The central legal point established in the judgment is the requirement for fair and impartial investigation by an independent agency in cases of alleged police misconduct and the credibility of the investigation.

R.G. AVACHAT, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner seeks direction for transfer of the investigation of the Crime (C.R. No.171 of 2015), registered with Georai Police Station, Tq. Georai, Dist. Beed, for the offences punishable under Sections 302, 304, 201, 120-B, 326, 323, 506 read with Section 34 of the Indian Penal Code and allied offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to Central Bureau of Investigation (C.B.I.)/Special Investigation Team. The petitioner also seeks direction for arrest of respondent nos.9 to 19 and subjecting them to NARCO Analysis Test.

2. Heard Mr.Shinde, learned Counsel for the petitioner and Mr. Yawalkar, learned APP for respondent nos.1 to 8.

FACTS :

3. The petitioner is sister of Sham Athwale (since deceased). The deceased was 40% disabled in leg. The Secretary, Orthopedic Board (R.M.O.D.H.), Beed, had issued him 40% disability certificate in April, 2013. Due to disability, the deceased was unable to walk without help of a stick. One or two offences were registered against him. The police personnel had, therefore, been to the house of brother of the deceased. As the deceased was not found thereat, the police personnel abused the wife and children of the deceased. A complaint against the police personnel, therefore, was made to the Commissioner of Police, Aurangabad and other higher Officers.

4. On 14.12.2014, the deceased along with his relatives, was on way to Ahmednagar from Beed in car (bearing registration No.MH-14-BC-2923). The car developed snag. They had, therefore, parked the car at a roadside, near village Dhondrai on Umapur road. The deceased and his relative, Mahesh, were engrossed in a chat. All of a sudden, respondent nos.10 to 19 (police personnel) came there from Beed side and surrounded the car. Two of them caught hold the deceased and respondent no.10 fired bullets, resulting into death of Sham (deceased). It was a cold blooded murder committed on the instructions of respondent no.9. The petitioner had immediately lodged a complaint to the Superintendent of Police on 15.12.2014, but of no avail. The police authorities showed it to be a case of encounter. False documents came to be prepared to suit their claim. The petitioner had to approach the National Human Rights Commission. She also approached the Court of Judicial Magistrate, First Class. The Judicial Magistrate, First Class, issued direction to make investigation under Section 156(3) of the Code of Criminal Procedure ("the Code", for short). The investigation was conducted by the Sub-Divisional Police Officer, Georai. Since the petitioner feared that the incident would be covered-up, she has filed the present petition.

5. An affidavit-in-reply has been filed by the Investigating Officer, stating therein to have recorded statements of twenty five persons. Three of them are stated to be independent persons, who claimed to have had witnessed the incident. The statements of the police personnel, who were eyewitnesses to the incident, have also been recorded. It is stated in the affidavit that on 14.12.2014, the Local Crime Branch, Beed, had received a tip off that the deceased, an accused wanted in C.R.No.141 of 2014, had moved to Georai area. On instructions of P.I. - Shevgan (respondent no.9), A.P.I. - Rahul Deshpande (respondent no.10), along with some police personnel went in search for the deceased. In the meanwhile, they learnt the deceased to have been proceeding in a silver colour car along Georai-Umapur road. The police personnel, therefore, proceeded in that direction to find the deceased to have been in the back-seat of the car. They gave a signal to the driver of the car to stop, but of no avail. The driver of the police vehicle, therefore, tried to overtake the car with a view to block its way. In the process of overtaking, the deceased opened fire towards the police personnel. One of the bullets struck the door