HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4058 of 2011 DATED 6th Spetemer, 2011 BETWEEN D.C.David …..Petitioner and Government of Andhra Pradesh, Rep. By its Principal Secretary, Home Department, Secretariat, Hyderabad and ors. …Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4058 of 2010 ORDER: In this writ petition, the petitioner assails the action of second and third respondents in not properly investigating into crime No. 6 of 2010 on the file of the Station House Officer, Ananthasagaram Police Station, Atmakur Mandal , Nellore District, third respondent as illegal, arbitrary and unconstitutional and consequently seeks a direction to the first respondent to entrust the aforesaid crime to CB CID for further investigation and filing of charge sheet thereon. The facts of the case in brief may be stated as follows: The son of the petitioner, namely, D.C.Raj Kumar @ Antoni, aged 30 years, was found missing on 22.03.2010 and in spite of their best efforts to find out whereabouts of his missing son, the same resulted in vain. On 25.03.2010 the petitioner received a phone call at about 7.30 am from one Tirupal, brother of Thirupamma, who informed him that his son was in serious condition and asked him to accompany him. Immediately, the petitioner and his three daughters engaged a car followed by an ambulance and accompanied the said Thirupal to Manugupalli village of Nellore District where the said D.C.Raj Kumar found dead. On enquires, they came to know that the petitioner’s son died due to drowning into water. It is the case of the petitioner that they found number of injuries visible on the dead body of his deceased son and also found bleeding from his mouth. It is his further case that the third respondent came to the spot, shifted the dead body to the hospital at Atmakur for conducting post-mortem and after completion thereof, the dead body was handed over to them on 25.3.2010. It is the complaint of the petitioner that the third respondent, instead of conducting inquest over the dead body and gathering information from the villagers as to the cause of death and noting down the injuries on the dead body, in a mechanical manner shifted the dead body to Hospital at Atmakur. While so, after completing the rituals, the petitioner came to know that his son was kidnapped by K.Vasu, Siddaiah, N.Kondaiah, G.Koteswararao, Thirupamma, Solomon Sekar K moses @ Mohan, Shiam and others on 23.3.2010 and took him to Nellore and after committing murder, they pushed the dead-body in a pool of water so as to create an impression that he died due to drowning. The petitioner lodged complaints on 10.4.2010 as well as on 16.08.2010 with the second respondent about the kidnap of his son by the aforesaid persons. As no action was taken, the petitioner in the first instance filed Criminal Petition No.10728 of 2010 before the High Court of Madras, which was disposed of directing the police at Chennai to consider the case of the petitioner to register a case and investigate the same based on his complaint dated 23.4.2010. However, on the advise of the Chennai police, the petitioner filed Criminal Petition No. 8893 of 2010 before this Court seeking a direction to conduct re- postmortem and this Court by order dated 6.10.2010 allowed the said Criminal Petition directing the respondent police to cause exhumation of the dead body of the deceased in the presence of the mediators and get the re- postmortem examination conducted by a senior doctor at Government General Hospital, Chennai, at the earliest. After repeated requests of the petitioner for conducting re- postmortem, the body was exhumed on 29.11.2010, re- postmortem was conducted and report of the same was given to him. It is the complaint of the petitioner that though the said re-postmortem certificate reveals five injuries over the dead body and that the death was not due to suicide but a case of homicide, the respondent police are not evincing any interest to cause proper investigation and arrest the culprits. It is his further complaint that the petitioner has no trust in the respondent police and that it is a matter to be investigated by an independent agency like CB CID or any reputed police officer in the cadre of Superintendent of Police. The Sub Inspector of Police, Somasila Police Station, Sri Pottisriramulu Nellore District, third respondent herein filed a counter affidavit. It is stated in the counter affidavit that one Sri K.Janardhana Rao of Uppalapadu village in Ananthasagaram Mandal of Nellore District lodged a complaint on 25.3.2010 complaining that on 24.3.2010 Gomganti Venkataiah and Raju Kumar came to Manugupalli village to attend his brother-in-law marriage and that they had gone to the side of Somasila North feeder Canal to answer the nature calls and incidentally they fell into the canal, dipped into the water and died. Based on the said complaint, a case in Crime No. 6 of 2010 under Section 174 Cr.P.C. was registered and investigation was taken up. The postmortem reports of the aforesaid two deceased persons revealed that there are external injuries, but no fracture of hyoid was present and there was peeling of skin over chest and no internal injuries are present and on squeezing of lunges, frothing discharge present and that the cause of death was asphyxia due to drowning. Pursuant to the orders of this Court dated 6.10.2010 in Criminal Petition No. 8893 of 2010, one Smt. J.Rajeswari,Tahsildar and Mandal Executive Magistrate, Fort-Tandiarpet, Chennai-3, conducted exhumation of the body of the petitioner’s deceased son and the same was shifted to the Government General Hospital, Chennai for re-postmortem examination and thereafter the re-postmortem certificate was handed over to the petitioner on 29.11.2010. The viscera forwarded to the Regional Forensic Science Laboratory, Guntur was tested and a report to that effect was received stating that no poisonous substance was fund therein. A requisition was made by the Director and Professor of Madras Medical College through the Tahsildar, Fort Tondairpet Taluk for the sample water from the place of occurrence to perform ‘diatom test’. On 23.1.2011 a letter was addressed to the Director and Professor, Institute of Forensic Medicine, Madras Medical College,Chennai-3 requesting to hand over Femur bone of the exhumed body of D.C.Rajakumar (deceased) which was preserved for diatom test at the Institute of Forensic medicine, Madras Medical College, Chennai. On 26.1.2011 the Sub Divisional Police Officer, Atmakur Sub Division, Nellore sent the material objects for analysis to the Director, Forensic Science Laboratory, Red Hills, Hyderabad and report is yet to be received. The third respondent also filed an additional Counter affidavit thereafter stating that the A.P. Forensic Laboratories, Hyderabad have sent a report on 10.5.2011 under File No.BIO/09/2011, dated 18.3.2011, wherein it was stated that a long bone as Item No.1 and a plastic bottle containing clear liquid as item No.2 have been examined and it was established that similar type of diatoms were detected in both the said items. The Regional Forensic Laboratories, Guntur have sent a report on 10.5.2011 under file No.GNT/TOX/1009/2010 dated 9.2.2011 which reveals that the viscera of the deceased son of the petitioner are analyzed and no poisonous substances were found. It is further stated that re-postmortem of the deceased son of the petitioner was conducted on 29.11.2010 by the Director and Professor Institute of Forensic Medicine, Madras Medical College, Chennai and report thereof is yet to be received. Reiterating the averments made in the Writ Petition and counter affidavit, the learned Counsel for the petitioner as well as the learned Government Pleader for Home appearing for the respondents made their copious and lengthy arguments to support their respective versions. Perused the case file. The present petition is mainly based upon the contention that the police authorities have not inquired into the matter properly and that there was a conspiracy for committing the alleged crime. The petitioner’s grievance is that certain accused were involved in the alleged incident and they were not roped into the offence and therefore there is serious lapse on the part of the police authorities in conducting proper investigation in the matter. As can be seen from the case file, admittedly, the son of the petitioner, by name, D.R.Raju Kumar was found dead on 24.03.2010 due to drowning in Somasila North Feeder Canal. Initially, post mortem was conducted on 25.03.2010. However, counter affidavit is silent as to the conduct of inquest over the dead body by the third respondent-Station House Officer, who was present at the spot where the dead body of the deceased son of the petitioner was lying. It is also established that third respondent even did not cause any investigation and did not cause any enquiries with the villagers who gathered at the scene of offence. Though the petitioner noticed the external injuries over the dead body and bleeding from mouth, which were in fact noticed by the Medical Officer while conducting postmortem, the third respondent did not care to take note of the same. The petitioner through his representation dated 16.08.2010 brought to the notice of the third respondent that at about 9.30 p.m on 25.03.2010 the post mortem was conducted and completed the same within ten minutes; at that time, there was no doctor in the hospital to conduct post-mortem except one compounder; that there is no urgency in conducting post-mortem of the two dead bodies in the night itself at 9.30 p.m.,; that the police brought one outsider who was fully in drunken condition, who took some piece of skin from the throat of the dead body of the petitioner’s son; that post mortem report itself was not prepared by the qualified medical officer, but by some persons; that the petitioner’s son was a good swimmer and as such it is totally unbelievable that he got drowned in the canal where a litter water was flowing in which not even a child of ten years can drown to death; that though the petitioner has complained on 28.03.2010 with regard to the warnings and dire consequences given by one Mr. K. Vasu to the petitioner and his son fifteen days earlier to the alleged incident, there was no enquiry into the matter and arrest of the said K.Vasu and his loyalties; that the panchanama dated 25.03.2010 clearly reveals that there were several injuries on the head, throat and other parts of the body of the deceased and there is no possibility of bleeding from ears and oozing from mouth of the deceased; that the photos of the dead body clearly show that his two hands are in bending posture; that the stomach of the dead body of the deceased contains undigested food and that when the petitioner and daughters attended the enquiry at about 8.50 a.m. of 12.08.2010, the Circle Inspector, Mr. M.Akkeswar Rao threatened and harassed them in front of the culprits and the manner in which he behaved itself clearly establishes that he is doing favour to the real culprits. In the counter and additional counter, the third respondent failed to refute the above allegations at all. Though the learned Government Pleader for Home appearing for the respondents opposed the petition by stating that the inquiry has been conducted properly and there are no lapses on the part of the investigating agency, the material on record, especially counter and additional counter of the third respondent reveal that no proper enquiry was conducted. Trite to state, when the crime is reported, it is ordinarily the competent Station House Officer who will investigate and file a final report under Section 173 (2) of Cr.P.C. before the magistrate competent to take cognizance of the case. Since nine months have elapsed after conducting the re-postmortem of the deceased on 29.11.2010 by the Director and Professor, Institute of Forensic Medicine, Madras Medical College, Chennai, report thereof is still not yet received. It shows the lassitude on the part of the third respondent towards investigation in the matter despite the fact that the petitioner has approached this court by way of the present Writ Petition which is pending adjudication. It is, therefore, necessary to examine the law on this point. In Sasi Thomas v. State [(2006) 12 SCC 421] the Supreme Court, while dealing with the power of the Court to direct further investigation inter alia, held thus: “15. Proper and fair investigation on the part of the investigating officer is the backbone of rule of law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential. Unfortunately, the appellant has not been treated fairly. When a death has occurred in a suspicious circumstance and in particular when an attempt had been made to bury the dead body hurriedly and upon obtaining apparently an incorrect medical certificate, it was expected that upon exhumation of the body, the investigating authorities of the State shall carry out their statutory duties fairly. The appellant alleges that no fair investigation has been conducted. It is clearly a matter of great concern that the authorities did not become alive to the situation. Although the dead body was buried on the premise that she died of heart attack, a final report was submitted stating that she might have committed suicide. We do not know on what material, such an opinion was arrived at by the investigating officer. It is only because of the persistent efforts on the part of the appellant to move the High Court that a further investigation was directed to be made by CB-CID. Another final report was submitted that Respondents 4 and 5 have committed the offence under Sections 302 and 201 respectively. ………. ………… ……. 17. The investigating officer and particularly CB-CID 1should have made a thorough investigation. If the allegations made by the appellant are correct, the same depicts a sordid state of affairs. 18. The job of the investigating officer is to make investigation in right direction. The investigation must be in consonance with the ingredients of the offence. It cannot be haphazard or unmethodical.” In Ramachandran v. R.Udhayakumar [(2008) 5 SCC 413] the Supreme Court, while dealing with reinvestigation or fresh investigation vis-à-vis further investigation inter alia, held thus: “7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code; the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223]. It was, inter alia, observed as follows: (SCC p.237, para 24) “24. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional; more; supplemental’. ‘Further’ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a ‘further’ report or reports—and not fresh report or reports— regarding the ‘further’ evidence obtained during such investigation.” 8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by CB CID as directed by the High Court.” In Divine Retreat Centre v. State of Kerala [(2008) 3 SCC 542] the Supreme Court inter alia dealt with the power of the High Court in issuing direction for investigation and observed thus: “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.” From a conspectus of the law laid down by the Supreme Court discussed hereinabove, what emerges is that this Court in exercise of its extraordinary power under Article 226 of the Constitution can always issue appropriate directions at the instance of an aggrieved person if this Court is convinced that the power of investigation has been exercised by an investigating officer mala fide in as much as the allegations made by the petitioner are proved to be correct, the same reflects a sordid state of affairs. Further, the duty of the investigating officer is to make investigation in the right perspective and such investigation must be in consonance with the ingredients of the offence alleged. The investigation cannot be haphazard or unmethodical but a proper and fair investigation on the part of the investigating officer is the backbone of the rule of law. In the present case, a proper and effective investigation is expedient as there is no direct evidence which assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential. Unfortunately, the petitioner has not been treated fairly. The death took place in a suspicious circumstance which came to light on 25.03.2010. The petitioner alleges that no fair investigation has been conducted. It is therefore clearly a matter of great concern that the authorities concerned did not become alive to the situation. Although the dead body was buried after conducting post mortem sans conducting inquest over the dead body, pursuant to the direction of this Court dated 06.10.2010 in Criminal Petition No.8893 of 2010, body of the deceased was exhumed and re-post mortem was conducted. But for one reason or the other, the investigation has not been completed although nearly 1½ year has elapsed from the date of knowledge of the death of the deceased. It is only because of the facts and circumstances narrated supra, the petitioner had to move this Court seeking a writ of mandamus declaring the action of respondents 2 and 3 in not properly investigating into the matter in Crime No.6 of 2010 on the file of the third respondent police station as illegal, arbitrary and unconstitutional and consequently direct the first respondent Government to entrust the above crime to CB CID for further investigation and filing a charge sheet. In view of the law laid down by the Supreme Court as indicated hereinabove, although the directions by the High Court for reinvestigation or fresh investigation are clearly indefensible but such directions for further investigation can be issued by the High Court in appropriate cases. For the reasons discussed hereinabove, I am of the considered opinion that it is a fit case for issuing a direction to the first respondent Government to entrust the above Crime No.6 of 2010 on the file of the third respondent police station to CB CID for further investigation and for taking appropriate steps in accordance with law. The Writ Petition is accordingly allowed. No order as to costs. ------------------------------------------ JUSTICE ASHUTOSH MOHUNTA DATED 6th September, 2011. Msnro