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In the High Court of Bombay at Goa
A.P. LAVANDE & R.P. SONDURBALDOTA
Atanasio Monserrate & Others
Versus
CBI & Another
CRIMINAL WRIT PETITION NOS. 81 of 2010, 2 of 2011 & 42 of 2011
Decided on: 20-04-2012
Thus, from a bare perusal of the orders passed by the Division Bench of the Court and that of the Apex Court, it is evident that the interim relief was refused to petitioners No. 1 and 2 in Writ Petition No. 2/2011 on the ground that the complaints filed by the petitioners would be looked into by CBI while carrying out the investigation. No doubt, the Officer Incharge of Panaji Police Station was bound to register an FIR and thereafter carry out the investigation and as such, there is a serious lapse on the part of the Officer Incharge of Panaji Police Station in not lodging the FIR in terms of the directions given by the JMFC, Panaji by order dated 3rd March, 2008, which was confirmed by the Additional Sessions Judge, Panaji by order dated 26th March, 2008. However, this lapse on the part of the Officer Incharge of Panaji Police Station would not be fatal in view of the fact that the investigation was carried out by CBI pursuant to the Notification dated 6th May, 2008 issued by the State of Goa. Therefore, mere fact that the FIR was not registered by the Officer Incharge of the Police Station would not render the investigation carried out by CBI non-estor illegal. In any case, it is the case of CBI that the investigation into FIR Nos. 57, 58 and 59 of 2008 and also the complaints of different persons mentioned in Annexure I to the Notification dated 6th May, 2008 has been carried out by CBI. Therefore, non- registration of the FIR would not render the charge-sheets filed in Crime Nos. 57 and58/2008 illegal.
CRIMINAL WRIT - Validity of investigation. - Held - Mere fact that the FIR was not registered by the officer in charge of the Police Station would not render the investigation carried out by the CBI non est or illegal. - Thus, from a bare perusal of the orders passed by the Division Bench of the Court and that of the Apex Court, it is evident that the interim relief was refused to petitioners No. 1 and 2 in Writ Petition No. 2/2011 on the ground that the complaints filed by the petitioners would be looked into by CBI while carrying out the investigation. No doubt, the Officer Incharge of Panaji Police Station was bound to register an FIR and thereafter carry out the investigation and as such, there is a serious lapse on the part of the Officer Incharge of Panaji Police Station in not lodging the FIR in terms of the directions given by the JMFC, Panaji by order dated 3rd March, 2008, which was confirmed by the Additional Sessions Judge, Panaji by order dated 26th March, 2008. However, this lapse on the part of the Officer Incharge of Panaji Police Station would not be fatal in view of the fact that the investigation was carried out by CBI pursuant to the Notification dated 6th May, 2008 issued by the State of Goa. Therefore, mere fact that the FIR was not registered by the Officer Incharge of the Police Station would not render the investigation carried out by CBI non-est or illegal. In any case, it is the case of CBI that the investigation into FIR Nos. 57, 58 and 59 of 2008 and also the complaints of different persons mentioned in Annexure I to the Notification dated 6th May, 2008 has been carried out by CBl. Therefore, non-registration of the FIR would not render the charge-sheets filed in Crime Nos. 57 and 58/2008 illegal.
A.P. LAVANDE, J.
Heard Mr. A.N.S. Nadkarni, learned Senior Counsel for the petitioner in Criminal Writ Petition No.81/2010; Mr. S. Gupte, learned Senior Counsel for the petitioners in Criminal Writ Petition No. 2/2011; Mr. M. Jethmalani, learned Senior Counsel for the petitioner in Criminal Writ Petition No.42/2011, Mr. C. A. Fereira, learned Public Prosecutor for the State of Goa and Mr. Joseph Vaz, learned Special Public Prosecutor for Central Bureau of Investigation (CBI).
2. All these three writ petitions are being disposed of by common judgment since they are inter-connected.
3. With the consent of the learned Senior Counsel for the petitioners and learned Public Prosecutor and learned Special Public Prosecutor, the writ petitions are taken up for final disposal. Hence Rule. Heard forthwith.
4. All the three writ petitions were initially filed before the learned Single Judge, who passed orders from time to time. By an order dated 3rd August, 2011 passed by the learned Single Judge of this Court, all these three writ petitions were ordered to be placed before Division Bench of this Court, having regard to the reliefs sought in the three writ petitions.
5. Briefly, the facts leading to filing of these petitions are as under :
On 19th February, 2008, at about 19.35 hours, about 1000 people gathered in front of Panaji Police Station under the leadership of the petitioner in Criminal Writ petition No.81/2010, demanding suspension of the Police Inspector of Panaji Police Station. The said petitioner gave provocative speech against the police and thereafter, the mob indulged in violence, causing damage to the property in the police station, as well as injuries to several police officers.
At about 22.00 hrs., Police Sub-Inspector, Shri Tushar Lotlikar, attached to the Panaji Police Station, lodged an FIR No.57/2008 under Sections 143, 147, 333, 435, 432, 323, 324, 325, 427, 307 read with Sections 120-B, 149 and 34 of IPC., against the petitioners and 25 known accused and 500 unknown persons. According to the prosecution, on the same day, at about 22.05 hours, there was an incident of stone pelting on account of which damage to the bungalows of the said petitioner at Taleigao and Miramar was caused.
6. At about 22.20 hours, the said petitioner and his wife Mrs. Jennifer Monserrate, were arrested at Panaji Police Station in Crime No. 57/2008. Thereafter, at about 22.40 hours, the said petitioner, Tony Rodrigues, Petitioner No.2 in Criminal Writ Petition No.2/11 & Amit, son of Atanasio Monserrate, along with 100 people from Taleigao constituency, demanded release of Mrs. Jennifer Monserrate and others arrested by the Panaji Police and assaulted the police personnel with deadly weapons while discharging their lawful duty.
7. According to the prosecution, Tony Rodrigues, who sustained injury due to accidental fall, was taken for medical treatment at Vintage Hospital Panaji. At about 23.00 hours, FIR No. 58/2008 was registered by PI Panaji Police Station Mr. Sudesh R. Naik under Sections 143, 147, 148, 332, 323, read with 149 IPC. At 01.40 hours, on 20.2.2008, the petitioner in Writ Petition No.81/2010 was arrested in Crime No. 57/08. On the same day, at about 1.45 hours, FIR No.59/2008 was lodged by Shri Shamba Sawant, Dy. S.P., Bicholim under Sections 143, 147, 148, 341, 332, 427 read with 149 IPC. Thereafter, Mrs. Jennifer Monserrate was arrested in Crime No.57/08 and was referred to the Goa Medical College for medical examination.
8. Mr. Atanasio Monserrate, the petitioner in Writ Petition No.81/2010, was released on bail on 21st February, 2008. Atanasio Monserrate and his wife Mrs. Jennifer Monserrate filed a report addressed to the Chief Secretary, Director General of Police, Goa & Station House Officer, Panaji Police Station alleging commission of offences under sections 307, 321, 322, 329, 325, 327, 338, 340, 342, 352, 354, 363, 380, 382, 392, 394, 398, 420, 447, 448, 449, 451, 452 read with 120B, 34, 146 and 148 of IP
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