* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN +WRIT APPEAL NO.321 OF 2010 %Dated:03.08.2010 Between: Smt. Uppalapati Nirupa Rani And another …Petitioners and Koganti Lakshmi and others …Respondents ! Counsel for the Petitioners: B.Adinarayana Rao ^Counsel for the Respondents: GP for Home <Gist: >Head Note: ?Citations: 1. (2009) 9 SCC 610 2. (2010) 2 SCC 200 3. (2001) 6 SCC 584 : AIR 2001 SC 3320 4. (2008) 3 SCC 542 : AIR 2008 SC 1614 5. 1992 Supp (1) SCC 335 : AIR 1992 SC 604 6. 1995 Supp.(1) SCC 179 7. (1996) 3 SCC 587 8. (2001) 6 SCC 380 : AIR 2001 SC 1851 9. (1980) 14 ChD 458 10. AIR 1982 SC 149 : 1981 Supp SCC 87 11. AIR 1967 SC 1 : 12. (2002) 4 SCC 388 : AIR 2002 SC 1771 13. (2008) 2 SCC 409 : AIR 2008 SC 907 14. (1989) 2 SCC 314 : AIR 1989 SC 1452 15. AIR 1994 SC 38 : 1994 Supp (1) SCC 143 16. (2010) 3 SCC 571 17. (1970) 1 SCC 633 : AIR 1970 SC 1126 18. 1994 Supp (2) SCC 116 : 1994 SCC (Cri) 873 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN WRIT APPEAL NO.321 OF 2010 03.08.2010 Between: Smt Uppalapati Nirupa Rani And another. …. Appellants AND Koganti Lakshmi and others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN WRIT APPEAL No.321 OF 2010 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) ‘Aabharan’ is a firm. First respondent herein is its partner. The firm is in the business of selling imitation jewellery, stone ornaments, antic ornaments, fashion bangles and hair accessories. The shop is situated in rented premises bearing door No.40-1-53B owned by U.Aditya and his sister U.S.Spandana, at Benz Circle, Vijayawada. The lease was negotiated by their parents – appellants herein; in whose favour owners executed GPA. First respondent found that their shop was burgled in the intervening night of 15-16th of November, 2009. Their partner gave a report to fifth respondent. The same was registered as crime No.586 of 2009. Alleging that Station House Officer (SHO), P.S., Machavaram (fifth respondent) is not investigating, first respondent filed writ petition seeking a direction to respondents 2 to 5 to entrust investigation to Crime Branch of Crime Investigation Department (CBCID). Learned single Judge issued mandamus as prayed. Further direction was issued to ensure that investigation is completed and appropriate charge sheet/final report is filed within three months. The appellants, with leave, filed the instant appeal. The lease of the premises for running ‘Aabharan’ business is not disputed. In addition to the brief background of the case, as above, some of the allegations made by first respondent need to be noticed. First respondent and two others, namely, Panchakarla Devi Vanitha and Chirrareddy Nandini constitute a registered firm. They commenced ‘Aabharan’ on 31.07.2009 in the rented premises. As per the lease deed, dated 01.07.2009, the monthly rent payable is Rs.18,000/-. Since first week of November, 2009, the appellants and their relatives Koganti Ramakrishna and Koganti Balakrishna conspired and started harassing and threatening to compel first respondent to vacate the shop. On 15.11.2009, all the partners verified the accounts upto 9.00 p.m. On the next day, when the shop was opened at 9.30 a.m., by first respondent, Devi Vanitha and her husband, they found that flex sheet of glow sign board of the shop and locks were removed and there were two new locks on the shop with two private security guards standing there. In early hours on 16.11.2009, the appellants and others illegally broke open the shop locks and looted the stocks worth about Rs.10,00,000/- and cash amount of Rs.2,20,000/- as well as entire correspondence, rent receipts, records, bills, lease agreement, computers, credit card machines etc. First respondent, Devi Vanitha and her husband reported the crime to SHO, PS, Machavaram. They waited at Police Station upto 1.30 p.m., on that day. At that time, the Court staff served notice, copy of the petition in I.A.No.641 of 2009 in O.S.No.1366 of 2009 on the husband of Devi Vanitha. They came to know that shop owners represented by their mother filed the said suit on the file of the Court of I Additional Senior Civil Judge, Vijayawada for permanent injunction against M/s.R & R Enterprises and obtained ex parte injunction on 13.11.2009. It is alleged that R&R Enterprises belonging to husband of first respondent was closed and agency was concluded by the end of June, 2009 and thereafter the new firm ‘Aabharan’ entered into on lease. Be that as it is, appellant moved an application before the civil Court seeking eviction and ad interim order. In that connection, as per the orders of the civil Court, Advocate Commissioner visited the shop on 24.11.2009 and filed report on 03.12.2009. The SHO did not take any action on the report given on 16.11.2009. Hence, first respondent sent the report to the Commissioner of Police, Vijayawada (CP, for brevity) by registered post. First respondent and her partners went to the Office of the CP., and narrated the incident, in vain. The appellants are influential persons and allegedly they managed the CP and SHO. First respondent, therefore, made a representation on 21.11.2009 to the Hon’ble Home Minister duly marking copies to Director General of Police (DGP) and CP. Thereafter, on 21.11.2009 at 8.00 p.m., SHO registered First Information Report (FIR) being crime No.586 of 2009 under Sections 341, 427, 506 read with Section 34 of Indian Penal Code, 1860 (IPC) against appellants herein and others. Except registering FIR, till February, 2010, SHO did not take any action. SHO filed counter affidavit opposing transfer of case to CBCID. He alleged as follows. After registering the crime, sixteen witnesses were examined including the petitioner. The scene of offence was examined and observation report and rough sketch were prepared in the presence of Mediators. During the investigation, it has been found the number of civil suits are pending before the civil Courts in respect of the subject matter, and therefore, it is found not possible to come to a conclusion to investigate and that after obtaining relevant information, suitable action will be taken in the crime No.586 of 2009. Further detailed investigation is going on and prima facie it is not possible to establish the guilt of the alleged accused beyond reasonable doubt. Learned single Judge on consideration of the affidavit evidence and documents, recorded the findings as follows: SHO did not register FIR with promptitude and he did not arrest the accused under Section 157(1) of Code of Criminal Procedure, 1973 (CrPC) immediately. The investigation was not commenced by the SHO immediately in right earnest nor did he exhibit neutral posture that he would investigate the crime impartially. After recording these findings, learned Judge referred to various authorities including latest decision of the Supreme Court in Babubhai Jamnadas Patel v State of Gujarat[1] and Rubabbuddin Sheikh v State of Gujarat[2] (Sohrabuddin case), allowed the writ petition directing the DGP and CP to entrust the investigation to CBCID for expeditious completion and filing of report before the Court. Before parting with the case, learned Judge made the following observations with which we fully concur. “Before concluding, I feel impelled to express my irrepressible feelings as the context of this case warrants me to do so. It is imperative for the Police, who are entrusted with the onerous responsibilities of maintenance of law and order, investigation into offences and prosecution of the offenders to act in the most efficient, fair, transparent and unbiased manner. It is indeed a matter of grave concern that too many apprehensions are raised too often against them in discharging these duties. Be it in the method and manner of investigation or in the area concerning interference in civil disputes, serious questions about their integrity are raised. Paradoxically, while a large chunk of victims imputes inaction to the Police in registration of cases or in making fair and proper investigations, as in the present case, myriad complaints received by this Court by way of writ petitions day in and day out accuse them of unwarranted interference in disputes, which are purely civil in nature. … the apex Court in K.C.Sareen v CBI, CHandigarh[3] has taken judicial notice of the fact that corruption by public servants has reached monstrous dimensions in India and that its tentacles have started grappling even the institutions created for the protection of the people.” The counsel for the appellants submits that mandamus issued by this Court is in contravention of settled principle that without there being any formidable reasons and grave situation, the investigation cannot be entrusted to a different agency ignoring the police. He would urge that the learned single Judge ought not to have entertained the writ petition when the appellants herein were not made parties to the proceedings and the direction issued by this Court is in violation of principles of natural justice. He relies on the decision of Supreme Court in Divine Retreat Centre v State of Kerala[4]. Per contra, counsel for first respondent (writ petitioner) submits that the inaction on the part of SHO in not registering the FIR when a cognizable offence is reported, in not taking up investigation immediately and not conducting investigation as required under law are grounds enough for the Court to issue Mandamus directing investigation to CBCID. He nextly contends that the petitioners who are accused in the crime cannot have any grievance if the case is entrusted by the police to agency like CBCID or CBI or any other independent agency and that the law does not recognize the right of the accused to choose the investigating agency. In the background facts and submissions made across the bar, two points would arise for consideration. (i) Whether the principles of natural justice are violated if the case is entrusted to CBCID ignoring the regular police investigating agency? (ii) Whether in the facts and circumstances of this case, crime No.586 of 2009 cannot be entrusted to CBCID without first hearing the accused in the crime? The executive branch of the State is entrusted with maintenance of law and order, investigation of crime and the duty to prosecute cases against those who contravened criminal law. The police organization which is a specialized agency to discharge the functions of the State in this regard has hierarchy of officers assigned with duties and functions. When the crime is reported, it is ordinarily the competent SHO who will investigate the crime and file a report under Section 173(2) of CrPC before the magistrate competent to take cognizance. However, in certain cases and certain situations, the investigation is entrusted to specialized agencies/branches of the police organization. These are for instance Crime Investigation Department (CID), Organised Crime Department, Dacoity Wing, Intelligence Wing, Cyber Law Department and the like. Which are the cases to be entrusted to these are dealt with by Andhra Pradesh Police Standing Orders (PSOs) leaving the plenary and residuary power to the Chief of the Police, namely, Director General of Police of the State to transfer any case from any police station to other police station? PSO 861.1, 1028 and 1031 of old Police Standing Orders deal with these aspects. In 2002, these Police Standing Orders have been revised. PSO 861-1 and 866-1 deal with these aspects and are extracted hereunder. 861-1. Functions of Crime Investigation Department are:- A. Investigation of specified cases and cases entrusted by the Government and DGP. B. Maintenance, up-dating and use of crime-criminal information system, crime and criminal records, planning and implementation of criminal intelligence and crime analysis to improve prevention, investigation and prosecution. C. Coordination of investigation in the State and with other States and National Institutions/Organisations dealing with crime investigation. D. Efficient, professional and independent functioning of SCRB, FPB and their modernization. E. Advise, assist and report to DGP and Government on matters concerning investigation and prosecution. 866-1. The Crime Investigation Department, will ordinarily, deal with crimes of the following classes. Request for taking up of investigation by CID can be made by any Unit Officer, but without the orders of Additional DGP CID or DGP no enquiry or investigation shall be taken up by CID. A to H Omitted I. Frauds, thefts or cheating of a peculiar nature affecting more than one district. J to T Omitted U. Any serious crime, which appears to have a political motive, including all offences, connected with arms and explosives, which are suspected to be of a political nature. V to X Omitted Y. Cases of such a nature as, in the opinion of the DGP, the Additional DGP CID or District authorities, call for investigation by an officer of the CID. Z Omitted Thus, under para 861.1, it is open to the Government or DGP to entrust the investigation of specified cases to CBCID, if they are of the opinion that by nature such cases calls for investigation by an officer of CBCID. While doing so, the Government or the DGP is entitled to rely on information received from various sources or the inputs that go into review of cases depending on the situation. In an appropriate case, if it is made out that the SHO of the police station where the crime is registered is not investigating the crime, the remedy of the complainant is to approach the higher official like the CP or DGP. Even if there is no response at that level, a citizen can always approach the High Court under Article 226 of Constitution and seek appropriate redressal. Be it noted that it is a human right recognized under the constitution to seek redressal in law if crime is committed against his life and liberty. As we presently see there is no corresponding human right vested in accused to be informed early that a crime is being registered against him or her or a crime is being investigated and/or a registered crime is being transferred from one agency to other agency for the purpose of investigation. Criminal Justice Administration can be viewed in five stages; namely, (i) registration stage; (ii) investigation stage; (iii) trial stage; (iv) imprisonment stage; and (v) rights of victim. We need to mention that Articles 14, 20, 21 and 22 of Constitution of India as well as various provisions of CrPC give effect to human rights entrenched in the Universal Declaration of Human Rights, 1948 (UDHR), and International Covenant on Civil and Political Rights, 1966 (ICCPR) (International Bill of Human Rights). Article 11(2) of UDHR and 15(1) of ICCPR and Article 22 of Constitution bar ex post facto operation of law, “no person can be accused and convicted of an offence for an act, which was not an offence under law in force when it was committed”. Articles 9, 10 and 11 of UDHR and Article 9 of ICPR as well as Articles 14 and 21 of Indian Constitution ensure right to “due process of law” and injunct that a person shall not be deprived of dignity, life, liberty except in accordance with fair procedure established by law’. When a crime is committed against the person or property, or against the State, such a person has a right to seek redressal. The non-registration of a crime is violation of human right. Article 8 of UDHR and Articles 3(a), 3(c) of ICCPR, Articles 14 and 21 of Constitution read with Section 154 of CrPC makes it abundantly clear that if a cognizable offence is not registered and investigated, it would certainly result in violation of human right. In Indian law, as per Section 2(e) read with 2(f) of Protection of Human Rights Act, 1993, human rights are those guaranteed under Part III of Constitution, and the rights recognized in ICCPR. Therefore, the High Court as sentinel on the qui vive to protect the human rights can intervene and issue appropriate mandamus. At the stage of registration of crime, the persons accused of committing such crime cannot have and should not have any right except to a limited extent invoking power under Section 482 of CrPC for quashing the investigation into a crime by showing that the investigation of crime would be abuse of process of law and would result in miscarriage of justice. Even in such proceedings, no accused can be heard to say that he has not been issued notice before registering crime or entrusting the investigation to an agency other than regular police. What are the rights of accused at the stage of investigation? By reference to the provisions of the Constitution and the relevant Articles/Covenants in UDHR and ICCPR and the provisions of CrPC, the following rights of accused can be listed. Human Rights of Accused at the stage of Investigation Relevant Section in Code of Criminal Procedure Right Entrenched Constitutional Recognition Provision in International Bill of Human Rights 41, 49, 55, 151 Protection against arbitrary or unlawful arrest Article 22 Article 9[5] of UDHR Article 9(1)[6] of ICCPR 93, 94, 97, 100 (4), 165 Protection against arbitrary or unlawful searches Article 12[7] of UDHR 400 Protection against “Double Jeopardy” Article 20(2) Article 14(7)[8] of ICCPR 56, 57, 76 Protection against arbitrary or illegal detention in custody Article 22 Article 9 of UDHR Article 9(1) of ICCPR 50, 55, 75 Right to be informed of the grounds, immediately after arrest Article 22(1) Article 9(2) of ICCPR 303 Right to consult a lawyer of choice Article 22(1) Article 14(3)(b)[9] of ICCPR 57, 76 Right to be produced before a magistrate within 24 hours of arrest Article 22(1) Article 9(3) of ICCPR 50(3), 436, 437, 439A Right to be released on bail, if arrested Article 14, 21 Article 9(3) of ICCPR In oft quoted State of Haryana v Bhajan Lal[10], Supreme Court pointed out the following situations and circumstances in which investigation into a crime can be quashed. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The decisions that followed and relied above regimen are galore. None of the Judgments support argument that in criminal investigation at the stage of registration or at the stage of investigation, the accused should be informed before hand about the agency investigating the case or method and manner of investigation or the forensic experts and facilities, which are being consulted or urged. We will now take up the criticism of the counsel for the appellants that their non-joinder to the proceedings is bar to issue a mandamus. It is too well settled that the High Court ought not to dispose of the writ petition under Article 226 without the persons who are likely to be affected by such order (see Prabod Varma v State of U.P.[11], Iswar Singh v Kuldip Singh[12] and All India SC & ST Employees’ Association v A.Arthur Jeen[13]). The incidental question then is who would be aggrieved, who ought to be arrayed as a respondent in a writ petition. Notwithstanding relaxation of strict rule of ‘standing’ in public interest litigation, the common law rule of locus standi and “person aggrieved” remain the same. The locus standi principle enunciated in Ex parte Sidebotham[14], that “person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something or wrongfully affected his title to something” remains etched in common law fount. Referring to Sidebotham in S.P.Gupta v Union of India[15], a seven Judge Bench held that, “the traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement as to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or a legally protected interest of the person seeking such redress”. This rule is of ancient vintage. But it still holds good in private law or public law which is concerned with private law disputes like in criminal jurisprudence. This cannot be ignored while appreciating the submission of the appellants. They urge that their non-joinder and denial of opportunity before transferring the case to CBCID is palpable error that invalidates impugned mandamus. We are afraid the submission is without any merit. We may say that an order of Court cannot be challenged as violative of rule of adi alteram partem. We may also say that ordinarily order of the Court cannot be permitted to be challenged as arbitrary. We may also say that an order of the High Court passed in exercise of the jurisdiction in one area of law cannot be impeached in another proceeding invoking different jurisdiction of the High Court. If a mandamus is issued to public authority either to enforce the rights of the aggrieved or to compel discharging a public duty and it affects a person who is not a party before the Court, the remedy is two fold: by way of seeking the review of the order and/or by filing an intra Court appeal under Letters Patent or Parliamentary law. (See Naresh Shridhar Mirajkar v State of Maharashtra[16] and Rupa Ashok Hurra v Ashok Hurra[17]). In either case, the defect of non-joinder to the original proceedings is cured and the review Court or appellate Court can re-hear the matter. In such an event, the plea of violation of natural justice would no more available. In a writ petition seeking the transfer of investigation from the police station to another agency, the accused person(s) cannot come within the ambit of necessary or proper parties, notwithstanding the constitutional remedy under Article 226 to quash the investigation or statutory remedy under Section 482 of CrPC to quash the investigation. The human rights of the persons offended at the stage of registration, and of the accused at the stage of investigation have been adverted to. No accused can legitimately make out a