, Age Major, Occu. Service, R/o. C/o. Kaij Police Station, Kaij, District Beed. ....Respondents.

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Mr. S.S. Jadhavar, Advocate for petitioner.

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Mr. S.D. Kaldate, A.P.P. for State.

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CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ.

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RESERVED ON : 1st March, 2012.

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PRONOUNCED ON : 20th March, 2012.

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JUDGMENT : [PER T. V. NALAWADE, J.]

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Rule. Rule made returnable forthwith by consent of the petitioner and the State. No notice was issued to remaining respondents. The present Investigating Officer of the case has filed affidavit in reply.

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The petition is filed under Article 226 of the Constitution of India for transferring the investigation of Cr. No. 351/2011 registered with Kaij Police Station, District Beed from the police to Central Bureau of Investigation ("C.B.I." for short).

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This Court has perused the copies of papers of investigation including the case diary. The State and the Investigating Officer have opposed the proceeding and have contended that the relief claimed in the petition cannot be granted.

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It is true that in view of provisions of sections 154, 156 and 173 (8) of Criminal Procedure Code ("Cr.P.C." for short), statutory power is given to police to investigate cognizable case. In view of the statutory power given to police in ordinary course, even the High Court is not expected to interfere in the investigation. However, there may be exceptional circumstances and when non interference would result in miscarriage of justice, the High Court cannot watch the things as a passive spectator. If the acts of police, Investigation Officer shake the confidence of common man and there are grounds for the same, non interference by the Court would shake the confidence of common man in criminal justice system itself. It also needs to be kept in mind that under section 173 (8) of Cr.P.C., after filing of the chargesheet the Court can ask for further investigation. In the case reported as AIR 1985 SC 1668 [Eastern Spinning Mills

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And Ors. vs Shri. Rajiv Poddar And Ors. ] , the Apex Court has discussed the position of law in this regard. This Court has no hesitation to observe that in exceptional cases, when non

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interference by the High Court in the investigation would cause miscarriage of justice, the Court must interfere in the investigation and give direction to take proper steps. Some times there are problems like incompetency of Police Officer, use of political influence by party interested and due to that the investigation is not made efficiently or fairly. So, if there are grounds, Investigating Officer or agency can be changed. This Court is aware of its limitations. The Court is not expected to disclose the material contained in police diaries and statements of witnesses recorded under section 161 of Cr.P.C. However, general observations can be made by the Court, if the Court finds that the investigating agency has not acted efficiently and vigilantly. The Court can take steps to see that the investigation is made in efficient manner and without getting influenced due to pressure of any side.

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The present case may be based entirely on circumstantial evidence, if at the end, some case for offence punishable under section 302 of Indian Penal Code is made out. When the case is entirely based on circumstantial evidence, the investigation needs to be effective and fair. It can be said that the fairness must be shown to both the sides and no party should have grievance in such cases. In the present case, the petitioner

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has made allegations that the opposite side can yield political influence and she has feeling that, due to the political influence of opposite side, investigation is not being made fairly. The Judicial Magistrate, First Class has directed the police to make investigation by making an order in private complaint filed by the petitioner under section 156 (3) of Cr.P.C. The incident took place on the night between 9.10.2011 and 10.10.2011. On 14.10.2011 first time the persons of side of petitioner expressed suspicion that it is a case of murder and some persons of rival political group are involved. Allegations are made against one person that he was in the company of deceased right from evening of 9.10.2011 and there is possibility that he has joined hands with the opposite party. In spite of the specific allegations made by the petitioner and the persons from her side, no arrest was made by the present Investigating Officer or the previous Investigating Officer, even of the person, who was, according to the petitioner, was in the company of deceased from the evening of 9.10.2011. On 29.11.2011 the private complaint came to be filed and then the investigation was handed over to present Investigating Officer. Previous Investigating Officer is made accused in the private complaint filed by the petitioner. These circumstances need to be kept in mind in the present matter.

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The deceased Vijayanand Sonawane was the husband of petitioner and he was a resident of village Sadegaon, Tal. Ambad, Dist. Jalna. In this village, there are two political rival groups and the deceased was supporting one Kanta. It is contended that accused Nos. 1 to 6 mentioned in the private complaint are of group of one Honde. In respect of one incident, which had taken place 9 months prior to incident in question, there was attempt on the life of Kanta and out of that incident, police filed case of offence of attempt of murder against few persons of Honde group. Since then the relations were more strained. It is contended by petitioner that the opposite side has feeling that Kanta survived only because deceased Vijayanand had supported Kanta and had helped him to save his life. Due to such feeling opposite side had developed a grudge against the deceased.

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There are allegations that from about one month prior to the incident one person of village of deceased had developed contact with the deceased and this person has joined hands with opposite side. The said person had helped the deceased by giving Rs. 30,000/- and he had promised to give more amount to deceased for laying pipeline in the field of the deceased. This

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person had helped the deceased for taking out motor pump from the well of deceased as the repairs of the motor pump were required. This person was known to the widow of the deceased.

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Allegations are made by the widow of deceased that on 9.10.2011 at about 5 p.m. the deceased left the village for Georai on his motorcycle and he had taken the motor pump on his motorcycle. She has contended that the deceased had informed that the aforesaid person was to give him company. Affidavit is filed of one Dilip Sonawane, resident of Georai and he has contended that in the evening of 9.10.2011 the deceased had called him to one garage from Georai and there, he had seen the aforesaid persons in the company of deceased. The deceased, the said person and Dilip had taken tea together in one hotel and then the motor pump of deceased was kept in the shop of Dilip. As the garage owner was demanding more amount, the deceased had decided to take the motor pump to Ambad and till then the motor pump was to be kept in the shop of Dilip. In the night time, the deceased had left the company of Dilip with the aforesaid person on his motorcycle. On that night, the deceased had contacted other relatives and he had informed that as it was late, he was not likely to return to village Sadegaon on that night and he would return on the next day.

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On 10.10.2011 the dead body of Vijayanand was found with his motorcycle by the side of Marsajog road. One unknown person informed to the relatives of deceased on the mobile phone of deceased that the dead body of deceased and motorcycle were lying there and that was done after 7-00 a.m. Information was given to police by the relatives of deceased and the police reached there at about 10.00 a.m.

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Some portion of dead body was lying on the tar road and some portion was by the side of the portion of the tar road. The motorcycle was on its stand at some distance from the dead body. They were found on the wrong side of the road. There there bleeding injuries on the head. The dead body was referred for P.M. examination and the external injuries found on the dead body were as follows :-

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(i) C.L.W. over frontoparital region, 6 x ½ x 1 cm

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(ii) C.L.W. over occipitoparital region, 5 x ½ x 1 cm

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(iii) Abrasion over front of neck, ½ x ½ cm

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(iv) Abrasion over right chest, 3 x 1 cm

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(v) Burn over right side of back in lumber region, 10 x 10 cm

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(vi) Abrasion over above burn 5 x 1 cm

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Cri.W.P.No. 5/12

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There were fractures of parietal bones. There was intracranial hemorrhages and subdural hemorrhage over occipital region. The death took place due to cardiorespiratory arrest due to head injury and due to hemorrhage in brain. The doctor could not give definite opinion as to whether such injuries can be caused in accident or in violence. On the same day, A.D. was registered and the investigation was made by the police officer of the concerned police station, who is now made accused. It appears that from 14.10.2011 the persons of the side of deceased started making allegation that it was a case of murder. The information about aforesaid person who was in the company of the deceased was given to police. The persons from Gevrai, who had seen the deceased in the company of aforesaid person in Gevrai, also gave information to police about the said person. Even when some specific names were taken, no arrest were made and no steps were taken to hold identification parade. The Police Officer Doiphode, who was attached to concerned police station, made investigation till 29th and then the investigation was taken over by present Investigating Officer and that was done after making of order by Magistrate in a private complaint, in which Doiphode is made accused. The new Investigating Officer also did not effect arrest.

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There are following circumstances which create suspicion about the manner in which the investigation was made and which also create a probability that it is not an accident and it is a case of murder. The circumstances are as follows :-

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(i) The deceased was not to return to his village on that night. He was expected to take the motor pump to Ambad on the next day and after making repairs of the motor pump, he was to return to village on the next day.

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(ii) The motor pump which was taken by the deceased to Georai was not with the motorcycle and it was still with Dilip. So, the deceased was probably not returning home.

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(iii) As per the P.M. report, the death had taken place within 14 hours before the time of starting of P.M. examination, but prior to 10 hours from the time of starting of the P.M. examination. Thus, probably the death took place between the midnight hours and 4.00 a.m. of 10.10.2011. In spite of that on this road, dead body was detected after 7.00 a.m. of 10.10.2011.

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(iv) The medical opinion is not certain that it is a case of accident. The injuries were mainly found on the head and no substance which had caused the bleeding injury was found in the vicinity of the dead body. Some blood was found on left lower portion of motorcycle and so that could not have caused the head injuries.

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(v) On the spot, on the road, there was no sign of accident and no such sign was mentioned in spot panchanama. Only after making inquiry by this Court, few photographs came to be produced to show that there was one mark, but that mark is not visible in other photograph in which the dead body is appearing. It needs to be ascertained as to whether the photographs in respect of the marks were taken on the same day. There was no blood on the road and there were no pieces of broken plastic covers of indicator etc. on the road.

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(vi) Even when specific name of the person who was in the company of deceased right from evening

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of 9.10.2011 was given, no action was taken by the police. One person was seen in the company of deceased in Georai on the night between 9th and 10th by Dilip, but no proper steps were taken like holding of identification parade. It could have been immediately ascertained whether the person who is named by widow, was in the company of deceased in Georai.

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(vii) One carton, a box, was shown by the relatives of the deceased to police on 14th and it was lying at some distance from the dead body, but no record in respect of carton was prepared and only after making the query in this proceeding some record was created. It could have been ascertained as to who is the owner of the box or from where it was collected.

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(viii) As per the version of Dilip, deceased was to stay on that night at a place near Georai or in Georai, but no investigation is made on that line.

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(ix) The deceased was made accused in one murder case and that case was still pending, but no

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investigation is made on that line also.

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(x) Some record was created only after filing of affidavit by Dilip in the Court and only after making of queries by this Court in the present proceeding.

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(xi) No urgency was shown in the investigation and the record shows that the Investigating Officer did not believe the petitioner and witnesses, but he believed the suspects.

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The aforesaid circumstances show that there are sufficient grounds for the petitioner to doubt about the fairness of investigation. Thus, question of credibility of Investigation Officer is raised in the proceeding. One accused is a Police Officer and allegations are there that he was helping the other side and so the incident took place within local jurisdiction of police station of this Officer. So, this Court holds that there is sufficient material to transfer the investigation from the present Investigating Officer.

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In one case reported as 2011 Vol. 113 (4) Bom. L.R. 2175 (Shamin @ Chintu Jamaluddin Shaikh Vs. The Senior Inspector of Police, Mumbai and Ors.) , the Division

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Bench of this Court has discussed the powers of High Court to transfer the investigation to C.B.I. There is no dispute that this Court can direct the police to hand over the investigation of the present case to C.B.I. This Court holds that the Superintendent of Police can be trusted and a direction can be given to him to see that a competent Police Officer is appointed to make the investigation of the case. The purpose can be achieved by giving direction to Superintendent of Police to supervise the investigation till the end. So the following order.

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O R D E R

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(I) The petition is partly allowed.

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(II) The District Superintendent of Police, District Beed, to place the investigation papers and copy of this order before the Inspector General of police of the concerned region.

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(III) The District Superintendent of Police shall take instructions from the Inspector General of Police and after consulting the Inspector General of Police, the District Superintendent of police to nominate new investigating officer for investigating Crime No. 351/2011 registered at Kaij Police Station, District Beed.

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(IV) The District Superintendent of Police, Beed shall supervise the investigation till filing of the report.

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(V) The Investigation papers submitted to this Court shall be handed over in a sealed cover to the newly appointed investigating officer by the District Superintendent of Police. The newly appointed Investigating Officer shall complete the investigation within three months from the date of handing over of the investigation of this case.

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(VI) The new Police Officer is not to get influenced even by the observations made by this Court in the present proceeding and it is to be presumed that no observations are made with regard to the merits or other circumstances of the case for the purpose of investigation.

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(VII) Rule is made absolute in aforesaid terms.

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[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]

ssc/

P.T.O.....

Cri.W.P.No. 5/12

(VIII) The sealed papers of investigation submitted to the Court by the Investigating Officer are handed over to Shri. S.D. Kaldate, learned A.P.P. for the State, after pronouncement of the order.

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(IX) Authenticated copy of this order be provided to Shri. S.D. Kaldate, to act upon.

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[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]

Narmadabai Vijayanand Sonawane v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Narmadabai Vijayanand Sonawane v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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