Case can't be transferred at accused's behest: HC

A division bench of Justices A M Khanwilkar and R Y Ganoo was hearing a petition filed by an accused Afak Shabbir Khan seeking transfer of probe in his case from local police to an independent agency.

According to Khan, at the time of the alleged commission of offence, he was not present at the scene. His lawyer Aabad Ponda argued that Khan was present in suburban Goregaon for a medical check up of his pregnant wife.

The bench, however, refused to accept this as a sole contention for transferring probe to another agency. "At the instance of an accused, the question of transferring probe to some other agency and more particularly in absence of any allegation of bias against the present investigating officer does not arise," Justice Khanwilkar observed.

The court further said Khan's contention that the investigating officer was obliged to probe even the defence's case that the accused was not present at the crime scene cannot be accepted.

"The investigating agency cannot be burdened with probe of the defence case. That is not the requirement of law," the bench said.

It, however, noted that the investigating officer is expected to conduct the probe fairly and take into consideration all the circumstances and evidence against as well as favourable to the accused.

"But that does not mean the investigating officer can be faulted for not thoroughly probing the defence version and to transfer the probe 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 officer," the court said dismissing Khan's petition.