Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
A.S. Gadkari and Shyam C. Chandak, JJ.
Jaydeep Dilip Taware and Ors. – Appellants
versus
State of Maharashtra and Ors. – Respondents
Criminal Appeal No.1075 of 2021 with Writ Petition No.3595 of 2021
Decided on 11.6.2024

Counsel for the Parties:
For the Appellant in Appeal No.1075 of 2021:Mr. Ashok Mundargi, Senior Advocate a/w Mr. Rupesh Zade and Ms. Priyanka Gupta, Advocates
For the Respondent No.2 in Appeal No.1075 of 2021:Mr. M.S. Mohite, Senior Advocate i/b Mr. Nilesh Wable, Advocate
For the Petitioners in Writ Petition No.3595 of 2021:Mr. Umesh Mankapure, Advocate i/b Mr. Nilesh Wable, Advocate a/w Mr. Sumet Khaire, Advocate
For the State: Mr. J.P. Yagnik, A.P.P.

IMPORTANT POINT
Magistrate cannot compel Police to form a particular opinion on investigation and to submit report according to such opinion.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 169 – Maharashtra Control of Organised Crime Act, 1999 – Section 12 – Direction to conduct detailed investigation – Functions of Magistracy and Police are entirely different and though, Magistrate may or may not accept report under Section 169 of Code and take suitable action, according to law, he cannot impinge upon jurisdiction of police, by compelling them to change their opinion, so as to accord with his view – However, it is open to Magistrate to take cognizance of offence under Section 190(1)(b) of the Act, on the ground that, after having due regard to final report and police records placed before him, he has reason to suspect that, an offence has been committed – Magistrate cannot compel Police to form a particular opinion on investigation and to submit report according to such opinion – Direction of trial Court to the extent of directing police to submit ‘charge-sheet’ against Appellant needs to be deleted – Rest of impugned Order maintained. (Paras 10, 12 and 12.2)
(B) Maharashtra Control of Organised Crime Act, 1999 – Section 12 – Criminal Procedure Code, 1973 – Section 169 – Transfer of investigation to other Investigating Agency – Conspiracy is always hatched in secrecy and there is seldom any direct material available to it – Injured has been conveniently disbelieved and irrelevant material is considered by Investigating Officer only to give leverage to Appellant – Prayer of Petitioners for transfer of investigation needs to be acceded to, for proper investigation of crime and to have complete justice in present case – Investigation of present crime to be transferred to Crime Investigation Department, State of Maharashtra with immediate effect. (Paras 14, 16, 18 and 18.1)
Result: Appeal partly allowed. Writ Petition allowed.

JUDGMENT

A.S. Gadkari, J.—Appellant, Original Accused No.-6, has preferred Criminal Appeal No.1075 of 2021 under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short, “the MCOC Act”), impugning the Order dated 9th December, 2021 passed below Exh-32 in Special MCOCA Case No.921 of 2021, by the Additional Sessions Judge, Pune, allowing the Protest Petition (Exh-32) filed by the Respondent No.1, the informant, rejecting the Report dated 2 nd December, 2021 under Section 169 of the Criminal Procedure Code (for short, Cr.P.C.), filed by the Investigating Officer and directing the Investigating Officer to conduct detailed investigation in the line of statement of injured Raviraj Taware and other witnesses and submit the charge-sheet against the Appellant.

2. Respondent No.2 in Appeal No.1075 of 2021 and Petitioner No.1 in Writ Petition No.3595 of 2021, is the first informant in C.R. No.350 of 2021, registered with Baramati Police Station, Pune (Rural) and ssm apeal1075.21gp.doc Petitioner No.2 is the injured victim in the crime bearing C.R. No.350 of 2021. Petitioners have prayed for transfer of investigation of the said C.R. No.350 of 2021 registered with Baramati Police Station to C.I.D., C.B.I. or any other independent investigation machinery and for a direction to add Ravindra Kale as accused in the said crime as per the statement of injured witness, Petitioner No.2.

3. Hereinafter Mr. Jaydeep Taware will be termed as “Appellant” and Respondent No.2 in Criminal Appeal No.1075 of 2021 and Petitioners in Writ Petition No.3595 of 2021 will be termed as “Petitioner/s”.

4. Heard Mr. Mundargi, learned Senior Counsel for Appellant in Appeal No.1075 of 2021, Mr. Mohite, learned Senior Counsel for Respondent No.2 in Appeal No.1075 of 2021, Mr. Mankapure, learned Advocate for Petitioners in Writ Petition No.3595 of 2021 and Mr. J.P. Yagnik, learned A.P.P. for State. Perused entire record and the Affidvit-in-reply dated 31st January, 2022 filed by Shri. Ganesh P. Ingle, Sub-Div. Police Officer, Baramati.

5. Record reveals that, Mrs. Rohini R. Taware, the Petitioner No.1 lodged F.I.R. bearing No.350 of 2021 dated 1 st January, 2021 with Baramati Police Station, District Pune (Rural) under Sections 307, 120-B, 504, 506 read with 34 of the I.P.C. and under Sections 4 and 25 of the Arms Act, for an incident occurred on 31st May, 2021.

5.1. It is the prosecution case that, on 31st May, 2021 at about 6.45 p.m. the Petitioner No.1 and her husband i.e. Petitioner No.2 had been to the house of Mr. Saad Shaikh for collecting the parcel of Vada-Pav. Her husband alighted from their car and went to receive the said parcel. At that time, accused Akash More along with an unknown person came on a motor-cycle bearing No. MH-42-AY-9692. Akash More fired a bullet from a gun on the person of Petitioner No.2. The Petitioner No.2 started running to save himself. Akash More tried to fire another round, however it did not hit. At that time, Akash More shouted loudly and told the Petitioner No.2 that, ‘Chikoo Patil (Appellant) will not leave him, you will be finished/wipped out’ and thereafter fled from the scene of offence. In this brief premise, the said C.R. No. 350 of 2021 was lodged by the Petitioner No.1 initially against four persons namely (i) Prashant Popatrao More (ii) Tom @ Vinod Popatrao More (iii) Akash Prashant More and one unknown person. The motive behind the crime is stated to be political and business rivalry arising out of monetary loss suffered by accused out of civil contracts allotted by local Authorities and to create reign of terror in the vicinity for gaining pecuniary benefit.

5.2. During the course of investigation, concerned Investigating Officer found that the accused Prashant More (A-1) is running an organized crime syndicate and therefore he submitted a proposal dated 9th June, 2021, seeking approval for invoking the provisions of MCOC Act to the said crime initially against four accused persons. The Special