Allowed

Sayaji Bapuji Desai v. Shankar Piraji Chougule and Ors.

Bombay HC16 Aug 2012WP/473/2012

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting an application under CrPC 156(3) to reopen an investigation and implicate a police officer as an accused. The High Court relied on Saciri Vasu to hold the rejection erroneous regarding the availability of Section 156(3) powers and set aside the impugned order.

What did the court decide?

The decision of the Special Judge dated 15.11.2011 was set aside and the application restored to the Special Judge to reconsider on its own merits.

Sayaji Bapuji Desai Vs Shankar Piraji Chougule… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE

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WRIT PETITION NO.473 OF 2012

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Sayaji Bapuso Desai ... Petitioner

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Vs.

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Shankar Piraji Chougule & Ors. .... Respondents

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Mr.S.V. Kotwal a/w Neel Helekar for the Petitioner Mr.K.V. Saste, APP, for the Respondent – State

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CORAM: A.M. KHANWILKAR & A.R. JOSHI, JJ.

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DATED: 16.8.2012

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P.C.:

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Heard Counsel for the parties.

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Rule. By consent, Rule made returnable forthwith and heard finally.

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This Petition under Article 226 of the Constitution of India has

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been filed to direct the respondents to transfer investigation of C.R. No.150 of 2006 registered with Junarajwada Police Station, Kolhapur. The Petition is also challenging the order passed below exhibit 10 dated 15.11.2011. The incidental relief claimed is to direct the investigating agency to include the name of Respondent No.1 as accused in

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connection with C.R. No.150 of 2006.

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It is not in dispute that the petitioner had filed application u/s 156(3) of the Code before the Special Judge praying for issuing direction to the Investigating Officer to reopen the investigation of the case and to add Deputy Superintendent of Police - Shri Chougule - as one of the accused in the present case, in view of the overwhelming material indicating his complicity in the commission of the offence. That application has been rejected by the Special Judge on 15.11.2011. In paragraph 9 of the impugned judgement, the Special Judge has adverted to relevant aspects. However, he has not specifically dealt with the material which the petitioner relies on, which is suggestive of involvement of Respondent No.1 in the commission of the alleged offence, Besides, the Special Judge has proceeded on the basis that the remedy of application filed for reopening of the investigation is not available u/s 156(3) of the Code. The petitioner has accordingly, challenged the decision of the Special Judge on the above basis.

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Taking the last point first, the petitioner has relied on the decision of the Apex Court in the case of Sakiri Vasu vs. State of Uttar Pradesh & Ors. , (2008) 2 SCC 409 . In paragraphs 15 to 17, the Court has specifically dealt with the question as to whether the Magistrate has

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powers to direct reopening of the investigation even after the police has submitted final report. That issue has been answered in favour of the complainant. The Court has held that the Magistrate has ample powers to issue directions to the investigating agency to undertake further investigation in exercise of powers u/s 156(3) of the Code. The Court has found that the powers available u/s 156(3) of the Code are independent and are not affected by the powers available u/s 173 (8) of the Code. Considering this legal position, the opinion recorded by the Magistrate that the remedy u/s 156(3) of the Code was unavailable to the Petitioner, cannot be countenanced and will have to be set aside.

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Since the Special Judge has proceeded on an errorneous basis on this legal issue, he has committed manifest error and the appropriate course is to set aside the impugned decision and relegate the case to the Magistrate with direction to reconsider the application at exhibit 10 on its own merits, afresh, in accordance with law uninfluenced by the observations made in paragraph 9. We are inclined to do so, as the grievance of the petitioner that relevant documents which the petitioner had relied to indicate complicity of Respondent No.1 in the commission of offence, have not been adverted to by the Special Judge, much less consider, can also be examined by the Special Judge afresh.

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Accordingly, this petition succeeds in part by setting aside the decision of the Special Judge dated 15.11.2011 below exhibit 10 in Special Case No.3 of 2008 and instead, the said application is restored to the file of the Special Judge, Kolhapur for reconsideration thereof on its own merits in accordance with law keeping in mind the observations made hitherto.

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We make it clear that we are not expressing any opinion on the other reliefs claimed by the petitioner to transfer the investigation to CBI or any other independent agency. If the petitioner is content with the decision of the Special Judge below exhibit 10, it may not be necessary to consider the said relief to transfer the investigation to another agency. Keeping all questions in that behalf open, the petition is disposed of. The petitioner shall appear before the Special Judge on 3.9.2012 when the Special Judge may proceed to pass appropriate order or schedule the hearing of exhibit 10 on some other date, to be decided expeditiously.

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9. Writ petition is disposed of accordingly.

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(A.R. JOSHI, J.) (A.M. KHANWILKAR,J.)

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Sayaji Bapuji Desai v. Shankar Piraji Chougule and Ors.

Case brief

What is this about?

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Sayaji Bapuji Desai v. Shankar Piraji Chougule and Ors.

Case brief

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