Telangana High Court
Mr. B.Sailesh Saxena vs The Union Of India, on 1 June, 2021
Bench: K.Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ WRIT PETITION No.8201 OF 2019
% Delivered on: -06-2021
Between:
# Mr. B. Sailesh Saxena .. Petitioner
Vs.
$ The Union of India, rep.by its Secretary of
Ministry of Home Affairs, New Delhi & Others .. Respondents
! For Petitioner : Mr. P.S.P. Suresh Kumar
^ For Respondent Nos.1 & 2 : Mr. N. Rajeshwar Rao,
learned Asst. Solicitor General
For Respondent No.3 : Mr. K. Surender,
learned Spl.P.P. for CBI
For Respondent Nos.4,5,6&7 : Govt. Pleader for Home
< Gist :
> Head Note :
? Cases Referred :
1. (2008) 2 SCC 409
2. AIR 2020 SC (Criminal) 948
3. AIR 2013 SC (SUPP) 508
4. (2010) 3 SCC 571
5. (2014) 8 SCC 768
6. (2015) 9 SCC 795
7. (2017) 12 SC 775
8. 2020 Law Suit (AP) 119
9. (2018) 7 SCC 365
10. 1994 (Supp) (1) SCC 143
11. (1994) 6 SCC 275
12. (2013) 10 SCC 611
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2
HONOURABLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.8201 of 2019
ORDER:
Heard Sri P.S.P.Suresh Kumar, learned counsel representing
Mr. Abu Akram, learned counsel for the petitioner, Sri N.
Rajeshwar Rao, learned Assistant Solicitor General appearing on
behalf of respondent Nos.1 and 2, Sri K. Surender, learned Special
Public Prosecutor for CBI appearing on behalf of respondent No.3
and learned Government Pleader for Home appearing on behalf of
respondent Nos.4, 5, 6 and 7.
2. The petitioner herein filed the present writ petition seeking
following reliefs:
i) To transfer the Investigation in Crime No.103/19 from
Respondent No.7 (SHO Nampally) to Respondent No.3 (Central
Bureau of Investigation because the Respondent No.7 (SHO
Nampally) is biased to perform proper and fair investigation due to
involvement of Higher Police officials in the present Crime along
with politicians and this Hon'ble Court has to curtail such type of
illegal investigation by handover the investigation to other
independent investigation agency like Central Bureau of
Investigation as described by the Hon'ble Supreme Court in State of
Pubnjab vs CBI. As the Hon'ble Apex Court in State of Punjab
versus CBI reported in (2011) 9 SCC 182 has rightly observed that
in cases where the senior functionaries of the State police and
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political leaders were to be named and political and administrative
compulsions then to bring home the truth then in such cases it was
only just to meet the ends of the justice to refer the investigation in
such matters to the Central Bureau of Investigation and pass such
other order or orders as this Hon'ble Court deems fit and proper in
the interest of justice.
ii) To declare the inaction on the part of Respondent No.7 to
record the statement of the petitioner in respect of crime No.103/19
of Nampally P.S. in respect of involvement of Respondent No.8 to
11 along with Respondent No.12 in consonance of political land
grabbers for executing the present heinous Crime of murder of the
petitioner along with his brother-in-law as illegal, arbitrary and
unconstitutional and consequently direct the Respondent No. 7 to
record the statement of the petitioners fairly without under the
pressure/influence of Respondent 8-11 and pass such other order or
orders as this Hon'ble Court deems fit and proper in the
circumstances of the case in the interest of justice.
iii) To declare the action of Respondent No.7 for performing
biased and tainted investigation in Crime No.103/19, Nampally P.S.
under pressure/influence of Respondent No.8 to 11 from the
criminal prosecution initiated by the petitioner due to involvement
of Respondent No.8 to 11 along with Respondent No.12 in
consonance of political land grabbers for executing the present
heinous crime of murder of the petitioner along with his brother-in-
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law as illegal, arbitrary and unconstitutional pass such other order or
orders as this Hon'ble Court deems fit and proper in the
circumstances of the case in the interest of justice.
iv) To declare the action of Respondent No.7 for not arraying
the name of Respondent No. 8 to 11, 13 to 15, 17-22 along with
Respondent No.12 as accused in crime No.103/19 of Nampally P.S.
despite of statement given by the petitioner along with evidence as
illegal, arbitrary and unconstitutional pass such other order or orders
as this Hon'ble Court deems fit and proper in the circumstances of
the case in the interest of justice.
v) To direct the Respondent No.1 and 2 to make tne enquiry
in all thee illegal activities of police officials of Central Crime
Station for highhandedly foisting false case against the petitioners in
civil disputes and causing illegal custodial death of the petitioners
father by doing custodial violence on 21-05-2017 and also made
attempt to murder of petitioner on 10-04-2019 under political
influence of political land grabbers and pass such other order or
orders may deem fit and proper in the circumstances of the case
pending disposal of the above writ petition.
FACTS:
3. On 10.04.2019 at about 7 pm the petitioner herein along with
his brother-in-law i.e. Bhupender Rathod went to More
Supermarket, Shanti Nagar, Hyderabad for the purpose of purchase
of vegetables. When they were coming out of said super market,
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they were attacked with deadly weapons by one R. Srinivas and
others and they injured the petitioner on his throat, palm and right
arm and severe injury has been inflicted on his throat and they
injured the brother-in-law of the petitioner at his elbow, stomach
and leg and they threw acid. When the brother-in-law of the
petitioner tried to save him and two police men were standing
nearby. While injuring the petitioner and his brother-in-law, R.
Srinivas shouted that even if he kills the petitioner, he will be saved
by K.N. Vijay Kumar, ACP and his boss and they fled in white
colour, Range Rover S.U.V. On the basis of the complaint lodged
by brother-in-law of the petitioner on 10.04.2019, police Nampally
have registered a case in crime No.103 of 2019 against R. Srinivas
and others for the offence under Section 307 read with Section 34
IPC. According to petitioner, despite registration of crime on
10.04.2019 police had not completed the investigation so far.
CONTENTIONS OF THE PETITIONER:
4. The petitioner being a practicing Advocate filed several cases
questioning the various Government Orders issued by the
Government and also tried to save the Government land from land
grabbers. He has obtained interim orders on Government Order
in respect of land admeasuring Acs.78-00 guntas in survey No.294
to 299 of Gudimalkapur Village. He has filed various writ petitions
on behalf of his client Mr. Deepak Reddy and others questioning the
various Government Orders issued by the Government
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in respect of land admeasuring Acs.12-05 guntas in Road No.12 of
Banjara Hills, Hyderabad. Several cases wherein the petitioner
appeared on behalf of his clients are pending in various courts.
Political leaders and officials have bore grudge against the petitioner
herein for filing the above said cases and attempt to kill the
petitioner was made and therefore, he has submitted representations
to the Commissioner of Police to give security to him. He has also
filed WP.No.20011 of 2009 seeking police protection. He has
obtained several prohibitory orders against political leaders and land
grabbers from various courts as a counsel in respect of properties
involved hundreds of crores. He has also filed cases against leaders
belong to various political parties. The leaders of political parties
bore grudge against the petitioner herein. In an attack with iron
rods, the petitioner's spinal cord got damaged. He was admitted in
hospital for a long time. Several false cases were foisted against
him at the instance of political leaders and land grabbers. Petitioner
herein filed several writ petitions and criminal petitions to quash the
said proceedings pending against him. There is a big conspiracy in
which many politicians of ruling party including respondent Nos.8,
9, 10, 11 and 22 were involved. Since the police have not registered
the complaints lodged by his clients, the petitioner has filed several
private complaints under Section 200 Cr.P.C. before the learned
Magistrates, who in turn referred the same for the purpose of
investigation under Section 156 (3) Cr.P.C. The police officials
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have bore grudge against the petitioner for the same. Police have
also harassed the father of the petitioner who is 75 years old man.
He was taken into police custody on 25.01.2017 by respondent
Nos.8 to 11 and 22 and father of the petitioner died while he was in
custody. Since no action is taken on the custodial death of his
father, the petitioner has filed WP.No.12297 of 2018 for registration
of crime and for referring the matter to C.B.I. and it is pending
before this Court. The mother of the petitioner has also filed writ
petition under Article 32 of the Constitution before the Hon'ble
Supreme Court and the Hon'ble Supreme directed the mother of the
petitioner to approach this Court and directed this Court to hear the
WP.No.12297 of 2018 as expeditiously as possible. Due to filing of
the said case, the police officials have developed grudge against the
petitioner herein. Respondent No.8 on the instructions of his boss
with the help of his business partner R. Srinivas made a plan to
eliminate the petitioner and in the said course of action, attempt was
made on 10.04.2019 to kill him. Though the crime was registered
on 10.04.2019 under Section 307 IPC read with Section 34 IPC, the
police have not completed the investigation so far. Since there are
allegations against K.N. Vijaykumar, ACP CCS DD, Hyderabad and
G. Jogaiah, Addl. Deputy Commissioner of Police, Mr. Avinash
Mohanthy, the Deputy Commissioner of Police, the Investigating
Officer in Cr.No.103 of 2019 did not complete the investigation so
far. The police have not been conducting impartial investigation in
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the said crime. The name of said K.N. Vijayakumar, ACP is also
specifically mentioned in the complaint itself and higher police
officials were also involved in the said crime. The petitioner is
having apprehension that State Police may not conduct fair and
impartial investigation in crime No.103 of 2019 and therefore, he
sought that investigation has to be entrusted to an independent
agency like Central Bureau of Investigation (C.B.I.). He has filed a
detailed writ affidavit reiterating the said facts. Learned counsel for
the petitioner relied upon the principles laid down by the Apex
Court and this Court in several judgments in support of his
contention.
5. The petitioner has filed additional affidavit vide USR
No.11303 dated 23.02.2021 stating that he made
respondent Nos.8 to 22 as parties. He made certain allegations
against them. But said respondent Nos.8 to 22 including respondent
No.12 are not necessary parties to the present writ petition, since the
relief sought in the writ petition is only for transfer of investigation
and they have no say at the stage of investigation or at the stage of
transfer of investigation. Hence, he is not pressing the writ petition
against respondent Nos.8 to 22 and he is reserving his right to
agitate his grievance about their involvement in the offence before
the Investigating Agency concerned. With the said contentions,
petitioner sought to dismiss the present writ petition against
respondent Nos.8 to 22 as not pressed.
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6. With the said contentions, learned senior Counsel for the
petitioner sought to entrust the investigation to C.B.I.
CONTENTIONS OF RESPONDENTS:
7. Respondent Nos.6 and 7 i.e. the Commissioner of Police,
Hyderabad City and the Station House Officer, Nampally Police
Station filed their respective counter affidavits. The petitioner
herein filed reply affidavit to the said counter affidavits.
Respondent No.7 also filed written instructions.
8. On receipt of the complaint from Sri Bhupender Rathod,
brother-in-law of the petitioner herein, police Nampally registered a
case in Crime No.103 of 2019 against R.Srinivas for the offence
under Section 307 read with Section 34 IPC and they have
commenced the investigation in the said crime. Even before
issuance of the F.I.R., the petitioner was shifted to Care Hospital,
Nampally by the defacto complainant himself. He was treated as in-
patient. The Statement of complainant was recorded. The police
have arrested A-1and A-2 i.e. R.Srinivas and Datta on 15.04.2019.
They have recorded the confessional statements of said accused also
in the presence of mediators. During the course of investigation, the
police found that the petitioner was admitted in Care hospital,
Nampally. Therefore, the petitioner was not in a position to give his
statement and as such, his statement was not recorded. After
discharge from the hospital, the petitioner did not turn-up to the
police station to give his statement. As his statement is crucial to go
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ahead with the investigation, despite making several efforts, the
petitioner is not cooperating with the Investigating Officer in
concluding the investigation in crime No.103 of 2019. His
statement was recorded in partial consisting of 16 pages with great
difficulty. Since the petitioner is not responding to the phone calls
made to him, the Investigating Officer has sent several notices to the
residential address of petitioner through registered post. Despite
receiving and acknowledging the same, the petitioner did not turn-
up and did not cooperate with the Investigating Officer in
concluding the investigation. After registration of the crime, the
Investigating Officer, the SI of police who registered the case made
phone calls to the complainant and visited the scene of offence and
examined the same in the presence of mediators. Rough sketch was
also drawn. No incriminating material was found at the scene of
offence. The Investigating Officer has searched for the CCTV
Footage which did not yield any result as there were no CCTV
Cameras covering the scene of crime. The Investigating Officer has
secured the presence of eye-witnesses. Enquiries made with regard
to the attack on the petitioner would reveal that there are property
disputes between the petitioner and alleged accused and
investigation is under progress.
9. The petitioner herein is an accused in the following cases:
1) Crime No.235 of 2016, under Sections 420, 468, 471
IPC of CCS, Hyderabad.
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2) Crime No.27 of 2017 under Sections 447, 420, 468,
471, 120b, 506 r/w.34 IPC of CCS, Hyderabad.
3) Crime No.35 of 2017 under Sections 420, 468, 471 IPC
of CCS, Hyderabad.
4) Crime No.49 of 2017 U/s.468, 471, 420 IPC of CCS,
Hyderabad.
10. In the said cases, the police have arrested the petitioner
herein. Sri K.N.Vijay Kumar, ACP, CCS was the Investigating
Officer. Therefore, the petitioner herein falsely made certain false
allegations against said Vijay Kumar and other officials of CCS.
With great difficulty the Investigating Officer could secure the
presence of petitioner on 09.10.2019, 10.10.2019, 11.10.2019,
12.10.2019 and the petitioner deposed his partial statement in Part-II
consisting of 16 pages. The above said recording of statement of
the petitioner under Section 161 Cr.P.C. was videographed. In
spite of sincere efforts made by the Investigating Officer to record
the pending part-II statement of the petitioner under Section 161
Cr.P.C., he did not cooperate with the Investigating Officer due to
lack of diligence shown by him. Investigation is pending only due
to non-cooperation by the petitioner by furnishing information to
record the statement under Section 161 Cr.P.C. in concluding the
investigation. The petitioner has made false allegations against the
officials of CCS including respondent Nos.8, 9, 10, 11 and 22 with
mala fide intention to defame them and dilute the investigation in
the above said crimes, in which the petitioner is an accused.
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11. The investigation done so far reveals that the attack was made
by A-1 in association with A2 due to previous enmity in connection
with monetary transaction. Respondent Nos.8 to 11 are the
Investigating Officers of the cases registered against the petitioner at
the Central Crime Station, Detective Department, Hyderabad
pertaining to land disputes arising out of forgery of documents etc.,
The petitioner is an Advocate and A1 herein have been previously
arrested and remanded to judicial custody by the police of CCS of
Detective Department. To take revenge against those officials, the
petitioner is trying to implicate them and those police officers are
not at all concerned in the present case of Attempt to Murder on the
petitioner. The allegations made against them are false and far from
truth. The petitioner wantedly took the plea of impleading
respondent Nos.8 to 11 to weaken their moral strength and not to
conduct fair and proper investigation of the cases registered against
him at the CCS.
12. Respondent No.7 has been conducting proper and thorough
investigation in a transparent manner. He has arrested A1 and
A-2 in the case. The investigation of the case is under progress and
the charge sheet will be filed as expeditiously as possible, provided
the petitioner cooperates with the Investigating Officer. The
petitioner being a legal professional, misusing and abusing the
process of law to create confusion and divert the issue, made certain
false allegations against the police officials of CCS, Hyderabad,
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who are investigating officers in the above said crimes registered
against the petitioner herein.
13. With the said contentions, learned Government Pleader for
Home sought to dismiss the present writ petition.
14. Sri K. Surender, learned Special Public Prosecutor for CBI
would submit that entrustment of investigation to CBI is not in a
routine manner, in rarest of rare cases only, investigation has to be
entrusted to CBI. There will be reasonable apprehension and
documentary evidence to substantiate the said case. He would
further submit that, if petitioner is having any grievance against the
Investigating Officer in crime No.103 of 2019 that he is not
conducting fair investigation and that there is delay in completion of
investigation, he has to avail the other remedies available to him in
Chapter XII of the Code of Criminal Procedure (Cr.P.C.). Instead of
doing so, the petitioner herein filed the present writ petition seeking
to entrust the investigation to CBI. In support of his contentions, he
placed reliance on the judgment of Hon'ble Apex Court in Sakiri
Vasu v. State of Uttarpradesh1. He has relied on the judgments of
the Hon'ble Apex Court in Arnab Ranjan Goswami v. Union of
India2 and Prof. K.V.Rajendran v. Superintendent of Police,
CBCID South Zone, Chennai3.
. (2008) 2 SCC 409
. AIR 2020 SC (Criminal) 948
. AIR 2013 SC (SUPP) 508
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15. The petitioner also filed reply affidavit to the counter affidavit
filed by respondent Nos.6 and 7. Even in the said reply affidavit, it
is the main contention of the petitioner that there are allegations
against respondent Nos.8 to 11, who are the Assistant
Commissioner of Police (ACP) and above the ACP level police
officers, the investigating officer, who is his subordinate, cannot
conduct investigation in a fair and transparent manner. According
to him when the higher police officials and political leaders are
having grudge against the petitioner herein and therefore, the police
officials may not be in a position to conduct fair and transparent
investigation in the present crime. Therefore, he sought to entrust
investigation to CBI.
LEGAL POSITION
16. In view of the above rival submissions, the issue that falls for
consideration by this Court is whether it is a fit case to entrust the
investigation to CBI as sought by the petitioner herein?
17. To decide the said issue and the lis in the present writ
petition, this Court thought it proper to refer the formation of C.B.I
and its powers etc.,
The Central Bureau of Investigation traces its origin to the
Special Police Establishment, Central Government Force was set up
in the year 1941 by the Government of India to investigate bribery
and corruption in transactions relating to the War and Supply
Department of India as the State Police found inadequate to cope up
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with such offences. Special Establishment was established by an
executive order. Later the Delhi Special Police Establishment Act
(DSPE) was enacted on 19.11.1946. The said Act makes provision
for the constitution of special police in Delhi for investigation in
Union Territories, offences which are notified by the Central
Government under Section 3 of the said Act. The said
establishment acquired its popular current name, Centre Bureau of
Investigation (CBI) through a Home Ministry, Government of India
vide resolution dated 01.04.1963. Under Section 5 of the Act, the
Central Government may by order extend to any area (including
Railway areas) in a State not being a Union Territory, the powers of
jurisdiction on members of DSPE for the investigation of any
offences or class of offences specified in Notification under Section
3. When such powers are conferred on the member of DSPE, he
shall discharge the functions of a police officer in that area and
shall, while so discharging some functions, be deemed to be a
member of Police Force of that area and be vested with powers,
functions and privileges and be subject to the liabilities of a Police
Officer belonging to that Police Force and such member shall
exercise powers of the Officer in charge of a Police Station within
the limits of such Station.
Section 6 of the Act operates as provisio to Section 5. It says
nothing contained in Section 5 shall be deemed to enable any
member of the DSPE to exercise powers and jurisdiction in any area
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in a State, without the consent of the Government of that State.
Therefore, for CBI to investigate into any crime pertaining to a
State, the prior consent of that State Government is essential.
However, the crucial point germane for consideration is, whether
Constitutional Courts can direct CBI investigation in a State crime
without the consent of the State Government and if so under what
governing parameters.
18. The Hon'ble Apex Court in State of West Bengal v.
Committee of Protection of Democratic rights, West Bengal4
gave certain conclusions, which are relevant and the same are
extracted below:
(i) Fundamental Rights are inherent and cannot be
extinguished by any constitutional or statutory provisions
and any law that abrogates or abridges such rights would be
violative of the basic structure doctrine.
(ii) Article 21 takes with its fold enforcement of rights
of not only the accused, but also the rights of victim. The
State has duty to enforce human rights of a citizen
providing for fair and impartial investigation against any
accused person which may include its own officers.
(emphasis supplied).
(iii) The power of judicial review conferred under Article
32 on Apex Court and under Article 226 on the High
Courts, which being an integral part of basic structure, no
act of parliament can exclude or curtail the powers of the
. (2010) 3 SCC 571
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constitutional Courts regarding the enforcement of
fundamental rights.
(iv) Restriction on Parliament by the Constitution and
restriction on the Executive by Parliament under an
enactment do not amount to the restriction on the powers of
Judiciary under Articles 32 and 226 of the Constitution.
(v) When Special Police Act itself provides that the CBI,
subject to the consent of the State can take up investigation
relating to the crime which is within the jurisdiction of the
State police, the Court can also exercise its constitutional
power of judicial review and direct CBI to take up
investigation within the jurisdiction of the State. Such a
power under Article 226 cannot be taken away, curtailed or
diluted by Section 6 of Special Police Act. The restriction
imposed by Section 6 on the powers of Union cannot be
read as restriction on the powers of the constitutional
Courts. (emphasis supplied).
(vi) This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national and
international ramifications or where such order may be
necessary for doing complete justice and enforcing the
fundamental rights.
19. In Subrata Chattoraj v. Union of India5 which relates to
Sarada Chit Fund Multi State Investment Scam, the Apex Court
while referring to Committee of Protection of Democratic rights
(4 supra) and other cases, having observed that apart from the
sensitivity of the issues involved, especially interstate ramifications
. (2014) 8 SCC 768
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of the scam under investigation, CBI investigation is essential to
ensure credibility of investigation in the public perception. The
following observation of Apex Court is most important which is
extracted as under:
"The State Police Agency has done the cases and filing
charge- sheets and bringing those who are responsible to
book. The question, however, is not whether the State
Police has faltered. The question is who are aggrieved.
While we do not consider it necessary to go into the
question whether the State Police have done all that it ought
to have done, we need to point out that money trail has not
yet been traced (emphasis supplied). The collections made
from the public far exceed the visible investment that the
investigating agencies have till now identified. So also the
larger conspiracy angle in the States of Assam, Odisha and
West Bengal although under investigation has not made
much headway partly because of the inter-state
ramifications, which the Investigating Agencies need to
examine but are handicapped in examining."
20. In Mithilesh Kumar Singh Kumar v. State of Rajasthan6
which relates to death of a fresher due to college ragging in
suspicious circumstances, while ordering transfer of investigation
from State police to CBI, the Apex Court observed that the decision
to transfer rests on Court's satisfaction that the circumstances of a
given case demand such an order. No hard and fast rule can possibly
be prescribed for universal application to all cases. The Court must
be sensitive to the principle that transfers are not ordered just
. (2015) 9 SCC 795
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because a party seeks to lead the investigator to a given conclusion.
It is only when there is a reasonable apprehension about justice
becoming a victim because of shabby or partisan investigation that
the Court step in to exercise its extraordinary powers.
21. In Neelam Mishra v. Union of India7, which relates to death
of a young girl aged 22 in suspicious circumstances, which was tried
to be projected as an accident, on the petition of the mother
contending that the photographs of the deceased revealed there has
been assault with immense brutality which could not be caused by
an accident and even the post mortem report did not rule out
homicidal assault and there was no proper investigation by the Delhi
police, the Apex Court ordered CBI enquiry in spite of the argument
of CBI that the Delhi police has taken extreme pains to solve the
issue and hence it cannot be found fault. In this context, the Apex
Court observed thus:
"4. At this juncture, we make it clear that we do not think
that there has been any kind of laxity in the investigation
carried out by the Delhi Police, but there can be no doubt
that CBI is more equipped and the citizens of this country
have faith in its investigating abilities" (emphasis supplied).
22. In Prof. K.V. Rajendran (3 Supra) a Three-Judge Bench of
the Apex Court held as under:
. (2017) 12 SC 775
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"CBI investigation could be ordered, but such power
must be exercised in rare and exceptional cases where the
Court finds it necessary in order to do justice between the
parties and to instil confidence in the public mind, or where
the investigation by the State police lacks credibility and it
is necessary for having "a fair, honest and complete
investigation and particularly when it is imperative to retain
public confidence in the impartial working of the State
agencies". It has further observed that where the
investigation was already completed and charge sheet was
filed, ordinarily superior Courts should not reopen the
investigation and leave it to the Court concerned, to
proceed with the matter in accordance with law. Under no
circumstances, should the Court make any expression of its
opinion on merit relating to any accusation against any
individual."
23. In Y.S. Sowbhagya, w/o. Late Y.S. Vivekananda Reddy v.
State of Andhra Pradesh8 wherein petitioner sought for CBI
enquiry to probe the death of Late Y.S. Vivekananda Reddy, brother
of late Dr.Y.S. Rajasekhara Reddy (former Chief Minister of united
Andhra Pradesh) and uncle of Sri Y.S. Jaganmohan Reddy, present
Chief Minister and former opposition leader of Andhra Pradesh and
the learned Judge of Andhra Pradesh High Court at Amaravati
entrusted the investigation to CBI.
24. Learned Judge has also relied upon the principle laid down by
the Hon'ble Apex Court in E. Siva Kumar v. Union of India9.
. 2020 Law Suit (AP) 119
. (2018) 7 SCC 365
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25. In Arnab Ranjan Goswami (2 Supra), the Hon'ble Supreme
Court after referring to various judgments at paragraph No.36 held
as under:
" The transfer of an investigation to the CBI is not a matter
of routine. The precedents of this Court emphasise that this
is an "extraordinary power" to be used "sparingly" and "in
exceptional circumstances". Speaking for a Constitution
Bench in State of West Bengal v Committee for Protection
of Democratic Rights, West Bengal ("CPDR, West
Bengal"), Justice DK Jain observed:
"70...despite wide powers conferred by Articles 32 and
226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed limitations
on the exercise of these constitutional powers. The very
plenitude of the power under the said articles requires
great caution in its exercise. Insofar as the question of
issuing a direction to CBI to conduct investigation in a
case is concerned, although no inflexible guidelines can
be laid down to decide whether or not such power should
be exercised but time and again it has been reiterated that
such an order is not to be passed as a matter of routine or
merely because a party has levelled some allegations
against the local police. This extraordinary power must
be exercised sparingly, cautiously and in exceptional
situations where it becomes necessary to provide
credibility and instill confidence in investigations or
where the incident may have national and international
ramifications or where such an order may be necessary
for doing complete justice and enforcing the fundamental
rights. Otherwise CBI would be flooded with a large
number of cases and with limited resources, may find it
difficult to properly investigate even serious cases and in
the process lose its credibility and purpose with
unsatisfactory investigations." (Emphasis supplied)
26. This principle has been reiterated in K.V. Rajendran (3
Supra). Dr Justice B S Chauhan, speaking for a Three-Judge Bench
of this Court held:
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"13...This Court has time and again dealt with the issue under
what circumstances the investigation can be transferred from
the State investigating agency to any other independent
investigating agency like CBI. It has been held that the power
of transferring such investigation must be in rare and
exceptional cases where the court finds it necessary in order to
do justice between the parties and to instill confidence in the
public mind, or where investigation by the State police lacks
credibility and it is necessary for having "a fair, honest and
complete investigation", and particularly, when it is imperative
to retain public confidence in the impartial working of the State
agencies."
Elaborating on this principle, this Court observed:
"17...the Court could exercise its constitutional powers for
transferring an investigation from the State investigating agency
to any other independent investigating agency like CBI only in
rare and exceptional cases. Such as where high officials of State
authorities are involved, or the accusation itself is against the top
officials of the investigating agency thereby allowing them to
influence the investigation, and further that it is so necessary to
do justice and to instill confidence in the investigation or where
the investigation is prima facie found to be tainted/biased."
The Court reiterated that an investigation may be
transferred to the CBI only in "rare and exceptional cases". One
factor that courts may consider is that such transfer is
"imperative" to retain "public confidence in the impartial
working of the State agencies." This observation must be read
with the observations by the Constitution Bench in CPDR,
West Bengal that mere allegations against the police do not
constitute a sufficient basis to transfer the investigation.
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With the said observations, the Hon'ble Apex Court declined to
entrust the investigation to CBI and it is the case of Editor-in-Chief
of News Channel, Arnab Ranjan Goswami.
27. In Rhea Chakraborty v. State of Bihar, where certain
accusations were made against Rhea Chakraborty, a girl friend of
Hindi movie Actor Sushant Singh Rajput, who died on 14.06.2020
in suspicious circumstances, the Hon'ble Supreme Court held that
the investigation has to be entrusted to CBI only in the
circumstances mentioned therein.
28. In R.S. Sodhi, Advocate v. State of U.P.10,
the Hon'ble Apex Court while dealing with fake encounter case
where ten persons were died, in view of the serious allegations made
against State Police and also considering that ten persons were died
in fake encounter, entrusted the investigation to CBI.
29. In Indersingh v. State of Punjab11, where on the allegation
of abduction of seven persons by Deputy Superintendent of Police
and considering the seriousness of allegations made in the said case,
the Hon'ble Supreme Court entrusted the investigation to CBI.
30. In Advocates Association, Bangalore v. Union of India12
while dealing with question of transfer of an investigation from the
State Police to the CBI in the context of an ugly incident involving
. 1994 (Supp) (1) SCC 143
. (1994) 6 SCC 275
. (2013) 10 SCC 611
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advocates, police and media persons within the Bangalore City Civil
Court Complex, where the State has appointed DIG, CID to look
into the matter and High Court has constituted Special Investigation
Team, the Hon'ble Supreme Court considering the seriousness of
incident and allegations leveled against the officials of State Police
entrusted the investigation to CBI on the ground that the delay in
setting up of SIT was sufficient to warrant such transfer of
investigation to CBI.
FINDING AND ANALYSIS:
31. In view of the law laid down by the Hon'ble Apex Court and
this Court in the above cited judgments, coming to the facts of the
case on hand, the petitioner herein, legal professional, sought
entrustment of investigation to CBI on the ground that there are
specific allegations against the higher officials of police including
respondent Nos.8 to 11 i.e. ACP, DCP and Additional Deputy
Commissioner of Police, Sub-Inspector of Police of CCS,
Hyderabad. According to the petitioner, though the crime was
registered on 10.04.2019, the police have not completed the
investigation so far. Several political leaders of ruling party
including other political parties and higher police officials are
having personal grudge against the petitioner for filing civil
complaints under Section 200 Cr.P.C. and writ petitions which
involves the land issue of crores of rupees. He has narrated several
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facts with regard to the same at length in the affidavit filed
in support of the present writ petition. According to him, attack was
made on him earlier and his father was also died during custodial
interrogation. With the said contentions, he sought entrustment of
investigation to CBI.
32. It is the contention of respondents that the petitioner herein is
an accused in four cases stated supra and all the said cases are
pending with CCS, Hyderabad. Respondent Nos.8 to 11 are the
Investigating Officers in the said cases. The police have already
arrested the petitioner and others in the above said cases and
therefore, the petitioner to take revenge against them and to divert
the investigation, made certain false allegations against the said
officials i.e. respondent Nos.8 to 11. The petitioner herein is not
cooperating with the Investigating Officer in concluding the
investigation. In the counter affidavit filed by respondent Nos.6
and 7, they have specifically mentioned with regard to the efforts
made by them in conducting investigation by making calls, sending
notices under section 91 and 160 Cr.P.C. to the petitioner herein
with request him to appear before the Investigating Officer for the
purpose of recording statement under Section 161 Cr.P.C. The
petitioner herein is not cooperating with the Investigating Officer in
concluding the investigation. They have also filed copies of said
notices, postal receipts, photographs etc. The respondents have also
filed panchanama to show that in the presence of two mediators
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they have affixed notice under Section 91/160 Cr.P.C. on the house
of the petitioner. Thus, there are allegations and counter allegations
against the petitioner and respondent Nos. 8 to 11.
33. As stated above, the petitioner himself filed the above stated
additional affidavit vide USR No.11303 praying this Court to dismiss
the present writ petition against respondent Nos.8 to 22 as not pressed.
Considering the said affidavit, granting liberty as sought by the
petitioner this Writ Petition is dismissed against respondent Nos.8 to
22 as not pressed.
34. There is no dispute that this Court under Article 226 of
Constitution is having power to entrust the investigation to any
independent agency including CBI. The said principle was also laid
down by the Apex Court in the judgments referred supra.
As held by the Hon'ble Apex Court in Arab Ranjan Goswami's
Case that transfer of investigation to CBI is not a matter of routine, in
extraordinary circumstances by using powers of this Court sparingly
in exceptional circumstances, the investigation has to be entrusted to
CBI.
35. As per the counter affidavit of respondent No.6, despite best
efforts and also serving notice under Section 160 Cr.P.C. on
23.04.2019, 23.04.2019 and 03.05.2019 and pasting notice on the
house of the petitioner on 09.08.2019, he is not cooperating with the
Investigating Officer to record his statement. With great difficulty,
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they have recorded the statement of the petitioner consisting 16 pages
and entire recording of statement of the petitioner under Section 161
Cr.P.C. was videographed. They have also filed CD of the same
before this Court along with memo vide USR No.11558, dated
23.02.2021. They have also filed copies of notice dated 03.04.2019,
23.04.2019, 29.04.2019, 08.12.2020 and copy of letter addressed to
the learned Magistrate dated 19.08.2019.
36. In this case, it is also relevant to refer Chapter XII of Cr.P.C.
which deals with information to the police and their powers to
investigate. Section 156 Cr.P.C. deals with police powers to
investigate the cognizable cases. The Hon'ble Apex Court in Sakiri
Vasu (1 Supra) dealt with said powers of police officer in Chapter XII
of Cr.P.C. and also entrustment of investigation to CBI and held as
under:
"28. It is true that alternative remedy is not an
absolute bar to a writ petition, but it is equally well settled
that if there is an alternative remedy the High Court should
not ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and
another 2003 (6) SCC 195 (vide para 13), it has been
observed by this Court that a Magistrate cannot interfere
with the investigation by the police. However, in our
opinion, the ratio of this decision would only apply when a
proper investigation is being done by the police. If the
Magistrate on an application under Section 156(3) Cr.P.C. is
satisfied that proper investigation has not been done, or is
not being done by the officer-in-charge of the concerned
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police station, he can certainly direct the officer in charge of
the police station to make a proper investigation and can
further monitor the same (though he should not himself
investigate).
30. It may be further mentioned that in view of
Section 36 Cr.P.C. if a person is aggrieved that a proper
investigation has not been made by the officer-in-charge of
the concerned police station, such aggrieved person can
approach the Superintendent of Police or other police officer
superior in rank to the officer-in-charge of the police station
and such superior officer can, if he so wishes, do the
investigation vide CBI vs. State of Rajasthan and another
2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh
AIR 1961 SC 1117 etc. Also, the State Government is
competent to direct the Inspector General, Vigilance to take
over the investigation of a cognizable offence registered at a
police station vide State of Bihar vs. A.C. Saldanna
31. No doubt the Magistrate cannot order investigation by
the CBI vide CBI vs. State of Rajasthan and another (Supra),
but this Court or the High Court has power under Article
136 or Article 226 to order investigation by the CBI. That,
however should be done only in some rare and exceptional
case, otherwise, the CBI would be flooded with a large
number of cases and would find it impossible to properly
investigate all of them.
32. In the present case, there was an investigation by the
G.R.P., Mathura and also two Courts of Inquiry held by the
Army authorities and they found that it was a case of
suicide. Hence, in our opinion, the High Court was justified
in rejecting the prayer for a CBI inquiry.
33. In Secretary, Minor Irrigation & Rural Engineering
Services U.P. and others vs. Sahngoo Ram Arya and another
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2002 (5) SCC 521 (vide para 6) , this Court observed that
although the High Court has power to order a CBI inquiry,
that power should only be exercised if the High Court after
considering the material on record comes to a conclusion
that such material discloses prima facie a case calling for
investigation by the CBI or by any other similar agency. A
CBI inquiry cannot be ordered as a matter of routine or
merely because the party makes some allegation.
34. In the present case, we are of the opinion that the
material on record does not disclose a prima facie case
calling for an investigation by the CBI. The mere allegation
of the appellant that his son was murdered because he had
discovered some corruption cannot, in our opinion, justify a
CBI inquiry, particularly when inquiries were held by the
Army authorities as well as by the G.R.P. at Mathura, which
revealed that it was a case of suicide."
37. In view of the same, it is relevant to note that the
Investigating Officer in crime No.103 of 2019 filed letter addressed
to learned XII Additional Chief Metropolitan Magistrate, Nampally
narrating the entire facts and also fact that the petitioner is not
cooperating with the Investigating Officer in completing the
investigation by recording his statement under Section 161 Cr.P.C.
requested the learned Magistrate to give instructions to
victim/injured, the petitioner herein to cooperate with the
investigation and direct him to depose his statement under Section
161 Cr.P.C. The petitioner herein did not avail the procedure laid
down in Chapter XII of Cr.P.C. He has not filed any memo or
petition before the concerned Magistrate complaining about the
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action of Investigating Officer in not completing the investigation
and in not conducting the investigation in a fair and transparent
manner. He has not availed said recourse.
38. It is relevant to mention that the petitioner herein is a legal
professional. It is also stated that he has filed several complaints
under Section 200 Cr.P.C. complaining that the police refused to
register the complaints lodged by his clients for various offences
and that he has filed several petitions before criminal Courts, this
Court and the Hon'ble Apex Court. Surprisingly, he has not availed
the procedure laid down under Section 156 (3) Cr.P.C. in his own
case, ventilating his grievance of non-conducting of investigation in
a fair and transparent manner.
39. As stated supra, the petitioner herein has involved in the
following cases:
1. Crime No.235 of 2016, under Sections 420, 468, 471 IPC
of CCS, Hyderabad.
2. Crime No.27 of 2017 under Sections 447, 420, 468, 471,
120B, 506 r/w.34 IPC of CCS, Hyderabad.
3. Crime No.35 of 2017 under Sections 420, 468, 471 IPC
of CCS, Hyderabad.
4. Crime No.49 of 2017 U/s.468, 471, 420 IPC of CCS,
Hyderabad.
40. In view of the antecedents of the petitioner, and that he has
not availed the procedure laid down under Chapter XII of Cr.P.C.,
he cannot seek entrustment of investigation to CBI. Investigation
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cannot be entrusted to CBI in a routine manner. In rarest of rate
cases, investigation can be entrusted to CBI. The respondent police
have filed sufficient material to show that they have made efforts to
conclude the investigation in Crime No.103 of 2019 by serving
notices etc., on the petitioner with a request to co-operate with the
Investigating Officer by giving his statement under section - 161 of
Cr.P.C. It is also relevant to note that just because, the petitioner
made certain allegations against respondent Nos.8 to 11, police
officials of CCS, Hyderabad, who are Investigating Officers in the
above said crime registered against the petitioner, investigation
cannot be entrusted to CBI.
41. Though this Court is having power to entrust investigation to
CBI by invoking its extraordinary power under Article - 226 of the
Constitution of India, it has to be used sparingly in exceptional
circumstances. But, it is not a case where such exceptional
circumstance that exists, to entrust the investigation to CBI.
42. There are allegations and counter allegations against each
other by the petitioner and respondent-police. Considering the said
facts and also fact that in the complaint itself the name of Mr. K.N.
Vijay Kumar, A.C.P., CCS, Hyderabad, has been mentioned by
brother-in-law of the petitioner, conducting of investigation in crime
No.103 of 2019 by an Officer of the rank of S.I. or Inspector of
Police of the State Police is not justified. Photographs filed by the
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petitioner would show that he has received grievous injuries. In
view of the said facts and circumstances of the case, it is not a rarest
of rare case, to order entrustment of investigation to CBI and the
petitioner herein failed to make out any circumstances or ground to
entrust the investigation to CBI. Therefore, this Court feels it
necessary that investigation has to be conducted by the Officer
above rank of A.C.P. Therefore, investigation has to be entrusted to
Deputy Commissioner of Police (D.C.P.) concerned i.e. Deputy
Commissioner of Police, Central Zone, Hyderabad.
43. Accordingly, the writ petition is disposed of entrusting the
investigation in crime No.103 of 2019 pending on the file of
Nampally Police Station to the Deputy Commissioner of Police
(D.C.P.), Central Zone, Hyderabad, who shall conduct fair and
transparent investigation in the said crime. The petitioner shall
cooperate with the Investigating Officer by furnishing information
and documents as sought by him in concluding the investigation.
The petitioner shall cooperate with the D.C.P. Central Zone by
giving his statement under Section 161 Cr.P.C. which was
incomplete. The Sub-Inspector of Police, the Investigating Officer
in Cr.No.103 of 2019 is directed to handover the file to the D.C.P.
Central Zone, Hyderabad forthwith. Considering the fact that crime
was registered on 10.04.2019 and allegation of attempt to murder,
offence under Section 307 read with Section 34 IPC, the D.C.P.
Central Zone is directed to complete the investigation in a fair and
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transparent manner as expeditiously as possible. Liberty is granted
to the D.C.P. Central Zone to bring to the notice of this Court if the
petitioner (LW.2) or other witnesses fails to co-operate with him in
concluding the investigation in the said crime.
44. Further, this Writ Petition is dismissed against respondent
Nos.8 to 22 as not pressed. 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
Date: -06-2021
Note:
L.R. Copy to be marked
(B/o)
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HONOURABLE SRI JUSTICE K.LAKSHMAN
WRIT PETITION No.8201 OF 2019
DATED: 06.2021
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