*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY + WRIT PETITION No.4106 of 2010 % Dated 23-3-2010 #Koganti Lakshmi. … Petitioner Vs. $ The State Government of Andhra Pradesh, Reptd., by its Principal Secretary, Home Department, Secretariat, Hyderabad and others. … Respondents ! Counsel for the petitioner: Sri Narasimha Rao Gudiseva. ^ Counsel for the respondents: AGP for Home. <Gist: >Head Note: ? Cases referred: 1) 1994 Supp (1) SCC 143 2) (2006) 2 SCC 677 3) 1988 Supp SCC 482 4) (1992) 1 SCC 397. 5) (2010) 2 SCC 200 6) (2009) 9 SCC 610 7) 2001 (5) Supreme 437 8) (1996) 2 SCC 199 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE TWENTY THIRD DAY OF MARCH, TWO THOUSAND TEN WRIT PETITION No.4106 of 2010 Between: Koganti Lakshmi. … Petitioner And The State Government of Andhra Pradesh, Reptd., by its Principal Secretary, Home Department, Secretariat, Hyderabad and others. … Respondents Counsel for the petitioner: Sri Narasimha Rao Gudiseva. Counsel for the respondents: AGP for Home. This Court made the following: ORDER:- This Writ Petition is filed for a Mandamus to declare the inaction of the respondents in investigating into burglary/robbery committed in the night of 15/16-11- 2009 in Aabharan shop, bearing Door No.40-1-53B of Benz Circle, M.G.Road, Vijayawada, as illegal and arbitrary. The petitioner also sought for a direction to the respondents to handover the case to an independent agency, like CBCID, for proper investigation. The petitioner is the Managing Partner of the shop, by name, Aabharan, located in the above mentioned premises. The said premises was allegedly taken by the petitioner and their partners on lease under agreement, dated 1-7-2009, on a monthly rent of Rs.18,000/- from the GPA holders of original owners, by name, U.Aditya and U.S.Spandana, residents of USA. The petitioner specifically alleged that from the first week of November, 2009, the parents of the original owners of the said premises, by name, Smt.U.Nirupa Rani and her husband-Sri U.Venkata Sai Balaram, and their relatives Sri Koganti Ramakrishna and Sri Koganti Balakrishna have conspired together and started harassing and threatening the petitioner with dire consequences if she did not vacate the said premises. On 16-11-2009 when the petitioner, her partner- Smt.Panchakarla Devi Vanita and her husband went to the shop, to their shock, they have found removal of sign board and locks. The petitioner averred that during the early hours of 16-11-2009 the said Smt.U.Nirupa Rani, her husband and their relatives-Sri K.Ramakrishna and Sri K.Balakrishna along with their henchmen highhandedly and illegally broke open the locks of the shop illegally and looted the entire stock worth about Rs.10,00,000/-, cash of Rs.2,20,000/-, computers, credit card machines etc. The petitioner’s partner-Smt.Panchakarla Devi Vanitha and her husband gave a report to respondent No.4 on the same day; that while the report was not registered as a crime, the Court staff came and served a notice and a copy of the petition in I.A.No.641 of 2009 in O.S.No.1366 of 2009 on the husband of the petitioner’s partner; that on perusal of the said notice it has come to light that the shop owners, represented by their mother, filed O.S.No.1366 of 2009 on the file of I Additional Senior Civil Judge, Vijayawada, for grant of permanent injunction against M/s. R & R Enterprises and got an exparte interim order on 13-11-2009. The petitioner pleaded that the said R & R Enterprises was earlier run by the husbands of the petitioner’s partners; that due to sustaining of losses they have closed the business; that the tenancy was concluded by the end of June, 2009; and that, thereafter, the petitioner and her partners have taken the said premises on lease and started Aabharan Fashion Imitation Jewellary shop. The petitioner further alleged that as respondent No.4 has not taken any action on her report, on 17-11-2009 the petitioner and her other partners sent a report, by registered post, to respondents 3 and 4. As no action was taken thereon, the petitioner and her partners are stated to have gone to the office of respondent No.3 and narrated the entire incident to him. As the said representation also did not yield any result, they submitted a representation on 21- 11-2009 to the Honourable Minister for Home for taking necessary action in the matter by marking copies of the said representation to respondents 2 and 3. The petitioner specifically pleaded that she and her partners, apart from repeatedly requesting respondent No.4 to take action, were literally staying at the Police Station itself from 16-11-2009; and that after the petitioner and her partners sent their representation to Home Minister, respondent No.4 hurriedly registered the complaint on 21-11-2009 at 8-00 P.M., as crime No.586 of 2009 against Smt.Uppalapati Nirupama Rani, Sai Venkata Balaram, Ramakrishna and Balakrishna and others for the offences punishable under Sections 341, 427 and 506 IPC, read with Section 34 IPC., as if the report was given on the said date. The petitioner stated that though the complaint was registered, no action was taken either to arrest the accused or to recover the stolen articles. It is further stated that only after the Advocate- Commissioner opened the shop on 24-11-2009 at 4-30 P.M., as per the directions of the I Additional Senior Civil Judge, Vijayawada, they came to know, for the first time, that the entire shop was looted, articles worth about Rs.10.00 lakhs, cash of Rs.2,20,000/- were stolen. On 25-11-2009 the petitioner submitted another report to respondents 3 and 4 regarding the theft committed by the said persons, but, despite her repeated requests, no action has been taken. It is pertinent to refer to the specific averments made in the affidavit on the alleged inaction of respondent Nos.3 and 4 hereunder: “I state that immediately my partner Panchakarla Devi Vanitha and her husband presented a report with the above facts to 4th respondent, but police have not taken any action.” “It is submitted that when the 4th respondent is not taking any action on our report, on the very next day i.e., 17.11.2009, we sent the same report by way of Regd. Post to 3rd and 4th respondents, even then also they have not taken any action. Then, myself and my partners went to the office of the 3rd respondent and narrated the entire incident and gave the copy of the said report and requested him to investigate into the matter and take immediate action against the above said persons. In spite of my repeated requests the respondents have not taken any action. I state that myself and my partners continuously requested the respondent Nos.3 and 4 to take action, but they have not even moved their little finger.” “I submit that U. Nirupa Rani and her husband are very influential persons and very very rich in the city and they have managed the 3rd and 4th respondents to see that no action should be taken against them. As there is no response, since 16.11.2009 from 3rd respondent and 4th respondent in spite of my repeated requests, I made a representation dated 21.11.2009 to the Hon’ble Home Minister to take action against the above said persons on the report and copies are marked to respondent Nos.2 and 3 and D.I.G. of police under Regd. post. The copies of representation, postal receipts and acknowledgements are herewith filed for kind perusal of this Hon’ble Court.” “It is submitted that as myself and my partners are repeatedly requesting the 4th respondent and staying at police station itself since 16.11.2009. After receipt of the letter addressed to the Home Minister, 4th respondent hurriedly on 21.11.2009 at night 8.00 p.m. registered the complaint with previous date i.e., as F.I.R. for offences punishable under Sections 341, 427, 506 r/w 34 of I.P.C. in Crime No.586/2009 against Uppalatapi Nirupama Rani, Sai Venkata Balaram, Ramakrishna and Balakrishna and others as if the report was presented on 21.11.2009. Though the crime was registered against the above persons on 21.11.2009 till today no further action has been taken, no single arrest was affected and no investigation was conducted in the above crime simply they registered the case and washed their hands to escape the pressure from us.” The petitioner filed copies of the representation sent to respondent Nos.2 and the Hon’ble Home Minister. In their representation, they have stated that though they have reported on the incident to respondent No.4 on 16.11.2009, case was not registered. In the representation submitted to the Home Minister, it is stated that as respondent no.4 has not registered the case, they have sent copy of the complaint through registered post along with a covering letter to respondent No.4 and respondent No.3 apart from their personally meeting respondent No.3 in his office on 20.11.2009 at 12.00 noon and that as no action was taken, they were sending the representation to the Hon’ble Minister. Inspite of specific allegations having been made against respondent No.3 on his alleged inaction, he has not filed any counter-affidavit. The Inspector of Police-R.4 filed a counter- affidavit, wherein it is, inter alia, stated that on 21-11- 2009 the petitioner lodged a complaint, which was registered as Crime No.586 of 2009 for the offences punishable under Sections 341, 427 and 506 IPC, read with Section 34 IPC; that, in pursuance of registration of the crime, as many as 16 witnesses were examined; and that, during the course of investigation, the petitioner and the accused submitted various documents showing their possession over the premises in question. It is further averred that a perusal of the documents submitted by the accused shows that the original owners gave the premises on lease to the husband of the petitioner and another for the period from 1-2-2008 to 31-12-2008 for running the business in the name of R & R Enterprises; that as the lease period had expired, the accused forwarded a letter to the petitioner to vacate the said premises; and that from the delivery letter dated 20-9-2009 submitted by the accused it is clear that the petitioner vacated the said premises and handed over the same on 20-9-2009. Respondent No.4 further stated that the accused filed O.S.No.1366 of 2009 against the petitioner; that on 13- 11-2009 the accused have obtained temporary injunction restraining the petitioner and other partners from interfering with the premises in question till 20-11-2009; that on the petitioner approaching the civil Court, an Advocate-Commissioner was appointed, who broke open the lock of the premises on 21-11-2009, prepared an inventory and submitted a report to the Court. It is further stated that the investigation so far held discloses that a number of civil suits are pending in various civil Courts; that both the parties are claiming their respective possession over the premises in question; and that, at this juncture, it is not possible to come to a conclusion either way. It is further stated that a prima facie case is not yet established to find the guilt of the “alleged accused beyond all reasonable doubt”. A careful perusal of the contents of the counter- affidavit referred to above reveals utter lack of seriousness on the part of respondent No.4 in registering the complaint at the earliest and in carrying on the investigation after belated registration of the case. As could be seen from the contents of the affidavit reproduced above, the petitioner specifically alleged that from 16-11-2009 she and her other partners had been making repeated requests to respondent No.4 to register a case on the incident stated to have taken place on the early morning of 16-11-2009. She has further stated that though she and her partners approached respondent No.3 and literally spent their time in Police Station from 16.11.2009, respondent No.4 did not take any action, and that it is only after her representation made to the Home Minister on 21-11- 2009, that respondent No.4 registered the crime five days after the alleged incident had taken place. Significantly, respondent No.4 had not even adverted to any these allegations, what to say of denying them, except taking the stand that the report was given by the petitioner’s partner on 21.11.2009. As he failed to controvert these allegations, it is reasonable to presume that they bear truth. The indifference exhibited by respondent No.4 in registering the crime on the reports submitted by the petitioner and her partners and inaction on the part of respondent No.3 in giving appropriate directions to respondent No.4 on the representation of the petitioner in terms of Section 154 (3) of the Code of Criminal Procedure, 1973 are clearly evident from the above mentioned facts. The tenor of the counter-affidavit filed by respondent No.4 goes to show that he does not appear to maintain a neutral posture and it discloses a somewhat biased approach towards the accused. His conclusion that the petitioner delivered vacant possession, based on a purported delivery receipt, displays his preconceived disposition while on his own showing several civil cases are pending between the parties on the issue of tenancy and possession of the demised premises. Strangely, he described the accused as “the alleged accused”, whenever a reference is made to them in his counter-affidavit; which also reveals his mindset in not treating the alleged offenders as accused though a case has been registered against them. Further more, respondent No.4 appears to be labouring under a misconception that as investigating agency he can take action only if the offence alleged against the accused is proved beyond all reasonable doubt. He is evidently oblivious of the position that at the investigation stage it is not necessary for him to be satisfied that the accused have committed the offence beyond all reasonable doubt. Respondent No.4 failed to indicate as to why he has not arrested any accused in the face of the serious allegations made by the petitioner in the complaint narrating the circumstances in which the offence has allegedly been committed by exercising his power under Section 157 (1) Cr.P.C. Existence of power of the superior Courts to order for investigation by an independent agency, such as the Central Bureau of Investigation (for short “the CBI”) is no longer res integra. In R.S.Sodhi Vs. State of U.P.,[1] the Supreme Court observed that in view of the accusations made against the local Police, it was desirable to entrust the investigation to an independent agency like the CBI. It has held - “However, faithfully the local Police may carry out the investigation, the same will lack credibility since the allegations are against them”. Similar view was expressed by the Supreme Court in Ramesh Kumari Vs. State (NCT of Delhi)[2]. Even in cases where charge sheets were filed, the Supreme Court directed the Magistrates to exercise their powers under Section 173(8) Cr.P.C., to direct the CBI for proper and thorough investigation. (See: Kashmeri Devi Vs. Delhi Admn[3] and Gudalure M.J.Cherian Vs. Union of India[4]). In a recent judgment in Rubabbuddin Sheikh Vs. State of Gujarat[5], the Apex Court restated the legal position on this aspect and directed the CBI to investigate the offence where allegations of involvement of the Police of the Gujarat, Rajasthan and Andhra Pradesh States were made in the alleged fake encounter of Sohrabuddin. In Babubhai Jamnadas Patel vs. State of Gujarat and others[6] the Supreme Court held: “The Courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The Courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as they were required to perform under the various statutes and orders passed by the administration.” Even though the complaint pertains to a serious incident of robbery of the imitating Jewellary worth about Rs.10.00 lakhs and cash of Rs.2,20,000/-, the respondents failed to convince this Court that they have taken proper action commensurate with the gravity of the alleged offence. The lackluster manner in which the investigation was conducted and the apparently biased approach in obviously trying to shield the accused, convince this Court that the investigating agency failed in its duty in making fair and proper investigation of the case. Therefore, I am of the opinion that interests of justice warrant that the investigation is entrusted to another agency. The Writ Petition is accordingly allowed directing respondent Nos.2 and 3 to entrust the investigation to the CBCID and ensure that the investigation is completed and appropriate charge sheet/final report is filed within a period of three months from today. 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 Vs. CBI, Chandigarh[7] 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 republic. I am of the considered view that the time has come that the people at the helm should make a serious introspection and identify vulnerable areas serving as root causes for this malaise. Unless a potent drug is administered sooner to free the disciplined force of this malignancy, I am afraid, the Society will be overcome by unrest and chaos and peoples’ faith in the system will be eroded. The observations of the Supreme Court in Vineet Narain Vs. Union of India[8] (known as “Jain Diaries case”), are apt to be remembered in the context: “… Probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every person involved, irrespective of the height at which he is placed in the power set-up”. Hope, powers that be will do something in this regard for our posterity. --------------------------------------- C.V.NAGARJUNA REDDY,J Date:23-3-2010 Note: L.R.copies to be marked. (BO) MNR [1]) 1994 Supp (1) SCC 143 [2]) (2006) 2 SCC 677 [3]) 1988 Supp SCC 482 [4]) (1992) 1 SCC 397. [5]) (2010) 2 SCC 200 [6] (2009) 9 SCC 610 [7]) 2001 (5) Supreme 437 [8]) (1996) 2 SCC 199