IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ WRIT PETITION No.12913 OF 2020
ALONG WITH I.A. No.2 OF 2020
% Delivered on: 05-07-2021
Between:
# Mr.Mahenderkar Amarnath .. Petitioner
Vs.
$ The State of Telangana, rep.by its Principal
Secretary, Home Department, Hyd. & others .. Respondents
! For Petitioner : Mr. Palle Sriharinath, ^ For Respondent Nos.1 to 3 : Learned Govt. Pleader for Home For Respondent Nos.4 to 7 : Mr. V. Ravi Kiran Rao, learned senior counsel representing Mr. Sridhar Lonkala, learned counsel < Gist :
> Head Note :
? Cases Referred :
1. 2020 (11) SCALE 185
2. 2014 Crl.L.J. 4078 (SC)
3. 2014 Crl.L.J. 1875 (SC)
4. AIR 1962 SC 439
5. (1981) 3 SCC 635
6. 2012 Crl.L.J. 3877 (SC)
7. 2012 Crl.L.J. 3877 (SC)
8. 2011 Crl.L.J. 2172 (SC)
9. 2015 Crl.L.J. 2041 (SC)
10. 2011 Crl.L.J. 2673 (SC)
11. 2014 Crl.L.J. 3697 (SC)
12. (1976) 3 SCC 618
13. 1958 AIR 22
14. M.Cr.C. No.30972/2019, decided on 29.07.2019
15. (1990) 3 SCC 45
16. (2010) 14 SCC 444
17. (2012) 4 SCC 722
18. Criminal Appeal Nos.872-873 of 2020, decided on 17.12.2020
19. (2011) 1 SCC (Cri.) 33
20. (2016) 4 SCC 160
21. (2019) 17 SCC 1
22. 2020 SCC OnLine AP 964 KL,J W.P. No.12913 of 2020 2 HON'BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.12913 OF 2020 ALONG WITH I.A. No.2 OF 2020 COMMON ORDER:
This Writ Petition is filed to declare the action of respondent Nos.2 and 3 in not conducting investigation in a fair and transparent manner by considering the dying declaration in Crime No.63 of 2016 pending on the file of Shankarampet (A) Police Station, Medak District as illegal, and for a consequential direction to respondent No.3 to investigate the said crime, arrest respondent Nos.4 to 7 and file charge sheet / final report against them.
2. Heard Mr. Palle Sriharinath, learned counsel for the petitioner, Mr. V. Ravi Kiran Rao, learned Senior Counsel, representing Mr. Sridhar Lonkala, learned counsel for respondent Nos.4 to 7 and learned Government Pleader for Home appearing on behalf of respondent Nos.1 to 3.
3. FACTS:
(i) The petitioner herein has lodged a complaint on 13.05.2016 with respondent No.3 complaining the suspicious death of his brother - Mahenderkar Pandarinath, who received severe burn injuries and fall on the road side;
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(ii) on receipt of the said complaint, respondent No.3 has registered a case in Crime No.63 of 2015 under Section - 174 of Cr.P.C.;
(iii) during the course of investigation, on 25.03.2017, respondent No.3 has obtained dying declaration of the deceased recorded by XIV Additional Chief Metropolitan Magistrate (for trial of Communal Disturbances), Nampally, Hyderabad;
(iv) thereafter, considering the said dying declaration, respondent No.3 has altered the section of law from Section - 174 of Cr.P.C. to Section - 302 read with 34 of IPC and also filed an alteration memo to that effect;
(v) despite altering the section of law from Section - 174 Cr.P.C. to Section 302 read with 34 of IPC basing on the dying declaration, respondent No.3 has not conducted fair investigation and he has not apprehended respondent Nos.4 to 7 herein and others who involved in the said offence;
(vi) in the dying declaration, names of respondent Nos.4 to 7 were specifically mentioned by the deceased and the role played by them in commission of offence;
(vii) respondent No.3 has blatantly ignored the said dying declaration;
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(viii) the petitioner herein has submitted representations to respondent No.2, dated 30.05.2016 and 20.06.2016 with a request to instruct respondent No.3 to conduct and complete investigation in a fair and transparent manner;
(ix) respondent No.2 has instructed respondent No.3 to complete investigation and submit report by 15.06.2020;
(x) even then, respondent No.3 has not conducted and completed the investigation in fair and transparent manner, and on the other hand, he is trying to help respondent Nos.4 to 7 by conveniently ignoring the dying declaration recorded by the Magistrate which is a crucial piece of evidence; and
(xi) therefore, the present writ petition.
4. Order, dated 21.08.2020:
In this writ petition, this Court vide order dated 21.08.2020, observing that tardiness adopted by the respondent authorities in conducting investigation, taking necessary action in the crime, directed respondent No.2 to look into the matter, place before the Court instructions / counter to indicate as to why respondent No.3 authority has not taken any action kept pending the investigation for such a long time and also as to why respondent No.3 authority should not be divested of the power to investigate into the above crime registered and to transfer to another investigating authority or agency.
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5. CONTENTS OF COUNTER AND ADDL.COUNTER OF RESPONDENT No.2:
Respondent No.2 has filed counter on 26.09.2020 stating that they have already sought expert's opinion and waiting for the same. It is further stated that there is variation from the statements of the complainant, eye-witnesses and other circumstantial witnesses. There is doubt in the mind of Investigating Agency that dying declaration was not voluntary and was not made by free will of the deceased and it was made at the best of others. As such, the police are waiting for FSL report. In the counter, Section - 32 (1) of the Indian Evidence Act and certain judgments have also referred to.
6. RELIEF SOUGHT IN I.A. No.2 OF 2020:
In view of the same, the petitioner herein has filed I.A. No.2 of 2020 seeking a direction to entrust the investigation to CBCID or neighbouring District Sub-Divisional Police Officer to conduct impartial and fair investigation in Crime No.63 of 2016 on the ground that the Investigating Officer is trying to discard the dying declaration which is a crucial piece of evidence, and according to the petitioner, the Investigating officer is not having such power. Reliance was also placed on the principle laid down by the Hon'ble Supreme Court in Neetu Kumar Nagaich v. The State of Rajasthan1.
7. CONTENTS OF COUNTER OF RESPONDENT Nos.4 to 7: A counter was filed by respondent Nos.4 to 7 opposing the said I.A. No.2 of 2020 and the writ petition. It is stated that the 1 . 2020 (11) SCALE 185 KL,J W.P. No.12913 of 2020 6 Investigating Officer has already recorded the statements of witnesses, obtained expert's opinion and considering the same, completed the investigation and filed final report treating it as 'suicidal death by burns'. If the petitioner is having any grievance, he has to file protest petition and take recourse under the provisions of the Code of Criminal Procedure. Instead of doing so, he has filed the said I.A. seeking a direction to entrust the investigation either to CBCID or neighbouring District Sub-Divisional Police Officer which is impermissible.
8. CONTENTIONS OF THE PETITONER:
i) Mr. Palle Sriharinath, learned counsel for the petitioner, would submit that respondent No.3 has registered a case in Crime No.63 of 2016 on the complaint lodged by him under Section - 174 of Cr.P.C. After obtaining dying declaration, respondent No.3 has altered section of law from Section 174 of Cr.P.C. to Section - 302 read with 34 of IPC. Despite the dying declaration, a crucial piece of evidence, wherein the deceased has specifically referred to the names of respondent Nos.4 to 7 and the role played by them in the commission of offence, respondent No.3 did not conduct fair and transparent investigation, on the other hand, he tried to discard the dying declaration, a crucial piece of evidence and did not record the statements of the important / material witnesses, filed the final report stating that it is a 'suicidal death by burns'.
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ii) Learned counsel has referred to the contentions of respondent No.2 in the counter and the additional counter affidavit wherein it is categorically mentioned that there is variation from the statements of the complainant, eye-witnesses and other circumstantial witnesses and, therefore, there is doubt in the mind of Investigating Agency that the dying declaration was not voluntary and made by free will of the deceased and it was at the behest of others. They are also waiting for FSL report. They have referred to Section 32 (1) of the Indian Evidence Act and the principle laid down by the Hon'ble Supreme Court in various judgments.
iii) In the additional counter affidavit, it is also mentioned that the Investigating Officer has sought some clarification from the Medical Officer as extracted in the tabular form therein. The Investigating Officer played the Video and Audio Compact Disks (CDs). The deceased was said to be a 'psychopath'. As per the statements of eye-witnesses (LWs.2 to 4), it is clear that the deceased himself poured kerosene and set ablaze raising slogans against the village Sarpanch. After extracting the gist of the statements of witnesses, the Investigating Officer came to the conclusion that the circumstances are in contradiction to the dying declaration. Therefore, according to respondent No.2, dying declaration of the deceased cannot be believed as it appears that it was given by the deceased at the behest of the complainant, who intend to implicate the alleged accused persons in criminal case to take vengeance as they are KL,J W.P. No.12913 of 2020 8 his rivals in village politics. Therefore, after obtaining permission from the competent authority, the Investigating Officer has referred the case as 'suicidal death by burns'. Therefore, according to the learned counsel for the petitioner, the Investigating Officer is not having power to discard the dying declaration and come to the conclusion that it is not reliable. The Investigating Officer is also not having power to suspect the dying declaration, which is a crucial piece of evidence and the Hon'ble Supreme Court in catena of decisions categorically held that the genuinety or otherwise of dying declaration can be tested by the trial Court during trial. It is further held that conviction can be recorded on the sole testimony of dying declaration. Ignoring the same, the Investigating Officer without having power discarded the said dying declaration and filed the final report treating it as 'suicidal death by burns'. Therefore, according to the learned counsel for the petitioner, the said action of respondent Nos.2 and 3 is arbitrary, illegal and in violation of the provisions of Cr.P.C. and the principle laid down by the Apex Court.
9. CONTENTIONS OF OFFICIAL RESPONDENTS:
On the other hand, learned Government Pleader for Home, referring to the counter and additional counter affidavit filed by respondent No.2 pursuant to the directions of this Court dated 21.08.2020, would submit that the Investigating Officer has recorded the statements of seventeen (17) witnesses. He has also collected certified copy of dying declaration. Thereafter, the Investigating KL,J W.P. No.12913 of 2020 9 Officer has altered the section of law from Section - 174 of Cr.P.C. to Section - 302 read with 34 of IPC. He has also obtained FSL report and also clarification from the Medical Officer. On the analysis of the statements of the witnesses and the FSL report, the Investigating Officer got suspicion on the dying declaration. There is variation from the statements of the complainant, eye-witnesses and other circumstantial witnesses. There is doubt in the mind of the Investigating Officer that the dying declaration was not voluntary and made by free will of the deceased and it was made at the behest of others. Therefore, the Investigating Officer has referred the case as 'suicidal death by burns'. Therefore, according to learned Government Pleader, the Investigating Officer has conducted the investigation in a fair and transparent manner and there is no error in it.
10. CONTENTIONS OF RESPONDENT Nos.4 to 7
Mr. V. Ravi Kiran Rao, learned senior counsel representing Mr. Sridhar Lonkala, learned counsel for respondentNos.4 to 7, would submit that the Investigation Officer, on consideration of the statements of witnesses, FSL Report and the dying declaration, filed final report treating it as 'suicidal death by burns'. It is a final report under Section 173 of Cr.P.C. The Investigating Officer has already served notice on the petitioner and, therefore, if the petitioner is having any grievance, he has to take recourse under the Code of Criminal Procedure by filing a protest petition or appropriate KL,J W.P. No.12913 of 2020 10 application before the Magistrate seeking a direction to the Investigating Officer to conduct proper investigation. Whereas, in the present case, the petitioner without adopting such recourse filed the present writ petition and, therefore, the same is not maintainable and it has to be dismissed.
11. In view of the above rival submissions, the points that arise for consideration by this Court are:
(i) Whether the Investigating Officer is having power to discard the dying declaration during the course of investigation on the ground that it is not reliable? and
(ii) Whether there are any grounds to order for further investigation by CBCID in Crime No.63 of 2016?
12. POINT No.1:
LEGAL POSITION:
i) Section - 32 of the Indian Evidence Act deals with 'cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant, and sub-section (1) deals with such statements relating to cause of death, and as per which, when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, KL,J W.P. No.12913 of 2020 11 and whatever may be the nature of the proceeding in which the cause of his death comes into question.
ii) The statement made by the deceased person will be treated as an evidence and admissible in a Court of law. The reason behind the same can be followed by a latin maxim Nemo Mariturus Presumuntur Mentri which means that 'man will not meet his maker with lying on his mouth'. "Statement written or verbal of relevant facts made by a person, who is dead". "It is a statement of a person died explaining the circumstances of his death". "It is the fact that dying man can never lie or truth sits on the lips of dying man". Thus," a man about to die, does not lie". Therefore, the dying declaration is admissible and considered as evidence in Court and it is a crucial piece of evidence.
iii) The procedure to record dying declaration etc., are specifically mentioned in Section - 32 of the Indian Evidence Act. The burden to prove dying declaration lies on the prosecution. Prosecution is put to strict proof of dying declaration. If the Court is satisfied that the dying declaration is true and voluntary, it can basis conviction on it without corroboration. Court can reject suspicious dying declaration in criminal cases. In one of the judgments, the Hon'ble Supreme Court categorically held that it is not proper for trial Courts to look for loopholes in dying declarations. An incomplete dying declaration is also admissible. A dying person does not lie. Although there is neither a rule of law, nor of prudence that the dying KL,J W.P. No.12913 of 2020 12 declaration cannot be acted upon without corroboration, the Court must satisfy itself that the said dying declaration is true and voluntary and only then could it be the sole basis for conviction without corroboration.
iv) In Umakant v. State of Chhattisgarh2, the Apex Court held that though a dying declaration is not recorded in the Court in the presence of accused nor it is put to strict proof of cross-examination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the Court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.
v) In Bhagwan Tukaram Dange v. State of Maharashtra3, the Apex Court held that dying declaration is a statement made by a dying person as to the injuries culminated in his death or the circumstances under which the injuries were inflicted. 2 . 2014 Crl.L.J. 4078 (SC) 3 . 2014 Crl.L.J. 1875 (SC) KL,J W.P. No.12913 of 2020 13
vi) In Harbans Singh v. State of Punjab4, the Apex Court held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon.
vii) In State of Uttar Pradesh v. Suresh alias Chhavan5, the Apex Court held that minor incoherence in the statement with regard to the facts and circumstances would not be sufficient ground for not relying upon statement which was otherwise found to be genuine. Hence, as a rule of prudence, there is no requirement as to corroboration of dying declaration before it is acted upon.
viii) In M. Sarvana alias K.D. Saravana v. State of Karnataka6, the Apex Court held that the dying declaration is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is 4 . AIR 1962 SC 439 5 . (1981) 3 SCC 635 6 . 2012 Crl.L.J. 3877 (SC) KL,J W.P. No.12913 of 2020 14 no reason for the courts to doubt the truthfulness of such dying declaration.
ix) In Bhajju alias Karan Singh v. State of M.P.7, the Apex Court held that declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction.
x) In State of M.P. v. Vishweshwar Kol8, the Apex Court held that a dying declaration cannot be analyzed as if it were a statute and it was only if the Court was to find that the injured was not in a fit condition to make a statement or the possibility that it was tutored or motivated or the story given was completely unacceptable could be some of the reasons for discarding it.
xi) In Vijay Pal v. State (GNCT) of Delhi9, the Apex Court held that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same.
xii) In Waikhom Yaima Singh v. State of Manipur10, the Apex Court held that there can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and 7 . 2012 Crl.L.J. 3877 (SC) 8 . 2011 Crl.L.J. 2172 (SC) 9 . 2015 Crl.L.J. 2041 (SC) 10 . 2011 Crl.L.J. 2673 (SC) KL,J W.P. No.12913 of 2020 15 further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it.
xiii) In Balbir v. Vazir11, the Apex Court held that an oral dying declaration can form basis of conviction if the deponent is in a fit condition to make the declaration and if it is found to be truthful. The courts as a matter of prudence look for corroboration to oral dying declaration.
xiv) In K. Ramachandra Reddy v. Public Prosecutor12, the Apex Court held that the evidentiary value of dying declaration made by the deceased:
"There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act, and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie. After that, the 11 . 2014 Crl.L.J. 3697 (SC) 12 . (1976) 3 SCC 618 KL,J W.P. No.12913 of 2020 16 court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration."
xv) In Khushal Rao v. State of Bombay13, the Apex Court laid down the following principles relating to dying declaration:
"(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;
(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer 13 . 1958 AIR 22 KL,J W.P. No.12913 of 2020 17 from all the infirmities of human memory & human character."
xvi) There are many circumstances in which the statement made by the dying person is not admissible in a court of law. The said conditions are:
(i) If there is no question for consideration about the cause of death of the deceased. For example, if a person in his declaration state anything which is not remote or having a connection with the cause of death than the statement is not relevant and hence not be admissible;
(ii) the declarant must be competent to give a dying declaration, if the declaration is made by the child then the statement will not be admissible in court as it was observed by the High Court of Madhya Pradesh in Amar Singh v. State of M.P.14 that without the proof of mental fitness and physical fitness the statement would not be considered reliable;
(iii) the statement which is inconsistent has no value and can not be considered as evidentiary in nature;14
. M.Cr.C. No.30972/2019, decided on 29.07.2019 KL,J W.P. No.12913 of 2020 18
(iv) the statement made by the deceased should be free from any influential pressure and should be made spontaneous;
(v) It is perfectly allowed to the court if they reject any untrue statement which contradicting in nature;
(vi) if the statement is incomplete in the sense which means it can not answer the relevant questions which are necessary to found guilty, and on the counterpart, statement deliver nothing so it will not be deemed to consider;
(vii) doctor's opinion and the medical certificate should with the statement and support that the deceased is capable of understanding what statement he makes; and
(viii) If the statement is not according to the prosecution. In this regard, the following points should be taken into consideration by the apex court;
xvii) Further, while making the statement deceased must be in fit mind of the state. Should be recorded by the magistrate or by a police officer and person in a case when deceased was so precarious. A dying declaration should be recorded in question-answer form and written in words of the persons exactly who gives the statement. Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration free from any biased relied upon. As it was KL,J W.P. No.12913 of 2020 19 held in the case of Krishna Lal v. Jagun Nath15 that the wife was burnt by the husbands-in-law and in her dying declaration she held that she was not burnt by her husband's-in-law and she was believed.
xviii) In Chirra Shivraj v. State of A.P16, the Apex Court held that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
xix) In Govindaraju @ Govinda v. State of Sriramapuram P.S.17, the Apex Court held as under:
"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu 15 . (1990) 3 SCC 45, 16 . (2010) 14 SCC 444 17 . (2012) 4 SCC 722 KL,J W.P. No.12913 of 2020 20 Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:-
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence."
xx) The above mentioned authoritative principle of law laid down by the Apex Court, dying declaration is admissible in evidence. It is a crucial piece of evidence. It is an exception to hear-say evidence. Oral dying declaration is also admissible in evidence. If the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness there is no justification to discard the same. Thus, the genuineness, reliability, credibility or otherwise has to be decided by the trial Court. As stated above, burden of proof and relevancy of the dying declaration always lies on the prosecution. It is put to strict proof. It is for the trial Court to discard or disbelieve the dying declaration on the analysis of the entire evidence available on record including oral and documentary. The trial Court will analyze the reliability of dying declaration and its admissibility basing on the depositions of witnesses. Therefore, according to this Court, Investigating Officer is not having power to KL,J W.P. No.12913 of 2020 21 come to a conclusion that dying declaration is not reliable or genuine. The Investigating Officer is not having power to suspect the dying declaration and he cannot analyze the statements of witnesses and come to a conclusion that it was recorded in suspicious manner and on tutoring by others.
13. FINDING OF THE COURT:
i) In view of the above said discussion and the law laid down by the Apex Court, coming to the case on hand, as already stated above, during the course of investigation, respondent No.3 has collected the dying declaration on 25.03.2017 and altered section of law from Section - 174 of Cr.P.C. to Section 302 read with 34 of IPC. Thereafter, he has recorded statements of 17 witnesses including the petitioner herein as LW.1, LWs.2 to 4, eye-witnesses, LWs.5 and 6, father and younger sister of deceased, LW.7, a circumstantial witness.
ii) In the final report, it is specifically mentioned that LW.1, the petitioner herein narrated the contents of FIR in toto. He has specifically stated in his statement recorded under Section - 161 of Cr.P.C. that he has suspicion on the death of his brother and he has corroborated the contents of complaint.
iii) LW.2, an eye-witness and a tea-stall owner, stated that he found one person coming on to the road from back side of his hotel carrying a plastic can and went on to the road and started shouting and also shouted as "Sarpanch Jangam Sreenu down, down", and saying so, he poured kerosene on his body and lit fire himself.
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iv) LWs.3 and 4, eye-witnesses and also running tea stalls nearby the tea stall of LW.1. They corroborated the version of LW.2 in their statements.
v) LWs.5 and 6, father and younger sister of the deceased, corroborated the version of LW.1 and specifically stated that they have suspicion about the death of the deceased.
vi) LW.10 deposed that he along with deceased tried for contract job in Electrical Sub-Station in outskirts of Jambikunta village as operator through village Sarpanch, Sri Jangam Srinivas. In the said process, he got the contract operator job in the said sub- station and since then, the deceased bore grudge against him and also threatened him with dire consequences.
vii) LW.11 deposed that on 11.05.2016 he along with deceased and Laxman went to attend the marriage of Santosh and on the way they met with Vamshi and Prabhanjan and all of them consumed whisky and then left to attend the Baraath (marriage procession) of Santosh, and in the said procession, the deceased and respondent No.6 left the place. Later the deceased came on CSI Church road and started abusing others and abused the Sarpanch Jangam Srinivas and respondent no.5 questioned him as to why he was abusing the Sarpanch and as the nuisance was going on, the petitioner was informed, who came there and took the deceased from the procession place.
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viii) LW.12 stated that the deceased removed his shirt and roaming on the road here and there and abusing others saying that none attended the death of his mother and none calling him to attend the functions. Upon which, Mr. Naveen went to the deceased and convinced him, but the deceased slapped him. As he did not clam, the same was informed to the petitioner, who came and took the deceased on his scooter.
ix) In the final report, it is also specifically mentioned that his investigation concluded that as per the statements of eye witnesses, the deceased himself poured kerosene and set ablaze and there is no any iota of reliable evidence to say that the alleged accused persons claimed the life of deceased. The dying declaration of the deceased cannot be believed as 'it appears' that it was given by the deceased at the behest of the complainant who intend to implicate the alleged accused persons in the criminal case to take vengeance as they are his rivals in village politics. The eye witness Boggula Ramesh, LW.2 stated that when he came to open his hotel as usual, he found one person coming on to the road carrying a plastic can from back side of hotel and poured kerosene and set ablaze himself, but none present at the time. The other two eye witnesses, LWs.3 and 4 also deposed the same version. Therefore, permission of competent authority has been obtained vide proceedings dated 18.10.2020 and referred the case as 'suicidal death by burns'.
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x) As stated above, pursuant to the order dated 21.08.2020, respondent No.2, IPS Officer, Superintendent of Police, Medak District, filed counter on 26.09.2020 stating about the complaint given by the petitioner and registration of rime by respondent No.3 etc. It is also specifically mentioned about recording of statements by the Investigating Officer. In paragraph No.5 of the counter, respondent No.2 has stated that newspapers also reported that it is a suicidal death. The complainant came to the police on 26.06.2016 and handed over two Compact Disks (CDs) i.e., audio stating that while going to Hospital, he recorded the statement of his brother in Ambulance and other C.D. was recorded while he was undergoing treatment in the hospital. Then, the Sub-Inspector of Police re-examined the complainant and recorded his detailed statement and also conducted seizure panchanama of two CDs handed over by the complainant in the presence of mediators.
xi) It is also specifically mentioned about obtaining of dying declaration and alteration memo. The dying declaration was also extracted in paragraph No.7 of the counter, which is as follows:
"One Bharat who is right hand to Sarpanch beat me and abused saying die. On the same night, when I was going to Tea, Aswin, Sajan, Sreenu (Sarpanch) and others waylaid me, abused me and poured kerosene oil on me and set ablaze me, while I made hue and cry, neighbours shifted me to the Hospital."
KL,J W.P. No.12913 of 2020 25
xii) It is also specifically mentioned about the translation of CDs with the help of Sri Sagar Patel, LW.18. It is also mentioned that during the course of investigation, the Investigating Officer sent a Questionnaire to the Medical Officer, who conducted post-mortem examination of the deceased at Gandhi Hospital, Secunderabad, requesting to clarify on certain points. Such points are also specifically mentioned. Referring to the same, in paragraph No.10 of the counter, respondent No.2 has stated that the police are waiting for expert's opinion. There is variation from the statements of complainant, eye witnesses and other circumstantial witnesses. There is doubt in the mind of Investigating Agency that dying declaration was not voluntarily made by free will and it was at the behest of others. As such, the Police are waiting for FSL report. She has referred to Section - 32 (1) of the Indian Evidence Act and also the principle laid down by the Apex Court. The expert's opinion says that 95% burns with no other simple or grievous injuries, the possibility of suicidal death is only probability, homicidal death can be ruled out to the best of her knowledge and belief.
xiii) In the additional counter affidavit, respondent No.2 has mentioned the clarifications sought by the Investigating Officer vide his letter dated 15.02.2017 and the clarifications given by the Medical Officer vide his letter dated 17.02.2017, the same are relevant for the purpose of present case which are extracted herein below:
KL,J W.P. No.12913 of 2020 26 Clarification sought by Clarification given by Medical Sl.No.
SI/Investigating Officer Officer In this particular case of 95% burns with no other injuries as already The injuries mentioned in issued in the Post-Mortem Report, PME report over the dead the Burns are due to flammable 1 body may be caused liquid / kerosene as they are mixed poured kerosene himself or flame burn injuries. As there are no poured by others? defence injuries over the body, the point of kerosene poured by others in this case can be ruled out.
Any other injuries found No other injuries were noted over 2 on the dead body? the body.
In this particular case of 95% burns As per the burn injuries, it with no other grievous injuries, the 3 may be Suicidal Death or possibility of suicidal death is only Homicidal Death? the probability. Homicidal death can be ruled out.
xiv) In paragraph No.4 of the additional counter, it is specifically mentioned that Circle Inspector of Police, who has taken charge of Alladurg Circle, has re-examined and recorded the statements of Boggula Ramesh, Namshagari Narsimulu, Md. Sajid, and Neerudi Bagaia (LWs-2 to 4 & 8). The said witnesses deposed the same version what they deposed before the former SHO. Surprisingly, in paragraph No.5, respondent No.2 has mentioned as under:
"In the early hours of 12-05-2016, the deceased came out from the house, reached near the house of Sarpanch Jangam Srinivas and thereafter went onto the road carrying flammable liquid / kerosene in the plastic can, raising slogans against village Sarpanch Jangam Srinivas and set himself ablaze as the deceased was said to be a psychopath...."
xv) Respondent No.2 has also mentioned the gist of the statements of witnesses. It is mentioned that there is strong animosity between the deceased, his brother (LW.1) parents and Sarpanch KL,J W.P. No.12913 of 2020 27 Jangam Srinivas (respondent No.7) of the village as the Sarpanch assured them to provide a job to the deceased in Jambikunta Electrical Sub-Station, but it could not be materialized, as stated by Arun Kumar (LW.12) who got contract job. On that night, prior to the incident, a clash took place between the deceased and Ashwin and Sajan and others (respondent Nos.4 to 7for indecent behaviour and dancing in drunken condition by the deceased in the marriage process of their common friend viz., Santhosh.
xvi) The circumstances which contradict the dying declaration were also specifically mentioned in paragraph No.5 of the additional counter affidavit.
xvii) In paragraph No.6 of the additional counter affidavit, respondent No.2 has specifically mentioned about the local politics, groups and rivalry and that local MLA is supporting respondent Nos.4 to 7 herein. By referring to the same, respondent No.2 in paragraph No.7 further mentioned that the dying declaration of the deceased cannot be believed as "it appears" that the dying declaration was given by the deceased at the behest of the complainant who intend to implicate the alleged accused persons in the criminal case to take vengeance as they are his rivals in village politics.
xviii) It is also relevant to note that the principle relied upon by respondent No.2 in the counter affidavit as well as additional counter affidavit is the principle laid down by the Apex Court while KL,J W.P. No.12913 of 2020 28 examining convictions recorded against the accused by the trial Courts relying on dying declaration. Whereas, in the present case, the matter is at crime stage and Investigating Officer has to conduct fair and transparent investigation in accordance with the procedure laid down under the Criminal Procedure Code. Therefore, the Investigating Officer and respondent No.2 cannot rely upon the said principle of the Hon'ble Supreme Court while examining the correctness of the judgments convicting accused therein relying on the dying declaration. It is also relevant to note that in the said judgments, it is specifically mentioned that the Court (trial Court), in no uncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. The dying declaration, if found reliable, could form the basis of conviction. Suspicious circumstances and reliability of dying declaration has to be considered by the trial Court not by the Investigating Officer. Evidentiary value of dying declaration was also recorded by the Apex Court in Khushal Rao13. Therefore, the judgments referred to by respondent No.2 in the counter and additional counter and also learned Government Pleader for Home during the course of arguments and the principle therein are not applicable to the facts of the case on hand.
xix) It is also relevant to note that in the final report dated 18.10.2020 and in the counter filed by respondent No.2 on 26.09.2020, there is mention that the deceased was "PSYCHOPATH".
KL,J W.P. No.12913 of 2020 29 A perusal of the statements of witnesses recorded by the Investigating Officer, none of the witnesses spoke that the deceased was 'psychopath'. But, respondent No.2 in the additional counter affidavit filed on 19.02.2021 mentioned that that the deceased was 'psychopath'. There is no basis for the said statement. It is not mentioned by respondent No.2 that on what basis she came to a conclusion that the deceased was 'psychopath'. There is no mention in the final report and counter filed by respondent No.2 that the deceased was 'psychopath'. All of a sudden, respondent No.2 in her additional counter affidavit stated that the deceased was 'psychopath', which is not expected from respondent No.2, IPS Officer, Superintendent of Police of a District. Thus, respondent No.3 - Investigating Officer has not conducted investigation in fair and transparent manner in Crime No.63 of 2016 pending on the file of Shankarampet (A) Police Station. This Court vide order dated 21.08.2020, directed respondent No.2 to look into the matter and place written instructions etc., respondent No.2 without looking into the entire evidence and the manner in which respondent No.3 has conducted investigation, filed counter affidavit and additional counter affidavit which are contrary to each other. There is no basis for the said statements of respondent No.2 in both the counter affidavit and additional counter affidavit. At the cost of repetition, as stated above, there is no basis for the contention of respondent No.2 that the deceased was psychopath. There is no basis for the contention of respondent No.2 with regard to reliability of dying declaration.
KL,J W.P. No.12913 of 2020 30 Respondent No.2 did not mention specifically as to on what ground and on what basis respondent No.3 came to the conclusion that there was suspicion with regard to the dying declaration which is in fact the duty of trial Court. Therefore, according to this Court, the Investigating Officer has not conducted investigation in Crime No.63 of 2016 in a fair and transparent manner. Despite a specific direction by this Court on 21.08.2020, respondent No.2 being a responsible officer, an IAS Cadre, did not look into the matter and did not supervise the investigation properly. Though respondent No.2 has stated that there are disputes between two groups in the same village, respondent No.2 did not supervise and instruct the Investigating Officer to conduct investigation in fair and transparent manner. Therefore, according to this Court, respondent Nos.2 and 3 failed to conduct investigation in a fair and transparent manner in Crime No.63 of 2016.
xx) At the cost of repetition, as stated above, the Investigating Officer is not having power to suspect the dying declaration and give a finding with regard to its reliability and admissibility. The Investigating Officer is also not having power to discard the dying declaration, which is a crucial piece of evidence. Accordingly, point No.1 is answered.
14. POINT No.2:
i) As stated above, the petitioner herein filed I.A. No.2 of 2020 seeking a direction to entrust investigation either CBCID or KL,J W.P. No.12913 of 2020 31 neighbouring District, Sub-Divisional Police Officer to conduct impartial and fair investigation in Crime No.63 of 2016. As discussed supra, the Investigating Officer has not conducted investigation in fair and transparent manner in the said crime, and respondent No.2 did not supervise the same. In view of the same, the contentions of the learned Government Pleader for Home and Mr. V. Ravi Kiran Rao, learned senior counsel appearing on behalf of respondent Nos.4 to 7, that the petitioner has to file either protest petition or an application before the Magistrate seeking the said relief.
ii) As discussed above, there are serious deficiencies in conducting the investigation. The Investigating Officer has not examined the relevant witnesses and he has not considered the real cause of the death of deceased. The manner in which he sought clarification from the Medical Officer would reveal the said fact. The Investigating Officer sought clarification from the Medical Officer with regard to the injuries mentioned in PME Report over dead body may be caused poured kerosene himself or poured by others. According to this Court, the said clarification sought by the Investigating Officer from the Medical Officer, who conducted post- mortem examination report, can give nature of injuries and cause of death. But, according to this Court, he cannot give any information as to 'who poured kerosene'. The Investigating Officer has also sought clarification from the Medical Officer that as per the burn injuries, it may be suicidal death or homicidal death, and as discussed supra, the KL,J W.P. No.12913 of 2020 32 said issue cannot be decided by the Medical Officer. His duty is only to conduct post-mortem examination for the purpose of giving opinion with regard to the cause of death of deceased. Thus, there are lapses in conducting investigation.
iii) In Dr. Naresh Kumar Mangla v. Smt. Aniota Agarwal18, the Apex Court referring to the principle laid down in Arnab Goswami v. Union of India [2020 AIR SC 2386) and in Vinay Tyagi v. Irshad Ali [ (2013) 5 SCC 765] had an occasion to deal with entrustment of investigation to other Agency including CBI. The Apex Court held as under:
"At this stage, we may also state another well- settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo', and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection."
18
. Criminal Appeal Nos.872-873 of 2020, decided on 17.12.2020 KL,J W.P. No.12913 of 2020 33 The Apex Court further held as under:
"The court held that wherever a charge-sheet has been submitted to the court, even this Court would not ordinarily reopen the investigation especially by entrusting it to (2013) 5 SCC 762 PART D a specialized agency. However, in a proper case, when the Court feels that the investigation by the police has not been in the proper perspective and that in order to do complete justice, where the facts of the case demand that the investigation be handed over to a specialized agency, a superior court is not bereft of the authority to do so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC (Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006]) In Pooja Pal vs Union of India16, a two judge Bench of this Court, speaking through Justice Amitava Roy, observed that there was no embargo on this Court to transfer an investigation to the CBI after submission of the charge-sheet in the following terms-
"79. The precedential ordainment against absolute prohibition for assignment of investigation to any impartial agency like CBI, submission of the charge-sheet by the normal investigating agency in law notwithstanding, albeit in an exceptional fact situation warranting such initiative, in order to secure a fair, honest and complete investigation and to consolidate the confidence of the victim(s) and the public in general in the justice administering mechanism, is thus unquestionably absolute and hallowed by time. Such a measure, however, can by no means be a KL,J W.P. No.12913 of 2020 34 matter of course or routine but has to be essentially adopted in order to live up to and effectuate the salutary objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike....."
81. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like CBI, whether or not the probe into a criminal offence by the local/State Police is pending or (2016) 3 SCC 135 PART D completed, irrespective of as well, the pendency of the resultant trial have concretised over the years, applicability whereof, however, is contingent on the factual setting involved and the desideratum for vigilant, sensitised and even-handed justice to the parties.
83....... Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge- sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties." Similarly, in Dharam Pal vs State of Haryana17, a two judge Bench of this Court, speaking through Justice Dipak Mishra (as the learned Chief Justice then was), upheld the KL,J W.P. No.12913 of 2020 35 power of this Court to transfer an investigation to the CBI, irrespective of the stage of the trial. It held:
"24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided.
Therefore, in this case the stage of the case cannot be the governing factor."
The Apex Court also further held as under:
"25. ....If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the (2016) 4 SCC 160 PART D matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic...." 23 Having regard to the circumstances which have emerged on the record, KL,J W.P. No.12913 of 2020 36 which have been adverted to in the earlier part of the judgment, we are of the view that it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution. The conduct of the investigating authorities from the stage of arriving at the scene of occurrence to the filing of the charge-sheet do not inspire confidence in the robustness of the process. A perusal of the charge-sheet evinces a perfunctory rendition of the investigating authorities‟ duty by a bare reference to the facts and the presumption under Section 304B of the IPC when the death occurs within seven years of the marriage. The stance taken by the Deputy Superintendent of Police in the Counter Affidavit, filed a few days after forwarding the charge-sheet, travels beyond the scope of the investigation recorded in the charge-sheet with respect to the veracity of the suicide note, medical examination of injuries and the past miscarriages of the deceased. Critical facts of the money trail between the deceased, her father (the informant), and the accused; and the call history of A2, the informant and the deceased are unexplored. No attempt at custodial interrogation of the applicants was made between the issuance of non-bailable warrants on 9 September 2020 and interim protection from arrest by the High Court granted on 22 September 2020. As noted above, upon questioning during the hearing, the Counsel for the State answered that PART E no investigation on the allegation of murder had been conducted. It would indeed be a travesty if this Court were to ignore the glaring deficiencies in the investigation conducted so far, irrespective of the stage of the KL,J W.P. No.12913 of 2020 37 proceedings or the nature of the question before this Court. The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court's faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst."
With the above said findings, the Apex Court in exercise of its powers under Article - 142 of the Constitution of India, to do complete justice, entrusted the investigation to CBI.
iv) In Babubhai v. State of Gujarat19, the Apex Court referring to its earlier judgments in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223]; Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413]; Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332]; and Kishan Lal v. Dharmendra Bafna [(2009) 7 SCC 685] held as under:
30. where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent 19 . (2011) 1 SCC (Cri.) 33 KL,J W.P. No.12913 of 2020 38 agency, rather than directing a re-investigation.
"Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."
31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar Tiwari & Ors. AIR 1970 SC
786).
32. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair.
33. The above referred to judgments of this Court make it clear that scheme of investigation, particularly, Section 173(8) Cr.P.C. provides for further investigation and not of re- investigation. Therefore, if the Court, comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for re-investigation. The expression ordinarily means normally and it is used where there can be KL,J W.P. No.12913 of 2020 39 an exception. It means in the large majority of cases but not invariably. "Ordinarily" excludes "extra-ordinary" or "special circumstances". (vide: Kailash Chandra v. Union of India (AIR 1961 SC 1346); Eicher Tractors Ltd., Haryana v.
Commissioner of Customs, Bombay (AIR 2001 SC 196); and State of A.P. v. Sarma Rao (AIR 2007 SC 137).
Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances.
The Apex Court further held that the scheme of investigation, particularly, Section 173 (8) of Cr.P.C. provides for further investigation and not of re-investigation, and on consideration of facts of the said case, it was held that it is evident that in exceptional circumstances, the Court in order to prevent miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances.
v) In Dharam Pal v. State of Haryana20 it was noticed that power of the constitutional Court to order fresh or de novo investigation could also be exercised after commencement of the trial and the examination of some witnesses could not be an impediment and observed as follows:
20
. (2016) 4 SCC 160 KL,J W.P. No.12913 of 2020 40 "25. ....The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. ...... It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. ...."
vi) Referring to the above said principle, a Three-Judge Bench of the Apex Court in Neetu Kumar Nagaich1 held that where the constitutional Court is satisfied that the investigation has not been conducted in a proper and objective manner, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law.
vii) In Vinubhai Haribhai Malaviya v. State of Gujarat21, the Apex Court held that "5. Separate criminal revision applications were filed before the Sessions Court, Surat, being 21 . (2019) 17 SCC 1 KL,J W.P. No.12913 of 2020 41 Revision Application Nos. 376 and 346 of 2011, insofar as the dismissal by the learned Magistrate of further investigation and the order rejecting registration of the FIR were concerned. Both these revision applications were decided by the learned Second Additional Sessions Judge, Surat by a common order dated 10.01.2012. By this order, the learned Second Additional Sessions Judge went into details of facts that were alleged in the application under Section 173(8) and found that a case had been made out for further investigation. Accordingly, he held:
"As per the above referred discussion, it can be seen that no effective investigation or discussions have been carried out in all these respect during in the course of the investigation of said offence and further, it is very noteworthy here that matters for which the prayers are made in these Revision Applications, all these matters are pertaining to the complaint of this case. Hence, it is very much necessary that for the purpose of carrying out a detailed and full investigation of this complaint, all these matters should also be investigated. But for the said purpose, it is not necessary that a separate complaint be registered and thereafter its investigation be carried out. But by covering this investigation also in the complaint of the present matter, if it is found out in such investigation that any offence was committed, then appropriate criminal proceedings can be initiated against such person."
KL,J W.P. No.12913 of 2020 42
viii) In Mekala Madhusudhan Reddy v. Director General of Police22, a learned Single Judge of High Court of Andhra Pradesh held as under:
"In view of the law, to avoid unreasonable delay by ordering further investigation without any reasonable cause is violative of Article 21 of the Constitution of India. In the present case, further investigation to be conducted is only to decide the complicity of the persons who are not arrayed as accused before this Court i.e. the three persons who are shown as Accused Nos. 7 to 10 in the counter filed by Deputy Superintendent of Police, C.I.D, Kurnool, based on certain allegations made by the defacto complainant. Investigating Agency did not file any report against the other three persons proposed to be arrayed as accused as there was no material. Moreover, the defacto complainant maintained silence for all these four years and suddenly lodged representation now. It is not known to whom the representation was submitted. However, that is the basis for the present situation. As discussed above, further investigation is only in connection with the report filed under Section 173 (2) to (6) Cr.P.C. and Section 173 (8) Cr.P.C. which permits filing of further report/reports and it must pertain to report but not for adding additional accused. The only course open to the Investigating Agency to add additional accused and try them before the Sessions Court is to follow the procedure contemplated under Section 319 Cr.P.C. But, circumventing the procedure provided under Code of Criminal Procedure, the Director General 22 . 2020 SCC OnLine AP 964 KL,J W.P. No.12913 of 2020 43 of Police entrusted further investigation to Additional Director General of Police, C.I.D, A.P to investigate into the complicity of the persons who are not arrayed before this Court which is unsustainable under law even by exercising power under Section 173(8) Cr.P.C."
ix) In view of the same, as discussed above, in the present case, the Investigating Officer has not conducted investigation in fair and transparent manner. There are serious deficiencies in conducting the investigation. At the cost of repetition, it is relevant to note that this Court vide order dated 21.08.2020 directed respondent No.2 to look into the matter. But, unfortunately, respondent No.2 did not supervise the investigation and allowed the Investigating officer to conduct and conclude the investigation in an unfair and non-transparent manner.
In fact, respondent No.2 herself is not clear with the legal position with regard to dying declaration. Therefore, it is a fit case to order for fresh investigation / de novo investigation, by any Agency, like CBCID. Accordingly, point No.2 is answered.
15. Accordingly, the present Writ Petition and I.A. No.2 of 2020 are allowed. The action of respondent Nos.2 and 3 in not conducting the investigation in a fair and transparent manner by considering the dying declaration in Crime No.63 of 2016 of Shankarampet (A) Police Station, Medak District, is declared as illegal and contrary to the principle laid down by the Apex Court in the judgments referred supra. Consequently, investigation in Crime KL,J W.P. No.12913 of 2020 44 No.63 of 2016 of Shankarampet (A) Police Station, Medak District is entrusted to CBCID, Telangana State, for conducting fresh investigation. Respondent Nos.2 and 3 are directed to hand over the file in Crime No.63 of 2016 to CBCID forthwith for the purpose of conducting fresh investigation. CBCID shall conduct investigation in Crime No.63 of 2016 in a fair and transparent manner, as expeditiously as possible, in accordance with law. However, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
_________________ K. LAKSHMAN, J 05th July, 2021 Note:
L.R. Copy to be marked (B/O.) Mgr