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2008 Supreme(Bom) 345

IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S. & Sayed A.A., JJ.
Salma Babu Shaikh ... Petitioner.
Versus
State of Maharashtra & ors.... Respondents.
Criminal Writ Petition No. 400 of 2007,
Decided on 28-2/3-3-2008.

Advocates appeared:
Nitin S. Satpute, for petitioner.
S.R. Borulkar, P.P. with V.B. Konde Deshmukh, A.P.P., for respondent Nos. 1 & 6.
M.S. Mohite, for respondent No.9.
Samir A. Vaidya, for respondent No. 10.
A.P. Mundargi, Sr.Adv. with Datta H. Pawar, for respondent No. 11.
Respondent Nos. 2 to 5, 7 & 8 are deleted.

Headnote:Constitution of India, 1950 - Article 141-Precedents-Interpretation.-The ratio of a decision is to be understood with reference to the facts of the case and the points for consideration which arise in the matter. A sentence in a judgment cannot be read as a statutory provision. It is also equally settled that decision is what it decides and not what may follow from it and being so, every observation in the judgment has to be understood with reference to the facts of the case and the point involved for consideration therein.

       Criminal Procedure Code, 1973 - Sections 174 and 156-Bombay Police Act, 1951, Section 145(1)-Penal Code, 1860, Sections 197, 201, 203 and 306-Failure of Investigating Officer to perform his duty.-The investigation officers are not laymen but are trained in the matter of investigation and they are made aware of the requirement which are to be complied with for effective investigation relating to criminal offences. Failure of perform his duly by an investigation officer may help or may result in helping the offender in avoiding the process of law against him in one way or the other and therefore certainly could be construed as gross criminal negligence.

       Constitution of India, 1950 - Article 226 - Alternative remedy - Availability of. - Mere availability of alternative remedy is not an absolute bar for exercise of writ jurisdiction, though ordinarily it has to be avoided when efficacious alternative remedy is available to the party and is appropriate in the facts and circumstances of the case.

       

Per KHANDEPARKAR R.M.S., J.: - Rule.

By consent, rule is made returnable forth with. The learned Advocates for the respondents waive service.

2. The petitioner in this petition has approached this Court with the grievance about inaction on the part of the respondents/police authorities in conducting necessary investigation and not taking appropriate action against the offender / s responsible for the death of her daughter and hence, for necessary directions and relief in the matter.

3. The petitioner is the resident of Sandesh Nagar, Shanti Wadi, Bail BaZar, Kurla (West), Mumbai for about last 25 years along with her family which comprised of her two daughters and husband. One of the daughters is stated to have expired on 17 -1- 2006 in suspicious circumstances. The deceased girl was named Yasmin and was studying in 10th standard and was punctual in attending the school.

4. It is the case of the petitioner that one boy by name Deepak used to encourage and incite the deceased Yasmin to meet one Umesh Yallapa Arote under one pretext or another as allegedly the said Umesh had one sided love affair with the said daughter of the petitioner. Said Umesh used to visit the neighbours of the petitioner and used to approach the daughter of the petitioner Yasmiri through one of the neighbouring girl named Sunita Naresh Poojari. It is her further case that being unsuccessful in wooing the daughter of the petitioner, sqid Umesh used to give threats to the deceased daughter of the petitioner and had even warned her that in case she failed to marry him, he would not spare her and the person to whom she would marry. Consequently, Yasmin was always under tension and stress on account of the said threat by Umesh. Of late he had also started demanding money from the deceased girl and she was forced to part with her gold chain of 15 grams to him. It is her further case that on 16-1-2006 at about 2:00 a.m., during early hours of the said day while the girl was studying at her residence, Umesh came to the site and started pulling her outside the house. However, he did not succeed in his evil design as he was obstructed from doing so by the petitioner and he was handed over to the neighbours' custody while she - went to report the matter to the Alapure - Beat Chowky No.5 of the Kurla Police Station and informed the matter to the police - authorities about the harassment caused by Umesh to her daughter. However, the f police refused to record the complaint and directed her to go to the Bail Bazar Chowky. Even when she went to the Bail Bazar Chowky, the police refused to register the complaint and directed her to go back to i Alapure Beat Chowky. The petitioner there upon went to the main Kurla Police Station 1 and could succeed in lodging N.C. complaint being N.C. No. 132/2006, dated 16-1-2006. Meanwhile, Umesh managed to run away and the police expressed inability and helplessness to apprehend him.

5. On 17-1-2006 one person by name Ganesh Galshetwar approached the deceased girl with a mobile phone belonging to Umesh and informed, the deceased girl to speak to UIDesh with the help of the said mobile phone as Umesh wanted to speak to her. The deceased girl thereupon had conversation with Umesh with the help of the said phone, as was asked to do by Ganesh and immediately thereafter, being scared and frightened, ran inside the house and poured kerosene on her body and set herself ablaze. Though the petitioner thereafter approached the police authorities, the latter refused to record the complaint. Ultimately, the petitioner succeeded in submitting a written complaint on 2-6-2006 to the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Assistant Commissioner of Police and the respondent No.6 herein bringing to their notice all the necessary facts in the matter and requesting them to take necessary action. However, since the respondents have not conducted necessary investigation and have not taken appropriate steps to a





































































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