POONAM JAIDEV SHROFF Vs. THE STATE OF MAHARASHTRA
LAWS(BOM)-2017-4-89
HIGH COURT OF BOMBAY (AT: STATE)
Decided on April 13,2017

Poonam Jaidev Shroff Appellant
VERSUS
THE STATE OF MAHARASHTRA Respondents

JUDGEMENT

Ranjit More, J. - (1.) The petition is filed for following reliefs : (b) that this Hon'ble Court be please to issue a writ of mandamus or a writ in the nature of mandamus directing Khar Police Station to forthwith implement the order and directions dated 2nd September 2016 issued by the the State Government through the Addl. Chief Secretary (Home) (Exhibit- D hereto) and transfer the said cases viz (I) FIR No. 169 of 2016 registered on 4th April 2016 at the instance of Jaidev, (ii) the complaint dated 10th June 2016 filed by / MECR no 8 of 2016 registered at the instance of Kishore Chandiramani and (iii) the NC. No. 1836 of 2016 registered on 11th July 2016 at the instance of Kunwar Singh, all with Khar Police Station, Mumbai to Crime Branch, Unit IX, Mumbai; (c) by an order and / or direction of this Hon'ble Court, the investigation of the said cases viz. (I) FIR No. 169 of 2016 registered on 4th April 2016 at the instance of Jaidev, (ii) the complaint dated 10th June 2016 filed by / MECR no 8 of 2016 registered at the instance of Kishore Chandiramani and (iii) the NC. No. 1836 of 2016 registered on 11th July 2016 at the instance of Kunwar Singh, all with Khar Police Station, Mumbai be transferred to the Crime Branch, Unit-IX and/or any other independent investigating agency as this Hon'ble Court may deem fit and proper. (c-i) That this Hon'ble Court be pleased to quash and set aside the letter dated 29th November 2016 issued by the Addl. Chief Secretary (Home) (being Exhibit- L hereto); (c-ii) Be pleased that the inquiry / investigation in the FIR No. 169 of 2016 by the Khar Police Station, Mumbai and the charge-sheet purportedly lodged on 2.12.2016 before the Incharge Additional Chief Metropolitan Magistrate's 32nd Court at Bandra, Mumbai is malafide, illegal, biased, false and bad in law and direct a fresh investigation by an independent agency viz. CBI or State CID or Crime Branch; (c-iii) That this Hon'ble Court be pleased to direct that further investigation in the said three cases viz (I) FIR No. 169 of 2016 registered on 4th April 2016 at the instance of Jaidev, (ii) the complaint dated 10th June 2016 filed by / MECR no 8 of 2016 registered at the instance of Kishore Chandiramani and (iii) the NC. No. 1836 of 2016 registered on 11th July 2016 at the instance of Kunwar Singh, all with Khar Police Station, Mumbai be stayed; (c-iv) Be pleased to quash and set aside the Non-bailable warrant issued against the Petitioner by the Ld. ACMM, 9th Court, Bandra, Mumbai on 15th December 2016 in CC No. 2248/PW/2016."
(2.) The facts giving rise to the present writ petition, in short, are as under : Respondent No. 4 then a divorcee and the Petitioner then a spinster got married on 27th January 2005 in accordance with the provisions of Hindu Marriage Act, 1955. Respondent No. 4 had two children from the first marriage and from the present wedlock, the Petitioner and Respondent No. 4 have one daughter. It is the case of the Petitioner that after the solemnisation of their marriage, Respondent No. 4 started insulting the Petitioner and treated her with cruelty with regard to which the Petitioner has filed separate complaint. In October 2015, Respondent No.4 filed divorce petition under the provisions of Hindu Marriage Act, 1955. It is the case of the Petitioner that in order to mount pressure upon her to succumb to demand for consenting to divorce, Respondent No. 4 himself and through others have filed following complaints against her on the basis of false and frivolous allegations. [1] At the instance of Respondent No. 4 FIR bearing CR. No. 169 of 2016 was registered by Khar Police Station against the Petitioner and one another for alleged offence punishable under sections 328, 504, 323 read with 34 of the Indian Penal Code, 1860. [2] MECR No. 8 of 2016 is registered against the Petitioner for the offence punishable under sections 406 and 420 of the Indian Penal Code, 1860 in pursuant of the order under section 156(3) of the Code of Criminal Procedure, 1973 made by Additional Chief Metropolitan Magistrate, 9th Court, Bandra at the instance of Kishor Chidiramani. [3] At the instance of Umer Bahadur Rampersingh, non cognizable complaint bearing No. 1836 of 2016 is registered against the Petitioner on 22nd June 2016. It is the case of the Petitioner that investigation into these cases is being carried out by Khar Police Station in malafide, partial and biased manner to help Respondent No. 4. She accordingly made complaints initially to the Commissioner of Police, Mumbai on 8th August 2016 and thereafter to the Chief Minister on 12th August 2016, requesting to transfer investigation of the said FIR / MECR from Khar Police Station to any other independent agency. The State Government through the Additional Chief Secretary, Home on 2nd September 2016 issued an order and direction, transferring the investigation into the said cases filed by Respondent No.4 to Crime Branch, Unit-IX. It was further directed that further complaints of the Petitioner be taken by Colaba Police Station. Despite this order of the Additional Chief Secretary, Home, the Petitioner contends that, investigation of the said cases are continued by Khar Police Station. Allegations are made against the Joint Commissioner of Police that despite several representations, nothing was done and the Petitioner was made to run from pillar to post. The Petitioner constrained to approach this Court by way of aforesaid writ petition for the reliefs stated hereinabove when she received letter from Khar Police Station that charge-sheet into CR No.169 of 2016 would be submitted before the concerned Magistrate on 3rd December 2016. At the time of first hearing of the writ petition, learned PP for the State placed on record direction / order dated 29th November 2016 whereunder Khar Police Station was directed to continue with the investigation of the said cases. The statement was also made that charge-sheet in CR No. 169 of 2016 is filed on 2nd December 2016. The Petitioner accordingly amended the writ petition and challenged those directions also.
(3.) Mr. Desai, the learned Senior Counsel appearing for the Petitioner took us through the aforesaid cases and submitted that investigation by Khar Police Station was being conducted in malafide, partial and biased manner. He submitted that despite the orders from the State Government transferring those cases to Crime Branch Unit-IX, Khar Police Station continued with the investigation and submitted charge-sheet in CR No. 169 of 2016. He submitted that the Petitioner submitted various representations and emails to various officers to implement the order dated 2nd September 2016, however, nothing was done and at the instance of the Joint Commissioner of Police, the Additional Chief Secretary, Home by fresh order directed Khar Police Station to continue with the investigation into the said cases. Mr. Desai submitted that there are no reasons recorded in the order dated 29th November 2016 as to why Khar Police Station was directed to continue with the investigation. Mr. Desai further submitted that order dated 29th November 2016 made by the Additional Chief Secretary was received by Khar Police Station on 2nd December 2016 and on the very same day charge-sheet is filed in CR. No. 169 of 2016. Mr. Desai further submitted that haste in which investigation was completed and charge-sheet was filed reveals malafide on the part of Khar Police Station and Respondent No. 4. He also submitted that registration of cases is the result of matrimonial disputes between the Petitioner and Respondent No. 4 and in such cases investigating agency must be slow in registering the offence, they are required to undertake preliminary enquiry and then and then only justified in registering the offence. Relying upon the Apex Court decision in Lalita Kumari v. Govt. of UP. [2013(4) R.C.R.(Criminal) 979 : 2013(6) Recent Apex Judgments (R.A.J.) 389 : (2014) 2 SCC 1] , he submitted that Khar Police Station was very anxious to help Respondent No. 4. Mr. Desai, the learned Senior Counsel appearing for the Petitioner relying upon the decision of the Apex Court in Vinay Tyagi s. Irshad Ali [(2013) 5 SCC 762], submitted that investigation can be transferred even at the instance of accused and the State Government was perfectly justified in the light of the Petitioner's allegations against Khar Police Station about malafide and partial investigation, to transfer the investigation to Crime Branch Unit-IX. He specifically stated that though in the writ petition the Petitioner has made serious allegations against Khar Police Station, Joint Commissioner of Police and Respondent No. 4 about the manner in which investigation of the said cases is conducted, no rebuttal affidavit is filed by the State Government. He submitted that investigation since inception being malafide, charge-sheet filed in CR. No. 169 of 2016 is required to be set aside and investigation of all cases should be given to Crime Branch Unit - IX. In this regard, he relied upon the decision of the Apex Court in Gurubax Singh v. State of Punjab [2016 SCC OnLine SC 457] decision of the Division Bench of this Court in Balasaheb Bhagat v. State of Maharashtra [2014 SCC OnLine Bom 1167] and decision of the Apex Court in Gyan Chand v. State of Haryana [1970(3) SCC 270] .;


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