THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.344 of 2011 DATED 25th MARCH, 2011 BETWEEN: B.Purushotham Reddy ….. Petitioner-accused and 1) S.Urukundappa 2) The State of A.P. ….. Respondents THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.344 of 2011 ORDER: Petitioner approaches this Court with a prayer to quash the proceedings in P.R.C.No.110 of 2010 on the file of the Additional Judicial First Class Magistrate, Adoni, for the offence punishable under Sections 323 and 506 of Indian Penal Code and 3 (i) (x) of SCs & STs (POA) Act. In spite of service of notice, none appeared for R.1. Heard the learned counsel for the petitioner. The allegations in the charge sheet are that on 07.09.2008 when the de facto complainant was sitting near Maremma temple along with his brother Tayanna (L.W.2) and chit chatting with him, at about 11 AM the accused came in a car with his men and called the de facto complainant (L.W.1) and wanted him to come for compromise talks regarding cases filed during Yellamma Jatara. When the de facto complainant (L.W.1) replied that it is not possible as his brother Manikya Raju was away attending to Harijana jatara, the accused became wild and abused him saying “MEEJATHI INTE MADIGA BUDHI PONIYYARU” and when the de facto complainant protested, the accused got down from the car, caught hold of shirt of de facto complainant, abused him saying “MADIGA LANJA KODAKA” and slapped him and further threatened saying that he would take him to task with his closeness of SI and CI as he is contesting election from that place and further threatened the de facto complainant and his brother Manikya Raju to leave the village. LW 2 to 6 witnessed this incident while LW.7 acted as escort to the accused. Learned counsel for the petitioner submits that the petitioner preferred W.P.No.8560 of 2010 for non-filing of the charge sheet after registration of crime. On such filing the writ petition, the respondent herein filed the counter affidavit and also filed the document more particularly the case diary P-II before the concerned Court. The main contention raised by the learned counsel for the petitioner is that in the year 2010 a copy of the case diary P-II was filed before the Court in which the officer has recorded his finding whereas the present officer, who has taken up the subsequent investigation, filed the present charge sheet as if the witnesses stated regarding the occurrence concerned. For better appreciation of the matter, relevant portion of the counter affidavit filed in W.P.No.8560 of 2010 is hereby extracted: “…… 3. it is respectfully submitted that the facts of the case are that basing on a complaint lodged by one Harijana Urukundappa on 7.9.2008 before the Police of Kasigi Police Station, the Station House Officer of Kosigi PS has registered a case in Cr.No.91/2008 U/secs.323, 506 IPC and Sec.3 (1) (x) SC/ST (POA) Act, 1989. As per the proceedings issued by the Superintendent of Police, Kurnool District, my predecessor, the then Sub Divisional Police Officer, Kurnool, had taken up the investigation. During the course of investigation, he visited the scene of offence and examined LWs 1 to 7 and recorded their statements U/sec.161 Cr.P.C. As per Part-I CD filed into the court by the petitioner, LW1 and 2 have reiterated the allegations made in the complaint. But the Part-I CD disclosed that LWs 3 to 6 have not corroborated the versions of LW1 and 2. The then investigating officer basing on CD Part-I only had obtained the legal opinion to refer the case as false. The proposals were sent by the then Investigating Officer to the respondent No.3 herein seeking his permission to refer the case as False. The respondent No.3 after perusing the CD part-I and II found that CD part-I is not in consonance with CD part-II i.e. with the 161 statements of LW 1 to 6. However, while refusing permission to treat the case as false, respondent No.3 as an additional measure had directed the then investigation officer to get the statements of witnesses recorded u/sec.164 Cr.P.C. and to take further action as per Law. But, the then Investigation Officer had not complied the instructions of Respondent No.3. 4. It is respectfully submitted that after 4th respondent assuming charge as Sub-Divisional Police Officer, Adoni Divisional, 3rd respondent had issued Memo dated 08.11.2009 to resume the investigation in the said case and finalize the case. This respondent has taken steps to get the 164 Cr.P.C. statements of witnesses. Basing on the material available the charge sheet was filed on 31.3.2010. 5. In reply to para No.3 of the affidavit, it is submitted that it may be true that scrolling might have been appeared against the petitioner in TV about registration of case. The averment that the petitioner had addressed a letter dated 10-08-2008 to 3rd respondent as to what exactly happened during his visit to Kosigi with a request to take action against the defacto complainant for lodging false complaint is false and hence the same is denied. It is false to state that the Investigation Officer had given Xerox copies of CD, part-I dt:17.9.2008 and the opinion given by Special PP, stating that he had already forwarded the alleged report to respondent No.3 for permission and he would be filing final report in the court. The allegation of the petitioner that the final report is not filed due to political pressure brought by local political leaders is false and hence the same is denied. The averment that the petitioner was under impression that the case was closed is totally misconceived. 6. In reply to para No.4 of the affidavit, it is submitted that the allegation of the petitioner that the local MLA had addressed letter to the Home Minister bringing pressure on the police is false, baseless and hence the same is denied. The allegation of the petitioner that the respondent No.3 under political pressure has directed the 4th respondent to file charge sheet, is false, in fact the charge sheet is filed basing on the material available and as prima facie case made out against the petitioner. 7. It is respectfully submitted that the respondent No.3 has permitted this respondent to file charge sheet after due investigation and taking into consideration the material available on the record. I humbly submit that this respondent had no malice towards the petitioner and there were no extraneous conditions for him to create any record. All the allegations made against the respondent Police are false, baseless, frivolous and invented for the purpose of filing the present writ petition.” The said writ petition was disposed of by this Court by order dated 30.08.2010 observing as follows: “….. Inasmuch as the 4th respondent is stated to have already filed a charge sheet, the relief as claimed in this Writ Petition cannot be granted.” In the said order this Court also observed that if the petitioner is aggrieved over filing of charge sheet, if any filed, he can challenge the same before this Court. Availing such liberty, the present criminal petition is filed. This court perused the entire record and also the documents filed. As additional material papers, petitioner filed a report dt.5.11.2010 of the Superintendent of Police, Kurnool, addressed to D.I.G., Kurnool, obtained by him under Right to Information Act. A perusal of the said report discloses that the Superintendent of Police has referred several discrepancies in the investigation of this case. For better adjudication of the matter, relevant paragraphs of the said report are hereby extracted: “Based on statement of the complainant Sanjipogula Urukundappa a case in Cr.No.91/2008, U/s.323, 506 IPC & Sec.3 (i) (x) of SC/ST (POA) Act, 1989 was registered in Kosigi PS on 7.9.2008 at 2200 hrs. Further the case is soaked for about more than 2 years in the list of UI cases unnecessarily without any progress and moving to Hon’ble High Court of Andhra Pradesh, Hyderabad on some reason or other. I gave a memo to SDPO, Adoni vide C.No.13/Cr-V/DCRB/2010 of Office of the District Crime Record Bureau, Kurnool, dt.03.10.2010, which is re-iterated as under: “1. On perusal of the Monthly Crime Review of Kosigi Circle for the month of August, 2010 the Cr.No.91/2008, U/s.323, 506 IPC & Sec.3(i) (x) of SC/ST (POA) Act, 1989 of Kosigi PS was shown charged on 07.9.2008 and PRC No. assigned in 44/2010 which seems to be not correct. 2. Apart from the C.D file sent to me, it is reliably learnt that there are two or more C.D files existing in your office with much more contradictory statements and information in investigation. 3. The case is investigated by four SDPOs of Adoni Sub-Division 4. Each SDPO did investigation according to his own will without any corroboration to each other. Hence you are instructed to send all the C.D files relating to Cr.No.91/2008, U/s.323, 506 IPC & Sec.3(i)(x) of SC/ST (POA) Act, 1989 of Kosigi PS existing in your Sub-Division office without any paper deletion or addition today itself to reach DCRB, Kurnool for my perusal to give proper instructions and to avert future litigations that may arose from judiciary.” After that I received two more CD files under loose paper material of above 25-30 pages…..” “Accordingly, Sri T.S.Krishshna Murhty took up investigation on 17.9.2008, examined the complainant as PW-1 and remaining witnesses namely S.Tayanna, Hanumakka, Harijana Ramappa, Harijana Maruthuamma, Harijana Mukkuraiah, B.Kishore Kumar as PWs 2 to 7 recorded their statements in detail in Para- II case diary. According to his investigation the complainant stated the same facts of FIR, PW-2 Sanjipogula Tayyanna who is younger brother of the complainant corroborated PW-1 in all aspects. In the CD file Part-II statements of PWs.1 and 7 dt.17.9.2008 are only available and PWs 2 to 6 are not available. All other witnesses have not corroborated the complainant. (The complainant in reference (1) had enclosed Xerox copies of Para-II statements of PWs 1 & 7, dt.17.9.2008). On 29.9.2008 Sri T.S.Krishna Murthy re-examined PWs 2 to 6 who did not support the prosecution. However the part-II statements of PWs 2 to 6 dt.29.9.2008 are available in the CD file. The caste certificate of the complainant issued by Tahasildar Kosigi mandal to his effect is available….” “The legal opinion issued by Sri D.Srinivasulu, Special Public Prosecutor, Kurnool, dt.10.4.2009 to the effect that allegations of the complainant S.Urukundappa are not supported by any witnesses and this case is obviously a false one. Another letter dated 8.4.2008 was addressed to Superintendent of Police, Kurnool, seeking permission to refer the case as false is available, and the file is now with the office of Superintendent of Police, Kurnool for orders. The statements of PWs 1 to 7 dt.17.9.2008, which are enclosed to the representation by the complainant, are not available in the CD file…..” “Further it is to submit that on perusal of the monthly crime reviews of Kosigi Circle and Adoni Town Circle for the month of September, 2010, smelting some noxious PRC No. assigned as 44/2010 to this Crime Number. I also noticed the same number was assigned to Cr.No.7/2010 of Adoni III Town PS. I sent a letter to the Hon’ble J.F.C.M., Adoni with request to give certain clarification with regard to 44/2010 of the Hon’ble J.F.C.M., Court, Adoni and the Hon’ble Court sent reply to this office whose briefs contents are as follows: “With reference to the above I am to state that PRC No.44/2010 on the file of Judicial First Class Magistrate Court, Adoni was assigned to Cr.No.7/2010 relating to Adoni III Town P.S., on the same was converted as C.C.No.288/2010 on the file of this Court. Further I am to inform to you that PRC No.44/10 is not assigned to Cr.No.91/2008 U/s.323 and 506 IPC U/s.3 (1) (x) of SC/ST (POA) Act 1989 of Kosigi P.S. on the charge sheet is pending in this Court for assigning PRC Number ” The above extracted contents of the report indicate some unfair practice on the part of the investigation agency. Admittedly, the Deputy Superintendent of Police, Adoni, who filed the charge sheet, has taken charge of the investigation on 18.11.2009. After conducting investigation he filed the present charge sheet on 31.03.2010. Hence, this Court directed the Registry to call for the records from the lower Court and also directed the learned Public Prosecutor to produce the original C.D. file. On perusal of the Court record, it is evident that the 161 Cr.P.C. statements of the witnesses filed along with the chare sheet were recorded by the investigation officer on 17.09.2008 i.e. 10 days after the occurrence. At the same time, a perusal of the C.D. file produced by the learned Public Prosecutor discloses that there are 2 sets of 161 Cr.P.C. statements of the witnesses are available on record giving two different versions over the same incident. One set of statements was recorded on 17.09.2008 and another on 29.09.2008. Admittedly, the Deputy Superintendent of Police, Adoni, Kurnool District has not recorded any statement after he assumed charge i.e. took up investigation on 18.11.2009 vide proceedings in Rc.2546/C4/DCRB/2010 dt.15.08.2010. But, relying on the earlier statements recorded on 17.09.2008, the present charge sheet is filed. Prosecution has taken two stands before this Court, one in W.P.No.8560 of 2010 and another in the present charge sheet. According to the prosecution the present charge sheet is filed pursuant to the investigation conducted by the Deputy Superintendent of Police, Adoni, but no materials are placed before the concerned Court. This Court is of the view that not only fair trial but fair investigation also forms part of Constitutional Rights guaranteed under the Constitution and the present charge sheet which is the result of an unfair, tainted and biased investigation, is liable to be quashed. Therefore, the Criminal Petition is allowed and the proceedings in P.R.C.No.110 of 2010 on the file of the Additional Judicial First Class Magistrate, Adoni, are hereby quashed. Miscellaneous petitions filed in this Criminal Petition, if any, shall stand closed. _________________________ JUSTICE RAJA ELANGO Date: 25.03.2011 sur