Geddam Bullayya vs The State Of Andhra Pradesh
2022 Latest Caselaw 1422 AP

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     HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

              WRIT PETITION No.4995 of 2022

ORDER:

This Writ Petition is filed for a Mandamus against

respondent Nos.3 and 4, who according to the petitioner have

not conducted a free and fair investigation into Crime No.266

of 2021 of Tallapudi Police Station, and to handover the case

to an independent agency i.e., the CBCID for investigation into

the matter.

This Court has heard Sri Jada Sravan Kumar, learned

counsel for the petitioner, the learned Government Pleader for

Home appears for respondent Nos.1 to 4 and the learned

standing counsel for the 5th respondent-CID department.

The petitioner, who is the father of the deceased and is

aggrieved by the investigation conducted in Crime No.266 of

2021 by the 4th respondent, has filed the present Writ Petition.

The petitioner's son was found dead in a field. Initially an FIR

was registered under Section 174 of Cr.P.C., on 06.10.2021.

The contention of the learned counsel for the petitioner is that

the death of the petitioner's son is mysterious. He was found

dead in a banana plantation without any clothes on his body

in the land belonging to one Kommaraju Muthyalarao, who has

taken the land on lease. There were some issues between the

deceased and the accused and the deceased was working as a

farm labour. The grievance of the petitioner is that the

deceased has number of injury marks on his dead body and yet

the police were satisfied with the classification of death as

'suicide' with the consumption of a poison lethal substance

called "permethrin". Learned counsel for the petitioner argues

that if a poisonous substance like "permethrin" is consumed it

will leave marks all over the mouth, throat, intestine etc., and

without checking the same, the death was classified only as

suicide. He also points out that in view of the slow phase of

investigation and the failure of the respondents to properly

conduct investigation they had filed W.P.No.285925 of 2021

wherein a learned single Judge by an order dated 10.12.2020

directing the police to complete the investigation within one

month. It is also stated in the said order that if the

investigation could not be completed within the time, the

petitioner is free to take action as required under law. Learned

counsel for the petitioner submits that since the progress was

slow and not proper he filed a private complaint under Section

200 Cr.P.C., before the designated Court i.e., VIII Additional

District & Sessions Judge-cum-special Court for Trial of Cases

under SC's & ST's (POA) Act 1989 at Eluru, which after

considering the evidence and documents, passed an order

directing the SHO, Tallapudi Police Station to register the FIR

under appropriate provisions and for investigation of the case.

Learned counsel submits that thereafter the sections in

the FIR were altered from Section 174 Cr.P.C., into a case

under Sections 302, 201 r/w 34 IPC and Section 3(2)(v) of SCs,

STs POA Act (Amended Act 2015) (in short "SCs & STs (POA)

Act"). Even thereafter, it is submitted that there is no clear

progress in the investigation of the crime. Learned counsel for

the petitioner argues vehemently that since political big wigs

are involved in the crime the police are slowing down the

investigation and have not actually zeroed in on the accused or

nor have taken any concrete steps so far. Learned counsel also

filed additional material papers which include some close up

photographs of the dead body to argue that the doctors did not

conduct a proper postmortem etc. It is submitted that even

after the case is registered under Sections 302, 201 r/w 34 IPC

and Section 3(2)(v) of SCs & STs (POA) Act the respondent

police have not taken the action that is necessary nor

discharged their duties for a fair investigation particularly

under Section 302 IPC. Therefore, he submits that this is a fit

case in which the investigation should be handed over to

CBCID. He relies upon the case law that is filed along with Writ

Petition to argue that this is a fit case in which the Court should

follow the earlier judgments and direct the investigation by the

third party and not by the local police.

Learned standing counsel for the 5th respondent-CBCID

states that they were only added as proforma party and no

specific allegations are made against them and that, therefore,

it is for the learned Government Pleader for Home, who

represents the respondents 1 to 4 to make his submissions.

Sri Maheswar Reddy, Learned Government Pleader for

Home argued the matter at length. According to him the

petitioner only wants another department of the State viz.,

CBCID to investigate the matter. He submits that no clear

ground or specific ground is made out to question the fairness

of the investigation. It is his contention that except for making

general allegations no material is placed before this Court to

claim the relief. He also submits that the learned VIII

Additional District & Sessions Judge-cum-Special Court for

Trial of Cases under SC's & ST's (POA) Act, 1989 (Amended Act,

2015), Eluru, before whom the private complaint was filed

under the provisions of SCs & STs (POA) Act, is already

monitoring the investigation and that no further orders per se

are required. He also submits that as per Police Standing

Orders the case is entrusted for the investigation by the

Director General of Police and that the petitioner cannot,

therefore, claim as a matter of right that his case shall be

investigated by the CBCID only. He also points out that the

petitioner could have approached the Director General of Police

and ask him to refer the matter to CBCID, instead of doing so

the Writ is directly filed before this Court. Relying upon the

land mark decision of the Hon'ble Supreme Court of India in

the case of Sakiri Vasu v State of Uttar Pradesh and

Others1 learned Government Pleader for Home argues that the

case is already being monitored by the concerned court and

that there is no need for a further order to be passed. It is his

contention that it is the District Judge, who is seized of the

(2008) 2 SCC 409

matter under the provisions of the SCs & STs (POA) Act, who

has the necessary power and authority to monitor the

investigation. It is submitted that if the petitioner feels that the

investigation is not proper he can approach the said Court for

the appropriate reliefs. Even after the police filed a final report

the learned Government Pleader points out that the power is

given to the concerned Court to reopen the matter. He

ultimately argues that this is an "extraordinary" remedy that

the petitioner is claiming and that an order of investigation by

a third party can only be given in a rare or exceptional cases.

He submits that this is not a rare / exceptional case. He also

submits that as requested by the Court the Case Diary is being

filed before this Court in a cover. This according to him will

enable this Court to appreciate the progress made in the

investigation so far bad would reveal that the police are

proceeding in a methodical and correct manner; and that they

have enlarged the scope of the investigation after the Hon'ble

VIII Additional District & Sessions Judge-cum-Special Court

for Trial of Cases under SC's & ST's (POA) Act, 1989 (Amended

Act, 2015), Eluru, directed the inclusion of a Charge under

Sections 302, 201 r/w 34 IPC and Section 3(2)(v) of SCs & STs

(POA) Act.

COURT:

This Court after hearing the submissions of the learned

counsels notices that this case relates to the anguish of a father

who lost a grown up son under mysterious circumstances.

This is the anguish that is driving him pillar to post seeking

relief. This Court is also conscious of the fact that it should be

very cautious in ordering the investigation by a third party after

taking it away from the police, who are generally entrusted with

these duties. The law is also very well settled on these aspects

and it need not be reproduced again. This Court is called upon

to maintain a delicate balance between reputation and integrity

of the police and also anguish of a father, who has lost his

grown up son.

The following facts in the opinion of this Court are

important. Crime No.266 of 2021 of Tallapudi Police Station

was registered on 06.10.2021 under section 174 of Cr.P.C. The

investigation was carried out by the local Sub-Inspector of

Police, as the Investigating Officer. Thereafter the Writ Petition

No.28925 of 2021 was filed. This writ was disposed of by

directions on 10.12.2021, whereby the police were directed to

complete the investigation within one month from the date of

receipt of a copy of this order. It was mentioned clearly if the

investigation would not be completed within the said time the

petitioner could take action as required under law. On

30.02.2021 the petitioner filed a complaint under section 200

Cr.P.C. before the VIII Additional District & Sessions Judge-

cum-Special Court for Trial of Cases under SC's & ST's (POA)

Act, Eluru, who passed the order on 18.01.2022, which is as

follows:

"It is true that FIR u/s. 174 Cr.P.C. was registered by the police concerned, but the enquiry was still on. The body was allegedly found at the fields of A1 and A2 with injuries. The dead body was marked and by his side, several articles were found. It is now essential to find out as to how the Srinivasarao died and whether it is as a result of the injuries which appear on his body suffered by him or not. To ascertain all these factors, a thorough investigation has to be conducted by the police concerned. There is prima facie material for investigation by the police.

Therefore, this complaint is forwarded to the SHO, Tallapudi P.S., u/s. 156(3) Cr.P.C., for registration of the FIR under appropriate provisions for investigation and to file a report thereon by 18.02.2022."

The learned Judge noted the injuries on the body, that

the dead body was not clothed and there are several articles

found on the area. Therefore, the court opined that it is

essential to find out how Srinivasa Rao died and whether it is

of result of injuries appears on the body or not. The Court

came to the conclusion that there is prima facie material

available for investigation. Accordingly, the charge sheet was

altered on 18.01.2022 and Section 302 IPC read with other

sections was also added the necessary alteration was carried

out to the FIR. Now the charges under Sections 302, 201 r/w

34 IPC and Section 3(2)(v) of SCs & STs (POA) Act.

The initial investigation was carried out by the S.I. of

Police of Tallapudi. Thereafter, on 29.10.2021 the SDPO

Naraspuram was appointed as Investigating Officer in place of

the earlier Sub-Inspector of Police. He carried on the further

investigation. Later after the alteration of the FIR the Deputy

Superintendent of Police was appointed as the Investigating

Officer and he continued the investigation.

This matter was heard on 28.02.2022, wherein the

counsel for the petitioner reiterated his request for fresh

postmortem to be conducted on the body of the deceased after

exhuming the same. Learned Government Pleader sought time

to get his instructions. Ultimately, the arguments were heard

on 14.03.2022 and concluded.

The Case Diary was brought to the notice of the Court

in a cover. The Case Diary reveals that the investigation is still

being continued. There are entries in the CD are dated

30.01.2022 and 01.02.2022. The statement of a witness i.e.,

LW 26 was recorded on 01.02.2022. Thereafter on 16.02.2022

further investigation was carried on and the 1st accused was

examined. Therefore, it is clear that the investigation is not yet

concluded.

Apart from this the "medical evidence" on which the

petitioner counsel laid heavy emphasis is also looked into by

the Court. The 1st postmortem report is dated 07.10.2021. It

is inconclusive. The approximate time of death is noted as 24

- 36 wks (must be hours) prior to the postmortem. The doctors

could not conclude about the cause of death and the report

sent to the Regional Forensic Laboratory is stated to be

awaited. It is also seen from the record that the Investigating

Officer concerned had also prepared a questionnaire basing on

the instructions of his superior officers and requested the

doctors to give a reply to the three questions posed by him

about the cause of the death. However, the Civil Assistant

Surgeon clearly opined that he can give an opinion only after

seeing the RFSL report. This RFSL report was obtained later.

The forensic science laboratory did notice the presence of the

poisonous chemical 'Permethrin' in the vital organs of the

deceased. Later, on 02.11.2021 the doctors who conducted

initial postmortem came to the conclusion that the cause of

death is due to permethrin poisoning. It appears from the case

diary that the police gave four specific questions to the doctors,

who conducted the postmortem for the purpose of further

investigation. The answers to these queries in this Court's

opinion are also not very clear, particularly with regard to the

homicide / suicide issue.

Therefore, it is clear that from a perusal of the Case

Dairy that as on date the doctors are not very sure if the death

is due to homicide or suicide. Apart from this a reading of the

Case Diary also reveals that there are communal rivalries in

the Malakapalli village, which are leading to law and order

problems. This is apparent from the requests of the

Investigating Officer to secure the FSL analysis report. In fact,

he addressed letters to his superiors requesting them to use

their good offices to secure the report at an early date, in view

of the communal rivalries between the villagers. These are the

relevant facts, which are visible from a reading of the record

that is disclosed so far.

Therefore, in these circumstances, this Court is of the

opinion that there is a need to exhume the body and conduct a

denovo postmortem to the extent possible by a fresh team of

qualified doctors. It is a fact that some time has passed since

the deceased was buried and there would definitely be some

changes but the fact remains that this not a case where

petitioner simply complained that the investigation is not

proper. He has been running from pillar to post. His anguish

and torment are clear. He has approached this Court earlier

and filed a Writ Petition. He had approached the national SC

ST commission on atrocities also for redressal. He has also

filed a private complaint before the VIII Additional District &

Sessions Judge-cum-Special Court for Trial of Cases under

SC's & ST's (POA) Act, Eluru, which also directed the police to

alter the charge. The existence of some communal rivalries is

also borne out by the record. The only issue in this case is how

did Srinivasa Rao die? Did he commit suicide or was he

murdered? In this Court's opinion Medical evidence may help

the police in coming to a firm conclusion. The ultimate aim of

the Courts; the police, the prosecutors etc., is to find the

"truth". No stone should be left unturned in this quest for

truth.

This Court per se does not find that the investigation

carried on by the police is biased etc. A reading of the Case

Diary shows that the police have carried out the investigation

albeit at a slow pace. The medical evidence at this stage is

however inconclusive. Therefore, in the circumstances, this

Court is of the opinion that in line with the additional prayer

made by the petitioner and to hopefully ensure that the truth

will come out the body of the deceased Srinivasa Rao should be

exhumed and a further postmortem should be conducted at the

spot or otherwise. For this purpose, the respondent police are

directed to approach the Superintendent of the Guntur Medical

College to immediately nominate two doctors well-versed in this

field for the purpose of the fresh postmortem. In addition, they

should approach the Director, AIIMS, Mangalagiri to nominate

a doctor from All India Medical Sciences, Mangalagiri, to

conduct the postmortem along with the other two doctors. The

postmortem being conducted by the three doctors should be

carefully videographed and preserved for the sake of the trial.

The doctors are directed to give a written report with reasons

for their conclusions. The entire exercise should be completed

within a period of 15 days from the date of receipt of a copy of

this order. The police / revenue officials should make all the

arrangements for this postmortem. It is also directed that since

the present Investigating Officer is an officer of the rank of

Deputy Superintendent of Police, he should quickly conclude

his investigation and file the final report before the concerned

Court within a further period of two months from the date of

receipt of a final postmortem report. The provisions of Rule 7

of the SC & ST (POA) Rules, 1995 should be strictly adhered to

by the new Investigating Officer. In addition, Rule 7 (3) of the

Rules should also be adhered to by his superiors. Since no

allegation per se made against the present Investigating Officer

no order is being passed to change him or to handover the

investigation to the CBCID. The Investigating Officer is,

however, directed to devote time and specially focus on this

case to complete the investigation at the earliest point of time.

This order, however, will not preclude the petitioner from

further proceedings as per law.

With these observations, the Writ Petition is partly

allowed. There shall be no order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall also stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:23.03.2022 Ssv