KAPOL CO OPERATIVE BANK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE above petition was filed seeking a writ of mandamus for transfer of investigation of MECR no. 4/2004, registered for the offences punishable under sections 120-B, 420, 465, 467, 468 and 471 of the Indian penal Code to the respondent No. 5, who is the Addl. Commissioner of Police, Economic Offences Wing, DCB-CID, mumbai. While opposing the said petition, the investigation officer Shri Mandar V. Dharmadhikari, asst. Police Officer, attached to the Cuffe Parade police Station, Mumbai, had filed two affidavits and the same disclosed false statements on oath and prima facie appeared to have been made with the intention to mislead the Court and to get the petition dismissed at the admission stage itself. While granting the relief prayed for in the petition under the order dated 8-7-2004, a notice was directed to be issued to Shri mandar V. Dharmadhikari as to why he should not be prosecuted and punished for contempt of Court for filing the said false affidavits and trying to mislead the court with the intention of obtaining order against the petitioner when the materials clearly justified the grant of relief prayed for. In reply to the said notice, Shri Dharmadhikari filed his affidavit dated 23-7-2004.

(2.) THE facts in brief relevant for the decision are that the learned Magistrate by his order passed under section 156 (3) of the Cr. P. C. had forwarded the complaint of the petitioner to the Cuffe Parade Police station for investigation purpose. The same was received by the said police station on 5-1-2004, and was assigned to Shri Dharmadhikari for investigation. Yet the concerned police officer did not take any step even to register the case till 15-2-2004. Even though the complaint filed before the Magistrate and duly forwarded to the police station along with the said order under section 156 (3) of the Cr. P. C. "was required to be treated as the FIR, the police officer chose to record further statement of the complainant and to treat the same as the FIR. The records further disclosed that there was absolutely no justification for the investigating officer to delay the commencement of investigation till 15-2-2004. The records also disclosed that the matters, which were referred for investigation to the said police officer subsequent to the receipt of the order in question on 5-1-2004, were taken up for investigation much earlier to the case in hand and yet there was no explanation for such approach on the part of the officer. The records further disclosed that at the instance of the investigating agency itself all the Xerox copies of the relevant documents were already furnished to the investigating officer and yet as late as on 1-4-2004 the investigating officer, for the first time, informed about the necessity of the original documents. At the same time the investigating officer himself stated in his affidavit dated 29-4-2004, here in after called as "the first affidavit" that the case was purely based on documents which were already seized by him and nothing more was required to be investigated except arresting the accused and filing chargesheet. As regards action against the accused persons, apart from putting up a note for need of arrest of one accused, nothing further was done till the day the matter came up before the court or even when the matter was pending before the court. It was also revealed that as per Standing Order no. 140, cases involving property worth Rs. 25 lakhs and above are required to be investigated by the Economic offences Wing, DCB-CID, Mumbai and the amount involved in the matter is above one-and-half crore. All these facts and those mentioned in the rejoinder by the petitioner clearly justified transfer of the investigation to the respondent No. 5, besides being the fact that the learned A. P. P. fairly conceded to the need for transfer of the investigation to the respondent no. 5 even though the investigating officer Shri dharmadhikari had opposed the same by filing two affidavits. By order dated 8-7-2004, therefore, the investigation was ordered to be transferred to the respondent No. 5, while issuing show cause notice to Shri dharmadhikari on account of false statements made in his affidavits filed in the said petition.

(3.) IN reply to the show cause notice, the contemner, in his affidavit, has stated that he was not careful in giving proper facts and instructions to the learnad a. G. P. for drafting the affidavits filed by him in the above petitions and consequently incorrect statements were made in para 9 of the first affidavit and in para 3 of the second affidavit. The contemner has further sought to tender unconditional apology while stating that he was careless on his part and he has realised what grave mistake he has committed. At the same time, he has also stated that he had not made any attempt to mislead the Court and the contents of the first affidavit itself disclosed that the investigation was not complete and it was apparent from the contents of para 6 thereof and further that the statement regarding conclusion of the investigation excluding the reference to the arrest of the accused Shri Keyur Shah, Smt. Vaishali Shah and Shri Balkrishna Rane and the statement was not made willfully or with intention to mislead the court. He has further stated that he has realised that he should have been more careful in giving proper instructions and making affidavit in the Court. At the same time he has also stated that in any case the mistake committed by him does not substantially interfere with the administration of justice nor it was intended to interfere with the administration of justice, but the said mistake was only on account of carelessness and was neither willful nor with intention to mislead the Court.