THE HONOURABLE SRI JUSTICE N.V. RAMANA W.P. No. 26144 of 2010 O r d e r: The petitioner, who is the wife of one Sri. Adapa Venkanna, who was killed in an counter, allegedly by the police, has filed this writ petition, praying for the following relief: Issue an appropriate writ of Mandamus declaring the action of the respondents in brutally killing the deceased Sri. Adapa Venkanna under the colour of encounter as illegal, arbitrary, unconstitutional and consequently direct the respondents to appoint an independent and impartial Investigating Agency to investigate the matter and to direct the respondents to book a case against all responsible respondents for the encounter under Section 302 I.P.C and to pay compensation of Rs.50.00 lakhs to the petitioner and her children and be pleased to pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case and in the interest of justice. The petitioner states that she is the wife of Sri. Adapa Venkanna, and that they are blessed with four children. That the police during the last ten years, at the instance of respondent No.3, who was then working as Superintendent of Police Guntur, have falsely implicated her husband in about 30 cases for the offences punishable under Sections 380, 475 and 411 of I.P.C. on the file of various police stations in the State, and that in no case, her husband was found guilty. She further states that on 06.05.2010, her husband was illegally detained by the police CCS, Vijayawada, and that when she brought this fact to the notice of the higher-ups in the Police Department and to this Hon’ble Court, the police implicated him in a false case and got him remanded in judicial custody. Thereafter, her husband was released on bail on 29.09.2010. After his release from jail on bail, the petitioner states that her husband was living with her and his four children. While so, on 04.10.2010 at bout 4.00 p.m., her husband left the house with Rs.10.00 lakhs cash and 3.00 Kgs. of gold stating that respondent No.3 has called him. That thereafter, her husband called her and told that he was in a meeting with respondent No.3 and requested her not to call him. However, the petitioner states that on 05.10.2010 morning, she came to know through her neighbours that her husband was killed in an encounter by police in the wee hours of 05.10.2010. The petitioner states that she came to know that respondent Nos. 3 to 5 are responsible for the brutal and cold-blooded murder of her husband in a fake encounter. On coming to know about the cold- blooded murder of her husband by the police in a fake encounter, she approached the Human Rights Commission, New Delhi. However, to cover up their action, respondent No.5, on 05.10.2010, gave a report with regard to the encounter, and based on the said report, a case in Crime No. 335 of 2010 on the file of Penamaluru Police Station, Vijayawada, was registered for the offences under Sections 353, 307 r/w. 34 I.P.C. and Sections 25(1)A of the Arms Act, 1959 r/w. police firing and Sections 174 Cr.P.C. The petitioner states that respondent No.6 on coming to know that she is pursuing the encounter case, is threatening her with dire consequences and implicate her in false cases. The petitioner states that the respondents should register a case for the offence punishable under Section 302 I.P.C. against the persons responsible for her killing, and as police officials are involved, investigation into the case, should be done by an impartial agency. Hence, the petitioner filed the present writ petition, praying for the reliefs, as noted in the preliminary paragraph. Pursuant to the notices ordered by this Court, respondent No.3 filed detailed counter, which is adopted by respondent Nos. 1, 2, 4, 5 and 6 by filing a memo. In the counter filed by respondent No.3, that he has called for the entire record relating to the case and found that one Sri. G.V.V. Mohan, Sub-Inspector of Police, Penamaluru Police Station, lodged a compliant with the Inspector of Police, Penamaluru, stating that on the intervening night of 4/5.10.2010 while he along with his staff was performing patrolling duties, found some persons sitting on the parapet wall of Krishna River Ghat, and that they approached them and questioned as to what they were doing, and immediately, one of the two persons opened fire against them, while the other shouted stating that they are police and open fire at them, and that one bullet just missed the right ear of respondent No.5. That when the other person was also trying to open fire at them, in order to save their lives, in self-defence, respondent No.5 opened fire with his service pistol and as a result thereof, one person fell down and the other person escaped under the cover of darkness and that their efforts to apprehend him went in vain. That thereafter, the Assistant Commissioner of Police, East Zone, Vijayawada City, took up investigation. That the investigation is still pending, and that considering the gravity of the case, the Deputy Inspector General of Police, Eluru Range, West Godavari District, issued instructions in Memo C.No. 1038/C/2010, dated 30.10.2010 to the Assistant Superintendent of Police, Nuzvid, Krishna District, to take up further investigation into the matter, and that now the case is being dealt with by the Assistant Superintendent of Police, Nuzvid, Krishna District, under the supervision of Deputy Inspector General of Police, Eluru Range, West Godavari. He denied the contention of the petitioner that the police are threatening her with dire consequences and it is contended by him that the husband of the petitioner, who was killed in the encounter is a notorious criminal and that about 23 non-bailable warrants, issued by various courts are pending execution against him. The learned counsel for the petitioner placing reliance on a Full Bench judgment of this Court in A.P. Civil Liberties Committee v. State of A.P.[1] submitted that in every case of encounter between police and civilians, where death of a person/s takes place, a crime against the police who are involved in the encounter, for the offence under Section 302 I.P.C., has to be registered and investigation taken up. And as the husband of the petitioner was killed in the encounter, the police be directed to register a criminal case against the police involved in the encounter for the offence punishable under Section 302 I.P.C., and the investigation be entrusted to an independent agency. On the other hand, the learned Special Government Pleader representing the learned Advocate General, appearing on behalf of the respondents submitted that the husband of the petitioner is a notorious criminal. He is involved in criminal case. The husband of the petitioner died in a cross-fire, which took place between him and the police. In connections with the death of the petitioner’s husband in an encounter, the police have already registered a case in Crime No. 335 of 2010 on the file of Penamaluru Police Station, Vijayawada, for the offence punishable under Section 307 I.P.C., and have also taken up investigation. However, considering the gravity of the offence, and the allegations made against respondent No.3, the investigation of the crime has been handed over to an officer of other jurisdiction and the investigation is now being done by the Assistant Superintendent of Police, Nuzvid, Krishna District, under the supervision of Deputy Inspector General of Police, Eluru Range, West Godavari. He, however, submitted that if required, the Government is ready and willing to appoint any of the two officers, namely Sri. Krishnam Raju, Additional Director General (Administration) or Sri. A.B. Venkateshwar Rao, Insepctor General of Police, A.P. Police Batallion, to investigate the case in a fair and impartial manner. Hence, he submitted that there is no need to alter the section of law, much less any need to entrust the investigation of the case to an independent agency for investigation. As the counsel for the petitioner earlier did not appear on several occasions, considering the gravity of the allegations made by the petitioner against the police to the effect that they have killed her husband in a fake encounter in a cold-blooded manner, this Court appointed Sri. C. Padmanabha Reddy, as amicus curiae to assist the Court. Sri. C. Padmanabha Reddy, the learned senior counsel having perused the case papers, particularly the report lodged by respondent No.5, namely C.V. Mohan, Sub-Inspector of Police, Penamaluru Police Station, Vijayawada, based on which crime in F.I.R. No. 335 of 2010 was registered, submitted that since the Sub-Inspector of Police, in his report stated that he has opened fire against the culprits in self-defence with his service pistol, and as result of his opening fire, the husband of the petitioner died, it is a fit case where a case against respondent No.5 should be registered for the offence under Section 302 I.P.C. and investigation should be conducted into the circumstances that led to the opening of fire by him against the husband of the petitioner. Heard the learned counsel for the petitioner, the learned Special Government Pleader representing the learned Advocate General for the respondents and the learned senior counsel Sri. C. Padmanabha Reddy, amicus curiae. According to the respondents, the husband of the petitioner is a notorious criminal that he is involved in several cases of robbery, registered in various police stations in the State. Admittedly, the husband of the petitioner was killed in an encounter by the police which took place in the wee hours of 04/05.10.2010. The petitioner contends that the respondents have killed her husband in a fake encounter and that it is a cold blooded murder. As can be seen from the report lodged by respondent No.5 to the Circle Inspector of Police, Penamaluru Police Station, Vijayawada, based on which the crime in question was registered, that on the eve of visit of the Chief Minister to Krishna District, he along with his staff was conducting patrolling on 04/05.10.2010, and that respondent No.5 along with his staff was conducting patrolling, found some persons sitting on the parapet wall of Krishna River bund and chit-chatting, and when they confronted them and asked as to what they were doing in that dead of night, one of the two persons shouted that police and fire at them, and that one other person, who is the husband of the petitioner opened fire and that the bullet just missed the right ear of respondent No.5, and that in self-defence, to save their lives, respondent No.5 opened fire from his service pistol, and as a result thereof, the husband of the petitioner died. From the averments made by respondent No.5 in the complaint given by him to the Circle Inspector of Police, Penamaluru Police Station, Vijayawada, it is evident that the husband of the petitioner died due to the opening of fire by respondent No.5 from his service pistol allegedly in self-defence to save their lives. Whether respondent No.5 opened fire in self- defence to save themselves from the fire allegedly opened by the husband of the petitioner and another or not, is a matter that requires investigation. In People’s Union for Civil Liberties (PUCL) v. Union of India[2], a judicial enquiry was sought by the petitioner therein into the killing of two persons allegedly in a fake encounter by the police. The Apex Court considering the manner in which the two persons were killed was in dispute, the petitioner contending that the two persons were killed by the police from point blank range in a cold- blooded manner, while the police contending that they were killed in a police encounter, felt it appropriate to get the incident enquired into by a judicial officer of the rank of District Judge. In the instant case, the complaint lodged by respondent No.5 prima facie disclosed that due to opening of fire by him, allegedly in self-defence, the husband of the petitioner died in the encounter. Hence, I am of the considered opinion, it is a fit case where a crime for the offence punishable under Section 302 I.P.C. has to be registered against respondent No.5 and investigated into. Upon registration of the crime against respondent No.5, it shall be investigated into along with the crime registered, based on the complaint lodged by respondent No.5, to find out whether respondent No.5 opened fire from his service revolver in self-defence to save their lives or the victim was killed in a fake counter conducted by respondent No.5 and his party, as alleged by the petitioner. Hence, the Circle Inspector of Police, Penamaluru Police Station, Vijayawada, is directed to register a case under Section 302 I.P.C. against respondent No.5 in relation to the encounter in question, in which the husband of the petitioner died. Since the Deputy Inspector General of Police, Eluru Range, West Godavari District, has already issued instructions in Memo C.No. 1038/C/2010, dated 30.10.2010, to the Assistant Superintendent of Police, Nuzvid, Krishna District, to take up further investigation, it is directed that the Assistant Superintendent of Police, Nuzvid, Krishna District, shall investigate the crime now to be registered against respondent No.5 for the offence under Section 302 I.P.C. along with the crime already entrusted to him for investigation, under the supervision of Deputy Inspector General of Police, Eluru Range, West Godavari, and file chargesheet/final report. Accordingly, the writ petition is allowed with the above directions. No costs. _________________________ JUSTICE N.V. RAMANA Dated: August, 2011 KSR [1] 2007 (5) ALT 639 [2] 1995 Supp (2) SCC 572