HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE R.KANTHA RAO W.A.No.1250 OF 2002 Between: Boya Nallabothula Venkateswarlu and others .. Appellants And The Circle Inspector of Police Nandikotkur PS and others .. Respondents *THE HON’BLE MR JUSTICE B. PRAKASH RAO AND *THE HON’BLE MR JUSTICE R. KANTHA RAO + W.A.NO. 1250 OF 2002 % Dated:01.06.2010 Between: Boya Nallabothula Venkateswarlu and others .. Appellants And The Circle Inspector of Police Nandikotkur PS and others .. Respondents 1. ! Counsel for the Appellants: Mr. Sri C.Praveen Kumar 2. ^ Counsel for the Respondents: G.P. for Home <GIST: > HEAD NOTE: ? Cases referred [1] (2003)8 SCC 546 2 (2004)5 SCC 729 3 (1997)11 SCC 623 4 (2005)12 SCC 468 5 (1985)4 SCC 677 6 (1994)1 SCC 243 7 (1994) 4 SCC 260 8 1993-AIR(sc)1960 9 (1997) 1 SCC 416 HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE R.KANTHA RAO W.A.No.1250 OF 2002 JUDGMENT: (Per Hon’ble Sri Justice R.Kantha Rao, J) This writ appeal is filed against the order passed by the learned Single Judge in W.P.No.6195 of 2002. 2. The appellants filed the writ petition for issuance of a writ in the nature of mandamus directing the respondents to pay suitable compensation to them for falsely implicating them in Crime No.100 of 2001 of Miduthuru Police Station, District Kurnool and thereafter arresting them and illegally detaining them in prison for 32 days alleging commission of murder punishable under Section 302 of IPC which ultimately proved to be false when it was made known that the said deceased Thotabaija Pedda Lakshmaiah was in fact alive and was produced by the petitioners’ counsel before the Principal Sessions Judge, Kurnool. 3. The said writ petition was heard and disposed of by the learned single Judge who dismissed the same on the ground that the subject matter of writ petition involves detailed enquiry in to the questions of fact and evidence and a direction issuing writ of mandamus by invoking Article 226 of Constitution of India could not be made. 4. The said order is challenged in the present writ appeal by the appellants who filed the writ petition before the learned single Judge. Their contention is that without going into the controversial facts and details of evidence, a definite finding can be given to the effect that knowing fully well the investigating officer falsely implicated them in a grave charge of murder, caused their detention illegally and thus, they are entitled for compensation which was wrongly negatived by the learned single Judge. 5. We have heard Sri C.Praveen Kumar, learned counsel for the appellants and the learned Government Pleader for Home appearing for the respondents. 6. The facts, which gave rise for filing the writ petition, may be stated as follows: On 25.12.2001 at about 1030 hours the Village Administrative Officer, Alaganuru in District Kurnool had sent up a report to the Station House Officer, Miduthuru Police Station informing about the existence of an unidentified partially burnt dead body of a male in Alaganuru fields. Basing on the said report, a case in Crime No.100 of 2001 under Section 174 Cr.P.C. was registered and the investigation was commenced. According to the police on 25.12.2001 on seeing the news item concerning this matter, the de facto complainant/informant Thotabalija Andri Venkatalakshmaiah and his relatives came to Alaganuru fields, identified the dead body as that of the deceased, Pedda Laxmaiah, thereafter the de facto complainant lodged a report with the police. After receiving a written report from Thotabalija Andri Venkatalakshmaiah, the brother of the deceased, the section of law was altered from 174 Cr.P.C. to one under Section 302 and 201 IPC. 7. As disclosed from the remand report and the record of investigation submitted at the time of hearing of the writ appeal, it appears that the investigation revealed that on the night of 13.12.2001 the deceased allegedly misbehaved with the wife of A-1 Subbamma at Somayajulapalli choultry by laying hand on her while she was sleeping in the choultry, and on that Subbamma, the wife of A-1 allegedly warned the deceased that she would convey the information to her husband A-1, and would thereby cause the death of the deceased. The police story is that on the night of 15.12.2001 A-1 to A-3 kidnapped the deceased from Somayajulapalli choultry, brought him in a tipper to Alaganur cross road, from there, took him into the jowar fields, there they beat him with hands, kicked him and ultimately cut his throat with a knife and killed him. Thereafter, it is said that they had burnt the deadbody to screen the offence and left the deadbody in the field itself. 8. As per the investigation, the respondents 2 and 3 along with the staff and mediators proceeded to Soma Company bus stop on a reliable information and arrested A-1 to A-3 on 10.01.2002 at about 1600 hours. Subsequently, it is said that basing on the alleged confession made by the appellants, the investigating officer recovered knife, which was said to have been used in the commission of the offence at the instance of A-2 which A-2 picked up from the bushes in Alaganuru Barakas fields and produced before the investigating officer. 9. After the arrest of the appellants, they were produced before the Magistrate and were remanded to judicial custody. Subsequently, the appellants moved bail application in Crl.M.P.No.207 of 2002 before the Sessions Judge, Kurnool in Crime No.100 of 2001. The bail petition was filed on 05.02.2002 and it was adjourned to 08.02.2002, thereafter to 11.02.2002 and ultimately to 13.02.2002. On 12.02.2002 the learned Sessions Judge advanced the bail application suo-motu on seeing a news item in a Telugu daily to the effect that the deceased who was alleged to have been murdered is in fact alive. On the same day, the deceased who was allegedly killed by the appellants was produced by their counsel Sri V.Narendernath Reddy before the Sessions Judge, Kurnool in the presence of the learned Public Prosecutor, Sub-Inspector of Police, Miduthuru and others. The brother of Pedda Laxmaiah by name Chinna Laxmaiah was also produced before the learned Sessions Judge and thereafter, the learned Sessions Judge recorded the sworn statements of Pedda Laxmaiah and Chinna Laxmaiah. The Sub-Inspector of Police, Miduthuru i.e. respondent No.2 who was present by then has also identified Pedda Laxmaiah. Thereafter, the learned Sessions Judge released the appellants. 10. The grievance of the appellants is that they were arrested by the police on the false allegation of committing murder of Pedda Laxmaiah and were illegally detained in prison from 10.01.2002 to 12.02.2002 i.e. for 32 days. The respondents 2 and 3 knowing fully well that the appellants were not involved in the commission of the offence and moreover, no offence was committed in respect of Pedda Laxmaih, arrested them and produced them before the Magistrate. They also say that in the process of the alleged investigation, they were also harassed and tortured by the police while they were in police custody and they had to sell away their sheep and cattle for the purpose of raising money to fight the litigation to prove their innocence and thus, they lost their livelihood and further they were subjected to harassment and were put to great mental agony on false charge of murder. They contend that their arrest and detention is illegal and in violation of the human rights and personal liberty which is guaranteed under Article 21 of the Constitution of India. 11. Sri C.Praveen Kumar, learned counsel appearing for the appellants would submit that absolutely there was no basis for the respondents 2 and 3 to arrest and to cause detention of the appellants in Jail, they very well knew that the appellants were not involved in the commission of the murder, but, only to show some progress in the investigation, they arrested the appellants and produced them before the Magistrate. He would further submit that the learned single Judge without properly examining the material available on record, which is enough to prove that the respondents 2 and 3 have falsely implicated the appellants and got them detained in prison, erroneously held that it requires thorough examination of facts and evidence to arrive at a finding and therefore, no relief under Article 226 of the Constitution of India to issue a direction in the nature of mandamus could be granted. Thus, he seeks to set aside the said finding and grant compensation to the appellants. 12. On the other hand, the learned Government Pleader for Home would contend that it cannot be said that absolutely there was no basis for respondents 2 and 3 to apprehend the appellants and according to him, the appellants were apprehended and were sent to judicial remand basing on the report lodged by Chinna Laxmaiah who is no other than the younger brother of Pedda Laxmaiah and the statements of the witnesses who were examined by the police also furnish the material for respondents 2 and 3 to suspect the appellants, no mala fides or laches can be attributed to the respondents 2 and 3 and in view of the fact that the appellants were apprehended in the process of investigation, no compensation as rightly held by the learned single Judge could be granted even though ultimately it was found that the alleged deceased Pedda Laxmaiah was in fact alive. 13. The only point arises for determination in this appeal is whether the arrest of the appellants and their detention in prison in the course of the alleged investigation in Crime No.100 of 2001 of Miduthuru Police Station is illegal and if so, an order in the nature of writ of mandamus can be issued directing the respondents to pay compensation to the appellants? 14. The only ground on which the learned single Judge declined to invoke the jurisdiction under Article 226 of the Constitution of India to issue a direction in the nature of mandamus is that the issue requires thorough examination of facts and evidence and without the allegations being proved by cogent evidence, the relief prayed for could not be granted. 15. I n STATE OF MAHARASHTRA v CHRISTIAN COMMUNITY WELFARE COUNCIL OF INDIA AND ANOTHER[1] dealing with a case wherein, the High Court directed the State Government to pay compensation of Rs.1,50,000/- to the widow of the deceased, where the death of the deceased was allegedly a custodial death, from the police officers concerned pro-rata, the Apex Court held as follows: “The issue involving allegation of custodial death, will have to be adjudicated in an enquiry wherein it will have to be decided where the acts of the police officers concerned were in performance of State duties (sovereign function) or outside the same. If it is found that the appellant officers did cause the death of the deceased and the same is not in the performance of their official duty or in excess of the same then they cannot escape the liability. This question would arise only as and when an inquiry specifically in this regard is conducted and at this stage, it is too premature for us to go into this question.” 16. I n STATE REPRESENTED BY INSPECTOR OF POLICE AND OTHERS v N.M.T.JOY IMMACULATE[2] Considering the finding of the High Court where the investigation conducted by the police concerned was held not bona fide and false records had been created to implicate “J” and that “J” had been wrongfully and illegally detained by the police for four days and was harassed and tortured by the police personnel, the Supreme Court expressed the view that the High Court in revision could not have gone into the merits of the case and the findings recorded by it that the accused was illegally detained and ill-treated by the police, investigation conducted was not bona fide and records were fabricated to implicate the accused are not proper. According to the Supreme Court it was for the trial Court to record any finding in respect thereof and any party aggrieved by the findings of the trial court will have a right of appeal before the High Court after the case is decided. 17. We have examined the judgments of the Apex Court in the above referred decisions and we are of the view that the situations those led the Supreme Court to render both decisions are altogether different to that of the present case. If it is a case where without a detailed enquiry and gathering evidence, the factum of illegal detention or wrongful confinement cannot be established, then in the absence of such an enquiry, it may not be proper for the Court to award compensation in the petition filed under Article 226 of the Constitution of the India complaining breach of fundamental right to life and personal liberty. But there may be cases wherein without conducting any enquiry, perusal of material on record itself indicating wrongful arrest and illegal detention, and then the High Court while dealing with a petition under Article 226 of the Constitution of India seeking a direction in the nature of writ of mandamus, is not justified in insisting upon an elaborate enquiry into the controversial facts. When the allegations made in the affidavit filed by the appellants and the counter allegations in the counter affidavit filed by the petitioners and also the record of investigation obviously indicate illegal arrest and wrongful detention in prison, this Court in our view can record a finding that the arrest as well as detention are wrongful and illegal and that they are in clear breach of fundamental right to life and personal liberty of a citizen guaranteed under Article 21 of the Constitution of India and can proceed to award compensation. 18. Before arriving at a decision as to whether the material available on record justifies recording a finding as to the illegal arrest and wrongful confinement made by the respondents, we shall examine the fact situation in the present case. The village Administrative officer had sent up a report to Miduthuru Police Station on 25.12.2001 informing about the existence of the partially burnt unidentified deadbody in the fields. It is the version of the police that the de facto complainant-Venkata Laxmaiah, who is the brother of the deceased saw the news item published on 25.12.2001 in the daily newspaper, rushed to the fields of Alaganuru Village, identified the dead body as that of his brother, thereafter, lodged a report with the police on the same day stating that Pedda Laxmaiah was missing. The investigating officer prepared inquest panchanama as if the de facto complainant (informant) and some other relatives of the deceased identified the dead body of Pedda Laxmaiah. The version of the police is that on the night of 13.12.2001 Subbamma, the wife of the first appellant (A1) quarreled with her husband, came to the choultry, slept there itself in the night where the deceased also slept and during the said night, the deceased mis-behaved with Subbamma by laying his hand on her while she was sleeping. Thereafter, according to the police, Subbamma threatened the deceased that she would inform the same to her husband and see that the deceased (Pedda Laxmaiah) is killed. The theory introduced by the police in the record of investigation is that the above incident afforded motive for the appellants, who are closely related to each other to kill the deceased. All these facts have also been incorporated in the first information report lodged by the de facto complainant, who is the brother of Pedda Laxmaiah and according to the police they altered the section of law from 174 Criminal Procedure Code to one under Section 302 and 201 of IPC only basing on the said report. The entire record of investigation has been prepared as if the said contents of the first information report is the basis for suspecting the appellants as the perpetrators of the offence. 19. Though the police prepared the record of investigation indicating that the de facto complainant and some other relatives had clearly identified the dead body of the deceased-Pedda Laxmaiah, the alleged identification seems to be doubtful. As per the inquest report and postmortem report, the deceased was aged about 40 years, but as could be seen from the sworn statement recorded by the learned Sessions Judge, Kurnool, the age of the deceased-Pedda Laxmaiah is 55 years. Therefore, it is highly difficult to believe that, in fact, the brother and other relatives of the deceased identified the dead body as that of Pedda Laxmaiah. 20. The investigating officer prepared the record of investigation indicating that he in the course of investigation into the alleged offence examined several witnesses, but curiously Subbamma, who is said to be the wife of A1 was not at all examined by the investigating officer to satisfy himself as to whether, in fact, the alleged mis-behaviour of the deceased with Subbamma in the Choultry on 13.12.2001 did in fact take place or not. Since the basis for suspecting the appellants about their involvement in the commission of offence is the incident which took place in the choultry during the night of 13.12.2001, the investigating officer has to satisfy himself as to whether, in fact, Subbamma and the deceased stayed in the said Choultry during the said night and whether there was any incident in the course of which the deceased mis-behaved with Subbamma. 21. According to the appellants, they were arrested by the police on 10.01.2002, whereas according to the police, they arrested the appellants on 11.01.2002. However, the fact remains that on 12.02.2002 after examining Pedda Laxmaiah, the so called deceased and his brother China Laxmaiah and recording their sworn statements, the learned Sessions Judge Kurnool released the appellants. 22. Curiously, the investigating agency put forward a theory that basing on reliable information on 10.01.2002 at about 10 hours, the Circle Inspector of Police, Nandikotkur and S.H.O., Miduthuru Police Station staff and Panchayatdars proceeded to Soma Company bus stop by the side of Miduthuru road and arrested the appellants, recorded their confessional statements under a cover of mahzar in the presence of panchayatdars and in pursuance of the confessional statements of appellants, A-2 led the police party and panchayatdars to the bushes in Alaganur Barakas fields, picked up a knife from the bush and handed over the same to the C.I. of Police stating that they cut the throat of the deceased with the said knife. 23. Apart from other things, the alleged factum of recovery of weapon of offence (knife) supposed to have been made in pursuance of disclosure statements made by the appellants purportedly under Section 27 of the Indian Evidence Act is crucial to determine the falsity or otherwise of the investigation. The knife was allegedly produced by A2 voluntarily leading the police party and mediators to the bushes and picking up the knife therefrom and producing the same before the Circle Inspector of Police stating that they had cut the throat of the deceased with the said knife. The socalled recovery of knife in the manner stated hereinabove can form the sole basis for granting the relief prayed for by the appellants (writ petitioners). 24. Here, it is important to notice that we are not concerned with the admissibility or otherwise of the alleged confessional statements made by the appellants or A2 before the investigating officer and mediators. We have to keep in mind that we are dealing with the question as to whether the arrest and detention of the appellants is illegal or not. We wish to make it clear that according to the investigating agency the appellants had in fact stated that they killed the deceased Pedda Laxmaiah, (who, in fact, is alive) with a knife and that they threw the knife in the bushes with which they had slit the throat of the deceased. From the point of view of the investigating agency, we have to necessarily visualize that the appellants have made such confessional statements and thereafter A2 led the police party and the mediators to the bushes in Alaganur Barakas fields and picked up a knife and handed over the same to the Inspector of Police. At least, according to the police, all these things in fact, had occurred in their presence, that is the reason why they had incorporated the said facts in the record of investigation and they put forward a theory of recovery of a knife in pursuance of the confessional statements made by the appellants as mentioned above and the investigating officer wanted to prove the said recovery purportedly under Section 27 of the Indian Evidence Act against the appellants as one of pieces of evidence to substantiate the charge of murder. Butin reality Pedda Lakshmayya (the alleged deceased) was not at all killed and he is very much alive. That being the situation it is unimaginable that the appellant had made confessions to the Inspector of Police in the presence of mediator positively asserting that they had slit the throat of the deceased with knife, brought the dead-body and left the dead body in the field itself. 25. Apart from other aspects, the alleged theory of recovery itself is thus sufficient proof of the fact that the Inspector of Police and the Sub Inspector of Police very well knew that the appellants are not the offenders and they were falsely implicating them in this case, obviously to give some conclusion of their own to the crime reported, most probably to satisfy the superiors that they had sincerely discharged their duties in detecting the offenders, who committed the ghastly murder. The alleged theory of recovery of knife basing on the confessions made by the appellants coupled with the fact that the deceased Pedda Laxmaiah in fact, was not murdered and was very much alive leaves no manner of doubt whatsoever in our mind that the Inspector of Police and the Sub Inspector of Police knowing fully well that the appellants are not offenders in the alleged crime involving the offence of murder punishable under Section 302 IPC, falsely implicated the appellants in this case, obviously for statistical purpose to close down the case somehow or the other without conducting any investigation. 26. Yet another crucial aspect in this case is that the police department deployed special team to trace out the identity of the deceased and also the details concerning the alleged offence including the identity of the culprits, a very extensive and intensified investigation had been done into the alleged occurrence. But, ultimately the special team, which investigated the offence after thorough investigation submitted a final report before the Magistrate stating that the offence is undetectable. From this, one can reach only one conclusion which is nothing but the police with a view to close down the case relating to the occurrence wherein a dead body was found, themselves created a false story knowing fully well that the appellants are not at all the offenders, resorted to the heinous act of falsely implicating innocent persons in a grave charge of murder of a particular individual, even though, in fact, the said individual has been very much alive. The way in which the investigation had proceeded which is indicated in the foregoing paragraphs and the manner in which the appellants were deliberately and purposely implicated in a grave charge of murder is a matter of serious concern for us and this case is one of the classic examples of some of unethical methods being employed by the investigating agency to somehow give their own conclusion to a serious crime without really conducting any investigation. 27. In HINDUSTAN TRANSMISSION PRODUCTS LTD v STATE OF KERALA[3] in a petition filed under Article 32 of the Constitution of India for issuance of a writ of Habeas corpus to produce two persons, the Supreme Court directed the District Judge, Ludhiana to conduct an enquiry into the allegations made in the affidavits and counter affidavits and submit a report as to the veracity of the statements made by either of the parties particularly