Friday, 2 April 2021

Whether investigating officer is liable for departmental enquiry if he fails to investigate the offence properly to shield the accused?

 The first glaring lapse in the investigation, left by Mr. Khatane, is that he did not prepare a seizure panchanama of the said car. It cannot be ignored that the  said car belonged to the accused – Police Sub-Inspector at Aurangabad, who was believed to be on duty and was believed to  be driving the said vehicle when the accident occurred.

9. From the above, it is obvious that the then I.O. Mr.

Khatane has seriously failed in properly investigating into the crime, as has been noted by the Commissioner of Police in paragraph No.5 reproduced above. The learned Government Pleader has strenuously tried to convince us that the I.O. may not have intentionally left such loopholes or deficiencies in the investigation. However, he fairly states that he is not defending an erring I.O. He is canvasing that the element of intentionally leaving loopholes in the investigation, may not be the case as is being tried to be made out by the petitioner.

10. We have no hesitation in observing that an investigating

officer is supposed to investigate the crime in accordance with the Code of Criminal Procedure / the procedure applicable and to the best of his ability. He is not supposed to indulge in any such act during investigation, which would have a semblance or a flavour of the I.O. deliberately leaving loopholes in the investigation, so as to tacitly create an advantage in favour of the accused. The learned public prosecutor submits that such mistakes may have occurred inadvertently. We cannot accept such contention for the reason that an experienced I.O. would never commit such acts inadvertently. There is a clear averment by the petitioner that the I.O. was trying to protect the accused, who was an in-service Sub- Inspector of Police posted in the same Police Station in which the crime has been registered, and within whose jurisdiction the offence had occurred. 

15. We are, therefore, directing the Commissioner of Police,

Aurangabad to issue an appropriate charge-sheet-cum-show-cause

notice and follow the procedure as is laid down in law and the

service conditions applicable, for conducting a Departmental

Enquiry against the I.O. Needless to state, if he is found guilty, we

would expect maximum punishment to be awarded to him, since

this is the only way that the faith and trust of the common man and

the public at large would be reposed in the police machinery, which

otherwise is facing a flak for it’s role in such cases

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1121 OF 2020

MOHAMMED ZAHEER S/O. MOHAMMED AZAM Vs THE STATE OF MAHARASHTRA AND OTHERS


CORAM : RAVINDRA V. GHUGE AND

B. U. DEBADWAR, JJ.

DATE : 19TH MARCH, 2021


1. By this petition, the petitioner, who is the father of a

college going daughter killed in an accident in which respondent

No.6 is an accused, has put forth prayer clauses (B), (C) and (D)

as under :-

“B. By issuing Writ of Certiorari / Mandamus or any other

Writ, order or directions in the like nature, the

respondent No.6 and his accomplice be arrested and

the investigation in the matter bearing Crime

No.156/2019 dated 23.04.2019 registered with the

City Chowk Police Station, Aurangabad be transferred

to Crime Investigation Department or to some other

Investigative Agency under the supervision of this

Hon’ble Court.

C. By issuing writ of Certiorari / Mandamus or any other

writ or order or directions in the like nature, the

Respondent Nos. 1 to 3 be directed to conduct

impartial inquiry in the matter bearing Crime No.

156/2019 dated 23.04.2019 registered with the City

Chowk Police Station, Aurangabad and take necessary

actions against the erring Police Officer etc.

D. By issuing Writ of Certiorari / Mandamus or any other

writ or order or directions in the like nature the

Respondent Nos. 1 to 3 be directed to initiate

necessary action against the Respondent No.6, who

has intentionally killed the Petitioner’s daughter

namely Akefa Mehrin and also against the other Police

Officials trying to cover up the matter with an

intention to give clean chit to the Respondent No.6.”

2. On 11-12-2020, this Court had passed the following

order :

“1. In response to the order made by this Court on

24.11.2020, today, the learned APP has produced on

record the papers of investigation and the case diary.

2. This Court has carefully gone through the papers of

investigation and case diary. In the papers of

investigation, there are statements of the eye-witnesses

showing that on the same day and on the next day, the

eye-witnesses had given account of the accident and it

was informed that one grey colour Swift Desire was

involved in the accident. The papers show that on

02.05.2020, the car was taken in custody during

investigation. Surprisingly, panchanama of seizure of car

was not prepared. Due to that it is not possible to

ascertain even the colour of the car. The record shows

that the car was referred for technical examination to the

RTO and it came to be examined on 09.05.2020 i.e. very

late.

3. When one four wheeler gives dash to a two

wheeler, no damage is ordinarily caused to the four

wheeler. It appears that after giving dash to the two

wheeler of the deceased, the deceased was virtually ran

over by the car and the driver of the four wheeler had

escaped from the spot. Thus, not only the offence of

causing the accident and causing death was committed,

but other offences of not taking care of the deceased and

not informing to the police about the incident are also

committed by the said driver of the four wheeler.

4. In view of the nature of allegations and

nature of report which the Investigating Agency has filed,

this Court had made specific order on 24.11.2020 and due

to this, some record like case diary and papers of

investigation are produced.

5. It appears that there are allegations that one

Police Sub-Inspector was driving the four wheeler at the

relevant time. Even when there are allegations against the

Police Offcer, no seriousness is shown by the Investigating

Agency. This Court has no hesitation to observe that when

there are allegations against some person of the

department, more care needs to be taken by the

Investigating Officer and such officer needs to be always

above the board. Such officer is not expected to protect

the person of his own department but he needs to be

more serious as the image of the department is involved

in such matters. Due to observations made by this Court

today, affidavit of some of the witnesses are produced by

the petitioner and they show the seriousness of the

offence committed by the driver of the swift car. There is

nothing to show that the witnesses have falsely implicated

the said Police Sub Inspector.

6. Due to the aforesaid circumstances, this

Court has formed an opinion that the officer of the higher

level like the Commissioner of Police needs to look into

the matter. He needs to see the record, go to the place

and personally make enquiry with the eye-witnesses who

have filed affidavits and whose statements were recorded

by the police during investigation. He may then think

about changing the Investigating Officer. He is expected to

take stringent action against the Investigating Officer if it

is noticed that the Investigating Officer had made an

attempt to cover up the things to protect a person of his

department. This needs to be done before the next date

by the Commissioner of Police, Aurangabad.

7. Stand over to 5th January, 2021.

8. Authenticated copy of the order is allowed to

both the parties.”

3. Pursuant to the order of this Court reproduced above,

the Commissioner of Police, Aurangabad has promptly initiated an

enquiry and after conducting detailed enquiry, he has submitted his

report dated 02-01-2021, which is placed before us.

4. In order to avoid discrepancies and for clarity, we would

be reproducing certain portions of the report of the Commissioner

of Police. He has stated in paragraph No.2 that after he received

the copy of the order reproduced above, he has initiated the

following steps :

“i) I have called the copy of the case papers of the City

Chowk Police Station C.R. No. 156/2019 u/s 304 (a), 279,

337, 338, 427 IPC r/w 134/177 MV Act. The original file is

submitted in the concerned JMFC Court, Aurangabad with

“A” summary report.

ii) After going through the copy of case papers, I then

discussed the matter with the then investigating officer

API Mr. S. K. Khatane, the then Police Station in charge

officer Mr. D. S. Singare P.I., and the concerned Deputy

Commissioner of Police Mr. Nikesh Khatmode.

iii) I then visited the spot of accident along with all

these officers.

iv) After that I have made enquiry with the four eye

witnesses who have filed affidavits.

v) I have also recorded the statement of Mr. Santosh

Pate PSI, who has been suspected by the applicant Mr.

Mohmad Zaheer s/o Mohmad Azam and his brother Mr.

Arun Pate, in whose name the suspected vehicle is

registered.

vi) I then called the detailed expert report of autopsy

by way of letter given to the Dean, Government Medical

College and Hospital, Aurangabad.

vii) I have also called for detailed expert report of the

inspection of vehicles by the Regional Transport Officer,

Aurangabad.

viii) I requested the cell phone operator company to

provide Call Detailed Report (CDR) and the location of

above named suspect on the day of incident.”

5. He has stated in paragraph No.3 of his report that

Medico Legal Case (MLC) papers were received from the

Government Medical College and Hospital as well as from Apex

Super Specialty Hospital, Aurangabad by the City Chowk Police

Station on 22-04-2019. The case was handed over to Assistant

Police Sub-Inspector Mr. D. J. Shinde for further enquiry and he

approached GMCH and the Apex Hospital to record the statement of

the accident victim, who was not in a position to do so. He has

noted in the said paragraph that the crime was registered on

23-04-2019, initially invoking Sections 279, 337, 338 and 427 of

the Indian Penal Code read with Section 134 and 177 of the Motor

Vehicles Act.

6. ASI Shinde prepared the spot panchanama and

recorded the statements of two witnesses namely Mr. Mohammad

Tariq Mohammad Tahir and Mr. Adil Ahemad Siddiqui Khalil Ahemad

Siddiqui. After noticing the statements indicating that a grey

coloured Maruti Swift Desire car had knocked off the victim who

was riding a scooty, further investigation was initiated.

7. In the meanwhile, the victim passed away at 02:10

a.m. on 24-04-2019 and hence, Section 304-A of the Indian Penal

Code was invoked. Consequentially, the investigation was handed

over to Assistant Police Inspector Mr. S. K. Khatane. Mr. Khatane

was the person who conducted further investigation. It is claimed

by Mr. Khatane that only on 02-05-2019, Mr. Khatane noted the

involvement of a car bearing registration No. MH-02-CB-2079. He

then approached the R.T.O. and seized the said car and brought it

to the police station. It was subjected to examination by the R.T.O.,

which tendered it’s report on 09-05-2019. The first glaring lapse in

the investigation, left by Mr. Khatane, is that he did not prepare a

seizure panchanama of the said car. It cannot be ignored that the

said car belonged to the accused – Police Sub-Inspector at

Aurangabad, who was believed to be on duty and was believed to

be driving the said vehicle when the accident occurred.

8. The Commissioner of Police has, thereafter, recorded

the statements of six persons namely Mr. Mohamed Tariq S/o

Mohamad Taher, Mr. Abdul Haq s/o Abdul Rahim, Mr. Adil Ahemad

Siddiqui s/o Khalil Ahemad Siddiqui, Mr. Shahid Khan s/o Umar

Khan, Mr. Santosh Ramdas Pate (the accused) and Mr. Arun Ramdas

Pate (elder brother of accused). We are not going into the details

of the statements of these persons recorded by the Commissioner

of Police, for the reason that the charge-sheet has now been filed

and the case is committed for trial. We, however, deem it

appropriate to reproduce the impressions arrived at by the

Commissioner of Police in paragraph No.5 which read as under :-

“5. It has been observed that I.O. Mr. Khatane

API has failed to do the following things as the part of

investigation :-

a) Failed to record statement of Mr. Santosh Pate PSI,

Mr. Arun Pate (brother of Mr. Santosh Pate PSI) and Mr.

Shahid Khan Umarkhan, a person who shifted injured to

the hospital.

b) Failure to seek detailed report from doctors who

performed autopsy.

c) Failure to seek tower location of suspect PSI Mr.

Pate from the mobile company.

d) Failure to seek expert report (forensic report) of

possibility of contact between two vehicles due to

collusion.

e) Failure to prepare seizure panchanama of the

suspected car No. MH 02 CB 2079”

9. From the above, it is obvious that the then I.O. Mr.

Khatane has seriously failed in properly investigating into the crime,

as has been noted by the Commissioner of Police in paragraph No.5

reproduced above. The learned Government Pleader has

strenuously tried to convince us that the I.O. may not have

intentionally left such loopholes or deficiencies in the investigation.

However, he fairly states that he is not defending an erring I.O. He

is canvasing that the element of intentionally leaving loopholes in

the investigation, may not be the case as is being tried to be made

out by the petitioner.

10. We have no hesitation in observing that an investigating

officer is supposed to investigate the crime in accordance with the

Code of Criminal Procedure / the procedure applicable and to the

best of his ability. He is not supposed to indulge in any such act

during investigation, which would have a semblance or a flavour of

the I.O. deliberately leaving loopholes in the investigation, so as to

tacitly create an advantage in favour of the accused. We equally

find it appropriate to record our high appreciation for the efforts put

in by the Commissioner of Police while conducting the enquiry

pursuant to our order. We can surely say that he has conducted the

enquiry with great promptitude and by applying his investigation

skills. He has also, without fear or favour, drawn his observations in

paragraph No.5 based on such enquiry.

11. The learned prosecutor submits, on instructions from an

officer of the Police Department present in the Court, that the

investigation was handed over to Assistant Commissioner of Police

Mr. Hanumant N. Bhapkar of the City Division, Aurangabad. He has

conducted the investigation in view of the above factors and has

now submitted the charge-sheet before the learned Judicial

Magistrate First Class–3, Aurangabad. The learned Chief Public

Prosecutor submits, on instructions, that a show-cause notice has

been issued to the then I.O. Mr. Khatane as to why his increment

for one year should not be stopped permanently by way of

punishment.

12. Considering the law laid down in the matter of Kulwant

Singh Gill Vs. State of Punjab [1991 (Suppl.1) SCC 504] , stoppage

of increment permanently for one year or more, is a major

punishment and this punishment cannot be imposed without

conducting a departmental enquiry. It is not brought to our notice

as to whether specific set of service rules are applicable to the

Police Department which would facilitate the stoppage of one

increment permanently for one year, without conducting a

departmental enquiry. If that is permissible in law, we would not

make any observations. However, if that is not permissible, it

would be incumbent upon the Commissioner of Police to issue a

charge-sheet-cum-show-cause notice to I.O. Mr. Khatane and

commence a departmental enquiry.

13. Notwithstanding the above, we find from the

observations of the Commissioner of Police, as set out in the

reproduced paragraph No.5, that the deficiencies were allowed to

creep in into the investigation in crime No. 156 of 2019, registered

with the City Chowk Police Station. They may eventually be

damaging to the case of the prosecution. The learned public

prosecutor submits that such mistakes may have occurred

inadvertently. We cannot accept such contention for the reason

that an experienced I.O. would never commit such acts

inadvertently. There is a clear averment by the petitioner that the

I.O. was trying to protect the accused, who was an in-service Sub-

Inspector of Police posted in the same Police Station in which the

crime has been registered, and within whose jurisdiction the offence

had occurred. We would have appreciated, if the accused Sub-

Inspector would have been immediately transferred out of the

jurisdiction of the said police station. He continued to be a part of

the said police station until he was subsequently trapped in an anticorruption  bribery case in October, 2020. He was on duty in the

same police station when, it is alleged that, he threatened a Gutkha

seller of false implication and extracted an amount of Rs.50,000/-,

after negotiations on the initial demand of Rs.2 lakhs. Presently, he

is under suspension.

14. In view of the above, though we sincerely appreciate

the steps initiated by the Commissioner of Police, Aurangabad and

having independently and uninfluentially, conducted the inquiry, we

wish to record that stoppage of increment for one year would be a

punishment which would not be commensurate to the gravity and

the seriousness of the conduct of the I.O. It would be an eye wash.

The Court cannot be a silent spectator and close it’s eyes or turn a

Nelson’s eye, as if it is helpless, in such a case. We would be failing

in our duty, if we blink at such a conduct of a police officer.

15. We are, therefore, directing the Commissioner of Police,

Aurangabad to issue an appropriate charge-sheet-cum-show-cause

notice and follow the procedure as is laid down in law and the

service conditions applicable, for conducting a Departmental

Enquiry against the I.O. Needless to state, if he is found guilty, we

would expect maximum punishment to be awarded to him, since

this is the only way that the faith and trust of the common man and

the public at large would be reposed in the police machinery, which

otherwise is facing a flak for it’s role in such cases. This direction of

this Court shall be effected by the Commissioner of Police,

forthwith.

16. The learned counsel for the petitioner contends that,

firstly, Section 304-A of the I.P.C. has been invoked, only to protect

the accused Police Officer from punishment under Section 302 of

the I.P.C. He has based his contention on the basis of certain

statements made by eye witnesses. We do not find it appropriate

to go into the statements of eye witnesses in a petition putting forth

the prayer clauses reproduced above, as it would amount to

entering upon a parallel trial of the case, which we certainly do not

desire.

Secondly, he submits that the accused himself has

made a statement on 17-12-2020, before the Commissioner of

Police, that a lady Police Sub-Inspector of his batch and personally

known to him, Mrs. Anita Bagul had visited the spot of the accident.

He then has stated that he did not make a call to her, so as to

facilitate her visit to the place. However, one of the witnesses

Mohammad Tariq has claimed that the said lady officer Mrs. Bagul

had visited the place by covering her face with a scarf and

threatened eye witnesses not to furnish any information or details

to the investigating officer with regard to the accident. The learned

counsel then submits, on instructions, that she had forced the eye

witnesses to delete video recordings and photographs from their

respective cell phones. For the reason noted above, we would not

get into the exercise of appreciation of evidence, since we have no

reason to do so, in this petition. We leave it to the witnesses to

depose in a manner as they may deem appropriate, before the trial

Court and in the event the trial Court is convinced that there is

material before it, it has the liberty to follow section 319 of the

Cr.P.C. for appropriate action.

Thirdly, the learned counsel for the petitioner contends

that the said lady police officer Mrs. Bagul be arrayed as an

accused, since she has indulged in destruction of evidence,

punishable under Section 201 of I.P.C. On this count as well, we

leave it to the wisdom of the trial Court, within the frame work of

Section 319 of the Cr.P.C.

Fourthly, the earlier I.O. Mr. Khatane be arraigned as an

accused. We hold the same view, even with regard to Mr. Khatane,

and the trial Court is not powerless under Section 319 of the Cr.P.C.

17. Considering the directions in paragraph No.15 and the

observations as above, this petition is disposed off.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)


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