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2022 DIGILAW 77 (BOM)

Rajat Kalyan v. State of Goa

2022-01-07

MANISH PITALE, SADHANA S.JADHAV

body2022
JUDGMENT 1. Today, the Registrar ( Judicial) has placed before us the order passed by Adhoc Additional Sessions Judge, Fast Track Court, Mapusa, Goa, while deciding a Miscellaneous Application in Sessions Case No. 51 of 2021 as per the directions of the Sessions Judge, Mapusa. 2. The records are placed before us. This case arises out of the Criminal Writ Petition No. 557 of 2021 (F), which was disposed of by this Court vide Judgment and Order dtd. 18/9/2021. The said Writ Petition was filed seeking the quashing of FIR No. 11/2021 registered at Porvorim Police Station. In fact, FIR No. 18/2021 was registered at Vasco Police Station in respect of the same case. The crime was registered for offences punishable under Ss. 364A, 365, 394, 465, 471, 120-B read with Sec. 34 of the Indian Penal Code (IPC). The case was committed to the Court of Sessions at Margao, and registered as Sessions Case No. 21 of 2021, whereas, in Crime No. 11 of 2021, the case was registered as Sessions Case no. 51 of 2021 and was pending before the Sessions Court at Mapusa, Goa. 3. By an Order dtd. 18/9/2021, Crime No. 11/2021 was quashed. However, this Court had directed that the chargesheet filed in Crime No. 11/2021 be filed in Sessions Case No. 21 of 2021 at Margao and be treated as a supplementary chargesheet. The Court had directed to adopt the same course as was adopted in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and another, (2013) 6 SCC 348 . This Court had further granted the prosecution liberty to file an appropriate application under Sec. 407 of Cr.P.C. if they so desired and the said application would be decided on its own merits in accordance with law. 4. The Investigating Officer in Crime No. 11/2021 had filed an application before the Sessions Court at Mapusa seeking the return of the original case papers praying therein to transfer the original case papers to the Court of District Judge-4 and Additional Sessions Judge, Margao to carry out the further trial in Sessions Case No. 21/2021 in view of the Order passed by this Court in Criminal Writ Petition No. 557 of 2021. 5. The application filed by the Investigating Officer was taken up before the Sessions Court for hearing on 30/9/2021. 5. The application filed by the Investigating Officer was taken up before the Sessions Court for hearing on 30/9/2021. The Investigating Officer had filed the true copy of the Judgment and Order dtd. 18/9/2021. The application was taken up for hearing on 29/10/2021. It is specifically observed in the roznama that the application was filed for transfer of original case papers of Sessions Case no. 51/2021 to the Court of the District Judge-4 and Additional Sessions Judge, Margao, in view of the Order of the High Court of Bombay in Writ Petition No. 557 of 2021. The Sessions Court had directed the Applicant to move the Principal District Judge for necessary orders or move an application before the High Court. The matter was again taken up on board on 9/11/2021 wherein the Sessions Court directed that the Sessions case be transferred to South Goa. In fact, in view of the quashing of the FIR in Crime no. 11/2021 and a specific direction by the High Court that Sessions Court shall not proceed in Sessions Case No. 51 of 2021 and the chargesheet filed in Crime No. 11/2021 be treated as supplementary chargesheet in the Sessions Case No. 21 of 2021, the Sessions Judge ought to have transferred the case papers to Sessions Court at Margao to form a part of the proceedings in Crime No. 21/2021. 6. Even after directing that the Sessions Case be transferred to Margao, the application was still pending and was taken up for hearing on 17/11/2021 wherein another application, exhibit D-15 was filed regarding handing over of original case papers of Sessions Case No. 51 of 2021 to the Investigating Officer in view of the order passed in Writ Petition No. 557 of 2021. This application was filed in the backdrop of the Sessions Court directing the Investigating Officer to file a necessary application seeking transfer. The Sessions Court then issued notice to the Public Prosecutor and PI Crime Branch and directed them to remain present. 7. On 28/12/2021, the Public Prosecutor submitted that the Investigating Officer had missed the scheduled date and therefore sought time on behalf of the Investigating Officer to clarify Exhibit D-15. The Sessions Court then issued notice to the Public Prosecutor and PI Crime Branch and directed them to remain present. 7. On 28/12/2021, the Public Prosecutor submitted that the Investigating Officer had missed the scheduled date and therefore sought time on behalf of the Investigating Officer to clarify Exhibit D-15. On 30/12/2021, the application below Exhibit D-15 was dismissed with a direction to forward the copy of the Order to the High Court of Bombay at Goa as well as the Superintendent of Police and to the Director General of Police, Goa, for necessary action. 8. Perused the order dtd. 30/12/2021. The Sessions Judge has deprecated the conduct of the Investigating Officer and has observed that inspite of the directions of the Sessions Court to the Investigating Officer to withdraw the application below Exhibit -15 and to move the High Court as directed in the order passed by the High Court in terms of the earlier order passed by the Sessions Court below Exhibit D-13, the Investigating Officer had failed to follow the directions given by the Sessions Court and hence, the said conduct was deprecated. The Sessions Court had then proceeded to observe that it is necessary to initiate appropriate action against the Investigating Officer in view of the observations made by the Sessions Court while dismissing the application at Exhibit 15 since the application was not maintainable. The said order has been placed before us by the Registrar ( Judicial). 9. In fact, the conduct of the Sessions Court cannot be countenanced by this Court in any manner. The order passed by this Court in Writ Petition No. 557 of 2021 (F), was self speaking and all that was to be done was to return the original case papers in Sessions Case No. 51 of 2021 to be treated as a supplementary chargesheet in Sessions Case no. 21 of 2021. However, initially, the Sessions Court directed the Investigating Officer to file an application seeking transfer of the case. Secondly, the Investigating Officer was further directed to file an application before the Principal District Judge under Sec. 407 of the Criminal Procedure Code (Cr.P.C.). It is apparent from observations in the order that the Sessions Judge had asked the Investigating Officer to withdraw the application below exhibit D-15. Secondly, the Investigating Officer was further directed to file an application before the Principal District Judge under Sec. 407 of the Criminal Procedure Code (Cr.P.C.). It is apparent from observations in the order that the Sessions Judge had asked the Investigating Officer to withdraw the application below exhibit D-15. In fact, it was incumbent upon the Sessions Court to decide the application in accordance with law and not direct the Investigating Officer to withdraw the application. In fact the application was indeed filed pursuant to the directions of this Court vide order dtd. 18/9/2021 and the application was filed below Exhibit D-13 seeking handing over of the original case papers ought to have been allowed at the first instance. The Sessions Judge has fallen in error and it appears that the order passed by the High Court has either been misconstrued or misconceived by the Sessions Judge. It is in view of this, the following directions are necessary : (i) The original case papers in Sessions Case No. 51 of 2021 shall be transferred to the Court of Sessions at Margao and shall be considered as a supplementary chargesheet in Sessions Case No. 21 of 2021. The papers are to be sent to the Margao Court by a special Messenger and the same shall reach the Court of Margao by 3.00 p.m. on 10/1/2022. (ii) The observation of the Sessions Judge in paragraph 10 of the Order dtd. 30/12/2021 passed by the Sessions Court against the I.O. and the observations in paragraph 12 that appropriate action should be initiated against the Investigating Officer, are struck down. The direction that the copy of this Order dtd. 30/12/2021 be forwarded to the Superintendent of Police, North Goa, and to the Director of Goa for necessary action, is also struck off. 10. No further directions are necessary.