R.Y. Ganoo JUDGMENT
1. Heard Counsel for the parties. Two reliefs are claimed in this petition. The first is to entrust the investigation of the criminal case to an independent investigating agency. The second relief is to compensate the petitioner for his illegal arrest and detention contrary to the provisions of law.
2. In the case of co-accused Abdul Razak Hasan Dokadia, being Writ Petition (Cri.) No. 2271 of 2012, somewhat similar arguments on the second count were considered and since the Court indicated its mind, the petitioner therein did not pursue that relief with liberty. However, in the present case, Counsel for the petitioner submits that the petitioner would invite decision on both the reliefs claimed by him. As a result, we proceed to examine the arguments on merits.
3. With regard to the first relief, at the outset, it may be noted that the petitioner is an accused. At the instance of the accused, the question of transferring investigation to some other agency and more particularly in absence of any allegation of bias against the present investigating officer or any attempt on his part to destroy the available evidence, does not arise. It will be useful to advert to the exposition of the Apex Court in the case of Divine Retreat Centre vs. State of Kerala & Ors. reported in MANU/SC/1150/2008 : (2008) 3 SCC 542. Notably, the investigating officer has not been impleaded as respondent by name. Thus, even if there is vague allegation of bias of the investigating officer against the petitioner, that plea cannot be taken forward. Assuming that we were required to examine the plea of bias of the investigating officer against the petitioner, we find no substance in the said contention. The argument of the petitioner, is that, at the time of commission of offence, he was not present on the scene of offence; but was present at Goregaon along with his pregnant wife, where he had gone for a medical check-up of his wife. This stand is sought to be supported on the basis of mobile telephone record indicating his physical location at the relevant point of time. Assuming that it is open to the petitioner to take this plea being a circumstance in his favour, but that will have to be pursued as his defence, required to be proved by him at the trial. The argument proceeds that the investigating officer was obliged to investigate even this aspect. This argument does not commend to us. The investigating agency cannot be burdened with the investigation of the defence case. That is not the requirement of law. No doubt, the investigating officer is expected to conduct the investigation fairly and take into consideration all the circumstances, material and evidence that comes to his notice, against as well as favourable to the accused, collected during the investigation. But that does not mean that the investigating officer can be faulted for not thoroughly investigating the defence version and to transfer the investigation on that count. That, by itself, cannot be the basis to doubt the credibility of the investigation and in particular to infer bias of the investigating officer. The first relief as claimed, therefore, cannot be taken forward. The same is rejected.
4. Reverting to the second relief, the argument of the petitioner, is that, he was arrested in connection with offence, which is, admittedly, punishable with imprisonment for seven years and below. According to the petitioner, by virtue of the amended Section 41 of the Criminal Procedure Code, in particular, clause (b) of sub-section (1) thereof, which has come into effect from 1st November, 2010, it was imperative for the police officer to record reasons "in advance" justifying the arrest of the accused involved in such offence. Only then, he can assume power to arrest the accused involved in such crime. That procedure has not been followed in the present case. The argument though attractive at the first blush, on bare reading of the amended provision, will have ........