Telangana High Court
Ramchandra Bharahti Satish ... vs The State Of Telangana on 26 December, 2022
Bench: B.Vijaysen Reddy
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
***
WRIT PETITION Nos.39767, 40733, 42228, 43144 and
43339 of 2022
Between:
Bharatiya Janata Party & others ... Petitioners
v.
The State of Telangana,
Rep. by its Principal Secretary
Home Department,
Secretariat, Hyderabad & others ... Respondents
DATE OF ORDER PRONOUNCED: 26-12-2022
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
1. Whether Reporters of Local newpapers
may be allowed to see the Judgments? : No
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
______________________
B. VIJAYSEN REDDY, J
* HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY
+ WRIT PETITION Nos.39767, 40733, 42228,
43144 and 43339 of 2022
% Date: 26-12-2022
# Bharatiya Janata Party & others .. Petitioners
v.
$ The State of Telangana,
Rep. by its Principal Secretary
Home Department,
Secretariat, Hyderabad & others .. Respondents
! Counsel for the Petitioners : Mr. J. Prabhakar,
W.P. No.39767 of 2022 Senior Counsel, appearing for
Mr. M. Vishnuvardhan Reddy,
learned counsel
W.P. No.40733 of 2022 Mr. Mahesh Jethmalani,
Senior Counsel, appearing for
Mr. M.V.V. Baswa Raj,
learned counsel
W.P. No.42228 of 2022 Mr. Uday Holla,
and 43144 of 2022 Senior Counsel appearing for
Mr. Ponnam Ashok Goud and
Mr. V. Ram Mohan Reddy,
learned counsel Mr. P.P. Hegde and
W.P. No.43339 of 2022 Mr. S.D. Sanjay, senior
Senior Counsel appearing for
Ms. Bandaru Hima Varshini,
learned counsel
^ Counsel for the respondents : Mr. Dushyanth Dave,
Senior Counsel, appearing for
Advocate General for the
State of Telangana;
Advocate General and
Additional Advocate General
for the State of Telangana
(official respondents of the State in
all the writ petitions);
Mr. Gadi Praveen Kumar,
Deputy Solicitor General for India
appearing for Union of India;
Mr. A. Prabhakar Rao,
learned counsel for de facto complainant
< GIST:
> HEAD NOTE:
? CASES REFERRED:
1. (2014) 8 SCC 273
2. (2010) 3 SCC 571
3. (2020) 20 SCC 184
4. (2010) 12 SCC 254
5. 2018 (17) SCC 627
6. (2016) 3 SCC 135
7. 2014 (2) SCC 1
8. (2018) 10 SCC 753
9. 2021 SCC OnLine SC 315
10. 1992 Supp (1) SCC 222
11. 1992 Supp (1) SCC 335
12. (2008) 3 SCC 542
13. (2020) 14 SCC 12
14. (1978) 1 SCC 405
15. (1967) 3 SCR 19 : AIR 1967 SC 1445 : 1967 Cri LJ 1218
16. 1998(4) SCC 626
17. (1985) 1 SCC 260 : 1985 SCC (Tax) 75
18. (2012) 9 SCC 460
19. 2014 (8) SCC 768
20. (2016) 1 SCC 207
21. 1993 Supp (4) SCC 46
22. 1996 SCC OnLine Kar 154
23. (2013) 5 SCC 762
24. (2019) 15 SCC 470
25. 2022 SCC OnLine Cal 3361
26. (2010) 2 SCC 200
C/15
HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY
W.P. Nos.39767, 40733, 42228, 43144 & 43339 OF 2022
COMMON ORDER :
1. F.I.R. No.455 of 2022 was registered for the offences
punishable under Sections 120-B and 171-B read with Sections 171-A
and 34 of the Indian Penal Code 1860 (for short 'IPC') and Section 8 of
the Prevention of Corruption Act 1988 (for short 'PC Act'), on the file of
the Station House Officer, Moinabad Police Station, Cyberabad Police
Commissionerate on a report dated 26.10.2022 lodged by respondent
No.8 in W.P. No.39767 of 2022. The said report is as under:
"I, Pilot Rohit Reddy, MLA, Tandur Assembly
Constituency of Vikarabad District, inform you that I am
an MLA from TRS party and representing the above
constituency. It is to further inform you that on
26-09-2022, one Ramachandra Bharati @ Satish Sharma
native of Delhi and one Nanda Kumar resident of
Hyderabad both of them belonging to BJP met me and
negotiated with me to not to contest as candidate from
TRS party and to join in BJP by resigning from TRS party
and to contest in the next elections from BJP for which
they offered me an amount of Rs.100 Crores (Hundred
Crores) and also offered to give Central Government civil
contract works and other High Central Government
positions for monetary benefits and lured me to join in
BJP. They also stated that if I am not joining in BJP there
will be criminal case and raids by E.D./CBI and the
Telangana Government led by TRS party will be toppled
by them. Since the above inducement of bribe by a
political party to me is unethical, undemocratic and
encouraging corruption and polluting the Politics,
I decided not to entertain such unethical practice by the
above persons. Today i.e. on 26-10-2022, they again
contacted me and informed me that they are coming in the
afternoon hours to my farmhouse located at Azeez Nagar,
Moinabad for negotiation and also informed me to
mobilise some other TRS MLAs for offering them bribe of
Rs.50 Crores each to join BJP. They also further induced
me and other MLAs to receive amounts and to discharge
their public duties improperly and dishonestly so that the
Telangana Government led by TRS party is destabilized.
They informed that three persons namely Ramachandra
Bharati @ Satish Sharma of Delhi, one Nanda Kumar and
one Simhayaji Swamy of Tirupathi would come to my
farm house to finalize the deal of joining in BJP by
resigning from TRS party. Therefore, I request you to
kindly take necessary legal action against the above
persons and the persons behind this conspiracy for
offering me bribe to resign from TRS and also to join in
BJP by indulging in unethical and undemocratic ways of
offering huge amounts as bribe."
W.P. No.39767 of 2022 :
2.1. This writ petition is filed by the petitioner - Bharatiya
Janata Party, Telangana, represented by its State General Secretary Mr.
Gujjula Premender Reddy on 27.10.2022 seeking writ of mandamus
declaring action of the respondents in undertaking biased and unfair
investigation in F.I.R. No.455 of 2022 with a sole intention to frame the
petitioner political party and damage its reputation at the instance of the
ruling party dispensation as being illegal, arbitrary and in gross violation
of Articles 14 and 21 of the Constitution of India and also contrary to the
settled principles of free and fair investigation and consequently to
transfer the investigation in F.I.R. No.455 of 2022 from the file of
respondent No.5 to respondent No.7 - the Central Bureau of
Investigation, represented by its Director, New Delhi or to constitute a
Special Investigation Team (SIT) to conduct enquiry in the said crime in
a free and fair manner.
BRIEF AVERMENTS :
2.2. The election commission announced 03.11.2022 as the
date for bye-election for 93 - Munugode Assembly Constituency and
counting of votes was scheduled on 06.11.2022 vide its schedule for bye-
election No.ECI/PN/73/2022 dated 03.10.2022. During campaign, as the
BJP Party was getting overwhelming response from the public of
Munugode Assembly Constituency, the ruling TRS Party from the
beginning of the election campaign was trying to disrupt campaign of the
BJP Party and making several efforts to thwart campaigning in the
constituency, but, in spite of the same, the voters of Munugode were
responding positively towards the BJP Party. The BJP Party has
substantial base in the Telangana State and the people had been rooting
for the BJP party as the next alternative to the present dispensation of the
TRS Party. On 26.10.2022 evening, few channels, which publicly
support the ruling Government, carried out news that four (4) MLAs of
the ruling TRS Party are being tried to be lured and poached by the
members of the BJP to join the BJP and discussions regarding the same
are happening at a farmhouse in Moinabad. The said news was
repeatedly aired in the said few channels giving out details of the alleged
operation. Thereafter, in the late hours of 26.10.2022, respondent No.2
along with respondent Nos.3 and 4 - the Commissioner of Police
Cyberabad Commissionerate, Gachibowli, Hyderabad and the Assistant
Commissioner of Police, Rajendranagar Division, Rajendranagar,
Hyderabad respectively arrived at the said farmhouse in Moinabad.
Even before the police have arrived at the said farmhouse, certain news
channels were already present at the farmhouse and were telecasting live
pictures from the farmhouse. Upon respondent No.3 and other officials
visiting the farmhouse and on a preliminary search and enquiry at the
farmhouse, police apprehended three (3) persons alleged to be workers
of the BJP as they were allegedly luring the four (4) TRS MLAs to join
its party.
2.3. The four (4) TRS MLAs were left scot free and
surprisingly escorted by the respondents to the Hon'ble the Chief
Minister's residence at Pragathi Bhavan. Thereafter, respondent No.3
stated in a press meet that the three accused have offered four TRS
MLAs a Rs.100 crores cash each to join the BJP in the wake of
Munugode bye-election. On further enquiry, it was revealed that
respondent No.8 - Mr. Pilot Rohith Reddy, who is an MLA from Tandur
Assembly Constituency belonging to TRS Party, lodged a complaint on
26.10.2022 at 11.30 a.m. to the Station House Officer, Moinabad
alleging that the accused persons have approached him on 26.09.2022
and tried to lure him to join the BJP by resigning from TRS Party and to
contest in the next elections from BJP for which he would be offered a
huge amount of Rs.100 crores; and consequently FIR No.455 of 2022
was registered with Moinabad Police Station.
2.4. The above complaint is politically motivated with ulterior
motive to defame and demoralise the BJP in the ensuing by-elections of
Munugode Assembly Constituency. The complaint is lodged by
respondent No.8 is staged and is firmly believed by the BJP that the
complaint has been lodged at the behest of the Hon'ble the Chief
Minister Mr. K. Chandra Shekhar Rao, who is also President of the TRS
Party, other State Ministers and senior leaders of the TRS Party. The
facts and motive behind lodging the complaint can only be unearthed by
conducting an enquiry either by the CBI or by the Special Investigation
Team (SIT) or by a sitting Judge of the High Court. The BJP fears that
investigation would not be conducted in a fair and unbiased manner by
the respondents, who are acting on the instructions of the State
Government, and therefore, the investigation may be transferred to a
neutral agency which is not under the control of the State Government.
WRIT PETITION No.40733 OF 2022
3.1. This writ petition is filed by accused Nos.1 to 3 viz.,
Ramchandra Bharathi alias Satish Sharma V.K., Kore Nandu Kumar
alias Nandu and D.P.S.K.V.N. Simhayaji respectively, in F.I.R. No.455
of 2022, seeking writ of mandamus declaring action of the respondents
in undertaking investigation in the said F.I.R. on the file of the Station
House Officer, Moinabad Police Station in biased and unfair manner as
illegal, arbitrary and in gross violation of Articles 14 and 21 of the
Constitution of India and also contrary to the settled principles of free
and fair investigation, and consequently to transfer the investigation in
F.I.R. No.455 of 2022 to respondent No.7 - the Central Bureau of
Investigation, represented by its Director, New Delhi or to constitute a
Special Investigation Team under the supervision of a sitting Judge for
free and fair investigation.
BRIEF AVERMENTS :
3.2. The political motivation in lodging the FIR is evident from
the fact that even before the raid was conducted by the respondents, an
officer of the rank of Commissioner of Police has addressed the Press
and media who were already present there. The MLAs were set free and
were escorted to Pragati Bhavan from the scene of offence i.e., to the
Chief Minister's official residence. A request was made by the ACP,
Rajendranagar Division, Cyberabad Commissionerate to remand the
petitioners in FIR No.455 of 2022. The Special Court for Anti
Corruption Bureau Cases, Hyderabad refused to accept the remand on
the premise that the procedure contemplated under Section 41-A of
Cr.P.C. and the guidelines issued by the Hon'ble Supreme Court in
Arnesh Kumar v. State of Bihar1 were not followed. By the order
dated 29.10.2022 in Criminal Revision Case No.699 of 2022 filed by the
respondents, a learned single Judge of this Court has set aside the order
dated 27.10.2022 by the respondents and the petitioners were directed to
surrender. The said order was challenged before the Supreme Court in
S.L.P. (Criminal) Diary No.34837 of 2022 and is pending adjudication.
Some audios were released by the media wherein conversations of
respondent No.8 and the accused could be heard which clearly show that
phones were tapped. The tapping of the phones is unauthorised and
hearing to private conversations of any person is in violation of the
provisions of the Indian Telegraphic Act.
(2014) 8 SCC 273
3.3. The investigation is done under close monitoring and
supervision of the ruling party, more particularly, under the guidance of
the Hon'ble the Chief Minister of Telangana State for political needs.
The investigation is not done in a fair manner. The right of the accused
for fair and unbiased investigation without interference of any political
party has been compromised. In the tussle between both the parties i.e.,
the TRS and the BJP, the petitioners are the sufferers. There is every
scope to fabricate the evidence, create false proofs to see that the accused
are convicted by the investigation agency for political gains of the ruling
party. The State Government is directly involved in the case and it is
necessary that a fair investigation is done, otherwise it would be in
violation of Article 21 of the Constitution of India.
W.P. No.42228 of 2022
4.1. This writ petition is filed by Bhusarapu Srinivas,
Advocate, seeking writ of mandamus declaring the Notice No.455/CR-
RJNR/2022 dated 16.11.2022 under Section 41-A of Cr.P.C. issued to
him by respondent No.3 - the Assistant Commissioner of Police, Special
Investigation Team, Police Commissionerate, Banjara Hills, Hyderabad
though he is not an accused as illegal, arbitrary, without following due
procedure, unconstitutional, contrary to the provisions of the Cr.P.C.,
violative of principles of natural justice and Article 21 of the
Constitution of India, and consequently to set aside the said notice and
direct the respondents not to insist the petitioner to appear before the SIT
without following due process of law.
BRIEF AVERMENTS :
4.2. On 17.11.2022, the Inspector of Police, Moinabad Police
Station came to his residence at Sanathnagar, Hyderabad, and served
notice under Section 41-A of Cr.P.C. vide notice No.455/CR-
RJNR/2022 dated 16.11.2022 in Crime No.455 of 2022. The petitioner
is neither accused nor suspect in the said crime. The impugned notice is
not maintainable as the notice under Section 41-A of Cr.P.C. is related to
accused who are involved in the crime. The said notice is unsustainable
as the petitioner cannot be treated as an accused. The police are acting at
the instance of the political leaders.
W.P. No.43144 of 2022 :
5.1. This writ petition is also filed by Bhusarapu Srinivas,
Advocate, seeking writ of mandamus declaring action of respondent
No.1 in issuing G.O. Ms. No.63 dated 09.11.2022 as illegal, arbitrary
and in violation of Articles 14 and 21 of the Constitution of India, and
consequently to set aside the said G.O. and handover the investigation in
Crime No.455 of 2022 to respondent No.7 - Central Bureau of
Investigation, New Delhi for fair and free investigation.
BRIEF AVERMENTS :
5.2. As per the remand report of respondent Nos.9 to 11
(accused Nos.1 to 3), respondent No.5 - the Station House Officer,
Moinabad Police Station, Ranga Reddy District has conducted an
observation panchanama and seizure proceedings on 26.10.2022 at 12.30
hours at the farmhouse of respondent No.8 and completed the
proceedings at 14.30 hours and again conducted seizure panchanama on
the same day at 19.00 hours onwards and completed the proceedings at
08.30 hours on 27.10.2022.
5.3. As per the observation panchanama, the Mandal Revenue
Inspector (MRI) and the Assistant Mandal Revenue Inspector (AMRI)
have acted as mediators between 12.30 hours to 14.30 hours on
26.10.2022, however, both of them have signed on 27.10.2022 which
clearly show that respondent No.5 conducted false observation
panchanama. The FIR was registered at 11.30 hours on 26.10.2022 and
date and dispatch of the FIR from Police Station to the Court was shown
as 26.10.2022 at 12.30 hours. But, as per the Court seal, the FIR has
reached the Court on 27.10.2022 morning. The distance from Moinabad
Police Station to Nampally Criminal Courts is about 25 KMs, but it took
18 hours to send the FIR to the Court for the reasons known to
respondent No.5 which clearly shows lapse on the part of respondent
No.5 in properly investigating the case.
5.4. As seen from the remand report, during the course of
seizure panchanama, respondent No.5 has seized mobile phones of
respondent Nos.9 to 11 - accused. As per observation panchanama,
respondent No.5 installed some electronic spy gadgets at the farmhouse
of respondent No.8. Subsequently, in the seizure proceedings, the
electronic spy gadgets were seized by respondent No.5 and the same
were marked as C-1 to C-6 in the remand report of the accused.
Surprisingly, respondent Nos.4 and 5 have transferred the data from C1
to C6 into pen-drives and handed-over the same to the Chief Minister of
the Telangana State who is not an investigation officer or head of the
department. The Chief Minister has arranged a press conference, shown
the pen drives to the media, transferred the data from the said pen drives
into several other pen drives and posted the same to the Hon'ble the
Chief Justice, other Judges of the Supreme Court and the High Courts
and the political leaders which is against the free and fair investigation
contemplated under the Cr.P.C.
5.5. Respondent No.1 issued G.O.Ms.No.63 dated 09.11.2022
appointing respondent Nos.12, 13 and 14 as Members of the SIT.
The SIT issued notice under Section 41-A of Cr.P.C. to the petitioner on
17.11.2022 calling upon him to appear before it on 21.11.2022 at
10.30 a.m. The said notice was challenged by the petitioner before the
High Court vide W.P. No.42228 of 2022 and the High Court by the order
dated 19.11.2022 directed the petitioner to comply with the conditions
imposed under Section 41-A of Cr.P.C., and further directed that the
petitioner shall not be arrested until further orders.
5.6. As per the notice dated 16.11.2022, the petitioner appeared
before the SIT and on the same day, the SIT had issued another notice
under Section 41-A of Cr.P.C. mentioning that he has failed to produce
certain documents. The petitioner appeared before the SIT on
21.11.2022 and 22.11.2022. The petitioner was examined by the SIT for
more than 10 hours per day. The petitioner gave necessary information
and despite the same, the SIT is pressurising him to tell the name of
Mr. Bandi Sanjay Kumar, Member of Parliament, BJP President
Telangana Unit particularly and some other names of the BJP leaders.
The petitioner has submitted some documents on 22.11.2022 to the head
of the SIT which they acknowledged. The petitioner filed a memo
before the SIT to submit the video footage before this Court, but the SIT
failed to attest on the memo or produce the same before this Court when
W.P. No.42228 of 2022 filed by him came up for hearing on 23.11.2022.
The petitioner was enrolled as an advocate in 2002 and since then
practising as an Advocate at Karimnagar Courts. Only to defame his
reputation, more than 30 officers have come to his residence in his
absence with an intention to terrorise him for serving the notice under
Section 41-A of Cr.P.C. There was no necessity for the police to come
with such huge force of 30 officers. As the petitioner did not budge to
the pressure of the police, they have implicated the petitioner as accused
No.7 in the crime. Notice under Section 41-A of Cr.P.C. was issued to
the petitioner though he was not an accused and without mentioning that
the petitioner is suspect in the crime. As of now, even a single evidence
is not collected against the petitioner except his booking a ticket for
respondent No.11 (accused No.3) at Hyderabad. On 22.10.2022, a pooja
was conducted by respondent No.11 at Hyderabad. The petitioner
attended the pooja and he took ticket for respondent No.11 to travel from
Hyderabad to Tirupati on 23.10.2022 and also booked return flight ticket
for 26.10.2022. Respondent Nos.4 and 5 have failed to conduct
preliminary investigation on 26.10.2022 and 27.10.2022. Further, they
leaked some important information to the Hon'ble the Chief Minister
who in turn conducted a Press Meet and sent pen-drives to all the
political leaders in India and the Hon'ble the Chief Justice of India and
the Judges of the Hon'ble Supreme Court and the High Courts. The SIT
was constituted by respondent No.1 vide G.O. Ms. No.63 dated
09.11.2022 to cover up lapses on the part of the Hon'ble the Chief
Minister.
W.P. No.43339 of 2022 :
6.1. This writ petition is filed by Mr. Tushar Vellapally seeking
writ of mandamus declaring the actions and the investigating pertaining
to the FIR No.455 of 2022 registered at Moinabad Police Station by
respondent No.3 - SIT constituted by respondent No.1 - the State of
Telangana, Home Department as arbitrary, unconstitutional, ultra vires
the provisions of Cr.P.C. and violation of constitutional principles and
consequently set aside all such actions and direct that the investigation in
this matter be conducted by respondent No.9 - CBI, New Delhi for free
and fair investigation.
BRIEF AVERMENTS :
6.2. There is no recovery of money during seizure panchanama
conducted on 26.10.2022 and completed on 27.10.2022. The FIR does
not disclose any cognizable offences. The exercise was pre-meditated to
achieve oblique motive of political game. The episode has taken place
during climax of Munugode bye-elections. As per the remand report of
respondent Nos.11 to 13, respondent No.4 conducted an observation
panchanama and seizure proceedings on 26.10.2022 at 12.30 hours, at
the farmhouse of respondent No.8 and completed the same at
14.30 hours and conducted seizure panchanama on 26.10.2022 from
19.00 hours onwards and completed the proceedings at 08.30 hours on
27.10.2022. Surprisingly, MRI and AMRI, who acted as mediators
during 12.30 hours to 14.30 hours on 26.10.2022, signed on the
document on 27.10.2022.
6.3. Respondent No.4 conducted false observation
panchanama. The FIR was registered at 11.30 hours on 26.10.2022 with
Moinabad Police Station and it reached the Court on the next day i.e.,
27.10.2022. Though the FIR was dispatched at 12.30 hours on
26.10.2022. Respondent No.4 seized mobile phones of respondent
Nos.11 to 13 - accused and transferred the entire data from C-1 to C-6
into pen drives and handed over the same to the Hon'ble the Chief
Minister of the Telangana State who is not an investigation officer or
head of the department. Respondent Nos.4 and 5 acted at the behest of
respondent No.7 and sent CDs and pre-designed materials to the Hon'ble
the Chief Justice of India and the High Courts.
6.4. Respondent No.1 issued G.O. Ms. No.63 dated 09.11.2022
by appointing certain officers as Members of the SIT. Constitution of
SIT is to immune the presence of respondent Nos.7 and 8 and other
office bearers of the Ruling Party of the State. Constitution of SIT is bad
in law and against the Cr.P.C.
6.5. Respondent No.3 issued notice under Section 41-A of
Cr.P.C. to the petitioner on 16.11.2022 which was received by the
petitioner on the same day at 6.00 p.m. The petitioner was directed to
appear before the SIT on 21.11.2022 at 10.30 a.m. The petitioner replied
on 21.11.2022 seeking time to appear before the investigation team on
health grounds and requested for a date after two weeks. The petitioner
was surprised to see from print media that news of LOC was issued
against him. Image of the petitioner was tarnished resulting in mental
agony to him. The petitioner is a law abiding citizen and President of the
Bharatiya Dharam Jan Sena (BDJS). There is a dire need for a premium
investigation agency like CBI which is expert and competent to carry out
free and fair investigation in this politically sensitive matter as the State
has admitted that the present case is a high profile and sensational in
nature and involves specific skill sets to carry out investigation.
Respondent No.7, the Hon'ble the Chief Minister of the Telangana State
is an interested party in the matter. There is not even an iota of evidence
against the petitioner and despite the same, notice under Section 41-A of
Cr.P.C. was issued to him. The investigation is monitored by the Chief
Minister.
Brief averments in the counter affidavit filed by respondent Nos.1 to
5 deposed by respondent No.4 - Assistant Commissioner of Police,
Rajendra Nagar, Cyberabad, in W.P. No.40733 of 2022:
7.1. During pendency of the writ appeal, SIT was constituted
by the Government vide G.O.Ms.No.63, Home (Legal) Department
dated 09.11.2022 headed by Mr. C.V. Anand, I.P.S., Commissioner of
Police, Hyderabad City, and six others viz., (1) Mrs. Rema Rajeshwari,
IPS, Superintendent of Police, Nalgonda, (2) Mr. Kalmeshwar
Shingenavar, IPS, Deputy Commissioner of Police, Crimes, Cyberabad,
(3) Mr. R. Jagadishwar Reddy, Deputy Commissioner of Police,
Shamshabad, Cyberabad, (4) Mr. N. Venakteshwarlu, Superintendent of
Police, Narayanpet, (5) Mr. B. Gangadhar, Assistant Commissioner of
Police, Rajendranagar Division, Cyberabad, and (6) Mr. Laxmi Reddy,
Station House Officer, Moinabad Police Station, Cyberabad.
7.2. The SIT has proceeded to investigate Crime No.455 of
2022. In the meanwhile, bail application of the petitioners before the
Special Court was dismissed on 14.11.2022 and they were lodged in
Chanchalguda Jail. The concerned Court granted custody of the
petitioners to the police for two days i.e., 10.11.2022 and 11.11.2022.
The order passed by the Division Bench in W.A. No.742 of 2022 dated
15.11.2022 was challenged by the petitioners before the Hon'ble
Supreme Court by filing S.L.P. and they have also filed S.L.P.
(Criminal) No.10356 of 2022 against the order passed in Criminal R.C.
No.699 of 2022 dated 29.10.2022. By the common order dated
21.11.2022, the Hon'ble Supreme Court disposed of the S.L.P. holding
that the observations made in paragraph No.42 of the order in Criminal
R.C. No.699 of 2022 dated 29.10.2022 are not in tune with the
observations made in Arnesh Kumar's case (Supra 1).
7.3. On receipt of complaint at 11.30 hours on 26.10.2022
from Mr. Pilot Rohit Reddy, M.L.A., Tandur Assembly
Constituency, Crime No.455 of 2022 was registered. Since the
offences include Section 8 of the PC Act, investigation was taken
up by respondent No.4 - the A.C.P., Rajendranagar. The
investigation officer recorded statement of the de facto
complainant, secured presence of the mediators, conducted scene
of crime observation panchanama, seized pre-arranged electronic
spy gadgets from the hall along with two voice recorders from the
de facto complainant under seizure panchanama. On playing the
seized video recorders before accused Nos.1 to 3, it clearly
disclosed the conversation of offering Rs.50 crores to each of the
MLAs of TRS party besides offer of other monetary benefits by
accused Nos.1 to 3 if the MLAs get shifted to BJP. It also contains
voice of accused No.1 stating that they have done defection in
similar manner in Karnataka, Delhi and other States.
Voice recorders further disclose the phone call made by accused
No.1 to accused No. 5 - Tushar (petitioner in W.P. No.43339 of
2022). In the conversation, it was clear that name of Mr. Santosh,
BJP (accused No.4) and his importance in the national party etc.,
was spoken.
7.4. When questioned about the recorded conversation,
accused Nos.1 to 3 remained silent and did not speak anything.
On enquiry by the investigating officer, accused Nos.1 to 3
produced their mobile phones which were marked as C-7 to C-10.
The screenshots / material relating to the case found in the mobile
phones were taken print outs and seized in the form of Made up file
Nos.1 to 4 respectively. On searching the car of the accused
parked outside the hall, the investigating officer found some
papers, a diary and a laptop etc., in the rear seat of the car.
On verification of the papers, there were 27 sheets containing
information relating to Telangana politics, names of 50 MLAs of
TRS Party and Congress and related information, list of 119 MLAs
of Telangana State, information about Dr. Nandu Kumar Kore -
accused No.2 and his social activities relating to BJP. The vehicle
related documents of the Creta Car registered in the name of one
Mr. Dilip Kumar Gandavaram. The said papers were seized in the
form of made up file No.5 duly attested by the mediators and the
investigating officer.
7.5. Further one diary of 2022 was found in the rear side of
the above car. It has entries of journeys of accused No.1 during the
month of October 2022. Sheet pertains to 26.10.2022 has
handwritings reflecting as "Delhi to Hydeabad. Appointment and
meeting as directed by Nandu, Return to Delhi." The diary was
seized as made up file No.6. The laptop was seized by marking it
as C-11.
7.6. From the evidence collected during the course of
investigation, it was revealed that accused Nos.1 to 3 are found to
be attempting to overthrow democratically elected Governments
belonging to opposition political parties of BJP by unconstitutional
and undemocratic mechanism and means. Thus, accused Nos.1 to
3, with the assistance of other conspirators whom yet to be
identified, have hatched a larger criminal conspiracy to lure the
MLAs of TRS Party. As a part of their criminal conspiracy,
accused Nos.1 and 2 started negotiations with the de facto
complainant offering to pay Rs.100 crores to him and Rs.50 crores
to each MLAs whoever wishes to shift to BJP from TRS Party.
Accused Nos.1 and 2 criminally intimidated the de facto
complainant with the ED and the CBI raids if he did not accept the
proposal and also threatened to topple the ruling State Government.
The de facto complainant shared the information with his colleague
MLAs i.e., (1) Mr. Guvvala Balraj, (2) Mr. B. Harshavardhan
Reddy, and (3) Mr. Rega Kantha Rao who came forward to assist
him. Meanwhile, accused Nos.1and 2 contacted the de facto
complainant and informed that they would visit his farmhouse
along with accused No.3 on 26.10.2022. At about 15:10 hours,
accused Nos.1 to 3 reached the farmhouse of the de facto
complainant at Aziz Nagar village, Moinabad Mandal and started
negotiations with the de facto complainant to finalise the deal.
After sometime, the three MLAs arrived at the scene of crime and
joined the meeting to assist the de facto complainant. There were
discussions between the MLAs and accused persons about luring of
TRS MLAs to shift to BJP. After meeting was over at about
18:30 hours, accused Nos.1 to 3 were nabbed, incriminating
material relating to commission of offence was seized and seizure
panchanama was drawn. The activities of accused Nos.1 to 3
prima facie discloses offences punishable under Sections 120-B
171-B read with Section 171-E, 506 read with Section 34 of IPC
and Section 8 of PC Act. After complying with the formalities of
arrest, the accused were produced before the ACB Court.
The learned Judge refused to remand them to judicial custody on
the ground of violation of mandatory procedure under Section
41-A of Cr.P.C. and ordered for their release.
7.7. Aggrieved by the said order, the State filed Criminal
R.C. No.699 of 2022 which was allowed by the order dated
29.10.2022 directing the accused to surrender before the police and
to produce them before the concerned Magistrate.
7.8. There is no truth in the allegation that investigation is
being done in an unfair and biased manner. The bald allegations
are bereft of any material or supported by any material on record.
Respondent No.3 being superior officer visited place of offence at
later hours but not before the raid was conducted as alleged by the
petitioners. It is denied that the de facto complainant along with
other MLAs let free and were escorted to Pragathi Bhavan from the
scene of offence. It is further denied that the phones were being
trapped. The Constitution Bench of the Hon'ble Supreme Court in
State of West Bengal v. Committee for Protection of
Democratic Rights, West Bengal2 has laid down certain
(2010) 3 SCC 571
principles. In Rhea Chakraborty v. State of Bihar3 in Transfer
Petition (Criminal) No.225 of 2020, the Hon'ble Supreme Court by
the order dated 19.08.2022 held that transfer of investigation
cannot be routine exercise and should be done in exceptional
circumstances.
7.9. The Government has issued G.O. Ms. No.51 dated
30.08.2022 withdrawing all previous general consents issued by
the previous Governments for entrusting matters to the CBI.
The State is bound to act in accordance with law and action of the
State cannot be questioned. Voluminous evidence has been
gathered and role of each and every person in the matter of
conspiracy is being examined and suspects have been put on notice
under Section 41-A of Cr.P.C. Instead of appearing before the
investigating officers, the accused have challenged the notices
under Section 41-A of Cr.P.C. and had been avoiding lawful
process without justification and attempting to deviate
investigation by falsely invoking jurisdiction of this Court.
(2020) 20 SCC 184
8.1. Most of the averments in the counter affidavit filed in W.P.
No.39767 of 2022, W.P.No.43144 of 2022, 42228 and 43339 of 2022 are
similar to the averments in the counter affidavit filed in W.P. No.40733
of 2022, as such, need not be referred again to avoid repetition.
8.2. In the counter affidavit in W.P. No.39767 of 2022, it was
stated that mediators while signing seizure panchanama inadvertently put
the date as 27.10.2022 instead of 26.10.2022. In the counter affidavit in
W.P. No.43144 of 2022, it was further stated that during the course of
investigation, the SIT has collected scientific evidence and other
evidence, thereby prima facie case is made out against accused Nos.4, 5,
6 and 7, and therefore, they were arraigned as accused, and accordingly a
memo was filed by the investigating officer before the concerned Court
on 22.11.2022.
9. Heard Mr. J. Prabhakar, learned senior counsel, appearing
for Mr. M. Vishnuvardhan Reddy, learned counsel for the petitioner in
W.P. No.39767 of 2022; Mr. Mahesh Jethmalani, learned senior counsel,
appearing for Mr. M.V.V. Baswa Raj, learned counsel for the petitioners
in W.P. No.40733 of 2022; Mr. Uday Holla, learned senior counsel,
appearing for Mr. Ponnam Ashok Goud and Mr. V. Ram Mohan Reddy,
learned counsel for the petitioner in W.P. No.42228 of 2022 and 43144
of 2022; Mr. P.P. Hegde and Mr. S.D. Sanjay, learned senior counsel,
appearing for Ms. Bandaru Hima Varshini, learned counsel for the
petitioner in W.P. No.43339 of 2022; Mr. Dushyanth Dave, learned
senior counsel, appearing for learned Advocate General for the State of
Telangana; learned Advocate General and learned Additional Advocate
General for the State of Telangana (official respondents of the State in
all the writ petitions); Mr. Gadi Praveen Kumar, Deputy Solicitor
General for India appearing for Union of India; and Mr. A. Prabhakar
Rao, learned counsel for respondent No.8 - de facto complainant viz.,
Mr. Pilot Rohit Reddy, and perused the material on record.
Submissions of Mr. Mahesh Jethmalani, learned senior counsel,
appearing for the petitioner in W.P. No.40733 of 2022 :
10.1. F.I.R. No.455 of 2022 was registered with Moinabad
Police Station for the offences punishable under Sections 120-B, 171-B
read with 171-E and 506 read with Section 34 of IPC and Section 8 of
PC Act. All the offences are punishable with less than seven (7) years of
imprisonment. Sections 171-B and 171-E are covered under Chapter
IX-A of IPC dealing with the offences relating to elections.
The offences under Sections 171-B and 171-E are attracted only when
there is an allegation of bribing a voter while exercising voting right
which is not the case herein. There is total non-application of mind.
Thus, it can be seen, the very initiation of criminal process by registering
FIR No.455 of 2022 for the offences which are not attracted creates
doubt on the fairness and impartiality of the investigating authorities.
10.2. To attract the offence under Section 8 of the PC Act,
there should be motive to induce a public servant to perform improper
public duty and there should be mens rea involved, though it cannot be
denied that the MLAs are public servants. It is not stated as to what is
the public duty which is subverted by the accused. Section 8 of the PC
Act is not applicable. Assuming that bribe was intended to be paid, it is
not stated what is the public duty that was being performed by the
MLAs. Joining in another party is not a public duty, so also, it is not a
duty to State or community. None of the offences mentioned in the FIR
are attracted to the instant case. The investigation smacks of unfairness.
Article 21 of the Constitution of India protects not only rights of the
victims but also the accused. Both victim and accused are equally placed
in the context of fair and impartial investigation. There is a delay of one
month in reporting commission of offences. According to the informant,
the offer of bribe was made on 26.09.2022. Having waited for one
month, the report was lodged on 26.10.2022.
10.3. The circumstances and the events which are unfurled
indicate that everything was pre-meditated during this one month period
and at the instance of higher ups in the Government and political
dispensation, FIR was lodged. In criminal justice system, there was
always a presumption of innocence in favour of the accused. Public
flaunting of incidents and events caused prejudice to the accused.
Leaking of excerpts of investigation to the media is not unbiased and not
in accordance with the law and it was a serious lapse on the part of the
State dispensation and the Hon'ble the Chief Minister to which the
learned senior counsel appearing for the State has tendered apology in
W.A. No.749 of 2022.
10.4. Mr. Mahesh Jethmalani, learned senior counsel, relied on
the decisions of the Hon'ble Supreme Court in Babubhai v. State of
Gujarat4, Mohan Lal v. State of Gujarat5 and Pooja Pal v. Union of
India6.
10.5. The learned senior counsel submitted that stage of
investigation is not relevant factor to be considered for transferring
investigation. The police in the instant case have breached their
limits. There is no transparency. It may not be possible for the
accused to complain of unfairness after the investigation is completed.
There may be political compulsions for TRS party and there are
allegations of attempts being made to overthrow the present
dispensation. However, the accused herein are ordinary people.
The investigation is being conducted in a prejudicial manner.
The authorities have publicised the issue and have given colour of
political hangover. Despite all the offences are punishable with less
than seven years of imprisonment, the investigating officers have
violated the procedure prescribed under Section 41-A of Cr.P.C. and
the authoritative pronouncement of the Hon'ble Supreme Court in
Arnesh Kumar's case (Supra 1). The law on Section 41-A of Cr.P.C.
is very clear. In spite of the same, the investigation officers instead of
(2010) 12 SCC 254
2018 (17) SCC 627
(2016) 3 SCC 135
issuing notice under Section 41-A of Cr.P.C., produced the accused
for remand before the Special Court. The remand was refused. The
order of the Special Court was challenged before this Court in
Criminal Revision Case No.699 of 2022 and the same was allowed by
the order dated 15.11.2022. Thereafter, in S.L.P. (Criminal)
No.10356 of 2022 preferred by the accused, the Hon'ble Supreme
Court set aside the aforesaid order passed by this Court in Criminal
Revision Case No.699 of 2022 pointing out that there is violation of
the provision under Section 41-A of Cr.P.C. by the investigation
officers. The material on record clearly reveals that investigation
documents have been leaked directly or indirectly. The material
which is in possession of the police was found with some other
authorities, the Hon'ble the Chief Minister of Telangana and the
media. The petitioners are not insisting that there should be
investigation only by the CBI. This Court may exercise discretion and
transfer the investigation to any other agency.
Submissions of Mr. Dushyant Dave, learned senior counsel,
appearing for the respondents in W.P. No.40733 of 2022 :
11.1. The investigation is at the preliminary stage and no
case is made out warranting interference by this Court. There are
serious disputed questions of fact and normally, a Writ Court
would not interfere in such situations. Scuttling of investigation at
the initial stage is not in public interest. Merely because BJP,
which is a National Party, in involved, directly or indirectly, it
cannot be said that the matter has got nation wide political
ramifications. Poaching of MLA's is a serious issue and is an insult
to the Constitution. It breaks the federal fabric of the Constitution.
On the point of Constitutional morality, investigation should go on.
11.2. FIR was lodged on 26.10.2022. Police were bound to
investigate as per the law laid down by the Supreme Court in
Lalitha Kumari v. State of U.P.7. BJP approached this Court on
27.10.2022. It is the consistent stand of the BJP that it has got
nothing to do with the accused and on this sole ground, the writ
petition deserves to be dismissed at the threshold. The High Court
2014 (2) SCC 1
has to follow the principles of Constitution. The Special
Investigation Team (SIT) is conducting meticulous investigation
and there is damning evidence of involvement of the accused. The
petitioner should have an unimpeachable case seeking transfer of
investigation to CBI. No case is made out to transfer the case to
CBI. The pleadings are very vague. The press meet addressed by
the Chief Minister is regrettable. However, the same has not caused
any prejudice to the petitioner or the accused. The SIT is appointed
to investigate the case. There is no material placed before this
Court to say that the State Police are acting without any credibility.
The investigation is at the nascent stage. Malafides are not proved.
The petitioner has remedies available under the Criminal Procedure
Code, 1973. Given a chance, every accused alleges mala fides on
the part of the investigation. The grievance of the accused, if any,
will be decided at the appropriate stage by the Courts but not at the
stage of investigation. Functions of the police and judiciary are
complementary. Investigation cannot be interfered at the nascent
stage as held by the Hon'ble Supreme Court in Romila Thapar v.
Union of India8.
(2018) 10 SCC 753
11.3. The High Courts are bound to follow the orders of the
Supreme Court and inherent powers cannot be exercised arbitrarily.
Malafides and allegations cannot be mere assertions and they have
to be proved as held in Neeharika Infrastructure Pvt. Ltd. v.
State of Maharashtra9. BJP as an organization is not involved in
the criminal case. It is neither an accused nor an informant nor a
third party. It does not have locus standi to file this writ petition.
The transfer of investigation would be done only in the rarest of the
rare cases. The investigation is to be continued to unravel the truth
as democracy is sought to be stifled, interfered with and destroyed.
An attempt made to bribe the MLA's is a serious thing and shakes
the foundation of the democracy. The MLA's are performing
Constitutional duty. They receive pension, rail and Air travel
concession. Thus, the contention that the MLA's are not
performing official duty, within the meaning of Section 8 of the PC
Act is baseless and the same would be travesty of justice. Public
duty and official duty are interchangeable. Once the accused have
come before this Court, a third party does not have any locus standi
as held in Romila Thapar's case (Supra 8).
2021 SCC OnLine SC 315
11.4. There is no violation of Section 41-A Cr.P.C by the
investigation officer or SIT. The judgment in Arnesh Kumar's case
is not properly understood. There is no necessity to give gist of the
charge before issuing Section 41-A notice. The offences mentioned in
the FIR have taken place in the presence of the police officer. They
are cognizable and non-bailable and as such, the accused can straight
away be arrested. The observations in para 12 of Arnesh Kumar's
case have to be treated obiter and not binding precedent. Section 41-A
Cr.P.C has to be read in harmony with Sections 154 and 157 Cr.P.C
and cannot be read in isolation. The judiciary cannot interfere in the
investigation. There is ample evidence to proceed with the
investigation in the form of call records and CCTV footages. The writ
petition is filed in abuse of process of law.
11.5. Mr. Dushyant Dave, learned senior counsel, has also
relied on the following decisions of the Hon'ble Supreme Court:
1. State of Bihar v. P.P. Sharma, IAS10,
2. Haryana v. Bhajan Lal11
3. Divine Retreat Centre v. State of Kerala12
1992 Supp (1) SCC 222
1992 Supp (1) SCC 335
4. Romila Thapar's case (Supra 8)
5. Arnab Ranjan Goswami v. Union of India13
6. Mohinder Singh Gill v. The Chief Election Commissioner,
New Delhi14
7. Rajendra Prasad Jain v. Sheel Bhadra Yajee15
8. P.V. Narasimha Rao v. State (CBI/SPE)16
9. Assistant Collector of Central Excise, Chandan Nagar,
West Bengal v. Dunlop India Limited17, and
10. Amit Kapoor v. Ramesh Chander18
Submissions of Mr. Uday Holla, learned senior counsel, appearing
for the petitioner in WP No.43144 of 2022 :
12.1. Accused No.2 was released on bail in Crime No.455 of
2022. Immediately another crime was registered with the Banjara Hills
Police Station. The SIT officials, who are no way concerned with the
said FIR, came to the Banjara Hills Police Station and interrogated
accused No.2. Notice under Section 41-A of Cr.P.C. shall indicate
reasonable grounds. The petitioner was not an accused in F.I.R. No.455
of 2022 on the date when the notice under Section 41-A of Cr.P.C. was
(2008) 3 SCC 542
(2020) 14 SCC 12
(1978) 1 SCC 405
(1967) 3 SCR 19 : AIR 1967 SC 1445 : 1967 Cri LJ 1218
1998(4) SCC 626
(1985) 1 SCC 260 : 1985 SCC (Tax) 75
(2012) 9 SCC 460
issued to him. High level officials are witnesses. Sending Compact
Discs (CDs) to various High Courts and Hon'ble Supreme Court was
uncalled for and unwarranted. Unfairness is writ large from the day one
of investigation. Mere apology of the learned senior counsel for the
State would not undo the damage caused to the accused. There is
discrepancy in the date written by the witnesses in the observation
panchanama which is not properly explained and proves mala fides on
the part of the investigating officials since inception.
12.2. No doubt, when BJP filed W.P. No.39767 of 2022, the
crime was at the initial stages of the investigation. However, as of now,
more than forty (40) days elapsed. Hence, now, it cannot be said that the
investigation is at the initial stage. Even according to Mr. Dushyant
Dave, learned senior counsel appearing for the respondents, voluminous
evidence has been collected by the SIT. The case arises out of trap
proceedings under the PC Act. Thus, there is no merit in the contention
of Mr. Dushyant Dave, learned senior counsel appearing for the
respondents, that investigation is at the initial stage. This Court has to
take judicial note of the fact that Her Excellency Governor for the State
of Telangana has gone on record complaining of phone tapping in
connection with the present crime. Reputation of the petitioner who has
twenty (20) years of practice at Bar is sullied. The news has been
flashed in all major newspapers and television channels from 26.10.2022
onwards. The Hon'ble the Chief Minister for the State of Telangana had
access to the documents that are part of investigation.
It was not only proclaimed by the Hon'ble the Chief Minister in his
address to the Press that thousands of documents, whatsapp messages
and pictures have been collected during the course of investigation, but
the same is openly circulated to the news media. The name of the
petitioner is cropped up time and again. The video recordings circulated
by the Hon'ble Chief Minister to several Constitutional functionaries in
the country and to the media are available in all news channels and even
uploaded in YouTube. The investigation officers have to be fair not only
to the State but also to the accused. They are henchmen of the State.
There is lack of fairness and investigation of the present crime is tainted
with absolute bias.
12.3. High Officials, witnesses and none other than the Hon'ble the
Chief Minister are personally involved in the instant case. Thus, to do
complete justice, investigation has to be transferred to another agency.
12.4. Investigation by a neutral agency will reveal the truth.
Three (3) out of four (4) M.L.As., who were allegedly poached were
elected from Congress Party and later on switched over to TRS Party. In
the tussle between the TRS Party and the BJP, rights of the accused are
being infringed. There are no fetters placed on the jurisdiction of this
Court in transferring investigation to a neutral agency. Most of the
decisions relied on by Mr. Dushyant Dave, learned senior counsel
appearing for the respondents, arise out of jurisdiction under Section 482
of Cr.P.C. and not relevant for the present case. Jurisdiction under
Section 482 of Cr.P.C. stands on a different footing. The counter filed
by the police is silent on the aspect as to who handed over CDs /
documents to the Hon'ble Chief Minister. As there is no answer
forthcoming from the respondents as to who has given CDs and pen-
drive to the Hon'ble the Chief Minister, adverse inference has to be
drawn. The entire information / evidence allegedly collected during
investigation that too in trap/raid video recorded proceedings are in
public domain.
12.5. The learned senior counsel relied on the following
decisions of the Hon'ble Supreme Court:
1. Subrata Chattoraj v. Union of India19
2. Standard Chartered Bank v. Andhra Bank Financial
Services Limited20
3. Naseem Bano (SMT) v. State of U.P.21,
4. Darshini Shikshana Samasthe (Registered), Sringeri,
Chikmagalur v. State of Karnataka22 (Karnataka High Court)
5. Vinay Tyagi v. Irshad Ali23
6. Babubhai's case (Supra 4)
7. Ankush Maruti Shinde v. State of Maharashtra24
8. Sasti Gayen v. State of West Bengal25, and
9. Rubabbuddin Sheikh v. State of Gujarat26
Submissions of Mr. S.D. Sanjay, learned senior counsel, appearing
for the petitioner in W.P. No.43339 of 2022 :
13.1. Mr. S.D. Sanjay, learned senior counsel, submitted the
respondent No.7 - Hon'ble Chief Minister of the State, is personally
involved in the matter and it cannot be said that the investigation is fair
2014 (8) SCC 768
(2016) 1 SCC 207
1993 Supp (4) SCC 46
1996 SCC OnLine Kar 154
(2013) 5 SCC 762
(2019) 15 SCC 470
2022 SCC OnLine Cal 3361
(2010) 2 SCC 200
and impartial and without any interference by the political authorities.
The SIT is under the direct control of the respondent No.7. FIR was
registered on 26.10.2022. The Chief Minister held press conference on
03.11.2022. The video clippings were displayed by the Chief Minister
for three hours and the pen drives and CDs were circulated to the press
reporters in the press meet. In his one hour address, the Chief Minister
spoke about attempts made by BJP, several top functionaries and Central
Ministers with the support of the Prime Minister to overthrow the
Government of Telangana. The petitioner is not an accused and for
achieving political mileage, the respondents are seeking to expand the
scope of investigation. The petitioner is a resident of Kerala and
President of a registered political party. He has contested as a candidate
against Rahul Gandhi. The act of the Chief Minister in leaking the
investigation material to the press and sending copies of the same to the
Hon'ble Chief Justice of Supreme Court, other Judges of the Supreme
Court, other High Courts and other Constitutional functionaries is
antithesis to Constitutional rights of the petitioner and other accused.
It is an unwarranted act, which shows that the Chief Minister is
personally interested in the matter. Thus, fair investigation is doubtful.
The Chief Minister has publicly claimed that the accused are involved in
the crime and they have been acting at the behest of BJP.
The Hon'ble Chief Minister is acting as a prosecutor and informant and
wants to brand the accused as conspirators attempting to overthrow the
Government. The petitioner's name is taken by the Chief Minister during
the press meet.
13.2. Learned senior counsel, referred to Rules 2(b)(c), Rule 3,
Rule 2(e)(d)(f) of the All India Services (Discipline and Appeal) Rules,
1969 and Rule 3 of the Indian Police Service (Cadre) Rules, 1954 and
contended that the IPS officers working in the Government are under the
control of the Chief Minister. Their appointment, promotion, transfer,
deputation and suspension are under the control of the Government.
Thus, when the Chief Minister himself has publicly declared that the
petitioner is an accused and involved in the crime, it would be
improbable that the petitioner would be subjected to fair and impartial
investigation. Even according to the Chief Minister, the issue which led
to registration of crime has nation wide ramifications. In his one hour
address, the Chief Minister has repeatedly stated that democracy is being
destroyed by the ruling party dispensation at the Centre. That eight (8)
State Governments have been overthrown and he has evidence of
thousands of pages to prove that the accused persons in this crime have
hatched a larger conspiracy to overthrow the Telangana Government.
Even according to the Government, it is a high profile case and thus, the
investigation was transferred to SIT.
13.3. The learned senior counsel submitted that the press
conference is a green signal to the SIT. The address of none other than
the Chief Minister, who is a high Constitutional functionary, branding
the petitioner as accused will have direct impact on the investigation
agency. The apology tendered by Mr. Dushyant Dave, learned senior
counsel, appearing for the learned Advocate General for the State, before
the Division Bench of this Court in WA.No.749 of 2022 dated
15.11.2022 cannot undo the damage done to the accused persons.
The SIT is not acting independently. No prejudice would be caused to
any person if investigation is transferred to CBI. It is not only the victim
but also the accused has got right to seek transfer of investigation.
The parameters for the accused and the victim are same while seeking
transfer of investigation. In the instant case, the investigation is at the
threshold and there is no bar for this Court to transfer the investigation.
Merely because the investigation is at the nascent stage, it cannot be said
that it is not biased. The petitioner has made out a case for transfer of
investigation. The material collected by the police during the
investigation is shared with the Chief Minister, which is a serious lapse
and incomprehensible and contrary to the provisions of Cr.P.C. Not only
that, the petitioner is referred to as accused by media, LOC is opened
against him, which demonstrates malice on the part of the respondents.
Submissions of Mr. J. Prabhakar, learned senior counsel, appearing for
Mr. M. Vishnuvardhan Reddy, learned counsel for the petitioner in
W.P. No.39767 of 2022:
14.1. There are several suspicious circumstances which cast a
serious doubt on genuineness of the complaint lodged in Crime
No.455 of 2022 and fairness in the investigation.
14.2. In the counter affidavit filed by the State in I.A. No.2 of
2022 in W.P. No.39767 of 2022, one of the annexures is copy of the
complaint in Crime No.455 of 2022 which contained signatures of two
witnesses who are MRI and AMRI. These are the witnesses who signed
as mediators to observation and seizure panchanamas on 26 and
27.10.2022. However, in the original FIR, signatures of these two
witnesses are not found. Two theories emerge from this discrepancy.
First one is presence of witnesses when complaint is lodged which is
unusual. Secondly, signature of witnesses are taken to see that the de
facto complainant would not change his version. There is no explanation
as to how the investigation documents / CDs have been handedover to
the Hon'ble the Chief Minister. The action of investigation officials is
contrary to the procedure of search and seizure provided under Section
100 of Cr.P.C. In terms of sub-sections (4), (5), and (6) of the said
provision, the investigation officer, at the best, can handover list of the
seized materials / documents to the de facto complainant and not copies
of the CDs / documents.
14.3. The learned Additional Advocate General, in the course
of arguments, submitted that CDs might have been handedover by the
de facto complainant Mr. Pilot Rohith Reddy to the Hon'ble Chief
Minister. But, such assertions are not found in the counter affidavit of
the complainant - State. There cannot be any doubt that the investigating
officers have handed-over the CDs and that too before any investigation
is completed to the Hon'ble Chief Minister.
14.4. Thus, it cannot be said that there is transparency and
fairness in the investigation. The police acted in contravention of the
procedure contemplated under Section 165 Cr.P.C. and the Police
Standing Orders - 512 and 540. The investigation officers are required
to maintain secrecy. The SIT is consisting of officers of the State. Even
before investigation is completed, names of the accused and suspected
persons are referred in the Press Conference of the Hon'ble the Chief
Minister.
14.5. The subsequent events also can be taken into
consideration to decide whether there is element of bias and unfairness
on the part of investigating officers. The most relevant being statement
of the de facto complainant - LW.1 recorded under Section 164 of
Cr.P.C. after filing of the writ petitions.
14.6. As per G.O. Ms. No.268, Home Department, dated
12.09.2003, it is the concerned Assistant Commissioner of Police, who is
designated as Commissioner of Police, ACB Wing, has to conduct
investigation and not the regular police. Even if the regular police
registers case, it should be transferred to ACB Wing. If any other officer
was to be entrusted with investigation, the same could have been done
under Section 17 of the PC Act. G.O. Ms. No.63 was not issued under
Section 17 of the PC Act.
Submissions of Mr. B.S. Prasad, learned Advocate General for the
State of Telangana:
15. As per G.O. Ms. No.268 and the provisions of the PC Act,
the regular police are not denuded of power to conduct investigation.
The investigation by the regular police of the rank of Assistant
Commissioner of Police is permissible under Section 17 of the PC Act.
In any case, the SIT is constituted by the Government to conduct
investigation. Assuming that there is any irregularity, the same would
stand rectified by constitution of SIT.s There are number of cases earlier
investigated and prosecuted by the Crime Investigation Department and
Central Crime Station in our State.
Submissions of Mr. J. Ramchander Rao, leaned Additional Advocate
General for the State of Telangana :
16. The investigation cannot be stalled at the threshold.
The truth will come out in the investigation and the writ petitions are
premature. The allegations of unfairness and bias in the investigation are
very vague. This Court would not conduct roving enquiry in writ
jurisdiction. The CDs / video recordings are not relevant for the purpose
of this case and would not cause any prejudice to the accused.
Submissions of Mr. A. Prabhakar Rao, learned counsel appearing
for respondent No.8 in W.P. No.39767 of 2022 :
17. This is a serious case of inducement of MLAs by corrupt
means. The BJP is not the accused and has nothing to do with the crime.
FIR was lodged on 26.10.2022 and on the very next day i.e., 27.10.2022,
the writ petition was filed by the BJP. Assuming that there is any defect
in investigation, accused can always take advantage of the same.
They can file discharge or quash petition at the appropriate time and they
can also seek compensation for malicious prosecution. Normally, the
Courts would not interfere when investigation is at the preliminary stage.
After filing charge sheet, it will be known whether there is any bias.
The writ petition is premature. The SIT is not doing anything contrary to
law. Prejudice will be caused to the de facto complainant if investigation
is stalled at this stage or transferred to any other agency.
Reply Arguments of Mr. Mahesh Jetmalani, learned senior counsel:
18.1. Most of the cases relied upon by Mr. Dushyant Dave,
learned senior counsel, arise under Section 482 Cr.P.C. jurisdiction. In
exceptional cases, this Court has power under Article 226 of the
Constitution of India to transfer investigation when Constitutional rights
of the accused are violated. There always need not be existence of actual
bias. This Court has to see whether prejudice is caused to the accused
from his point of view. If the accused is able to make out a case of
legitimate and reasonable apprehension that the investigation is not being
done in an independent and unbiased manner and there is interference by
powerful and influential, which exist in the present case, the same has to
be considered for transfer of investigation to CBI.
18.2. The surveillance cameras, tape recorders, which were
kept in the farmhouse of Mr. Pilot Rohit Reddy during trap on
26.10.2022, were all pre-meditated. Section 157 Cr.P.C. mandates that
FIR registered should be forthwith sent to the concerned Magistrate.
The FIR was lodged at 11.30 Hours on 26.10.2022, it was dispatched to
the Court at 12.30 Hours but it reached the Magistrate at 06.30 AM on
27.10.2022. Raid was conducted between 3.30 PM and 6.30 PM.
No money was seized or paid. No one knows the contents of tape
recorders. The tape recording evidence cannot be taken as evidence until
forensic evidence is collected. On 27.10.2022, the Commissioner of
Police leaked the videos to the press, which has given its own version,
thereby, prejudicing the minds of the public. The solitary purpose of
investigation is to discover the truth, which is defeated in the instant
case. The leakage of video clippings to the media by the Chief Minister
is highly objectionable. Apart from that sending such video recordings to
the Hon'ble Chief Justice of Supreme Court, other Judges of the
Supreme Court and High Courts is a determined attempt to politicize the
issue, for which, Mr. Dushyant Dave, learned senior counsel appearing
for the State, has tendered apology.
18.3. It is not denied by the police that video recordings
circulated by the Hon'ble Chief Minister were collected by the police
during investigation. The unproved evidence, which is flaunted to public,
media and press at an early stage, militates against the concept of
presumption of innocence of the accused. The rights of the accused are
prejudiced with media trial. The fault of the part of the Chief Minister is
admitted and apologized but that would not suffice as there is no answer
as to how the material has landed in the office of the Chief Minister.
The petitioner has reasonable and legitimate apprehension, which is the
test that needs to be applied here.
19.1 SEQUENCE OF EVENTS RELEVANT FOR ADJUDICATION OF
THESE WRIT PETITIONS :
1. F.I.R. No.455 of 2022 was registered on 26.10.2022, on the
complaint lodged by Mr. Pilot Rohit Redy, M.L.A., Tandur
Assembly Constituency of Vikarabad belonging to TRS Party at
11.30 hours, by the Station House Officer, Moinabad Police
Station.
2. Observation Panchanama were commenced on 26.10.2022 at
12:30 hours and concluded at 14:30 hours wherein four (4)
electronic spy gadgets were installed in the farmhouse of the
de facto complainant Mr. Rohit Reddy at Moinabad by ACP,
Rajendranagar. Apart from that two voice recorders were
provided to the de facto complainant for recording conversation
with the accused. These are in the nature of 'Pre Trap
Proceedings'.
3. Seizure proceedings / panchanama were drafted on 26.10.2022 at
19:00 hours and concluded at 08:30 hours on 27.10.2022 wherein
electronic spy gadgets with video recordings (C-1 to C-4), voice
recorders (C-5, C6), mobile phones of the accused (C-7 to C-10),
Laptop of the accused (C-11), documents, diary etc., in made up
files and Hyondai Creta Car (C-12) were seized.
4. On 29.10.2022 in W.P. No.39767 of 2022, this Court passed
order deferring the investigation till counter is filed. The matter
was adjourned to 04.11.2022.
5. Press Meet was addressed by the Hon'ble the Chief Minister on
03.11.2022.
6. The order of this Court dated 29.10.2022 in W.P. No.39767 of
2022 deferring investigation was vacated by the order dated
08.11.2022.
7. The Hon'ble Chief Minster has circulated recorded videos of the
trap proceedings in CDs and pen drives to the Hon'ble the Chief
Justice of India, Hon'ble Judges of the Supreme Court, Hon'ble
the Chief Justice of the High Court of Telangana State and other
States and many Constitutional Functionaries all over the
country.
8. W.A. No.749 of 2022 was filed by the accused persons
challenging the order of this Court dated 08.11.2022 in W.P.
No.39767 of 2022.
9. During hearing of writ appeal, Mr. Dushyant Dave, learned
senior counsel, has expressed regrets on behalf of the Hon'ble
Chief Minister of the Telangana State for sending the recorded
videos to various Constitutional Functionaries.
10. By the order dated 15.11.2022 in W.A. No.749 of 2022, the
learned Division Bench directed this Court to monitor
investigation of the SIT in FIR No.455 of 2022 from time to
time.
11. The accused persons approached the Hon'ble Supreme Court in
S.L.P. (Criminal) No.10356 of 2022 challenging the order in
W.A. No.749 of 2022.
12. The order of another learned single Judge of this Court in
Criminal R.C. No.699 of 2022 (setting aside order of the trial
Court refusing to accept remand) was also challenged by the
accused persons before the Hon'ble Supreme Court.
13. Common order dated 21.11.2022 was passed by the Hon'ble
Supreme Court in S.L.P. (Criminal) No.10356 of 2022 and
Diary No.37248 of 2022 holding that observations made by
the learned single Judge in Criminal R.C. No. No.699 of 2022
are contrary to the judgment in Anresh Kumar's case
(Supra 1). The order passed in W.A. No.749 of 2022 was set
aside by directing this Court to pass final orders in the writ
petition seeking transfer of investigation.
19.2. The video recordings uploaded in the CD in three
separate files / folders have been received as additional evidence vide
order dated 26.12.2022 in I.A. No.2 of 2022 in W.P.No.43144 of 2022.
19.3. The video recordings in the CD consists of following
links and named as under:
a) https://www.youtube.com/watch?v=VKPfCg6b6qU
CM KCR Full Speech Over BJP Operation Lotus | Moinabad
Farmhouse MLas Buying Case Videos | T News
b) https://www.youtube.com/watch?v=5612Dyud 14
Rs.100 Crore Deal Orignal Video Released By CM KCR |
Moinabad Farm House Deal | TV5 News
c) https://www.youtube.com/watch?v=TbLfyiXHKzA
CP Stephen Ravindra About TRS MLAs And BJP Leaders 100
Crore Deal | Munugode Bypoll Effect| SakshiTV
Excerpts of Press Meet of the Hon'ble Chief Minister :
20. The Hon'ble Chief Minister of Telangana has addressed
Press in the presence of TRS Party leaders, Ministers and MLAs.
It was an official Press Conference. There were several media persons in
the Press Conference. He stated that voluminous evidence is collected in
the criminal case and the same has been sent in the form of CDs to the
Hon'ble the Chief Justice of the Supreme Court of India and other High
Courts, CBI, ED, CVC, media agencies, the Chief Ministers of the
country and various Party presidents. There is an attempt made by the
BJP to murder democracy. The Hon'ble Prime Minister openly
proclaimed during his speech in the West Bengal that 40 MLAs of TMC
Party are in touch with the BJP. The BJP leaders are claiming that they
have made Mr. Eknath Shinde as Chief Minister of Maharashtra State
and by doing same operation, eight Governments have been overthrown.
This conspiracy was going on since several days. It is not a simple case.
It is an organised crime. One of the persons, whose name is
continuously taken in the conversation is Tushar (petitioner in W.P.
No.43339 of 2022) who contested against Mr. Rahul Gandhi.
20.1. The Hon'ble Chief Minister has requested the judicial
system not to take this case lightly. He further stated that the Congress
Party MLAs who have joined the TRS Party was not in unethical or
illegal manner and was in accordance with the Constitution.
The accused persons viz., Ramchandra Bharathi, Simhayaji and one
Hyderabad Broker have taken names of Mr. B.L. Santhosh, Mr. Amit
Shah and Mr. J.D. Naddha. There are pictures of Mr. Amit Shah with
Mr. Tushar. The data which was received runs into thousands of pages
and there is a need to ensure that no tampering of evidence takes place.
It is a heinous crime committed by the BJP, as such, everyone has to
wage a war and it cannot be taken as a petty issue.
20.2. In the second video file, Mr. Stephen Ravindra,
Commissioner of Police, Cyberabad, informed the Press that there was
an attempt made by the accused to poach MLAs and the accused were
trapped and arrested. The accused tried to induce the TRS Party MLAs
to join BJP. More information will be revealed after further
investigation.
20.3. The third video file contains the discussion / conversation
between the three (3) accused persons and four (4) MLAs who were
allegedly poached. The video runs for about an hour. There were
several discussions between the accused and the MLAs. The major part
of discussion was between accused No.1 and the MLAs. Accused No.1
was found explaining sequence of events and future plans allegedly
offering crores of rupees to the MLAs for switching over their loyalties
to BJP and contesting on BJP tickets in the next elections.
20.4. As seen in the first video, though, intermittently, the
Hon'ble the Chief Minister spoke about involvement of top BJP officials
including the Hon'ble Prime Minsiter and the Home Minister and said
that thousands of documents were collected to prove involvement of
BJP, in the opinion of this Court, there is nothing objectionable except
statements regarding evidence collected in the form of video recording
(third video); so also nothing objectionable is found in the address made
by Mr. Setephen Ravindra, Commissioner of Police in the Press Meet.
20.5. However, coming to the third video file, it needs to be
noted that the said video was recorded secretly by installing electronic
spy gadgets (C-1 to C-6) during the trap proceedings in the farmhouse of
the de facto complainant Mr. Pilot Rohith Reddy. None of the learned
counsel appearing for the respondents have disputed this fact.
21. It was specifically asserted in paragraph No.5 of the writ
affidavit in W.P. No.43144 of 2022 and paragraph Nos.6, 7 and 8 of the
writ affidavit in W.P. No.43339 of 2022 that the Assistant Commissioner
of Police, Rajendranagar has transferred data from C-1 to C-6 pen drives
and handed over them to the Chief Minister of the Telangana who has
sent CDs to various Constitutional Functionaries. These assertions have
not been denied in the counter affidavits filed in these two writ petitions.
Even during the arguments, Mr. Dushyant Dave, learned senior counsel,
appearing for the State, the learned Advocate General and the learned
Additional Advocate General for the State have not refuted the above
assertions.
22. The judgments relied on by Mr. Uday Holla, learned senior
counsel, on failure of respondents in specifically denying the averments
of the petitioner/s are referred herein:
23.1. In Standard Chartered Bank's case (Supra 20), the
Hon'ble Supreme Court held as under:
"31. There needs to be specific denial by a
witness as to the suggestion regarding the happening of a
meeting for the Special Court to arrive at the conclusion
that the meeting did not take place. Order 8 Rule 5 of the
Code of Civil Procedure, 1908 deals with this aspect,
which is reproduced hereunder:
"5. Specific denial.--(1) Every allegation of fact in the
plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading
of the defendant, shall be taken to be admitted except as
against a person under disability:"
It is a settled position of law that if an allegation made
in the plaint is not specifically denied in the written
statement, it is treated as admitted, as was also held by this
Court in Balraj Taneja v. Sunil Madan [(1999) 8 SCC
396] ."
23.2. In Naseem Bano's case (Supra 21), the Hon'ble Supreme
Court held as under:
"9. The aforesaid reply would show that on behalf of
respondents 1 to 4, it was not disputed that 40 per cent
posts which have to be filled up by promotion had not
been filled up and the denial of promotion to the appellant
was justified on the sole ground that she was not qualified
to be promoted to L.T. grade. This shows that in the
pleadings before the High Court, there was no contest on
the question that the post of L.T. grade which was
sanctioned on August 29, 1977 was required to be filled up
by promotion for the reason that 40 per cent posts had not
been so filled. Even though there was no contest on this
question the High Court has gone into it and has held that
the appellant has failed to establish her case that at the
time of the appointment of respondent 6 by direct
recruitment 40 per cent of the total number of posts in the
College were not filled up by promotion as prescribed by
Regulation 5(2)(a) of the Regulations. Since no dispute
was raised on behalf of respondents 1 to 4 in their reply to
the averments made by the appellant in the writ petition
that 40 per cent of the total number of posts had not been
filled by promotion, inasmuch as the said averments had
not been controverted, the High Court should have
proceeded on the basis that the said averments had been
admitted by respondents."
23.3. In Darshini Shikshana Samasthe (Registered),
Sringeri, Chikmagalur (Supra 22), the High Court of Karnataka at
Bangalore, held as under:
"7. It is well-settled principle of law as laid down in
many cases by the Supreme Court including in the case
of Smt. Naseem Bano v. State of Uttar Pradesh [AIR 1993
SC 2592 : 1993 Supp. (4) SCC 46.] , to the effect that if
averments are made in the writ petition on affidavit and if
those allegations have not been controverted or denied by
the respondents; High Court should proceed on the basis
that the averments are admitted by the respondents.
Similar view has earlier been expressed by the Allahabad
High Court in the case of Juggi Lal Kamla Pat v. Ram
Janki Gupta [AIR 1962 All. 407.] and in the case
of Surendra Tiwari v. State of Uttar Pradesh [1994 All.
L.J. 547.] , as well as by this Court in L.
Nagaraj v. Corporation of City of Bangalore [1995 (1)
Kar. L.J. 337.] , that the "averments made on affidavit,
which required to be controverted or denied and if those
allegations are not denied or not controverted on affidavit,
the Court should proceed with the presumption that those
allegations are correct."
24. In the light of above pronouncements and uncontroverted
averments in the writ affidavit about handing over / leakage of CDs and
pen drives containing video recordings of electronic spy gadgets (C-1 to
C-6), adverse inference has to be drawn that the same have been
handedover by the investigating officer - ACP, Rajendranagar to the
Hon'ble Chief Minister.
25. As noted in the preceding paragraphs, several decisions
have been relied upon by the learned counsel appearing on either side
and having carefully perused all the decisions, the following judgments
which are relevant and having bearing on the subject involved in this lis
are referred to.
Judgments relied on behalf of the petitioners seeking transfer of
investigation:
26.1. In Babubhai's case (Supra 4), the Hon'ble Supreme
Court held as under:
"29. On appreciation/consideration of the material
available on record, the High Court recorded the aforesaid
findings of fact and came to the following conclusion:
"The manner in which the investigation has been
carried out as well as the manner in which these cases
have been conducted before this Court, clearly indicate
that the investigation is not fair and impartial and as
such the investigating agency cannot be permitted to
continue."
Thus, it is evident from the above that not only
investigation in respect of both the FIRs had not been fair
and has caused serious prejudice to one party but even
before the High Court conduct of the party and
investigating agency has not been fair.
32. The investigation into a criminal offence must be
free from objectionable features or infirmities which may
legitimately lead to a grievance on the part of the accused
that investigation was unfair and carried out with an
ulterior motive. It is also the duty of the investigating
officer to conduct the investigation avoiding any kind of
mischief and harassment to any of the accused. The
investigating officer should be fair and conscious so as to
rule out any possibility of fabrication of evidence and his
impartial conduct must dispel any suspicion as to its
genuineness. The investigating officer "is not merely to
bolster up a prosecution case with such evidence as may
enable the court to record a conviction but to bring out the
real unvarnished truth". (Vide R.P. Kapur v. State of
Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna
Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974
SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para
11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 :
1976 SCC (Cri) 72 : AIR 1976 SC 69] )
45. Not only fair trial but fair investigation is also part
of constitutional rights guaranteed under Articles 20 and
21 of the Constitution of India. Therefore, investigation
must be fair, transparent and judicious as it is the
minimum requirement of rule of law. The investigating
agency cannot be permitted to conduct an investigation in
a tainted and biased manner. Where non-interference of
the court would ultimately result in failure of justice, the
court must interfere. In such a situation, it may be in the
interest of justice that independent agency chosen by the
High Court makes a fresh investigation."
26.2. In Mohan Lal's case (Supra 5), the Hon'ble Supreme
Court held as under:
"17. In a criminal prosecution, there is an obligation
cast on the investigator not only to be fair, judicious and
just during investigation, but also that the investigation on
the very face of it must appear to be so, eschewing any
conduct or impression which may give rise to a real and
genuine apprehension in the mind of an accused and not
mere fanciful, that the investigation was not fair. In the
circumstances, if an informant police official in a criminal
prosecution, especially when carrying a reverse burden of
proof, makes the allegations, is himself asked to
investigate, serious doubts will naturally arise with regard
to his fairness and impartiality. It is not necessary that bias
must actually be proved. It would be illogical to presume
and contrary to normal human conduct, that he would
himself at the end of the investigation submit a closure
report to conclude false implication with all its attendant
consequences for the complainant himself. The result of
the investigation would therefore be a foregone
conclusion."
26.3. In Pooja Pal's case (Supra 6), the Hon'ble Supreme
Court has held as under:
89. Prior thereto, in the same vein, it was ruled
in Samaj Parivartan Samudaya v. State of
Karnataka [Samaj Parivartan Samudaya v. State of
Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri) 365]
that the basic purpose of an investigation is to bring out
the truth by conducting fair and proper investigation in
accordance with law and to ensure that the guilty are
punished. It held further that the jurisdiction of a court to
ensure fair and proper investigation in an adversarial
system of criminal administration is of a higher degree
than in an inquisitorial system and it has to take precaution
that interested or influential persons are not able to
misdirect or hijack the investigation, so as to throttle a fair
investigation resulting in the offenders, escaping the
punitive course of law. Any lapse, it was proclaimed,
would result in error of jurisdiction.
90. That the victim cannot be afforded to be treated as
an alien or total stranger to the criminal trial was reiterated
by this Court in Rattiram v. State of M.P. [Rattiram v.
State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481]
It was postulated that the criminal jurisprudence with the
passage of time has laid emphasis on victimology, which
fundamentally is the perception of a trial from the
viewpoint of criminal as well as the victim when judged in
the social context.
91. This Court in NHRC v. State of Gujarat
[NHRC v. State of Gujarat, (2009) 6 SCC 767 : (2009) 3
SCC (Cri) 44] did proclaim unambiguously that discovery,
investigation and establishment of truth are the main
purposes of the courts of justice and indeed are raison
d'étre for their existence.
92. That the pre-eminence of truth is the guiding star in
a judicial process forming the foundation of justice, had
been aptly propounded by this Court in Maria Margarida
Sequeira Fernandes v. Erasmo Jack de Sequeira [Maria
Margarida Sequeira Fernandes v. Erasmo Jack de
Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] . It
was ruled that the entire judicial system had been created
only to discern and find out the real truth and that the
Judges at all levels have to seriously engage themselves in
the journey of discovering the same. Emphasising that the
quest for truth is the mandate of law and indeed the
bounden duty of the courts, it was observed that the justice
system will acquire credibility only when the people will
be convinced that justice is based on the foundation of the
truth. While referring with approval, the revealing
observation made in Ritesh Tewari v. State of U.P. [Ritesh
Tewari v. State of U.P., (2010) 10 SCC 677 : (2010) 4
SCC (Civ) 315] that every trial is voyage of discovery in
which truth is the quest, the following passage of Lord
Denning scripted in Jones v. National Coal
Board [Jones v. National Coal Board, (1957) 2 QB 55 :
(1957) 2 WLR 760 : (1957) 2 All ER 155 (CA)] was
extracted in affirmation : (Maria Margarida case [Maria
Margarida Sequeira Fernandes v. Erasmo Jack de
Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] ,
SCC p. 384, para 39)
"39. ... '... It's all very well to paint justice blind, but
she does better without a bandage round her eyes. She
should be blind indeed to favour or prejudice, but clear
to see which way lies the truth.' (Jones
case [Jones v. National Coal Board, (1957) 2 QB 55 :
(1957) 2 WLR 760 : (1957) 2 All ER 155 (CA)] , QB
p. 64)"
26.4. In Ankush Maruti Shinde's case (Supra 24), the
Hon'ble Supreme Court held as under:
"10. It has to be uppermost kept in mind that impartial
and truthful investigation is imperative. It is judiciously
acknowledged that fair trial includes fair investigation as
envisaged by Articles 20 and 21 of the Constitution of
India. The role of the police is to be one for protection of
life, liberty and property of citizens, that investigation of
offences being one of its foremost duties. That the aim of
investigation is ultimately to search for truth and to bring
the offender to book.
10.1. Apart from ensuring that the offences do not go
unpunished, it is the duty of the prosecution to ensure
fairness in the proceedings and also to ensure that all
relevant facts and circumstances are brought to the notice
of the court for just determination of the truth so that due
justice prevails. It is the responsibility of the investigating
agency to ensure that every investigation is fair and does
not erode the freedom of an individual, except in
accordance with law. One of the established facets of a
just, fair and transparent investigation is the right of an
accused to ask for all such documents that he may be
entitled to under the scheme contemplated by CrPC.
10.2. Nothing is allowed by the law which is contrary
to the truth. In Indian criminal jurisprudence, the accused
is placed in a somewhat advantageous position than under
different jurisprudences of some of the countries in the
world. The criminal justice administration system in India
places human rights and dignity for human rights at a
much higher pedestal and the accused is presumed to be
innocent till proven guilty. The alleged accused is entitled
to fair and true investigation and fair trial and the
prosecution is expected to play a balanced role in the trial
of a crime. The investigation should be judicious, fair,
transparent and expeditious to ensure compliance with the
basic rule of law. These are the fundamental canons of our
criminal jurisprudence and they are quite in conformity
with the constitutional mandate contained in Articles 20
and 21 of the Constitution of India.
10.6. The prosecution/investigating agency is expected
to act in an honest and fair manner without hiding
anything from the accused as well as the courts, which
may go against the prosecution. Their ultimate aim should
not be to get conviction by hook or crook."
26.5. In Sasti Gayen's case (Supra 25), the Hon'ble Supreme Court
held as under:
"24. Thus, Hon'ble Supreme Court in the matter
of Pooja Pal (supra) has settled that the fair trial includes
fair investigation and if the investigation is not effective,
purposeful, objective or fair, it becomes the obligation of
the Court to order further investigation or reinvestigation
as the case may be to discover the truth and prevent
miscarriage of justice. It has further been held in this case
that notwithstanding the pendency of trial and availability
of power of the Trial Court under Sections 311 and 391 of
the Cr.P.C. read with Section 161 of the Evidence Act, if it
is imperative necessity to rule out any possibility of denial
of justice to the parties and to instil and sustain the
confidence of community at large, CBI can be directed to
investigate the incidents."
26.7. In Subrata Chattoraj's case (Supra 19), the Hon'ble
Supreme Court held as under:
"9. It is unnecessary to multiply decisions on the
subject, for this Court has exercised the power to transfer
investigation from the State Police to CBI in cases where
such transfer is considered necessary to discover the truth
and to meet the ends of justice or because of the
complexity of the issues arising for examination or where
the case involves national or international ramifications or
where people holding high positions of power and
influence or political clout are involved. What is important
is that while the power to transfer is exercised sparingly
and with utmost care and circumspection this Court has
more often than not directed transfer of cases where the
fact situations so demand."
26.8. In Rubabbuddin Sheikh's case (Supra 26), the Hon'ble
Supreme Court held as under:
"60. Therefore, in view of our discussions made
hereinabove, it is difficult to accept the contentions of Mr.
Rohatgi, learned Senior Counsel appearing for the State of
Gujarat that after the charge-sheet is submitted in the court
in the criminal proceeding it was not open for this Court or
even for the High Court to direct investigation of the case
to be handed over to CBI or to any independent agency.
Therefore, it can safely be concluded that in an appropriate
case when the court feels that the investigation by the
police authorities is not in the proper direction and in order
to do complete justice in the case and as the high police
officials are involved in the said crime, it was always open
to the court to hand over the investigation to the
independent agency like CBI. It cannot be said that after
the charge-sheet is submitted, the court is not empowered,
in an appropriate case, to hand over the investigation to an
independent agency like CBI."
Judgments relied on by the respondents - State opposing
transfer of investigation :
27.1. In P.P. Sharma's case (Supra 10), the Hon'ble Supreme
Court held as under:
"50. Mala fides means want of good faith, personal
bias, grudge, oblique or improper motive or ulterior
purpose. The administrative action must be said to be done
in good faith, if it is in fact done honestly, whether it is
done negligently or not. An act done honestly is deemed to
have been done in good faith. An administrative authority
must, therefore, act in a bona fide manner and should
never act for an improper motive or ulterior purposes or
contrary to the requirements of the statute, or the basis of
the circumstances contemplated by law, or improperly
exercised discretion to achieve some ulterior purpose. The
determination of a plea of mala fide involves two
questions, namely (i) whether there is a personal bias or an
oblique motive, and (ii) whether the administrative action
is contrary to the objects, requirements and conditions of a
valid exercise of administrative power.
51. The action taken must, therefore, be proved to have
been made mala fide for such considerations. Mere
assertion or a vague or bald statement is not sufficient. It
must be demonstrated either by admitted or proved facts
and circumstances obtainable in a given case. If it is
established that the action has been taken mala fide for any
such considerations or by fraud on power or colourable
exercise of power, it cannot be allowed to stand."
27.2. In Bhajan Lal's case (Supra 11), the Hon'ble Supreme
Court held as under:
"105. Reverting to the present case, the allegations
made in the complaint, in our considered opinion, do
clearly constitute a cognizable offence justifying the
registration of a case and an investigation thereon and this
case does not fall under any one of the categories of cases
formulated above calling for the exercise of extraordinary
or inherent powers of the High Court to quash the FIR
itself.
108. ... ... As it has been repeatedly pointed out
earlier the entire matter is only at a premature stage and
the investigation is not yet proceeded with except some
preliminary effort taken on the date of the registration of
the case, that is on November 21, 1987. ... ... .... Even
assuming that Dharam Pal has laid the complaint only on
account of his personal animosity, that, by itself, will not
be a ground to discard the complaint containing serious
allegations which have to be tested and weighed after the
evidence is collected. In this connection, the following
view expressed by Bhagwati, C.J. in Sheonandan
Paswan v. State of Bihar [(1987) 1 SCC 288, 318 : 1987
SCC (Cri) 82] may be referred to : (SCC p. 318, para 16)
"It is a well established proposition of law that a
criminal prosecution, if otherwise justifiable and based
upon adequate evidence does not become vitiated on
account of mala fides or political vendetta of the first
informant or the complainant."
27.3. In Divine Retreat Centre's case (Supra 12), the Hon'ble
Supreme Court held as under:
"18. The learned Senior Counsel proceeded to contend
that the directions issued by the High Court could not have
been issued even in a public interest litigation under
Article 226 of the Constitution of India. On merits, the
learned Senior Counsel submitted that neither the
complaint of the victim nor the anonymous petition
discloses any irregularity in the matter of investigation.
The directions issued by the learned Judge are inquisitorial
in nature and sweeping in their width and amplitude
directing the special investigation team (SIT) to find out as
to whether the appellant committed any crime and if so to
investigate into such crime. Such a course is impermissible
in law.
27. In our view, there is nothing like unlimited
arbitrary jurisdiction conferred on the High Court under
Section 482 of the Code. The power has to be exercised
sparingly, carefully and with caution only where such
exercise is justified by the tests laid down in the section
itself. It is well settled that Section 482 does not confer
any new power on the High Court but only saves the
inherent power which the Court possessed before the
enactment of the Code. There are three circumstances
under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code, (ii) to
prevent abuse of the process of court, and (iii) to otherwise
secure the ends of justice.
40. In our view, the High Court in exercise of its
inherent jurisdiction cannot change the investigating
officer in the midstream and appoint any agency of its own
choice to investigate into a crime on whatsoever basis and
more particularly on the basis of complaints or anonymous
petitions addressed to a named Judge. Such
communications cannot be converted into suo motu
proceedings for setting the law in motion. Neither are the
accused nor the complainant or informant entitled to
choose their own investigating agency to investigate a
crime in which they may be interested.
41. It is altogether a different matter that the High
Court in exercise of its power under Article 226 of the
Constitution of India can always issue appropriate
directions at the instance of an aggrieved person if the
High Court is convinced that the power of investigation
has been exercised by an investigating officer mala fide.
That power is to be exercised in the rarest of the rare case
where a clear case of abuse of power and non-compliance
with the provisions falling under Chapter XII of the Code
is clearly made out requiring the interference of the High
Court. But even in such cases, the High Court cannot
direct the police as to how the investigation is to be
conducted but can always insist for the observance of
process as provided for in the Code."
27.4. In Romila Thapar's case (Supra 8), the Hon'ble
Supreme Court held as under:
"29. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with
the crime under investigation, no specific material facts
and particulars are found in the petition about mala fide
exercise of power by the investigating officer. A vague
and unsubstantiated assertion in that regard is not enough.
Rather, averment in the petition as filed was to buttress the
reliefs initially prayed for (mentioned in para 8 above) --
regarding the manner in which arrest was made. Further,
the plea of the petitioners of lack of evidence against the
named accused (A-16 to A-20) has been seriously disputed
by the investigating agency and have commended us to the
material already gathered during the ongoing investigation
which according to them indicates complicity of the said
accused in the commission of crime. Upon perusal of the
said material, we are of the considered opinion that it is
not a case of arrest because of mere dissenting views
expressed or difference in the political ideology of the
named accused, but concerning their link with the
members of the banned organisation and its activities. This
is not the stage where the efficacy of the material or
sufficiency thereof can be evaluated nor is it possible to
enquire into whether the same is genuine or fabricated. We
do not wish to dilate on this matter any further lest it
would cause prejudice to the named accused and including
the co-accused who are not before the Court. Admittedly,
the named accused have already resorted to legal remedies
before the jurisdictional court and the same are pending. If
so, they can avail of such remedies as may be permissible
in law before the jurisdictional courts at different stages
during the investigation as well as the trial of the offence
under investigation. During the investigation, when they
would be produced before the court for obtaining remand
by the police or by way of application for grant of bail,
and if they are so advised, they can also opt for remedy of
discharge at the appropriate stage or quashing of criminal
case if there is no legal evidence, whatsoever, to indicate
their complicity in the subject crime.
30. In view of the above, it is clear that the consistent
view of this Court is that the accused cannot ask for
changing the investigating agency or to do investigation in
a particular manner including for court-monitored
investigation. The first two modified reliefs claimed in the
writ petition, if they were to be made by the accused
themselves, the same would end up in being rejected. In
the present case, the original writ petition was filed by the
persons claiming to be the next friends of the accused
concerned (A-16 to A-20). Amongst them, Sudha
Bhardwaj (A-19), Varvara Rao (A-16), Arun Ferreira (A-
18) and Vernon Gonsalves (A-17) have filed signed
statements praying that the reliefs claimed in the subject
writ petition be treated as their writ petition. That
application deserves to be allowed as the accused
themselves have chosen to approach this Court and also in
the backdrop of the preliminary objection raised by the
State that the writ petitioners were completely strangers to
the offence under investigation and the writ petition at
their instance was not maintainable. We would, therefore,
assume that the writ petition is now pursued by the
accused themselves and once they have become petitioners
themselves, the question of next friend pursuing the
remedy to espouse their cause cannot be countenanced.
The next friend can continue to espouse the cause of the
affected accused as long as the accused concerned is not in
a position or incapacitated to take recourse to legal remedy
and not otherwise.
27.5. In Arnab Ranjan Goswami's case (Supra 13), the
Hon'ble Supreme Court held as under:
"42. The transfer of an investigation to 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 W.B. v. Committee for
Protection of Democratic Rights [State of
W.B. v. Committee for Protection of Democratic Rights,
(2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] ("CPDR,
West Bengal"), D.K. Jain, J. observed : (SCC p. 602, para
70)
"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 instil 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)
45. In Romila Thapar v. Union of India [Romila
Thapar v. Union of India, (2018) 10 SCC 753 : (2019) 1
SCC (Cri) 638] , A.M. Khanwilkar, J. speaking for a three-
Judge Bench of this Court (one of us, Dr D.Y.
Chandrachud, J. dissenting) noted the dictum in a line of
precedents laying down the principle that the accused
"does not have a say in the matter of appointment of
investigating agency". In reiterating this principle, this
Court relied upon its earlier decisions in Narmada
Bai v. State of Gujarat [Narmada Bai v. State of Gujarat,
(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] , Sanjiv
Rajendra Bhatt v. Union of India [Sanjiv Rajendra
Bhatt v. Union of India, (2016) 1 SCC 1 : (2016) 1 SCC
(Cri) 193 : (2016) 1 SCC (L&S) 1] , E.
Sivakumar v. Union of India [E. Sivakumar v. Union of
India, (2018) 7 SCC 365 : (2018) 3 SCC (Cri) 49]
and Divine Retreat Centre v. State of Kerala [Divine
Retreat Centre v. State of Kerala, (2008) 3 SCC 542 :
(2008) 2 SCC (Cri) 9] . This Court observed : (Romila
Thapar case [Romila Thapar v. Union of India, (2018) 10
SCC 753 : (2019) 1 SCC (Cri) 638] , SCC p. 776, para 30)
"30. ... the consistent view of this Court is that the
accused cannot ask for changing the investigating agency
or to do investigation in a particular manner including for
court-monitored investigation."
46. The principle of law that emerges from the
precedents of this Court is that the power to transfer an
investigation must be used "sparingly" and only "in
exceptional circumstances".
In assessing the plea urged by the petitioner that the
investigation must be transferred to CBI, we are guided by
the parameters laid down by this Court for the exercise of
that extraordinary power. It is necessary to address the
grounds on which the petitioner seeks a transfer of the
investigation. The grounds urged for transfer are:
27.6. In P.V. Narasimha Rao's case (Supra 16), the Hon'ble
Supreme Court held as under:
"98. On the basis of the aforesaid discussion we arrive at
the following conclusion:
1. A Member of Parliament does not enjoy
immunity under Article 105(2) or under Article 105(3) of
the Constitution from being prosecuted before a criminal
court for an offence involving offer or acceptance of bribe
for the purpose of speaking or by giving his vote in
Parliament or in any committees thereof.
2. A Member of Parliament is a public servant under
Section 2(c) of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to
remove a Member of Parliament and to grant sanction for
his prosecution under Section 19(1) of the Prevention of
Corruption Act, 1988, the court can take cognizance of the
offences mentioned in Section 19(1) in the absence of
sanction but till provision is made by Parliament in that
regard by suitable amendment in the law, the prosecuting
agency, before filing a charge-sheet in respect of an
offence punishable under Sections 7, 10, 11, 13 and 15 of
the 1988 Act against a Member of Parliament in a criminal
court, shall obtain the permission of the Chairman of the
Rajya Sabha/Speaker of the Lok Sabha, as the case may
be."
28. Whether the BJP has got locus standi to institute W.P.
No.39767 of 2022?
29. It is the contention of the learned counsel appearing for the
respondents State - Police that action of the BJP, Telangana State Unit,
in rushing to the Court within a day, on 27.10.2022, after registration of
F.I.R. on 26.10.2022, at the nascent stage speaks volumes about their ill
intentions and conduct. It is noticed that the BJP, as an
organisation/party, is not an accused. In criminal law, any individual
who has arraigned as an accused can be an aggrieved person. By the
time, the writ petition was filed, though names of prominent persons of
BJP have been taken, that by itself cannot give a colour of political
vendetta. Mr. Dushyant Dave, learned senior counsel, has also
emphasized that even if names of the prominent BJP leaders have been
taken in the remand report and documents collected during investigation,
there was no material placed before this Court to say that investigation is
tainted. Assuming that there is some grievance, it is for the aggrieved
person to approach this Court and not the BJP.
30. The contention of the learned senior counsel appearing for
the BJP is that names of the Hon'ble Prime Minister, the Home Minister
and important persons in the BJP are repeatedly taken by the Hon'ble the
Chief Minister of the Telangana State during the Press Conference. The
issue will have nationwide ramifications. The Hon'ble the Chief
Minister has openly stated that war has to be waged against the BJP and
Central Government. In the opinion of this Court, these are not the
factors to be considered in the instant case.
31. The allegations in W.P. No.39767 of 2022 and other writ
petitions, so far as mala fides are concerned are very vague. As rightly
contended by Mr. Dushyant Dave, learned senior counsel, appearing for
the State of Telangana, mala fides on the point of political vendetta are
not made out in the facts and circumstances of the case. It also needs to
be pointed out that the accused persons are before this Court in
W.P. No.40733 of 2022 seeking the same relief of transfer of
investigation.
32. In Romila Thapar's case (Supra 8), it was held in
paragraph No.30, which is extracted above, that third party cannot be
permitted to espouse cause of the accused when the accused themselves
are pursuing the writ petition.
33. Therefore, in view of the law laid down by the Hon'ble
Supreme Court in Romila Thapar's case (Supra 8), W.P. No.39767
of 2022 is not maintainable.
34. In a system governed by law, every person or authority is
subservient to Constitutional principles. The safeguards provided to
the accused persons under Articles 20 and 21 of the Constitution of
India have been reinforced from time to time by various authoritative
pronouncements, some of which are referred above. Protection given
to the accused from very inception when he is arrested by the police
officer and mandate under Article 20 of the Constitution of India read
with Section 167 Cr.P.C. to produce the accused before the Magistrate
within 24 hours of his arrest is a pointer to emphasise that from very
inception of the criminal proceedings, the accused has Constitutional
and statutory safeguards.
35. Several arguments have been advanced contending that
action of the State authorities is mala fide, tainted and biased.
Few instances like service notice under Section 41-A of Cr.P.C.
even when request was made to defer proceedings on health
grounds, LOC opened by the police against some of the accused,
investigation officers of the SIT coming with a force of
30 policemen to interrogate the accused in connection with another
crime on the file of Banjara Hills Police Station, violation of
guidelines issued by the Supreme Court in Arnesh Kumar's case,
cannot be considered to be so serious giving rise to cause of action
for transfer of investigation. So also the press conference
addressed by the Chief Minister where serious imputations made
against BJP taking names of the Hon'ble Prime Minister, Home
Minister and other top functionaries of BJP cannot be relevant
factors for transfer of investigation.
36. FIR discloses commission of cognizable offence and
investigation is bound to be done in accordance with law.
Police excesses, investigation officers acting unusually and beyond
jurisdiction violating judicial precedents can be remedied from
time to time and rightly so, orders have been passed by this Court
and other Benches of this Court granting interim protection of
arrest pursuant to Section 41-A of Cr.P.C notices. It is stated that
accused Nos.1 to 3 are released on bail. So far as other accused,
against whom Section 41-A of Cr.P.C. notices were issued, are
concerned, it is stated that stay has been granted by other Benches
of this Court in separate cases. Thus, it cannot be said that any
prejudice is caused to the accused on the aspect of violation of
provisions of law, more particularly, Section 41-A Cr.P.C and
judgment of the Hon'ble Supreme Court in Arnesh Kumar's case.
37. The words spoken by the Hon'ble Chief Minister and
agony expressed repeatedly saying that democracy is being
murdered and several other statements imputing the top leaders of
the BJP in the contemporary political scenario are nothing unusual.
With a conscious mind this Court refrains to make any further
observations on the speech of the Hon'ble Chief Minister, though
the same has been repeatedly pointed out by the learned counsel
appearing for the petitioners, by keeping in mind the prejudice that
may cause to the de facto complainant / victims.
38. In the above conspectus, the issue boils down to the
third folder of CD/Pen Drives, which have been taken on record by
this Court and circulated by the Chief Minister to the Hon'ble
Chief Justice of India, the Hon'ble Chief Justice of this Court and
the Hon'ble Chief Justices of other States. The controversy
regarding poaching of MLA's is, no doubt, a serious one.
The official press conference arranged by the Chief Minister and
speaking about the sequence of events and the attempt made to
poach ruling party MLA's is understandable. What is required to
be seen is whether the procedure established by law has been
breached. The manner in which the video recordings through
electronic spy gadgets and the documents (C-1 to C-6) have been
uploaded in the public domain tested on the view point of accused
would certainly cause prejudice to them. Though the investigation
is at the preliminary stage, crucial documents, which were in the
nature of pre-trap proceedings, have come out open in public.
39. None of the learned counsel appearing for the State have
clarified or explained to the Court as to how these CDs and pen drives
are surfaced in the Press Meet of the Hon'ble Chief Minister.
Not only in the pleadings, even in the oral submissions, the
respondents have maintained stoic silence and have chosen to be very
cautious on the leakage of investigation material. A veiled attempt
was made by the learned Additional Advocate General stating that the
de facto complainant might have handed over the CDs / pen drives to
the Hon'ble Chief Minister.
40. Mr. A. Prabhakar Rao, learned counsel appearing for the de
facto complainant - respondent No.8 in W.P. No.39767 of 2022, has also
stated that the de facto complainant might have handed over the CDs, but
there is no clear assertion and evidence to that effect. The contentions of
Mr. J. Prabhakar, learned senior counsel appearing for one of the
petitioners, with reference to procedure of search and handing over only
the list of documents to the de facto complainant under Cr.P.C. and
instructions in the Police Manual have not been controverted by the
learned counsel for the respondents. Moreover, nothing is argued before
this Court as to at what stage and under what provisions of Cr.P.C.,
the de facto complainant could have access to the documents and
material seized during the investigation. The crime was registered on
26.10.2022. The electronic spy gadgets were seized on 26/27.10.2022
containing the video recording (third file) which are in the nature of trap
proceedings, and undoubtedly crucial and critical part of investigation,
should not have been handed over to any third party. In the political
tussle between the BJP and the TRS Party, the Constitutional and
statutory rights of the accused seems to have been forgotten.
The investigation officers have committed serious lapses. It appears, to
cover up such lapses, SIT was constituted on 09.11.2022. When accused
are condemned publicly and branded as conspirators levelling serious
allegations by none other than the Hon'ble Chief Minister by conducting
Press Meet and circulating the videos to the important Constitutional
Functionaries, even before charge sheet is filed and at the initial stages of
the investigation, it cannot be said that investigation is being done in an
unbiased and fair manner.
41. As contended by Mr. Mahesh Jethmalani, learned senior
counsel, in W.P. No.40733 of 2022, actual bias need not be proved and it
would suffice if legitimate and reasonable apprehension of bias, taint and
unfair investigation is made out by the accused. In Babubhai's case
(Supra 4), investigation was transferred. In the said decision, it was held
that not only fair trial but investigation is also part of Constitutional
rights guaranteed under Articles 20 and 21 of the Constitution of India.
It is not necessary that actual bias should be proved and issue has to be
examined from the view point of the accused to see whether any
prejudice is caused or not. However, apprehension of the accused about
unfair and biased investigation should not be unrealistic but genuine as
held by the Hon'ble Supreme Court in Mohan Lal's case (Supra 5). In
the instant case, the events which have unfolded from the date of
registration of crime on 26.10.2022 till the Press Conference of the
Hon'ble Chief Minister on 03.11.2022, making the investigation CDs /
material public without any hesitation would cause reasonable
apprehension in the mind of the accused about fair and unbiased
investigation.
42. In these circumstances, this Court is of the view that
serious prejudice is caused to the accused, who are branded
publicly as conspirators, thereby, depriving their rights to
effectively defend the criminal proceedings and availing their legal
remedies under law. These events run contrary to the fundamental
concept of criminal law jurisprudence that every accused is deemed
to be innocent until proven guilty. As noted above, the learned
counsel for the respondents have not pointed out any provisions of
the Cr.P.C. nor offered any plausible explanation or theory as to
how the third video CDs / pen drives which have been seized under
mediators' report panchanama on 27.10.2022 in F.I.R. No.455 of
2022 have been handed over to the Hon'ble Chief Minister. Who
has handed over the same, when and how, remains a mystery. In
spite of that, to say that no prejudice is caused to the accused is
unreasonable and unacceptable. If action of the police is not in
accordance with the procedure established by law, even at the
initial stages, this Court, exercising jurisdiction under Article 226
of the Constitution of India, should not shirk its responsibility to
set rights things. The contention of the learned counsel for the
State - Police that the petitioners have remedies under law and they
may challenge the proceedings at the appropriate time and the
investigation at this nascent stage should not be interfered cannot
be sustained. The rights of the accused stand as a high pedestal in
the criminal law jurisprudence as held by the Hon'ble Supreme
Court in Ankush Maruti Shinde's case (Supra 24). Having found
serious lapses and leakage of investigation material / CDs, it is
difficult to accept the contention of the learned counsel for the
respondents - State that this Court should lay off its hands merely
because the investigation is at preliminary stage. Rights of the
accused to have fair and unbiased investigation are defeated in this
case which is in violation of Articles 14 and 21 of the Constitution
of India.
43. In the opinion of this Court, constitution of SIT under
G.O. Ms. No.63 which act under the Government will not alter the
situation, more particularly, when an authority none other than the
Hon'ble Chief Minister himself has openly circulated the videos
and branded the accused and members of the organised crime as
conspirators. The entire episode and turn out of events is
something unprecedented and incomprehensible and
unhesitatingly, this Court holds that the accused have made out a
case for transfer of investigation. So far as other points raised by
the learned counsel regarding violation of G.O. Ms. No.268 etc.,
and that investigation by regular police is not permissible under the
PC Act are not considered as the pleadings to that effect in the writ
affidavits are very vague; in any event, they are not necessary to be
dealt with in the light of the above observations.
44.1. For the aforesaid reasons, W.P. Nos.40733, 43144 and
43339 of 2022 are allowed. G.O.Ms. No.63 Home (Legal)
Department dated 09.11.2022 appointing SIT is quashed. The
investigation in FIR.No.455 of 2022 shall be forthwith transferred
to the Central Bureau of Investigation, who shall proceed with de
novo investigation taking into consideration the report lodged by
Mr. Pilot Rohit Reddy in FIR.No.455 of 2022, observation
panchanama dated 26.10.2022 and mediator's panchanama dated
27.10.2022. The remaining investigation done by Assistant
Commissioner of Police, Rajendranagar Division; the Station
House Officer, Moinabad Police Station, and the SIT are also
quashed.
44.2. As discussed above, W.P. No.39767 of 2022 is not
maintainable and is accordingly dismissed.
44.3. In view of the orders in W.P. No.43144 of 2022, no
orders are required to be passed in W.P. No.42228 of 2022, and
therefore, the same is closed.
45. At this point of time, a request is made by the learned
Advocate General for the State to suspend this order till its certified
copy is furnished. Therefore, this order is suspended, as prayed
for.
As a sequel thereto, miscellaneous applications, if any, pending
in these writ petitions stand closed.
______________________
B. VIJAYSEN REDDY, J
December 26, 2022.
NOTE: LR COPY TO BE MARKED.
(BO) PV/DSK
