Karnataka High Court
Sri Girish Bharadwaj vs The Union Of India on 8 September, 2023
Bench: Chief Justice, Krishna S Dixit
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WP No. 19366 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 19366 OF 2023 (GM-POLICE)
BETWEEN:
1. SRI GIRISH BHARADWAJ
S/O SRI. DATTAREYA H N,
AGED ABOUT 32 YEARS,
R/AT NO.11, ASTHITHVA,
RAILWAY PARALLEL ROAD,
SHESHADRIPURAM,
BENGALURU 560 020.
MOBILE NO. 9448605923
AADHAR NO. 730494798728
EMAIL [email protected]
PAN No.BKJPDO464K
Digitally signed
by SHARADA 2. SRI. NAVEEN KUMAR G
VANI B S/O AITHAPPA RANYA,
Location: HIGH AGED ABOUT 42 YEARS,
COURT OF
KARNATAKA 1-314, SAMPIGE HOUSE,
GANDIBAGILU NERIYA POST,
BELTHANGADY TALUK,
DAKSHINA KANNADA 574 228.
AADHAR NO. 774049266707
MOB. 9741036849
PAN No.AQWPK4481H,
[email protected]
3. VINAYAKA FRIENDS CHARITABLE TRUST ®
R NO. 368/2015-16, BALNADU
PUTTUR 574 201.
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REP BY ITS TRUSTEE,
MR. SHARATH KUMAR M
S/O DEVAPA
AGED ABOUT 27 YEARS,
MUDALAJE HOUSE,
BALNADU PUTTUR 574 203
AADHAR NO. 511571915483
MOBILE NO. 9483080394
PAN No.eadpk9270B
[email protected]
...PETITIONERS
(BY SRI. ARUN SHYAM M., SENIOR ADVOCATE FOR
SRI. SUYOG HERELE E.,ADVOCATE)
AND:
1. THE UNION OF INDIA
REP BY ITS HOME SECRETARY,
GOVERNMENT OF INDIA,
NORTH BLOCK,
NEW DELHI 110 001.
2. THE STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY,
VIDHAN SOUDHA,
AMBEDKAR VEEDHI,
BENGLAURU 560 001.
PHONE NO. 080-22252442
FAX 22258913
E MAIL. [email protected]
3. THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BENGLAURU 560 001.
PHONE NO. 080 22258830
EMAIL. [email protected]
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4. THE DIRECTOR GENERAL &
I.G.P KARNATAKA
NRUPATHUNGA ROAD,
NUNEGUNDLAPALLI, AMBEDKAR VEEDHI,
BENGALURU 560 001.
PHONE 080 2221177
[email protected]
5. THE SUPERINTENDED OF POLICE,
DAKSHINA KANNADA DISTRICT,
NEAR AB SHETTY CIRCLE PANDESHWARA,
MANGALURU 575 001.
E MAIL. [email protected]
phone 9480805301
6. THE DIRECTOR
CENTRAL BUREAU INVESTIGATION,
PLOT NO. 5-B, COG COMPLEX,
LODHI ROAD,
NEW DELHI 1100003
PHONE 011 24368123
7. THE STATION HOUSE OFFICER
BELTHANGADY POLICE STATION,
BELTHANGADY TALUK,
D.K DISTRICT 574 214.
E MAIL. [email protected]
PHONE 08256232093
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H.,DSG FOR R1;
SMT. NILOUFER AKBAR., AGA FOR R2 TO 5 & 7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER
WRIT OR ORDER DIRECTING THE RESPONDENTS TO CONDUCT
FRESH OR DE-NOVO INVESTIGATION OR RE-INVESTIGATION
MONITORED BY THE HONBLE COURT THROUGH RESPONDENT
No-6 (CENTRAL BUREAU OF INVESTIGATION ) OR ANY OTHER
PREMIER INDEPENDENT INVESTIGATION AGENCY OR BY
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FORMING AN SPECIAL INVESTIGATION TEAM (SIT) BY
CONSIDERING THE REPRESENTATIONS OF THE PETITIONERS
DATED 08.08.2023, 18.08.2023 AND 26.08.2023 TO
ASCERTAIN THE ACTUAL CRIMINALS IN CONNECTION WITH
CRIME NUMBER 250/2012 REGISTERED BY BELTHANGADY PS-
RESPONDENT No-7 Re-REGISTERED AS CRIME No.2(S)/2014-
CBI/SCB/CHN CBI SCB CHENNAI BY RESPONDENT No-6-CBI
(PRODUCED AT ANNEXURE-F, F1, G AND H) AND II) ISSUE A
WRIT IN THE NATURE OF MANDAMUS DIRECT THE
RESPONDENTS TO TAKE APPROPRIATE ACTION AGAINST
ERRING OFFICIALS IN THE EARLIER ROUND OF LITIGATION, IN
VIEW OF THE OBSERVATIONS MADE BY THE LEARNED
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CHILDREN
COURT (SPECIAL) BENGALURU (CCH-51) WHILE PASSING THE
JUDGMENT AND ORDER DATED 16.06.2023 IN SPL.CC No-
203/2016 AND III) ISSUE ANY OTHER WRIT OR MANDAMUS OR
DIRECTION AND GUIDELINES REGARDING THE
INVESTIGATION DURING GOLDEN HOURS AFTER THE CRIME
IN CASES LIKER MURDER AND RAPE ETC., TO SECURE THE
ENDS OF JUSTICE AND PREVENT ABUSE OF PROCESS OF LAW.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
This Writ Petition framed in the guise of a social
action litigation has the following principal prayers:
"i. Issue a Writ in the nature of Mandamus or
any other Writ or Order, directing the
Respondents to conduct Fresh or De-Novo
Investigation or re-investigation monitored by
the Hon'ble court through Respondent No.6
(Central Bureau of Investigation) or any other
premier independent investigation agency or by
forming an Special Investigation Team (SIT) by
considering the representations of the
petitioners dated 08-08-2023, 18-08-2023 and
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26-08-2023 to ascertain the actual criminals in
connection with crime number 250/2012
registered by Belthangady PS-Respondent No.7,
Re-registered as Crime No. 2(S)/2014-
CBI/SCB/CHN CBI SCB Chennai by Respondent
No.6-CBI. (produced at ANNEXURE-F, F1, G and
H)
ii. Issue a writ in the nature of mandamus
direct the Respondents to take appropriate
action against erring officials in the earlier
round of litigations, in view of the observations
made by the Learned L Additional City Civil &
Sessions Judge, Children's Court (special),
Bengaluru [CCH-51] while passing the
Judgment and order dated: 16-06-2023 in
Spl.CC.No.203/2016.
iii. Issue any other writ of mandamus or
direction and guidelines regarding the
investigation during golden hours after the
crime in cases like murder and rape etc., to
secure the ends of justice and prevent abuse of
process of law. "
2. BRIEF FACT MATRIX OF PETITIONERS' CASE:
(a) It is very unfortunate that a minor girl
Ms.Sowjanya was raped and murdered on 9.10.2012. Her
father lodged a missing complaint; the dead body of the
victim was discovered under a tree in Mannasanka forest
at Dharmasthala on 10.10.2012 at 12.20 noon. The
Belthangadi Police registered Crime No.250/2012 for the
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offences punishable under Sections 376 & 302 of Indian
Penal Code, 1860. Regard being had to nature of the case,
the investigation was handed to the Crime Investigation
Department of the State vide Government Order dated
22.11.2012. A Final Report was submitted to the Trial
Court on 31.10.2013. However, at the instance of local
MLA and others, the State Government entrusted the
matter to CBI for investigation vide Order dated
06.11.2013. The CBI registered FIR No.2(S)2014-
CBI/SCB/CHN for the same offences.
(b) After the accomplishment of investigation, the
CBI submitted charge sheet No.1/2015 on 26.10.2015
implicating one Mr.Santhosh Rao as the sole accused. The
Special Court on the application filed u/s 319 of Cr.P.C.
had summoned the said accused vide order dated
19.11.2016 and this was challenged by the accused in
Crl.P.No.8678/2016. Victim's father Sri.Chandappa
Gowda's application filed u/s 173(8) of Cr.P.C. came to be
allowed by the Trial Court vide order dated 07.02.2017.
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This also came to be challenged by the accused in
Crl.P.No.1928/2017. Chandappa Gowda too had preferred
W.P.No.2208/2018 seeking a direction for a court
monitored reinvestigation at the hands of respondent-CBI.
(c) Both the above Criminal Petitions came to be
clubbed with Chandappa Gowda's Writ Petition and heard.
A Co-ordinate Bench of this Court vide common order
dated 27.1.2021 allowed the said Criminal Petitions and
dismissed the Writ Petition. As a consequence, the array of
sole respondent Mr.Santhosh Rao came to be quashed. On
the basis of the final report, Spl.C.C.No.203/2016 came to
be registered; charges were framed and trial was
conducted. Learned L Addl. City Civil & Sessions Judge,
Bengaluru, vide order dated 16.6.2023, acquitted the
accused and set him free. According to petitioners, this
has resulted into a lot of social unrest and public agitation
for coercing the authorities to do justice to the deceased
victim and her family by undertaking a de novo
investigation. Representations were also given to the
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concerned quarters seeking reinvestigation of the offences
at the hands of CBI. Nothing having happened on that
score, these petitioners claiming to be public spirited
persons, are knocking at the doors of this court in PIL
jurisdiction.
3. Learned Sr. Advocate appearing for the
petitioners submits that the trial Court has recorded a
specific finding as to grave lapse on the part of the
investigating agencies that eventually resulted into
acquittal and therefore, there is an eminent case for the
issuance of a direction by this court for the fresh
investigation at the hands of CBI. He also notifies to the
court other prayers made in the petition. In support of his
submission, he pressed into service a decision of Apex
Court in SUNITA DEVI vs. UNION OF INDIA (2018) 3 SCC
664. Learned DSGI appears for the Union of India and
learned Additional Government Advocate appears for
respondent Nos.2 to 5 & 7.
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4. Having heard the learned counsel appearing for
the parties and having perused the Petition Papers, we
decline indulgence in the matter for the following reasons:
(a) Learned Sr. Advocate appearing for the
petitioners vehemently submits that there has been a
tremendous social unrest in Dakshina Kannada district
because of acquittal order in question, and voices are
heard in chores as to people loosing faith in the
administration of criminal justice; the learned trial Judge
at several places in the order of acquittal has recorded a
finding about grave lapses that occurred in the
investigation process and therefore, a de novo CBI
investigation is eminently warranted in the matter.
Ordinarily, the established canons of criminal
jurisprudence abhor the request for de novo investigation
once a full-fledged trial having taken place, an
acquittal/conviction order is entered in any criminal case.
This view gains support from the observations in VINAY
TYAGI vs. IRSHAD ALI AND OTHERS, (2013) 5 SCC 762.
Admittedly, investigation having been accomplished, the
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final report came to be filed; the charges having been
framed, trial for the offences in question took place. As
many as 35 witnesses were examined from the side of
prosecution; 40 documents came to be produced &
marked as Exhibits; 26 Material Objects are also noted &
marked. After considering all this, the acquittal order
which runs into 95 pages came to be passed by the
learned trial Judge. Merely because some findings as to
lapse on the part of investigating agencies have been
recorded, this court cannot readily grant the prayer of the
petitioners for a de novo investigation.
(b) Petitioners strangely seek a direction for a
fresh investigation in a concluded case and that this
investigation should be undertaken by the CBI. As already
mentioned above, the State Government vide order dated
06.11.2013 had entrusted the investigation of the case to
the CBI earlier. However, that order came to be quashed
by a Co-ordinate Bench of this Court vide judgment dated
27.01.2021, as already mentioned above. Therefore
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investigation at the hands of the CID was accomplished
and trial having taken place the acquittal order is recorded
by the court of competent jurisdiction. It hardly needs to
be stated that in our system of administration of criminal
justice, normally what is tried is the offence and not the
offender. In JARNAIL SINGH VS. STATE OF HARYANA,
(2003) 9 SCC 328 at paragraph 7, the Hon'ble Supreme
Court observed "....The inquiry into or trial is of 'an
offence' and not the offender...". The acquittal order is not
put in challenge in this PIL and rightly so. The same can
be put in challenge in an appeal. As long as that order
stands, in our opinion a de novo investigation cannot be
ordered for an askance by persons who were neither
victims, complainants, witnesses or in any way associated
with the criminal case in question. It is not that in no
circumstance a fresh investigation can be directed; if a
very strong case is made out, re-investigation is
permissible. However, the petition at hands, is not one
such. For that to happen, the order of acquittal or the
conviction, as the case may be, needs to be set aside.
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(c) The public agitation, social unrest or the like
do occur in any democratic set up like ours, for various
reasons. However, they constitute a poor justification for
the courts to set at naught the judicial orders passed after
the trial/hearing. Here is a case that ended in acquittal
after a full fledged trial. No prayer is made nor can be
made for quashment of the same, in PIL jurisdiction
invoked by the strangers to criminal case. Once a final
order is recorded in a criminal case, howsoever wrong it
may be, it continues to exist in the eye of law for all
practical purposes till the same is vacated in an
appropriate proceeding. Prof. Wade sums up this principle
in his Administrative Law 6th Ed. p. 352 as under:
"The truth of the matter is that the
court will invalidate an order only if 'the
right remedy is sought by the right
person in the right proceedings and
circumstances. The order may be
hypothetically a nullity, but the Court
may refuse to quash it because of the
plaintiff's lack of standing, because he
does not deserve a discretionary
remedy, because he has waived his
rights, or for some other legal reason. In
any such case the 'void' order remains
effective and is, in reality, valid.
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Prof. Wade's view has been approved in STATE OF
PUNJAB AND OTHERS VS. GURDEV SINGH AND
ASHOK KUMAR, AIR 1992 SC 111 at paras 5, 6 & 7.
(d) The above apart, the undesirable consequences
of accepting contention of the petitioner for a de novo
investigation, needs no research: no citizen adjudged
innocent after a due trial would be safe as a member of
civil society, should his acquittal be set aside and fresh
investigation or trial be directed in PIL jurisdiction merely
because there is public agitation. Similarly, the civil
society shall not be safe, should an order of conviction
secured by the State after full fledged trial be set at
naught and eventually the convict be set free only
because of the argued social unrest and that the people
are violently thronging the public streets. We have not
been shown even one solitary Ruling that permits doing of
either. In SANTOSH KUMAR SATISHBHUSHAN BARIYA vs
STATE OF MAHARASHTRA, (2009) 6 SCC 498, it is
observed:
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"People's perception of crime is neither an
objective circumstance relating to crime nor to
the criminal. Perception of public is extraneous
to conviction as also sentencing. ... Public
opinion may also run counter to the rule of law
and constitutionalism...".
What the Constitutional Court of Spain in Appeal for
amparo No.1474-2020 disposed off on 02.06.2021
observed is worth noticing:
"...But what neither our Constitution nor the
fundamental norm of any democratic State
can tolerate is to make one of the most vital
requirements of the rule of law -compliance
with a court decision, which need not attract
adherence or applause or immunity from
criticism - subordinate to the will of one
person, ten people, a thousand, or thousands
or millions. All the more so when there is
another great number of citizens who place
their trust in that decision and abide by it
and even agree with it, and wish to be
confident that they, too, will be protected by
the rule of law..."
The above observations should be a complete answer to
the submissions at the Bar made on behalf of the
petitioners. Much is not necessary to specify.
(e) We fail to understand as to how these
petitioners can espouse the so called public interest in the
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matter or cause of the family of victim. None of the
members of victim's family is arrayed as a party nor any
explanation is offered for non-arraignment. May be that
the victim's family is aware of the remedies that are
available in law against the acquittal order, in the light of
evolved criminal jurisprudence. The Ruling in SUNITA
DEVI supra, cited on behalf of the petitioners does not
much come to their aid, its facts being dissimilar to those
in the petition at hands. Paragraph 2 of the Ruling makes
it abundantly clear that those who were seeking
reinvestigation of the case were not strangers but the
mother-in-law of the deceased and the grandmother of
children of the murder victim. Even her son Mr. Nitin Garg
was also a victim. Therefore, what is observed in the said
case does not come to the aid of petitioners herein to
establish their locus standi or otherwise for the grant of
relief sought for in the petition. It hardly needs to be
stated that a case is an authority for the proposition that is
laid down in a fact matrix and not for all that, that would
follow from what has been so laid down. Lord Halsbury
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more than a century ago in QUINN vs. LEATHAM, (1901)
AC 495, 506 observed as under:
"... there are two observations of a general
character which I wish to make, and one is to
repeat what I have very often said before, that
every judgment must be read as applicable to
the particular facts proved, or assumed to be
proved, since the generality of the expressions
which may be found there are not intended to
be expositions of the whole law, but governed
and qualified by the particular facts of the case
in which such expressions are to be found. The
other is that a case is only an authority for what
it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to
follow logically from it..."
(f) In a recent decision i.e., ANANT THANUR
KARMUSE vs. STATE OF MAHARASHTRA (2023) 5 SCC
802, the Apex Court reiterated the caution against readily
entrusting the investigation to the CBI. What it said at
paragraph 34 reads as under:
"...In the case of Himanshu Kumar and Ors.
(supra), this Court had occasion to consider the
power of the Court to transfer investigation to any
other independent agency. After taking into
consideration the catena of judgments on the
point, it is reiterated that investigation may be
transferred to the CBI only in "rare and
exceptional cases... It is now settled law that if
a citizen, who is a de facto complainant in a
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criminal case alleging commission of cognizable
offence affecting violation of his legal or
fundamental rights against high Government
officials or influential persons, prays before a
Court for a direction of investigation of the said
alleged offence by the CBI, such prayer should
not be granted on mere asking ..."
The above observations were made by the Apex Court in a
case in which the investigation was yet to be
accomplished, whereas in the petition at hand, the
investigation was complete long ago; final report was filed
by the CID in the court; trial was conducted by examining
35 witnesses, 40 documents and 26 material objects;
lastly the acquittal order too has been entered by the
court of competent jurisdiction.
(g) There is yet another reason for us to decline
interference in the matter: ordinarily, in criminal cases, it
is the State which is the custodian of prosecutionary
rights, subject to all just exceptions, and therefore, it is for
the State to prefer the appeal against the acquittal order.
It is not that in the event, State decides not to prefer one,
that will be end of the road. The remedial provisions
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availing to the victims or the aggrieved do obtain in the
amended Cr.P.C., 1973. The aggrieved persons can put
the acquittal order in challenge. The victim (which includes
family of the deceased) has an unconditional right of
appeal and no leave of the court for the same is needed.
In the absence of victim, others also can avail certain
remedies, of course with the leave of court. What the Apex
Court observed in JOSEPH STEPHEN vs. SANTHANASWAMY
2022 SCC OnLine SC 90, becomes instructive in this
regard:
"23. Therefore, no revision shall be
entertained at the instance of the victim against
the order of acquittal in a case where no appeal
is preferred and the victim is to be relegated to
file an appeal. Even the same would be in the
interest of the victim himself/herself as while
exercising the revisional jurisdiction, the scope
would be very limited, however, while
exercising the appellate jurisdiction, the
appellate Court would have a wider jurisdiction
than the revisional jurisdiction. Similarly, in a
case where an order of acquittal is passed in
any case instituted upon complaint,
the complainant (other than victim) can prefer
an appeal against the order of acquittal as
provided under sub-section (4) of Section
378 Cr.P.C., subject to the grant of special
leave to appeal by the High Court."
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In the above circumstances, this petition being
devoid of merits, is liable to be and accordingly dismissed.
The observations hereinabove made shall not in any way
influence the challenge to the acquittal order in question in
an appropriate proceeding.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Bsv, Snb/
