Andhra Pradesh High Court - Amravati
Kiran Tirumalasetti vs The State Of Andhra Pradesh, ... on 28 June, 2024
1
*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+WRIT PETITION No.12292 of 2015
Between:
# Kiran Tirumalasetti, S/o Late Suryachandra Rao
... Petitioner
And
$ The State of Andhra Pradesh, rep. by its Principal Secretary
Home Department, A.P. Secretariat Buildings.
Hyderabad and 6 others.
.... Respondents
JUDGMENT PRONOUNCED ON 28.06.2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
- Yes -
2. Whether the copies of judgment may be marked to Law
Reporters/Journals
- Yes -
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
- Yes -
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+WRIT PETITION No.12292 of 2015
% 28.06.2024
Between:
# Kiran Tirumalasetti, S/o Late Suryachandra Rao
... Petitioner
And
$ The State of Andhra Pradesh, rep. by its Principal Secretary
Home Department, A.P. Secretariat Buildings.
Hyderabad and 6 others.
.... Respondents
! Counsel for the Petitioner : Sri K.S Murthy
M/s. Pillix Law Firm
Counsel for Respondents: G..P for Home
Sri K.Venkat Reddy
<Gist :
>Head Note:
? Cases referred:
1. (2016) 4 SCC 160
2. 2023 SCC OnLine SC 515
3. (2016) 3 SCC 135
3
APHC010820352015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY EIGHTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 12292/2015
Between:
Kiran Tirumalasetti ...PETITIONER
AND
The State Of Andhra Pradesh Represented By Its ...RESPONDENT(S)
Principal and Others
Counsel for the Petitioner:
1. PILLIX LAW FIRM
Counsel for the Respondent(S):
1. GP FOR HOME (AP)
The Court made the following:
ORDER :
This writ petition is filed declaring the action of the respondents in filing
charge sheet in FIR No.110 of 2014 on the file of P.G Ghantasala, Krishna
District, without conducting proper investigation more particularly without
collecting/ mentioning the call data of the accused arrayed therein and in not
conducted investigation a fair and transparent manner right from the stage of
registering the crime as illegal and arbitrary. Consequently to direct the
respondents No.3 to 6 to conduct further investigation in FIR No.110 of 2014
dated 22.7.2014 on the file of Ghantasala police station, Krishna District.
2. The facts of the case are that the father of the petitioner was
brutally murdered by one Venkata Nageswara Rao @ Raja and others on
22.6.2014 at 14.00 hrs. In the year 1992, the junior paternal uncle of the said
Venkata Nageswara Rao was murdered by Lingineni Nageswara Rao. It is
further stated that, on 22.6.2014 the police registered a case in FIR No.110 of
2014 under Section 302 IPC on the complaint given by the mother of the
petitioner. After obtaining the certified copies and after analyzing all the
aspects, the petitioner was able to sense that the investigation is not being
done in proper respective as the basic version of the complainant was not
mentioned by the police in the complaint. Even in the seizure report, the
police did not seize the phone of the accused and not conducted the
investigation in the technical way viz., gathering the cell phone call data,
tracing the calls made prior to the committing of the offence, tracing the
repeated cell numbers and examining them, etc., Accordingly, on 17.8.2014,
the petitioner made a detailed representation to the respondent No.2
requesting to look into the matter. But till date there is no response. Hence
the present writ petition.
3. Heard Sri K.S. Murthy, learned Senior Counsel represent M/s Pillix
Law Firm, learned counsel for the petitioner; learned Assistant Government
Pleader for Home and Sri K. Venkat Reddy, learned counsel appearing for the
respondents.
4. On hearing, learned Senior Counsel for the petitioner while
reiterating the contents made in the petition, submits that, the petitioner herein
is the Advocate by profession and practicing as such in High Court of A.P for
the past 10 years. The petitioner's father was brutally murdered by one
Venkata Nageswara Rao @ Raja, Ghantasala Mandal and others on
22.06.2014 at 14.00 hrs. The said incident was took place at petitioner's farm
and when his father had gone there to draw water to their garden along with
his mother on that day. Thereafter, basing on the complaint given by the
petitioner's mother, the police have registered a case in FIR No.110 of 2014
under Section 302 IPC on 22.06.2014. Learned Senior counsel further
submits that, at the time of registering the complaint, neither the petitioner nor
his brother were present and at the time of incident the petitioner was in
Hyderabad and reached that place in the night and similarly the petitioner's
brother who was residing in Vijayawada also reached after two hours of the
incident. He further submits that, in this case, the present accused executed
the murder along with four other accused and hence it is clear that all the
FIVE accused have executed the offence of Murder in a very brutal way. He
further submits that the recovery was made by the police in the scene of
offence and admittedly two weapons were recovered by police and therefore it
clearly shows that single person cannot hold two weapons and cannot attack
and cut the body into ten pieces. But the investigation officer has not
considered and concentrated on these aspects and remanded the accused
stating that he is the sole accused in the case.
5. Learned senior counsel further submits that, earlier, the petitioner
has already filed a writ petition in WP No.28618 of 2014 and the same is
pending adjudication before this Court. Subsequent to filing of the above writ
petition, the investigating agency completed investigation and filed final report
before the Court at Avanigadda without collecting the call data of the accused
in the above crime and the Court took cognizance of the case in PRC No.52 of
2014 on the file of the Additional Junior Civil Judge's Court, Avanigadda for
the offence under Section 302 IPC and committed the same to the Court of
session in SC No.312 of 2014 on the file of VI Additional District Judge,
Machilipatnam Krishna District. He mainly contended that without proper
investigation and without collecting the material in proper way has filed charge
sheet and numbered the case. Therefore, learned counsel requests this Court
to issue a direction to the respondents to reinvestigate the matter.
6. To support of his contentions, learned Senior counsel for the
petitioner has placed a reliance on a decision of Hon'ble Supreme Court in
Dharam Pal versus State of Haryana and others1, wherein the Apex Court
held that :
We may further elucidate. The power to order fresh, de-novo or re-
investigation 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 can never be forgotten that as the great ocean has only one test, the
(2016) 4 SCC 160
test of salt, so does justice has one flavour, the flavour of answering to the distress of
the people without any discrimination. We may hasten to add that the democratic
setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man
is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets,
light and darkness, winter and spring come and go, even the course of time is playful
but truth remains and sparkles when justice is done. 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. If there is indentation or concavity in
the investigation, can the „faith‟ in investigation be regarded as the gospel truth? Will
it have the sanctity or the purity of a genuine investigation? 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 matter is beyond it? That
is the "tour de force" of the prosecution and if we allow ourselves to say so it has
become "„id‟ee fixe" but in our view the imperium of the Constitutional Courts cannot
be stifled or smothered by bon mot or polemic. Of course, the suspicion must have
some sort of base and foundation and not a figment of one‟s wild imagination. One
may think an impartial investigation would be a nostrum but not doing so would be
like playing possum. As has been stated earlier facts are self-evident and the grieved
protagonist, a person belonging to the lower strata. He should not harbor the feeling
that he is an "orphan under law".
7. Learned Senior counsel while placing the above decision of Hon'ble
Apex Court, submits that, 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.
8. Per contra, learned Assistant Government Pleader for Home
appearing for the respondents, while denying the contents made by the
petitioner, submits that, a fair and impartial investigation was conducted by the
investigating agency. There is no evidence adduced during the course of
investigation except the only one accused, no other person was participated in
the commission of murder of the deceased. He further submits that there are
no merits in the present writ petition and the same is liable to be dismissed.
9. On perusing the material available on record, this Court observed
that, the accused whose name was mentioned in the FIR is also an offender
being prosecuted under Section 302 IPC in Guntur District in S.C.No.119 of
2013 which is pending for trial, and that while the accused is on bail, he has
committed the murder of petitioner's father. In that case also, the present
accused executed the murder along with four other accused and therefore, it
is the contention of the petitioner that, in the present case also, all the FIVE
accused have executed the offence of Murder in a very brutal way. It is also
the contention of the petitioner that the recovery was made by the police at the
scene of offence and admittedly there are two weapons and hence it clearly
shows that Single person cannot hold two weapons and can attack and cut
the body into ten pieces. But the investigation officer has not considered and
concentrated on these aspects and remanded the accused stating that he is
the sole accused in the case.
10. In a case of "State through Central Bureau of Investigation v.
Hemendhra Reddy and Another etc.," 2 wherein it was held as follows:-
What is the meaning of the term "Further Investigation"?
48. In Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC
346, this Court held that, "further investigation within the meaning of
provision of Section 173(8) CrPC is additional; more; or
supplemental. "Further investigation", therefore, is the continuation of
the earlier investigation and not a fresh investigation or
reinvestigation to be started ab initio wiping out the earlier
investigation altogether."
2023 SCC OnLine SC 515
......
59. In Nirmal Singh Kahlon v. State of Punjab and Others reported in
(2009) 1 SCC 441, this Court held as follows:
"68. An order of further investigation in terms of Section 173(8) of the
Code by the State in exercise of its jurisdiction under Section 36
thereof stands on a different footing. The power of the investigating
officer to make further investigation in exercise of its statutory
jurisdiction under Section 173(8) of the Code and at the instance of
the State having regard to Section 36 thereof read with Section 3 of
the Police Act, 1861 should be considered in different contexts.
Section 173(8) of the Code is an enabling provision. Only when
cognizance of an offence is taken, the learned Magistrate may have
some say. But, the restriction 25 imposed by judicial legislation is
merely for the purpose of upholding the independence and
impartiality of the judiciary. It is one thing to say that the court will
have supervisory jurisdiction to ensure a fair investigation, as has
been observed by a Bench of this Court in Sakiri Vasu v. State of
U.P. [(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] , correctness
whereof is open to question, but it is another thing to say that the
investigating officer will have no jurisdiction whatsoever to make any
further investigation without the express permission of the
Magistrate."
.....
62. In Vinubhai (supra); a three-Judge Bench of this Court has
endeavoured to lay at rest the controversy enveloping the evasive
issue of further investigation directed by the Magistrate. This Court,
speaking through Justice R.F. Nariman, has laid down at Para 38
that:
" To say that a fair and just investigation would lead to the
conclusion that the police retain the power, subject, of course, to the
Magistrate's nor under Section 173(8) to further investigate an
offence till charges are framed, but that the supervisory jurisdiction of
the Magistrate suddenly ceases midway through the pre-trial
proceedings, would amount to a travesty of justice, as certain cases
may cry out for further investigation so that an innocent person is not
wrongly arraigned as an accused or that a prima facie guilty person
is not so left out. There is no warrant for such a narrow and restrictive
view of the powers of the Magistrate, particularly when such powers
are traceable to Section 156(3) read with Section 156(1), Section
2(h) and Section 173(8) CrPC, as has been noticed hereinabove,
and would be available at all stages of the progress of a criminal
case before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is within the
discretion of the learned Magistrate who will exercise such discretion
on the facts of each case and in accordance with law." It was also
clarified that, "The "investigation" spoken of in Section 156(3) would
embrace the entire process, which begins 27 with the collection of
evidence and continues until charges are framed by the Court, at
which stage the trial can be said to have begun.".
65. However, the question before this Court is whether sub section
(8) of Section 173 of the CrPC permits further investigation after the
Magistrate has accepted a final report (closure report) under sub
section (2) of Section 173 of the CrPC. The contention raised on
behalf of the accused persons is that acceptance of a closure report
would terminate the proceedings finally so as to bar the investigating
agency from carrying out any further investigation in connection with
the offence.
.....
73. In the light of the aforesaid decision of the Supreme Court, it
appears that though the order passed by the learned Magistrate
accepting a final report under Section 173 is a judicial order, there is
no requirement for recalling, reviewing or quashing the said order for
carrying out further investigation under Section 173(8) of the CrPC.
As held by this Court in the said decision, the provisions of Section
173(8) of the CrPC have been enacted to take care of such like
situations also.
...
77. We may summarise our final conclusion as under:
(i) Even after the final report is laid before the Magistrate and is
accepted, it is permissible for the investigating agency to carry out
further investigation in the case. In other words, there is no bar
against conducting further investigation under Section 173(8) of the
CrPC after the final report submitted under Section 173(2) of the
CrPC has been accepted.
(ii) Prior to carrying out further investigation under Section 173(8) of
the CrPC it is not necessary that the order accepting the final report
should be reviewed, recalled or quashed.
(iv) Further investigation is merely a continuation of the earlier
investigation, hence it cannot be said that the accused are being
subjected to investigation twice over. Moreover, investigation cannot
be put at par with prosecution and punishment so as to fall within the
ambit of Clause (2) of Article 20 of the Constitution. The principle of
double jeopardy would, therefore, not be applicable to further
investigation.
(v) There is nothing in the CrPC to suggest that the court is obliged to
hear the accused while considering an application for further
investigation under Section 173(8) of the CrPC.
11. In the above case, the Hon'ble Supreme Court discussed the
case in "Pooja Pal v. Union of India" 3 , where the fundamental rights
enshrined under Article 21 of the Constitution of India were discussed in the
context of 'speedy trial' juxtaposed to 'fair trial' in the following manner:
"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
(2016) 3 SCC 135
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 met
out justice to the parties. The prime concern and the endeavour of
the court of law is to secure justice on the basis of true facts which
ought to be unearthed through a committed, resolved and a
competent investigating agency".
12. Therefore, in the light of decision of Hon'ble Supreme Court referred
to above, it is a fit case to reinvestigate the case by recording both oral and
documentary evidence. In view of the same, this Court deems fit to allow the
present writ petition while declaring the action of the respondents No.3 to 6 in
filing the charge sheet as illegal and arbitrary.
13. Accordingly, this Writ Petition is allowed. The respondents No.3 to
6 are directed to make further investigation to obtain further evidence both oral
and documentary pertaining to the petitioner and to submit the final report
before the competent trial Court to meet the ends of justice.
14. As a sequel thereto, miscellaneous petitions, if any, pending shall
stand closed.
________________________
DR.K. MANMADHA RAO, J
Date: 28 .06.2024
Note : LR copy to be marked.
(b/o) Gvl
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION NO: 12292 of 2015
Date: 28.06.2024
Gvl
