THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.25094 OF 2011
28-02-2012
Smt.Anjali Jain
The Commissioner of Police, Hyderabad and 2 others
Counsel for the petitioner: Sri M.V. Suresh
Counsel for respondents : G.P. for Home; Sri P. Bhakthavastal
? Citations:
1) AIR 1974 SC 2105
2) AIR 1967 SC 295
3) AIR 1952 SC 317
4) AIR 1965 SC 1303
5) (2010) 3 SCC 571
6) (2010) 12 SCC 254
7) (2010) 6 SCC 1
8) 1994 Supp (1) SCC 145
9) (2004) 4 SCC 158
10) (1972) 1 ALL ER 997
11) (2003)7 SCC 749
12) (2011) 10 SCC 192
13) (1970) 1 SCC 653
14) (1998) 5 SCC 223
15) (2008) 5 SCC 413
16) (2009) 1 SCC 441
17) (2009)6 SCC 332
18) (2009)7 SCC 685
19) AIR 195 SC 1795
20) (1995) 1 SCC 421
ORDER:
O.S. No.193 of 2008 was filed by a lady tenant of a flat seeking perpetual
injunction against her landlord. The said suit was decreed in her favour. O.S.
No.295 of 2008 filed by the landlord for eviction of the said lady tenant was
dismissed.
Thereafter, on the intervening night of 11th and 12th March, 2011,
the tenant, (petitioner in this Writ Petition), rushed to the police station
complaining of trespass, physical assault, attempt to rape and forcible eviction
by the landlord (3rd respondent in this Writ Petition).
The Investigating
Officer, who visited the apartment building (scene of the offence) on
12.03.2011, found the petitioner - tenant's belongings strewn on the pavement
outside the apartment building.
Without even examining the complainant, and
having failed even to note the outcome of the two suits, (both of which ended in favour of the tenant), the Investigating officer, evidently at the behest of the then Assistant Commissioner of Police, Gopalapuram Division, prepared a draft
final report stating that the complaint "lacked evidence". The Investigating
Officer's version, in short, is that the tenant had vacated the apartment on her own volition, and her complaint against the third respondent-landlord of trespass, attempted rape, assault etc lacked evidence or, in other words, the complaint was false.
While even an idiot may find this version of the
respondent - police officials hard to believe, this Court is called upon to accept that such a conclusion is the justified outcome of an independent, impartial and fair investigation.
For reasons stated hereinafter there are
justifiable reasons to believe that the Investigating Officer did not
impartially investigate the complaint, and the normal course of investigation
was derailed only to help the 3rd respondent-landlord, (whose attempts to evict
his tenant through the legal process had failed), escape the penal consequences
of his having forcibly evicted his inconvenient tenant from his flat which was
under her occupation.
2. The petitioner, a house wife aged 32 years, has filed this Writ Petition to declare the failaure of the 1st respondent to take action on her representations dated 14.03.2011 and 18.03.2011 as illegal and arbitrary.
The
case of the petitioner, in brief, is that the 3rd respondent is the owner of
Flat No.402, 4th Floor, Saraswathi Residency, Padmarao Nagar, Secunderabad, of
which she was the tenant;
she filed O.S. No.193 of 2008 on the file of the Court
of the I Junior Civil Judge, City Civil Court, Secunderabad seeking perpetual
injunction against the 3rd respondent, and obtained a decree;
the 3rd respondent
issued a quit notice under Section 106 of the Transfer of Property Act, and
filed O.S. No.295 of 2008; the said suit filed by the 3rd respondent was
dismissed on the ground that the termination notice was not in accordance with
law;
while matters stood thus the 3rd respondent came to the flat, (under the
occupation of the petitioner), on 11.03.2011 around 2.30 p.m., along with his
muscle-men, and hit the petitioner as well as her family members; they threw
away the furniture and other articles belonging to the petitioner outside the
apartment compound, and took forcible possession of Flat No.402;
the complaint
lodged by her on 12.03.2011 before the 2nd respondent was registered as F.I.R.
No.184 of 2011; as the 2nd respondent did not commence investigation despite
five months having elapsed, she filed a representation to the 1st respondent
and, as no action was taken on her complaint, she has invoked the jurisdiction
of this Court.
3. When this Writ Petition was listed on 07.09.2011, Learned Government
Pleader for Home sought one week's time to file a counter-affidavit, and to
produce the records. The petitioner's counsel was permitted to take out
personal notice on the 3rd respondent by Registered Post Acknowledgment Due.
The 2nd respondent filed counter-affidavit dated 13.09.2011 wherein he stated
that the investigating officer had visited the scene of the offence, and had
noticed that Flat No.402 was closed and vacant; there were some belongings i.e.,
cot, chairs, beds and other cloth bundles laid beside the main gate on the foot
path; nobody was present there to take care of those strewn articles;
investigation was completed and, prima facie, the allegations against the
accused were not established beyond reasonable doubt; permission was obtained
from the Assistant Commissioner of Police, Gopalapuram Division, North Zone, on
18.06.2011 to refer the petitioner's complaint as lacking in evidence; though
attempts were made to serve the notice, the petitioner was evading receipt
thereof; a final report, under Section 173 Cr.P.C, would be filed shortly; and
as there was no evidence to establish the guilt of the accused in the F.I.R, the
investigating officer had referred the complaint of the petitioner as lack of
evidence.
4. On 19.09.2011, the Learned Government Pleader produced the records on
perusal of which this Court noticed that
it did not contain the statement of the
complainant under Section 161 Cr.P.C.
On being asked whether or not the
statement of the complainant had been recorded by the investigating officer,
Learned Government Pleader for Home sought time to enable the 2nd respondent to
file an additional counter-affidavit. In his additional counter affidavit the
2nd respondent would state that, during the course of investigation, the
investigating officer had examined the petitioner and other witnesses, and had
recorded their detailed statements; the then investigating officer had visited
the scene of the offence, and had found some furniture and other articles on the
foot path at the main gate of the apartment; he had addressed a letter to the
Assistant Commissioner of Police, Gopalapuram Division to accord permission to
refer the complaint of the petitioner as lack of evidence; permission was
granted by the then Assistant Commissioner of Police, Gopalapuram Division on
18.06.2011; consequent on the transfer of the then investigating officer, he had
taken up investigation; and, due to non-availability of the complainant, no
notice could be served on her.
The additional counter-affidavit also notes that
this Court had examined the record, including the C.D. file in Cr. No.184 of
2011, on 19.09.2011 and had found the statement of the complainant (L.W-1)
missing; the records revealed that the then investigating officer had examined
the complainant, and had recorded her detailed statement on 12.03.2011 itself
i.e., on the very date of registration of the F.I.R; the said statement was misplaced; and he was tendering his apology to this Court for misplacing the statement of the petitioner.
He would further state that, on the instructions
of the Government Pleader for Home, he had immediately examined the complainant
(on 11.10.2011), and had recorded her detailed statement; he had also recorded the statement of the daughter of the petitioner and other witnesses; he had finalized the investigation; and an appropriate report, under Section 173 Cr.P.C, would be filed shortly.
5. In his counter-affidavit the 3rd respondent states that he is the owner of
Flat No.402. He admits that O.S. No.295 of 2008 filed by him for eviction of
the petitioner from the flat was dismissed. He would, however, deny having
forcibly dispossessed the petitioner on 11.03.2011 at about 2.30 p.m in
association with anti-social elements, or to have torn the petitioner's blouse
or to have tried to rape her. He would submit that they did not throw away the
furniture and other house hold articles; he is not aware that a complaint was
filed before the 2nd respondent on 12.03.2011 against him; he is also unaware
whether the petitioner had given a complaint to the 1st respondent or that
F.I.R. No.184 of 2011 had been registered by the 2nd respondent against him as
alleged; he had never entered the demised premises at any point of time; and he
had not committed any illegal acts. He would also state that the petitioner had
failed to pay rental arrears of Rs.97,800/- i.e., rent for 15 months and, when
he had demanded payment of rent, she had voluntarily vacated the premises
without his knowledge; and she had come up with false allegations only with the
intention of harassing him.
6. On 18.10.2011 this Court noted that, while the earlier counter-affidavit
made no reference to the statement of the petitioner having been recorded, the
additional counter-affidavit states that, though the petitioner was examined as
early as on 12.03.2011 i.e., on the very day of registration of the F.I.R, the
said statement was misplaced; the additional counter-affidavit was silent as to
whether the said statement was traced subsequently or what action had been taken
in this regard; and, since the affidavits filed were vague, the 2nd respondent
should be present on 20.10.2011, along with the entire records.
7. On 20.10.2011 this Court observed that it defied reason that a tenant who
voluntarily vacated the flat would, as contended by the Station House Officer,
come and give a complaint of trespass and physical abuse by the landlord or
file a Writ Petition thereafter.
As the Assistant Commissioner of Police was
said to have directed closure of the case, and it was the erstwhile
investigating officer who was said to have recorded the missing statement of the
complainant, this Court directed their appearance on 21.10.2011 at 10.30 a.m.,
to enable the Court to record their statements. The case diary which was
produced earlier was directed to be kept in a sealed cover with the Registrar
(Judicial) of the High Court.
8. On 21.10.2011 both the Investigating Officer and the Assistant
Commissioner of Police who approved the proposal for closure were present in
Court, and their statements were recorded. On being asked whether a draft final
report had been submitted to the Judicial Magistrate, the Assistant Commissioner of Police expressed ignorance, and sought to ascertain the position from the
Station House Officer.
Consequently the statement of the Station House Officer
was again recorded. As two home guards had allegedly been deputed to serve a
copy of the notice, along with the draft final report, on the complainant they
were directed to be present in Court on 27.10.2011 at 10.30 am. This Court also
directed the complainant to be present in Court on 27.10.2011 to enable her
statement to be recorded. Both the home-guards, who claimed to have been
deputed to serve the notice along with the draft final report, were present on
27.10.2011 and their statements were also recorded. The entire records,
including the record sheets from the office of the Assistant Commissioner of
Police, were retained in the custody of the Court.
9. The documents, submitted by the Assistant Commissioner of Police, are
copies of the F.I.R. dated 12.03.2011; a memo addressed by him on 17.03.2011;
the draft final report submitted to him by the Inspector of Police,
Chilakalaguda on 22.06.2011 which he had approved on 26.06.2011; and the memo
issued by him to the earlier Investigating Officer on 18.06.2011. The draft
final report refers to the complaint given by the petitioner on 12.03.2011 at
12.30 a.m., regarding the incident which took place on 11.03.2011 at 2.30 p.m.
It merely notes that the occupants of the flats had stated that the petitioner,
along with her family members, was residing at Flat No.402 for one and half
years; they were not paying rent to the house owner because of which the owner
had complained against her to the flat owners association; the owner used to
attend her house for collecting rent, but she had threatened him with dire
consequences; suddenly on the night of 11/12.03.2011 the complainant and her
husband had vacated the house without intimation to others; they took away all
the furniture, and vessels from the flat; they also kept some un-used furniture
and clothes on the foot path of the main gate of the apartment; and, after
getting oral instructions from the Inspector of Police, he was referring the
case for lack of evidence.
I. WITNESSES CAN BE EXAMINED/CROSS-EXAMINED IN PROCEEDINGS UNDER ARTICLE 226 OF
THE CONSTITUTION:
10. The High Court is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because, in considering the petitioner's right of
relief, questions of fact may fall to be determined. In a petition under Article
226 the High Court has jurisdiction to try issues both of fact and law. On
consideration of the nature of the controversy the High Court can decide that it
should go into a disputed question of fact. (Babubhai v. Nandlal1). In a
proceeding under Art. 226 of the Constitution the normal rule is to decide
disputed questions on the basis of affidavits, but it is within the discretion
of the High Court whether or not to allow a person to be examined/cross-
examined. Under Art. 226 there is ample power in the High Court to order
attendance of a deponent in Court for being examined/cross-examined. Where it is
not possible for the Court to arrive at a definite conclusion on account of
there being affidavits on either side containing allegations and counter-
allegations it would not only be desirable but, in the interest of justice, the
duty also of the Court to summon deponents for examination/cross-examination in
order to arrive at the truth. If the evidence led by the parties is tested by
examination/cross-examination it becomes easier to determine where the truth
lies. (Barium Chemicals Ltd. v. Company Law Board2; State of Bombay v.
Purshottam Jog Naik3; A.P.S.R.T. Corporation v. Satyanarayan Transports
(Private) Ltd., Guntur4; Babubhai1).
II. EVIDENCE:
11. On 20.10.2011 Sri B. Anjaiah, Station House Officer stated on oath that he
was the in-charge Station House Officer on the date of receipt of the complaint;
the statement of the complainant was recorded under Section 161 Cr.P.C. on
12.03.2011, when the complaint was received; the said statement was misplaced;
he came to know that the statement of the complainant was misplaced only after
receipt of intimation from the Government Pleader for Home regarding the Writ
Petition being filed; the Investigating Officer had recorded in Part-I Case
Diary that the statement of the complainant was recorded; that is how he came to
know that her statement was recorded on 12.03.2011; he had searched for the
statement in his office, and also in the office of the Assistant Commissioner of
Police to whom the Investigating Officer had forwarded the file; on 12.03.2011
the statement of the watchman of the apartment was recorded; on the same day,
statements of the residents of Flat Nos.401, 408, 409 were also recorded; and on
15.03.2011 the statements of two other witnesses were recorded. He further
deposed that the entire file was sent to the Assistant Commissioner of Police on
20.05.2011 who accorded permission on 18.06.2011 to file a closure report; they
could not send the notice to the complainant because they were not aware of her
address; and he had deputed police constables to ascertain the address of the
complainant. He, however, contradicted his earlier statement by adding that he
was not aware whether any police constables were sent to find out the present
location of the complainant.
12. On his being examined on 21.10.2011, Sri B. Anjaiah, Station House
Officer, stated that had deputed two process - men Sri Yella Reddy and Sri
Srinivas to serve the final report on the complainant in the 1st week of July,
2011; the final report under Section 173 Cr.P.C had not been submitted to the
Magistrate till date, as a copy thereof had not been served on the complainant.
On being examined again on 31.10.2011 Sri B. Anjaiah, Station House Officer,
stated that he had sent the notice to the complainant enclosing thereto the
report under Section 173 Cr.P.C. in the 1st week of July, 2011; and he did not
collect the notice from the process server though the notice was not served on
the complainant.
13. The earlier Investigating Officer Sri K. Venugopal stated on oath on
21.10.2011 that he had received the complaint on 12.03.2011; he had recorded the
petitioner's statement under Section 161 Cr.P.C. on 12.03.2011; he had perused
the file in the Court, and the file did not contain the statement of the
complainant dated 12.03.2011; while the said statement of the complainant under
Section 161 Cr.P.C. was available when the entire file was sent to the Assistant
Commissioner of Police, Gopalapuram Division on 24/25-05-2011, the said
statement had been misplaced; he was transferred to Amberpet Police Station in
the end of May, 2011; he was not aware when the said statement was misplaced or
as to how it got misplaced; no records are maintained in the police station to
show whether or not the statement of the complainant, or others, under Section
161 Cr.P.C. is recorded.
14. Sri S. Chaturvedi, the Assistant Commissioner of Police, (presently the
Additional D.C.P. - Task Force) stated on oath on 21.10.2011 that he worked as
the Assistant Commissioner of Police, Gopalapuram from January, 2010 to
September, 2011; he held additional charge as Assistant Commissioner of Police
till 02.10.2011; a proposal was sent to him by the Investigating Officer, with
the endorsement of the Station House Officer, Chilakalaguda Police Station, that
the matter be closed for lack of evidence; he had perused the entire file, and
had then issued proceedings to refer the case as lack of evidence; the statement
of the complainant was part of the file when he had approved the proposal for
closure of the case for lack of evidence in June, 2011; after issuing the
proceedings, the entire file was sent back to the Chilakalaguda Police Station;
he was informed in September, 2011 by the Station House Officer that the Writ
Petition had been filed; after the counter-affidavit was filed by the Station
House Officer, he was informed by him that the statement of the complainant,
recorded under Section 161 Cr.P.C, was missing; he had orally instructed the
Station House Officer to make efforts to trace the missing statement; the
Station House Officer had informed him in the last week of September, 2011 that
the statement of the complainant could not be traced.
15. Sri M. Srinivas, Home-guard stated on oath on 27.10.2011 that his duty was
to serve summons; on 03.07.2011 Sri Anjaiah, the Station House Officer, had
handed over a copy of the notice to be served on the complainant, and had asked
him and Sri V. Yella Reddy, home-guard, to serve it on the complainant; he went
to the complainant's flat at Saraswathi Residency, Padmarao Nagar on 04.07.2011
at around 11.00 a.m; the complainant was not there and the new tenant, in
occupation of Flat No.402, had told them that, after vacating the flat, the
complainant was no longer residing there; they had also expressed ignorance of
the whereabouts of the complainant; he and the other home-guard had enquired
from the watchman, and the security guard of the flats, who told them to go near
Jain Mandir at Secunderabad, and enquire there regarding the complainant's
whereabouts; at around 12.00 noon they went to Jain Mandir; they did not go
inside the temple; they enquired from the people near the temple, whose names
they did not record nor do they recollect who these persons were, about the
whereabouts of the complainant; these persons expressed ignorance, and asked
them to enquire at the jewellery shops nearby; they visited some jewellery shops
in Secunderabad; they do not recollect the jewellery shops they went to; and
they discharge different duties on different dates. He did not recollect where
he went on 1st September. He was also unable to recollect the events which
transpired on 1st October, 2011, but was positive that he went to locate the
complainant on 4th July. He did not also recollect events which took place
either on 3rd of July or on the 5th of July, 2011.
16. Sri V. Yella Reddy, home-guard attached to Chilakalaguda Police Station,
stated on oath that Sri Anjaiah, Station House Officer, had called them on
03.07.2011 at 8.00 p.m. asking them to handover a copy of the notice to be
served on the complainant; on 04.07.2011, at around 11.00 a.m., they went to
Flat No.402; on enquiry a lady had informed them that the complainant was not
residing there, as they had vacated the flat; they came down and asked the
security-guard who also informed them that the complainant had left the flat,
and had shifted residence to Secunderabad; there was only one security guard at
Saraswathi complex with whom they had caused enquiry; the security guard had
asked them to enquire at Jain Mandir, Secunderabad; they enquired from people
outside Jain Mandir whose names he did not recollect; those persons said that
there were Jains residing in Marredpalli; when they enquired from jewellery
shops at Marredpalli, whose particulars they do not recollect, regarding the
whereabouts of the complainant; the shop owners also expressed ignorance; they
came back and again went to Saraswathi complex on 05.10.2011, and enquired from
the owners of Flat No.402 as to whether the complainant was available there, and
whether they would be able to tell them about her whereabouts, but they
expressed ignorance; they had returned the summons to the station house officer,
Chilakalaguda police station on 8th July; no registers were maintained regarding
service of summons; except to mark their attendance in the police station in the
morning, no record was maintained in the police station regarding the places
they visited or the persons whom they contacted for service of summons; and he
was unable to recall events which transpired on 1st October, 2011.
17. Smt. Anjali Jain (the petitioner-complainant) stated on oath on 27.10.2011
that the incident, for which she had filed the complaint, took place on
11.03.2011; the police officials did not receive the complaint given by her
husband; it is only when she accompanied him to the police station at 11.00 p.m.
on the night of 11.03.2011 that they registered the complaint; she gave a
complaint to the 2nd respondent on 11.03.2011; no statement was recorded from
her under Section 161 Cr.P.C. before 11.10.2011; on 11.03.2011 the 3rd
respondent, along with 50 goondas, had come over to Flat No.402 at 2.30 p.m.,
and had forcibly evicted her from the flat; when these people came over to her
residence, and started abusing them, her husband had rushed to Chilakalaguda
police station; during his absence the goondas, in the presence of the 3rd
respondent, his wife and his brother, had physically assaulted her, snatched her
jewellery and informed her that, in case she did not vacate the flat forthwith,
they would rape her; they removed the household articles from the flat, and
threw them all out on the road; they retained her air-conditioner; she left the
house hold articles there itself, and stayed in a hotel at Film City in Jubilee
Hills; after two or three days, they went over to the house of her cousin at
Zaheerabad; they have a film distribution office at Secunderabad; her statement,
under Section 161 Cr.P.C, was recorded in their office premises only on
11.10.2011; and she had lost her entire jewellery which was taken away by the
3rd respondent.
III. ANALYSIS OF EVIDENCE:
A. FAILURE TO SERVE A COPY OF THE DRAFT FINAL REPORT ON THE COMPLAINANT
18. In his counter-affidavit the 2nd respondent stated that, after permission
was obtained from the Assistant Commissioner of Police, Gopalapuram Division,
North Zone on 18.06.2011 to refer the petitioner's complaint as lacking in
evidence, attempts were made to serve the notice, but the petitioner was evading
receipt thereof. In his additional counter-affidavit the 2nd respondent stated
that due to non-availability of the complainant, no notice could be served on
her. Sri B. Anjaiah stated on oath on 20.10.2011 that they could not send the
notice to the complainant because they were not aware of her address. Initially
Sri B. Anjaiah stated that he had deputed police constables to ascertain the
address of the complainant. He later added that he was not aware whether any
police constables were sent to find out the present location of the complainant.
Curiously, in his subsequent statement of 21.10.2011, Sri B. Anjaiah
contradicted his earlier statement of 20.10.2011, and stated that he had deputed
two process-men Sri Yella Reddy and Sri Srinivas to serve the notice along with
the final report in the 1st week of July, 2011; the final report had not been
submitted to the Magistrate till date, as a copy thereof had not been served on
the complainant; and he did not collect the notice from the process-server
though the notices were not served on the complainant.
19. Even more curious are the mutual contradictions in the statements of the
two home-guards who allegedly made attempts to serve the notice on the
complainant. While stating that, on 03.07.2011, Sri B. Anjaiah - the Station
House Officer - had handed over a copy of the notice to be served on the
complainant, Sri M. Srinivas deposed that they had enquired from the watchman,
and the security guards of the flats, who told them to go near Jain Mandir at
Secunderabad, and later they also visited some jewellery shops at Secunderabad,
(whose names he did not recollect), to ascertain the complainant's whereabouts.
While Sri M. Srinivas was certain that a copy of the notice, to be served on the
complainant, was handed over to him on 03.07.2011, he expressed ignorance of
where he went nearly two/three months thereafter on the 1st of September or on
the 1st of October, 2011. He also admitted that he did not recollect events
which took place on the 5th of July, 2011. While Sri M. Srinivas stated that
they had enquired from both the watchman and the security guard regarding the
whereabouts of the complainant, Sri V. Yella Reddy (the other home guard) stated
that they had enquired from the security guard who was there at the complex. No
reference is made by him of their enquiring, the whereabouts of the complainant,
from the watchman. He also stated that they had visited Jain Mandir and
jewellery shops at Maredpalli, but admitted that he did not recollect the names
of persons from whom they had enquired regarding the petitioner's whereabouts,
or the names of the jewellery shops they had visited in this regard. Contrary
to what Sri M. Srinivas stated, Sri V. Yella Reddy stated that they had again
gone to the apartments on 05.10.2011. He also stated that they had returned the
summons to the Station House Officer (Sri B.Anjaiah) on 08.07.2011 which
contradicts the statement of Sri B. Anjaiah that he did not collect the notice
from the process server. Sri V. Yella Reddy also admitted that no registers
were maintained regarding service of summons and, except to mark their
attendance in the morning, no record was maintained in the police station
regarding the places they visited or the persons whom they contacted for service
of summons. Sri V. Yella Reddy also admitted that he did not recollect events
which transpired on 1st October, 2011. The notice, allegedly sent to the
complainant, has also not been placed before this Court for its perusal. Even
if it is presumed that a notice was made ready to be served on the complainant,
(which itself is doubtful), the evidence of the police officials and homeguards
reveal that they were not even aware of the whereabouts of the complainant
resulting in their not serving the notice on her. This falsifies the averment
in the counter affidavit filed by the 2nd respondent that the petitioner
(complainant) was evading receipt of the notice.
B. MISSING STATEMENT OF THE COMPLAINANT
20. In her statement on oath before this Court, the petitioner-complainant
denied that her statement under Section 161 Cr.P.C. was recorded by the police
at any time before 11.10.2011 when such a statement was recorded in their Film
Distribution Office at Secunderabad. The counter-affidavit of the second
respondent dated 13.09.2011 makes no reference to the statement of the
complainant having been recorded under Section 161 Cr.P.C. It is only on the
records being placed before it that this Court found that it did not contain the
statement of the complainant under Section 161 Cr.P.C. An additional counter
affidavit was filed by the 2nd respondent thereafter wherein it is stated that,
while the complainant's statement under Section 161 Cr.P.C. was recorded as
early as on 12.03.2011 itself i.e., on the very date of registration of the
F.I.R, it was misplaced. In his statement on oath before this Court on
20.10.2011, Sri B. Anjaiah stated that the investigating officer had recorded,
in Part I Case Diary, that the statement of the complainant was recorded; that
is how he came to know that her statement was recorded on 12.03.2011; and he had
searched for the statement in his office, and also in the office of the
Assistant Commissioner of Police, but the said statement could not be traced.
Sri K. Venugopal, the Investigating Officer, reiterated that the petitioner's
statement under Section 161 Cr.P.C. was recorded on 12.03.2011. While admitting
that the file placed before this Court did not contain the said statement, he
stated that it was evident that the said statement had been misplaced; and he
was not aware as to how the said statement was misplaced. His admission, that
no records were maintained in the police station to show whether or not the
statement of the complainant or others, under Section 161 Cr.P.C, is recorded
not only contradicts the statement of Sri B. Anjaiah that in the Part I Case
Diary Sri K. Venugopal had recorded that the statement of the complainant under
Section 161 Cr.P.C. had been recorded; but also gives rise to a strong suspicion
that the Part I case diary may well have been interpolated later to cover up the
lapse of the Investigating Officer in failing to record the statement of the
complainant under Section 161 Cr.P.C. The very fact that the draft final report
makes no reference to the civil suits filed both by the petitioner and the 3rd
respondent against each other (both of which ended in the petitioner's favour)
would also go to show that her statement was not recorded for if, indeed, her
statement was recorded, and the matter investigated fairly, these aspects would
certainly have come to light. While the draft final report refers to the
complaint lodged by the petitioner, it makes no reference either to her
statement having been recorded under Section 161 Cr.P.C. on 12.03.2011, or of
the suits filed both by her and her landlord against each other. The 3rd
respondent, in his counter affidavit, admits that O.S. No.295 of 2008 filed by
him for eviction of the petitioner-tenant from the flat was dismissed. He,
however, denies having entered the flat at any point of time. He would state
that the petitioner had voluntarily vacated the premises without his knowledge,
and she had come up with false allegations later only with the intention of
harassing him. Prima facie the counter-affidavit filed by the 3rd respondent is
also false.
21. It defies credulity that a person who, the respondents would contend, had
voluntarily vacate her flat, would throw her belongings on the pavement outside
the apartment building, and give a police complaint in the middle of the night
against the landlord of being forcibly ousted from the flat, more so when the
suit filed by her seeking permanent injunction against the 3rd respondent-
landlord was decreed, and the suit filed by the 3rd respondent-landlord for
eviction of the petitioner-tenant from the flat was dismissed. The clumsy
efforts of the respondent police officers to cover up their lapse in recording
the statement of the complainant under Section 161 Cr.P.C. before the draft
final report was prepared and approved, and their attempts to mislead this
Court, necessitates a serious view being taken of the entire episode.
22. The role of the then Assistant Commissioner of Police, Gopalapuram in this
sordid episode needs specific mention. Within five days of the complaint being
filed on 12.03.2011 he had instructed the Investigating Officer, by memo dated
17.03.2011, to elicit whether any previous enmity existed between both the
parties i.e., the complainant and the alleged accused. He also directed the
investigating officer to examine the neighbours and other witnesses, (his letter
does not refer to the need to examine the complainant); elicit the truth behind
this incident, finalise the case within a fortnight, and report compliance.
Curiously neither of the counter affidavits filed before this Court, nor the
statements recorded on oath, (including that of the Assistant Commissioner),
make any reference to this memo dated 17.03.2011 having been issued. The
unseemly urgency displayed by the Assistant Commissioner of Police, Gopalapuram
to have the case closed is evident from his memo dated 17.03.2011 asking the
investigating officer to complete investigation within a fortnight, and in
according permission on 18.06.2011 to the Investigating Officer to refer the
case as "lack of evidence".
23. While several Writ Petitions are filed daily before this Court questioning
the inordinate delay in investigation of several months, and in some cases
years, the reasons which prompted the Assistant Commissioner to evince special
interest in this case, direct the investigating Officer to investigate in a
particular manner, and complete investigation within a fortnight, and in
according permission to file a report under Section 173 Cr.P.C. as "lack of
evidence", are not difficult to perceive. This needless haste, coupled with the
fact that the complainant's statement under Section 161 Cr.P.C. was not recorded
prior thereto and that the investigating officer had not even taken note of the
suit filed by the complainant, seeking permanent injunction against her land-
lord having been decreed, and the suit filed by the 3rd respondent-landlord for
eviction of the complainant - tenant had been dismissed, does indicate, prima
facie, that the Assistant Commissioner of Police, Gopalapuram had orchestrated
the investigation in a manner to favour the 3rd respondent-landlord. This case
is illustrative of the systemic malaise in the prevalent criminal investigation
machinery. The rot which has set in, if not promptly stemmed, may sound the
death-knell of the criminal justice delivery system in this country.
IV. ACTION TO BE TAKEN:
(i). TRANSFER OF INVESTIGATION:
24. Article 21 of the Constitution of India, in its broad application, not
only takes within its fold enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the human rights of a
citizen providing for fair and impartial investigation against any person
accused of commission of a cognizable offence. (State of West Bengal v.
Committee for Protection of Democratic Rights, West Bengal5). Fair investigation
is a part of the constitutional rights guaranteed under Articles 20 and 21 of
the Constitution of India. Investigation must be fair, transparent and judicious
as it is the minimum requirement of the rule of law. The investigating agency
cannot be permitted to conduct investigation in a tainted and biased manner.
(Babubhai v. State of Gujarat6). The aim of criminal justice is two-fold.
Severely punishing and sufficiently preventing a crime. Both these objects can
be achieved only by a fair investigation into the commission of a crime. An
investigation must be fair and effective, must proceed in a proper direction in
consonance with the ingredients of the offence, and not in a haphazard manner.
(Sidhartha Vashisht v. State (NCT of Delhi)7). A fair and impartial
investigation by an independent agency is essential in larger public interest.
(Mohd. Anis v. Union of India8).
25. If the State's machinery fails to protect a citizen's life, liberty and
property, and the investigation is conducted in such a manner as to help the
accused, it is but appropriate that the Court should step in to prevent the
miscarriage of justice perpetrated on the victim. "The law should not be seen to
sit by limply, while those who defy it go free, and those who seek its
protection lose hope." Courts have to ensure that the accused are punished, and
the might or authority of the State is not used to shield them. If deficiency in
investigation is visible or can be perceived by lifting the veil which hides
realities or covers obvious deficiencies, courts have to deal with them with an
iron hand within the framework of the law. It is the duty of the court to ensure
that full and material facts are brought on record to avoid miscarriage of
justice. The justice-delivery system cannot be allowed to be abused, misused and
mutilated by subterfuge. (Zahira Habibulla H. Sheikh v. State of Gujarat9;
Jennison v. Baker10 and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble11).
26. The criminal investigation system must be insulated from discriminatory
standards or yardsticks of the type prohibited by the mandate of the
Constitution. (Zahira Habibulla H. Sheikh9). The investigation into a criminal
offence must be free from all objectionable features or infirmities which may
legitimately lead to a grievance that the investigation was unfair or had been
carried out with an ulterior motive which has an adverse impact on the case.
(Mohd. Imran Khan v. State (Govt. of NCT of Delhi12; Babubhai6). It is not only
the responsibility of the investigating agency but as well as that of the courts
to ensure that investigation is fair. An equally enforceable canon of the
criminal law is that a high degree of responsibility lies upon the investigating
agency not to conduct investigation in a tainted and unfair manner. The
investigation should not, prima facie, be indicative of a biased mind and every
effort should be made to bring the guilty to law as nobody stands above law
dehors his position and influence in society. (Sidhartha Vashisht7).
27. In the case of a malafide exercise of power by a police officer, the court
may interfere with the investigation. (S.N. Sharma v. Bipen Kumar Tiwari13;
Babubhai6). Where the court comes to the conclusion that there are serious
irregularities in the investigation, or that the investigation has been done
with the object of helping a party, it may direct further investigation. In
exceptional circumstances the court, in order to prevent miscarriage of criminal
justice, may, if it considers it necessary, direct investigation de novo, or
even transfer the investigation to an independent agency. Where non-
interference of the court would ultimately result in failure of justice, the
court must interfere. In such a situation, it may be in the interests of justice
that an independent agency chosen by the High Court makes a fresh investigation.
(Babubhai6; K. Chandrasekhar v. State of Kerala14; Ramachandran v. R.
Udhayakumar15; Nirmal Singh Kahlo v. State of Punjab16; Mithabhai Pashabhai
Patel v. State of Gujarat17; and Kishan Lal v. Dharmendra Bafn18).
28. The analysis of the evidence afore-extracted, prima facie, shows that Sri
S. Chaturvedi, presently Additional Deputy Commissioner of Police, Task Force
(the then Assistant Commissioner of Police, Gopalapuram), orchestrated
investigation to unduly benefit the 3rd respondent-landlord, and to the
detriment of the petitioner-tenant (the victim). Under the protective umbrella
of Sri S. Chaturvedi, Sri K. Venugopal, (the then Investigating Officer), short
circuited the investigation and prepared a draft final report as "lack of
evidence". The concocted story of the petitioner-tenant having vacated her flat
on her own accord falls to ground in the face of overwhelming evidence to the
contrary. The petitioner's articles and belongings were found strewn on the
pavement outside the apartment building, the day after she gave her complaint.
The suit filed by her against the 3rd respondent-landlord for permanent
injunction was decreed, and the suit filed by the 3rd respondent- landlord
seeking her eviction was dismissed long before the incident which took place on
11.03.2011. A person, who voluntarily vacated occupation of the flat, would not
go to the police station in the middle of the night and complain that she has
been forcibly evicted, more so when the landlord's attempts earlier to evict her
through the legal process had failed. Prima facie it does appear that the 3rd
respondent-landlord, having failed to evict the petitioner-tenant from the flat
through the legal process, took law into his own hands and used musclemen to
have her and her family members evicted from his flat; the respondent police
officials sought to ensure that the 3rd respondent-landlord, despite his illegal
and high handed acts of trespass into the flat and physical assault and
attempted rape, was not brought to justice; and the petitioner's complaint was
sought to be given a quick and quiet burial.
29. Since a draft final report has not yet been filed before the Magistrate it
is but appropriate, in the aforesaid circumstances, that the petitioner's
complaint be investigated afresh by an independent agency. The Commissioner of
Police, Hyderabad shall entrust investigation, into the complaint filed by the
petitioner, to the CBCID which shall conduct investigation in a fair,
transparent and impartial manner uninfluenced either by the previous
investigation or by any observations made in this order. It is made clear that
Sri S. Chaturvedi, the Additional Deputy Commissioner of Police, Task Force, Sri
K. Venugopal, the then investigating officer and Sri B. Anjaiah, the Station
House Officer shall not, in any manner, be associated with the investigation
being caused afresh into the petitioner's complaint. While this Court was
initially inclined to monitor the investigation to be conducted afresh by the
CBCID, bearing in mind that monitoring of investigation is resorted to only in
exceptional circumstances and as there is no reason to doubt that the CBCID
would conduct investigation in a fair, transparent and impartial manner, it may
not be appropriate for this Court to monitor the investigation. It is, however,
made clear that the investigation shall be completed within four months from
today; and, on completion of investigation and before a final report under
Section 173 Cr.P.C. is filed, the investigating officer (in the CBCID
department) shall place a copy of the draft final report, along with the
enclosures including the statement of witnesses examined by him, for this
Court's perusal.
(ii). INITIATION OF CRIMINAL CONTEMPT PROCEEDINGS:
30. Sri B. Anjaiah, the Station House Officer and Sri G. Avanidhar Goud, the
3rd respondent-landlord have filed false counter-affidavits. Sri S. Chaturvedi,
the Additional Deputy Commissioner of Police - Task force, Sri K. Venugopal, the
then Investigating Officer, Sri B. Anjaiah-the Station House Officer, and Sri M.
Srinivas and Sri V. Yella Reddy, the Home-guards/process servers have made false
statements on oath before this Court in their endeavour to deflect the course of
justice, and to prevent this Court from ascertaining the truth. Section 2(c)
of the Contempt of Courts Act, 1971 defines criminal contempt as "the
publication (whether by words, spoken or written or by signs or visible
representation or otherwise) of any matter or the doing of any other act
whatsoever to (1) scandalise or tend to scandalise or lower or tend to lower the
authority of any court; (2) prejudice or interfere or tend to interfere with the
due course of judicial proceedings; or (3) interfere or tend to interfere with,
or obstruct or tend to obstruct, the administration of justice in any other
manner. Thus any conduct which has the tendency to interfere with the
administration of justice, or the due course of judicial proceedings, amounts to
the commission of criminal contempt. (Dhananjay Sharma v. State of Haryana19).
The word 'interfere', in this context means any action which checks or hampers
the functioning or hinders or tends to prevent the performance of duty i.e.,
obstacles or impediments which hinder, impede or in any manner interrupt or
prevent the administration of justice. If recourse to falsehood is taken with an
oblique motive, the same would definitely hinder, hamper or impede the even flow
of justice, and would prevent the courts from performing their legal duties as
they are supposed to do. (Chandra Shashi v. Anil Kumar Verma20; Words and
Phrases (Permanent Edn.), Vol. 22).
31. In Chandra Shashi20, the respondent produced a false and fabricated
certificate to defeat the claim of his wife for transfer of a case. This action
was found to interfere with the administration of justice. The Supreme Court
observed:
"The stream of administration of justice has to remain unpolluted so that purity
of court's atmosphere may give vitality to all the organs of the State.
Polluters of judicial firmament are, therefore, required to be well taken care
of to maintain the sublimity of court's environment; so also to enable it to
administer justice fairly and to the satisfaction of all concerned. Anyone who
takes recourse to fraud deflects the course of judicial proceedings; or if
anything is done with oblique motive, the same interferes with the
administration of justice. Such persons are required to be properly dealt with,
not only to punish them for the wrong done, but also to deter others from
indulging in similar acts which shake the faith of people in the system of
administration of justice." (emphasis supplied).
32. Anyone who makes an attempt to impede or undermine or obstruct the free
flow of the unsoiled stream of justice by resorting to false evidence, commits
criminal contempt of the court and renders himself liable to be dealt with in
accordance with the provisions of the Contempt of Courts Act. Filing of false
affidavits or making false statement on oath in Courts aims at striking a blow
at the rule of law, and no court can ignore such conduct which has the tendency
to shake public confidence in judicial institutions. It would be a public
disaster if the fountain of justice is allowed to be poisoned by anyone
resorting to filing of false affidavits or giving of false statements or
fabricating false evidence in a court of law. The stream of justice has to be
kept clear and pure and anyone soiling its purity must be dealt with sternly so
that the message percolates loud and clear that no one can be permitted to
undermine the dignity of the court and interfere with the due course of judicial
proceedings or the administration of justice. (Dhananjay Sharma19; Chandra
Shashi20). To enable the courts to ward off unjustified interference in their
working, those who indulge in acts like perjury, prevarication and motivated
falsehoods have to be appropriately dealt with, without which it would not be
possible for any court to administer justice. (Chandra Shashi20).
33. Prima facie, the false affidavits filed by Sri B. Anjaiah and Sri G.
Avanidhar Goud; and the false statements on oath by Sri S Chaturvedi, Sri B.
Anjaiah, Sri K. Venugopal, Sri M. Srinivas and Sri V. Yella Reddy constitute
criminal Contempt of Court. The Registrar-General of the High Court shall
forthwith initiate suo-motu criminal contempt proceedings, under the Contempt of
Courts Act, against the five police officials/personnel and Sri G. Avanidhar
Goud, the 3rd respondent-landlord.
(iii). INITIATION OF DISCIPLINARY PROCEEDINGS:
34. A copy of this order shall be sent to the Chief Secretary, Government of
Andhra Pradesh forthwith, and he shall initiate disciplinary proceedings against
the five police officials/personnel for dereliction and gross negligence in the
discharge of their duties, and for derailing the course of investigation to
unduly favour Sri Sri G. Avanidhar Goud, the 3rd respondent-landlord.
35. Respondents 2 and 3 in this Writ Petition, Sri S. Chaturvedi, (Additional
Deputy Commissioner of Police, Task Force) and Sri K. Venugopal, (the previous
investigating officer), shall pay exemplary costs of Rs.5,000/- each to the
petitioner within two months from today. With the above observations and
directions, the Writ Petition stands disposed of.
Date: 28 .02.2012
____________________________
RAMESH RANGANATHAN, J
