SALIL ANUPENDRA CHATURVEDI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Petition under Article 226 of the Constitution of India, the petitioner, who is the original complainant in private compliant No. 1/2006 pending before the Special Judge taking N.D.P.S. cases at Mumbai, has prayed for setting aside the order passed by the Government to transfer Shri. Ramesh D. Khade, Deputy Superintendent of Police, C.I.D. and instead, to appoint some other Officer as the Investigating Officer in that case. The petitioner is also praying for mandatory relief of direction to reinstate Shri. Ramesh D. Khade. Deputy Superintendent of Police, State C.I.D. as Investigating Officer and complete the investigation within a stipulated period. This is the principal relief which will have to be answered by us.

(2.) The petitioner, as aforesaid, fi led private complaint, in which direction under Section 156(3) of Code of Criminal Procedure, 1973 ('Cr.P.C.') was issued on 21st April. 2007. In view of certain developments, the State decided to hand over the investigation of the said case to State C.I.D. Accordingly, the earlier Writ Petition filed by this very petitioner bearing Writ Petition No. 2921 of 2009 came to be disposed of on 5th December, 2009 with the direction that the investigation of case filed by the petitioner be entrusted to State C.I.D. and to be completed preferably within six months. Thereafter, three more Petitions were filed and disposed of by common order dated 1st April, 2010. In those Petitions, the grievance was regarding the appointment of Shri. K. P. Raghuvanshi, Additional Director General of Police (ATS), Mumbai, to supervise the investigation of the case to be done by State C.I.D. in terms of order dated 16th January, 2010of the Additional Chief Secretary, Home Department, Government of Maharashtra. This challenge came to be negated by the Bench of which one of us (Justice A. R. Joshi) was a member. In other words, the investigation of the criminal case initiated by the petitioner remained with the State C.I.D. to be done under the supervision of Shri. K. P. Raghuvanshi, ADG (ATS). In the State C.I.D., as aforesaid, the investigation of the case was entrusted to Shri. Ramesh D. Khade, Deputy Superintendent of Police. In the disposed of Writ Petition No.2921 of 2009, the State of Maharashtra moved an application for giving further time to complete the investigation, which prayer was granted in terms of order dated 2nd September, 2010. Two months' further time was given to the investigating agency to submit appropriate report before the concerned Court. However, it appears that in December, 2010, the said Investigating Officer Shri. Ramesh D. Khade, Deputy Superintendent of Police, State C.I.D. has been transferred and in his place, new Investigating Officer has been appointed to continue with the investigation of the criminal case initiated by the petitioner. This has happened on account of criminal complaint filed by the accused named in the criminal complaint filed by the petitioner. The said accused Subhash S. Kenjale filed application before the lower Court bearing M.A. No.385 of 2009 alleging connivance of Shri. S.P.S. Yadav, Addl. D.G.P. C.I.D. (Crime) and Shri. Ramesh D. Khade. Dy.S.P. with the petitioner herein to make malicious inquiry and biased investigation against him. On that allegation, he prayed for investigation of the case by C.I.D. (Crime). On the said application, the concerned Magistrate issued order under Section 156(3) of the Cr.P.C. against Shri. S.P.S.. Yadav and Shri. Ramesh D. Khade and others. Thereafter, the said accused Subhash S.Kenjale made representation to the Department for change of the Investigating Officer in the criminal case initiated at the instance of the petitioner against him. In the light of the said complaint, the matter was considered by the Department. Indeed, the Director General of Police in his communication dated 14th October, 2010 addressed to the Additional Chief Secretary (Home), Government of Maharashtra, has expressed his reservation to transfer the investigation of the criminal case initiated at the instance of the petitioner herein on the ground that it would send wrong signal and also demoralize the concerned police officers. In his report, he has acknowledged the fact that there was in-fighting in the police force and the cross complaints were the outcome thereof. At the same time, he did not favour the proposal for transfer of present Investigating Officer Shri. Ramesh D.Khade to be replaced by another Officer of State C.I.D. to investigate the criminal case initiated by the petitioner. Instead, he suggested that the investigation of the case be handed over to C.B.I, after taking Court's permission. Nevertheless, the State Government took a decision to transfer the investigation of the criminal case initiated at the instance of the petitioner to another Officer of the State C.I.D. so as to replace Shri. Ramesh D.Khade. According to the petitioner, this action would sabotage the investigation of his case. Besides, the change in Investigating Officer is with malafide intention so as to slow down and change the course of investigation.

(3.) The Petition has been resisted by the State. The Advocate General appearing for the State contends that there is no substance in the allegations made by the petitioner. In his submission, there is no averment in the Petition that the act of the Government is malafide or politically motivated. Further, no grievance has been made against the new incumbent who has already taken over investigation of the case. There is no averment in the Petition that the said Officer will not be able to properly investigate the matter. Further, it is the prerogative of the State to transfer its Officers and to assign work or to withdraw one or the other duty of the concerned Officer, if there is administrative exigency. For that, reliance is placed on Section 36 of Cr.P.C. as well as Sections 3 and 4 of the Bombay Police Act, 1951. He has placed reliance on the exposition of Apex Court in State of Bihar & Anr. Vs. J.A.C. Saldanna & Ors., 1980 AIR(SC) 326, in particular, paragraph Nos.12 to 16 thereof. According to the learned Advocate General, even if the Investigating Officer is changed in the fact situation of the present case, it would make no difference, as the investigation would be continued under the supervision of Shri. K. P. Raghuvanshi, ADG (ATS) in view of his appointment in terms of order of the Additional Chief Secretary, Home Department dated 16th January, 2010. Accordingly, the apprehension of the petitioner that the investigation would be protracted or sabotaged in any manner, is preposterous and in any case, pre-mature.