RITA SHAILESH VYAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present petition the Petitioner is seeking the Order of transfer of the investigation in C. R. No. 64 of 2004 lodged with Kandivli (West) Police Station to DCB CID, Crawford Market, Mumbai on the ground that the investigation has been carried out not only in haphazard manner, but to hush-up the crime by suppressing the facts and destroying the material pieces of evidence as well as with the intention to protect the accused contrary to the provisions of law.

(2.) It is the case of the Petitioner that she was married to Shailesh Vyas (since deceased) in the year 1982 and was staying at her matrimonial home at Room No. B-23, natvarlal Ganatra Chawl, Road No. 3, Irani wadi, Kandivli (West) , Mumbai. They had three children i. e. two sons and one daughter. The residential premises is in the old chawl admeasuring about 200 sq. ft. and they are tenants in the said room and were paying rent. Deceased Shailesh was employed in a private firm with a Stock Broker. He suffered from asthma as well as heart ailment and had suffered heart attack in the past. The plot of land on which the said chawl was standing in which they were residing, was taken for development by a builder Jitubhai Barot of Kalpana development at Goregaon (West). During the course of development of the said land, in the year 1993, the Builder offered the premises on the basis of ownership to the tenants including the petitioner's husband in new building to be constructed thereon and agreement was entered into with the petitioner's husband for alternate accommodation. The Petitioner's husband, as he was heart patient as well as suffering from asthma, requested to the builder that the alternate accommodation in the new building, which would be given to him, be given on the ground floor so that he should not suffer, however, the builder refused to give the flat on the ground floor in the new building and refused to accept the request, which aspect gave way to the dispute between the parties. The petitioner alleged that the builder demolished w/c of the petitioner and all adjacent premises in the old chawl to pressurise the Petitioner. The builder also threatened to kill the petitioner's husband because he did not agree to shift in new building. The site Supervisor ravi (accused) employed by the builder was visiting the Petitioner's husband everyday under the pretext of supervision and threatened to kill the Petitioner's husband and throw his family on street. On 28th February, 2004 the Petitioner's husband was ill and was at home, at 5. 00 p. m. the deceased Shailesh was called by Security guard saying that Supervisor Ravi had called him, he did not go and the said Ravi came to the premises. The builder came to the petitioner's residence with Watchmen (1) ranbir Ramjanamor, (2) Niranjan and (3) Bela and called her husband outside the room and threatened and abused her husband and started beating him up with fists and pushed him on wall and dragged him along the wall to ground by hitting and banging his head on walls. The petitioner and her daughter tried to intervene, however, said Ravi while abusing, assaulting and threatening to kill deceased Shailesh, continued to give blows on chest, abdomen, head and then banged him on the wall and then dragged him on the floor. After Shailesh fell on the floor outside the said room on the tiles then Ravi banged his head on the edge of a washing stone embedded and fixed on the floor. Due to the assault, Shailesh was grievously, seriously hurt on front and backside of his head and became unconscious. He was taken to Private Medical Practitioner where he was declared dead. According to the Petitioner, said Ravi, Supervisor of Jitubhai Barot, realising what he had done, escaped from the scene. The matter was reported to the Police. The police Officers i. e. Respondent Nos. 6 and 7 came on the scene. Panchanama was made and the Petitioner was taken to the Police Station and her statement was recorded and dead body of her husband was taken to Bhagwati Hospital for post mortem. The Petitioner lodged a complaint to Kandivli Police Station late in the evening, but Inspector on duty Mr. Kadlag, respondent No. 6, initially refused to take complaint against Ravi and Jitubhai Barot, the builder, and recorded FIR and statements falsely and wrongly. Investigation commenced. However, it is the case of the Petitioner that offender Ravi is a relative of Police Inspector and has influenced the total investigation, which is falsely made in order to suppress the gravity of the act of Ravi and builder Jitubhai Barot. The matter was taken by the Petitioner, with the help of members of her community to certain advocate, through whom the letter was sent to the Commissioner of Police and other police Officers, but in vein. Respondent no. 5, it is alleged, did not investigate the complaint and refused to take any action against the respondent Nos. 6 and 7 for their act of suppressing the gravity of offence and hence finally the Petitioner was forced to file this petition, when it was clear that investigating authority was not making any effort either to file the charge-sheet for the impugned offence, or investigate the said offence in truthful manner.

(3.) We have heard at length the learned advocate for petitioner and the learned a. P. P. , who was all throughout assisted by the investigating Officer. We have perused all the records placed before us in relation to the investigation carried out by the police. We have also in the presence of advocate for the petitioner, the learned APP and the Investigating officer, inspected the relevant original record pertaining to the investigation made up till now with regard to this incident. In this regard we also must note that in support of the respondents' case several affidavits are filed which are on record including that of Smt. Prachi S. Badhe, Asstt. Commissioner of police, Borivli Division on instructions of deputy Commissioner of Police, Zone-XI i. e. Respondent No. 4 as well as three investigating officers involved in the said investigation i. e. Respondent Nos. 5, 6 and 7. At this juncture we must note that petition was filed on 24.8.2004 thereafter, as it appears from the record, First Charge-sheet came to be filed against the said accused Ravi on 11.10. 2004 in the Court of Metropolitan magistrate for offence punishable under section 304 (A) of Indian Penal Code. Certain facts were brought to the notice of this court, to which we would like to refer at later stage, the permission was sought from this court to make application to the Court of Metropolitan magistrate for further investigation under section 173 (8) of Cr. P. C. , which was given and subsequent supplementary charge-sheet came to be filed on 24.3.2005 for offence punishable under Section 304 of Indian Penal code. Inspite of these developments, we were convinced that the investigation was not only made in haphazard manner, but was clearly riddled with several irregularities as well as acts of omission and commission on the part of several investigating officers, who handled the single case, and therefore, we thought it fit to proceed with the matter to probe in depth the veracity of the claim of the State to the effect that they had investigated the matter faithfully and honestly in order to bring out the truth.