Vishnu Sahai, J.@mdashIn this Petition preferred under Article 226 of the Constitution of India, the petitioner has alleged that her son Purshottam Narayan Bangera @ Kotian, was not done to death in an encounter as alleged by the respondent No. 4 Police Inspector Pandharinath N. Ghuge in the F.I.R. of Crime No. 248 of 1998 of police station Bhayandar and in the return filed by the respondent No. 3 Ashok Kamte, Superintendent of Police Thane (West) but, was murdered in a cold-blooded manner after being brutally assaulted by the said respondents and others. She has urged that there has been a violation of the fundamental right provided by Article 21 of the Constitution of India which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law and amongst the manifold prayers made by her, one is that a direction be issued by us appointing a retired Judge of this Court or Sessions Court or any other fit person to inquire into the matter and submit his report to this Court.
2. From the averments contained in the Writ Petition and the affidavits filed by Liladhar Kotian, Ronnie Gabriel Menezes, Bhavarlal Bhikamchand Jain and Mohd. Haji Ahmed Mithaiwalla in support thereof, it transpires :-
The deceased Purshottam Narayan Bangera @ Kotian was the eldest son of the petitioner. Her husband and second son are no more. Her only surviving son is a student and has joined a course of Refrigeration and Air-conditioning at Borivali, Mumbai. The deceased was the only earning member and was maintaining the entire family. On account of his death, she is finding it very difficult to sustain herself and her family.
At. the time of the incident, the deceased was working as an Estate Agent in Mumbai and was dealing in sale and purchase of real estate and properties. He was carrying on the said business along with his two partners Ronnie Gabriel Menezes and Bhavarlal Bhikamchand Jain and on or about 15-5-1997 had constituted a partnership firm with them. The Deed of Partnership was filed for registration before the Registrar. On 24-4-1998, a Memorandum of Understanding was arrived at between the deceased and the said two partners on one side and Mohd. Hanif Mithaiwalla on the other in respect of 1382 sq. mtrs. of land with some structures situated in Erangal village. The latter was to purchase from the former the said property for Rs. 65 lacs and issued a cheque of Rs. 51,000/- in their favour. The said Memorandum stipulated that Mohd. Hanif Mithaiwalla would pay Rs. 1,49,000/- to the deceased and others for making clear and marketable the title of the property and for meeting expenses.
On 4-6-1998 at about 12 noon, the deceased and his partners visited the house of Mohd. Hanif Haji Ahmed Mithaiwalla at Mahim and received from him Rs. 75,000/- in cash. The deceased executed a receipt in his own hand writing in the notebook of Mithaiwalla. He kept the said money in a plastic bag and thereafter along with the partners came to Malad where he told his partners that since he wanted to book a flat, he would keep the said amount and would go to Mira Road/ Bhayandar to find out whether any flat was available. He told them that they could take their share from the next installment.
At about 3 p.m. the same day, the deceased and his youngest brother left their Malad residence. The latter went to Borivali and the former with a plastic bag to Mira Road and Bhayandar. At that time, the petitioner was not at home. She had gone to her daughter''s place at Gorai as she had recently delivered a child.
At about 1 a.m. on the night of 5-6-1998 a telephone call was received at Mangalore Stores by its proprietor Mr. Kini and the caller who disclosed his name as Vijay informed that the deceased had met with an accident and was admitted in Civil Hospital, Thane. Mr. Kini passed on the said information to Ronnie Gabriel Menezes, a partner of the deceased, who along with Ashok Kanchan brother-in-law of the deceased went to the Civil Hospital, Thane, where they learnt from a constable that no case of accident had been admitted in the hospital.
At about 6 p.m. the same day a dead body killed in police encounter was brought to Thane Hospital and when Ronnie Gabriel Menezes and relations of the deceased expressed their desire to see the same, the constable asked them to bring a letter from the Bhayandar Police Station. Consequently, Ronnie Gabriel Menezes along with relatives of the deceased went to Bhayandar police station where at about 9 p.m. the same day they met respondent No. 2 P. N. Niphade, Senior Inspector of Police, Bhayandar Police Station, Sr. P. I. Niphade after making inquiries from the relatives of the deceased showed them his photographs and the same were recognised by them and Ronnie Gabriel Menezes to be those of the deceased. They also informed Sr. P. I. Niphade that the deceased was wearing one gold chain with saibaba locket, one gold chain with gold taviz, one titan watch, one gold bracelet and three gold rings. Since the said articles had been on the person of the deceased, Sr. P. I. Niphade was satisfied that the persons who had come were the relatives of the deceased and consequently gave a letter to the Civil Surgeon, Thane, to show the corpse of the deceased to his relatives.
The same night, the relatives of the deceased and Ronnie Gabriel Menezes proceeded to the Thane Hospital where they were shown the corpse of the deceased which they identified.
At 1.30 a.m. on 6-6-1998 they claimed the corpse for performing the last rites of the deceased but it was not handed over to them. Thereafter, at 11 a.m. the, same day they went to Bhayandar Police Station where respondent No. 2 recorded the statement of brother of the deceased, brother-in-law of the deceased and Ronnie Gabriel Menezes. At about 5 p.m. he gave a memo for handing over the corpse of the deceased to his relations, who in turn received the corpse at 7 p.m. from Thane Civil Hospital and brought the same to the residence of Liladhar Kotian, the maternal uncle of the deceased at Bhayandar. They found that there were several injuries and bruises all over the body of the deceased. As the purification of the body was taking place, they could not wait and the same night, they performed the last rites of the deceased.
2A. The petitioner has alleged that thereafter she and her relations made several inquiries from Kashimira and Bhayandar Police Stations to know the circumstances in which the deceased was killed but, the officers of the said police stations refused to furnish any/information. The petitioner''s relations through an Advocate approached the autopsy Surgeon Dr. R.M. Dhotre, respondent No. 5, but he also declined to give any information.
It appears that in the meantime, the petitioner learnt about the alleged police encounter wherein the deceased was killed and through an Advocate approached Thane Court and obtained copy of the F. I. Rs. lodged in C.R. No. 247 of 1998 and 248 of 1998 of Bhayandar Police Station to which, we would advert to at length later on. On going through the said F.I.Rs. she concluded that her son Purshottam Narayan Bangera @ Kotian had not been killed in the manner set out in the F.I.R. of C.R. No. 248 of 1998 but was the victim of a cold blooded murder.
3. On 25-6-1998, the petitioner filed the present petition in this Court which is supported by an affidavit dated 17-6-1998. On 1.7.1998, Mr. Liladhar Kotian (maternal uncle of the deceased) Mr. Ronnie Menezes and Mr. Bhavarlal Jain affirmed affidavits in this Court, in support of the averments contained in this petition and on 6-7-1998, Mohd. Mithaiwalla affirmed a similar affidavit in this Court. The said affidavits are in the Paper Book of this petition.
4. In short, the allegation in this petition and the contention of the learned Counsel for the petitioner is that it is clear that the deceased was not done to death in the circumstances set out in the F.I.R. of C.R. No. 248 of 1998 and in the return of Mr. Ashok Karate but was first assaulted and thereafter killed.
5. On the converse, the case of the respondents as contained in the First Information Reports of C.R. No. 247 of 1998 and 248 of 1998 of police station Bhayandar and the affidavit filed in this Court by Mr. Ashok Kamte Superintendent of Police, respondent No. 3 is that stated hereinafter.
5A. On 4-6-1998, one Amjad Fatemohammad Khan telephoned Police Inspector P. N. Ghuge, respondent No. 4 informing him that he was being subjected to extortion. Consequently, P.I. Ghuge called him at the Kashimira Police Station and informed the respondent No. 3 who asked him to lodge his F.I.R. At 11.15 a.m. Amjad Khan''s F.I.R. under Sections 387/506/34 of the IPC read with s. 25(1)(a) of the Arms Act was recorded at Kashimira Police Station.
In short, it is stated therein that 10 to 15 days prior to 7-5-1998, the date of his release on bail in Asmat Patel''s murder case in connection with which he was detained in Arthur Road Central Prison, he was called by two jail inmates namely Bacchi Pande and Shyam Kishor Garlkapatti who told him that since he was a big builder, he should pay them Rs. 10,00,000/- anyhow. He replied that after being released from jail with the help of his partner Dilip Sanghvi and one Manoj Sharma, he would try to arrange for the amount. At the time of release from jail, he was told by them that their men would be coming to collect the said amount. He alleged that he and his partner Manoj Sharma were receiving telephone calls every alternate day from persons describing themselves as members of Sutahash Singh Thakur''s gang and the said persons asked them to arrange the money which Bacchi Pande had directed to be arranged. Amjad Khan has also mentioned that about 10 to 12 days ago, when he went to his office, five unknown persons along with Manoj Sharma were sitting. One of them mentioned his name as Paras and stated that he belonged to Subhash Singh Thakur''s gang and had been sent by Bacchi Pande to collect Rs. 10,00,000/-. On that he and Manoj Sharma told them that it would take four to five days time to arrange for the money. Four to five days later, the said persons again came to his office and demanded money from him and ultimately it was decided that he would pay them Rs. 3,00,000/- and the first installment of Rs. 1,00,000/- would be paid on 4-6-1998 at 1 p.m. Thereupon, one of them who was having a revolver namely Arvind brandished the same and candidly told him that in case he did not pay the amount or reported the matter to the police, they would kill him. At that time, he did not lodge any F.I.R. on account of their fear but, subsequently he decided to lodge one because threats and extortion would continue unabated.
Since the concerned police station was Bhayandar, the said F.I.R. same day was transferred to Bhayandar Police Station where at 4.35 p.m. C.R. No. 1-247 of 1998 was registered.
5B. The F.I.R. of C.R. No. 248 of 1998 of Bhayandar Police Station and para 5 of the return of Superintendent of Police Ashok Kamte read thus :- after directing P. I. Ghuge respondent No. 4 to lodge Amjad Khan''s F.I.R. Ashok Kamte Superintendent of Police, proceeded for police station Kashimira which he reached at 12.40 p.m. By that time, Amjad Khan''s F.I.R. had already been recorded. Consequently, it was decided to lay a trap and apprehend the extortionist. Accordingly Ashok Kamte, P. I. Ghuge and seven others from police personnel in plain clothes proceeded in a jeep to Arpita Constitution company (office of Amjad Khan) situate at Nayanagar at Mira Road. Hundred meters away from Amjad Khan''s office was a building known as Sahil Constructions. Ashok Kamte and Ghuge waited there. The other Police personal were nearabout. At about 4.20 p.m. the police informer, by rubbing his beard, indicated to them that the bearded man who was leaving Arpita Construction company was having money. Consequently both of them stood near the gate of Sahil Construction and when the bearded person came near, S.P. Kamte asked him to wait and informed him that they were members of police. On hearing this, the bearded man took out a revolver from the plastic bag which he was carrying. S.P. Kamte took out his service pistol and fired one round in the air and asked him to surrender but, instead of surrendering, he fired at him but, he managed to escape getting hurt. P. I. Ghuge asked the bearded man to wait. S.P. Kamte fired by way of self-defence towards the bearded man who fired one more shot at S.P. Kamte but he again managed to escape getting hurt. Thereafter, P. I. Ghuge fired two rounds from his service revolver at him and one of the shots hit him on his head and he fell down. Thereafter, S.P. Kamte and P. I. Ghuge came near him and noticed that a revolver of foreign make ''Smith and Wesson'' of 32 bore and a plastic bag containing some bundles of currency were lying near his hand. Since he was precariously injured, in a jeep they sent him to Primary Health Center, Bhayandar and asked police constable Tambe, and Mule to remain at the place and keep a watch on the revolver and plastic bag.
6. On reaching Primary Health Center, Bhayandar, the bearded man was examined by Dr. R.M. Dhotre, respondent No. 5 who declared him to be dead.
7. The F.I.R. of C.R. No. 248 of 1998 was lodged by P. I. Ghuge at 6 p.m. at police station Bhayandar and on its basis, a case under Sections 307/353/384/386 of 1PC and Sections 3, 25(1)(A) and 27 of the Arms Act was registered.
8. In short, the case of respondents S.P. Ashok Kamte and P. I. Ghuge is that they fired at the bearded man who later on was found to be the deceased Purshottam Narayan Bangera alias Kotian in the exercise of their right of private defence of person.
9. After F. I. Rs. of C.R. Nos. 247 of 1998 and 248 of 1998 of Bhayandar Police Station were lodged, the usual investigation was done.
10. The Inquest 011 the corpse of the bearded man was conducted the same day (4-6-1998) between 6.30 p.m. and 7.30 p.m. and its perusal shows that the deceased was putting on white jeans, black shoes, white socks, a wrist watch, and there were some lockets and rings on his person. It also shows that there were some marks of bruises on the left hand, left eye was swollen and it turned bluish in appearance and 7 cm away from the left arm pit, on the back of the deceased, there were two bruise marks of the dimensions of 7 cm and 8 cm respectively,
11. The post-mortem examination on the corpse of Purshottam Narayan Bangera @ Kotian was conducted on 5-6-1998 between 11.40 a.m. and 1.10 p.m. by Dr. Dhotre, respondent No. 5 who found on it the following injuries :-
1. Penetrating round shaped wound seen midline of forehead 3 cm above, root of nose of diameter "1 cm" skin around burned seen black, edge inverted.
2. Penetrating round shaped wound in left axilla "12 cm" lateral to nipple and "9 cm" downward of axilla skin around burned seen black, edge inverted.
3. Crushed injury to proximal 2/3rd of left hand ring finger.
4. Penetrating round shaped wound in right axilla of diameter 1.5 cm (1 1/2 cm) "15 cm" lateral to nipple and "10 cm" downward axilla edge burned inverted and seen black.
5. Round shaped wound upper l/3rd right arm of 1.5 cm x (1 1/2 cm) diameter edge burned seen black and inverted size 1; 1.5 x muscle deep 1/ 2 cm.
6. Contusion of reddish black coloured of size 3 cm x 2 cm over left abdomen 6 cm away from umbilicus.
7. Scratch marks seen on left arm
8. Two scratch marks left back over scapula of 6 cm and 7 cm.
In the opinion of Dr. Dhotre, the deceased died on account of cardio respiratory failure due to internal haemorrhage in chest wall and brain due to gun shot injuries.
12. Mr. Tiwari learned Counsel for the petitioner has strenuously urged that there is more than what meets the eye in the prosecution case. He vehemently submitted that the manner of death of the deceased as unfurled in the F.I.R. of C.R. No. 248 of 1998 lodged by P. I. Ghuge (respondent No. 4) and in para 5 of the return of S.P. Ashok Kamte (respondent No. 3) is prima facie rendered doubtful by the following circumstances :-
(a) The categorical case in the said documents is that the deceased was only fired upon by S.P. Kamte and P.I. Ghuge but, his inquest report and post-mortem report reveal injuries other than fire-arm injuries.
Mr. Tiwari pointed out that the injuries mentioned hereinafter which are noted in the inquest report are not attributable to fire-arm:-
(i) marks of some bruises on left hand;
(ii) left eye of the deceased being swollen and bearing a bluish appearance; and
(iii) at a distance of 7 cm from left armpit of the deceased, two bruise marks, one of the dimensions of 7 cm and the other that of 8 cm.
Mr. Tiwari urged that injury Nos. 3, 6, 7 and 8 mentioned in the post-mortem report are not attributable to fire-arm. The said injuries are :
3. Crushed injury proximal 2/3rd of left hand ring finger.
6. Contusion of reddish black colour of size 3 cm x 2 cm over left abdomen 6 cm away from umbilicus.
7. Scratch marks seen on left arm.
8. Two scratch marks left back over scapula of 6 cm and 7 cm.
(b) all the fire arm injuries found on the person of the deceased namely injury Nos. 1, 2, 4 and 5 have burning and this shows that firing on the deceased was done within 3 feet and this in turn would belie the story of the deceased being killed in the manner given out by the prosecution. The said manner shows that firing on the deceased was done from a distance of more than three feet.
(c) although exchange of firing between the deceased on one hand and respondents Nos. 3 and 4 on the other took place from very close quarters, the said respondents did not sustain any injury.
(d) prosecution did not take the finger prints from the revolver alleged to have been used by the deceased;
(e) although the trap for the deceased was laid on prior information still no public witnesses were taken and there are no public witnesses of the incident;
(f) there is nothing a part from a bald averment, to indicate that the deceased belonged to the gang of Subhash Singh Thakur; and
(g) recovery of Rs. 75,000/- from the plastic bag which the deceased was carrying is explained in the affidavit filed by Mohd. Hanif Haji Ahmed Mithaiwalla in this Court wherein he has stated that on 4-6-1998 at about 12.30 noon he had given the said money to the deceased and his partners in connection with the property which he was to purchase in Erangal (Malad) and the said money was kept by the deceased in a plastic bag.
13. On the converse, Mrs. J.S. Pawar Additional Public Prosecutor in the first place urged that this petition deserves to be dismissed for in para 1, there is averment to the effect that the deceased had no criminal antecedents and not even a single N. C. complaint had been registered against him but, this fact is false because, the wife of the deceased Smt. Usha Purshottam Kotian has alleged in a affidavit filed by her in this Court on 8-7-1998 that she has lodged N. C. Complaint No. 883 of 1996 on 16-10-1996 at Malad Police Station against him. We regret that on this ground the petition cannot be dismissed because the probability of the petitioner who is a illiterate old lady not having any knowledge about this complaint cannot be excluded. At any rate, a N. C. complaint lodged by a wife against a husband cannot be equated with the latter having criminal antecedents. Therefore, we reject, this submission of hers.
Mrs. Pawar also strenuously urged that it would not be proper for us to approach the prosecution case with a needle of suspicion because the same was corroborated by two F.I. Rs. which were promptly lodged (F.I. Rs. of C.R. No. 247 of 1998 and 248 of 1998 of police station Bhayandar). Mrs. Pawar also vehemently urged, that at this stage, there was a presumption that the averments in the said F. I. Rs. were correct. She also pointed out that the averments in the petition to the effect that the deceased was done to death in a cold-blooded manner is blatantly untruthful and S.P. Kamte in para 5 of his affidavit has categorically denied it, and has stated therein that he acted in self-defence of person. She also contended that if this Court was to entertain petitions of the present type, police machinery would get demoralised and even in genuine cases, like the present one, police officers would shy from taking action.
Mrs. Pawar finally urged that since the District Magistrate Thane has ordered an inquiry by the Sub-Divisional Magistrate, Thane Division, to inquire and report on the following points :
1. The circumstances which made the police to fire.
2. The weapons used by police.
3. How many rounds/bullets were fired.
4. How many people got killed or were injured.
5. Whether the firing was justifiable.
It would be pre-mature on our part without waiting for his report to grant as a interim relief, the prayer for a judicial inquiry made by the learned Counsel for the petitioner. She also urged that if we felt that the Sub-Divisional Magistrate was not the proper person to inquire, we should direct the District Magistrate, Thane, himself to conduct the inquiry.
14. We have given our anxious consideration to the rival submissions. At this stage, it is neither proper nor possible for us to decide as to which of the two versions is correct. In our writ jurisdiction, we do not decide such questions. But, all the same in our writ jurisdiction, we have to examine the question whether the deceased was deprived of his life according to the procedure established by law as mandated by Article 21 of the Constitution of India which provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law."
15. In the instant case, in our view, the features referred to in para 12(a) to (g) certainly demonstrate that the averments contained in the present petition cannot be stigmatised as frivolous. We feel that it would be conducive to the cause of justice if instead of any inquiry by the Sub-Divisional Magistrate, which in our view, would only be an eyewash the District and Sessions Judge, Thane, is directed to conduct an inquiry. We fail to see how such an inquiry would demoralise respondents Nos. 2 to 5 and those of the police personnel who took part in the incident. If there are no skeletons in their cupboard, they have no cause to fear in the converse, if the judicial inquiry vindicates their version, their stock would go up should not Caesor''s wife, always remains above suspicion ? It should be remembered that like justice which should not only be done but should also appear to be done, a fair inquiry should not only be done but should also appear to be done. And this is the reason that in place of an inquiry by a Sub-Divisional Magistrate, who is an officer of the executive and would be inquiring into allegations of firing against other officers of the executive, including S.P. Ashok Kamte who is higher in rank to him, we have opted for a judicial inquiry. We should not be understood to mean that we are casting any insinuations against an inquiry by S.D.M. or by the District Magistrate Thane himself but, we feel that bearing in mind the peculiar facts before us a judicial inquiry would be efficacious and in consonance with considerations of fair play.
We hasten to add that we should not be understood to mean that in every case where there is an allegation of firing by a police officer, a judicial inquiry would be ordered.
16. Accordingly we direct the District and Sessions Judge, Thane to conduct an inquiry into the question whether the firing on the person of the deceased Purshottam Narayan Bangera @ Kotian was done in the manner set out in para 5 of the affidavit of Superintendent of Police Ashok Kamte, respondent No. 3 and in the F.I.R. of C.R. No. 248 of 1998 of police station Bhayandar under Sections 307/353/384/386 of IPC and Sections 3, 25(1)(a) and 27 of the Arms Act.
For the purposes of the said inquiry, the learned Judge would examine :
1. Petitioner Smt. Leelavati Narayan Bangera @ Kotian;
2. Mr. Liladhar Kotian;
3. Mr. Ronnie Gabriel Menezes;
4. Mr. Bhavarlal Bhikamchand Jain;
5. Mr. Mohd. Hanif Haji Ahmed Mithaiwalla;
6. Sr. Inspector of Police Mr. P. B. Niphade, Respondent No, 2;
7. Mr. Ashok Kamte, Superintendent of Police, Respondent No. 3;
8. P.I. Mr. Pandharinath Narayan Ghuge, Respondent No. 4.
9. Dr. R.M. Dhotre, Respondent No. 5 ; and
10. Smt. Usha Kotian.
We also make it clear that the learned Judge would be at liberty to examine such other witnesses and summon such documents as he deems necessary for the said inquiry.
It is made clear that the learned Judge would not be influenced by the observations contained in this order while making the inquiry and preparing his report.
The inquiry would be completed by him within a period of 8 weeks from the receipt of copy of our order.
The xerox copies of the papers contained in the present petition and the entire investigation papers, in original, handed over by Mrs. Pawar, Additional Public Prosecutor, would be kept in a sealed cover forthwith by the Additional Registrar (Judicial) and would be transmitted by him along with a copy of our order to the District and Sessions Judge, Thane, within a period of 10 days from today.
Immediately on receiving the inquiry report and the accompanying record, the Registry would place this petition before the appropriate Court for further orders.
At this stage, Mrs. Pawar Additional Public Prosecutor prayed that the operation of our order be stayed for a period of 8 weeks as the respondents intend to challenge it in the Supreme Court. We do not find any justification in the said prayer and accordingly reject it.
Issuance of certified copy is expedited.
