*THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.3998 of 2009 %Date:21.07.2010 #Shaik Abdulla Shareef and others. ..... Petitioners Vs. $The Government of Andhra Pradesh, represented by its Principal Secretary, Hyderabad, and others. .....Respondents ! Counsel for the Petitioners: Mr.P. Nagendra Reddy ^Counsel for Respondents: AGP for Home for R.1 to R.5. None for R.6. < Gist: > Head Note: ? Cases referred: 1. (1924) 1 K.B.256. 2. (1955) 1 QB 41 3. (1960) 2 Q.B.167 4. (1969) 1 Q.B.577. 5. (1993) 2 W.L.R.883. 6. (1921) 61 DLR 656 7. AIR 1970 SC 150 8. AIR 1987 SC 454 9. (1993) 4 SCC 10 10. (2004) 4 SCC 158. 11. (2006) 3 SCC 374 12. AIR 1997 SC 95 13. (2009) 9 SCC 610 14. 1994 Supp (1) SCC 145 15. (2006) 2 SCC 677 16. (2010) 2 SCC 200 17. 2010 (3) ALT 200 THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3998 of 2009 Date:21.07.2010 Between: Shaik Abdulla Shareef and others. ..... Petitioners AND The Government of Andhra Pradesh, represented by its Principal Secretary, Hyderabad, and others. .....Respondents Counsel for the Petitioners: Mr.P. Nagendra Reddy Counsel for Respondents: AGP for Home for R.1 to R.5. None for R.6. The Court made the following: ORDER: This writ petition is filed for a Mandamus to declare the action of the respondents in not transferring the investigation in Crime No.162 of 2008 on the file of respondent No.5 Police Station to C.B.C.I.D. as illegal and arbitrary. The petitioners sought for a direction to respondent Nos.1 and 2 to transfer the investigation in the said Crime to C.B.C.I.D. I have heard Sri P. Nagendra Reddy, learned counsel for the petitioners, and the learned Assistant Government Pleader for Home for respondent Nos.1 to 5. No one appeared for respondent No.6 at the hearing. The petitioners are residents of Nandyal town. There were civil disputes between the petitioners and their neighbour–Dr.S.Intiyaj Ahmed. According to the petitioners, the Sub-Inspectors of I Town Police Station, Nandyal, Bandi Atmakur Police Station and Head Constable of I Town Police Station, Nandyal, along with two constables, came to their house in the night of 11.02.2007 at around 2.00 a.m., forcibly took away petitioner No.1 to D.S.P. Bungalow at Nandyal, severely beat and implicated him in a case registered on the purported report lodged by the said Dr.S.Intiyaj Ahmed. On the alleged illegal detention and torture, petitioner No.1 filed a private complaint against the said Dr.Intiaj Ahmed and Police Officers. After recording the statements of petitioner No.1 and five other witnesses, the learned Magistrate has taken cognizance of the case, for the offences under Sections 341, 326, 324, 329, 120-B read with Section 149 I.P.C. against the said persons as PRC No.130 of 2007 and the same is pending. The petitioners specifically pleaded that the present D.S.P., Dhone-respondent No.4, who worked as Sub- Inspector and Circle Inspector in Nandyal town for about ten years, was well acquainted with Dr.S.Intiyaj Ahmed, who is A.1 in the above PRC; that when the petitioners did not agree for a compromise in the said PRC., all the accused approached respondent No.4; and that, on his directions, the Police Officers selected one person, by name, Yerukula Koneti Nageswara Rao-respondent No.6 and got a private complaint filed before the Judicial Magistrate of First Class, Banaganapalle, with the allegations that respondent No.6 has obtained hand loan from the petitioners on 17.08.2008, when the petitioners allegedly visited the house of respondent No.6 and demanded the said amount, he was unable to pay the same, and, hence, the petitioners allegedly abused respondent No.6 by caste name by dragging him out of his house. The Judicial Magistrate of First Class, Banaganapalle, before whom the private complaint was filed by respondent No.6, has referred the said complaint to the Banaganapalle Police Station, within the jurisdiction of Dhone Sub- Division. The Banaganapalle Police, under the alleged directions of respondent No.4, registered Crime No.162 of 2008 for the offences under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioners pleaded that they had no acquaintance whatsoever with respondent No.6, who is a resident of Banaganapalle, and alleged that registration of Crime No.162 of 2008 is the handiwork of the accused in PRC No.130 of 2007 in collaboration with respondent No.4. The petitioners, therefore, apprehended that investigation by respondent No.4 would cause harm to their interests as the said respondent is biased towards the accused in the said PRC. Respondent No.4 has filed a counter-affidavit, wherein he has stated that when the investigation in Crime No.162 of 2008 was under progress, the petitioners have filed Criminal Petition No.5885 of 2008 seeking quashing of the F.I.R. in the said Crime and obtained interim order of stay; that in pursuance of the said stay order, investigation was stopped; and that, subsequently, this Court, by order dated 17.02.2009, dismissed the said criminal petition. It is further stated that the petitioners filed the present Writ Petition in order to prevent respondent No.4 from filing appropriate report/charge sheet in the said Crime. Respondent No.4 denied the allegation of the petitioners that as per his directions, the Police Officers selected respondent No.6 and got the private complaint filed as a counter blast to PRC No.130 of 2007. At the hearing, Sri P.Nagendra Reddy, learned counsel for the petitioners, contended that the criminal case against the petitioners was engineered by the local Police Officers, who are accused in PRC No.130 of 2007; and that respondent No.4 - who had close connections with the petitioners’ adversary, i.e., Dr.S.Intiaj Ahmed and also with the local Police Officers, having worked in Nandyal for nearly 10 years - will not conduct a fair investigation into the said Crime. He further submitted that the fact that the Superintendent of Police, Kurnool- respondent No.3 and the higher Police officials have not responded to the petitioners’ request for changing respondent No.4 as investigation officer also establishes that the entire local Police have failed to display an unbiased and neutral approach in dealing with the petitioners’ legitimate grievance, and that, therefore, his clients will suffer serious injury if respondent No.4 or any other local Police officer is allowed to investigate Crime No.162 of 2008 and file appropriate report before the Special Court. Seriously opposing the contentions of the learned counsel for the petitioners, Mrs.Rachana Waddepalli, learned Assistant Government Pleader for Home, submitted that the petitioners failed to make out any nexus between respondent No.4 and the complaint given by respondent No.6. She has further contended that in pursuance of the representation made by the petitioners, respondent No.2 called for a report from respondent No.3 and that in his report respondent No.3 has not recommended for transfer of investigation to CBCID. At the hearing, she has placed a copy of report, dated 20-10- 2009, of respondent No.3, submitted to respondent No.2, before the Court and submitted that it is not a fit case for entrustment of investigation to any agency other than respondent No.4. Though respondent No.6 has filed a counter-affidavit and a vacate stay application, he is not represented by his counsel at the time of hearing. I have carefully considered the submissions of the learned counsel for the parties and perused the record. The case of the petitioners is founded on the allegation that in view of his close acquaintance with Dr.S.Intiaj Ahmed and his working for nearly 10 years in Nandyal town, respondent No.4 has been helping the petitioners’ adversaries, viz., Dr.S.Intiaz Ahmed and other accused in PRC No.130 of 2007 by manipulating the complaint in the name of respondent No.6. The petitioners have specifically alleged that being a resident of Banaganapally, respondent No.6 has no acquaintance whatsoever with them; that they are not in the habit of lending money; and that, after registration of Crime No.162 of 2008, the Police officers called petitioner No.1 to Panchayat, through elders, and asked him to compromise in the said PRC filed against the Police officers, and that, otherwise, petitioner No.1 will be kept in jail at least for ten days in connection with the pending criminal case against him. In his counter-affidavit, respondent No.4 has not denied the allegations that he has close acquaintance with Dr.S.Intiaj Ahmed and that he has worked in Nandyal for about ten years. Bias reflects mental state of a person and by its very nature, ordinarily, it is not possible for any person to prove the same by adducing direct evidence. It is only through circumstances that such a plea can be established. The Courts in England have applied two tests for determining bias in cases other than those concerned with pecuniary interest: “real likelihood of bias” and “reasonable suspicion of bias”. P.P.Craig in his Administrative Law (Third Edition) traced the Law from the 19th Century and noted that while in the 19th Century the former test viz., real likelihood of bias held sway, Lord Hewart C.J., in R. v. Sussex Justices, ex p. McCarthy[1] held that a reasonable suspicion of bias was sufficient to quash the determination. The Author further said that later cases witnessed “competitive invocation” of the two tests and the tide appeared to be shifting back to the higher test viz., “real likelihood of bias”. The learned Author quoted “the judgment in R. v. Camborne JJ., ex p. Pearce[2] and R. v. Barnsley Licensing JJ., ex p. Barnsley and District Licensed Victuallers’ Association[3] as disapproving of Lord Hewart C.J’s view. However, Lord Denning M.R. in Metropolitan Properties (F.G.C) Ltd., v. Lannon[4] agreed with the view of Lord Hewart’s reasonable suspicion test. The English Case Law further delved into the one other test in judging bias as to bias from whose stand point and the question of its degree. In the case of former, four categories of persons are considered, viz., the mind of the justice (or other challenged individual); the reasonable person, the individual affected; or ex post facto by the reviewing court. After noticing certain conflicting views, the learned Author has noted that the Law on this issue is now being clarified by the House of Lords in R. v. Gough[5], wherein it was held that the same test should be applied in all cases of apparent bias, whether concerned with justices, members of inferior tribunals, jurors and arbitrators. Lord Goff, who delivered the leading judgment, further held that it is from the perspective of the Court that the bias should be viewed rather than formulating the test in terms of reasonable man. Peter Leyland & Terry Woods in their Administrative Law (4th Edition), after exhaustively discussing on the topic with reference to the case law, opined that the Gough test laid down in R. v. Gough (5 supra) formulated by the House of Lords should be uniformly applied in public law to include all bodies irrespective of whether they have a judicial or quasi judicial function, and persons with a direct pecuniary or propriety interest will be disqualified from acting. The Author further opined that “since the ‘Gough test’ was formulated in the early 1990s, there have been a number of further developments in which the English Courts have taken account of the ECHR Jurisprudence and the test applied in Scotland and much of the Commonwealth, i.e., the ‘reasonable apprehension’ test, one which is more in line with Article 6 of the Convention”. H.W.R.Wade & C.F.Forsyth in their book Administrative Law (8th Edition), while dealing with this subject in extenso, referred to the judgment in R v. Handley[6], wherein it was held that among other obvious cases of prejudice are personal friendship or hostility and family or commercial relationship. De Smith - in his Judicial Review of Administrative Action (1980) – explains: “Reasonable suspicion test looks mainly to outward appearances; “real likelihood” test focuses on the court’s own evaluation of the probabilities. This is because of the maxim that justice is not only to be done but seen to be done. It may be that in most cases, the result may be the same whichever formulation is applied, but at present the “reasonable suspicion” test appears to be in favour of the courts, and, in essence, the ‘suspicion’ test seems to be somewhat broader than the “real likelihood” test. The position, therefore, is that proof of actual bias on the part of the adjudicator is not necessary. What is necessary is that, in the opinion of reasonable men, there is a real likelihood of bias in the circumstance of the case. The reason for not insisting on actual proof of bias is that it is extremely difficult to prove, on a balance of probabilities, that a person required to act in an adjudicative capacity was in fact biased. Bias is an attitude of mind leading to a predisposition towards the issue. Because of this circumstance, the law looks “to suspicion” rather to the ‘likelihood’ of bias arising from the factual situation in which the particular adjudicator is placed”. The Law in India is not at much variance with English Law. In A.K.Kraipak V. Union of India[7] the “reasonable likelihood” test was applied by the Apex Court. In the case before the Supreme Court, an acting Chief Conservator of Forest was himself a candidate for promotion and being an ex officio member of the Selection Committee he was himself a member of the selection committee and was also selected for the All India Service. Though he did not participate in the deliberations of the Committee, when his name was considered, the Court observed: “The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. … a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias” (Emphasis added). In Ashok Kumar Yadav V. State of Haryana[8], while dealing with a case where a member of the Selection Committee before which his close relative was interviewed as a candidate, the Supreme Court, while applying the test of “reasonable likelihood” of bias, held as under: “If a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection”. In R.L.Sharma V. Managing Committee[9], the Supreme Court observed: “The test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias”. In the context of fair trial, while formulating the concept of ‘triangulation’ of interests of the accused, victim and society, the Supreme Court in Zahira Habibullah Sheikh Vs. State of Gujarat[10], emphasized the need for the fair trial and balancing of competing interests of the trio. The Supreme Court held that the principle of a fair trial has emerged in the process of evaluation of jurisprudence as part of the fundamental rights guaranteed under Articles 21 and 14 of the Constitution of India. This concept is reiterated in Zahira Habibullah Sheikh Vs. State of Gujarat[11]. I n Police Commissioner, Delhi Vs. Registrar, Delhi High Court[12], the Supreme Court held that assurance of a fair trial is the first imperative of the dispensation of justice as Article 21 of the Constitution ensures and guarantees the precious right of life and liberty of a person deprivable only on following the procedure established by law in a fair trial. In my opinion, fair investigation is as much a part of constitutional scheme as fair trial, for, while a guilty cannot be allowed to escape punishment, an innocent cannot be punished. Article 21 of the Constitution of India guarantees every person right to life and personal liberty subject to the exception that he can be deprived of the same only through the procedure established by law. The provisions of the Code of Criminal Procedure, 1973 lay down the procedure for investigation and it is axiomatic that such procedure shall be reasonable and fair. A person with a biased mind is not expected to conduct fair investigation and unfair investigation may eventually lead to conviction of the accused, which would be in violation of Article 21 of the Constitution of India. Therefore, to protect the guaranteed fundamental right of a person of life and personal liberty, it is most essential that the investigation officer should be free from bias. I have carefully weighed the allegations of bias attributed to respondent No.4 and the local police in the light of the legal position as discussed above. In judging this aspect, order dated 7-12-2007 passed by the Judicial I Class Magistrate, Nandyal, assumes great relevance. The said order was passed on the private complaint given by petitioner No.1 against Dr.S.Intiaj Ahmed and five Police personnel. The gist of his complaint was referred to earlier in this order. After examining six witnesses, including the petitioners herein, the learned Magistrate has given the following finding: “On perusing the complaint and the oral evidence of PWs.1 to 6 and the documentary evidence of Exs.P.1 to P.17 it is clear that the complainant is having some civil disputes with A.1 and A.1 is very influenced person in Nandyal town and A.1 influenced A.2 to A.6 to assist the complainant. As per the averments of the complaint and the oral evidence of PWs.1 to 6 it is clear that A.2 to A.6 beat the complainant indiscriminately at the instigation of A.1 in order to do some favour to the A.1. Therefore, this is a fit case to proceed against the accused for the following offences punishable under Sections 341, 326, 324, 329, 120-B r/w.149 of Indian Penal Code. Hence, this complaint is taken on file as PRC No.130/2007 for the offences punishable under Sections 341, 326, 324, 329, 120-B r/w.149 of Indian Penal Code. Issue summons to the accused on payment of process. The summons entrusted to the SHO., II Town Police Station with direction to serve the summons on A.1 to A.6 and produced them before this Court on 2-1-2008”. In my considered view, this order of the criminal Court, by which cognizance of petitioners’ complaint was taken as PRC No.130 of 2007 against Dr.S.Intiaj Ahmed and the Police officers is a strong circumstance for the petitioners to apprehend that the said Dr.S.Intiaj Ahmed (A.1) and the local Police, some of whom are accused, have developed a serious grudge against them. The further fact that respondent No.4 has not denied his acquaintance with Dr.S.Intiaj Ahmed, the prime accused in the said PRC., also gives rise to reasonable apprehension in the petitioners’ mind that respondent No.4 was behind the complaint given by respondent No.6. Irrespective of whether these apprehensions are true or not, a person, who is facing accusation of commission of an offence, is entitled to demand a fair investigation, which is a sine qua non for proper administration of criminal justice system. As noted above, the uncontroverted facts, which establish a nexus between respondent No.4 and Dr.S.Intiaj Ahmed and the local Police, having regard to his past service at Nandyal, constitute reasonable basis for the petitioners’ apprehension that there is a likelihood of bias on the part of respondent No.4 and other local Police and that they may act prejudicial to the petitioners’ interests while investigating Crime No.162 of 2008 registered against them. Ordinarily, the Constitutional Courts are slow in entertaining Writ Petitions of this nature, but in appropriate cases they exercise their extraordinary jurisdiction to redress the rightful grievances of the affected parties. I n Babubhai Jamnadas Patel vs. State of Gujarat and others[13] 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.” Existence of power of the superior Courts to order for investigation by an independent agency is recognized in a slew of authorities of the Apex Court. In Mohammed Anis Vs. Union of India[14], a Police Officer of the cadre of Inspector General was appointed as investigation officer in a case involving death of ten persons in encounters between the Punjab Militants and the local Police. In a Public Interest Litigation (for short “the PIL”), the Supreme Court directed entrustment of investigation to Central Bureau of Investigation (for short “the CBI”). A Police Inspector approached the Supreme Court in the name of PIL with the plea that entrustment of investigation to CBI is destructive of the exclusive power of the State of Uttar Pradesh and is in flagrant disregard of the mandatory provisions of the Code of Criminal Procedure, 1973. While rejecting the said petition, the Apex Court held that as the local Police officers were involved in the alleged killings and the allegations were mainly directed against them, doubts were expressed regarding the fairness of the investigation by an officer of the U.P. cadre, and entrusted the investigation to the CBI, without expressing any opinion on the allegations. It has felt that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as the allegations were directed against them. While referring to its power conferred by Article 142 (1) of the Constitution of India, the Supreme Court, however, held that the power must be exercised sparingly for furthering the ends of justice. In Ramesh Kumar Vs. State[15] a report was lodged against certain Police personnel by a victim. As FIR was not registered, he has approached the Supreme Court, which, while finding fault with non-registration of the case, directed registration of the case and entrustment of investigation to CBI as the allegations were made against the Police. Similarly, in a recent judgment in Rubabbuddin Sheikh Vs. State of Gujarat[16] the Supreme Court directed investigation to be entrusted to CBI as the Gujarat State Police personnel were some of the accused in the alleged fake encounter of Sohrabuddin. I n Koganti Lakshmi Vs. State Government of Andhra Pradesh[17], on a review of case law, this Court directed entrustment of investigation of a criminal case to the CBCID to ensure that fair and impartial investigation is held into the serious complaint of burglary/robbery allegedly committed in a Jewellary shop at Vijayawada. Coming to the submission of the learned Assistant Government Pleader that respondent No.3 submitted a report to respondent No.2, I have carefully gone through the said report. A perusal of the said report shows that respondent No.3 has failed to address himself to the core issue raised by the petitioners, viz., whether there is any reason for the petitioners to apprehend bias on the part of respondent No.4. Instead, respondent No.3 has solely relied upon the reports of the Sub-Divisional Police Officer, Nandyal and respondent No.4. None of these officers have gone into the grievance of the petitioners and tried to redress the same. On a careful consideration of the facts of this case, it cannot be held that the apprehensions expressed by the petitioners are without any basis. I am, therefore, of the opinion that interests of justice would be served if the investigation is